1. A suit by the United States to enforce restrictions on Indian
land is not barred by a prior judgment in proceedings in which the
United States was not formally a party, but in which the Secretary
of the Interior had authorized employment and approved the fees of
counsel for the Indian. P.
324 U. S. 317.
2. A mortgage of lands inherited from an Osage allottee, given
by the heir prior to the state court decree adjudging heirship, was
invalid under § 7 of the Act of April 18, 1912, even though the
heir had a certificate of competency at the time of the execution
of the mortgage. P.
324 U. S.
318.
3. Within the meaning of § 7 of the Act of April 18, 1912, lands
inherited from an Osage allottee though an incompetent are "turned
over" to the heir when the probate court decrees heirship. P.
324 U. S.
319.
144 F.2d 375 affirmed.
Certiorari, 323 U.S. 699, to review the reversal of a judgment
against the United States in a suit brought by it to cancel a
mortgage and to quiet title to lands.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
Mamie Fletcher Pitts, a full-blood Osage Indian, died on May 24,
1937, leaving land allotted to her as a member of her tribe. Her
husband, George Pitts, also a full-blood Osage, was appointed
administrator of her estate in appropriate proceedings in an
Oklahoma court. His certificate of competency which had been
granted him in
Page 324 U. S. 317
1910, § 2, Seventh, Act of June 28, 1906, 34 Stat. 539, 542, was
revoked by the Secretary of the Interior on June 24, 1938. On
September 9, 1938, he was adjudged to be the sole heir by the
Oklahoma court, which entered an order directing distribution of
Mamie's estate to him. Prior to that order, however, on July 12,
1937, Pitts had executed a mortgage of his wife's land to Drummond,
the petitioner, to secure a contemporaneous promissory note. It is
the validity of this mortgage under the relevant Indian legislation
which is in controversy.
Petitioner in 1939 instituted a suit against Pitts in the state
court to recover judgment on the note and to foreclose the
mortgage. In that litigation, Pitts, asserting the invalidity of
the mortgage, was represented by a private attorney. Foreclosure
was decreed, and this was upheld in the Supreme Court of Oklahoma.
Pitts v. Drummond, 189 Okl. 574,
118 P.2d
244.
* Thereafter, the
United States brought the present action in its own right and on
behalf of Pitts to cancel the mortgage and to quiet title. The
petitioner succeeded in the District Court, but the judgment was
reversed by the Circuit Court of Appeals for the Tenth Circuit. 144
F.2d 375. The conflict in result between the decision below and the
earlier decision of the Oklahoma Supreme Court led us to grant
certiorari, 323 U.S. 699.
A claim of
res judicata meets us at the outset.
Petitioner contends that the adjudication in
Pitts v. Drummond,
supra, binds the United States. To escape from the rule that
the United States is not precluded from enforcing restrictions on
Indian lands by any prior judgment in proceedings to which it was a
stranger,
Bowling v. United States, 233 U.
S. 528,
233 U. S.
534-535;
United States v. Hellard, 322 U.
S. 363,
322 U. S. 366,
and see Cohen, Handbook of Federal
Page 324 U. S. 318
Indian Law (1941) 369, petitioner relies on the authorization by
the Secretary of the Interior of the employment of Pitts' attorney
and the approval of the latter's fee. If the United States in fact
employs counsel to represent its interest in a litigation or
otherwise actively aids in its conduct, it is properly enough
deemed to be a party, and not a stranger to the litigation, and
bound by its results.
Compare United States v. Candelaria,
271 U. S. 432, 16
F.2d 559,
with Logan v. United States, 58 F.2d 697. But,
to bind the United States when it is not formally a party, it must
have a laboring car in a controversy. This is not to be inferred
merely because the Secretary of the Interior enables an incompetent
Indian to protect his interests.
This brings us to the merits of the controversy -- the validity
of the mortgage given by Pitts as security for a loan before the
Oklahoma court adjudged him to be his wife's heir. The decision
turns on the construction of the Act of April 18, 1912, and, more
particularly, on §§ 6 and 7, 37 Stat. 86. Section 6, so far as here
relevant, removes restrictions on alienation of land inherited by
heirs who have certificates of competency or who are not tribal
members. After providing that allotment lands or funds shall not be
liable or subjected to any claim arising prior to the granting of a
certificate of competency, § 7 continues:
"That no lands or moneys inherited from Osage allottees shall be
subject to or be taken or sold to secure the payment of any
indebtedness incurred by such heir prior to the time such lands and
moneys are turned over to such heirs."
These provisions have the characteristic infelicity of
draftsmanship in Indian legislation which is such a fertile breeder
of wasteful litigation. But the language, together with the light
shed by the relevant Senate Report, makes the meaning clear
enough.
Page 324 U. S. 319
Since Pitts incurred the debt to petitioner before the probate
court adjudged him to be the heir, the transaction comes clearly
within the invalidation of § 7. Petitioner contends that, even
though Pitts incurred the debt to him before the probate court
decreed heirship, power to mortgage the land is authorized by § 6,
which removed restrictions on land inherited by an heir having a
certificate of competency, which Pitts did have at the time of the
mortgage transaction. But this result would render meaningless the
sentence we have quoted from § 7, and disregard the purpose of § 7
as authoritatively stated in the Senate Report proposing the
legislation. The object of § 7, according to the Senate Committee,
was that "no land or money inherited shall be subject to any prior
indebtedness." S.Rep. No. 127, 62d Cong., 1st Sess., p. 2. Since
the sentence dealing with the invalidation is preceded by one which
gives full protection against debts incurred prior to the issuance
of a certificate of competency, the second sentence would have no
function whatever unless it be construed to render unenforceable
any claims against inherited property arising at any time before it
was "turned over" to an heir. And this brings us to the final
argument.
It is urged that § 7 is inapplicable because Mamie's land was
never "turned over" to Pitts, but came to him automatically on the
death of his wife. The basis of this argument is that, inasmuch as
Mamie was an incompetent, her estate was not subject to any claims
against her, and therefore necessarily would come to her heir
unburdened. But § 7, in speaking of turning over lands to an heir,
was surely not concerned with the mysteries of seisin. It dealt
with the practicalities of ascertaining ownership through
inheritance by appropriate proceedings. To that end, § 3 of the Act
of 1912 conferred probate jurisdiction upon
Page 324 U. S. 320
the state courts.
In re Thompson's Estate, 179 Okl.
240,
65 P.2d 442.
The statute, that is, had in mind the judicial process of
ascertaining the heir and the completion of that process by court
action whereby the land was "turned over" to the ascertained heir.
And so here, when the Oklahoma court decreed that Pitts was Mamie's
heir, the land, in the sensible use of the phrase "turned over,"
was turned over to Pitts.
Other arguments have not been overlooked, but they need not be
separately considered.
Affirmed.
MR. JUSTICE JACKSON dissents.
* To complete the history of this litigation, we note that
certiorari was denied, 315 U.S. 814.