in referring to the Meadors case, we have procured a certified copy of the findings of fact and conclusions of law filed by Judge RICE in that case. We attach those findings to this brief as Appendix "A." In the Meadors case the Government has raised the same question as is raised in this case, that is, the United States was an indispensable party in a partition proceeding. An appeal was prosecuted in the Meadors case and we understand that a stipulation was entered into by which the case is to be controlled by the decision in this case. In subdivision Il of the findings, Judge KICE finds that many titles to lands in Oklahoma will be rendered invalid if the contention of the United States is sustained. In finding No. III he finds that it was the practice and opinion of the bench and bar throughout Oklahoma that partition actions could be brought under the Act of 1918 without making the United States a party thereto. In finding No. IV he finds that attorneys practicing in the eastern half of Oklahoma had uniformly passed and approved titles based upon partition proceedings under this act. In finding No. V the court finds that it was the practice and policy of the office of the Superintendent of the Five Civilized Tribes to pass and approve titles wherein a partition action had been filed involving restricted Indian lands and in which the United States was not a party. It may be said in this connection that the office of the Superintendent of the Five Civilized Tribes is the largest Indian Agency in the United States. It has an office force of hundreds of employees and has direct control over the estates of Indians involving in the aggregate many millions of dollars. It is the immediate clearing house, so to speak, for all matters involving the Five Civilized Tribes and the contacts of the Indians of those tribes with the federal government. The federal records relating to these tribes are available in that office and lawyers and business concerns apply to that office for departmental rulings and interpretations of federal statutes. If the court should sustain the Government's contention in this case, it will nullify many titles involving funds of restricted Indians invested in lands coming clearly within the scope of this decision. These investments were approved by the departmental officials upon the general belief, shared by the bar practically as a whole, that the state courts had jurisdiction to partition lands without making the United States a party defendant to those proceedings. Salmon v. Johnson, 189 P. 537, was decided by the Supreme Court of Oklahoma more than 20 years ago. State ex rel. Miller v. Huser, 184 P. 133, was decided by the Supreme Court of Oklahoma more than 25 years ago. Stewart v. Keyes, 295 U. S. 403, 79 L. ed. 1507, was decided by this court in 1935. United States v. Bond, 108 F. (2d) 504, was decided on December 26, 1939, and while the question here under consideration was not raised in that case, the case involved full-blood Indians and tax-exempt lands and the opinion of the Circuit Court of Appeals sustained the statute as being in all respects sufficient to authorize a partition of the lands between these Indians. Irrespective of these decisions, the findings by Judge RICE in the Meadors case show that the lawyers generally throughout the eastern half of Oklahoma had proceeded upon the assumption that the courts had jurisdiction to partition lands without making the United States a party. We think the "Rule of Property" doctrine clearly applies. In Dunn v. Micco, 106 F. (2d) 356, Judge PHILLIPS of the Circuit Court of Appeals said: "The decisions of the Supreme Court of Oklahoma and of the inferior federal courts in the Tiger case have established a rule of property. Important property rights have been purchased, held, and disposed of on the faith of that rule." In Johnson v. United States, 64 F. (2d) 674, the court said: "Rules of property ought to be adhered to. if titles are now to be unsettled, it ought to be accomplished by an authoritative decision of the Supreme Court of the United States which will determine the question, once and for all, and for the courts of both the state and the nation." See, also, Weston v. Poland, 47 F. (2d) 738, and the authorities there cited; United States v. Title Insurance Company, 265 U. S. 472, 68 L. ed. 1110, and Minnesota v. National Mining Company, 3 Wall. 332, 18 L. ed. 42. A recent expression by this court on the point here under consideration is found in the case of Estella Wadsworth Cate et al. v. Eliza Wadsworth Beasley et al., 299 U. S. 30, 81 L. ed. 21. This court quoted with approval the following language of the Supreme Court of Oklahoma, to wit: "For 25 years it has been the settled rule of law in this state, in reliance upon which the stability and dependability of titles has depended, that the allotted land of a Seminole Indian, who died (1) after selecting his allotment and (2) before statehood, descended to his heirs, in accordance with the Arkansas laws of descent and distribution, without regard to the above limitation to tribal citizens. * * * "In view of the long-established rule ih Oklahoma as to the descent of the allotted land of a Seminole indian who died after selecting his allotment and before statehood, the judgment is affirmed." We deem it unnecessary to cite further authorities in support of this proposition for it seems obvious that not only the State of Oklahoma's School Land Fund, coming as a grant from the federal government, but the titles to many tracts of land will be seriously impaired by a reversal of the decision of the Tenth Circuit Court of Appeals in this case. In conclusion we respectfully submit: (a) That the United States was not an indispensable party in the partition proceedings; (5) Even though it be admitted that the Government is an indispensable party (which is not admitted but denied) failure to serve notice upon the United States did not render the judgment void. It only left it subject to be set aside in an action by the United States. To what extent the Government could successfully attack the title is a question which presents some considerable difficulty. Obviously in the present case where the Government concedes that the partition proceedings were in all respects regular and makes no claim that fraud was perpetrated, it is difficult to visualize any ground on which the judgment could be set aside. (c) That the ruling of the court in this case will render worthless titles to land on which the School Land Department of the State of Oklahoma has loaned better than $500,000.00; (d) That the ruling in this case will cast a cloud upon thousands and thousands of guardianship sales of interests of full-blood minors for the reason that title examiners will be unwilling in the future to assume the risk of approving titles to guardianship sales of land on the theory that if the partition laws are not in all respects applicable (in that notice to the Government is necessary) the guardianship sales statutes are likewise inapplicable and incomplete. Literally thousands of guardianship sales have been made in Oklahoma since the Act of 1908, without the United States being made a party, to say nothing of thousands of full-blood deed approvals in the County Courts of eastern Oklahoma; (e) That the long established practice of conducting partition sales without notice to the federal government, shared in and sanctioned by officials of the Government itself, establishes a rule of property that should not be overturned even though the practice fails to conform to what might be a correct interpretation of the law. For the foregoing reasons we feel that the judgment of the Circuit Court oi Appeals was correct and should be affirmed. Respectfully submitted RANDALL S. COBB, Attorney General of Oklahoma First Asst. Attorney General Attorneys for the State of Oklahoma on Relation of the Commissioners of the Land Office, Amicus Curiae. WALTER MARLIN, Of counsel, State Capitol Building, Oklahoma City, Oklahoma. APPENDIX A United United States District Court for the Eastern District of Oklahoma. Now on this 24th day of February, 1943, there came on for trial in open court, pursuant to a regular assignment, the above styled case; the United States of America, plaintiff herein, appeared by William H. Landram, Assistant United States Attorney for the Eastern District of Oklahoma, and the defendant appeared by Forrester Brewster, Attorney at Law, Muskogee, Oklahoma; whereupon the defendant presented testimony of three witnesses to the court, which was objected to by the plaintiff herein; after hearing the testimony of witnesses and considering the stipulation and agreement as to the facts herein, and being fully advised in the premises, the court files herein findings of fact and conclusions of law. FINDINGS OF FACT I The findings of fact of the court are as stipulated by and between the plaintiff and the defendant, as shown by stipulation and agreement filed in this case on November 18, 1942. II The court finds from testimony of witnesses and proof offered on this date, which was objected to by the plaintiff, that if the contention of the United States is upheld in this action many titles to land in the State of Oklahoma, and more particularly that part that was originally Indian Territory, will be invalid. III The court finds that it was the practice and opinion of the bench and bar throughout the eastern half of Oklahoma, comprising generally the Indian Territory, that partition actions could be brought pursuant to the Act of June 14, 1918, without making the United States of America a party thereto; that subsequent to said act many partition actions were filed in the state courts of Oklahoma and the United States of America was not named a party to said actions. IV The court further finds from the testimony introduced that attorneys practicing in the eastern half of Oklahoma uniformly passed and approved titles based upon partition proceedings had under said Act of Congress in 1918 wherein the United States was not a party thereto. V The court further finds from the testimony introduced that it was the policy and practice of the Office of the Superintendent for the Five Civilized Tribes to pass and approve titles wherein a partition action had been filed involving restricted Indian land and in which the United States was not made a party thereto. VI The court further finds from the testimony introduced that large sums of money belonging to restricted Indians and held in trust by the Secretary of the Interior had been expended by authority of the Secretary of the Interior for the purchase of land at partition sales under said act for the use and benefit of restricted Indians. CONCLUSIONS OF LAW I The court concludes that it has jurisdiction of the parties and subject-matter herein. II That the title to the hereinafter described land is vested, quieted, and confirmed in the defendant, Ray Meadors; that the said defendant, Ray Meadors, is the owner of the hereinafter described land and is vested with the fee simple title thereto. III That the United States of America was not an indispensable party in the partition suit entitled Amos Deer v. Butler Deer, et al., No. 10623, in the District Court of Hughes County, Oklahoma. IV The court further finds that the fee simple title to said hereinafter described land was vested in fee simple in Ray Meadors by virtue of Sheriff's Deed issued in partition proceedings No. 10623 in the District Court of Hughes County, Oklahoma. V That the Act of June 14, 1918 (40 Stat. 606), subjected lands of full-blood members of the Five Civilized Tribes to the laws of the State of Oklahoma providing for the partition of real estate. VI That the United States is not an indispensable party to any action instituted under the aforesaid act. VII Judgment is hereby entered in favor of the defendant, Ray Meadors. Said land is described as follows: VIII Southwest Quarter of Section 4, Township 8 North, Range 9 East, in Mr. WHITE. Didn't you express the opinion that the effect of this decision of the Supreme Court was to decree that title never passed from the heirs? Mr. FLANERY. Yes, sir. Mr. WHITE. That is what you said was your contention. That is the essence of the decision, that the title had never passed through these proceedings due to a defect. Mr. SCHWABE. The Court did not have jurisdiction due to the fact that the Government was not a party to the suit. Mr. FLANERY. I may be wrong, but if it is so, I do not think it matters whether the final judgment has been entered or not. Mr. WHITE. Then Mr. Schwabe takes the position that we are in effect repealing it as to these cases. Is that your contention? Mr. SCHWABE. Simply to make valid, or to validate these cases where there was a technical omission. Mr. WHITE. In effect you are repealing an act. Mr. SCHWABE. In a way; you might put it that way. Mr. FERNANDEZ. No; I do not think that is the effect of it. You are not repealing any act of Congress. You are merely waiving a formality or a technicality in that law under which the Government was required to be made a party, and it applies only to these cases in the past. Mr. FLANERY. What you should do, I think, you might say that no suit shall be brought. Mr. STIGLER. No; that will not give the desired relief. Mr. FLANERY. I would say there is a defect in that. Mr. SEMPLE. If you will permit me, I would state this in answer to Mr. Flanery: From now on every lawyer knows what the law is. If we had a suit tomorrow, we would bring the Government in. It is the past that we are concerned with; and, of course, we are not concerned with these three or four cases. We cannot change the facts in the Hellard case. We cannot change the facts in the Williams and the other cases. You cannot cure those, but you can through this legislation validate the thousands of other titles involved; and if you will permit me to say so, Mr. Flanery, your office has not completed its investigations of this matter and I am quite sure, Mr. Flanery, you will find you are far wrong on the number of cases involved, as Judge Rice found in the Meadors case, and we filed the transcript in that case. Mr. FLANERY. The number of cases in the position of the Hellard case? Mr. SEMPLE. Here is what I am trying to say to the committee, Mr. Flanery: I gather from your statement to the committee that you are seeking to give the impression there are only a half a dozen tracts of land which are not within the purview of the Hellard decision. I say you are far wrong. There are hundreds of them. Mr. FERNANDEZ. I think I get the point that he would like to make and I would like to develop it, Mr. Chairman. Mr. STIGLER. Yes. Mr. FERNANDEZ. Your contention is that there are few cases which will meet the statute because the Department was served with notice in some 400 cases. Mr. FLANERY. Yes, sir. Mr. FERNANDEZ. And that notice required the Department to come in court and if they did not do so, it was bound just the same. Mr. SCHWABE. They complied with the notice but still they were not made party defendants. Isn't that correct? Mr. STIGLER. No. Mr. FERNANDEZ. In some instances the Government came in and in some instances it did not come in. Mr. SCHWABE. Whether the Government came in, it was bound. Mr. FERNANDEZ. If I can develop this I may make the point. In some instances the Government got the notice and did not appear, and so it does not show on the record, does it? Mr. FLANERY. It is on the record. Mr. FERNANDEZ. In the district court? Mr. STIGLER. That is right. Mr. FERNANDEZ. Even though the Government did not appear? Mr. STIGLER. That is right. Mr. FERNANDEZ. In all those 400 cases? Mr. FLANERY. Yes, sir. Mr. FERNANDEZ. And you say there are only a few cases in which no notice was given? Mr. FLANERY. After 1926; that is my guess-we have no means of knowing. Mr. FERNANDEZ. The Department does agree, does it not, that something must be done about these people who are burdened with a large number of suits in which they will have to set forth the facts and show adverse possession? Mr. FLANERY. As to cases before 1926; between 1918 and 1926. Mr. FERNANDEZ. They would have to go and file suit. Mr. FLANERY. My suggestion was that title would have been cured by the statutes of limitations in many cases. Mr. FERNANDEZ. And the Government does not contend that was not complied with, or that there was anything wrong, except that nobody thought they had to comply with that requirement of the law which nobody at that time apparently understood. Mr. FLANERY. Do you mean where notice was given? Mr. FERNANDEZ. Where notice was not given. Mr. FLANERY. We do not know, of course, whether there is anything wrong; whether there was any fraud or not shown. Mr. WHITE. Is it your contention that they might rely on the statute of limitations for relief? Mr. STIGLER. Yes, sir. |