299. 899. legations of the bill may be summarized as | were acquired long subsequent to the right follows: of your orator, hereinbefore set forth; and further, were acquired with notice and knowledge of the lease to your orator so executed, filed, and approved as aforesaid; and also of facts and circumstances sufficient to put them and each of them upon inquiry with reference thereto. "Your orator further states that the said defendant Kiefer Oil & Gas Company, com The complainant, Shulthis, is a citizen of Kansas. One of the defendants, the Kiefer Oil & Gas Company, is a corporation organized in the Indian territory under the Arkansas statutes which were put in force therein by an act of Congress, and since the admission of Oklahoma as a state "has been and now is a citizen and resident of said state" and of the eastern district there-bining and confederating with the other deof. The other defendants are citizens of that state, resident in that district. The intervener, George Franklin Berryhill, is a member by blood of the Creek Nation, duly enrolled as such, and his wife is not a member. fendants named herein, have disregarded and still disregard the rights of your orator, and in violation thereof, and without right, unlawfully and wilfully, on or about the 1st day of April, 1907, entered upon the said above-described lands, and have stationed thereon divers agents, servants, and employees, whose names are to your orator unknown, and with force and arms exclude and have excluded your orator and his agents, servants, and employees therefrom; and further, that said defendants have bored and drilled oil and gas wells on said premises, and have and still are allowing large quantities of oil and natural gas to escape therefrom and be wasted. That by reason thereof your orator has been damaged in the sum of $25,000. And further, said defendants threaten to, and will, unless restrained by this court, drill other and further wells on said land for oil and natural gas, and have and are threatening to, and will, unless restrained, by means of such wells, extract said oil and gas deposits from said land, and convert the same to their own use and benefit against the mani A son, named Andrew J. Berryhill, was born to the intervener and his wife in May, 1901, and died in November following, leaving no brother or sister surviving. In October, 1902, the deceased son's name was placed on the roll of the Creek Nation by the Commission to the Five Civilized Tribes, and thereafter an allotment, including the tract in controversy, was made to his "heirs" from the lands of the Nation, and a deed or patent was issued to such heirs with the approval of the Secretary of the Interior. Subsequently, and in March, 1906, George Franklin Berryhill and his wife, claiming to be the sole heirs of Andrew J., and the owners in fee of this tract, executed to the complainant a lease thereof, granting to him the right to explore for and extract oil and gas from the land for the term of fifteen years. The lease was made conformably to regulations pre-fest right of your orator." scribed by the Secretary of the Interior, was filed with the United States Indian agent at Muskogee, in the Indian territory, March 21, 1906, and was approved by the Secretary of the Interior April 19, 1907. The complainant complied with the regulations, duly paid the advance royalty provided for in the lease, and claims the sole and exclusive right to prospect for and extract the deposits of oil and gas existing in and under the land, which are said to be extensive and to have a value many times in excess of $2,000. Respecting the claims and acts of the defendants the bill alleges: "Your orator further shows that the defendants and each of them claim and assert some right, title, and interests in and to said lands, and particularly to the said oil and natural gas deposits, adverse to your orator, but the nature of said claims of said defendants is to your orator unknown; but your orator states that they have no such right, title, or interest in the said deposits of oil and natural gas or any part thereof; that whatever claimed rights the said defendants or any of them have therein 32 S. C. 45. The prayer of the bill is that the defendants be decreed to have no interest or estate in the deposits of oil and gas, save as any defendant may have an interest in the land and be thereby entitled to the royalties secured by the lease; that the cloud cast upon the complainant's title and rights under the lease by the claims of the defendants be removed and his title and rights thereunder be quieted, and that a receiver be appointed to take possession and proceed with the extraction and disposal of the oil and gas for the benefit of whomsoever may prove to be entitled to it. After the filing of the bill, a receiver was appointed, who took possession and proceeded as suggested. Thereafter George Franklin Berryhill, who had not been made a party to the bill, was permitted to file in the suit a petition in intervention, wherein he asserted full title in himself to the land, subject only to the lease to the complainant, specifically set forth the claims of the defendants, assailed those claims as invalid and clouds upon his title, and sought a decree establishing the latter as against the former. Answers and replica 699 tions were filed, proofs were taken, and on, S. 313, 333, 50 L. ed. 1046, 1053, 26 Sup. the final hearing a decree was entered for Ct. Rep. 652. the defendants. 162 Fed. 331. The complainant and the intervener separately appealed to the circuit court of appeals, where the decree was affirmed (95 C. C. A. 615, 170 Fed. 529), and then the case was brought here. 2. It is not enough that grounds of jurisdiction other than diverse citizenship may be inferred argumentatively from the statements in the bill, for jurisdiction cannot rest on any ground that is not affirmatively and distinctly set forth. Hanford v. Davies, Our jurisdiction is challenged by a mo- 163 U. S. 273, 279, 41 L. ed. 157, 159, 16 tion to dismiss the appeal. Section 6 of Sup. Ct. Rep. 1051; Mountain View Min. the act of March 3, 1891 (26 Stat. at L. & Mill. Co. v. McFadden, 180 U. S. 533, 45 828, chap. 517, U. S. Comp. Stat. 1901, p. L. ed. 656, 21 Sup. Ct. Rep. 488; Bankers' 550), declares that "the judgments or de- Mut. Casualty Co. v. Minneapolis, St. P. & crees of the circuit court of appeals shall S. Ste. M. R. Co. 192 U. S. 371, 383, 385, be final in all cases in which the jurisdic- 48 L. ed. 484, 489, 490, 24 Sup. Ct. Rep. tion is dependent entirely upon the opposite | 325. parties to the suit or controversy being 3. A suit to enforce a right which takes citizens of different states," and its origin in the laws of the United States this refers to the jurisdiction of the Federal is not necessarily, or for that reason alone, court of first instance. Thus, it becomes one arising under those laws, for a suit necessary to consider whether the jurisdic- does not so arise unless it really and subtion of the circuit court depended entirely stantially involves a dispute or controversy upon diversity of citizenship. If it did, respecting the validity, construction, or efthe appeals must be dismissed. fect of such a law, upon the determination of which the result depends. This is especially so of a suit involving rights to land acquired under a law of the United States. If it were not, every suit to establish title to land in the central and western states would so arise, as all titles in those states are traceable back to those laws. Little York Gold-Washing & Water Co. v. Keyes, 96 U. S. 199, 24 L. ed. 656; Colorado Cent. Consol. Min. Co. v. Turck, 150 U. S. 138, 37 L. ed. 1030, 14 Sup. Ct. Rep. 35; Blackburn v. Portland Gold Min. Co. 175 U. S. 571, 44 L. ed. 276, 20 Sup. Ct. Rep. 222, 21 Mor. Min. Rep. 358; Florida C. & P. R. Co. v. Bell, 176 U. S. 321, 44 L. ed. 486, 20 Sup. Ct. Rep. 399; Shoshone Min. Co. v. Rutter 177 U. S. 505, 44 L. ed. 864, 20 Sup. Ct. Rep. 726; De Lamar's Nevada Gold Min. Co. v. Nesbitt, 177 U. S. 523, 44 L. ed. 872, 20 Sup. Ct. Rep. 715. The question is not affected by the petition in intervention, for it was entertained and disposed of in virtue of the jurisdiction already invoked; and if the decree is final in respect of the original suit, it is equally so in respect of the intervention. Rouse v. Letcher, 156 U. S. 47, 39 L. ed. 341, 15 Sup. Ct. Rep. 266; Gregory v. Van Ee, 160 U. S. 643, 40 L. ed. 566, 16 Sup. Ct. Rep. 431; Pope v. Louisville, N. A. & C. R. Co. | 173 U. S. 573, 43 L. ed. 814, 19 Sup. Ct. Rep. 500; St. Louis, K. C. & C. R. Co. v. Wabash R. Co. 217 U. S. 247, 250, 54 L. ed. 752, 754, 30 Sup. Ct. Rep. 510. *In opposing the motion, the appellants contend that the case arose under certain laws of the United States, presently to be mentioned, and therefore was not one in which the jurisdiction depended entirely on diversity of citizenship. The consideration of the contention will be simplified if, before taking up the specific grounds on which it is advanced, the rules by which it must be tested are stated. They are: or on 1. Whether the jurisdiction depended on diverse citizenship alone, other grounds as well, must be determined from the complainant's statement of his own cause of action, as set forth in the bill, regardless of questions that may have been brought into the suit by the answers or in the course of the subsequent proceedings. Colorado Cent. Consol. Min. Co. v. Turck, 150 U. S. 138, 37 L. ed. 1030, 14 Sup. Ct. Rep. 35; Tennessee v. Union & Planters' Bank, 152 U. S. 454, 38 L. ed. 511, 14 Sup. Ct. Rep. 654; Spencer v. Duplan Silk Co. 191 U. S. 526, 48 L. ed. 287, 24 Sup. Ct. Rep. 174; Devine v. Los Angeles, 202 U. To sustain the contention that the suit was one arising under the laws of the United States, counsel for the appellants point out the statutes (Acts March 1, 1901, 31 Stat. at. L. 861, chap. 676; June 30, 1902, 32 Stat. at L. 500, chap. 1323; April 26, 1906, 34 Stat. at L. 137, chap. 1876, § 22) relating to the allotment in severalty of the lands of the Creek Nation, the leasing and alienation thereof after allotment, the making of allotments to the heirs of deceased children, and the rights of the heirs, collectively and severally, under such allotments; but the bill makes no mention of those statutes or of any controversy repecting their validity, construction, or effect. Neither does it by necessary implication point to such a controversy. True, it contains enough to indicate that those statutes constitute the source of the complainant's 570 571 the time under the territorial laws, and it was there said: "The admission of Kansas as a state into the Union, and the consequent change of its form of government, in no respect affected the essential character of the corporations or their powers or rights. They must, after that change, be considered as corporations of the state, as much so as if they had derived their existence from its legislation. As its corporations they are to be treated, so far as may be necessary to enforce contracts or rights of property by or against them, as citizens within the clause of the Constitution declaring the extent of the judicial power of the United States." title or right, and also shows that the de- In Kansas P. R. Co. v. Atchison T. & S. fendants are in some way claiming the F. R. Co. 112 U. S. 414, 28 L. ed. 794, 5 Sup. land, and particularly the oil and gas, ad- Ct. Rep. 208, this court had occasion to con. versely to him; but beyond this the nature sider the effect of the admission of a terriof the controversy is left unstated and un-tory as a state on corporations existing at certain. Of course, it could have arisen in different ways, wholly independent of the source from which his title or right was derived. So, looking only to the bill, as we have seen that we must, it cannot be held that the case as therein stated was one arising under the statutes mentioned. As was said in Blackburn v. Portland Gold Min. Co. 175 U. S. 571, 44 L. ed. 276, 20 Sup. Ct. Rep. 222, 21 Mor. Min. Rep. 358, a controversy in respect of lands has never been regarded as presenting a Federal question merely because one of the parties to it has derived his title under an act of Congress. It next is insisted that the bill shows that the Kiefer Oil & Gas Company, one of the defendants, is a Federal corporation, and therefore that under the decisions of this court in Osborn v. Bank of United States, 9 Wheat. 738, 6 L. ed. 204; Pacific R. Removal Cases, 115 U. S. 1, 29 L. ed. 319, 5 Sup. Ct. Rep. 1113, and Re Dunn, 212 U. S. | 374, 53 L. ed. 558, 29 Sup. Ct. Rep. 299, the case was one arising under the laws of the United States. The bill states that this company was incorporated in the Indian territory under the Arkansas statutes, which were put in force therein by an act of Congress, and then adds that since the admission of Oklahoma as a state, the company "has been and now is a citizen and resident of said state." Evidently, the pleader did not anticipate the present insistence, but proceeded on the theory that the company became an Oklahoma corporation when that state was admitted into the Union. Adhering to the principle of that ruling, we hold that the corporate defendant here is an Oklahoma, and not a Federal, corporation, and therefore must be regarded as a citizen of that state for jurisdictional purposes. It follows from what has been said that the case is one in which the jurisdiction of the Circuit Court depended entirely on diverse citizenship, and so the decrees of the Circuit Court of Appeals are final. Appeals dismissed. (225 U. 8. 572.) EASTERN CHEROKEES, Appts., V. UNITED STATES. APPEAL AND ERROR (§ 1195*)-JUDGMENT The right of the attorneys for the Cherokee Nation to counsel fees payable out of the moneys recovered for the benefit of the Eastern Cherokees in a suit over a claim against the United States, arising out of treaty stipulations, cannot be challenged court of claims, where the decree of that by a supplemental petition filed in the court, as affirmed on appeal by the Supreme Court, has determined every question bearing upon the right of such attorneys to have their fees paid out of the award, save the single question of the amount of such fees. The corporation laws of Arkansas were put in force in the Indian territory by the act of February 18, 1901 (31 Stat. at L. 794, chap. 379), which was but one of a series of acts of that character. Congress was then contemplating the early inclusion of that territory in a new state, and the purpose of those acts was to provide, for the time being, a body of laws adapted to the needs of the locality and its people in respect of matters of local or domestic concern. There being no local legislature, Congress alone could act. Plainly, its action was intended to be merely provisional, and not to encroach upon the powers which rightfully would belong to the prospective state. The situation, therefore, is practically the same as it would be had the corporation laws of Arkansas been adopted and Argued April 30 and May 1, 1912. Decided put in force by a local or territorial legislature. United States v. Pridgeon, 153 U. S. 48, 52-54, 38 L. ed. 631, 633, 634, 14 Sup. Ct. Rep. 746. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4661-4665; Dec. Dig. § 1195.*] [No. 234.] A June 7, 1912. PPEAL from the Court of Claims to review a decree which dismissed a sup For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 249. plemental petition in a suit over a claim against the United States, on the ground that the matter presented was foreclosed by a prior decree of that court, which had been affirmed in the Supreme Court of the United States. Affirmed. | different claimants, to whom the judgment so rendered equitably belongs, either wholly or in part." The acts also provided that the Cherokee Nation should be represented by attorneys to be employed and compensated in the manner prescribed in Rev. Stat. §§ 2103-2106, and that the Eastern Cherokees should be represented by attorneys em See same case below, 45 Ct. Cl. 104. The facts are stated in the opinion. Messrs. Charles Poe and Samuel A. ployed by them, whose compensation should Putman for appellants. be fixed by the court of claims upon the Assistant Attorney General Thompson termination of the suit. for appellee. *Mr. Justice Van Devanter delivered the opinion of the court: The controversy here to be considered arises in this way: In recent years there was litigated in the court of claims and this court a claim against the United States, arising under treaties with the Cherokee Indians, and consisting of four items, one of which, designated as item 2, was for $1,111,284.70, with interest at 5 per cent from June 12, 1838, to the date of payment. The litigation was conducted under § 68 of the act of July 1, 1902 (32 Stat. at L. 716, 726, chap. 1375), as construed and amplified by the act of March 3, 1903 (32 Stat. at L. 982, 996, chap. 994), and the parties were the Cherokee Nation, the Eastern Cherokees, and the United States. Most of the Eastern Cherokees were members of the Cherokee Nation, but some were not, as was the case with those who remained in North Carolina and other adjacent states; and most of the members of the Nation were Eastern Cherokees, but some were not, as was the case with those who were known as Old Settlers. The principal questions in controversy in the litigation, so far as they are now material, were (a) whether there could be a recovery against the United States on item 2; (b) whether the recovery should be in the name of the Cherokee Nation or in that of the Eastern Cherokees; and (c) whether, if the recovery were in the name of the Cherokee Nation, it should be for the benefit of the members of the Nation, whether Eastern Cherokees or otherwise, or for the benefit of the Eastern Cherokees, whether members of the Nation or otherwise. These questions were all stoutly contested in both courts. As to the first, the Cherokee Nation and Eastern Cherokees made common cause against the United States, and as to the other two, they advanced opposing contentions. The jurisdictional acts, before mentioned, required that "both the Cherokee Nation and said Eastern Cherokees" be made parties to the suit, and provided that if the claim were sustained the judgment should be "in favor of the rightful claimant," and should determine, "as between the The litigation was started by the Cherokee Nation, which, on January 16, 1903, had entered into a contract, conformably to Rev. Stat. §§ 2103-2106, with the late Gustavus A. Finkelnburg and others, whereby the latter were to represent the Nation as its attorneys in the prosecution of the claim, and were to receive, as compensation for their services, 5 per cent of the first $1,000,000, or part thereof, collected, and 24 per cent of the amount collected over and above the first $1,000,000, such compensation to be, by the proper officers of the United States, deducted from the amount recovered, and paid directly to such attorneys. The court of claims held, and its decree was to the effect, that there should be recovery against the United States on all the items of the claim; that the recovery on all should be in the name of the Cherokee Nation; and that the recovery on items 1, 3, and 4 should be for the benefit of the Nation, and on item 2 for the benefit of the Eastern Cherokees, whether members of the Nation or otherwise; that the proceeds of items 1, 3, and 4 should be paid or credited to the Nation, less the percentage thereof contracted by the Nation to be paid as councel fees, and that the proceeds of item 2, "less such counsel fees as may be chargeable against the same under the provisions of the contract with the Cherokee Nation of January 16, 1903, and such other counsel fees and expenses as may be hereafter allowed by this court under the provisions of the act of March 3, 1903," should be paid to the Secretary of the Interior, to be by him distributed directly to the Eastern Cherokees, inclusive of a class spoken of as Western Cherokees. The concluding portion of the decree declared: "So much of any of the above-mentioned items or amounts as the Cherokee Nation shall have contracted to pay as counsel fees under and in accordance with the provisions of §§ 2103 and 2106, both inclusive, of the Revised Statutes of the United States, and so much of the amount shown in item numbered two (2) as this court hereafter, by appropriate order or decree, shall allow for counsel fees and expenses under the provisions of the act of March 3, 1903, above referred to *575 *577 *576 shall be paid by the Secretary of the Treasury to the persons entitled to receive the same upon the making of an appropriation by Congress to pay this judgment. The allowance of fees and expenses by this court under said act of March 3, 1903, is reserved until the coming in of the mandate of the Supreme Court of the United States." 40 Ct. Cl. 252, 365. Cherokees, but for the benefit of its mem. bers, whether Eastern Cherokees or other wise, the court concluded the consideration of that insistence by saying: "Nevertheless, taking the entire record together, the various treaties and acts of Congress, and of the Cherokee Councils, and the language of the jurisdictional acts of 1902 and 1903, we leave the decree as it is in respect to counsel fees and costs." On receipt of the mandate the court of claims modified its original decree so as to conform to the direction in respect to the persons who should participate in the per capita distribution, and, in pursuance of the reservation made before, entered a supplemental decree fixing the compensation of the attorneys for the Eastern From that decree the parties severally appealed to this court, the United States complaining of the recovery against it on item 2, the Cherokee Nation claiming that the recovery on that item ought not to have been declared to be for the benefit of the Eastern Cherokees, and the latter insisting (a) that the recovery on that item should have been in their name, and not in that of the Nation, (b) that the Western Cherokees, Cherokees at 15 per cent of the amount so-called, ought not to have been included| among those who were to participate in the per capita distribution, and (c) that "the court erred in charging the said fund of $1,111,284.70 and interest, to be realized from its said judgment or decree, with the fees of the attorneys for the Cherokee Nation." This court overruled all objections to the decree, save the one relating to the inclusion of the Western Cherokees, and, after directing that the provision for the per capita distribution be so modified as to confine it to the Eastern Cherokees, whether east or west of the Mississippi, exclusive of the Old Settlers, affirmed the decree, with that modification. 202 U. S. 101, 50 L. ed. 949, 26 Sup. Ct. Rep. 588. In passing upon the question whether the recovery on item 2 was in the name of the rightful claimant, this court said: "The Cherokee Nation, as such, had no interest in the claim, but officially represented the Eastern Cherokees." And again: "We concur with the court of claims in the wisdom of rendering judgment in favor of the Cherokee Nation, subject to the limitation that the amount thereof should be paid to the Secretary of the Interior, to be distributed directly to the parties entitled to it." In disposing of the insistence that the proceeds arising from that item ought not to have been charged with any fee for the attorneys for the Cherokee Nation, this court said: "In view of the language of the jurisdictional acts of 1902 and 1903 in respect of the Cherokee Nation, we are not disposed to interfere with the court of claims in the allowance of fees and costs." And then, after noticing the arguments advanced by counsel for the Eastern Cherokees in support of a contrary conclusion, which were based upon the fact, among others, that the Nation had asserted a right to collect that item, not for the benefit of the Eastern of item 2, including interest. Thereafter, Congress made an appropriation to pay the original decree as modified (24 Stat. at L. 634, 664, chap. 3912), and the accounting officers of the Treasury computed the interest due on each item, thereby ascertaining that item 2 amounted to almost $5,000,000. Finkelnburg and his associates, the attorneys for the Cherokee Nation, then presented to the Acting Commissioner of Indian Affairs a sworn statement of their services under the contract of January 16, 1903, conformably to the requirements of Rev. Stat. § 2104, upon which statement that officer and the Acting Secretary of the Interior determined and certified that such attorneys had fully complied with the contract, and were entitled to the compensation therein provided, including the stipulated percentage of the amount recovered on item 2; and, upon the presentation of that certificate, the officers of the Treasury Department paid to such attorneys, out of the moneys applicable to the several items, the percentage named in the contract, and deducted the same from the proceeds of the several items, the amount so deducted from item 2 being $147.527.01. The certification and payment, in so far as they affected that item, were made over the objection and protest of the Eastern Cherokees, who insisted at the time that no fees or compensation for the attorneys for the Cherokee Nation lawfully could be paid out of, or charged against, the moneys arising therefrom. Shortly thereafter the Eastern Cherokees filed in the court of claims, in the original cause, a supplemental petition wherein they challenged (a) the right of the attorneys for the Cherokee Nation to receive any fees or compensation out of the moneys recovered on item, 2, and (b) the authority of the officers of the Treasury Department to make any payment or deduction therefrom *578 |