Williams v. First National Bank of Pauls Valley/Opinion of the Court
In addition to discussing the merits, the defendant in error presses upon our attention a motion to dismiss, in substance upon the ground that no question of a Federal nature is presented. As the plaintiffs in error had no greater right to prosecute the writ of error than is possessed by suitors generally when seeking the review of a final judgment of a state court (§ 20, enabling act, as amended, 34 Stat. at L. 1287, chap. 2911), it results that our power to review is controlled by Rev. Stat. § 709, U.S.C.omp. Stat. 1901, p. 575. Irrespective of other contentions, beyond peradventure a question of a Federal nature, however, was raised by the contention, denied by the state court, that a right or privilege existed under a statute of the United States to remove the cause into the circuit court of the United States, and the motion to dismiss cannot therefore prevail.

As to the denial of the right to remove.-The claim of plaintiffs in error is that the right to remove the cause into the circuit court of the United States arose from the fact that it was a suit arising under the Constitution and laws of the United States, and that the right existed by virtue of § 16 of the enabling act, as amended on March 4, 1907 (34 Stat. at L. 1286, chap. 2911), the pertinent portion of which is as follows:

'Sec. 16. That all civil causes, proceedings, and matters pending in the supreme or district courts of Oklahoma territory, or in the United States courts or United States court of appeals in the Indian territory, arising under the Constitution, laws, or treaties of the United States, or affecting ambassadors, ministers, or consuls of the United States, or of any other country or state, or of admiralty, or of maritime jurisdiction, or in which the United States may be a party, or between citizens of the same state, claiming lands under grants from different states; and all cases where there is a controversy between a citizen of either of said territories prior to admission and a citizen of any state, or between a citizen of any state and a citizen or subject of any foreign state or country, in which cases of diversity of citizenship there shall be more than two thousand dollars in controversy, exclusive of interest and costs, shall be transferred to the proper United States circuit or district court established by this act, for final disposition, and shall therein be proceeded with in the same manner as if originally brought therein: Provided, That said transfer shall not be made in any such case where the United States is not a party, except on application of one of the parties, in the court in which the cause is pending, at or before the second term of such court after the admission of said state, supported by oath, showing that the case is one which may be so transferred. The proceedings to effect such transfer, except as to time and parties, shall be the same as are now provided by law for the removal of causes from a state court to a circuit court of the United States.'

In the petition for removal it was alleged in support of the right to remove—

'That the said suit involves the construction of the treaties and laws and acts of Congress concerning the allotment of lands to the Choctaw and Chickasaw tribes of Indians under the act of Congress approved June 28, 1898 [30 Stat. at L. 495, chap. 517], and the act approved July 1, 1902 [32 Stat. at L. 641, chap. 1362], commonly known as the 'Atoka and the Supplemental agreements between the Choctaw and Chickasaw Tribes of Indians in the Indian Territory.'

'Petitioner shows that the controversy herein arises from the following facts:

'On February 4, 104, appellant executed a promissory note to the assignor of appellee for five thousand ($5,000) dollars, due in ninety (90) days, with interest at 8 per cent from date.

'That the consideration for said note was that the payee thereof should cease to prosecute further and abandon a certain contest then pending before the Commission to the Five Civilized Tribes, in which the payee was contestant and the appellant herein was contestee.

'That the appellee took said note with full knowledge of the facts as disclosed by its pleadings. Appellant, by demurrer and answer, claims that the consideration is contrary to the letter and spirit of the act of Congress of June 28, 1898, and of July 1, 1902; that it is not a legal, valid, or any consideration for the note.'

The contention that the cause of action arose under the Constitution or laws of the United States is plainly untenable. Recovery by the bank was in no wise predicated upon any right conferred upon it or its assignor to contract, as was done, and the fact that the makers of the note relied for their defense upon provisions contained in a certain statutes as establishing that the transaction upon which the right to recover was based was prohibited by law 'would only demonstrate that the suit could not be maintained at all, and not that the cause of action arose under the Constitution or laws of the United States.' Arkansas v. Kansas & T. Coal Co. 183 U.S. 185, 190, 46 L. ed. 144, 147, 22 Sup. Ct. Rep. 47.

As to the asserted Federal questions claimed to arise upon the rulings in respect to the overruling of the demurrer to the amended complaint and the sustaining of the demurrer to the amended answer and the admissions (either express or implied from the failure to deny) contained in the amended answer, we think the record established that Susan E. Mays and Jennie Lee Williams were members either of the Choctaw or Chickasaw tribe of Indians; that Mrs. Williams selected for allotment and filed upon 40 acres of land, upon which were improvements, situated adjacent to the town of Maysville, Indian territory. The right of Mrs. Williams to select the land being disputed by Susan E. Mays, she filed a contest against the same before the Commission to the Five Civilized Tribes. When this was done, Susan E. Mays was not in the occupancy of any other land liable to allotment. Pending the proceedings, by way of compromise, Susam E. Mays agreed to abandon the contest instituted by her, and relinquish her right to the allotment of the land in controversy and the improvements thereon, in consideration of the execution of the note in suit; that said note was executed for the benefit of the separate estate of Jennie Lee Williams, and was delivered to Susan E. Mays, who thereupon abandon the prosecution of her said contest before the Commission, and the allotment of the land to Mrs. Williams followed.

Compromises of disputed claims are favored by the courts (Hennessy v. Bacon, 137 U.S. 78, 34 L. ed. 605, 11 Sup. Ct. Rep. 17); and presumptively, the parties to the compromise in question possessed the right to thus adjust their differences. We come, then, to consider whether, as claimed, there was a want of consideration for the note because of an express or implied statutory prohibition against the transaction which formed the consideration for the note.

In the demurrer to the amended complaint, the claim advanced to defeat the right to recover on the note, which was substantially reiterated in the amended answer, was that, in truth, the sale was of the land, and was illegal because not made according to the method for acquiring allottable tribal land provided for in agreements between the government of the United States and the Choctaw and Chickasaw governments, and because controversies as to allotments of land over which the Dawes Commission had jurisdiction could alone be determined by that body. We do not pause to consider whether these general allegations constituted such a special setting up of a right, privilege, or immunity under a law or laws of the United States as is required by Rev. Stat. § 709. Considering the complaint and answer in their entirety, especially when viewed in the light of the allegations of the petition for removal, it clearly results, as stated in the petition for removal, that 'the consideration for the said note was that the payee thereof should cease to prosecute further and abandon a certain contest then pending before the Commission to the Five Civilized Tribes, in which the payee was contestant and the appellant herein was contestee.' In the argument at bar, while counsel has referred to statutory provisions and to various decisions which it is asserted establish that a sale by an Indian of part of an excessive holding of allottable tribal land or of improvements thereon would not be a valid consideration for a note given to evidence the price of such sale, we have been referred to no statute nor cited to any treaty or agreement made with the Indian Tribes giving rise even to the suggestion that where a bona fide contest existed between two Indians as to right to a tract or tracts of land, arising from a claim based upon selection, on the one hand, and, on the other, because of occupancy and improvements, it would be unlawful for the latter to abandon his contention as to his preferential right for a money consideration. Nor have we been referred to any statutory provision which, either expressly or impliedly, deprived the parties to a contest of their right to compromise simply because of the pendency of the contest before the Commission to the Five Civilized Tribes. An opinion of the United States court of appeals of the Indian territory, a tribunal which was specially competent to pass upon a question of the kind we are considering, lends support to the conclusion we have reached, that a member of either the Choctaw or Chickasaw tribe, when, as here, there is no showing that such a member was the holder of an excess of lands subject to allotment, was not prohibited at any time from selling his improvements upon tribal land, or abandoning his right to the possession thereof to another Indian. The opinion referred to was announced in the case of Thomason v. McLaughlin, 7 Ind. Terr. 1, 103 S. W. 595, in which case, among other questions, the court passed upon the validity of a sale of tribal land by one Indian to another after the enactment of the act of June 28, 1898, known as the Curtis bill (chap. 517, 30 Stat. at L. 495), wherein, in § 29, is embodied the so-called Atoka agreement. After referring to a provision in § 17 of the act, limiting the extent of an Indian's holding before allotment to the approximate share of the lands to which he and his wife and minor children were entitled, and making it a misdemeanor to retain the possession of an excess of such share after the expiration of nine months from the passage of the act, the court said (p. 9):

'Inasmuch as the sale in this case was made within the nine months' limit, this, of course, would not affect the validity of the sale, even though Lafon had been in possession of more land than that to which he was entitled. It is a well-known fact that many Indians, at the time of the passage of this act, were in possession of large tracts of improved lands, in excess of that to which they were entitled; and under the laws and customs of the different tribes at that time, this land was lawfully held. The nine month's provision was introduced into the Curtis bill for the purpose of giving them an opportunity of disposing of the excess, and thereby to get some renumeration for the improvements which they, by their labor and industry, had lawfully made upon the lands. And there is no provision in either of these sections, or anywhere else, that could be construed to deprive an Indian in this territory of the right to dispose of his holdings to another Indian, if he desired to do so, in order that he might select his allotment on other lands. The statute did not intend that an Indian should be compelled to take his allotment on the land then held by him. He could sell his improvements and holdings to another Indian for allotment, and lay his own on other land which he might find vacant, or which he might, in turn, purchase from another Indian. This method was adopted almost universally by the Indians, and it was not unlawful as between Indians. But to hold an excess of lands after the expiration of the nine months was unlawful and a crime.'

While the asserted Federal questions are not so wholly devoid of substance as to be purely frivolous, they are, nevertheless, without merit, and the judgment must be and it is affirmed. 

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