Petition for a Writ of Certiorari — United States v. Anglin & Stevenson

INDEX

Page

Opinions below- ----------. Sg era fone ar my ate uen > eet og Ser 1

Jurisdiction — ~~ — ~~ cae See ent A nel eae Mares Saes te 2

Question presented.- ae a ie ws wk Pre eny ae . 2

Statutes involved... ee ioe & s 2

Statement ___ é rica nya at 2

Reasons for granting the writ.....-.----------- Mae 11

Conelusion_ ~~~ ~~ ~~ - aces 2 oa smart er 19

Appendix... .... =a ‘ alee a are Ae eae 20

CITATIONS

Cases:

Caesar v. Burgess, 103 F. 2d 5038_— _ ~~ = ee ete 18

Century Insurance Co. v. First National Bank, 102 F. 2d

726, certiorari paved 308 U.S. 570 Beet at ee 15

Groves v. Sentell, 153 U. 8. 465 ee ES es 15

Guardian Life Ins. Co. v. Rosenbaum, 280 F ed. 861 : 16

Hamilton's Estate, In re, 96 Mont. 551, 33 P. 2d 258. ee 16

House v. United States, 144 F. 2d 555 etre Neer on 16

Minnesota v. United States, mage U. S. 382 11

Mott v. United States, 283 U.S. 747 keh elle ence = 16

New York Dock Co. v. Poznan, zn Tat TE ee a ae pee 15

Privett v. United States, 256 U.S. 201... -__-- X oa 13

Scott v. Beams, 122 F. 2d 777, certiorari denied, B15 U.S.

809___- ihe 7

Schwint’s E. state, In re, 183 Okla. by: 83 P. 2d 161. OE an aye oe 16

Sprague v. Ticonic Bank, 307 U. 8. 161__..--.----- ai ee 15

Trustees v. Greenough, 105 U. 8. a ; ae mee 15

United States v. Equitable Trust Co., 283 U S. 738. _- 13, 14,15

United States v. Ferry County, 24 F. Supp. 399 ESA — 17

United States v. Griffin, 303 VU. . Mes Phe R I At aca 16

United States v. Hellard, 322 U. 363. Se ter ene Eanes 11

United States v. Shaw, 309 U.S. pi [SS Ar eet en net ene 11,14

United States v. The Thekla, 266 U.S. 328 Serie Sar ie 14

United States v. United States Fidelity Co., 309 U.S. 506_ 11

Statutes:

Act of May 27, 1908, 35 Stat. 312, as amended April 12,

1926, 44 Stat. 239, and May 10, 1928, 45 Stat. 495:

2, See eee eee on a See On ERS va Rate ee 12, 15, 20

UN ae fe LS he hee ee a ee 12, 15, 18, 21

625099—45——-1

— -_

in

II

‘Statutes—Continued. Page

Act of June 14, 1918, 40 Stat. 606:

Sie tot Sgt SR SIU ier 4, Wn A ese oper eee 9, 21

Act of April 12, 1926, 44 Stat. 239:

ON, SS Se eae Ae an ae 9, 10, 12, 13, 17, 18, 22

Act of January 27, 1933, 47 Stat. 777:

Ry AEE Ne See ae PS oy RE i See ape eee 12, 15, 17, 24

NE ae eee cones Un es cee 25

Miscellaneous:

Cohen, Handbook of Federal Indian lin (1942), pp. 444-

re oe ee oe eal iit. cian he mgt ou a aie een ees id 17, 25

H. Rep. 322, 69th Cong., Ist sess_...........-.----.---- 13

5. tee. S87, GO Comes, Sat noes. 25-2. 5 ss 13

Si 8 ARAL LP OSTA IT LENNY PIAS A ET GINS TA a

Gnthe Supreme Court of the United States

OctoBrrR Term, 1944

No. 821

Unirep Starrs or AMERICA, PETITIONER

v.

ANGLIN & STEVENSON, ET AL,

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE TENTH

CIRCUIT

The Solicitor General, on behalf of the United

States, prays that a writ of certiorari issue to re-

view the judgment of the Uniited States Circuit

Court of Appeals for the Tenth Circuit, entered

in the above cause on October 6, 1944, affirming

the judgment of the United States District Court

for the Eastern District of Oklahoma, determin-

ing the amount of attorneys’ fees and expenses

in proceedings to establish the heirship of the re-

stricted estate of a deceased Indian of the Five

Civilized Tribes and fixing a lien or charge upon

the estate for the payment thereof.

OPINIONS BELOW

The District Court did not write an opinion.

Its views are set forth in its findings of fact and

(1)

si ak 00S pte i

aaa aE as

‘igen

sliaaneiy

2

conclusions of law (R. 52-74). The opinion of the

circuit court of appeals (R. 782-793) is not yet re-

ported.

JURISDICTION

The judgment of the Circuit Court of Appeals

was entered October 6, 1944 (R. 793). The juris-

diction of this Court is invoked under Section

240 (a) of the Judicial Code, as amended by the

Act of February 13, 1925.

QUESTION PRESENTED

Whether a federal district court may charge

the restricted distributive shares of Indian heirs

of a full-blood member of the Five Civilized

Tribes with the fees and expenses of attorneys

representing those heirs in proceedings to deter-

mine heirs, combined with suits to quiet title, in

which the United States has intervened after

removal from state courts under Section 3 of the

Act of April 12, 1926.

STATUTES INVOLVED

The material portions of Sections 1 and 9 of

the Act of May 27, 1908, 35 Stat. 312, as

amended; Section 3 of the Act of April 12, 1926,

44 Stat. 239, 240; and Sections 1 and 8 of the Act

of January 27, 1933, 47 Stat. 777, are set forth

in the appendix.

STATEMENT

Jackson Barnett, a full-blood Creek Indian of

the Five Civilized Tribes, died on or about May

3

29, 1934, intestate and with no surviving imme-

diate family. His estate consisted of real prop-

erty in Oklahoma and California and funds and

securities in the custody of the Secretary of the

Interior representing the proceeds of oil and gas

produced on the decedent’s restricted allotment.

The net value of the estate, according to the

records of the Superintendent for the Five

Civilized Tribes, was $1,235,724.72 (R. 52).

Upon Barnett’s death, proceedings for the

probate of his estate were begun in the County

Court of Muskogee County, Oklahoma. (R. 52.)

Two other actions in state district courts, one in

Muskogee County, Oklahoma, and the other in

McIntosh County, Oklahoma, to quiet title to cer-

tain lands included in the estate were also begun

by claimants to the heirship of the estate. (R.

92-53.) Notices of the pendency of these pro-

ceedings were served upon the Superintendent for

the Five Civilized Tribes, and they were removed

to the federal District Court at the instance of

the United States, all pursuant to the provisions

of Section 3 of the Act of April 12, 1926, infra,

pp. 22-24. There the three proceedings were con-

solidated. (R. 52-53.)

The United States, at the request of the See-

retary of the Interior and as guardian of Bar-

nett’s restricted Indian heirs, filed a petition of

intervention in the consolidated cause (R.53). It

alleged that Barnett’s estate consisted of re-

4

stricted real and personal property; that the Sec-

retary held in trust funds and securities belonging

to the Barnett estate; that many persons were

claiming to be Barnett’s heirs; and that the

United States was unable to determine who in

fact were his heirs. It prayed that all claimants

be required to appear and assert their claims or

be forever barred and that the court determine

Barnett’s true heirs and distribute his estate.

(R. 755-756, 759-765.) The probate proceed-

ings were remanded (R. 784-785), but pursuant to

the petition of intervention, an order was entered

for publication of notice requiring claimants to

appear in the proceeding to determine heirs or

be forever barred, and such notice was duly

published (R. 53).

Approximately 800 claimants in 50 different

groups intervened in the consolidated cause, each

group alleging that its members were nearest of

kin to and the heirs of Jackson Barnett. The

claimants in a group known as Group I employed

Anglin & Stevenson and Stone, Moon & Stewart,

law partnerships, to represent them in the pro-

ceedings, agreeing to pay them out of any re-

coveries fees ranging from 333% to 40%. The

claimants in a ‘Group IL” similarly employed

attorneys H. G. House, R. 8. Cate, H. B. Parris,

L. C. Lytle and George H. Jennings, provision

being made for a contingent fee of 33'4%. The

attorneys for this group, with their clients’ con-

sent, also employed, on a contingent basis, Hayes,

5

Richardson, Shartel, Gilliland & Jordan, a law

partnership, to assist in representing the group.

The claimants composing a certain ‘‘Group III’

likewise made an attorneys’ contract with the law

firm of Gibson, Maxey & Holleman and with at-

torneys Howell Parks and J. Garfield Buell, the

stipulated contingent fee in this instance being

00%. Their clients being impecunious, the at-

torneys for the three groups agreed to advance

the expenses of the litigation and the clients

agreed to reimburse them out of any recoveries.

(R. 53-55.) All claimants in these three groups

were full-blood Creek Indians or the heirs of

full-blood Creek Indians (R. 56).

Trial of the consolidated cause extended from

July 16, 1934 to June 1940. (R. 57.) Prior to

September 1937 the attorneys for each of the

three above-mentioned groups represented sepa-

rately the interests of their respective clients in

the litigation and combatted the claims of all of

the other numerous claimants. The three groups

became convinced that they were all relatives of

Barnett but were uncertain which of the groups

was the nearest of kin. Because of this situation

and because of the expense of combatting the

claims of the 47 other groups of claimants, which

none of the three groups was able to bear alone,

they entered into a so-called contract of family

settlement as of June 30, 1936. It was- agreed

that the three groups should unite their efforts,

6

cooperate in the prosecution of their respective

claims and in their defense against the claims of

other groups, and share expenses. It was fur-

ther agreed that in the event any person or per-

sons in any of the three groups should be ad-

judged the heir or heirs of Jackson Barnett, then

the estate or proportion thereof ‘Awarded to such

person or persons should be deemed to have been

awarded to all claimants in the three groups and

should be divided in the proportions of 509% to

Group IT, 25°, to Group II, and 25% to Group

IIT. (R. 58-59.) This contract was approved

by the various county courts of Oklahoma having

jurisdiction of the parties thereto who were

minors or incompetents, by the county court of

Muskogee County, Oklahoma, having jurisdiction

of Barnett’s estate, and, on September 2, 1937,

by the Secretary of the Interior. (R. 58-59.)

In January 1940 the District Court filed its

findings and conclusions that the members of

Groups I, If and IIT were Barnett’s nearest of

kin and were entitled to inherit his estate. The

deeree also provided that as to such of the heirs

as were restricted Indians the Secretary of the

Interior should retain their respective shares in

his custody for their use and benefit, ‘excepting

such sum or sums as this court may allow, fix and

determine as charges thereon and payable there-

from as costs, expenses, and attorney’s fees in

connection with this suit.’”’ (R. 61.) More than

7

350 adverse claimants appealed to the Circuit

Court of Appeals (R. 61), where the judgment

was affirmed. Scott v. Beams, 122 F. 2d 777

(C. C. A. 10). Certiorari was denied, 315 U.S.

809. Throughout the litigation the United States

was neutral as between the various claimants.

(R. 65-66.) The Secretary of the Interior ap-

proved the contract of family settlement without

prejudice to the rights of the claimants who were

not parties thereto (R. 64). In the appellate

court the United States in a brief memorandum

stated in substance that it was a stakeholder and

was neutral as to the claimants (R. 66).

In supplementary proceedings, the attorneys

for the suceessful claimants filed their petition

for attorneys’ fees and expenses (R. 3-16). The

petition alleged the attorneys employment by the

successful claimants (R. 5-7), the services per-

formed (R. 7-12), and the expenses incurred (R.

12-14). It also alleged (R. 14) that the United

States upon the express request of the Secretary

of the Interior had instituted the proceedings for

the determination of Barnett’s heirs and their

distributive shares of his estate, and that—

said Secretary of the Interior thereby in-

voked the jurisdiction of this court to ad-

judge and decree who were the heirs of

Jackson Barnett and to decree the distri-

bution of said estate, and this court there-

by obtained jurisdiction of the res of said

trust fund’ with power to determine the

625099—45-——2

ee

FARE BAe BOT KIT,

8

beneficial ownership and to decree the dis-

tribution thereof, and to allow and order

paid all reasonable costs and expenses, in-

cluding attorneys’ fees, necessary to the

proper presentation and the correct deter-

mination of said matters and to the preser-

vation of the rights of said heirs, and to

make said costs and expenses, including

attorneys’ fees, a charge upon the said

funds, and to order the same paid out of

said funds.

The petition also recounted the inability of the

attorneys’ clients to bear the expenses of the liti-

gation, the advancement of expenses by the at-

torneys, and the risk the attorneys took of

uncompensated loss of several years of

time and labor and the loss of all the money

that they advanced and paid in the prepa-

ration and trial of said cause.

The petition further alleged that the attorneys

should be allowed and paid their necessary ex-

penses and ‘ta fee equal to 33140 of the net

value of said recoveries,”” and that such = ex-

penses and fees should be made a charge upon the

funds and property recovered for the successful

claimants (R. 14-17).

The United States filed a motion to dismiss the

petition, alleging that the estate of Jackson Bar-

nett was restricted and under the supervision and

control of the Secretary of the Interior; that the

Secretary had never relinquished or transferred

9

his authority to the court; and that therefore the

court had no authority to administer the estate

(as distinguished from determining the rightful

heirs; see Section 1 of the Act of June 14, 1918,

40 Stat. 606, infra, pp. 21-22) and could not re-

quire payment therefrom of the attorneys’ fees and

expenses (R. 19-22). The petition came on for

preliminary hearing (R. 91-235), during. which

the court overruled the Government’s motion and

granted it leave to plead over (R. 179, 235).

Thereafter, the Government filed an answer and

response to the petition, repeating the allegations

of its motion to dismiss the petition CR. 23-37),

The attorneys filed a reply CR. 40-51) alleging

that the court had acquired jurisdiction to allow

the fees and expenses out of the funds and prop-

erties involved by reason of the provisions of

Section 3 of the Act of April 12, 1926, 44 Stat,

239 (infra, pp. 22-24), making provision for bind-

ing the United States to judgments in suits involv-

ing the restricted property of Indians of the Five

Civilized Tribes, and beeause the United States

had imtervened and invoked the court's jurisdic-

tion in the consolidated cause.

The petition fox attorneys’ fees and expenses

‘ame on for further hearing (R. 235-657). There-

after, the court filed its findings of fact and con-

clusions of law (R. 52-74). The findings recited

the history of the litigation and the extent of the

participation therein of the attorneys and of the

eter pcuereemaret see:

10

United States. In particular the court found

that the attorneys had attempted to negotiate an

agreement with the Secretary of the Interior for

the payment of their fees and expenses from the

funds and property in his custody but that the

Secretary had refused to negotiate unless they

would dismiss their petition for attorneys’ fees

and expenses with prejudice (R. 69); that the

attorneys had incurred expenses totalling $33,-

111.43 which were reasonable and necessary (R.

67-68); and that a fee of 25% of the net value

of Barnett’s estate constituted reasonable com-

pensation for their services (R. 69-70).

The court thereupon concluded in substance

that by reason of the intervention of the United

States the court aequired constructive possession

and therefore jurisdiction of the estate; that the

intervention of the United States was tantamount

to a removal of restrictions so that the court

might allow attorneys’ fees and expenses from

the estate; that the heirship proceedings were

removed to the federal court in conformity with

Section 3 of the Act of April 12, 1926 (infra,

pp. 22-24), which provides that ‘*the 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’’; that the

United States being bound by the decree, the

Secretary of the Interior as its agent was also

bound; that the existence of restrictions on the

et MEALS SEE RS EE EILEEN A ELLA ELE ILE LLIA LITE EO OO

11

estate did not restrain courts of equity from ap-

plying rules which experience had shown to be

essential to the adequate protection of the suc-

cessful claimants; that the court had jurisdiction

to fix attorneys’ fees and expenses and make

them a charge upon the estate; and that reason-

able attorneys’ fees were 25% of the net value

of the estate and petitioners were also entitled

to recover from the estate the amount of expenses

found to have been reasonably and necessarily

incurred by them. (R. 70-74.)

On June 23, 1943, the court entered its supple-

mental deeree, in which it determined the amount

of attorneys’ fees at 25% of the net value of

Jackson Barnett’s estate and the amount of ex-

penses at $33,561.63; made provision for the

division of the fees and expenses among the sue-

cessful attorneys; and provided that the fees and

expenses should be a charge upon and recovered

out of the portions of the estate recovered for the

respective successful claimants. (R. 83-89.) The

Circuit Court of Appeals affirmed (R. 793).

REASONS FOR GRANTING THE WRIT

1. In sanctioning a lien on restricted Indian

property for the payment of attorneys’ fees and

expenses, the decision below conflicts with de-

cisions of this Court such as Minnesota v. United

States, 305 U.S. 382; United States v. Shaw, 309

U. S. 495; United States v. United States Fi-

delity Co., 309 U.S. 506; and United States v.

aye Se ens |

aONigees

oy

12

Hellard, 322 U. S. 363, which hold that neither

the United States nor property in which it is

interested may be subjected to suit except in con-

formity with sovereign consent. Such consent

has, we believe, not been given with regard to

the matter in question here.

The court below found a waiver of sovereign

immunity in Section 3 of the Act of April 12,

1926, 44 Stat. 239 (infra, pp. 22-24), providing for

judgments binding the United States in federal

and state court suits in Oklahoma, involving Five

Tribes’ allotted lands or the proceeds thereof.

The court held that by that Section the District

Court was vested with full equitable jurisdiction

over the lands and proceeds here involved, under

the same principles as other property in cases

of the same variety, notwithstanding the fact that

this property is restricted by the Act of May 27,

1908, see. 1 (infra, pp. 20-21, extended May 10,

1928, sec. 1, 45 Stat. 495) ; the Act of May 27, 1908,

sec. 9, as amended April 12, 1926, (infra, p. 21,

extended May 10, 1928, sec. 2, 45 Stat. 495); and

the Act of January 27, 1933, see. 1, (infra, pp. 24-

25). The lien imposed by the court is, however,

an invasion of the restrictions, which Section 3 of

the 1926 Act evinces no purpose of Congress to

permit. That Section simply provides a method

of concluding the United States in litigation in-

volving Five Tribes’ allotted land or its proceeds,

in order to achieve the objective of promoting sta-

13

bility of titles through singleness of litigation.

It does not empower the courts to remove restric-

tions or otherwise alter the substantive law ap-

plicable to the property involved in such suits.

Hence the attempted liens are invalid. The stat-

ute is effective to preclude the United States, as

well as other parties, from questioning the dispo-

sition of the property involved; but it does not

warrant the conclusion that a charge may be

levied upon the property without the consent of

the Secretary of the Interior.

2. The Circuit Court of Appeals also held that

consent by the Secretary to the trial court’s ex-

ercise of full equitable powers over the property,

justifying the award of attorneys’ fees and the

lien, was implicit in the United States’ intervention

and participation in the proceedings, as was the case

in United States v. Equitable Trust Co., 283 U.S.

738. There it was held that by intervening and

participating in a suit by Barnett’s next friend to

recover funds which had been improperly released

from the custody of the Secretary of the Interior,

the United States had impliedly consented to the

* Section 3 of the 1926 Act was passed to offset, in the in-

terest of security of titles, the effect of such decisions as

Privett v. United States, 256 U. 8. 201, under which the

United States could bring suit with respect to Five Tribes’

allotted lands notwithstanding earlier litigation to which it

was not a party. The Section prevents “a new suit from

being instituted for and on behalf of a restricted Indian

thereafter by the Government.” H. Rep. 322, 69th Cong.,

Ist sess., p. 2. See also S. Rep. 317, 69th Cong., Ist sess.

14

allowance of attorneys’ fees and expenses from

the funds which were recovered. The Equitable

Trust Co. decision was based upon the previously

announced doctrine that the United States’ action

in joining in a suit implies its ‘‘acceptance of

whatever liability the courts may decide to be

reasonably incident to that act.’? United States

v. The Thekla, 266 U. S. 328, 341. Cf. United

States v. Shaw, 309 U. 8. 495, 502-503. This

court deemed it reasonably incident to the United

States’ intervention in that suit that it submit

to the ‘‘general rule in courts of equity that a

trust fund which has been recovered or preserved

through their intervention may be charged with

the costs and expenses, including reasonable at-

torney’s fees, incurred in that behalf’? (283 U.S.

744). It held that the restrictions did not pre-

vent this result because ‘‘we find no ground for

thinking they were intended to restrain courts of

equity when dealing with situations like that dis-

closed in this litigation from applying the rules

which experience has shown to be essential to the

adequate protection of a wronged cestui que trust,

such as Barnett was shown to be’? (id., p. 745).

In this case, unlike the Hquitable Trust Co.

case, there was no ‘“‘wronged cesta’ que trust,”

but, on the contrary, the United States through-

out the proceedings fully discharged its trust

obligations with respect to Barnett’s estate. It

intervened in order to aid the court to reach

15

a correct determination as to the heirs of Jackson

Barnett, lending its personnel and investigative

facilities for the purpose of discovering and in-

vestigating evidence to the end that the court

might be protected from imposition and perjury.

The Barnett heirship proceedings have in-

volved no recovery or preservation of trust prop-

erty within the general rule of equity invoked in

the Equitable Trust Co. case. Cf. Sprague v.

Ticonic Bank, 307 U.S. 161, 164-167; New York

Dock Co, v. Poznan, 274 U.S. 117, 121; Trustees

v. Greenough, 105 U. 8J527. The property here

was not in need of recgvery or preservation, but

has remained at all relevant times in the control

of the Secretary of the Interior. Act of May 27,

1908, secs. 1, 9, infra, pp. 20-21; Act of Jan. 27,

1933, sec. 1, infra, pp. 24-25. The attorneys’

services were not rendered, nor were their ex-_

penses incurred, in behalf of the estate but solely

in behalf of their clients.

No rule of equity permitted the allowance of

compensation for these services or reimbursement

for the attorneys’ expenses from the estate as

such. In interpleader proceedings, such as the

Government's petition is said to have “initiated”’

here (R. 53, 63), the rule is to the contrary and

counsel to a party interested in the fund are not

entitled to an allowance of fees. Groves v. Sentell,

153. U. S. 465, 485-486; Century Insurance Co. ¥-

First National Bank, 102 F. 2d 726 (C. C. A. 5),

16

certiorari denied, 308 U. 8. 570; Guardian Life

Ins. Co. v. Rosenbaum, 280 Fed. 861 (C. C. A. 3).

The rule is the same in respect to the administra-

tion of estates. In re Hamilton’s Estate, 96 Mont.

551, 33 P. 2d 258 (1934), and authorities cited.

Tn re Schwint’s Estate, 183 Okla. 489, 83 P. 2d

161 (1938), does not hold otherwise, for there

property was recovered for the estate.

Whether and to what extent the fees and ex-

penses should be paid from the shares of Bar-

nett’s estate recovered by the successful claim-

ants was a matter between attorneys and clhents—

clients who in this case were not free to contract

unaided with reference to the property in ques-

tion. House v. United States, 144 F. 2d 555, 561

(C. C. A. 10). Nothing in the present proceed-

ings themselves lends sanction to the departure

from the principles above stated, which is involved

in the holding of the court below that the attor-

neys’ fees and expenses were properly allowed as a

charge upon the property. The Government’s pe-

tition in intervention (R. 755-757), it is true,

prayed that the court, ‘‘distribute the estate’’ to

the rightful heirs of Jackson Barnet. This lan-

guage, however, cannot be taken to confer. juris-

diction upon the court by consent with respect

to the fees or to surrender the non-delegable duty

of the Secretary of the Interior with reference to

the property in question. See United States v.

Griffin, 303 U.S. 226, 229; Mott v. United States,

17

283 U. S. 747, 751; United States v. Ferry

County, 24 F. Supp. 399 (KE. D. Wash.). The

matter of fees, consequently, remains to be ad-

justed between the attorneys, their clients, and

the Secretary as the official with statutory juris-

diction over the property of Indian wards.

3. The decision below is at variance with the

requirement that the Secretary of the Interior

approve attorneys’ fees and expenses to be paid

from the restricted funds of Indians of the Five

‘ivilized Tribes, which follows from Section 1

of the Act of January 27, 1933 (infra, pp. 24-25)

and has been administratively observed. Cohen,

Handbook of Federal Indian Lew (1942) pp.

444-446. If the decision below should stand, at-

torneys whose fees and expenses are made pay-

able from restricted funds by court order will be

relieved of this requirement. The problem is of

great importance in the administration of the

property of members of the Five Tribes. On its

face, Section 3 of the Act of April 12, 1926, con-

fers full authority upon state courts as well as

federal, once the requisite notice of suit has been

served upon the Superintendent of the Tribes

and the United States has appeared or the statu-

tory period has elapsed. At present the United

States frequently does not deem it necessary to

appear; but it would become necessary for it to

do so in numerous additional cases in which

attorneys’ fees payable out of the property of

[seers

18

Indian wards (accompanied by liens which might

necessitate the sale of property) might eventu-

ate. In every such ‘case the court would be sub-

stituted for the Secretary of the Interior as the

protector of the Indians’ interests.

The court below, it is true, did not base its

decision wholly upon the words of the Act of

1926 but relied, in addition, upon the full equi-

table powers of the District Court to which the

proceedings were removed. These were invoked,

it was held, by the Government’s intervening

petition. The federal courts, however, have no

independent powers with respect to the adminis-

tration of estates or the determination of heir-

ship incidental to such administration (Caesar

v. Burgess, 103 F. 2d 503, 506 (C. C. A. 10)),

although actions to quiet title may at times in-

volve entire estates consisting of realty. Estates,

as such, do not come under the control of

federal courts. The powers of the District

Yourt here stemmed solely from Section 3. of

the Act of April 12, 1926 and from those of the

Oklahoma courts from whieh the several consoli-

dated actions were removed. ‘These include no

authority to allow counsel fees to a claimant to

heirship.” See supra, pp. 15-16. Any equitable

* The only power of an Oklahoma county court with re-

spect to the restricted property of heirs of an estate admin-

istered by it are bestowed by Section 9 of the Act of May 27,

1908, énfra, p. 21, which authorizes the court to approve con-

veyances of allotted lands by such heirs.

19

power to allow counsel fees that may have re-

sulted from the two suits to quiet title (supra, p.

3) are necessarily limited to the property in-

volved in those suits. The District Court’s action

was not so limited. It therefore exceeded both

its own powers and those of the State courts.

CONCLUSION

For the foregoing reasons, and particularly be-

cause of the importance of the question involved

in the administration of the restricted property

of members of the Five Civilized Tribes, it is

respectfully submitted that this petition for a

writ of certiorari should be granted.

CuHarLes Fany,

Solicitor General.

JANUARY 6, 1945