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March 19, 1942

ICKES et al.

The opinion of the court was delivered by: MILLER

MILLER, Associate Justice.

Plaintiff, the Osage Tribe of Indians, brought this suit in its own right and through its Principal Chief, Fred Lookout, to restrain the Secretary of the Interior, Harold L. Ickes, from paying to defendant, Tom H. Fraley, Treasurer of Osage County, Oklahoma, the sum of $1,535.70, part of the proceeds of royalties from gas and oil leases which had been executed by the Tribal Council. The royalties thus received were required by the Act of June 28, 1906, *fn2" to be placed in the Treasury of the United States to the credit of the members of the Tribe for the use and benefit of the individual members of the Tribe. The 1906 Act also provided for taking a tribal roll and for equal division of the tribal lands and funds amoung the members of the Tribe. It provided for allotment of the surface of the land in severalty among the members of the Tribe *fn3" but reserved mineral rights to the use of the Tribe fror a period of twenty-five years, after which they were to become the property of the individual owners of the land, unless otherwise provided for by Act of Congress. *fn4" The Tribal Council was authorized to make leases for the mineral rights with the approval of the Secretary of the Interior. *fn5" Section 4 of the Act *fn6" provided: "That all funds belonging to the Osage tribe, and all moneys due, and and moneys that may become due, or may hereafter be found to be due the said Osage tribe of Indians, shall be held in trust by the United States for the period of twenty-five years from and after the first day of January, nineteen hundred and seven, * * *." [Italics supplied] Section 4 of the Act of 1906 *fn7" also provided that the funds therein specified should be segregated and placed to the credit of the individual members of the Tribe; these credits to draw interest, which when accrued was to be paid quarterly to the members entitled. Royalties from mineral leases were likewise to be placed in the Treasury to the credit of the members of the Tribe and distributed to the individual members "in the manner and at the same time that payments are made of interest, on other moneys held in trust * * *" [Italics supplied] with the exception of sums reserved for schools, agency, and emergency funds.

 Section 5 of the 1906 Act *fn8" provided that "at the expiration of the period of twenty-five years from and after the first day of January, nineteen hundred and seven, the lands, mineral interests, and moneys, herein provided for and held in trust by the United States shall be the absolute property of the individual members of the Osage tribe * * * as herein provided, and said members shall have full control of said lands, moneys, and mineral interests, except as hereinbefore provided" with the right of inheritance according to Oklahoma laws. *fn9" In 1929, *fn10" pursuant to the power expressly reserved in the 1906 Act, the earlier Act was so amended as to extend the term of the trust until 1959. In 1921 the reservation to the Tribe, of minerals under the land, was extended to 1946. *fn11" And by the Act of 1921, *fn12" and Act of June 6, 1906 was also so amended as to permit the State of Oklahoma to levy a gross production tax upon all oil and gas produced in Osage County, in lieu of all other state and county taxes theretofore levied on the production of gas and oil in that county. The 1921 Act also provided that the Secretary of the Interior should pay one per centum of royalties received under the Indians' gas and oil leases to Osage County for use in construction of roads and bridges. *fn13"

 Pursuant to the 1921 Act, the gross production tax levied by the State of Oklahoma has been paid by the oil companies producing gas and oil under the tribal leases, and the Secretary of the Interior has paid to Osage County approximately $1,092,338.17 for construction of roads and bridges. Provision for payment of this one per centum of royalties was discontinued by Act of Congress in 1940. *fn14" There still remains, however, an undistributed residue of the one per centum fund amounting to $1,535.70. This is the subject of the present suit. The complaint contains, among others, the following allegation: "* * * plaintiffs aver that the provisions of said Section 5 of the Act of March 3, 1921, authorizing and directing the Secretary of the Interior 'to pay, through the proper officers of the Osage Agency, to Osage County, Oklahoma, an additional sum equal to 1 per centum of the amount received by the Osage Tribe of Indians as royalties from production of oil and gas, which sum shall be used by said county only for the construction and maintenance of roads and bridges therein' * * * was an unconstitutional taking and deprivation of plaintiffs' property or moneys, and was repugnant to the Constitution of the United States in that it deprived the plaintiffs of their property without compensation and without due process of law." The prayer of the complaint asks (1) a permanent injunction restraining the Secretary from distributing to Osage County the residue of the fund above described; (2) a direction to the Secretary to distribute the said sum of $1,535.70 to the Osage Indians; (3) that a statutory three judge court be constituted to hear and determine the application for injunction. *fn15" Thereafter, on May 29, 1941, the defendant, Harold L. Ickes, moved to dismiss the complaint fror the reason that the United States of America is an indispensable party defendant, which has not consented to be sued and which cannot be sued without its consent. On the same date defendant Fraley also filed a motion to dismiss, but for reasons which will appear, it is not necessary to consider his motion further. On June 14, 1941, plaintiffs filed an application containing the following statement: "Since the complaint seeks an injunction to restrain the payment of funds under said Act of Congress upon the ground that a part of said Act is repugnant to the Constitution of the United States, application is made for an injunction and for a request to the Chief Justice of the United States Court of Appeals for the District of Columbia to designate two other Judges to participate in hearing and determining this application." On October 3, 1941, upon the request of Associate Justice F. DICKINSON LETTS, of the District Court of the United States for the District of Columbia, the present three judge statutory court was constituted, by order of Chief Justice D. LAWRENCE GRONER, of the United States Court of Appeals, to hear and determine the application.

 Upon the hearing, which was held pursuant to the foregoing order, counsel for defendants insisted upon disposition of the pending preliminary motions, as was their right. The court heard argument upon all phases of the case; assuming for purposes of the argument that the question of constitutionality presented in the complaint and application might also be involved in the determination of the preliminary motions. We have concluded, however, that the motion to dismiss is well founded and should be granted for the following reasons.

 As was said by the Supreme Court in Morrison v. Work, *fn16" the claim of the United States is at least a substantial one. No more is necessary for disposition of the motion to dismiss. *fn17" The decision in the Morrison case is directly applicable and conclusive.

 It is, consequently, unnecessary to decide any constitutional question; and, being unnecessary, we refrain from doing so; *fn18" thus giving full recognition to the presumption of constitutionality. *fn19" The Government's interest, and the indispensability of the United States as a party, depends upon the relationship which exists between it and the Indians generally *fn20" and, particularly, upon the power asserted in the 1906 Act. *fn21" Plaintiffs do not challenge the constitutionality of that Act or the power therein asserted. Indeed, they rely upon it to assert their alleged cause of action.If their interpretation of the 1906 Act is wrong, then, presumably, their attack upon the 1921 Act fails. In any event, this is the very heart of their case; and as we have already indicated, the United States must be made a party to its trial and decision.

 In summary it may be said that there are three questions entangled in the arguments thus far considered: (1) Is the United States an indispensable party; (2) what is the meaning of the 1906 Act; (3) in light of that meaning was the 1921 Act unconstitutional? In disposing of the motion to dismiss, we are required to decide only the first of the three; or, at least, to inquire into the second only far enough to answer the first. In the trial and decision of the second and third questions, on their merits, the United States is, in our opinion, required to be present and heard as an indispensable party. Whether or not the latter questions can even be tried, depends upon whether the United States consents to be sued.

 The Government has challenged the power of this court, as presently constituted, *fn22" to pass upon the motion to dismiss; its theory being that as no constitutional issue is presented by the motion, the court lacks jurisdiction, and that a single trial judge, acting alone, should have passed upon it. *fn23" We have no doubt that a single judge could have passed upon the motion of defendant Ickes. *fn24" While it is improper for such a judge to dismiss a complaint on the merits where an interlocutory injunction is sought upon constitutional grounds, *fn25" it is, nevertheless, not only appropriate for him carefully to scrutinize the complaint to ascertain whether a substantial claim of unconstitutionality has been presented, *fn26" but it is his duty to do so, *fn27" in order to determine whether the case is one requiring disposition by a special court of three judges. *fn28"

 The lack of a substantial question of constitutional law may appear either because it is obvious from a reading of the statute or because it so clearly results from previous decisions of the Supreme Court as to foreclose the subject. *fn29" As we have pointed out, in the present case, an examination of the statutes, and of the cases which interpret them, reveals that the United States is an indispensable party to the present suit and no question of constitutionality is involved in arriving at that conclusion. *fn30" Consequently, it was the duty of the single judge to decide that the United States was an indispensable party. Having done so it was his duty to dismiss the complaint.

 But power in the single trial judge is not necessarily inconsistent with similar power in the special court once it has been convened. *fn31" After all it, too, is a district court, presumably vested with all necessary and proper powers. No limitation appears in the statute upon the power of the special court to act with reference to such preliminary questions. *fn32" In several cases such courts have acted upon preliminary questions. *fn33" And, no doubt, the unnecessary participation of two additional judges would not invalidate the court's action in any event, *fn34" or cut off any right or privilege of appeal. *fn35"

 But if it is not necessary for our decision that we should determine or declare the limits of power of the special court, we should avoid doing so; leaving performance of that duty to the Supreme Court, if and when it becomes necessary. Assuming that this court has power to act, it does not necessarily follow that it should act. *fn36" As we read the decisions of the Supreme Court the determining consideration for us is one of propriety rather than of power. In a number of situations, and in a number of cases, it has been held that courts should voluntarily refrain from using or asserting power. *fn37" Where the use or assertion of power might be ...

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