Shade v. Downing/Opinion of the Court
The Circuit Court of Appeals for the Tenth Circuit, acting under Judicial Code § 239, 28 U.S.C. § 346, 28 U.S.C.A. § 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 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.  Notice of the pendency of the present action was duly served upon the Superintendent and on hism otion 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, 25 U.S.C.A. §§ 375, 355,  vested in the Oklahoma courts jurisdiction to determine heirship of restricted Indian lands and to entertain proceedings to partition such lands.  See §§ 1 and 2. It is a jurisdictional statute only (see United States v. Hellard, 322 U.S. 363, 365, 64 S.Ct. 985, 986, 88 L.Ed. 1326) 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 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, 25 U.S.C.A. § 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, 25 U.S.C.A. § 502. 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 page 365 of 322 U.S., at page 986 of 64 S.Ct. 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.  The heirship proceeding 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.'  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,  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 pages 365, 366, of 322 U.S., at supra, 322 U.S. at pages 365, 366, 64 S.Ct., at pages 986, 987. We adhere to it.  Accordingly the question certified is answered 'No.'

So ordered.

Question answered.

Mr. Justice REED, Mr. Justice FRANKFURTER and Mr. Justice JACKSON would answer the question in the 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. 

Notes