Rehearing Denied March 16 1951.: February 14, 1951.
Before HUXMAN, MURRAH and PICKETT, Circuit Judges.
This is an appeal from a judgment of the District Court of the Eastern District of Oklahoma, sustaining the challenged validity of certain deeds of conveyance of inherited Indian land by the Indian heirs of a full-blood Choctaw Indian.
The full-blood heirs seek to invalidate and set aside their conveyances of their respective interests in the inherited land on the grounds, inter alia, that they were not executed in compliance with Section 8 of the Act of January 27, 1933, 47 Stat. 777, which provides in material part that "no conveyance of any interest in land of any full-blood Indian heir shall be valid unless approved in open court after notice in accordance with the rules of procedure in probate matters adopted by the Supreme Court of Oklahoma in June of 1914 * * *." The half-blood heirs seek to avoid their conveyances to their respective interests in the inherited land on the ground, inter alia, that the deeds were not approved by the Secretary of the Interior in accordance with Section 1 of the 1933 Act, supra, which provides in material part that "where the entire interest in any tract of restricted and tax-exempt land belonging to members of the Five Civilized Tribes is acquired by inheritance * * * by * * * restricted Indians, such lands shall remain restricted and tax-exempt during the life of and as long as held by such restricted Indians * * * unless the restrictions are removed in the meantime in the manner provided by law."
The trial court sustained its jurisdiction over the suit as one arising out of the laws of the United States and involving the requisite amount in controversy.
While the object of the suit is to cancel or nullify deeds of conveyance, it has its genesis in the Act of Congress relating to the alienability of Indian lands. The right asserted is a federally created right, and a federal statute is invoked as a basis for the relief sought. The court therefore had jurisdiction over the subject matter and the parties. See Board of County Commissioners of Creek County v. Seber, 10 Cir., 130 F.2d 663, affirmed 318 U.S. 705, 63 S. Ct. 920, 87 L. Ed. 1094; Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S. Ct. 876, 94 L. Ed. 1194.
A chronological statement of the facts is essential to a proper understanding of the questions involved. Sealy James Murphy, a full-blood Choctaw Indian, died intestate on January 28, 1940, seized of 100 acres of allotted and restricted land located in Garvin County, Oklahoma. She left surviving, W. O. Murphy, a non-Indian husband, Selina Brown, Amanda Smith, Emily Anderson and Will Paul James, all full-blood Choctaw Indian children of a previous marriage, and two grandchildren, Cecil James and Leila Mae Andrews, half-blood children of her deceased full-blood Indian son by the same previous marriage. The husband and each of the four living children inherited an undivided one-sixth interest, and each of the grandchildren an undivided one-twelfth interest in the land.
The trial court found from conflicting evidence that Amanda Smith, her non-Indian husband Harry Smith, and Selina Brown, made arrangements with J. H. Stufflebean, a funeral director at Pauls Valley, Oklahoma, to conduct the funeral for the sum of $328.00, in payment of which the Smiths and Browns agreed to convey to him title to all the inherited land.
On December 7, 1940, the surviving non-Indian husband executed a warranty deed conveying his undivided interest in the land to Harry Smith, husband of Amanda Smith, and on March 20, 1941, Smith, joined by his wife, gave Stufflebean a warranty deed covering this interest, at which time Stufflebean paid Smith the sum of $115.00 to reimburse him for what he stated he had paid Murphy for the conveyance. The parties agreed in the trial court that Stufflebean became the owner of this undivided one-sixth interest. Murphy is not a party to the suit, and this interest is not involved.
In the early part of 1943, the other Indian heirs not having conveyed the land in pursuance of the agreement, Stufflebean employed Haskell Paul, an attorney, for the admitted purpose of acquiring or perfecting title to the entire allotment of Sealy James Murphy. Paul filed a creditor's petition on behalf of Stufflebean for the probate of the Estate, setting up his claim for the burial expenses. According to the findings of the court, this was done on the theory that Stufflebean could acquire good title through the administrator's sale. Notice was given to the United States probate attorney of the hearing on May 4, 1943. After Mr. Cook, United States Probate Attorney, convinced Paul that the probate proceedings would not be recognized by the Department of the Interior, the proceedings were abandoned, but on the same day, May 4, 1943, Amanda Smith and Selina Brown executed to Paul, as attorney for Stufflebean, warranty deeds covering their respective undivided interests in their mother's allotment. The trial court specifically found that these deeds were given pursuant to the agreement made at the time of the burial. No additional consideration was given to either of the grantors at the time the deeds were given. The deeds were held by Paul, and no credit was made or entered on the account of Stufflebean for the funeral charges.
On September 13, 1943 the appellants, Cecil James and Leila Mae Andrews, half-blood grandchidren, executed and delivered to Paul, as attorney and agent for Stufflebean, a warranty deed covering their respective interests in their grandmother's allotment in pursuance of a letter of the same date, signed by both Paul and Stufflebean, acknowledging the execution of the deed, and reciting that an action would be filed within the next few days to sell the interest of Amanda Smith and Selina Brown in the inherited land; that the United States probate attorney was required by law to be notified of the action, and would have the land appraised for value. The letter went on to recite that the value established in this proposed action would be used to determine the consideration for the conveyance of their respective interests to Stufflebean; that in the event their interest was determined to be of greater value than their proportionate obligation for the funeral bill, Stufflebean would pay in cash the difference between such value and their respective shares, and in the event the land was appraised at less than the funeral bill, Stufflebean would accept the deed in full satisfaction as far as they were concerned.
On October 19, 1943, Amanda Smith signed and verified a petition to the County Court of Garvin County, for approval of her deed previously executed to Stufflebean on May 4, 1943. On November 20, 1944, Selina Brown signed and verified a petition to the County Court of Garvin County for the approval of her deed, also executed and delivered to Stufflebean on May 4, 1943. On October 28, 1944, Will Paul James executed and delivered to Paul a warranty deed to his interest in the land. At that time, Paul gave James $50.00, and a day or so later, gave him an additional $10.00. This gave Stufflebean warranty deeds to all of the respective interests of the heirs to the land, except that of the daughter, Emily Anderson.
None of the deeds were recorded, nor were the petitions for approval submitted to the County Court at that time. But, according to the findings of the trial court, it was the opinion of the Probate Division of the Office of the Superintendent for the Five Civilized Tribes and the Department of the Interior, that the land did not remain restricted under Section 1 of the Act of January 27, 1933, and according to the trial court, the same officers were of the opinion that county court approval of the deeds given by the full-blood Indian heirs was not requisite to their validity, and that Paul, as attorney for Stufflebean, was so advised by Mr. Cook, Probate Attorney with direct supervision of Indian conveyances in Garvin County. Stufflebean went into possession of the land about January 1, 1945, and collected the rents for 1945 and 1946, but paid no taxes.
When in May 1946, Stufflebean learned that two men were attempting to purchase Amanda Smith's interest in the allotment on the theory that his deed was not good, he secured another deed dated May 23, 1946, for which he paid $30.00 per acre, or $500.00, less her proportionate part of the funeral charges. On the same date, Paul quitclaimed Will Paul James' interest to Stufflebean. On the previous day, the 22nd, Stufflebean acquired a new deed from Selina Brown covering her undivided interest, and also a deed from Emily Anderson, for the same consideration, to-wit, $30.00 per acre. On the 24th of May, 1946, Stufflebean recorded all of the deeds covering the respective interests, including the one from Cecil James and Leila Mae Andrews. The testimony is that about that time, Paul mailed Stufflebean's checks to Cecil James and Leila Mae Andrews for their interests, based upon the amount ...