Now in the other three cases I mentioned similar decrees were entered. Those decrees are facts. The title never was divested from the Indian owner and the proceedings were absolutely void. Now, in my judgement, if Congress divests that title to anyone else, that to my mind would be an act without due process of law. Mr. STIGLER. The title has always been divested, Mr. Flanery; that act only validates the title; the title has already passed and this act merely validates the title. Mr. FLANERY. No; I may be wrong. This bill reads: That no order, judgment, or decree in partition made, entered, or rendered subsequent to the effective date of the act of June 14, 1918 (40 Stat. 606), and prior to the effective date of this act, and involving inherited lands of enrolled and unenrolled members of the Five Civilized Tribes, shall be held null, void, invalid, or inoperative, nor shall any conveyance of any land pursuant to such order, judgment, or decree be held null, void, invalid, or inoperative because the United States was not a party to such order, judgment, or decree, or to any of the proceedings in connection therewith, or because the United States, its agents or officers, or any of them, was not served with any notice or process in connection therewith, and all such orders, judgments, decrees, and conveyances are hereby confirmed, approved, and declared valid. Mr. SCHWABE. Well, Congress passed the act which required the partitioning in which the Government would be made a party. Mr. FLANERY. Yes. Mr. SCHWABE. That is a closed matter. Mr. FLANERY. That is right. Mr. SCHWABE. Now Congress says that is not necessary in these cases, but that henceforth it will be necessary. requirement in regard to these previous cases. It has nullified the Mr. FLANERY. My point is, under the final decree of the court; in other words, this proposed act attempts to say no court shall do something which several courts have already done. Mr. SCHWABE. It would not apply to those cases; we, of course, will have to admit that. Mr. FLANERY. I think you will have to admit that. Mr. SCHWABE. Of course, it cannot apply to those cases where such orders have already been entered. Mr. FLANERY. I think you will have to admit that. Mr. SCHWABE. But as to those cases where the orders have not been entered that is the purport of this bill, isn't it? Mr. STIGLER. That is right. Mr. SCHWABE. Let us confine ourselves to that. Mr. FLANERY. If the Supreme Court decision means what it says, and the decisions and the decrees of the courts in these other cases where decrees have already been entered, the same result would probably follow. The courts have decided that these are illegal proceedings by which titles were acquired and that they are absolutely void. Mr. GALLAGHER. Have you the full decision of the Supreme Court? Mr. FLANERY. I have it here. Mr. GALLAGHER. I think it would be well to make it a part of the record. Mr. FLANERY. I will submit the decision of the Supreme Court in the Hellard case for the record. Mr. STIGLER. Without objection the decision will be inserted in the record at this point. (The decision in the Hellard case is as follows:) IN THE SUPREME COURT OF THE UNITED STATES October Term 1943 No. 648 UNITED STATES OF AMERICA, Petitioner vs. D. B. HELLARD BRIEF AMICUS CURIAE OF THE STATE OF OKLAHOMA ON RELATION OF THE COMMISSIONERS OF THE LAND OFFICE OF SAID STATE STATEMENT AS TO STATE'S INTEREST IN THIS LITIGATION On account of the far-reaching effect of this decision on land titles in Oklahoma and the fact that the Commissioners of the Land Office have made loans on many tracts of land in Eastern Oklahoma, formerly embracing the Five Civilized Tribes area, the Attorney General of the State of Oklahoma, upon the direction of the Governor, acting for and on behalf of said State of Oklahoma, applied for and obtained permission to file a brief amicus curiæ in support of the Petition for Rehearing. The School Land funds of the State of Oklahoma, now constituting in the aggregate the sum of $65,000,000.00, came originally as a direct appropriation from the Federal Government. It was intended as a permanent school fund. The Commissioners of the Land Office, over the period of years since the erection of the State, have loaned these funds to farmers in the eastern as well as other sections of the State. Many loans have been made by this department on lands that were partitioned subsequent to the passage of the Act of June 14, 1918, and the State has at this time a case pending in the Circuit Court of Appeals, styled United States of America v. Fuston, et al., No. 2878, January Term 1944. The precise question presented in this case is likewise presented in the Fuston case, and if the opinion as announced in this case is not modified the loss of the State in the Fuston case will be approximately $7,877.74. It is estimated after a survey as best could be made of the school land loan files that the State has approximately $500,000 in loans on titles of this nature and in titles based on.the foreclosure of such loans, all of which will be a direct loss charged against the school land funds originally granted to the State by the United States. It is, therefore, apparent that the State of Oklahoma, in the preservation of its school endowment fund, is directly and vitally interested in the outcome of this litigation. In presenting our views on the questions involved in this case, we respectfully submit for the Court's consideration, the following propositions: CONTENTIONS OF THE STATE OF OKLAHOMA PROPOSITION No. 1: There is a well-defined distinction between the status of members of the Five Civilized Tribes and members of the so-called Wild Tribes. PROPOSITION No. 2: The legislative history of the Act of June 14, 1918, shows conclusively that Congress intended to confer full and complete jurisdiction upon the State courts to render judgments in partition among full-blood Indian heirs. PROPOSITION No. 3: The Governmental interests in the Act of 1918 were fully protected by means other than making it a party to a partition proceeding. PROPOSITION No. 4: "Inherited lands" are not restricted lands but are lands from which restrictions have been removed and the Government is not for that reason a necessary party in cases involving such lands. PROPOSITION No. 5: There is no difference between the grant of authority conferred upon the state courts by the Act of 1918 and the authority found in the Act of 1908 conferring jurisdiction upon the state courts in probate matters. PROPOSITION No. 6: Under the doctrine of the "Rule of Property," the judgment of the Circuit Court of Appeals should be affirmed. While we prefer to discuss the various phases of this case from the standpoint of six separate propositions, we feel that in the final analysis, this case presents but two questions: 1st. Whether the United States was an indispensable party to the partition proceedings involved herein; and 1 Oklahoma Enabling Act-Act of June 16, 1906, 34 Stat. 267. 2nd. If the United States was an indispensable party to said proceedings, did its omission as a party result in the judgment in partition being an absolute nullity? We take the position that both of the foregoing questions should be answered in the negative. In the course of the opinion in this case the Court says: "We must read the Act of June 14, 1918 (40 Stat. 606) in light of the history of restricted lands. That history shows that the United States has long been considered a necessary party to such proceedings in view of the large governmental interests which are at stake." No authority is cited in support of this statement, and, in our opinion, the statement is erroneous. If, by the statement it is meant that the United States is not bound unless it is a party, the statement is correct. On the other hand, if it is meant that when the United States is not a party, the proceedings are, for that reason, null and void (and it is quite clear that this is the meaning which the Court has in mind), we most respectfully submit that the statement is not supported by any authority and is absolutely erroneous. We have no complaint to make of the heretofore thoroughly established rule that a judgment in a suit or proceeding involving members of the Five Civilized Tribes, to which the United States is not a party, is not res adjudicata as against the United States. That is a sound rule to which we readily assent. Moreover, it is perfectly adequate for the fullest protection of the Indian wards of the Government. Therefore, in the final analysis, our complaint goes to the ruling of the Court in this case that an adjudication in a partition proceeding involving Indian lands, to which proceedings the United States was not a party, or that a judgment in a case involving the validity of an Indian conveyance, to which the United States was not a party, or that a proceeding for the sale of Indian lands, to which the United States was not a party, for the sole reason of the absence of the United States, was and is, for that reason alone, absolutely null and void. Such holding is, in our opinion, unnecessary to safeguard the interests of Indians of the Five Civilized Tribes, and, moreover, is tantamount to a denial of the thoroughly established principle that the members of the Five Civilized Tribes are citizens of the United States and are sui juris. To further clear up preliminary matters, we wish to say in the outset that we have no quarrel with the Court on the soundness of the principles announced in the case of Minnesota v. United States, 305 U. S. 388, 83 L. ed. 241. Inasmuch as legal title was in the United States, it was correctly held that the United States was an indispensable party to the proceedings involved in that case. However, that fact, as well as others, distinguishes it from the case at bar, for in this case legal title is in the Indian allottee's heirs and not in the United States. We now proceed with a discssion of the six separate propositions as hereinabove outlined. Proposition No. 1 THERE IS A WELL DEFINED DISTINCTION BETWEEN THE STATUS OF MEMBERS OF THE FIVE CIVILIZED TRIBES AND MEMBERS OF THE SO-CALLED WILD TRIBES In order that the court may not decide this case from the background of the wild or blanket tribes of Indians, but from a standpoint of the legislation, conditions and history of the Five Civilized Tribes, we ask the court to indulge us in a brief review of the many points of difference that exist between the status of the so-called wild tribes and the Five Civilized Tribes. The area embraced in the lands originally patented to the Five Civilized Tribes comprise what may be broadly termed the eastern half of the State of Oklahoma. These Indian tribes migrated to or were removed to the Indian Territory from the southeastern states in the period from 1830 to 1845. The original home of the Choctaws was in the State of Mississippi. They were removed under the Treaty of 1830.2 The Cherokees were in Georgia and North Carolina, and came west under the Treaty of 1835.3 The Seminoles came from Florida, the Creeks from Alabama and Georgia, and the Chickasaws from the States of Tennessee and northern Mississippi. These last three tribes came later, but all before 1845. Long prior to their removal west, these tribes were advanced far beyond other tribes of North American Indians. Each of these tribes maintained their own schools and churches and separate governments and elected their tribal officials even before their removal to the west. History tells us that the Cherokees, 2 Treaty of September 27, 1830, 7 Stat. 340. Treaty of 1835, 7 Stat. 478. Choctaws, and Chickasaws were a stock-raising and agricultural people for more than 100 years prior to their removal to the Indian Territory. As early as 1810 the Cherokees (then in Georgia and North Carolina) met in legislative council and had a written code of laws. As early as 1821 the Choctaw Legislative Council provided for schools so that no family would be more than four miles from a schoolhouse. Upon their arrival in the Indian country (now Oklahoma) they immediately set up governments under a written constitution, republican in form, with executive, legislative, and judicial departments. These governments were almost as independent as the states, the legislatures enacting both civil and criminal laws, applicable to members of the tribes, which laws were enforced by their own courts even to the death penalties. Their power was limited as far as members of the tribes and tribal affairs was concerned only as to lands allotted to the tribes by the federal government and trust funds set up by the federal government of funds derived from treaties with the United States disposing of tribal lands. The Government of the United States recognized the base title of the Cherokee tribe of Indians, as well as of the other tribes, in the original states from which they were removed." Each tribe had its published code of law. In 1899 the Chickasaw code was a volume containing over 495 pages of civil and criminal statutes as comprehensive and extensive in their nature as the laws of the neighboring states.5 Each tribe maintained a system of free schools and institutions of higher learning. In the Choctaw nation alone there were five male and female academies to which the children in the advanced stages of learning were sent. In each tribe there was a provision by which students leaving the Indian academies were given the opportunity for further advanced education in the universities of the east and it is a matter of common knowledge that many of these students, even of the full-blood type, were subsequently outstanding citizens of the Indian Territory. These tribes have been designated by Acts of Congress and the Department of the Interior and the general public for more than 75 years as the Five Civilized Tribes in distinguishing them from the other tribes of Indians throughout the United States. It is well known that the general Indian legislation enacted by the Congress does not apply to these tribes in the absence of a specific provision bringing them within the scope of such legislation." The lands occupied by these Indians were never treated as Indian reservations. On the contrary, each tribe received a patent to the lands assigned to them upon removal from their homes beyond the Mississippi River. The patent to the Choctaw Tribe, for instance, was issued in 1840 and it has been frequently construed as a grant in fee to the tribe as to the lands embraced in the grant. It was given as an exchange for lands owned by these Indians in Mississippi prior to the enforced migration from their homes." More than 40 years ago the Congress of the United States passed an act which entitled the members of the Five Civilized Tribes to all the privileges and immunities of natural-born citizens. They have enjoyed complete freedom from governmental control in everything except as to the sale and control of restricted allotted lands. They are subject to governmental control as to trust funds acquired from the United States as the result of sales of the common lands in their former homes. Upon removal of these tribes from the states east of the Mississippi they set up their own separate tribal governments in the Indian Territory, each having the area divided into counties and each having a recognized tribal capital. Tahlequah was the capital of the Cherokee Nation, Tuskahoma of the Choctaw Nation, Tishomingo of the Chickasaw Nation, Wewoka of the Seminole Nation, and Okmulgee of the Creek Nation. After the Act of March 3, 1901, these Indians could sue and be sued in the courts of the United States, being sui juris in everything not having to do with their original allotment of land. They had intermarried with the white citizens who had been admitted to their borders and they were never in any part of their history for over 200 years considered warlike or alien Indians. On the contrary, these tribes organized their own Indian military forces and participated in the second war with England. A renowned chief of the Choctaws named Pushmataha lead a brigade of Choctaw and Chickasaw Indians in the battle of New Orleans. A distinguished Creek Indian by the name of McIntosh was also a general in the Army of the United States. When Tecumseh Treaty of New Echota with Cherokees, 7 Stat. 478; Choctaw Treaty, 7 Stat. 340. Bledsoe Indian Land Laws, 2d Edition, page 8. 7 Choctaw Nation v. United States, 119 U. S. 306; United States v. Choctaw Nation, 179 U. S. 292. Act of March 3, 1901, 31 Stat. 1447. Re Huff, U. S. Sup. 197 U. S. 491. came from the northern Indian tribes as an emissary of the British to enlist the southern Indians in the war against the United States, Pushmataha was selected to meet him in debate in an historic Indian gathering held on Pearl River in the State of Mississippi. Tecumseh left the southern Indians and abandoned any hope of inducing them to take up arms against the United States. matters of history. These are These Indians were not only farmers and stockmen and property owners, but prior to the Civil War they owned slaves and many of the leading Indians of these tribes held slaves in large numbers. The ownership of slaves was so extensive that when the program of allotment of land in severalty was begun in the late nineties each tribe provided for the allocation of lands to their former slaves. The total number of slaves placed upon the final approved rolls as freedmen were: Cherokees, 4,979; Choctaws, 6,019; Chickasaws, 4,853; Creeks, 6,837, and Seminoles, 896.10 The first United States Court in the Indian Territory was established in 1890.11 Its jurisdiction was increased from time to time until 1897 when it became complete. The Congress at the time of the establishment of the United States Court placed the laws of the State of Arkansas in force in the Indian Territory and when statehood came the laws of Territory of Oklahoma were adopted and put in force in the state. There was no exception as to the laws which applied to the Five Civilized Tribes of Indians in the early Congressional Acts except that in the days of the tribal governments the court had no jurisdiction of controversies arising entirely between Indians. And there was no exception in the Enabling Act, creating the State of Oklahoma, except that the state was required to disclaim all right and title to any unappropriated lands lying within the bondaries thereof and to all lands lying within the state owned by any Indian, tribe, or nation. Such a declaration is contained in Section 3 of Article I of the Oklahoma State Constitution. It is a matter of common knowledge that many mixed blood Indians and many full-blood Indians have occupied many high positions in the state and federal governments. A member of the Chickasaw tribe of Indians by blood is a present member of the Supreme Court of the State of Oklahoma and a former chief justice of that court. We refer to the Honorable EARL WELCH. Governor Cruce was an intermarried citizen of the Chicaksaw Nation. Senator Robert L. Owen was one of the first members from the State of Oklahoma and was for many years a distinguished member of that body. He was part Cherokee. Congressman Charles Carter was a half-blood Chickasaw and for more than 20 years was a Congressman from the Third Congressional District of Oklahoma, embracing large areas of what was originally the Choctaw and Chickasaw Nations. He was chairman of the House Committee on Indian Affairs, at the time the Act of June 14, 1918, here under consideration was passed. W. W. Hastings of Tahlequah was for many years attorney for the Chickasaw Nation and was for many years a member of the House of Representatives. He was a part Cherokee Indian. The Honorable W. G. Stigler is a member from Mr. Hasting's old district and is about a one-half blood Choctaw Indian. Proposition No. 2 THE LEGISLATIVE HISTORY OF THE ACT OF JUNE 14, 1918, SHOWS CONCLUSIVELY THAT CONGRESS INTENDED TO CONFER FULL AND COMPLETE JURISDICTION UPON THE STATE COURTS TO RENDER JUDGMENTS IN PARTITION AMONG FULLBLOOD INDIAN HEIRS It is respectfully submitted that a brief investigation into the legislative history that antedated the passage of the Act of 1918 will convince the court that it was the purpose of Congress to remove every obstacle or barrier to the power of the state courts to render judgments for the complete and effective partition of lands among Indians of the full blood. The court already had jurisdiction of the inherited lands of minors of the full-blood of the Five Tribes and there was no question about the power of the state courts to authorize the sale of the interests of a minor in such inherited lands. On January 30, 1917, the Supreme Court of the State of Oklahoma rendered a decision in the case of Coleman v. Battiest, 65 Okl. 71, 162 Pac. 786, in which it was held that the state District Courts were without power to render judgments partitioning lands among full-blood Indians. Prior to this decision, lawyers and the trial courts had been in doubt about the 10 See approved Rolls Five Civilized Tribes, Adults and Minors. 11 Act of May 2, 1890, 26 Stat. 81. |