The opinion of the court was delivered by: WYCHE
Plaintiff, a banking corporation, brought this action as trustee under the last will and testament of Thomas Long, Sr., a deceased full-blood Creek Indian, to compel the Secretary of the Interior to relinquish to the plaintiff supervision and control over 80 acres of land and the profits accruing therefrom after the testator's death.
In compliance with Rule 52(a) of the Rules of Civil Procedure, 28 U.S.C.A.following section 723c, I find the facts specially as follows:
Thomas Long, Sr., a full-blood Creek Indian died on March 13, 1932, seized of an estate consisting in part of 80 acres of land in Oklahoma which had been allotted to him as a member of the Creek Nation. During his lifetime the allotment was subject to restrictions against alienation imposed by sections 1 and 9 of the act of May 27, 1908, 35 Stat. 312, as amended by section 1 of the act of April 12, 1926, 44 Stat. 239, and the act of May 10, 1928, 45 Stat. 495. The land is covered by an oil and gas lease executed by the allottee in 1912 and approved by the Secretary of the Interior under authority of section 2 of the act of May 27, 1908, supra, which lease provides that the Secretary of the Interior shall have the exclusive power and duty to supervise the collection, care and disbursement of payments made thereunder by the lessee until such time as the restrictions against alienation are removed from the land.
Thomas Long, Sr., left a last will and testament executed under authority of section 23 of the act of April 26, 1906, 34 Stat. 137, as amended by section 8 of the act of May 27, 1908, supra, and as extended by the act of May 10, 1928, supra. By the seventh paragraph of the will the testator devised the aforesaid 80 acres of his allotment to his son, Thomas Long, Jr., a full-blood Creek Indian, as trustee, with the power to collect the income and make stipulated payments to the testator's widow, children and grandchildren during the life-time or widowhood of the former, and to convey the land thereafter to the said children and grandchildren. The tenth paragraph of the will provided that the property should vest in the beneficiaries even though the Secretary should refuse to relinquish supervision to the trustee. All of the beneficiaries named in the will are full-blood Creek Indians.
The allottee's will was admitted to probate on April 6, 1932, by the County Court of Hughes County, Oklahoma, the county in which the testator was resident. The plaintiff herein was appointed successor trustee because Thomas Long, Jr., had predeceased his father. On July 13, 1932, after demand made by the plaintiff, the Secretary of the Interior refused to relinquish supervision over the property and directed the Superintendent for the Five Civilized Tribes to be governed by the tenth paragraph of the will and carry out the testator's intention as expressed therein. The County Court entered its final order of distribution on September 6, 1939, which provided, among other things, that full and complete fee simple title to the lands be vested in the plaintiff, in trust, for the uses and purposes set forth in the will.
The plaintiff rests its cause of action upon the contention that the effect of the will executed under section 23 of the 1906 act, supra, was to remove all restrictions and terminate the power of the Federal Government to continue the exercise of supervision and control over the property. The defendant contends that the property is restricted and properly subject to the jurisdiction of the Secretary of the Interior by virtue of the provisions of section 1 of the act of April 12, 1926, supra, and section 1 of the act of January 27, 1933, 47 Stat. 777, and that, as a consequence, the United States has such an interest in the property that it is an indispensable party to any suit granting the relief sought by the plaintiff. The defendant also contends that mandamus will not lie because the statutes involved do not clearly require the action demanded by the plaintiff. Further, the defendant asserts that the cases of Darks v. Ickes, and Darks v. Magnolia Petroleum Co., et al., mentioned above, are res judicata of the controversy.
Section 23 of the 1906 act, supra, upon which the plaintiff rests its case, provides as follows: 'Every person of lawful age and sound mind may by last will and testament devise and bequeath all of his estate, real and personal, and all interest therein: Provided, That no will of a full-blood Indian devising real estate shall be valid, if such last will and testament disinherits the parent, wife, spouse, or children of such full-blood Indian, unless acknowledged before and approved by a judge of the United States Court for the Indian Territory, or a United States commissioner.' The foregoing action unquestionably conferred upon Indians of the Five Civilized Tribes the power to dispose of their restricted property by will, a power theretofore not given them. Taylor v. Parker, 1914, 235 U.S. 42, 35 S. Ct. 22, 59 L. Ed. 121; Blundell v. Wallace, 1925, 267 U.S. 373, 45 S. Ct. 247, 69 L. Ed. 664; Davis v. Williford, 1926, 271 U.S. 484, 487, 46 S. Ct. 547, 70 L. Ed. 1048. But the question of whether the property is restricted and subject to the Secretary's jurisdiction finds its answer in the statutes dealing with the status of the property after the allottee's death. Thus, section 9 of the act of May 27, 1908, supra, provided, in part, as follows: ' * * * That the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allottee's land: Provided, That no conveyance of any interest of any full-blood Indian heir in such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee * * * .'
There would be merit in the plaintiff's contention if the foregoing section 9 were the only one to be considered. Grisso v. United States, 10 Cir., 1943, 138 F.2d 996, 1000; Burgess v. Nail, 10 Cir., 1939, 103 F.2d 37, 42; McKinney v. Bluford, 1921, 81 Okl. 166, 197 P. 430, 431. But the facts in this case call for the application of section 1 of the act of April 12, 1926, supra, and section 1 of the act of January 27, 1933, supra. The 1926 act amended section 9 of the 1908 act to read: 'The death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allottee's land: Provided, That hereafter no conveyance by any full-blood Indian of the Five Civilized Tribes of any interest in lands restricted by section 1 of this Act acquired by inheritance or devise from an allottee of such lands shall be valid unless approved by the county court having jurisdiction of the settlement of the estate of the deceased allottee or testator * * * .'
The plaintiff does not deny the power of Congress to impose restrictions upon Indian lands or to decide for itself when and in what manner Federal guardianship over the Indians shall attach. This power has long been recognized. Brader v. James, 1918, 246 U.S. 88, 38 S. Ct. 285, 62 L. Ed. 591; Tiger v. Western Investment Co., 1911, 221 U.S. 286, 31 S. Ct. 578, 55 L. Ed. 738; King v. Ickes, 1933, 62 App.D.C. 83, 64 F.2d 979. The plaintiff furthermore concedes that the 1926 amendment just quoted would impose restrictions in those instances where the devise was made directly to a full-blood Indian, but he asserts that the 1926 act is inapplicable here because the devise to plaintiff, as trustee, vests title to the property in a non-Indian. The question thus presented is one of statutory construction.
The obvious effect of the 1926 amendment was to enlarge the scope of section 9 of the 1908 act, supra, so as to place restrictions upon 'any interest' in restricted lands acquired by a full-blood Indian by inheritance or devise from an allottee. Grisso v. United States, supra. The statute deals realistically with the fact that so long as restrictions are made to depend upon quantum of Indian blood there is no logical basis for disparity between full-blood heirs and full-blood devisees, because one needs the protection of the Federal Government as much as the other. See Whitchurch v. Burge, D.C. 1936, 17 F.Supp. 234. The right to use and enjoy the property passes by the will to the full-blood Indians named, and they must be regarded as the real, substantial owners thereof. Cf. Blair v. Commissioner of Internal Revenue, 1937, 300 U.S. 5, 13, 57 S. Ct. 330, 81 L. Ed. 465. The Indians' ownership is not to be denied by the plaintiff because the fiduciary capacity in which he asserts the right to supervise and control the property is in itself a recognition that the Indians own an interest in that property. Clearly, therefore, the Indians have an interest in these lands which is subject to the restrictions imposed by the 1926 act.
While the lands are restricted the Secretary of the Interior has the power and duty under the oil and gas lease to supervise the collection, care and disbursement of the income therefrom as trustee for the full-blood Indian owners. Parker v. Richard, 1919, 250 U.S. 235, 39 S. Ct. 442, 63 L. Ed. 954. If there were any doubt, however, as to the restricted character of the funds coming into the custody of the Secretary of the Interior, that doubt would be removed by section 1 of the act of January 27, 1933, supra, the material part of which reads: 'That all funds and other securities now held by or which may hereafter come under the supervision of the Secretary of the Interior, belonging to and only so long as belonging to Indians of the Five Civilized Tribes in Oklahoma of one-half or more Indian blood, enrolled or unenrolled, are hereby declared to be restricted and shall remain subject to the jurisdiction of said Secretary until April 26, 1956, subject to expenditure in the meantime for the use and benefit of the individual Indians to whom such funds and securities belong, under such rules and regulations as said Secretary may prescribe * * * .' These funds belong to Indians of the degree of blood prescribed by the statute. The conditions of the statute being met, it follows that the funds are restricted and subject to the jurisdiction of the Secretary of the Interior. The Court of Appeals of the District of Columbia has so held and the matter must ...