The United States is not a necessary party to a proceeding,
brought under the Act of June 14, 1918, to determine the heirship
of a deceased citizen allottee of the Five Civilized Tribes. Pp.
333 U. S.
586-590.
Petitioner brought suit against respondents in an Oklahoma state
court, claiming an interest in lands of a deceased citizen allottee
of the Five Civilized Tribes. Upon motion of the Superintendent for
the Five Civilized Tribes, who had been served with notice of the
proceeding, the cause was removed to the Federal District Court.
Judgment was entered for respondents. On appeal, the Circuit Court
of Appeals certified a question to this Court for determination.
The question certified is here answered "No," p.
333 U. S.
590.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
The Circuit Court of Appeals for the Tenth Circuit, acting under
Judicial Code § 239, 28 U.S.C. § 346, has certified the following
question for our determination:
"(1) Is the United States a necessary party to a proceeding to
determine the heirship of a deceased citizen allottee of the Five
Civilized Tribes brought under the Act of June 14, 1918, 40 Stat.
606?"
On January 4, 1935, the County Court of Cherokee County,
Oklahoma, decreed that the sole and only heirs
Page 333 U. S. 587
of Thompson Downing, a full-blood Cherokee, were his three
daughters, the appellees below. Some time thereafter, Peggy Shade
brought this suit in an Oklahoma court to claim, as the only heir
of Downing's second wife, an undivided one-fourth interest in
Downing's allotted lands. She attacked the 1935 decree on the
ground, among others, that no notice of the pendency of the
heirship proceedings had been served on the Superintendent for the
Five Civilized Tribes under the Act of April 12, 1926, 44 Stat.
239, 240-241. [
Footnote 1]
Notice of the pendency of the present action was duly served upon
the Superintendent and, on
Page 333 U. S. 588
his motion, the cause was removed to the District Court for the
Eastern District of Oklahoma. Judgment was entered for defendants
on June 6, 1945, the court holding that the United States was not a
necessary party to the 1935 heirship proceedings, and that notice
under the 1926 Act was not necessary to the validity of that
decree. On appeal, the court below certified the above question for
our determination.
The Act of June 14, 1918, 40 Stat. 606, 25 U.S.C. §§ 375, 355,
[
Footnote 2] vested in the
Oklahoma courts jurisdiction to determine heirship of restricted
Indian lands and to entertain proceedings to partition such lands.
[
Footnote 3]
See §§ 1
and 2. It is a jurisdictional statute only (
see United States
v. Hellard, 322 U. S. 363,
322 U. S.
365), and leaves open the question whether the United
States is a necessary or indispensable party to proceedings under
either section.
We held in
United States v. Hellard, supra, that the
United States is a necessary party to partition proceedings
Page 333 U. S. 589
brought under § 2 of that Act. That holding was based upon the
direct and important interests of the government in the course and
outcome of partition proceedings, interests flowing from the
statutory restrictions on alienation of allotted lands. Lands
partitioned in kind to full-blood Indians remain restricted under §
2. Thus, the United States, as guardian of the Indians, is directly
interested in obtaining a partition in kind where that course
conforms to its policy of preserving restricted lands for the
Indians or, if a sale is desirable, in insuring that the best
possible price is obtained. Moreover, if the lands are both
restricted and tax exempt, it has an interest in the reinvestment
of the proceeds of the sale in similarly tax exempt and restricted
lands. Act of June 30, 1932, 47 Stat. 474, 25 U.S.C. § 409a. And
there is a further interest in protecting the preferential right of
the Secretary of the Interior to purchase the land for another
Indian under § 2 of the Act of June 26, 1936, 49 Stat. 1967. For
these reasons, we held in
United States v. Hellard, supra,
that the United States was a necessary party to the partition
proceedings, even absent a statutory requirement to that
effect.
Heirship proceedings, however, present quite different
considerations. They involve no governmental interests of the
dignity of those involved in partition proceedings. Restrictions on
alienation do not prevent inheritance.
United States v.
Hellard, supra, at p.
322 U. S. 365. Death of the allottee operates to remove
the statutory restrictions on alienation, and the determination of
heirship does not, of itself, involve a sale of land. [
Footnote 4] The heirship proceeding
Page 333 U. S. 590
involves only "a determination of the question of fact as to who
are the heirs of any deceased citizen allottee of the Five
Civilized Tribes." [
Footnote 5]
As such, it is little more than an identification of those who, by
law, are entitled to the lands in question, and does not directly
affect the restrictions on the land or the land itself. Important
as these proceedings may be to the stability of Indian Land titles,
[
Footnote 6] they are of
primary interest only to the immediate parties. The United States
is, indeed, hardly more than a stakeholder in the litigation.
That is the distinction between partition and heirship
proceedings which we recognized in
United States v. Hellard,
supra at
322 U. S.
365-366. We adhere to it. [
Footnote 7] Accordingly, the question certified is
answered "No."
So ordered.
MR. JUSTICE REED, MR. JUSTICE FRANKFURTER and MR. JUSTICE
JACKSON would answer the question in the
Page 333 U. S. 591
affirmative because, in their view, the purpose of Congress was
to permit the intervention of the United States in cases in which a
restricted member of the Five Civilized Tribes is a party, and,
therefore, the United States is a necessary party to the
proceedings.
[
Footnote 1]
Sec. 3 of the Act, so far as material here, provides:
"Any one or more of the parties to a suit in the United States
courts in the Oklahoma or in the State courts of Oklahoma to which
a restricted member of the Five Civilized Tribes in Oklahoma, or
the restricted heirs or grantees of such Indian are parties, as
plaintiff, defendant, or intervenor, and claiming or entitled to
claim title to or an interest in lands allotted to a citizen of the
Five Civilized Tribes or the proceeds, issues, rents, and profits
derived from the same, may serve written notice of the pendency of
such suit upon the Superintendent for the Five Civilized Tribes,
and the United States may appear in said cause within twenty days
thereafter, or within such extended time as the trial court in its
discretion may permit, and after such appearance or the expiration
of said twenty days or any extension thereof the proceedings and
judgment in said cause shall bind the United States and the parties
thereto to the same extent as though no Indian land or question
were involved. . . .
Provided, That within twenty days
after the service of such notice on the Superintendent for the Five
Civilized Tribes or within such extended time as the trial court,
in its discretion, may permit, the United States may be, and hereby
is given the right to, remove any such suit pending in a State
court to the United States district court by filing in such suit in
the State court a petition for the removal of such suit into the
said United States district court, to be held in the district where
such suit is pending, together with the certified copy of the
pleadings in such suit served on the Superintendent for the Five
Civilized Tribes as hereinbefore provided. It shall then be the
duty of the State court to accept such petition and proceed no
further in said suit. . . ."
See United States v. Rice, 327 U.
S. 742;
cf. 61 Stat. 731, 732, § 3(c); H.R.Rep.
No. 740, 80th Cong., 1st Sess., p. 4.
[
Footnote 2]
Sec. 1 provides:
"That a determination of the question of fact as to who are the
heirs of any deceased citizen allottee of the Five Civilized Tribes
of Indians who may die or may have heretofore died, leaving
restricted heirs, by the probate court of the Oklahoma having
jurisdiction to settle the estate of said deceased, conducted in
the manner provided by the laws of said State for the determination
of heirship in closing up the estates of deceased persons, shall be
conclusive of said question. . . ."
Sec. 2 provides:
"That the lands of full-blood members of any of the Five
Civilized Tribes are hereby made subject to the laws of the
Oklahoma, providing for the partition of real estate. Any land
allotted in such proceedings to a full-blood Indian, or conveyed to
him upon his election to take the same at the appraisement, shall
remain subject to all restrictions upon alienation and taxation
obtaining prior to such partition. In case of a sale under any
decree or partition, the conveyance thereunder shall operate to
relieve the land described of all restrictions of every
character."
[
Footnote 3]
It is well settled that Congress has authority to select state
agencies to perform such functions.
United States v. Hellard,
supra, at
322 U. S.
365.
[
Footnote 4]
The Act of April 12, 1926, provides in part:
"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. . .
."
See also Pub.L. No. 336, 80th Cong., 1st Sess., Aug. 4,
1947, § 1, 61 Stat. 731. We do not have before us the question as
to whether or not the United States is a necessary party to a
proceeding to obtain court approval of a deed under the 1926
Act.
[
Footnote 5]
See § 1 of the 1918 Act,
note 2 supra.
[
Footnote 6]
See Sen.Rep. No. 330, 65th Cong., 2d Sess., p. 1.
[
Footnote 7]
Subsequent to the institution of these heirship proceedings, and
after the decision in the
Hellard case, Congress marked
this distinction by providing that the Oklahoma state courts should
have exclusive jurisdiction in all actions to determine heirship
under § 1 of the 1918 Act, and that the United States is not a
necessary or indispensable party to such proceedings. § 3(a) and
(b) of Pub.L. No. 336, 80th Cong., 1st Sess., Aug. 4, 1947, 61
Stat. 732. Moreover, Congress, by § 3 of the Act of July 2, 1945,
59 Stat. 313, 314, provided that no order, judgment, or decree in
partition made subsequent to the 1918 Act and prior to the 1945 Act
and involving inherited restricted lands of enrolled and unenrolled
members of the Five Civilized Tribes, nor any conveyance pursuant
thereto, should be invalid because the United States was not a
party or was not served with any notice or process in connection
therewith.