1. An averment in a bill to quiet title to a Creek Indian
allotment that the plaintiff went into possession by authority of
treaties between the Creek Nation and the United States and the
laws of Congress dealing with the lands and individuals of the
Page 266 U. S. 512
Nation is insufficient to show that the case arose under those
laws and treaties. P. 266 U. S.
2. When a right to land set up by the plaintiff in a suit to
quiet title would be defeated by a construction of an act of
Congress contended for by the defendant, but supported by the
opposite construction, the case arises under a law of the United
States within the meaning of Jud.Code § 24. P. 266 U. S.
3. If the jurisdictional facts are not alleged in the bill, it
is the duty of the district court to dismiss the suit unless those
facts be supplied by amendment. Id.
4. The district court, while it has control of the record, even
after reversal and remand, can allow the initial pleading to be
amended to show jurisdictional facts appearing of record. P.
266 U. S.
5. Such an amendment will also be allowed in this Court
(Rev.Stats., § 954) when the jurisdictional facts are in the record
and indisputable and the amendment can occasion no surprise.
6. Of the findings made by the Commissioner to the Five
Civilized Tribes in enrolling children, under the Act of March 3,
1905, c. 49, 33 Stat. 1071, those upon matters merely incidental or
collateral to the direct issues presented by the statute are not
conclusive in subsequent proceedings -- e.g.,
whether a child's parents were known by aliases and the precise
numbers of their enrollments. P. 266 U. S.
7. A latent ambiguity in such findings may be resolved by parol
8. Where two courts have reached the same conclusion on a
question of fact, it will be accepted here unless clearly
erroneous. P. 266 U. S. 518
289 F. 395 affirmed.
Appeal from a decree of the circuit court of appeals affirming a
decree of the district court in favor of the appellee, Larney, in
his suit to quiet title to land allotted to him as a citizen of the
Page 266 U. S. 513
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
This is a suit to quiet title to a tract of land in Oklahoma
alleged to have been allotted to Larney, a Creek Indian, as a
distributive share of the lands of the Creek Nation. The district
court rendered a decree for appellees, which, upon appeal, was
affirmed by the circuit court of appeals. 289 F. 395. In the trial
court, the jurisdiction was in no way called in question, but it
was challenged for the first time in the circuit court of appeals,
and is challenged here. It is alleged that all the parties are
citizens and residents of Oklahoma, and the question of
jurisdiction depends upon whether the suit arises under a law of
the United States. The bill avers that Larney went into possession
of the allotment by authority of treaties between the Creek Nation
and the United States and the laws of Congress dealing with the
land and individuals of that Nation. We agree with the circuit
court of appeals that, while this allegation is insufficient to
establish jurisdiction, Taylor v. Anderson, 234 U. S.
; Hull v. Burr, 234 U.
, 234 U. S. 720
it sufficiently appears elsewhere in the record that the suit arose
under an act of Congress and its solution depended on the
construction and effect of that act. On this, the circuit court of
appeals held the district court had jurisdiction, and disposed of
the case upon the merits. The Act of March 3, 1905, c. 1479, 33
Stat. 1048, 1071, provides:
"That the Commission to the Five Civilized Tribes is authorized
for sixty days after the date of the approval of this act to
receive and consider applications for enrollments of children born
subsequent to May 25, 1901, and prior to March 4, 1905, and living
on said latter date, to citizens of the Creek Tribe of Indians
whose enrollment has been approved by the Secretary of the Interior
prior to the date of the approval of this act, and to enroll and
make allotments to such children."
In pursuance of that act, the
Page 266 U. S. 514
Commissioner (successor of the Commission, Martin v. United
168 F. 200) enrolled a child under the name of
Cheparney Larney. The decision of the Commissioner recites that, in
1905, a Creek field party went to the home of this child, then
about a year old, to obtain information in respect of his right of
enrollment, that the parents refused to give any information, and
that the child was thereupon called by the name of Cheparney
Larney, "Cheparney" being a Creek word signifying "little boy." The
important words of the decision are:
"The evidence and the records of this office show that said
Cheparney Larney is the child of Jacob Larney and Bettie Larney,
whose names appear as 'Big Jack' and 'Bettie' on a schedule of
citizens by blood of the Creek Nation, approved by the Secretary of
the Interior March 28, 1902, opposite Nos. 8291 and 8292
Thereupon the Commissioner held that Cheparney Larney was
entitled to be enrolled under the foregoing act of Congress, and
the application for his enrollment was accordingly granted. The
appellee, Larney, is the son of Jacob and Bettie Larney, and the
evidence shows that the allotment deed was delivered to Jacob, the
father, and that appellee went into possession of the land under
the deed some time prior to the commencement of this suit. It
appears from the evidence that Jacob and Bettie Larney are not the
same persons as "Big Jack" and "Bettie," but that they are citizens
of the Creek Tribe and actually enrolled, with the approval of the
Secretary of the Interior at the right time, under the numbers 7968
On behalf of appellants, it was contended that "Big Jack" and
"Bettie," his wife, had three children, the youngest of whom was
known as Cheparney Larney, and that it is to this child the
decision of the Commissioner relates. In support of this
contention, appellants insisted, and still insists, that the
requirement of the statute -- that children born to citizens of the
Creek Tribe "whose enrollment
Page 266 U. S. 515
has been approved by the Secretary of the Interior prior to the
date of the approval of this act" should be enrolled and receive
allotments -- necessitated an identification of the parents of the
child and a finding that they were enrolled with the approval of
the Secretary together with the names and numbers under which they
appeared on the tribal roll. Thus, construing the statute, it was
and is insisted that the recital in the decision of the
Commissioner that the names of the parents of Cheparney Larney
appear as "Big Jack" and "Bettie" opposite Nos. 8291 and 8292
conclusively establishes that the individual enrolled was the child
of the persons identified by these aliases and numbers. On the
other hand, the contention of appellees is that no finding of this
character is required by the statute, and that the recital is
therefore not conclusive, but open to explanation and
contradiction. It thus appears that the right set up by appellees
would be defeated by the construction of the act as appellants
contend, but would be supported by the opposite construction. The
case therefore in fact is one arising under a law of the United
States within the meaning of § 24, subdivision 1, of the Judicial
Code. See Osborn v. Bank of United
9 Wheat. 738, 22 U. S. 822
Macon Grocery Co. v. Atlantic Coast Line R. Co.,
215 U. S. 501
215 U. S.
Upon this state of facts appearing of record, we are of opinion
that the circuit court of appeals was right in sustaining the
jurisdiction of the trial court. Denny v. Pironi,
141 U. S. 121
141 U. S.
-125; Robertson v. Cease, 97 U. S.
, 97 U. S. 648
Sun Printing & Publishing Assn. v. Edwards,
194 U. S. 377
194 U. S. 382
It is quite true that the jurisdiction of a federal court must
affirmatively and distinctly appear, and cannot be helped by
presumptions or by argumentative inferences drawn from the
pleadings. If it does not thus appear by the allegations of the
bill or complaint, the trial court, upon having its attention
called to the defect or upon discovering it, must dismiss
Page 266 U. S. 516
the case, unless the jurisdictional facts be supplied by
amendment. But here, no action was taken by that court, and none
was asked by appellant. Both court and parties proceeded as though
the necessary allegations had been made, as they undoubtedly could
have been made either originally or, under leave of the trial
court, by amendment at any stage of the proceedings, while the
record remained under the control of that court. Mexican
Central Railway v. Duthie, 189 U. S. 76
189 U. S. 77
And if this Court should now reverse the decree and remand the
cause, that amendment could still be allowed by the trial court.
Continental Ins. Co. v. Rhoads, 119 U.
, 119 U. S. 240
Menard v. Goggan, 121 U. S. 253
Robertson v. Cease, supra,
pp. 97 U. S.
-651; Horne v. George H. Hammond Co.,
155 U. S. 393
Stuart v. Easton, 156 U. S. 46
the practice of this Court has been to remit the question of
amendment to the lower court unless the parties consented to an
amendment here. Udall v. Steamship
17 How. 17, 58 U. S. 18
Kennedy v. Georgia State
8 How. 586, 49 U. S.
-611. But, under § 954, Rev.Stats. the power of this
Court, in its discretion, to allow such amendments (see Kennedy
v. Georgia State Bank, supra; Anonymous,
1 Fed.Cas. 996, No.
444), and its duty to do so in appropriate cases cannot be doubted.
And where, as here, the jurisdictional facts appear upon the face
of the record; where the very contention of the party interposing
the challenge to the jurisdiction is such as to plainly establish
it, beyond the possibility of successful dispute, thus eliminating
any element of surprise, and where the amendment must necessarily
be allowed by the trial court, it would be mere ceremony to reverse
the decree and remit the purely formal making of the amendment to
the lower court. We shall therefore consider the bill as amended to
conform to the facts of record and sustain the jurisdiction of the
district court. See Shaw v. Railroad Co., 101 U.
, 101 U. S.
-567; Thayer v. Manley,
73 N.Y. 305, 309,
Page 266 U. S. 517
We come, then, to the merits. The issues to be determined by the
Commissioner are found in the act of Congress already quoted. A
reading of that act demonstrates that the material facts to be
found and, consequently, those alone which the findings of the
Commissioner conclusively establish, are that the child was born
between May 25, 1901, and March 4, 1905; that he was living on the
latter date, and that his parents were citizens of the Creek Tribe
of Indians whose enrollment had been approved by the Secretary of
the Interior prior to the date of the approval of the act. Inquiry
as to whether the parents of the child were known by other names,
and, if so, what those names were, as well as the precise numbers
under which they were enrolled, was incidental or collateral to the
direct issue presented by the statute, which was were they enrolled
with the approval of the Secretary of the Interior at the proper
time? Recitals in respect of such matters or of other merely
identifying circumstances such as the exact age of the child, its
sex, etc., Hegler v. Faulkner, 153 U.
, 153 U. S.
-118; Malone v. Alderdice,
212 F. 668;
United States v. Lena,
261 F. 144, 149-150; Porter v.
260 F. 1, 4, are not conclusive in subsequent
proceedings about the same subject matter. The principle of res
does not apply to points which come under
consideration only collaterally or incidentally. Duchess of
2 Smith's Leading Cases (7th Am. ed., Hare
& Wallace) 609, 610 (*573); Hopkins v.
6 Wheat. 109, 19 U. S. 114
Campbell v. Consalus,
25 N.Y. 613, 616, 617; People v.
38 N.Y. 63, 64-66. But, apart from these
considerations, parol evidence was admissible to resolve the latent
ambiguity disclosed by the record arising from the use of names and
aliases as though belonging to the same persons, but in fact
belonging to different persons.
The evidence in respect of the identity of the child to whom the
allotment was made is conflicting. Upon this
Page 266 U. S. 518
evidence, both courts below found the fact to be that appellee
Larney was the person to whom the Commission's decision related,
and to whom the allotment was made. The well settled rule of this
Court is that, where two courts have reached the same conclusion
upon a question of fact, it will be accepted here unless clearly
erroneous. Bodkin v. Edwards, 255 U.
, 255 U. S. 223
Baker v. Schofield, 243 U. S. 114
243 U. S. 118
An examination of the evidence not only fails to disclose such
clear error, but, on the contrary, establishes the conclusion of
the lower courts by a clear preponderance.