Section 2 of the Partition Act of 1918 reads as follows:

"That the lands of full-blood members of any of the Five Civilized Tribes are hereby made subject to the laws in the State of Oklahoma providing for the partition of real estate."

In the case of full-blood minors, the probate courts of Oklahoma from statehood to this date have an unbroken record of authorizing the sales of fractional inherited interests owned by full-blood Indian minors and the contention was never advanced that the Secretary of the Interior or the United States Government, by virtue of the relation of guardianship and ward, was a necessary party to these proceedings. Many thousands of guardianship sales have been ade in the area comprising the Five Civilized Tribes. For some years it was contended that the deed executed by the guardian of a full-blood Indian minor was invalid without being also submitted to the county court having jurisdiction of the estate of the deceased Indian allottee, the theory being that inherited lands could only be alienated by approval of the county court that actually had jurisdiction of the estate of the deceased allottee. This question was put to rest by a decision of this court in the case of Harris v. Bell, 254 U. S. 103, 65 L. ed. 159, decided on November 15, 1920. In this case the court said that by the language of Section 6 of the Act of 1908, and other congressional enactments, the property of minor Indians of the Five Civilized Tribes were explicitly made subject to the jurisdiction of the probate courts. And, again, in the course of the opinion, the court said that a guardianship in Oklahoma carries with it the exclusive power to direct the guardian and to supervise the management and disposal of the ward's property. That rule, the court said, is so widely recognized and so well grounded in reason that a purpose to depart from it ought not to be assumed and the opinion goes on to say that "the Act of 1908 contains no manifestation of such a purpose outside of proviso of Section 9." It seems that this language used by this court in Harris v. Bell applies with equal force to the powers conferred upon the state courts by the Act of 1918. In saying, as the Congress did in Section 2 of the Act of 1918, that the lands of full-blood members "are hereby made subject to the laws of the State of Oklahoma, providing for the partition of real estate" without further providing that the United States should be brought in as a party defendant, the Congress was not departing from the policy to which it had adhered in its dealings with these Indians. Viewing the language of the Act in the light' of the judicial and legislative history that antedated its passage, it would seem clear that the Congress was endeavoring to remedy a situation which resulted in confusion and instability in land titles. Congress had already conferred jurisdiction upon the county courts as to minors and incompetents without any qualifications that the United States be made a party in such proceedings and had conferred the same type of jurisdiction upon the County Courts to approve deeds

of full-blood heirs.

We feel that what was said by this Court in Stewart v. Keyes, 295 U. S. 403, 79 L. ed 1507, is peculiarly applicable and controlling here. In subjecting the lands acquired by inheritance by full-blood heirs to the County and District Courts in partition proceedings, Congress simply removed whatever barrier or obstacle may have existed and thereby permitted this type of lands to be administered in accordance with the laws of the State of Oklahoma. The procedure for conducting a partition case in the State of Oklahoma had no provision whatever with reference to notice upon the Secretary of the Interior or any agent of the government and this must have been known to Congress since these matters were fully considered in the original grant of jurisdiction to the county courts in the Act of 1908. The Government has never advanced the contention that guardianship sales were void because of lack of notice to any agent of the federal government. The contention has never been advanceRd that under Section 9 of the Act of 1908 providing for the sale of inherited land notice had to be served upon the Government before the county courts coud approve sales of inherited lands. No one has ever taken the position (in either the Interior Department or the Department of Justice) that a full-blood Indian's will devising all of his individual allotment, his inherited lands and a million dollars in the Secretary's hands had to be approved by the Secretary. The right of a full-blood Indian to make a will is well settled. See Act of May 27, 1908, 35 Stat. 312.

We call attention to the Act of 1908 in dealing with interests of full-blood minors with wills and with the sale of interests by full-blood adults in the county courts of Oklahoma merely to show that the policy of Congress was to make no requirement as to notice upon any representative of the Interior Department. These matters were left to be taken care of by rules and regulations to be promulgated by the Secretary of the Interior. In the opinion in this case the court

points out that the Government concedes that notice is not necessary to the Government in heirship proceedings and a distinction is attempted to be drawn between the legal aspect of rendering a judgment in an heirship proceeding and a judgment in partition. The Court says, "Since restrictions on alienation do not prevent inheritance no governmental interest is at least involved in such a determination." We respectfully suggest that the court has here fallen into error. In exercising the power to determine heirs the County and District Courts in effect deny a full-blood Indian the right of participating in deceased Indian's estate. The judgment may not only minimize and cut down, but it often entirely eliminate an heir from participating in the estate. For instance, we will assume that a Choctaw Indian of the full-blood has been brought over from Mississippi, and arbitrarily allotted lands which are later in the center of the Healdton oil pool. After becoming immensely rich from proceeds of oil produced under a departmental lease, he travels from Oklahoma to California and back and forth across the continent. He establishes a summer home in Canada. He enters into marriage relations and obtains divorces and sometimes remarries without the formality of a divorce. Upon his death four women claim to be his heirs and four chidiren claim to be his offspring. Two of the women are full-blood Comanches, one is a full-blood Mississippi Choctaw and the last one is a white woman. He married her in California. The county court has to pass upon their respective claims. The final decree is that the white women is the lawful wife, but the court has to find that her interest in the estate is diminished by the fact that he had four children born to him of the marriage in Mississippi. The Indian wives go out of the picture, the white wife participates, but she takes under the Oklahoma law on the basis of a child's part. She is therefore given 1/5th, whereas if the children had been eliminated as illegitimate offspring she could have taken the full estate. It is, therefore, apparent that in rendering a decree determining heirs the court directly and effectively eliminates the full-blood Indian women (for whom the Government is the guardian) and permits a white woman to take an estate claimed by wards of the federal government. Isn't it perfectly apparent that under such a state of facts the Government has the same interest in these three Indian women that it has in the case where there is no question about the facts as to heirship? Isn't there here a divesture of all title or claim whatsoever of these so-called "restricted' Indians? A case typical of the conflicting claims of the wives reached the Oklahoma Supreme Court in Johnson v. Dunlap, 173 P. 369, 68 Okl. 216. We quote an interesting comment in that opinion from page 361 as follows:

"True it is that he had numerous wives, including Amy, Lucy, Selina and Jency, but the evidence reasonably supports the view that, unlike some of the patriarchs of old, he carefully avoided entangling domestic alliances, though prompt at all times to take on and cast off the marital relation, without eclat or ostentation. While Simon's testimony and that of Holly James, Ticey James, Jency Folsom, and Mathew Henry is flatly contradicted by that of Rev. Willis Tobley, a full-blood Choctaw preacher, we are inclined to believe, as did the trial court, that Simon and his witnesses, among whom were his kinsmen, knew more of his domestic affairs than did brother Tobley, who, it seems, was a strong believer for his day in ceremonial marriages." In many, many cases the courts in Oklahoma in the ordinary course of events have the same situation to cope with as was presented in the Johnson v. Dunlap

case.

We respectfully submit that there is no distinction to be drawn in the functions to be performed by the Oklahoma courts in determining heirs and in distributing estates in a partition proceeding in the county court or in partitioning lands in the district court in an action at law. The first duty the court must perform is to find and decree the separate individual in erests of the heirs. It then (where the pleadings so require) directs a partition in kind, if that be possible, in accordance with their proportionate fractional interests, and if the land cannot be partitioned it is sold. All of this was certainly in the minds of the framers of the legislation clothing the Oklahoma courts with power to administer the estates of these Indians of the Five Tribes. The making of a will, the sale of full-blood inherited lands by a guardian, the sale of full-blood adults' inherited interests in the county court, the determination of heirs-all of this can be done with no notice on the Government and yet the contention is made that the Oklahoma courts acquire no jurisdiction in partition proceedings unless notice was had on the Government. There is no basis for such a distinction but on the contrary the same governmental policy was adhered to in each Act of Congress.

At the time of the enactment of the Act of April 12, 1926 (44 Stat. 239), there' existed no procedure by which to require the United States to litigate the validity of any conveyance of Indian lands. The statutes of limitation were not applicable as against the United States, with respect to such conveyances or as to any adjudications with respect thereto, to which it was not a party. To remedy these two situations, the Act of April 12, 1926 (44 Stat. 239), was passed. Section 2 of that act made the statutes of limitation of the State of Okalhoma applicable to all Indians of the Five Civilized Tribes to whom they were not theretofore applicable, and also made the statutes applicable as against the United States "to the same extent and effect and in the same manner as in the case of any other citizen of the State of Oklahoma." Section 3 of said act, in order to do away with a multiplicity of suits; that is, first a suit and judgment against the Indian, and subsequently a suit by the United States involving the same controversy, provided for the first time a method by which the United States could be forced to litigate a question involving the validity of an Indian conveyance, or be barred and foreclosed from subsequently litigating such question. But a casual reading of said Section 3 quite clearly discloses that resort to such procedure is only permissive and is, in no sense, mandatory. The procedure provided for in said section is the service of notice upon the Superintendent for the Five Civilized Tribes, but the language of said section is that the party desirous of bringing the United States into the litigation "may serve" such notice. Then, later in said section, it is provided that "in no event shall the United States be bound unless written notice is had as herein specified." Thus, the only result of not giving such notice, in a situation where it could be given, is not that the judgment rendered shall be null and void or otherwise invalid, but simply that such judgment is not res adjudicata as against the United States.

Open hearings were had before the House Indian Committee, beginning on January 26, 1925. The bill bore the title in the House of Representatives of "H. Res. 348" and a number of statements were made as to the purposes of this bill. At that time there were a number of decisions, state and federal, that left titles in uncertainty and Mr. Hastings (himself a Cherokee Indian by blood) sponsored the bill in the House. He pointed out that the Indians themselves were suffering from the unstable conditions that existed with reference to land titles. Mr. Diggs, counsel for the Gulf Oil Corporation, Mr. Veasey, counsel for The Carter Oil Company, and Mr. C. B. Ames, counsel for The Texas Company, appeared before the Committee as representatives of the oil industry. Mr. Joseph Stone of the Muskogee bar appeared for the Oklahoma Bar Association, and Mr. George F. Short appeared as attorney general for the State of Oklahoma. The court in the case at bar appatently interprets Section 3 of the act as the only federal statute that gives the courts in Oklahoma jurisdiction in partition proceedings, whereas the real purpose of Section 3 was simply to foreclose the United States from at any future time bringing a suit in behalf of the government to question the title to any particular tract of land.

No one thought, and these statements will conclusively show, that no one at these hearings ever advanced the idea that Section 3 of the act was made necessary in order to give the courts jurisdiction to partition land. It was in no wise intended as a supplement to the partition Act of 1918, but was inserted in the bill as a permissive (but not mandatory) procedure by which, on the giving of such notice, the government itself would thereafter be prohibited from ever questioning the title.

The report of the House Committee of the Sixty-ninth Congress, First Session, is Report No. 322. Reterring to Section 3, the report says:

"Section 3 provides only where the interest of a restricted Indian of the Five Civilized Tribes is being litigated in the state courts that service may be had upon the Government, and the Government is given the right to choose the forum in which the suit may be tried and may transfer such case to the United States District Court upon motion in the event that the Government chooses to do so. If said case is not transferred the decision of the court is final, and it would prevent a new suit from being instituted for and on behalf of a restricted Indian thereafter by the Government.

"The entire bill is designed to stabilize titles in Eastern Oklahoma and it is expected that it will add to the value of these lands.”

In saying, as the act does, that service may be had upon the Government, it is quite clear that the Congress did not think that the service upon the Government was necessary in order to give the state courts jurisdiction. For discussion on floor of the House, see pages 6308 and 6309 of the Congressional Record for

March 30, 1926, and on Senate page 6387. In his explanation Senator Harreld said:

"This is a measure peculiarly applicable to Oklahoma. It would put into effect the statute of limitations in regard to Indian titles in that country, and it has the unanimous indorsement of the entire Oklahoma delegation in Congress. After a painstaking investigation by the Department of the Interior, it was approved by them on the theory that it will be beneficial to the Indians by making the titles more perfect in Oklahoma. There is a unanimous report from the committee favoring the bill. A similar bill was passed by the House on yesterday, and I understand that it is on the desk of the Vice President at this time."

The only objection to the bill was that, the Secretary of the Interior, while favorable to the bill, was solicitous about protecting the rights of the Federal Government to continue to bring suits in behalf of restricted Indians as and when occasion required. The provisions of Section 3, saying in substance that any one of the parties to the suit may serve written notice upon the Superintendent" was brought forth as a saving clause to protect the Indians and preserve the right of the government to sue for a restricted Indian. In all cases in the State Supreme Court, the Federal District Court and Circuit Court of Appeals since the passage of this law, Section 3 has been uniformly interpreted to be an available procedure whereby the United States might, upon the service of this notice, be required to come in and assert any grounds it might have for questioning the title. One of the first cases to reach the Circuit Court of Appeals was Fish v. Kennamer, 37 F. (2d) 243, and in that case the court points out that it was the "evident purpose to give the United States an opportunity to intervene." The opinion goes on to say that "the statute does not expressly say that the United States is a party to the cause on its removal to the federal court." But no one ever interpreted this opinion to mean that the giving of notice under Section 3 was jurisdictional in a partition proceeding under the Act of 1918. On the contrary, it has been universally assumed by the bench and bar that the state courts had unquestioned jurisdiction to partition lands, subject, of course, to the one limitation—that unless the United States be brought in the judgment was not binding upon the United States.

A late case discussing Section 3 is the recent decision by the Circuit Court of Appeals for the Tenth Circuit in Caesar v. Burgess, 103 F. (2d) 503. In referring to this section, the Circuit Court of Appeals said:

"The plain purpose of the statute was to provide for the giving of notice to the Superintendent of the Five Civilized Tribes; for the United States becoming a party at its election; and for the judgment or decree having binding and conclusive effect on the United States. The United States thus yielded to that extent its exclusive jurisdiction of its restricted Indian wards. But in doing so it expressly reserved in clear language the right to remove any such suit to the United States Court. The statute is complete within itself and authorizes the removal of a cause coming within the ambit or its provisions even though other independent grounds of federal jurisdiction are not present."

We think it is clear that this court in United States v. Candelaria, 271 U. S. 433, 70 L. ed. 1023, recognizes that the state courts of New Mexico in the Pueblo Indian case would have had jurisdiction to render a binding judgment, except that the same would not be binding upon the United States in the absence of notice. We think the situation here is identical. The state court in Creek County had jurisdiction by virtue of the Act of 1918 to render judgment in partition even as to tax exempt land (Bord v. United States, supra). That judgment would be good as between the parties and all the world. Its only infirmity would be that the Government was not bound.

If our analysis of the ruling made in this case be correct, we have this situation: An Indian of the half-blood or more is powerless to prosecute any suit with reference to his homestead allotment except in a case in which notice has been served upon the United States under Section 3 of the Act of 1926. A judgment obtained by him in the District Court ousting a trespasser, a tenant farmer, or a cropper from the land is wholly void. In stating the position of the United States in this case the court says:

"The United States then answered, alleging that the partition proceedings were void for lack of the United States as a party and for want of service on the Superintendent under Section 3 of the Act of April 12, 1926. It prayed that the deed in partition be set aside and title quited in the heirs."

From this statement it is obvious that the sole issue on which this court sustains the Government's petition and finds the proceedings to be void is that the United States is not made a party or was not notified under the Act of 1926. We respectfully point out that this ruling leads inescapably to the conclusion that restricted Indians are in fact no longer sui juris. They are powerless to maintain actions at law with reference to their individual restricted allotments, except under the conditions above outlined. Upon the dockets of every District Court in the 46 or 48 counties constituting the old Five Tribes area there are dozens and dozens of cases where restricted Indians are suing and are being sued. If and when this judgment becomes final it will be proper for counsel representing the other litigants to file motions to quash for want of jurisdiction. The District Courts can do nothing other than sustain these motions upon the authority of the Hellard case. Let us endeavor to illustrate to the court how close to home this decision will come to every Indian who happens to be restricted as to either his homestead or his surplus allotments. For instance, Lincoln Ishcomer is a full-blood enrolled Choctaw, enrolled opposite Roll No. 10165. His homestead allotment adjoins the town of Chickasha. His agricultural rents net him from $800.00 to $1,000.00 per year. He is a minister of the gospel, speaking English and Choctaw with great fluency. He finished his literary education at Center College in Kentucky and took his theological course at Princeton. Trespassers move on to his land. A junk dealer establishes a place of business on an acre of the best farm land in the 80-acre homestead tract. A filling station, in an effort to be on a valuable site on the highway, reaches over and takes in several yards of cultivated land. Trailers park on a part of his alfalfa lands. He is a very intelligent man and employs a high-standing firm of attorneys in Chickasha to represent him in bringing suit against these trespassers in the District Court of Grady County. The filling station man takes the lead in the defense and employs another local firm, well versed in the Federal statutes, the rules and regulations on Indian matters, and they file a motion to quash on the ground that the suit cannot be maintained without making the United States a party. The state District Court will have to sustain these motions.

Take another case: A full-blood Cherokee indian by the name of Louis Adair, enrolled opposite Roll No. 592, has been a successful farmer and has accumulated a valuable herd of livestock. He runs a dairy and operates a farm on a large scale, but he has domestic troubles. We will say that he marries a white woman and a separation results. During one of his trips to market at Kansas City, Missouri, with his livestock, his wife moves her relatives into their $10,000.00 home and sets his personal belongings out on highway No. 76. He returns and finds that he has a divorce suit pending with claims for alimony and the right to occupy the home. He is powerless to maintain an action or to set up a defense going to his right of possession of this land for the reason that he cannot, under the Hillard case, maintain such a suit without making the United States a party. These situations arise daily in the ordinary affairs of these people and it would secm unthinkable that the United States is a necessary party to the prosecution of a suit by Ischomer to oust a trespasser from the 80-acre tract of land that adjoins the town of Chickasha.

The opinion in this case points out that the United States could have been brought in without its consent under the federal rules, but the attention of the court is directed to the fact that these rules were not adopted until September 1, 1938. Even if it were possible to bring the suit and make the United States a party under the rules, it must be conceded that there was no known procedure prior to these rules by which the United States could be brought into the state courts in a proceeding of this type, but we think the unmistakable answer is that in all of its dealings with these Indians the Congress never contemplated that notice would be necessary in subjecting the lands and the estates of these indians to the jurisdiction of the County Court and District Courts.

Proposition No. 6

UNDER THE DOCTRINE OF THE "RULE OF PROPERTY' THE JUDGMENT OF THE CIRCUIT

COURT OF APPEALS SHOULD BE AFFIRMED

We have been informed by Mr. George H. Jennings, counsel for respondent, by whom this case was argued in this court, that during the arguments the court indicated that permission would be granted to file in the clerk's office a copy of the findings of Judge RICE in the case of United States of America v. Meadors, in the United States Court for the Eastern District of Oklahoma, Civil Action No. 872, and, assuming that since this permission was granted, there is no impropriety

70598-45- -5