Garrett v. Walcott , 25 Okla. 574 ( 1910 )

It is insisted by the plaintiffs in error that on account of a misconstruction or erroneous view of the law, as applied to the proved or undisputed facts, the land in controversy upon which there were improvements entitling the plaintiffs to take their allotments embracing such lands was permitted to be filed upon by the defendant in error Lulu Walcott, and a patent was duly issued thereto in her name, and that a court of equity should inquire into the matter and correct mistakes, injustices, and wrongs done by the executive department of the government. It being specifically insisted that by a misconstruction of the law, the plaintiffs in error, through their father, were not permitted by the Commission to the Five Civilized Tribes to institute a contest against the defendant in error Lulu Walcott, and they were thereby by said tribunal deprived of their right to allot the land embracing their improvements, as provided in Act Cong. June 28, 1898 (Act June 28, 1898, c. 517, § 29, 30 Stat. 507), and the Creek Agreement ratified by the council March 25, 1901, and approved by the federal government August 23, 1901.

In the case of Wallace v. Adams, 143 Fed. 721, 74 Cow. C. A. 540, Sanborn, Circuit Judge, speaking for the Eighth Circuit Court of Appeals, said:

"Nor did the grant to the Dawes Commission and to the Secretary of the Interior of exclusive jurisdiction to determine matters relating to the allotment of land and to issue certificates which are conclusive evidence of the right of the allottee to the land therein described, deprive these courts of their jurisdiction in equity, after the Commission and the Secretary have exercised this power and exhausted their jurisdiction to determine whether by error of law or through fraud or gross mistake, the Commission and the Secretary have failed to allot the land to the party who was under the law entitled to it and have assigned it to one who had no right to it. The jurisdiction of the Commission and of the Secretary and the effect of their action on the allotment of the lands of the Choctaw and Chickasaw Nations are the same in effect as the jurisdiction and effect of the action of the Land Department of the United States in the disposition of the public lands within its control. The Commission, under the direction of the Secretary, constitutes a special tribunal vested with the judicial power to hear and determine the claims of all parties to allotments of these lands and to execute its judgments by the issue of the allotment certificates which constitute conveyances of the right to the lands to the parties who it decides are entitled to the property. This tribunal undoubtedly has exclusive jurisdiction to determine such claims and to issue such a conveyance. The allotment certificate when issued, like a patent to land, is dual in its effect. It is an adjudication of the special tribunal, empowered to decide the question, that the party to whom it issues is entitled to the land, and it is a conveyance of the right to this title to the allottee. U.S. v. Winona St. Peter R. Co., 15 Cow. C. A. 96, 103, 67 Fed. 948, 955. Like a patent, it is impervious to collateral attack. But as in the case of a patent, if the Commission or the Secretary has been induced to issue the allotment certificate to the wrong party by an erroneous view of the law, or by a gross or fraudulent mistake of the facts, the rightful claimant is not remediless. He may avoid the decision and charge the legal title to the lands in the hands of the allottee, as he may that of the grant to a patentee, with his equitable right to it either on the ground that, upon the facts found, conceded, or established without dispute at the hearing before the special tribunal, its officers fell into error in the construction of the law applicable to the case which caused them to refuse to issue the certificate to him and to give it to another, or that through fraud or gross mistake it fell into a misapprehension of the facts proved before it which had a like effect. James v. Germania Iron Co., 46 Cow. C. A. 476, 107 Fed. 597, 600."

But the question arises as to whether or not on account of the laches of the father of the plaintiffs in error, who was the owner of the improvements and entitled to the possession and occupancy of the land as a Creek citizen in accordance with the allegations of the plaintiffs in error, in failing to prosecute his appeal to the Secretary of the Interior from the decision of the acting Commissioner of Indian Affairs of August 25, 1900, affirming the decision of the Commission to the Five Civilized Tribes denying his right to institute a contest on account of the rule previously promulgated by said Commission requiring contests to be begun within 90 days, and also the further failure to prosecute his appeal from the decision of the acting Commissioner of Indian Affairs of March 27, 1902, denying his petition for a rehearing, bars plaintiffs in error from recourse to equity for relief. In the case of Ard v.Brandon, 156 U.S. 537, 15 Sup. Ct. 406, 39 L. Ed. 524, the court said:

"There can be no question as to the good faith of the defendant. He went upon the land with the view of making it his home. He has occupied it ever since. He did all that was in his power in the first instance to secure the land as his homestead. That he failed was not his fault. It came through the wrongful action of one of the officers of the government. We do not mean to hold that the government or its grantees are concluded by the mere fact that one of its officers has given erroneous advice. If there was nothing more in this case than that the defendant consulted the officers of the land office as to how he could best obtain title to the land, that they gave him advice which was founded upon a mistake of fact and was not good advice, that he pursued the plan they suggested, and yet failed to acquire the title, he would have to bear the consequences of the error. But here a rightful application was wrongfully rejected. This was not a matter of advice, but of decision. Doubtless the error could have been corrected by an appeal, and perhaps that would have been the better way; but when, instead of pursuing that remedy, he is persuaded by the local land officer that he can accomplish that which he desires in another way — a way that to him seems simpler and easier — it would be putting too much of rigor and technicality into a remedial and beneficial statute like the homestead law to hold that the equitable rights which he had acquired by his application were absolutely lost. For these reasons, we are of opinion that there was error in the conclusion of the Supreme Court of the state of Kansas, and the judgments in these two cases are reversed for further proceedings in accordance with the views herein expressed."

This case is also referred to with approval in the case ofWeeks v. Bridgman, 159 U.S. 541, 16 Sup. Ct. 72, 40 L. Ed. 253. When we consider the further fact that the father of the plaintiffs in error was in actual possession of the land in controversy when filed on by the defendant in error, that she had actual notice of this adverse holding, and that under the treaty provisions of the Creek Nation with the federal government the father of the plaintiffs in error was entitled to select this land covered by his improvements as allotment for himself and members of his family, the defendant in error filed on same at her peril. If a liberal construction was to be given to a remedy in behalf of a homestead claimant, why should not the same liberal construction be afforded to a member of the Creek Tribe, a former ward of the federal government, in a controversy over his allotment which may have been the home and abiding place of his ancestors for generations? The case ofUnited States v. Marshall Silver Min. Co. et al., 129 U.S. 579, 9 Sup. Ct. 343, 32 L. Ed. 734, is cited by the defendant in error in support of its contention. In that case the court said:

"When parties have been engaged in a contest, both before the courts and in the land office, with regard to their rights in a deposit of mineral or a lode, and the application of one of them for a patent has been dismissed and he has been put out of court in the pending suit, and there is a right of appeal, it would be inequitable to hold that after he has acquiesced and remained silent for more than eight years, while the successful party was in possession of the lode working out its mineral right in the face of the unsuccessful party, the latter can resume the contest, after such long interval and after the legal title had passed from the United States."

But in the case at bar no such acquiescence has existed. It follows that the judgment of the lower court is reversed, with instructions to grant a new trial and proceed in accordance with this opinion.

Dunn, C. J., and Kane and Turner. JJ., concur; Hayes, J., not sitting.