In Re Appeal of Barnett , 122 Okla. 160 ( 1926 )

I cannot concur in the conclusion reached in the majority opinion by Mr. Justice Mason, because of the ultimate effect of such conclusion, if in fact it should have any effect.

It is due to Mr. Justice Mason to say that if the subject-matter involved and object of the action were matters over which the state courts have jurisdiction, then I am inclined to believe that I would fully concur in both the reasoning and the conclusion in the majority opinion.

But as I view the law, neither the subject-matter nor the object of the action is a matter over which the state courts have jurisdiction to determine, nor power to pass binding judgment upon.

The ultimate object and purpose of the action and proceedings in the lower court and in this court are to obtain control and management of the restricted property of Jackson Barnett, a full-blood Indian. Control and management of the restricted property of this full-blood Indian was sought through probate proceedings below.

In my opinion no judgment of this court in this controversy would ever become final and binding upon the federal courts, even though no appeal or proceedings for review be taken from the judgment of this court to the Supreme Court of the United States. The federal courts would not be precluded at any time in the future from re-opening the entire proceedings and adjudicating the entire subject-matter, whatever might be the judgment of this court.

This view is prompted by the express and designed provisions of the Enabling Act, which are as follows (section 1):

"Provided, that nothing contained in the said Constitution shall be construed to limit or impair the rights of persons or property pertaining to the Indians of said territories (so long as such rights shall remain unextinguished) or to limit or affect the authority of the government of the United States to make and law or regulation respecting such Indians, their lands, property or other rights by treaties, agreement, law or otherwise, which it would have been competent to make if this act had never been issued." (34 Stat. L. 267; Bunn's Ed. secs. 502, 503.)

And section 22 of said act, to wit:

"That the Constitutional Convention provided for herein shall, by ordinance irrevocable, accept the terms and conditions of this act." (34 Stat. L. 278; Bunn's Ed. sec. 539.)

The foregoing provisions of the Act of Congress known as the Enabling Act expressly, specifically, and designedly reserve to the federal government, as such, the exclusive right to deal with the restricted property of full-blood Indians.

It not only expressly reserves to the federal government the exclusive jurisdiction over the restricted property of full-blood Indians, but section 22, supra, expressly required the Constitutional Convention to accept the terms and conditions of this act by ordinance irrevocable. It not only reserved exclusive jurisdiction to the federal government, but required the Constitutional Convention to adopt an ordinance irrevocable that it would not attempt to exercise such jurisdiction.

In obedience to the above mandate of Congress, the Constitutional Convention adopted the following ordinance, to wit:

"Be it ordained by the Constitutional Convention for the proposed state of Oklahoma, that said Constitutional Convention do, by this ordinance irrevocable, accept the terms and conditions of an act of the Congress of the United States, entitled, 'An Act to enable the people of Oklahoma and the Indian Territory to form a Constitution and State Government and be admitted into the Union on an equal footing with the original states.'" Section 54, art. 25, Williams' Constitution.

In view of the foregoing mandatory terms of the Enabling Act, and the foregoing irrevocable ordinance adopted by the Constitutional Convention, it impresses me as either an unwarranted assumption of power or a blind tumbling into folly for the courts of this state to attempt to exercise jurisdiction over the subject-matter here involved.

The state not only observed and accepted the restrictive reservations imposed by section 1, but humbly complied with the requirements of section 22 of the Enabling Act, and thereby not only relinquished all claim of jurisdiction over such matters, but completely left exclusive jurisdiction over such matters to the federal government.

Congress seems to have been unwilling to entrust the management and control of the restricted property of full-blood Indians to the state courts, and therefore made the foregoing express reservations and imposed the foregoing mandatory conditions upon the Constitutional Convention, all of which were accepted through the ordinance above set forth, which was agreeable to and accepted by the federal government the proclamation of statehood was thereupon issued and it thereby became a binding compact between the federal government, as such, and the sovereign state, as such.

No state officer had authority thereafter to exercise any control over the restricted property of full-blood Indians until the passage of the Act of June 14, 1918, 40 Stat. at L. 606, which conferred upon county courts jurisdiction to determine heirship of members of the Five Civilized Tribes, and the district courts of the state, jurisdiction to partition estates pursuant to a determination of heirship by the county courts.

It is immaterial in this connection to say whether Congress, in view of the terms of the Enabling Act, and the acceptance of such terms in the Constitution, had power to impose upon such officers the duty to perform purely federal functions and force state officers to discharge said duties, but it is clear that the duties thus imposed upon the county and district courts by said act are purely federal functions.

When the county court acts in a determination of heirship of full-blood Indians, it acts by virtue of the foregoing act of Congress, and in doing so acts purely as a federal instrumentality.

The same is true as to a decree of partition of restricted real estate of full-blood Indians of the tribes mentioned in the act; therefore, when the county court acts in the determination of heirship or the district court acts in the partition of restricted real estate of full-blood Indians, they act purely as a federal instrumentality, because the Enabling Act expressly reserved exclusive jurisdiction over such matters to the federal government.

Hence, so far as the state courts, as such, are concerned, it is immaterial whether in such matters the county court or the district court acted erroneously, irregularly, or fraudulently. If either of such courts should act in that manner, their acts should be corrected in the federal courts and not in the state courts, because the state courts under the terms imposed by the Enabling Act and accepted by the Constitutional Convention renounced all claim of jurisdiction over such matters.

Therefore, in the present controversy, the proceedings in the appointment of a guardian for Jackson Barnett, were nothing more nor less than preliminary proceedings for the management and control of the restricted property of Jackson Barnett. Therefore this court had no jurisdiction over the controversy, its judgments could not be made binding upon the federal government, and in my view jurisdiction should not have been entertained; the action should have been dismissed for want of jurisdiction.

I shall not encumber the records with all the reasons which occur to me for entertaining this view. The express conditions, the mandatory terms of the Enabling Act, and acceptance thereof and obedience thereto by the Constitutional Convention, it seems to me, are sufficient basis for the views entertained.

I therefore dissent from the exercise of jurisdiction over the matters herein involved.