Appendix — Armstrong v. Maple Leaf Apartments, Ltd.

Supreme Court, & §

FILED

i WIC

IN THE ee ROOAK, He

=

Supreme Court of the United States

OCTOBER TERM, 1980

NELLIE ATKINS ARMSTRONG,

Petitioner,

v.

MAPLE LEAF APARTMENTS, LTD., a limited partnership; e

BROKEN ARROW MALL, INC., a corporation;

OWEN D. YOUNG and ROBERT L. LATCH, d/b/a

YOUNG AND LATCH INVESTMENTS, a general partnership;

FIRSTUL MORTGAGE COMPANY, a corporation;

SACKMAN-GILLILAND CORPORATION, a corporation;

FIRST NATIONAL BANK AND TRUST COMPANY OF TULSA,

a national bank association; |

HAMILTON INVESTMENT TRUST, A Massachusetts

business trust;

ABERCROMBIE, PEDIGO AND SMITH, INC.,

and H. HAROLD BECKO,

Respondents.

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JAY C. BAKER

1850 South Boulder

Tulsa, Oklahoma 74119

C. RABON MARTIN

1726 South Cincinnati

Tulsa, Oklahoma 74119

Attorneys for Petitioner

THE PAUL M. HARROD COMPANY, BALTIMORE, MARYLAND 21234

INDEX

TABLE OF CONTENTS

Page

Armstrong v. Maple Leaf (10th Cir. 1979):

Decision Appealed From ............cccecceees A. 1

es OP Raw anc ena t's 0neee A. 18

Armstrong v. Maple Leaf, 436 F. Supp. 1125

i PTE. hes teceubadeescéaceseees A. 24

Judgment: Armstrong v. Maple Leaf, 436 F. Supp. 1125

ET Rel ace hae oes hee senses A. 72

Armstrong v. Maple Leaf, 508 F.2d 518

ae a knw ob ues eee s0eeeus A. 76

NE SEL CITES: ae OE A. 88

Order Denying Petition for Rehearing:

Armstrong v. Maple Leaf, 508 F. 2d 518.......... A. 89

Order Denying Petition for Rehearing:

Armstrong v. Maple Leaf (5/15/80).............. A. 91

Order Denying Petition for Writ of Mandamus,

Prohibition and Other Extraordinary Relief ....... A. 93

Findings of Fact and Conclusions of Law:

Denial of Preliminary Injunction................ A. 95

Order Denying Preliminary Injunction ............... A. 99

Order Denying Motion to Recuse .................. A. 100

Petition for a Writ of Mandamus, Prohibition and Other

A ee A. 104

Supplement to Petition for Extraordinary Relief ...... A.114

Affidavit of Harold M. Shultz, Jr................... A. 119

Letter of Harold M. Shultz ...................0058. A. 121

Act of July 22, 1790 (1 Stat. 137) ................. A. 124

Supplemental Creek Treaty (32 Stat. 137) ........... A. 124

Act of May 27, 1908 (35 Stat. 312) .............058. A. 126

Page

Act of June 14, 1918 (40 Stat. 606)................ A. 126

Act of April 12, 1926 (44 Stat. 239)................ A. 127

Act of January 27, 1933 (47 Stat. 777) .........006- A. 128

Act of June 26, 1936 (49 Stat. 1967)...........005- A. 129

Act of August 4, 1947 (61 Stat. 731).............4.. A. 130

NO.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

NELLIE ATKINS ARMSTRONG,

Petitioner,

v.

MAPLE LEAF APARTMENTS, LTD., a limited partnership;

BROKEN ARROW MALL, INC., a corporation;

OWEN D. YOUNG and ROBERT L. LATCH, d/b/a

YOUNG AND LATCH INVESTMENTS, a general partnership;

FIRSTUL MORTGAGE COMPANY, a corporation;

SACKMAN-GILLILAND CORPORATION, a corporation;

FIRST NATIONAL BANK AND TRUST COMPANY OF TULSA,

a national bank association;

HAMILTON INVESTMENT TRUST, A Massachusetts

business trust;

ABERCROMBIE, PEDIGO AND SMITH, INC.,

and H. HAROLD BECKO,

Respondents.

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

5-17-79 77-1680

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

SLIP OPINION

A. 2

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 77-1680

NELLIE ATKINS ARMSTRONG,

Plaintiff-Appellant,

Vv.

MAPLE LEAF APARTMENTS, LTD., a

limited partnership; BROKEN ARROW

MALL, INC., a corporation; OWEN D.

YOUNG and ROBERT L. LATCH, d/b/a

YOUNG & LATCH INVESTMENTS, a

general partnership; FIRSTTUL MORT- ) Appeal From

GAGE COMPANY, a corporation; ) the United

SACKMAN-GILLILAND CORPORATION, _ ) States District

a corporation; FIRST NATIONAL BANK & ) For The

i ee ae a ee ee a

TRUST COMPANY OF TULSA, ) Northern

OKLAHOMA, a national banking association; ) District of

HAMILTON INVESTMENT TRUST, a ) Oklahoma

Massachusetts business trust: ABER- ) (D.C. No.

CROMBIE, PEDIGO & SMITH, INC., and ) 74-C-119)

H. HAROLD BECKO,

Defendants-Appellees,

RUSKIN F. ARMSTRONG, husband

of Nellie Atkins Armstrong;

MANUEL BROWN, and C.A. WHITEBOOK,

Third Party Defendants-Appellees,

CREEK NATION OF OKLAHOMA,

UNITED STATES OF AMERICA,

Amici Curiae.

Ne Nee eee eee ee Se”

A. 3

Jay C. Baker, of Baker, Baker & Martin, Tulsa Oklahoma

(C. Rabon Martin, Tulsa, Oklahoma, with him on the Brief),

for Appellant.

William B. Jones, of Jones, Givens, Brett, Gotcher, Doyle &

Bogan, Tulsa, Oklahoma (Philip J. Eller, Tulsa, Oklahoma with

him on the Frief), for Appellees, Maple Leaf Apartments, Ltd.,

Broken Arrow Mall, Inc., Owen D. Young and Robert L. Latch,

d/b/a Young & Latch Investments, Hamilton Investment

Trust, and H. Harold Becko.

Douglas L. Inhofe, of Conner, Winters, Ballaine, Barry &

McGowen, Tulsa, Oklahoma (Royce H. Savage, Tulsa, Oklahoma,

with him on the Brief), for Appellees, Firsttul Mortgage

Company, Sackman-Gilliland Corporation, and The First

National Bank & Trust Company of Tulsa, Oklahoma.

Robert H. Tips and Theodore P. Gibson, of Farmer, Woolsey,

Tips & Gibson Incorporated, Tulsa, Oklahoma, on the Brief

for Appellee, Abercrombie, Pedigo & Smith, Inc.

Philip W. Perryman, Tulsa, Oklahoma (John H. Charloe, Tulsa,

Oklahoma, on the Brief), for Amicus Curiae, Creek Nation of

Oklahoma.

James W. Moorman, Assistant Attorney General, Jacques B.

Gelin, and Robert L. Klarquist, Attorneys, Department of

Justice, on the Brief for Amicus Curiae, United States of

America.

Before SETH, Chief Judge, HOLLOWAY and McKAY, Circuit

Judges. ‘

SETH, Chief Judge.

' A. 4

(Filed May 17, 1979)

This is an action to quiet title and to cancel deed brought

by the plaintiff who alleges that she is a Creek Indian of the

half blood; that she conveyed the tract of land in question by

warranty deed to H. Harold Becko in December 1965; and that

this deed was not approved by a County Court of Oklahoma as

required by the Act of Congress of August 4, 1947 (61 Stat.

732).

The trial court found for the defendants who were the

subsequent grantors and those holding under them.

The plaintiff has taken this appeal. A preliminary aspect

of this case was before this court and the opinion rendered

thereon appears at 508 f.2d 518 (10th Cir.). The case was

there remanded to the trial court.

The action so filed by plaintiff sought to cancel the

original deed from her and subsequent deeds; to quiet title,

and to eject those holding under the original grantor. Under the

Oklahoma decisions this is an action in equity and equitable

relief is sought. See Clovis v. Clovis, 460 P.2d 878 (Okl.);

King v. Oakley, 434 P.2d 868 (Okl.). The plaintiff’s principal

cause appears to be the cancellation of the series of deeds from

her to the original grantor, and those deeds to subsequent

grantees. The basic attack is on the deed she originally delivered

to Mr. Becko.

Some extended review of the facts, the sequence of events,

and statutory changes is necessary. The larger tract, of which

the land in question is a part, was a surplus allotment in 1903

to Billy Atkins, and he had received a deed from the Muskogee

Creek Nation. In 1908, Congress by the Act of May 27, 1908,

restricted the alienation of this land.

Billy Atkins died in 1929 possessed of the tract. He was an

enrolled, full-blood Creek Indian, and left surviving three

children born to himself and his non-Indian wife who had

predeceased him.

A. 5

Each of the three children, Creeks of the half-blood,

thus inherited an undivided one-third interest in the 120-acre

tract. Their inheritance was confirmed by court proceedings

after extended litigation in the state courts.

Upon the death of Billy Atkins, the restrictions on the

land terminated automatically by operation of law, and the

children took free of any restrictions on the land whatever,

and, of course, they were free of any restrictions on them-

selves as individuals.

In 1944, the plaintiff and her two brothers exchanged

deeds with the intention that the undivided interest would

be eliminated and each would have the entire interest in a

forty-acre tract. The land in issue is part of the forty-acre

tract in which the plaintiff had an interest and to which she

was deeded the undivided thirds of her two brothers.

Thus after the exchange of deeds, the plaintiff held the

land in fee simple absolute. She was not under the General

Allotment Act (22 U.S.C. §331), she was as an individual

under no restrictions whatever nor did she suffer any legal

disability, and obviously was not a ward of the Government.

The land itself was under no restrictions whatever by the

Government, nor would the proceeds of sale be restricted or

limited in any way. The Jand was in this status until the

effective date of the Act of August 4, 1947, and, of course,

the above described status of the plaintiff continues until the

present time.

The Act of August 4, 1947, related to the land only, and

did place restrictions on it in the hands of the plaintiff. This

Act was 621 Stat. 731 and entitled “An ‘Act Relative to

Restrictions Applicable to Indians of the Five Civilized Tribes

of Oklahoma.” The restrictions imposed by the Act of 1947

applied only to lands received by inheritance. Thus the

restriction was on:

A. 6

“. . .[A]ny interest in land acquired before

or after the date of this Act by an Indian heir or

devisee of one-half or more Indian blood when such

interest in land was restricted in the hands of the

person from whom such Indian heir or devisee

acquired same... .”’

This is the Act relied on by the plaintiff as no effort was made

to secure the approval of the county court of the deed from

plaintiff to Becko.

The restriction imposed by this Act of August 4, 1947,

pertains only to the particular type of land above described

and was:

“I[N]o conveyance [of such lands] shall be

valid unless approved. . . by the county court of the

county in Oklahoma in which the land is situated. . . .”

Thus the interest of plaintiff in the lands in question was at

least in part of the category described in the 1947 Act to

require the conveyance thereof to be approved by the county

court to be “valid.” This Act of August 4, 1947, was not

included in the United States Code. It was not generally known

among attorneys in Oklahoma, according to the finding by the

trial court.

The record also shows that the plaintiff was educated in

the public schools and that she and her husband at one time had

a small business. They planned to use part of the purchase price

of the tract in question to acquire or build a new house in the

same community, and this they did.

The plaintiff was represented by an attorney, Mr. F.A.

Petrik, practicing in Broken Arrow at the time she and her

brothers exchanged deeds and before. Apparently, he prepared

the deeds for the exchange and testified he had represented the

plaintiff since about 1938. He continued to represent her in

the protracted dealing with prospective purchasers of the land

and with the ultimate purchaser.

A. 7

As mentioned, the plaintiff and her husband were planning

to use a portion of the purchase price from the sale of the

property in question to buy a place also in Broken Arrow for

a new home. They contracted to buy this property for about

$29,000.00 from Mr. Amos Beaver, a full-blood Creek, who

had inherited it. They entered into this contract two days

before they delivered the deed here concerned to Mr. Becko.

In this contract with Mr. Amos Beaver was a requirement by

the buyer that his conveyance to plaintiff be approved by the

county court, and it was subsequently so approved. The peti-

tion for approval and the notices were drafted and signed

by Mr. F.A. Petrik as attorney. This was, of course, in 1965,

long after the repeal by the 1947 Act of sections 1 and 8 of the

1933 Act. The county court acted under the Act of August 4,

1947, with which we are here concerned. Mr. F.A. Petrik

testified that he had handled a number of petitions for county

court approval between 1947 and 1965. He testified further

that, as to the Beaver purchase, he discussed with the plaintiff

and her husband the fact that the deed would have to be

approved and there would have to be these court proceedings.

The record also shows that on July 28, 1944, Mr. Petrik

wrote to the attorney for the Indian agency at Muskogee about

the estate of Billy Atkins. He recited in this letter that he had

prepared deeds for the three heirs to exchange to accomplish

a.partition, and the deeds had been executed. Mr. Petrik

reéeived in July a reply to his inquiry from Mr. Robertson, the

Probate Attorney at the agency. In this reply the attorney told

him that the three heirs were half-bloods, that there was an

heirship decree finding that they were the heirs. He also

expressed the opinion that there were no restrictions. It is thus

clear that Mr. Petrik was advised that the heirs were Creeks

of the half blood. This was, of course, before the 1947 Act,

The record also shows that the abstract prepared by the

plaintiff for the sale in question showed that plaintiff was a

half-blood Creek. The determination of heirship in 1934 and

the related litigation also showed this.

A. 8

Attorney Petrik represented the plaintiff and her husband

during the extended negotiations on the series of options for

the sale of the property in question. A brief description of these

events would seem to be necessary.

In 1964, the plaintiff and her husband, after negotiations,

gave an option to buy the property to Liles and Barry for a

purchase price of $100,000.00 $2,000.00 was paid for the

option which was for a period of six months with the right to

renew for a like period for $2,000.00 additional. The option

was so renewed, but expired in November of 1965. During this

option, the’ optionees sought, with plaintiff's cooperation,

annexation of the land to the City of Broken Arrow, sought,

again with plaintiff's participation and signature on the two

petitions, to have the property rezoned by the city and brought

suit to have it accomplished. The optionees kept plaintiff

advised of progress of these efforts, and were at no time advised

by plaintiff or Mr. Petrik that this would should not continue

or that they were in any way dissatisfied. Liles and Barry sold

their interest in the option on October 5, 1965, to defendant

Becko and so advised plaintiff and her husband.

% Mr. Becko did not exercise the option, as above mentioned.

and instead started negotiations with plaintiff for a new option.

His first proposal was rejected because plaintiff wanted a higher

price. A second proposal was made by Becko, and it resulted in

the execution of a new option agreement. The price was to be

$107,500.00, the option term was for thirty days, the payments

of the purchase price were to be over a period of fourteen

months. Before the plaintiff and her husband executed this

option, they sought and received tax advice from a CPA and

from the Field Solicitor of the Bureau of Indian Affairs. They

also, of course, received legal advice from Mr. Petrik.

The option was exercised by defendant Becko, the parties

met in Mr. Petrik’s office and closed the sale. The general

warranty deed was delivered to Mr. Becko and he made the

payment then due, and gave two notes for the balance secured

by a mortgage. Mr. Becko in December of 1966 did not pay a

A. 9

note then due which represented part of the purchase price

and so defaulted. He defaulted also as to the next payment, but

no action was taken by plaintiff. Plaintiff was aware of her right

to foreclose, as the trial court found. In January 1967, Mr.

Becko tendered the total amount due and asked for a release of

mortgage. The plaintiff demanded an additional $4,500.00 for

such a release, and this was paid.

In 1968, plaintiff and her husband turned over possession

of the land to defendant Becko. This was about a year and

one-half after they had delivered the deed to Mr. Becko. They

had by then bought land from Mr. Beaver in Broken Arrow, as

above described, and built a house on it.

The detendant, Broken Arrow Mall, Inc., bought the land

from Mr. Becko in December 1971, and later planned construc-

tion of apartments. The corporation received a loan of

something over a million dollars on the property for this

construction. A portion of the tract was also sold to Young &

Latch. The buyers and the lenders had the abstracts examined,

and none of the title opinions questioned the December 1965

deed to Becko.

In 1973 Maple Leaf Apartments commenced construction

of some 116 units. These for the most part were leased and

occupied at trial. The other purchasers, Young & Latch, began

building the Maple Leaf Shopping Center in 1973, with a

construction loan later converted to permanent financing. This

construction was almost completed and leased by October

1973. Also Young & Latch had hired a contractor and had

begun excavation for an eighty-five apartment development at

the time of suit.

The plaintiff and her husband lived in Broken Arrow and

saw the construction in progress on the tract they had sold to

Becko and were fully aware of the work being done and the

expenditures being made thereon. There is no issue as to this

knowledge of the extensive development on this land costing

something over a million dollars. Also the trial court found as a

A. 10

fact that plaintiff never changed her mind about the sale to

Becko until suit was filed.

The plaintiff thus testified that she had seen on many

occasions the shopping center being constructed and leased,

the apartments being built and also leased, and the start of

construction on the new eighty-five unit apartment group.

Neither the plaintiff nor her attorney at any time before filing

this suit made known that they were dissatisfied nor that they

asserted any claim. Plaintiff thus remained silent while the

development was constructed and completed. The shopping

center was formally opened about four months before the

suit, and the apartments were completed and leased two or

three months before this suit.

The trial court found as a fact that the purchase price paid

to the plaintiff by Becko was more than the then reasonable

value of the land. This finding is amply supported by the

testimony of the appraisers.

The plaintiff asserts that the 1947 Act applies to this

transaction, and obviously it does. In the option agreement

between plaintiff and the buyer Becko, she was to convey

merchantable title. To do this she had to comply with the

1947 Act as she had required of the seller in the Amos Beaver

purchase. It was her obligation to meet the contract require-

ments, and thereby, among the many other things, to comply

with the 1947 Act with which she and her attorney were

apparently familiar.

Thus, if plaintiff knew she was to deliver or was delivering

an “invalid” deed, she had a duty, if the transaction was in

good faith, to advise the buyer of her inability to perform the

contract. It was the seller’s duty to reveal that she could not

perform under the contract, that she was unable to deliver a

valid deed, as she now asserts. It is not a title defect or a cloud

on the title, which frequently occurrs, which can be accepted

or waived by acceptance of the title as shown by an abstract.

It is instead a fundamental matter relating to seller’s ability

A. 11

to perform, to deliver title at all, or title to a substantial

- undivided interest. It is obvious that the buyer, after the

abstract had been examined, knew that the plaintiff was a

Creek Indian and that the property had been inherited; never-

theless he was not aware of seller’s inability, as she now

contends, to deliver a valid deed. It makes no difference for

these purposes whether this was a fact or legal matter.

The parties have presented the issue as to the nature of

plaintiff’s title under th 1947 Act, after the exchange of deeds

with her brothers. As mentioned above, there were no restric-

tions on the interests in the hands of plaintiff or her brothers

as these had expired on their father’s death. The two-thirds

interest she acquired from her brothers was not restricted “in

the hands of the person from whom [plaintiff] acquired same.”

See Act of August 4, 1947, § 1(a). There is no issue present as

to a change in restrictions by a partition as there were then no

restrictions. After the title was acquired by plaintiff, the 1947

Act sought to impose restrictions not theretofore present on

certain kinds of estates, basically estates of inheritance, not of

purchase. The inquiry then is whether the title in plaintiff

comes within the description of interest sought to be covered

by the Act.

In Boyd v. Weer, 253 Pac. 988 (Okl.), the State Supreme

Court considered a situation where two Creek Indian brothers

who had inherited undivided interest exchanged quit-clairn

deeds. The court held that each of the heirs after the exchange

of deeds held their interest acquired by the exchange as an

estate acquired by purchase. We hold that these cases are

determinative of the issue and thus the plaintiff took one-third

of the land by inheritance of the type covered by the Act of

1947 and two-thirds by purchase and thus not covered by the

Act. We must again emphasize that exchange of deeds, the

“partition” in no way affected a then present restriction, but

the consequence was that her original interest was acquired by

inheritance and the two-thirds was by purchase from her

brothers. Congress in 1947 only intended to reach interests

acquired by inheritance; the wording is clear.

A. 12

In our prior opinion we considered a preliminary

injunction against proceedings in the Oklahoma County Court.

The question was whether the county court could, at this late

date grant approval to the deed in question under the 1947

Act over the objection of the plaintiff. The trial court denied

the preliminary injunction and we reversed, holding that the

county court proceeding could not continue over plaintiff's

objections.

We agree with the application of the doctrine of laches

to the claim of the plaintiff as made by the trial court, and

agree with the analysis of the law as made by that court as to

laches.

As the authorities clearly demonstrate, the Indians of the

Five Civilized Tribes have been dealt with by Congress separately

and differently from other Indians. Thus the decisions which

concern Indians who are under the General Allotment Act

(25 U.S.C.A. §331) are not helpful nor are they applicable.

The Field Solicitor so testified in this action. See Semple,

Oklahoma Indian Land Titles, Annot., § 730.

Mr. W.F. Semple made a statement and answered questions

on May 2, 1947, during the House hearings on H.R. 3173 which

became the Act of August 4, 1947. He had then been practicing

law in the Choctaw area of Oklahoma for some forty years. He

there stated that the Act under consideration was to stabilize

titles of the Five Civilized Tribes. He referred to the 1933 Act

and the confusion arising there from restrictions on half blood

and the full blood, and the distinctions between tax exempt

and other lands. Mr. Semple was a Choctaw Indian, he was

attorney for the Tribe, was also or had been Chief of the Tribe,

as were his grandfather and great-grandfather. Congressman

Stigler also made a statement at the same hearing. He said in

part, after referring to the confused state of Indian titles:

“The whole purpose of this bill is to stabilize and settle once

and for all, all those questions of doubt which now exist... .”

Congressman Stigler was an enrolled Choctaw and had practiced

law, specializing in Indian land titles since 1920.

A. 13

Thus we must apply the 1947 Act so as to attain its

purpose, and also apply the act of 1926, hereinafter further

considered, to accomplish the same end insofar as it is possible.

It would not seem necessary to describe at length the

elements of laches as we described the doctrine in Socony

Mobile Oil Co. v. Continental Oil Co., 335 F.2d 438 (10th Cir.),

and in Alexander v. Phillips Petroleum Co., 130 F.2d 593

(10th Cir.). The text books further describe the elements.

As to the time period used in the application of the doctrine

of laches, it is, of course, of secondary importance. The court

in the proper case applies laches although the period of time

may be much shorter than provided in a statute. See Pomeroy,

Equity Jurisprudence §419b. It is sufficient to say that all the

elements for the application of the doctrine of laches are

present. We thus agree with the trial court that the delay of over

eight years with knowledge of the facts and law and with

reliance by defendants on the deed, the creation of substantial

improvements, and the detriment by reason of the delay are

more than sufficient to require the application of the doctrine.

By the Act of April 12, 1926, §2, 44 Stat. §240,

Congress made the Oklahoma state statutes of limitation

applicable to Indians of the Five Civilized Tribes. It expressly

so placed them in the same position as “. . . any other citizen

of the State of Oklahoma, and may be pleaded in bar of any

action brought by or on behalf of any such Indian, his or her

heirs or grantees, either in his own behalf or by the Government

of the United States, or by any other party. .. .” The Act

was so applied by this court in Wolfe v. Phillips, 172 F.2d

481 (10th Cir.), and there the holding is that the law of the

state is applicable. The law of the state is applied whatever it

may be from time to time. Congress left the period of time

under the statute entirely up to the state and set none itself

nor did it adopt any time period. See also Seitz v. Jones, 370

P.2d 300 (OkI.). It is obvious that Congress considered it

necessary to place these persons on the same footing as

non-Indians in Oklahoma to require the prompt assertion of

claims and filing of causes of action. Periods of limitation

A. 14

are of long standing as a practical and necessary device to

require, regardless of what may be the equities of the situa-

tion, that persons make known, and take formal action to assert

claims or rights they may have. It is also apparent that the

doctrine of laches follows a parallel course, but with greater

emphasis on the defendant’s position, and without the require-

ment of the passage of a specified time. Thus we hold that the

Act of 1947 in its application of Oklahoma law of limitations

also included the Oklahoma doctrine of laches as it applied

to all citizens. The two matters are not separable and for

Congress to accomplish its purpose, both limitations and

laches must be applied.

We have held on several occasions that the construction

of a federal statute is a matter of federal law. Johnson v. United

States, 64 F.2d 674 (10th Cir.); Jefferson v. Gypsy Oil Co.,

27 F.2d 304 (8th Cir.).

The Oklahoma state statutes of limitation are applicable

not as part of the federal law but as state law. The parallel

doctrine of laches in Oklahoma is to be derived also from the

consequences of the federal act, and should be applied by the

federal courts also as part of the state law rather than as federal

law. Thus Congress directed the application of Oklahoma

statutes of limitation as they may exist from time to time and

as applicable to non-Indians. The parallel doctrine of laches

also is applicable in the same way, as we have above set forth.

The Act of 1926 is not unique as Congress passed a similar

Act in 1902 (Act of May 31, 1902, 32 Stat. 284). This Act was

applied in Beaver v. Cowan, 230 Pac. 251 (OkI.), where the

court applied the limitations in section 4471 of Mansfield’s

Digest of the Statutes of Arkansas. This Act of 1902 applied

to all Indians.

Also Congress made certain Oklahoma statutes relating to

guardianships applicable to members of the Five Civilized Tribes.

Of these statutes the Court in Stewart v. Keyes, 295 U.S. 403,

said: “These laws remained state laws, as before, and as such

A. 15

were to be applied to these Indians.” The Court held that

whether procedures complied with the guardianship laws was

a matter of state law, not federal law. The Court there also

considered a portion of the Act of 1926.

Thus the application of state laws to Indians of the Five

Civilized Tribes is not unusual and state laws have been applied

in a number of cases by the federal and state courts, in addition

to those herein cited. The purpose of Congress in enacting the

Act of 1926 is clear as the necessity to require the prompt

litigation of claims relating to real estate had become

apparent. The statutes of limitation are for the most part

arbitrary in their application. Laches is the comparable device

to prevent the assertion of stale claims in equitable proceedings.

See Alexander v. Phillips Petroleum Co., 130 F.2d 593 (10th

Cir.), and Hoehn v. Crews, 144 F.2d 665 (10th Cir.). The

consequences of the two are basically the same. Laches is

strictly a matter of defense and is not and cannot be used to

affirmatively establish a claim. It is strictly a defensive

measure to meet a situation where the moving party is

advancing an inequitable claim. It cannot really be disassociated

from the statutes of limitation in its purposes and consequences.

It must be held that Congress also intended this doctrine to be

included within the Act relating to limitations.

The equitable modification or variation applied to statutes

of limitation is illustrated in Holmberg v. Armbrecht, 327 U.S.

392, where the Court applied equitable principles to the appli-

cation of state statutes of limitation. This decision obviously

relates to federally created rights of action, but the reasoning

is persuasive here.

We find nothing in the decisions of the courts of Oklahoma

which would prevent or cast doubt on the application of

laches to the circumstances before us. The parties have treated

at length the several state decisions.

A. 16

Of the several cases urged by appellant on this point of

laches, only Hampton v. Ewert, 22 F.2d 81 (8th Cir.), and

Haymond v. Scheer, 543 P.2d 541 (OkI.), treated the issue of

laches and neither concerned a member of the Five Civilized

Tribes. The plaintiff relies also on Smith v. Williams, 190

Pac. 555 (Okl.), but this decision was handed down in 1920

and hence before the Act of 1926.

As we have indicated above the result or consequences of

the application of statutes of limitation on the transactions of

the type with which we are here concerned is no different from

the application of the doctrine of laches. The arguments of

appellant relating to the consequences thus apply equally to

the statutes of limitation and have been already answered by

Congress.

On the matter of laches, we must again refer to the

purchase by plaintiff and her husband of the land from Amos

Beaver, a Creek Indian, for a new house. The contract was

entered into about two days before the deed was delivered

by plaintiff to Becko. There may have been some confusion

as to the application of the 1933 Act to half bloods and full

bloods, but the contract with Amos Beaver required that the

deed from him to the plaintiff be approved by the county

court. It was so approved and the petition and proceedings

were handled by plaintiff's attorney, Mr. Petrik. These contract

requirements were discussed by him with the plaintiff.

The plaintiff also urges that the Supplemental Creek

Treaty is involved if laches are applied. However, any restrictions

on the application of estoppel have long since expired and we

must conclude that the treaty is in no way involved.

The judgment of the trial court is affirmed as to all relief

granted defendants insofar as such relief pertains to the two-

thirds interest in the subject property which the plaintiff

acquired from her brothers, but so affirmed for the reasons

A. 17

hereinabove set forth. The judgment of the trial court is

affirmed, again for the reasons herein set forth, as to the one-

third interest plaintiff acquired from her father, but only

insofar as it directs the dismissal of plaintiff's complaint, and

not as to affirmative relief granted to defendants.

A. 18

No. 77-1680 - NELLIE ATKINS ARMSTRONG, Plaintiff-

Appellant, vs). MAPLE LEAF APARTMENTS, LTD..,et

al., Defendants-Appellees.

McKAY, CIRCUIT JUDGE, dissenting:

I question our conclusion that two thirds of the appellant’s

interest in the land had been acquired by purchase, rather than

by inheritance. On this point, Oklahoma law is determinative.

While Oklahoma case law is not absolutely free from ambiguity,

I believe it takes a view inconsistent with that of today’s

opinion.

Oklahoma cases have clearly held that a partition among

cotenants does not amount to a change in title, but merely

adjusts the rights of possession. Jn re Estate of Mullendore,

297 P.2d 1094, 1096 (Okla. 1956) (per curiam). It does not

transform an inherited estate into one of purchase. Jn re

Moran’s Estate, 174 Okla. 507, 51 P.2d 277, 279 (1935) (per

curiam). The rule is the same regarding the partition of

restricted Indian lands. Jn re Pryor’s Estate, 199 Okla. 17,

181 P.2d 979, 984-85, cert. denied, 332 U.S. 816 (1947).

Whatever ambiguity may be said to exist in this area stems

from two decisions of apparently contrary implication. Our

analysis in United States v. Hale, 51 F.2d 629 (10th Cir. 1931)

is inconsistent with the above stated rule, but that analysis was

criticized as contrary to Oklahoma law in Jn re Pryor’s Estate,

199 Okla. 17, 181 P. 2d 979, 984, cert. denied, 332 U.S. 816

(1947).

The case of Boyd v. Weer, 124 Okla. 91, 253 P. 988

(1926) (per curiam) also appears to be in conflict with the

inheritance rule. In that case the court regarded an exchange of

undivided interests between Indian cotenants as a sale. But

the court’s analysis was influenced by the fact that the

exchange occurred prior to the Act of Congress of June 14,

1918 - - an Act providing for the partition of restricted Indian

lands. The court was of the view that such a partition was

A. 19

unavailable prior to the enactment. 253 P. at 990. Boyd is

therefore distinguishable from Oklahoma cases following the

general rule. More to the point, it is distinguishable from Jn re

Pryor’s Estate, a case applying the general rule to a post -1918

partition of Indian lands.

In addition to dissenting on the acquisition by purchase

issue, I wish to express my concern: about engrafting the

doctrine of laches onto the Act of August 4, 1947. While I

have no doubt about the correctness of our equitable evaluation,

I am not certain the statute we are dealing with leaves room

for such equitable considerations.

In the Act of August 4, 1947, Congress provided that

no conveyance, including an oil and gas or mineral

lease, of any interest in land acquired before or after

the date of this Act by an Indian heir or devisee of

one-half or more Indian blood, when such interest

in land was restricted in the hands of the person from

whom such Indian heir or devisee acquired same,

shall be valid unless approved in open court by the

county court of the county in Oklahoma in which

the land is situated... .

Pub. L. No. 80-336, §1, 61 Stat. 731 (emphasis added). The

words seem to be absolute: “no conveyance... shall be valid

unless approved in open court.” The effect of today’s decision

is to make just such a conveyance valid.

The majority finds support for its invocation of laches in

the Act of April 12, 1926, Pub. L. No. 69-98, 44 Stat. 239. It

is true that Congress, in Section 2 of that Act; made Oklahoma

limitations statutes applicable to the Civilized Tribes. In an

appropriate case, such a statute would be assertable to bar an

Indian’s claim that an unapproved transfer is invalid. But such

a result has been legislated by Congress. Today’s rule has been

promulgated by this court. .

A. 20

The majority suggests that the same Congressional. purpose

behind applying limitations statutes to the Civilized Tribes

supports invocation of the doctrine of laches in this case. It is

true, of course, that both laches and limitations statutes seek

to bar stale claims. What the majority does not stress is the

difference between the two in terms of which stale claims each

is designed to bar. Limitations statutes are focused on the mere

passage of time. By contrast, the doctrine of laches focuses on

the effect of time’s passage. Not much time need pass to

justify the doctrine’s invocation. What is essential to laches is

that the plaintiff's failure to assert his rights has caused

prejudice to the defendant and that equity now disfavors the

plaintiff. In essence, a balancing of equitites is called for. The

doctrine of laches thus has conceptual underpinnings quite

different from those of a limitations statute. I therefore do not

think it is correct to suggest that by merely authorizing applica-

tion of limitations statutes, Congress intended that the doctrine

of laches would be invoked as well.!

Even if laches and limitations statutes could be said to

have the same conceptual underpinnings, I would be hesitant

to agree that this court should adopt what amounts to an

amendment of the 1926 Act. Had Congress desired to permit

equitable defenses to be raised against Indian assertions of

transfer invalidity it surely could have done so. A Congression-

al intent to permit such defenses is, at best, rather obliquely

suggested in the 1926 Act. Absent such an expression of intent,

I do not think we have the authority to fashion today’s remedy.

'The majority opinion emphasizes the title stabilizing purpose of

the 1947 Act. It seems to me, however, that invocation of the laches

doctrine could have a destabilizing effect on title, inviting, as it would,

litigation over titles that would be avoided by strict adherence to the

requirement that alienation can occur only with court approval. Laches

can only be determined in a court battle. Until the battle’s outcome is

clear, the title will not be.

A. 21

Aside from these more technical considerations, I am

troubled by the implications of our decision. It is beyond

question that Congress imposed alienation restrictions on

Indian lands to protect those Indians who might otherwise

lose their property through disadvantageous real estate trans-

actions. E.g., 1 Hearings on H.R. 3173 Before the Subcomm.

on Indian Affairs of the House Comm. on Public Lands, 80th

Cong., Ist Sess. 43 (May 2, 1947) (statement of Rep. Albert).

In the face of considerable contrary authority,? we have opened

2The majority refers to no judicial authority supportive of its

position. In contrast, several cases have expressed hostility to equitable

evasions of alienation restrictions. E.g., Hampton v. Ewert, 22 F.2d 81,

92 (8th Cir. 1927), cert. denied, 276 U.S. 623 (1928); Haymond v. Scheer,

542 P.2d 541, 545 (Okla. 1975); Naharkey v. Sand Springs Homes, 177

Okla. 371, 59 P.2d 289, 292-93, cert. denied, 299 U.S. 588 (1936);

Scott v. Dawson, 175 Okla. 550, 53 P.2d 538 (1936); Smith v. Williams,

78 Okla. 297, 190 P. 555 (1920).

Perhaps the most articulate rejection of such equitable exceptions

appeared in Smith v. Williams, 78 Okla. 297, 190 P. 555, 557 (1920):

The right on the part of an Indian to alienate his land, and the

right on the part of any person to purchase such land and to

acquire valid title thereto is peculairly and strictly a statutory

right created by acts of Congress, and which right is not

possibly available except through the means which Congress

has prescribed, for Congress has expressly said that any

attempt to acquire such rights, except through the means

prescribed by Congress, shall be absolutely null and void.

Therefore title to restricted Indian land cannot be acquired

from the allottee upon equitable grounds.

While Smith involved the consideration of an alienation restriction

provision antedating that of the 1947 Act, its rationale remains relevant.

The right to alienate Indian lands remains one of Congressional origin.

The majority distinguishes Smith because it was decided prior to

the statute of limitations provision of the 1926 Act, suggesting that

Oklahoma courts would no longer take this approach. Because I believe

Congress has not provided for assertion of equitable defenses in the 1926

A. 22

the door to equitable avoidances of these Congressionally

imposed protections. In doing so, I fear that we may be

frustrating Congressional purposes and endangering Indian lands.

While the equities of this particular case are not in favor of the

plaintiff,? it does not require much creativity to imagine a

scenario in which the equities are extremely close but where the

trial court has made a judgment against an Indian. We might

then be barred by the clearly erroneous test from reaching

another result. When this occurs, the damage Congress sought

to avoid by imposing alienation restrictions will have been done.

(Footnote 2 continued:)

Act, I do not believe the Oklahoma courts, any more than this court, have

authority to so provide on their own contrary to the statute. In any event,

I note that principles similar to those of Smith have recently been upheld

in an Oklahoma decision dealing with non-Civilized Tribes. Haymond v.

Scheer, 543 P.2d 541, 545 (Okla. 1975). Furthermore, Smith itself has

been cited in a post-1926 decision for the proposition that estoppel

principles cannot be employed to validate a conveaynce otherwise invalid

for violation of alienation restrictions. Scott v. Dawson, 175 Okla. 550,

53 P.2d 538, 541-42 (1936).

3It is not disputed that plaintiff received a fair price for the land,

that she had legal counsel in connection with the sale, and that she had

some awareness at the time of sale that Indian land transactions can

require court approval. In addition, the defendants have invested con-

siderable sums of money in the lands obtained from the plaintiff. There is

no question that the return of the lands to the plaintiff would result in

great economic losses to defendants. Without minimizing the harshness

of the result, I wish to point out that the result is not without parallel

in the law. Courts countenance similar occurrences by allowing infants to

be relieved from contractual obligations. £.g., Burnand v. Irigoyen, 30 Cal.

2d 861, 186 P.2d 417 (1947); Doenges-Long Motors, Inc. v. Gillen, 138

Colo. 31, 328 P.2d 1077 (1958) (en banc).

A. 23

Today’s opinion upholds a transfer to title that is void

under the Act of August 4, 1947. The opinion is troublesome

because it transforms the near-absolute protection’ of the Act

into a protection dependent on the potential effervescence of

equitable balancing. Because I question our authority to make

this transformation, and because the transformation seems to

be inconsistent with the purpose of the alienation restrictions,

I respectfully dissent.

* Application of limitations statutes admittedly makes the protection

less than absolute.

A. 24

ARMSTRONG v. MAPLE LEAF APARTMENTS, LTD.

Cite as 436 F. Supp. 1125 (1977)

HEKKKEEKEEE

Nellie Atkins ARMSTRONG, Plaintiff,

v.

MAPLE LEAF APARTMENTS, LTD., a

limited partnership, Broken Arrow’s

Mall, Inc., a corporation, Owen D.

Young and Robert L. Latch, d/b/a

Young & Latch Investments, a general

partnership, Firstul Mortgage Company,

a corporation, Sackman-Gilliand Corporation,

a corporation, First National Bank & Trust

Company of Tulsa, Oklahoma, a Banking

Association, Hamilton Investment Trust,

a Massachusetts Business Trust, and,

H. Harold Becko, Defendants.

No. 74-C-119

United States District Court,

N.D. Oklahoma.

Aug. 2, 1977.

KKKKKAKA LE

[1128] Jay C. Baker, C. Rabon Martin, Baker, Baker &

Martin, Tulsa, Okla., for Nellie Atkins Armstrong, plaintiff.

William Jones and Philip J. Eller, Jones, Givens, Brett,

Gotcher, Doyle & Bogan, Inc., Tulsa, Okl., William H. Mattoon,

Norman, Okl., James D. Groves, James R. Ryan, James L.

A. 25

Kincaid, Douglas L. Inhofe, Royce H. Savage, Dan A. Rogers

and Charles A. Whitebook, Tulsa, Okl., for Maple Leaf

Apartments et al., defendants.

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

BARROW, Chief Judge

On February 22, 1974, the plaintiff instituted the subject

action in this Court seeking to quiet title to real property

situated in Tulsa County, Oklahoma, to cancel a deed thereto

given by her under date of December 3, 1965, to cancel all

instruments of conveyance and encumbrance executed and

recorded since her deed of December 3, 1965, and for eject-

ment of the defendants in possession of the subject real

property. The plaintiff predicated her right to the relief sought

upon the Act of Congress of August 4, 1947, 61 Stat. 731,

wherein a conveyance by a member of the Five Civilized Tribes

of one-half (4%) blood or more covering real property inherited

or devised to such member by one in whose hands such real

property was restricted against alienation is réquired to be

approved by the County Court of the County in which the

real property is situated as a condition precedent to the validity

of such conveyance. Subsequent to the filing of this action and

prior to the joinder of issues on the merits between the parties

herein, the defendant Becko instituted proceedings in the

Probate Division of the District Court of Tulsa County, Okla-

homa (formerly the County Court of Tulsa County, Oklahoma)

in which he sought to have the plaintiff's deed of December 3,

1965 approved. Following institution of such approval pro-

ceedings, the plaintiff filed in this cause her motion for a

preliminary injunction seeking to enjoin the defendants from

continuation of the approval proceedings in State Court. There-

after and before the issues were joined by the parties on the

merits of this cause, hearings were held on plaintiff's Motion

for Preliminary Injunction and evidence introduced by plaintiff

in support thereof. The defendants introduced no evidence at

such hearings. Thereafter, on April 19, 1974, this Court entered

A. 26

its Order herein denying plaintiff's Motion for Preliminary

Injunction. The plaintiff thereupon appealed the Order denying

preliminary injunction to the United States Court of Appeals,

Tenth Circuit (Case No. 74-1286). On December 12, 1974, the

Court of Appeals, in a divided opinion, found that the evidence

introduced by the plaintiff at the preliminary injunction hearing

was sufficient to show a probable right in the plaintiff to the

relief sought in this cause and a probable danger that irreparable

injury would result to the plaintiff if the preliminary injunction

was not granted. Accordingly, the judgment of this Court on

the matter of the preliminary injunction was reversed and the

cause remanded. Armstrong v. Maple Leaf Apartments, Ltd.,

et al., 508 F.2d 518 (10th Cir. 1974). This Court thereupon

issued its Preliminary Injunction in accordance with such

Circuit Court opinion. Thereafter, the defendants filed their

respective answers and counterclaims seeking to quiet their

respective titles in and to the subject real property as against

the plaintiff and her husband and the issues were joined upon

the merits of this cause.

[1129] On the Ist day of June, 1977, the above styled

and numbered cause came on for trial before the undersigned

Chief United States District Judge for the Northern District

of Oklahoma. The plaintiff introduced her evidence and rested.

The defendants introduced their evidence and, at the con-

clusion thereof, moved this Court to amend their pleadings to

conform to the evidence, which motion was granted. The

defendants thereupon rested. At the conclusion of the trial, on

June 6, 1977, and following arguments of counsel for the

parties, the Court took this case under advisement. The Court,

having examined all pleadings on file herein, having given due

consideration to the testimony of witnesses and litigants sworn

and examined in open court, their demeanor, intelligence,

knowledge and credibility, and due consideration to all other

evidence introduced in this cause by the parties hereto, having

given due consideration to the arguments of counsel and the

authorities submitted by the parties herein, makes the following

findings of fact and conclusions of law.

A. 27

FINDINGS OF FACT

1. It is significant to note that the evidence presented

and the issues raised in the trial on the merits of this cause

materi “ly and substantially differ from the evidence and issues

that were before this Court and the Circuit Court of Appeals

in connection with the preliminary injunction proceedings

heretofore conducted in this cause.

2. This is an action in which the plaintiff seeks to

quiet title against the defendants to the following described

real property situated in Tulsa County, State of Oklahoma,

to-wit:

Lots One (1), Two (2) and Three (3), Block One (1),

and Lots One (1) and Two (2), Block Two (2), Maple.

Leaf Addition, an Addition to the City of Broken

Arrow, Tulsa County, State of Oklahoma, according

to the recorded plat thereof,

together with all improvements thereon and rights and

appurtenances thereunto belonging. In this action, the plaintiff

seeks further to void and cancel that certain General Warranty

Deed dated December 3, 1965, made, executed and delivered

by the plaintiff and her husband, Ruskin Armstrong, to the

defendant H. Harold Becko covering the above described real

property and premises. The plaintiff likewise seeks in this action

to recover possession of the above described real property

together with all improvements thereon. The defendant Maple

Leaf Apartments, Ltd., by Counterclaim, seeks to quiet its

title in and to Lot One (1), Block Two (2) of said Maple Leaf

Addition as against the plaintiff and her said husband, said

defendant having acquired its title thereto by’ mesne convey-

ances from the defendant H. Harold Becko. The defendants

Owen D. Young and Robert L. Latch, d/b/a Young & Latch

Investments, a general partnership, by Counterclaim seek to

quiet their title to the remainder of the said Maple Leaf Addi-

tion against the plaintiff and her husband, the latter defendants

having likewise acquired their title by mesne conveyances from

A. 28

the defendant H. Harold Becko. At the time of the conveyance

of December 3, 1965 by plaintiff and her husbana to the

defendant H. Harold Becko, the above described real property

was not platted and was, in fact, conveyed by metes and bounds.

(Defendants’ Exhibit No. 6).

3. The plaintiff predicates her right to quiet title to the

subject real property and to possession thereof and to cancella-

tion of the deed of December 3, 1965 upon the Act of Congress

of August 4, 1947. It is the contention of the plaintiff that

under the terms of the Act of August 4, 1947, the subject real

property became restricted against alienation by the plaintiff;

that any deed of conveyance thereto by her must be approved

by the County Court of Tulsa County, Oklahoma, which

approval has not been obtained; that accordingly, the deed

of conveyance of December 3, 1965 to the defendant H. Harold

Becko is invalid and vested no title in him in and to the subject

real property. It is the contention of the defendants that the

Act of August 4, 1947 as applied to the facts and circumstances

of this case is unconstitutional and that, in any [1130] event,

such Act creates no more than a rebuttable presumption of

incompetency and overreaching, which presumption defendants

contend has been clearly rebutted by the evidence introduced

in this cause. The defendants further contend that the plaintiff

is guilty of laches in asserting her claim to title and possession

of the subject property and that the plaintiff comes into equity

seeking quiet title and cancellation of deed with unclean hands

and is therefore not entitled to such equitable relief.

4. The subject real property is a part of the surplus

allotment of one Billy Atkins who was duly enrolled March 13,

1902 on the rolls of the Creek Nation, Five Civilized Tribes,

opposite Roll No. 826, as a full-blood Creek Indian (Plaintiff's

Exhibit No. 2). On May 6, 1903, the said Billy Atkins was

allotted as his surplus allotment, by deed issued by the Musko-

gee Creek Nation, the following described real property, to-wit:

A. 29

The East Half of the Northwest Quarter (E/2 NW/4)

and the Southwest Quarter of the Northwest Quarter

(SW/4 NW/4) of Section 14, Township 18 North,

Range 14 East of the Indian Base & Meridian, in

Indian Territory, cozntaining one hundred twenty

(120) acres, more or less, according to the United

States survey thereof. (Plaintiff's Exhibit No. 1)

That upon admission of Oklahoma to statehood, such real

property became a part of Tulsa County, State of Oklahoma.

5. On April 24, 1929, the said Billy Atkins died

intestate in Wagoner County, Oklahoma, seized and possessed

of his above described surplus allotment. (TR. 112 and Plain-

tiffs Exhibit No. 6). The Estate of Billy Atkins was probated

in Wagoner County, Oklahoma. (TR. 25 and Plaintiff’s Exhibit

No. 6) At the time of his death, Billy Atkins was a resident of

Wagoner County, Oklahoma, which county had been his prin-

cipal residency during his lifetime. (TR. 24) At no time during

the lifetime of the plaintiff did Billy Atkins reside on any part

of his above described surplus allotment. (TR. 24 & 37)

6. At the time of Billy Atkins’ death, April 24, 1929,

he left surviving as his sole and only heirs-at-law three (3)

children, namely, the plaintiff herein, Nellie Atkins Armstrong,

her brother Legus Atkins, and her brother Eddie Atkins. (TR.

12-13 and Plaintiff’s Exhibit No. 6) Said heirs were half-blood

Creek Indians and inherited an undivided one-third (1/3)

interest each in and to the above-described surplus allotment

of Billy Atkins. (TR. 86 & 13 and Plaintiff's Exhibit No. 6)

7. On June 27, 1944, the plaintiff and her brother,

Eddie Atkins, joined by their respective spouses, conveyed by

Quit-Claim Deed to Legus Atkins the following described

portion of the foregoing surplus allotment of Billy Atkins:

A. 30

The East Half of the West Half of the Northwest

Quarter (E/2 W/2 NW/4) of Section 14, Township

18 North, Range 14 East, Tulsa County, Oklahoma.

(Plaintiff’s Exhibit No. 3)

On the same date, June 27, 1944, the plaintiff and her brother, .

Legus Atkins, joined by their respective spouses, conveyed by

Quit-Claim Deed to Eddie Atkins the following described

portion of the foregoing surplus allotment of Billy Atkins:

The West Half of the West Half of the Northwest

Quarter (W/2 W/2 NW/4) of Section 14, Township

18 North, Range 14 East, Tulsa County, Oklahoma.

(Plaintiff’s Exhibit No. 5)

On the same date, June 27, 1944, Legus Atkins and Eddie

Atkins, joined by their respective spouses, conveyed by Quit-

Claim, Deed to the plaintiff herein the following described

portion of the foregoing surplus allotment of Billy Atkins:

The Southeast Quarter of the Northwest Quarter

(SE/4 NW/4) of Section 14, Township 18 North,

Range 14 East, Tulsa County, Oklahoma. (Plaintiff’s

Exhibit No. 4)

The real property which is the subject of this action is a part

of the latter described real property acquired by the plaintiff,

one-third (1/3) by inheritance from her father, Billy Atkins,

and the remaining two-thirds (2/3) by virtue of the latter

described Quit-Claim Deed (Plaintiff's Exhibit No. 4) from

Legus Atkins and Eddie Atkins and their respective spouses.

[1131] 8. On November 18, 1964, the plaintiff, Nellie

Armstrong, and her husband, Ruskin Armstrong, as “Optionor”’,

made, executed and delievered to one Dale A. Liles and one

James W. Barry, as “Optionees’”’, an exclusive option and

privilege to purchase for a total purchase price of One Hundred

A. 31

Thousand and No/100 Dollars ($100,000.00), the subject real

property, together with all improvements thereon and appurte-

nances thereto belonging. (Defendants’ Exhibit No. 3) The

plaintiff was paid the sum of Two Thousand and No/100

Dollars ($2,000.00) as consideration for the granting of this

option. (TR. 46 & 453 and Defendants’ Exhibit No. 3) The

option consideration was not to be applied against the pur-

chase price in the event of the exercise of the option by the

Optionees (TR. 57-58 & 453 & 465 and Defendants’ Exhibit

No. 3) The Option was for a term of six (6) months, to expire

on May 18, 1965, but contained a provision for renewal of the

option for an additional term of six (6) months upon the

payment by the Optionees to the plaintiff of an additional

sum of Two Thousand and No/100 Dollars ($2,000.00).

(Defendants’ Exhibit No. 3) On May !7, 1965, the Optionees

did, in fact, renew the option for an additional term of six (6)

months, and did, in fact, pay to the plaintiff and her husband

the required sum of Two Thousand and No/100 Dollars

($2,000.00) for such renewal. (Defendants’ Exhibit No. 1)

The latter sum likewise was not to be credited against the

$100,000.00 purchase price in the event of the exercise of

the option (TR. 57-58 & 465 and Defendants’ Exhibits Nos.

1, 2 and 3) This option, by its own terms, would have expired

on November 18, 1965 unless exercised. This option was not

exercised and expired on November 18, 1965 and the plaintiff

retained the $4,000.00 option consideration paid.

Negotiations resulting in this option agreement of

November 18, 1964 were initiated in the fall of 1964 when the

plaintiff and her husband advised the Optionee, James W. Barry,

that they were interested in selling the real property which is

the subject of this lawsuit, in order that they might buy a new

home. (TR. 443-445) The original offer by the Optionee,

James W. Barry, for the subject real property was the sum of

$50,000.00 and negotiations proceeded in increments of

$10,000.00 until the final purchase price of $100,000.00 con-

tained in the option agreement was, in fact, agreed to. (TR.

449-451) In the negotiation and execution of the option

A. 32

agreement of November 18, 1964, the plaintiff was represented

by Mr. F.A. Petrik, attorney at law, of Broken Arrow, Okla-

homa. (TR. 45-46 & 203-204) Mr. Petrik has been a practicing

attorney in Tulsa County, Oklahoma since 1935 and had been

the attorney for the plaintiff and her husband since 1938

(TR. 203)

During the term of the option agreement of November 18,

1964, the Optionees spent several thousands of dollars in

obtaining annexation of the property to the City of Broken

Arrow, Oklahoma, in preparing and processing through four

public hearings two (2) rezoning applications with the Planning

Commission and City Commission of the City of Broken

Arrow, Oklahoma, and in preparing and filing a District Court

suit to rezone such property when the zoning was denied by

the City, in negotiating for financing of improvements on the

subject real property, in obtaining feasibility studies for the

subject real property, and in negotiating leases with prospective

tenants of improvements to be placed on the subject property.

(TR. 468) The annexation petition, the two rezoning applica-

tions and the District Court rezoning petition were each signed

by the plaintiff and her husband. (TR. 457-461) The plaintiff

and her husband were kept advised currently by the Optionees

of the progress of the annexation, zoning, financing and leasing

of the optioned real property. (TR. 463) At no time did the

plaintiff or her husband or their attorney, F.A. Petrik, request

or demand termination of the option agreement of

November 18, 1964, or express to the Optionees any dissatis-

faction therewith. (TR. 468)

On October 5, 1965, the interest of the Optionees in the

option agreement of November 18, 1964 was purchased by the

de-[1132]fendant H. Harold Becko (TR. 179) Immediately

after the purchase of the option by defendant Becko, the

plaintiff and her husband were advised thereof (TR. 180-181)

9. The defendant H. Harold Becko did not exercise

the option of November 18, 1964 which he had purchased

from Liles and Barry because of knowledge that the plaintiff

A. 33 -

and her husband were not going to permit the exercise of such

option without the payment of additional money or without

litigation in the event enforcement of the option agreement was

sought. (TR. 185) In lieu thereof, the defendant Becko sub-

mitted to the plaintiff and her attorney, F.A. Petrik, a proposed

new option agreement calling for the same total purchase

price of $100,000.00, but payable in fourteen (14) months in

lieu of five (5) years. (Defendants’ Exhibit No. 4 and TR. 181-

182) The plaintiff refused to accept the proposed new option

(Defendants’ Exhibit No. 4) because the plaintiff wanted more

money for the land. (TR. 182)

Following rejection of the original proposed new option

agreement of defendant Becko, a second new option agreement

on mutually satisfactory terms was, in fact, negotiated between

the plaintiff and her husband, as “Optionors”, and the

defendant H. Harold Becko, as “Optionee”, which final option

agreement was duly executed and acknowledged by the parties

thereto on November 12, 1965. (TR. 182-184 and Defendants’

Exhibit No. 5) The latter option agreement covered the real

property which is the subject of this lawssuit (Defendants’

Exhibit No. 5) and was for a term of thirty (30) days. (TR.

184 and Defendants’ Exhibit No. 5) The executed option agree-

ment of November 12, 1965 materially differed from the

former Barry and Liles option of November 18, 1964 in the

following respects:

(a) The Becko option agreement increased the

total purchase price to be paid the plaintiff from

$100,000.00 to $107,500.00; and,

(b) The Becko option was for a term of thirty (30)

days with no renewal provisions, while the Barry and

Liles option was for a term of six (6) months with a

six (6) months’ renewal provisions; and,

(c) The Becko option required the payment of the

purchase price in two (2) payments over a period of

A. 34

fourteen (14) months, while the Barry and Liles

option provided for five (5) payments over a period

of five (5) years; and,

(d) The Becko option agreement permitted the

plaintiff to retain possession of the improvements

on the optioned property until development, whereas

the Barry and Liles option did not.

(TR. 184-185 & 478 & 65-66 and Defendants’ Exhibits Nos.

3 and 5}

During the negotiation of the executed option agreement

of November 12, 1965 with defendant Becko and prior to its

execution, the plaintiff and her husband received tax counsel

and advice with regard thereto from a certified public account-

ant (TR. 86) and from the Field Solicitor of the Bureau of

Indian Affairs. (TR. 440-441 and Defendants’ Exhibit No. 34)

Also, during the negotiation and execution of such option

agreement, the plaintiff and her husband received legal counsel

and advice from their attorney, F.A. Petrik. (TR. 61 & 474

481)

On December 3, 1965, the defendant H. Harold Becko

exercised his aforesaid option of November 12, 1965 and the

parties to the latter option agreement met in the office of

F.A. Petrik in Broken Arrow, Oklahoma and concluded the

Contract of Sale resulting from the exercise of the option.

(TR. 481-482 & 186) At the time and place of closing, the

plaintiff and her husband duly executed, acknowledged and

delivered to the defendant H. Harold Becko, a General

Warranty Deed to the real property which is the subject of this

lawsuit; said General Warranty Deed being dated December 3,

1965 and duly acknowledged said date before F.A. Petrik.

(Defendants’ Exhibit No. 6 and TR. 482 &70-71) At the same

time and place, the defendant Becko paid to the plaintiff,

pursuant to the terms of the option agreement and resulting

Contract of Sale the sum of Twenty-nine Thousand and

No/100 Dollars ($29,000.00) and duly exe-[1133]cuted and

A. 35

delivered to the plaintiff two (2) promissory notes of even

date, one such note being in the principal sum of Thirty-five

Thousand Five Hundred and No/100 Dollars ($35,500.00)

having a final maturity date of December 19, 1966 (Defendants’

Exhibit No. 29), and one note in the principal sum of Forty-

three Thousand and No/100 Dollars ($43,000.00) having a

final maturity date of January 19, 1967 (Defendants’ Exhibit

No. 30). At the same time and place, the defendant Becko

made, executed and delivered to the plaintiff a Real Estate

Mortgage to secure said promissory notes. (Defendants’ Exhibit

No. 17 and TR. 71 & 482 & 189) The peaceable and voluntary

possession of the subject real property was delivered by the

plaintiff and her husband to the defendant Becko approxi-

mately one and one-half (1%) years following delivery by

plaintiff to defendant Becko of the deed thereto. (TR. 190)

10. The execution and delivery of the option agreement

of November 12, 1965 by the plaintiff and her husband to the

defendant H. Harold Becko, and the execution, acknowledge-

ment and delivery of the General Warranty Deed of December 3,

1965 by the plaintiff and her husband to the defendant Becko

were each the free and voluntary acts of the plaintiff and her

husband, Ruskin Armstrong.

11. At the time of the negotiation, execution and

delivery to the defendant H. Harold Becko of the option agree-

ment of November 12, 1965, and at the time of the execution

and delivery to the defendant Becko of the General Warranty

Deed of December 3, 1965, the plaintiff was forty-five (45)

years of age (TR. 10), had received a formal education in the

Public Schools of the City of Tulsa, Oklahoma, had owned

and operated a business with her husband, had negotiated the

purchase and sale of several tracts of real property, and had

negotiated several loan and other business transactions. (TR.

26 & 50 & 436)

12. The proceeds of the sale of the subject real property

by plaintiff to defendant H. Harold Becko were used by the

plaintiff to pay debts, to build and furnish a quality residence,

A. 36

and to purchase a farm in Wagoner County, Oklahoma. (TR.

76-77 & 82 and Defendants’ Exhibit No. 26)

13. On December 1, 1965, and two (2) days prior to the

closing of the reai estate sales transaction with defendant

H. Harold Becko and delivery to him of a General Warranty

Deed to the real property which is the subject of this action, the

plaintiff and her husband contracted to purchase the real

property on which the plaintiff's quality home was erected

from one Amos Beaver; that Amos Beaver was a Creek Indian,

and the contract of purchase specifically provided that the

deed to be given by Amos Beaver to the plaintiff and her hus-

band was subject to the approval of the Department of Interior,

Office of Indian Affairs, and the County Court of Tulsa

County, Oklahoma; that pursuant to said agreement, Amos

Beaver and Stella Beaver, his wife, made, executed and delivered

to the plaintiff and her husband a General Warranty Deed on

said December 1, 1965, two (2) days prior to plaintiff's deed

to defendant Becko (Defendants’ Exhibit No. 25); that said

proceedings for approval of such deed were, in fact, conducted

in the County Court of Tulsa County, Oklahoma, and the

attorney preparing and processing such approval proceedings

was, in fact, the plaintiff's attorney, F.A. Petrik. (Defendants’

Exhibit No. 25)

14. Since 1938, Mr. F.A. Petrik of Broken Arrow,

Oklahoma served as the attorney for the plaintiff and her

husband. (TR. 76 & 203) Mr. Petrik is and was an experienced

title and probate attorney. (TR. 223) Mr. Petrik served as the

plaintiff's and her husband’s counsel in the exchange of

Quit-Claim Deeds between the plaintiff and her two brothers,

in the negotiation, preparation, approval and execution of the

Becko option agreement of November 12, 1965, as well as the

former Barry and Liles option agreement of November 18,

1964. Likewise, Mr. Petrik represented the plaintiff at the

closing of the real estate sales transaction between the plaintiff

and defendant H. Harold Becko culminating in the execution

and delivery by the plaintiff and her hus-[1134]band to

defendant Becko of the General Warranty Deed of December 3,

A. 37

1965 covering the subject real property. (TR. 203-204 & 219-

220 & 45-46 & 61 & 474-482 & 186) Contrary to the testimony

given at the preliminary injunction hearing in this matter in

April, 1974 and the implications therefrom, Mr. Petrick did, in

fact, know that the plaintiff was a one-half (%) blood Creek

Indian who had inherited the subject real property from her

full-blood father, Billy Atkins (TR. 220-222 and Defendants’

Exhibits Nos. 31 and 32) and Mr. Petrik had, in fact, during

the period from August 4, 1947 to and including December 3,

1965, prepared, processed and conducted several approval

proceedings in the County Court of Tulsa County, Oklahoma

for the approval of deeds of Indian heirs. (TR. 224) One such

proceeding was the sales transaction between the plaintiff

herself and Amos Beaver referred to in Finding of Fact No.

13 immediately above.

15. The defendant H. Harold Becko did not pay to the

plaintiff the $35,000.00 promissory note given to her as a part

of the purchase price of the subject real property when the

same became due on December 19, 1966, but defaulted therein

and in the Purchase Money Real Estate Mortgage given to secure

the same. (TR. 229 & 190-191 & 483-484) No suit was

instituted by the plaintiff on said note or to foreclose such

mortgage by reason of such default. Likewise, the defendant

Becko failed to pay the $43,000.00 promissory note given to

the plaintiff as part of the purchase price of the subject real

property when the same became due on January 19, 1967

and defaulted therein and in the Purchase Money Real Estate

Mortgage given to secure the same. (TR. 229 & 191 & 484)

Again no suit was instituted by the plaintiff on the latter

described promissory note or to foreclose her real estate

mortgage securing the same by reason of the latter default.

(TR. 191) Thereafter, on the 28th day of Jariuary, 1967, the

plaintiff and her husband met the defendant Becko at the First

National Bank of Broken Arrow, Oklahoma. At the latter

time and place, the defendant Becko tendered the amount of

the two notes in default and requested a release of the

plaintiff's Purchase Money Real Estate Mortgage but the

plaintiff refused to execute and deliver a release of such

A. 38

mortgage unless the defendant Becko paid to the plaintiff

approximately $4,500.00 estimated to be the additional income

taxes the plaintiff would be required to pay because of receipt

of payment of both notes in the same calendar year of 1967.

(TR. 74 & 192-193) In order to obtain the release of mortgage,

the defendant Becko did, in fact, pay to the plaintiff the

additional sum of approximately $4,500.00, as well as the

balance of the purchase price of the subject real property

evidenced by these two promissory notes and real estate

mortgage. (TR. 74 & 192-193) Thereupon, the plaintiff, Nellie

Armstrong, joined by her husband, Ruskin Armstrong, duly

executed, acknowledged and delivered to the defendant Becko

a release of the Purchase Money Mortgage of December 3,

1965 (TR. 74 & 193 and Defendants’ Exhibit No. 18)

16. In 1968, plaintiff and her husband delivered

peaceable possession of the subject real property to defendant

H. Harold Becko and moved into their new home at 91st Street

and Lynn Lane in the City of Broken Arrow, Oklahoma (TR.

77 & 189-190 &195)

17. The plaintiff received from the defendant H. Harold

Becko as the total purchase price of the subject real property

the sum of $107,500.00 (TR. 186 & 191-192 & 75) The fair

market value of the subject property at the time of its sale by

plaintiff to defendant Becko and delivery of General Warranty

Deed thereto on December 3, 1965 was the sum of $91,900.00

(TR. 351 & 360 & 364 and Defendants’ Exhibit No. 33) or

$15,600.00 less than the amount received for such property

by the plaintiff. The Court-appointed appraisers in this cause

each testified that they had to strain to get the value of the

subject property as of the date of conveyance by plaintiff up

to the figure of $91,900.00. (TR. 355 & 360 & 365) The

purchase price received by the plaintiff exceeded its fair market

value on December 3, 1965 by approximately seventeen

percent [1135] (17%). This excess in value of the purchase

price paid over the fair market value of the real property at

the time of purchase does not include the $4,000.00 option

consideration received by the plaintiff from James W. Barry

A. 39

and Dale A. Liles, nor does the same include the approximate

$4,500.00 additional sum paid by the defendant H. Harold

Becko to the plaintiff to procure a release of the Purchase

Money Mortgage. On the date of conveyance of the subject

real property by the plaintitt to the defendant H. Harold Becko,

December 3, 1965, the subject property was substantially

unimproved, was being devoted to agricultural purposes, was

unplatted and unzoned. (TR. 35 & 334 & 447, and Defendants’

Exhibit No. 6)

18. On the 18th day of December, 1971, the defendant

Broken Arrow’s Mall, Inc. acquired title to the subject real

property through mesne conveyances from the defendant

H. Harold Becko. On February 17, 1971, the defendant Broken

Arrow’s Mall, Inc. platted the property into Maple Leaf Addi-

tion to the City of Broken Arrow, Oklahoma. (Defendants’

Exhibit No. 7) Thereafter, such defendant developed the

subject real property and on the 25th day of February 1972,

said defendant obtained a $1,150,000.00 loan from the

defendant Sackman-Gilliand Corporation on Lot One (1),

Block Two (2) of Maple Leaf Addition for the construction of

the Maple Leaf Apartment project. (TR. 494-496) Prior to

commencement of construction of such apartment project,

the defendant Broken Arrow’s Mall, Inc. conveyed said Lot One

(1), Block Two (2) Maple Leaf Addition to the defendant

Maple Leaf Apartments, Ltd., who assumed the $1,150,000.00

construction loan. (TR. 494-496) Thereafter, the defendant

Broken Arrow’s Mall, Inc. conveyed the balance of Maple Leaf

Addition, consisting of Lots One (1), Two (2) and Three (3),

Block One (1) and Lot Two (2) Block Two (2), to the defend-

ants Owen D. Young and Robert L. Latch, d/b/a Young &

Latch Investments, a general partnership for the total purchase

price of $280,000.00 (TR. 499 & 514 & 519-520) Neither

the defendant Maple Leaf Apartments, Ltd. nor the defendants

Owen D. Young and Robert L. Latch d/b/a Youn & Latch

Investments, a general partnership, have conveyed any portion

of the subject real property so acquired by them.

A. 40

19. Subsequent to the conveyance of the subject real

property by the plaintiff to defendant H. Harold Becko on

December 3, 1965 and prior to the institution of this lawsuit

by the plaintiff on February 22, 1974, the subject real property

was developed by the defendants Maple Leaf Apartments, Ltd.

and Owen D. Young and Robert L. Latch d/b/a Young &

Latch Investments, a general partnership, and the following

improvements constructed thereon:

(a) An apartment project known as Maple

Leaf Apartments was constructed on Lot One (1),

Block Two (2), of said Maple Leaf Addition by the

defendant Maple Leaf Apartments, Ltd.;

(b) A shopping center known as Maple Leaf

Shopping Center was constructed on Lot Two (2),

Block Two (2) of said Maple Leaf Addition, less

and except the North one hundred fifty feet (150”)

thereof, by the defendants Owen D. Young and

Robert L. Latch; and,

(c) Construction of an additional apartment

project was commenced on Lot One (1), Block

One (1) of Maple Leaf Addition by the defendants

Owen D. Young and Robert L. Latch.

Construction of the Maple Leaf Apartments project was

commenced by the defendant Maple Leaf Apartments, Ltd. in

the year 1973.and completed by it in December, 1973. (TR.

505) This apartment complex contains one hundred sixteen

(116) dwelling units, most of which have been leased by

defendant Maple Leaf Apartments, Ltd. and are occupied by

their tenants. (TR. 499 & 503) The project contains ten (10)

major buildings and two (2) auxiliary buildings. (TR. 502)

The auxiliary buildings consist of a laundry and clubhouse

or cabana building used in conjunction with the project’s

swimming pool. (TR. 502) The total cost incurred by the

defendant Maple Leaf Apartments, Ltd. in the development,

construction and furnishing of this [1136] apartment project

A. 41

was the sum of $1,407,929.25 (TR. 496) The interim or

construction loan of defendant Sackman-Gilliand on this

apartment project was converted to a permanent loan in the

year 1973, the unpaid balance of such loan on the date of trial

being the sum of $1,135,610.77. (TR. 496 & 498) A substantial

amount of time, effort and money was expended and risk

assumed by the defendant Maple Leaf Apartments, Ltd. and its

individual partners in the planning, financing, development,

construction and leasing of the Maple Leaf Apartments

complex.

20. The defendants Owen D. Young and Robert L.

Latch, d/b/a Young & Latch Investments, a general partnership,

commenced construction of the Maple Leaf Shopping Center

in the year 1973 and had substantially completed and leased

the Center by October, 1973. (TR. 528 & 539) The shopping

center was constructed on Lot Two (2), Block Two (2), Maple

Leaf Addition, less and except the North one hundred fifty

feet (150’) thereof. (TR. 516) The total cost expended by these

defendants in the development, leasing and construction of the

shopping center was $388,127.31. (TR. 529) The construction

loan on the subject shopping center in the principal sum of

$320,000.00 was made by the defendant First National Bank

& Trust Company of Tulsa, Oklahoma, a national banking

association, and remains outstanding. (TR. 525 & 546 & 548)

The defendants Owen D. Young and Robert L. Latch have

expended considerable time, effort and money and assumed

substantial risks in the acquisition, financing, development, |

construction and leasing of this shopping cemier. The

promissory note evidencing the construction loan of

$320,000.00 on this shopping center was personally executed

by the defendants Owen D. Young and Robert L. Latch and

their respective spouses, and there is no exonerdation or exculpa-

tory clause contained in such note or the real estate mortgage

securing the same (TR. 526) Nonc of the principal indebtedness

of $320,000.00 has been paid and interest has continued to

accrue since the filing of this lawsuit on February 22, 1974.

(TR. 548-549)

A. 42

21. The North one hundred fifty feet (150’) of Lot Two

(2), Block Two (2), and Lots Two (2) and Three (3), Block

One (1) of Maple Leaf Addition located immediately adjacent

to and north of the Maple Leaf Shopping Center is vacant

land. (TR. 516-518) In 1973, the defendants Owen D.Young

and Robert L. Latch, joined by their respective spouses,

procured a mortgage loan in the principal sum of $150,000.00

covering all of the latter described real property. (TR. 521-

522 & 546-548) The promissory note evidencing this loan and

the mortgage securing the same do not contain any exonera-

tion or exculpatory provisions. None of the principal of this

mortgage indebtedness has been paid and interest has continued

to accrue thereon since the filing of the subject lawsuit on

February 22, 1974. (TR. 548)

22. In July, 1973, the defendants Owen D. Young and

Robert L. Latch procured an interim or construction mortgage

loan in the sum of $975,000.00 from the defendant Hamilton

Investment Trust for the construction of a ninety-five (95) unit

apartment complex on that part, of the subject property

described as Lot One (1), Block One (1) Maple Leaf Addition.

(TR. 545) The promissory note evidencing this interim or

construction loan was personally executed by the defendants

Owen D. Young and Robert L. Latch and contained a guaranty

of performance commitment by such defendants. (TR. 548)

At the time this lawsuit was commenced on February 22,1974,

the defendants had obtained their building permit for this

apartment project, had hired a general contractor therefor,

had hired an architect and completed the plans and specifica-

tions for the apartments, and had already completed 95% of

the excavation work for the 95-unit apartment project. (TR.

541-542) At the time of commencement of this suit approxi-

mately $173,000.00 of this interim loan had been drawn down

by the defendants. (TR. 547) None of this mortgage indebted-

ness has cen repaid to the defendant Hamilton and interest has

continued to accrue thereon since the date of filing of the

instant lawsuit. (TR. 548)

A. 43

[1137] 23. The Court-appointed appraisers in this cause

made the following findings of fair market value of the subject

real property and improvements as of the dates indicated

(Defendants’ Exhibit No. 33):

A. The value of all of the subject

land on December 3, 1965

(date of conveyance by

plaintiff to defendant Becko $ 91,900.00

B. The value of all of the subject

land, exclusive of improve-

ments, on February 22, 1974

(date this suit was filed):

(i) Lot One (1) Block One

(1), Maple Leaf Addi-

tion $ 91,591.00

(ii) Lots Two (2) and Three

(3), Block One (1) and

the North one hundred

fifty feet (150’) of Lot

Two (2), Block Two (2),

Maple Leaf Addition 93,591.00

(iii) Lot Two (2), Block

Two (2), Maple Leaf

Addition, less the

North one hundred

fifty feet (150’) thereof 93,557.00

(iv) Lot One (1), Block

Two (2), Maple Leaf

Addition 186,096.00

TOTAL VALUE : $ 464,882.00

C. The*value of all of the subject

land, including improvements,

on February 22, 1974 (date

this suit was filed):

A. 44

(i) Lot One (1) Block One

(1), Maple Leaf Addi-

tion $ 91,591.00

(ii) Lots Two (2) and Three

(3), Block One (1), and

the North one hundred

fifty feet (150’) of Lot

Two (2), Block Two

(2), Maple Leaf Addi-

tion 93,638.00

(iii) Lot Two (2), Block

Two (2), Maple Leaf

Addition, less the North

one hundred fifty feet

(150’) thereof 392,947.00

(iv) Lot One (1) Block Two

(2), Maple Leaf Addi- ;

tion 1,130,509 .00

TOTAL VALUE: $1,708,685 .00

24. Prior to their acquisition of Lots One (1), Two (2)

and Three (3), Block One (1) and Lot Two (2) Block Two (2)

of Maple Leaf Addition, the defendants Owen D. Young and

Robert L. Latch employed the services of an attorney to

examine the title to all of said real property and did, in fact,

obtain a written title opinion as to all of the same prior to the

acquisition thereof. (TR. 521 & 523) Likewise, the defendants

Broken Arrow’s Mall, Inc. and Maple Leaf Apartments, Ltd.

employed the services of an attorney and acquired a title

opinion to the subject property prior to their acquisition of any

interest therein. (TR. 511-512) The defendant H. Harold Becko

likewise employed the services of attorney Charles Whitebook

for examination of title to the subject real property prior to

purchasing the same from the plaintiff and said attorney did

render a written title opinion thereon. (TR. 13-14 and Plaintiff’s

Exhibit No. 5) None of such title opinions procured by any of

said defendants questioned the validity of the deed of

A. 45

December 3, 1965 or referred to any restrictions imposed

upon the transfer of the subject property by the Act of

August 4, 1947. (TR. 485 & 521) In fact, one abstract company

in Tulsa, Oklahoma has in its files alone thirty-five (35) title

opinions involving titles deraigned from the 120-acre surplus

allotment of Billy Atkins in which no requirement was made

with regard to approval of conveyances or relating to the

restrictions against alienation imposed by the Act of August 4,

1947. The overwhelming majority of these title opinions were

rendered after 1947. (TR. 489)

25. Subsequent to passage of the Act of August 4, 1947,

and prior to execution and delivery of the Deed of Conveyance

of December 3, 1965 sought to be declared invalid by the

plaintiff in this action, the plaintiff conveyed to various third

parties substantially all of the land owned by her and com-

prising a part of the surplus allotment of her father, Billy

Atkins, and not included in the subject sale to defendant

Becko, and during such period granted easements and other

encumbrances to third parties covering lands owned by her and

comprising a part of the surplus allotment of Billy Atkins.

(TR. 432-435 & 36 & 39-40 & 50) None of said conveyances,

easements and encumbrances to third parties (i.e., parties not

defendant herein and parties not related to plaintiff) were

approved by the County Court of Tulsa County, Oklahoma,

or any other court nor was such approval sought to void any

conveyance, easement or en-[1138]cumbrance granted by her

on any part of the lands owned by her and comprising a part

of the surplus allotment of Billy Atkins, save and except the

conveyance of the subject property to the defendant H. Harold

Becko involved in this case. (TR. 335) Since the filing of the

instant lawsuit, the plaintiff has been requested by the grantee

in one of such conveyances, the City of Broken Arrow, Okla-

homa, to consent to approval of its conveyance from plaintiff,

which request of such City was granted by the plaintiff

conditioned upon payment to plaintiff by the City of Broken

Arrow, Oklahoma of the sum of $2,500.00 for such consent.

(TR. 83-86 & 91-92) Such sum was exacted and paid by the

City of Broken Arrow, Oklahoma to obtain the plaintiff's

A. 46

consent. (TR. 92) Since 1947, some sixty (60) further deeds,

in addition to mortgages and other encumbrances have been

filed of record involving title deraigned from the surplus allot-

ment of Billy Atkins, none of which have been approved by

the County Court of Tulsa County, Oklahoma, nor has

approval thereof been requested or sought. (TR. 485-489)

Many homes have been built on a part of the land acquired

by the plaintiff from Billy Atkins and deeded to third parties

not involved in this litigation, which accounts for this quantity

of unapproved deeds. (TR. 488-489)

26. Although the testimony introduced herein was to

the effect that the exchange of Quit-Claim Deeds between the

plaintiff and her brothers referred to above in Findings of

Fact No. 7 was for the purpose of accomplishing a voluntary

partition of the surplus allotment of Billy Atkins, only the

Quit-Claim Deed to the plaintiff from her brothers and their

spouses appears in the abstracts of title to the subject real

property examined by the defendants. (TR. 337-338) The two

Quit-Claim Deeds received by the two brothers on the balance

of the surplus allotment of Billy Atkins do not appear therein

as neither Quit-Claim Deed covers any part of the subject real

property. (Defendants’ Exhibits Nos. 8 and 9) The Quit-Claim

Deeds themselves make no reference to an exchange of deeds

or partition but contain recitations of consideration received.

(Defendants’ Exhibits Nos. 8, 9 and 10) There is no way the

defendants could, from abstracts of title or land records of the

subject property, have determined that there was an exchange

of Quit-Claim Deeds in lieu of an actual purchase by plaintiff

of her brothers’ interest in the subject real property. No

evidence was introduced in this lawsuit that any of the

defendants or their predecessors in title to the subject real

property had any actual knowledge of the two Quit-Claim

Deeds given to the plaintiffs brothers Legus Atkins and

Eddie Atkins.

27. The plaintiff, Nellie Armstrong, admittedly observed

On numerous occasions the Maple Leaf Apartments being

constructed and leased, the Maple Leaf Shopping Center being

A. 47

constructed and leased, and the excavation being made for the

95-unit apartment complex on Lot One (1), Block One (1),

Maple Leaf Addition prior to the filing by her of this lawsuit

did the plaintiff demand or request of any defendant in this

lawsuit a return of title or possession of any part of the subject

real property conveyed by her to Harold Becko on December 3,

1965, or otherwise make known any claim by her thereto.

(TR. 81-82) The plaintiff remained silent as to any claim by

her to the subject property during the entire period that the

defendants Maple Leaf Apartments, Ltd. and Owen D. Young

and Robert L. Latch were expending readily observable and

substantial amounts of money and time in the improvement of

the subject property. (TR. 81 & 195-196 & 551) Less than 120

days expired between the time of formal opening of the

shopping center in October, 1973 and completion and leasing

of the Maple Leaf Apartment project in December, 1973, and

the filing of the instant litigation on February 22, 1974.

28. The Act of August 4, 1947 was never codified. (TR.

400) It does not appear in the United States Code, nor does the

text of the Act appear anywhere in the United States Code

Annotated. (TR. 400) The only reference to the Act is

contained in a footnote in the United States Code. (TR.[1139]

400) The existence of the Act of August 4, 1947 is not

generally known among the legal profession in the State of

Oklahoma. (TR. 398-400 & 488-490) Such is evidenced by the

fact that none of the conveyances from the plaintiff to any

part of the surplus allotment of Billy Atkins acquired by her

were approved or sought to be approved by the County Court

of Tulsa County, Oklahoma prior to the filing of the instant

lawsuit and is evidenced by the large number of conveyances

of title deraigned from the plaintiff to a part of such surplus

allotment that have not been approved or approval thereof

requested, and as evidenced by the large number of title

opinions since 1947 covering lands comprising a part of the

surplus allotment of Billy Atkins in which absolutely no

reference to required approval or restrictions is made. Lack of

knowledge of this Act and its applicability is further indicated

by the testimony of the Field Solicitor of the Bureau of Indian

Affairs. (TR. 397-400)

A. 48

29. Of all the conveyances by the plaintiff of a part of

the surplus allotment of Billy Atkins acquired by her, the only

conveyance which the plaintiff has sought to set aside is the

conveyance of Deccember 3, 1965 to the defendant H. Harold

Becko, not platted as Maple Leaf Addition. (TR. 335) It is the

only conveyance on which improvements of ‘substantial value

and which are readily marketable have been placed.

30. It is the opinion of the United States Probate

Attorney for the Bureau of Indian Affairs and the Field Solicitor

for the Bureau of Indian Affairs that upon the death of Billy

Atkins on April 24, 1929 his 120-acre surplus allotment was

inherited by his three half-blood unenrolled heirs, including the

plaintiff herein, free and clear of any restrictions against aliena-

tion. (Defendants’ Exhibit No. 32 and TR. 106 & 119-120)

It is the opinion of Mr. Harold Shultz, Field Solicitor for the

Department of Interior, Bureau of Indian Affairs, that the land

remained unrestricted at least until August 4, 1947 (some

18% years beyond the death of Billy Atkins) and that during

such period the plaintiff could have sold, mortgaged, leased,

given away or done anything she wanted to with her interest

in this land or the proceeds she received from the land.

(TR. 106) It is the further opinion of the Field Solicitor for

the Department of Interior, Bureau of Indian Affiars, that

there is no such thing as a restricted Indian insofar as the Five

Civilized Tribes are concerned (TR. 103-104); that members of

the Five Civilized Tribes, such as the plaintiff, are not subject

to the General Indian Allotment Act (TR. 116); that members

of the Five Civilized Tribes, such as the plaintiff, may and do

hold title in their own names in fee simple to real property,

whereas Indians subject to the General Indian Allotment Act

do not hold title in fee simple to lands but are wards of the

United States Government who holds title in trust for their

benefit (TR. 116); that cases decided under the General Indian

Allotment Act are not construing or involving legislation simi-

lar to that regulating the Five Civilized Tribes which are

controlled by special legislation perculiar to them. (TR. 116)

A. 49

31. Neither the United States nor the Department of

Interior, Bureau of Indian Affairs, or any other agency of the

United States, have sought to intervene in the instant lawsuit

because plaintiff has never contacted them or requested their

assistance in this matter. The Field Solicitor for the Bureau

of Indian Affairs has not formed or expressed an opinion as to

the merits of the plaintiff’s claim in this lawsuit, nor an opinion

as to whether the deed of December 3, 1965 is or is not void.

(TR. 160-161)

32. The United States Bureau of Indian Affairs does not

have or maintain a file of any nature on the plaintiff Nellie

Atkins Armstrong, and has stated through their Field Solicitor

that they have no reason to do so. (TR. 107) The plaintiff is

not and never has been a ward of the United States of

America.

33. The testimony of plaintiff that immediately after

execution and delivery of the option agreement of

November 18, 1964 to James W. Barry and Dale A. Liles she

[1140] wanted out of the transaction and continued there-

after to want out of the transaction, but that she was told by

her attorney that she could not legally get out of the trans-

action, is not credible or believable on the basis of the evidence

introduced herein at the trial on the merits of this cause. In

the first instance, almost a year after the plaintiff had given the

Barry and Liles option of November 18, 1964, the plaintiff,

with the assistance of tax counsel and the legal counsel of her

attorney, F.A. Petrik, negotiated a new option agreement with

the defendant H. Harold Becko for more money than provided

in the Barry and Liles option of November 18, 1964 which

expired by its own terms on November 18, 1965, (TR.60-63 &

181-185 & 447-480) In addition, the défendant Becko

defaulted on the note and purchase money mortgage he gave

the plaintiff not once, but twice, and in neither instance did the

plaintiff institute or seek to institute foreclosure proceedings.

(TR. 190-192 & 483-484) The plaintiff knew of her right of

foreclosure (TR. 230) and so did her experienced attorney,

Mr. F. A. Petrik, but in lieu of foreclosure, the plaintiff elected

A. 50

to exact $4,500.00 more money from the defendant Becko.

(TR. 75 & 192) Further, the plaintiff already had contracted

to spend part of. the sale proceeds to be received from

defendant H. Harold Becko prior to the closing of the sales

transaction with defendant Becko and delivery of deed to

defendant Becko and prior to receipt of any part of such sales

proceeds. (Defendants’ Exhibit No. 25) Further, the purpose of

the plaintiff in selling the subject property, as declared to

Mr. Barry, was to procure a new home (TR. 444), which the

plaintiff, in fact, did. (TR. 76-77 & 82)

34. The testimony of plaintiff that she wanted and still

wants to retain the subject land because of objections to sale

thereof by her husband and her children and because the land

is part of her father’s surplus allotment is not credible or

believable on the basis of the evidence introduced herein at the

trial on the merits of this cause. After giving the Barry and Liles

option agreement of November 18, 1964, plaintiff’s husband

actively participated in negotiations for the Becko option of

November 12, 1965, executed the District Court rezoning

petition for the subject property, was, in fact, the party who

received and receipted for the $2,000.00 consideration for

extension of the Barry option, and he did, in fact, participate

in the negotiation for the $4,500.00 added consideration

extracted from defendant Becko by reason of the latter’s

default. (TR. 42 & 50 & 460-461 & 455 & 191-192 and

Defendants’ Exhibit No. 2) It was the husband who, in

September, 1965, approximately nine (9) months after the

granting of the Barry option, sought the tax counsel of the

Bureau of Indian Affairs regarding the sales transaction.

(Defendants’ Exhibit No. 34) The husband likewise participated

in the purchase of the new homesite on which the quality home

of plaintiff and her husband was built and, together with

plaintiff’s children and the plaintiff, received the benefits of the

consideration paid to plaintiff by defendant Becko. (TR. 52-

55 and Defendants’ Exhibit No. 25) Insofar as her desire to

retain and reside on her father’s allotment is concerned, the

plaintiff reserved from the conveyance to defendant Becko

a portion of such allotment upon which to build a home but,

A. 51

in fact, elected to build her new home on a tract completely

removed from any part of her father’s allotment. (TR. 37 &

76-77) In addition, her father never had his residence on this

part of his surplus allotment and during the lifetime of the

plaintiff, the family never resided on any part of the father’s

surplus allotment. (TR. 37-38 & 24) Plaintiff’s father princi-

pally lived and worked in Wagoner County, Oklahoma and not

in Tulsa County, Oklahoma where this land is situated. (TR.

24) The evidence does not support any sentimental attach-

ment by the plaintiff or her family to the subject land

predicated on her father’s (Billy Atkins’) relationship to the

land.

35. The plaintiff knew that she was a half-blood Creek

Indian, that her father, Billy Atkins, was a full-blood Creek

Indian, that the subject real property was restricted in his

hands during his lifetime, that she [1141]had inherited an

interest in the subject real property from her father, Billy

Atkins, that the plaintiff and her attorney, F.A. Petrik, had

engaged in proceedings for the approval of deeds under the Act

of August 4, 1947 prior to the conveyance to the defendant

H. Harold Becko of December 3, 1965 (Defendants’ Exhibit

No. 25), and knew or should have known that approval pro-

ceedings were necessary for the conveyance to defendant Becko

of December 3, 1965. Instead, the plaintiff delayed for eight

(8) years and approximately three (3) months asserting any

claim that the conveyance to defendant Becko was invalid and

in the interim the defendants constructed substantial improve-

ments on the subject real property in reliance on the deed of

December 3, 1965 and the silence and acquiescence therein of

the plaintiff.

36. The plaintiff's right to relief herein is predicated

upon the Act of Congress of August 4, 1947 relating to

restrictions applicable to Indians of the Five Civilized Tribes

of Oklahoma (Plaintiff's Complaint, Pg. 3). The history of this

Act is as follows:

A. 52

In early 1947, H.R. 3173, relating to restrictions

applicable to Indians of the Five Civilized Tribes of Oklahoma

and for other purposes, was introduced in the United States

House of Representatives and referred by it to its Committee

on Public Lands. On May 2, 1947, a public hearing was con-

ducted by the House of Representatives Subcommittee on

Indian Affairs of the Committee on Public Lands wherein

H.R. 3173 (Act of August 4, 1947) was considered and

testimony presented. (Defendants’ Exhibit No. 23) On

June 30, 1947, the Committee on Public Lands of the House

submitted House Report No. 740 (Defendants’ Exhibit No. 19)

to the House of Representatives recommending passage of

H.R. 3173 and on July 7, 1947, such bill passed the House.

(Defendants’ Exhibit No. 22) On July 14, 1947, the Committee

on Public Lands of the United States Senate submitted its

Report No. 543 (Defendants’ Exhibit No. 20) to the Senate

recommending passage of such bill and on July 17, 1947, the

legislation passed the Senate. (Defendants’ Exhibit No. 21)

On August 4, 1947, said House Bill No. 3173, with minor

amendments, was signed into law.

The announced purpose of H.R. 3173 (Act of August 4,

1947), as stated in House Report No. 740 (Defendants’ Exhibit

No. 19) and Senate Report No. 543 (Defendants’ Exhibit No.

20) and as stated on the floor of the House (Defendants’

Exhibit No. 22), was to clarify, cure and stabilize land titles

in Oklahoma.

There is nothing in the history of the Act of August 4,

1947 to indicate that conditions were such as to warrant the

reimposition of restrictions upon Indian lands of the Five

Civilized Tribes that had become unrestricted by reason of the

death of the allottee. (Defendants’ Exhibits Nos. 19-23,

inclusive) To the contrary, the testimony of Congressman

Albert, Congressman Schwabe, W.E. Semple and others

appearing before the Congressional Subcommittee charged with

the responsibility of conducting public hearings on H.R. 3173

(the Act of August 4, 1947) evidenced that such restrictions

insofar as half-bloods were concerned were unnecessary and

A. 53

that members of the Five Civilized Tribes in Oklahoma had

become fully ‘ntegrated into the white man’s society

(Defendants’ Exhibit No. 23) which this Court finds to be

absolutely true and correct.

CONCLUSIONS OF LAW

1. This Court has jurisdiction of all the parties hereto

and of the subject matter of this action, and jurisdiction to

enter a full and complete decree herein adjudicating all rights

of the parties hereto.

2. The Court concludes as a matter of law that it is

unnecessary to an adjudication of this cause for this Court to

determine whether it has or does not have jurisdiction to

approve or disapprove the conveyance of December 3, 1965

from plaintiff to defendant Becko or to determine whether

to grant or withhold approval of such conveyance, although

the effect of granting to either party the relief sought of

quieting title to the subject real property may, by implication,

constitute an affirmation or re-[1142]jection of the deed of

December 3, 1965. By way of analogy, if the defendants herein

were defending this quiet title action based on expiration of the

applicable Oklahoma statute of limitations, this Court need

not consider whether to approve or disapprove the deed but

only whether or not the statute of limitations was, in fact,

applicable. Viewed in this light, and in the light of the fact the

plaintiff herself has invoked the equitable jurisdiction and

powers of this Court, the issue of voluntary or involuntary

consent to.the proceedings, while being an issue in the State

Court approval proceedings, is not an issue before this Court

on the trial of this cause on its merits.

[1] 3. The Act of August 4, 1947 is unconstitutional

as applied in this case for the reason that to strictly apply the

Act to this case would violate the substantive due process rights

of the defendants as guaranteed by the Fifth Amendment of

the United States Constitution. To apply the 1947 Act so as to

permit the plaintiff to void the deed in question and recover

A. 54

the land and improvements thereon, will result in a violation of

substantive due process for the reason that the actual operation

of the means selected by Congress to achieve the purpose of

the Act will not have a real and substantial relation to such

purpose, and, in fact, such an operation of the means selected

will thwart the intent and purpose of Congress.

[2] A statute or act of Congress may be held unconsti-

tutional as applied and therefore void and unenforceable by

virtue of its actual operation, when it operates to deprive one

of a protected right, despite the fact that the general validity

of the act or statute “as a measure enacted in the legitimate

exercise of police power is beyond question”. Boddie »y.

Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113

(1971); Great Northern R. Co. v. Washington, 300 U.S. 154,

57 S.Ct. 397, 81 L.Ed. 573 (1936).

[3] It is well established that the rifth Amendment

guarantee of due process of law conditions the exercise of

legislative power by insuring “‘that the end shall be accomplished

by methods consistent with due process”. Nebbia v. New York,

291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1933). Further, the

Fifth Amendment guarantee of due process of law requires that

an act or statute “shall not be unreasonable, arbitrary or

capricious, and that the means selected shall have a real and

substantial relation to the object sought to be attained.”

Nebbia v. New York, supra.

[4] The object and purpose of the acts and statutes

regarding restrictions on alienation of Indian lands owned by

members of the Five Civilized Tribes and the approval required

thereby, is to place the Indian on an equal footing with non-

Indians in the sense of business acumen and to insure that

transaction concerning their restricted lands be conducted at

arm’s length. Cotcha v. Ferguson, 165 Okl. 295, 25 P.2d 767

(1933); Critchlow, et al. v. Bacon, 142 Olk. 168, 285 P.968

(1930). The logical corollary to this purpose, however, is that

the acts are not for the purpose of providing the Indian with a

means of asserting a fraudulent, inequitable and stale claim

A. 55

and retreating from a business transaction entered into by

other parties in good faith, long after valuable improvements

have been placed on the property. That is, the acts are intended

as a shield for the Indian, to protect against overreaching and

incompetency, and not as a sword for the purpose of

permitting an Indian covered thereby to perpetrate a fraud.

[5,6] It is of utmost importance for this Court to

ascertain the purpose of the Act of August 4, 1947. It is the

conclusion of this Court that the primary purpose of the Act

of August 4, 1947 was to clarify, cure and stabilize Indian

land titles in Northeast Oklahoma. Further, by placing the

restrictions set forth in the Act of August 4, 1947, Congress

also had as its purpose to again insure that the Indians of the

Five Civilized Tribes covered by said Act would be placed

on an equal footing with other in business transactions, and

to insure that such Indians’ transactions in regard to the

restricted lands would be at arm’s length and that there would

not be overreaching. In interpreting statutes and acts, it is the

duty of [1143] the court to “construe the language so as to

give effect to the intent of Congress.” United States vy.

American Trucking Associations, 310 U.S. 534, 60 S.Ct. 1059,

84 L.Ed. 1345 (1940). Further, in construing the statutes, the

Court should take into consideration the “purpose, the subject

matter, the context, the legislative history and executive inter-

pretation” of the act or statute. United States v. Cooper

Corporation, 312 U.S. 600, 61 S.Ct. 742, 85 L.Ed. 1071

(1940). The words used by Congress in a statute or act are

persuasive evidence of the purpose of such an act or statute;

that when the meaning of such words lead to absurd results, the

courts will look beyond the words to the purpose behind the

act or statute. United States v. American Trucking Associations,

supra. Further, the act or statute “cannot be divorced from the

circumstances existing at the time it was passed, and from the

evil which Congress sought to correct and prevent”. United

States v. American Trucking Associations, supra.

A. 56

An examination of the Act of August 4, 1947 reveals

that the means selected by Congress to achieve the above

stated purposes is to invalidate deeds and conveyances covered

by the Act, if such deeds and conveyances are not approved by

the County Court of the appropriate county in Oklahoma.

However, to apply the-means selected in the instant case, and

allow the plaintiff to void the deed and recover the subject

property and the improvements thereon, would result in a

violation of substantive due process of law for the reason that

such an application would not have a real and substantial

relation to the purposes and objects sought to be achieved by

Congress in the 1947 Act. To apply the Act, such that the deed

will be invalid, will not serve Congress’ purpose of clarifying,

curing and stabilizing Indian land titles in Northeastern

Oklahoma. Further, such an application of the means selected

would not further the Congressional purpose of protecting the

plaintiff, as an Indian covered by said Act, from overreaching,

and of insuring that the plaintiff was on an equal footing with

the defendant Becko in the sale of the subject property on

December 3, 1965 and that said sale was at arm’s length and

without overreaching, as the evidence shows that those purposes

were, in fact, achieved in this case. The plaintiff is, and was at

the time of entering into the various options leading up to the

sale of the subject property, and the subsequent conveyance

thereof to the defendant Becko, a competent individual, fully

able to transact business on her own behalf. There was no

evidence presented at trial that there was any undue influence,

fraud, menace or duress practiced on the plaintiff during the

course of the sales transaction with the defendant Becko.

The consideration received by the plaintiff in the sale of the

subject property to the defendant Becko on December 3,

1965, considerably exceeded the fair market value of the

subject property on said date, and therefore, was a more than

adequate and fair consideration. Further, the sale and convey-

ance of the plaintiff to the defendant Becko of the subject

property was an arm’s length transaction as evidenced by the

fact that the plaintiff was represented by her experienced legal

counsel, advised by tax counsel, and further, consulted the

Bureau of Indian Affairs in regard to the tax aspects of the

A. 57

sale. By virtue of the foregoing, this Court concludes as a matter

of law, that the plaintiff was not overreached in the course of

her sale of the subject property to the defendant Becko.

In light of the purpose of the Act of August 4, 1947,

and further, in light of the means selected by Congress to

achieve that purpose, it is the conclusion of this Court that an

application of the means to the facts in this case would result

in such an application not having a real and substantial relation

to the object and purposes sought to be achieved by Congress.

Applying the means selected by Congress in this case will not

achieve the Congressional purpose, and further, such an applica-

tion would, in fact, thwart the Congressional purpose <1d

would violate the traditional concepts of fundamental fairness

and justice.

[7] The Act of August 4, 1947, at most in this case,

creates a rebuttable presump-[1144]tion that the Indian

grantor covered thereby was incompetent, that the considera-

tion received was unfair, and that said Indian was overreached.

This presumption has been rebutted by the overwhelming

evidence in this case. The plaintiff is and was at the time of

entering into the various options leading to the sale of the

subject property, and the subsequent conveyance thereof to the

defendant H. Harold Becko, a competent individual, fully able

to transact business on her own behalf. The consideration

received by the plaintiff from the defendant Becko in regard

to the sale of the subject property on December 3, 1965 was

considerably in excess of the fair market value of the property

at that time. The sale and conveyance by the plaintiff to the

defendant Becko of the subject property was an arm’s length

transaction, and the plaintiff was not overreached nor was she

under any undue influence, duress, menace ‘or fraud in the

course of her sale of the subject property to the defendant

Becko.

4. This Court concludes that the Act of Congress of

August 4, 1947 is unconstitutional as applied in this case for

the reason that the Act, as applied, violates due process of law

A. 58

as guaranteed by the Fifth Amendment of the United States

Constitution by virtue of the fact that the Act is vague and

uncertain in its application and, further, that there exists a

lack of notice of the Act. An act or statute violates due process

of law if it “forbids oi requires the doing of an act in terms so

vague that men of common intelligence must necessarily guess

at its meaning and differ as to its application. . . .”” Cramp vy.

Board of Public Instruction, 368 U.S. 278, 82 S.Ct. 275, 7

L.Ed.2d 285 (1961); Connally v. General Constr. Co., 269 US.

385, 46 S.Ct. 126, 70 L.Ed. 322 (1925). Further, an act or

statute valid on its face may be unconstitutional as applied.

Boddie v. Connecticut, supra; Great Northern R. Co. vy.

Washington, supra.

[8] The vagueness, uncertainty and indefiniteness of the

Act of August 4, 1947 as applied in this case is first of all shown

by reason of the fact that the Act creates an anomalous situation

of requiring an individual utilizing the Act to refer to the prior

Acts of Congress which created the confusion and uncertainty

that the 1947 Act was intended to cure. The public hearings

before the Subcommittee on Indian Affairs of the Committee

on Public Lands of the House of Representatives reveals that

one of the purposes of the Act of August 4, 1947 was to cure

and clarify the confusion as to Indian land titles in Oklahoma

created by prior acts of Congress. In order to determine

whether the 1947 Act is applicable in a given situation, it must

be determined whether the land was restricted in the hands of

the Indian from whom the Indian heir or devisee acquired same.

(Act of August 4, 1947, 61 Stat. 732). To so determine the

restricted status of the Indian ancestor, one would be placed in

the awkward position of having to refer to the very Acts which

created the confusion sought to be cured by the 1947 Act,

although the 1947 Act itself makes no reference as to how such

determination is to be made. The Court concludes that this

anomaly and omission renders the Act as attempted to be

applied in this case so indefinite and uncertain as to be violative

of due process of law under the Fifth Amendment of the

United States Constitution.

A. 59

The Act of August 4, 1947 is further vague and uncertain

as to its application in this case for the reason that in determin-

ing whether an Indian heir or devisee vested with title to the

property is subject to restrictions under the Act, the degree

of Indian blood of the heir or devisee must be determined,

and under the provisions of the Act, this cannot, in many

situations, be ascertained. Section 2 of the 1947 Act sets forth

the procedure for determining the degree of Indian blood

for the purposes of the Act. (Act of August 4, 1947, 61 Stat.

732) Under Section 2 of the Act, if the Indian heir or devisee

is enrolled, then there would be little problem in determining

the quantum of Indian blood. However, if the Indian heir or

devisee is unenrolled (the rolls of the Five Civilized Tribes

were finalized and ciosed in 1906), the degree of Indian blood

must be computed from the near-[1145]est enrolled paternal

and maternal lineal ancestors of the Indian heir or devisee.

It is in this latter situation that the determination of the degree

of Indian blood becomes, in many cases, unworkable. The Act,

in most situations, cannot be followed when dealing with

second generation heirs or devisees, all of whom would be

unenrolled. That is, after an inheritance from a first generation

unenrolled heir, the degree of blood of the heir or devisee

cannot be determined from the final rolls. That is, the title

examiner must seek information as to the degree of blood of

the Indian heir or devisee from sources outside of the rolls,

and in many situations this information is unavailable. Informa-

tion as to the degree of blood of the original allottee-ancestor’s

spouse would not appear in an abstract of title covering the

allottee’s land. The abstract of title covering the allottee’s

allotment would only contain instruments and documents

pertaining to the allottee. Thus, probate decrees and the like

in regard to the original allottee-ancestor’s spouse would not

appear in the abstract of title covering land from the allottee’s

allotment.

Further, it is the interpretation of the Office of the

Solicitor of the Department of Interior that in determining the

degree of Indian blood of the heir or devisee under the 1947

Act, the Act requires only that the degree of blood be from an

4

ns A. 60

Indian from the Five Civilized Tribes. That is, any quantum of

Indian blood from a tribe other than the Five Civilized Tribes

is irrelevant to the determination of the degree of Indian blood

under the 1947 Act. This again creates an anomalous situation

for the reason that under this interpretation there could be a

situation where the heir’s or devisee’s father was a three-quarter

(3/4) blood Creek and the mother was a full-blood Apache

Indian, and the heir or devisee would not be subject to the Act

for the reason that said heir or devisee would only have a three-

eighths (3/8) degree of Indian blood from the Five Civilized

Tribes. Thus, an heir or devisee whose total quantum of Indian

blood is seven-eighths (7/8) and who might possibly need the

protection of the Act for the reason of incompetency, would

not be afforded the protection of the Act.

Further compounding the uncertainty created by the

difficulties in determining the degree of Indian blood for the

purposes of determining the applicability of the Act, is the

fact that the Act does not state where the final rolls of the

Five Civilized Tribes are maintained or can be found. As stated

above, in order to determine the degree of Indian blood under

Section 2 of the 1947 Act, reference must be made to the final

rolls of the Five Civilized Tribes regardless of whether the heir

or devisee is enrolled or unenrolled. Without knowing where

the rolls are maintained, it is difficult to see how the determina-

tion of the quantum of Indian blood can be accomplished.

The Court therefore concludes that the inability to

determine with certainty the degree of Indian blood under the

provisions of the 1947 Act, for the purpose of determining

the Act’s applicability, renders the Act so vague and uncertain

in its application in this case as to be violative of due process

of law under the Fifth Amendment of the United States

Constitution.

[9-11] 5. The Court further concludes that the due

process of law rights of the defendant as guaranteed by the

Fifth Amendment of the United States Constitution were

violated in the application to this case for the reason that

A. 61

Congress did not provide any reasonable means by which the

defendants or their attorneys could have acquired notice or

owledge of the existence or content of the Act. The Act

August 4, 1947 was never codified in the United States

Code. (TR. 400) The text of the Act does not appear in the

United States Code, and only “a mention of it” appears in a

footnote in the United States Code (TR. 400) Further, the

Act does not appear in United States Code Annotated.

(TR. 400) Single publication of the passage of the Act by

separate Houses of Congress in the U.S. Congressional Record

in 1947 is not a reasonable means of communication to the

general public (of which the defendants are a part) of

continuing existence and [1146] content of this Act in the year

1965 when the defendant Becko purchased the subject

property from the plaintiff. In fact, the Solicitor for the

Department of Interior, Harold Shultz, evidences in his testi-

mony the fact that many attorneys in Oklahoma learn of the

existence of the Act from conversations with his office. The

only notice of the Act of August 4, 1947 available to attorneys

or members of the general public would be the mention of

the Act in a footnote in United States Code, Semple, Okla-

homa Indian Land Titles Ann., or by inquiry of the Solicitor’s

Office of the Department of Interior or if by chance a member

of the general public or his attorney had access to one of the

special treatises dealing with Indian land law, none of which is

reasonable notice to defendants or the general public of the

existence and content of this special legislation. There is no

evidence in the record that the defendants had actual notice

or knowledge of this Act or its contents prior to the filing of

this action. It is well established that one of the primary

elements of due process is that of notice. Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94

L.Ed. 865 (1950); Anderson National Bank v. Luckett, 321

U.S. 233, 64 S.Ct. 599, 88 L.Ed. 692 (1943). Therefore by

virtue of the lack of notice of the existence or content of the

Act, it is the conclusion of this Court that the defendants’

rights of due process of law as guaranteed by the Fifth Amend-

ment of the United States Constitution would be violated if the

Act were applied to divest them of their title to the subject real

A. 62

property under these facts and circumstances. It is no answer

to say that everyone is presumed to know the law when the

law in question is not contained in any official publication

where laws of the enacting legislative body are normally found.

6. At the very least as to two-thirds of the interest

which the plaintiff formerly held in the subject property, the

due process of law rights of defendants guaranteed by the

Fifth Amendment of the United States Constitution would be

violated if the Act were applied by the cancellation of the

deed of December 3, 1965 by plaintiff to defendant Becko

because of lack of notice to the defendant Becko of the Act’s

applicability to such two-thirds interest. The Act of August 4,

1947 only places restrictions on those lands acquired by

inheritance or devise from persons in whose hands the land was

restricted at the time of such inheritance or devise. (Act of

August 4, 1947, 61 Stat. 732)

In the instant case, the plaintiff acquired only a one-third

interest in the subject property by actual inheritance, the

remaining two-thirds of her interest in the subject property

being acquired by her by means of a Quit-Claim Deed from her

two brothers and their respective spouses in whose hands the

land was not restricted at the time of the Quit-Claim Deed.

Such Quit-Claim Deed recited it was given for One Dollar

($1.00) and other good and valuable consideration.

(Defendants’ Exhibit No. 10) Although there was testimony

at the trial of this case that the Quit-Claim Deed to plaintiff

from her brothers was the result of a voluntary partition of the

120-acre surplus allotment of Billy Atkins accomplished by

exchange of Quit-Claim Deeds, the two Quit-Claim Deeds

given by plaintiff in exchange for the Quit-Claim Deed to the

40-acre tract of which the subject property is a part would

not and do not appear in the chain of record title to the subject

property. As a matter of evidence in this case, only the Quit-

Claim Deed to the plaintiff convering the 40-acre tract of

which the subject property is a part appeared in the abstract

of title furnished by plaintiff to defendant Becko for examina-

tion. The Quit-Claim Deed received by plaintiff from her two

A. 63

brothers and their respective spouses covering said 40-acre

tract makes absolutely no reference to partition or exchange

of deeds but, in fact, recites that the same was given for One

Dollar ($1.00) and other good and valuable considerations.

Naturally, a judicially conducted partition of this surplus

allotment would have appeared in the chain of title to the

subject real property, but this was a voluntary, and not a

judicial partition. There was no evidence introduced [1147]

that any of the defendants or their predecessors in title to the

subject property had any actual notice of the exchange of deeds

or voluntary partition of the 120-acre tract. Because the

abstract was totally devoid of notice of whether the plaintiff

acquired two-thirds of her interest in the subject property by

inheritance or devise, there was a total lack of notice of crucial

factor which is determinative of the Act’s applicability. It is

well established that one of the primary elements of due process

is that of notice. Mullane v. Central Hanover Bank & Trust

Co., supra; Anderson National Bank v. Luckett, supra.

[12-14] 7. The nature of an action is determined by

the pleadings. To confer equitable jurisdiction on the Court,

the relief sought in the pleadings must be equitable in charac-

ter. 27 Am.Jur.2d Equity §7, pg. 525. This suit is an action of

equitable cognizance, the plaintiff and the defendants each in

their respective pleadings having invoked the equitable powers

and jurisdiction of this Court to quiet title to real property.

The plaintiff also seeks to invoke the equitable powers and

jurisdiction of this Court to invalidate and cancel of record a

deed of conveyance given by her under date of December 3,

1965 to the defendant H. Harold Becko and further, for the

cancellation of all instruments in the chain of title to the

subject property given by the defendant Becko and his

successors in title to the subject property. It is well established

that an action to quiet title is one of equitable cognizance.

King v. Oakley, 434 P.2d 868 (Okl. 1967); Keith v. Lawson,

195 Okl. 157, 155 P.2d 716 (1944). An action to cancel

instruments of conveyance is also an action of equitable

cognizance. Clovis v. Clovis, 460 P.2d 878 (Okl. 1969). Thus,

because the relief being sought herein by both the plaintiff

A. 64

and the defendants is of an equitable nature, it is concluded

that this is an action in equity and as such, the rights of the

parties hereto are governed by the established rules pertaining

to suits in equity or of equitable cognizance. Keith v. Lawson,

supra.

This action being in equity, this Court has broad power

to accord sich relief as is required by justice 2nd equity, and

as is required “to protect and conserve the equities of the

parties litigant.” 27 Am.Jur.2d Equity §103, pgs. 624-625.

In an equitable action, a court has great flexibility and if the

case requires the court to furnish an equitable remedy, the

courts will provide one although the question presented is

novel. 27 Am.Jur.2d Equity § 103, pg. 625. curther, once

the equitable jurisdiction of a court has been invoked, the

court will decide all issues which are relevant to the case,

and the court is empowered to “award relief which is complete

and finally disposes of the litigation so as to accomplish full

justice between the parties litigant. . . ."- 27 Am.Jur.2d Equity

§ 108, pgs. 629-630.

[15] The plaintiff in this action has invoked the equitable

jurisdiction of this Court seeking the benefits of equitable

relief but at the same time contending that, unlike other

citizens of the United States, equitable defenses may not be

asserted against her nor rules of established equity jurisprudence

applied to her detriment because she is of one-half (2) Indian

blood. This contention is without merit. The plaintiff is a

member of the Five Civilized Tribes. Members of the Five

Civilized Tribes are treated substantially different in law than

members of other tribes of Indians; they are governed by

completely different and special legislation and are not

governed by the Indian General Allotment Act, 25 U.S.C.A.

. §331, et seq. (Semple, Oklahoma Indian Land Titles, Ann.,

§ 730, pg. 517, Thomas Law Book Company; TR. 116), and,

accordingly, and as stated by the Field Solicitor testifying

‘ herein, cases dealing with Indians governed by the Indian

General Allotment Act are distinguishable from cases

concerning members of the Five Civilized Tribes because,

A. 65

in the former, a completely different set of laws would be

construed. (TR. 116) Members of the Five Civilized Tribes,

by treaty and by Congressional enactment, have been given the

right and do hold fee title (sic) to their lands, while Indians

governed by the Indian General Allotment Act are only

vested with equita-[1148] ble title in their land with the legal

title remaining in the United States, i.e., the lands are trust

land. (Semple, Oklahoma Indian Land Titles Ann., §§55,

728; TR. 116) The plaintiff is not a restricted Indian for the

reason that there is no such thing as a restricted Indian among

the members of the Five Civilized Tribes. (TR. 103) Unlike

Indians governed by the Indian General Allotment Act, the

plaintiff is not a ward of the United States Government or any

agency tuereof, nor does she suffer from any incompetency

or other legal disability which would shield her from the

assertion of equitable defenses or application of rules of estab-

lished equity jurisprudence. There is no act of Congress making

members of the Five Civilized Tribes of one-half (%) blood

wards of the United States Government or monies received by

such Indians subject to management or control of the Bureau

of Indian Affairs or the Department of the Intenor or any

other federal agency. Accordingly, this Court concludes as a

matter of law that the plaintiff is subject to equitable defenses

and the application of established rules of equity.

[16] 8. By legislative enactment, Congress, in 1926,

made the Oklahoma statutes of limitation applicable to all

Indians of the Five Civilized Tribes and against the heirs and

grantees of such Indians. (Act of April 12, 1926, §2, 44 Stat.

240). In making the Oklahoma statutes of limitations applica-

ble to members of the Five Civilized Tribes, it was Congress’

intent to effectuate the same result as if the action had been

brought by a non-Indian. Wolfe v. Phillips; 172 F.2d 481

(10th Cir. 1949). The underlying purpose of statutes of

limitation is to prevent the unexpected enforcement of stale

claims against those who have been misled by the lack of

prosecution for a considerable period of time and, further,

to promote diligence of prosecution. Seitz v. Jones, 370 P.2d

300 (Okl. 1962). Congress, in enacting the 1926 Act regarding

A. 66

the statutes of limitation and the Five Civilized Tribes, has

shown its intent to impose an obligation upon members of the

Five Civilized Tribes, to diligently pursue their legal remedies

and rights, and to prevent the inequities which result from the

assertion of stale claims by such Indians.

[17] Like statutes of limitation, the equitable doctrine

of laches also has as its purpose the discouragement of stale

claims and the encouragement of diligence in prosecution.

Swartz v. Dennis, 208 Okl. 334, 225 P.2d 923 (1953); 30A

C.J.S. Equity §113, pg. 31. So close are the purposes sought

to be accomplished by both the statutes of limitation and

laches that courts of equity, which are not usually bound by

statutes of limitation, will apply the statutes by analogy in

equitable actions for the purposes of determining the applica-

bility of laches. Shell v. Strong, 151 F.2d 909 (10th Cir. 1945).

In light of the fact that the purposes of statutes of limitation

and the equitable doctrine of laches are the same, it is

concluded that the purpose of Congress in its 1926 Act to bar

stale claims of the members of the Five Civilized Tribes can

only be fully effectuated if the equitable doctrine of laches is

likewise applicable.

[18] It is further concluded that cases holding that the

doctrine of laches is not available in actions brought by

Indians with respect to their restricted lands, are not dispositive

in this case, for the reason that such cases either are concerned

with Indians governed by the Indian General Allotment Act,

25 U.S.C.A. §330 et seq., and not Indians of the Five Civilized

Tribes, or such cases were decided prior to the enactment of

the Act of April 12, 1926. As to the cases decided prior to the

enactment of the Act of April 12, 1926, the courts at that time

did not have before them the Congressional intent reflected

by the 1926 Act to impose an obligation on the members of

the Five Civilized Tribes to diligently prosecute their legal

rights and remedies concerning their restricted lands. Further,

this Court does not feel that it is compelled to follow the

Oklahoma Supreme Court case of Smith v. Williams, 78 Okla.

297, 190 P. 555 (1920), as authority that equitable remedies

A. 67

are not available against Indians with respect to their restricted

land. It is the conclusion of this Court that the Congressional

intent [1149] reflected by the 1926 Act to require the

members of the Five Civilized Tribes to diligently prosecute

their legal rights and remedies concerning their restricted lands

is such as to question the validity of the rule of that case insofar

as the question of equitable defenses is concerned. It is this

Court’s conclusion that if the Oklahoma Supreme Court were

confronted with the question of the applicability of laches and

other equitable defenses in actions involving Indians of the

Five Civilized Tribes, the Oklahoma Court, in light of the 1929

Act, would no longer adhere to the ruling of that case insofar

as laches and other equitable defenses are concerned. Federal

courts, when placed in the position of applying state law, are

not necessarily bound “to follow state court decisions where

it appears that a state court considering the identical issue

would not rely on such precedent.” Hood v. Dun & Bradstreet,

Inc., 486 F.2d 25 (Sth Cir. 1973); Compare: Bernhardt vy.

Polygraphic Company of America, 350 U.S. 198, 76 S.Ct. 273,

100 L.Ed. 199 (1956); (See concerning opinion of Justice

Frankfurter, 350 U.S. at 208-212, 76 S.Ct. 273) cf. Wright,

Law of Federal Courts, §58, pgs. 238-239 (2d. Ed. 1970,

West Publishing Co.).

The Court accordingly concludes that the equitable

doctrine of laches may be asserted by the defendants as a

defense in this case.

9. The application of the doctrine of laches depends

upon the circumstances and equities of the particular case.

O’Brien v. Wheelock, 184 U.S. 450, 22 S.Ct. 354, 46 L.Ed.

636 (1901); Bechler v. Kaye, 222 F.2d 216 (10th Cir. 1955).

The issue of laches and the determination of whether the same

is applicable, is within the sound discretion of the Court.

30A C.J.S. Equity § 115 pgs. 30-40.

[9-21] To constitute laches, there must exist two basic

elements: inexcusable delay in instituting suit; and prejudice or

injury to the defendant as a result of inexcusable delay.

A. 68

Alexander v. Phillips Petroleum Co., 130 F.2d 593 (10th Cir.

1942). There is no set or fixed time in regard to the determina-

tion of the doctrine of laches, and the length of delay must be

determined from the circumstances of each case. 30A C.J.S.

Equity §116 pg. 46; Bechler v. Kaye, supra; Alsop v. Riker,

155 U.S. 448, 15 S.Ct. 162, 39 L.Ed.218 (1894). The basic

premise of the doctrine of laches is that it is applicable in

cases where, by virtue of a lapse of time, it would be inequitable

for a party to enforce his legal right, when such lapse of time

has resulted in prejudice to the defendant. Socony Mobile Oil

Company v. Continental Oil Company, 335 F.2d 438 (10th

Cir. 1964). One of the primary elements in determining whether

the delay is inexcusable, is whether the person against whom

the doctrine is being asserted had knowledge of the facts which

give rise to his or her cause of action. 27 Am.Jur.2d Equity,

§ 166 pg. 709. Regarding the plaintiff's knowledge of the facts

giving rise to his or her cause of action, the plaintiff is charged

with such knowledge as could have been obtained upon inquiry,

if such facts are such as to put a person of ordinary intelligence

on inquiry. Johnson v. Atlantic, G. &W.I. Transit Co., 156 US.

618, 15 S.Ct. 520, 39 L.Ed. 556 (1894). If such facts are

known by the plaintiff, lack of knowledge of the applicable

law will not ordinarily be an excuse for delay. Alexander v.

Phillips Petroleum Co., supra.

[22] Applying the above stated law to the evidence

presented on the trial of the merits of this case, the Court

concludes that the plaintiff is guilty of laches and that the

relief sought by her herein is barred thereby. The plaintiff

delayed for an unreasonable, period of time in asserting any

claim to the subject real property (eight (8) years and

approximately three (3) months) during which period the

defendants in good faith and without knowledge of the

plaintiff's claim and in reliance on the plaintiff's deed to the

defendant Becko materially changed their position by

developing the property and constructing substan.al improve-

ments thereon. Defendants have suffered considerable

detriment as a result of the plaintiff's delay in asserting her

A. 69

claim herein. The plaintiff had actual knowledge of such

development and construction of substan-[ 1150] tial improve-

ments. The plaintiff and her attorney likewise knew, or with

reasonable diligence should have known, of the facts giving

rise to the claim asserted herein at the time of her conveyance

to the defendant Becko. Both the plaintiff and her attorney

had knowledge of more than sufficient facts which would put

an ordinary person on inquiry as to whether the land was

restricted and as to whether the deed to defendant Becko need

be approved. It is the conclusion of this Court that the plaintiff's

delay in asserting her claim is inexcusable under all the facts and

circumstances in this case.

[23,24] 10. It is a firmly established rule of equity

jurisprudence that he who seeks equity must do equity, that

only conscience, good faith and diligence can put equity into

operation, and that he who comes into equity must come with

clean hands. Luschen v. Stanton, 192 Okl. 454, 137 P.2d 567

(1943); 30A C.J.S. Equity §113 pgs. 32-33.

[25]. Under all the evidence presented in the trial of this

case, the Court concludes as a matter of law that the plaintiff

has not sought to do equity herein and seeks to invoke the

equitable aid of this Court possessed of unclean hands.

Accordingly, the plaintiff may not obtain the equitable relief

sought by her of quiet title and cancellation of instruments.

The plaintiff’s refusal to now consent to the approval of her

December 3, 1965 deed to the defendant Becko is in bad faith.

The plaintiff:

(1) has not sought \ set aside any other conveyance

by her of her restricted lands;

(2) has consented to approval of another conveyance

of her restricted land to a third party not here involved

after exacting payment from said third party as a condi-

tion to such consent;

A. 70

(3) remained silent with regard to her claim herein

while observing substantial improvements being made. to

the subject property by the defendants;

(4) admittedly received a fair price for the subject

property, admittedly was competent during the entire

transaction with defendant Becko, was admittedly advised

by legal and tax counsel during the entire transaction with

defendant Becko, admittedly executed, acknowledged

and delivered the General Warranty Deed of December 3,

1965 and possession of the subject real property to

defendant Becko as her free and voluntary act and deed;

(5) admittedly was not under any undue influence,

fraud or duress;

(6) Admittedly delayed for over eight (8) years and

until shortly after completion of the improvements by

defendants to assert her claim.

The Court concludes that a literal application of the Act of

August 4, 1947 in this case would result in substantial and

unjust enrichment of the plaintiff and under the facts and

circumstances of this case would do substantial violence to the

concept of “fundamental fairness” which the Supreme Court

of the United States has declared to be the cornerstone of due

process of law guaranteed by the Fifth Amendment to the

United States Constitution.

11. The Court concludes that the defendants Owen D.

Young and Robert L. Latch, d/b/a Young & Latch Investments,

a general partnership, are vested with legai and equitable title

to, and are entitled to the peaceable possession of, Lots One

(1), Two (2), and Three (3), Block One (1), and Lot Two (2),

Block Two (2) of Maple Leaf Addition to the City of Broken

Arrow, Oklahoma, according to the recorded plat thereof, and

that the title and possession of said real property and the

improvements thereon owned by said defendants should be

quieted in said defendants against all claims or demands by the

A. 71

plaintiff, Nellie Atkins Armstrong, her husband, Ruskin

Armstrong, and those claiming, or to claim, by, through or

under them or any of them. The Court further concludes that

defendant Maple Leaf Apartments, Ltd. is vested with legal and

equitable title to, and is entitled to peaceable possession of

Lot One (1), Block Two (2) of Maple Leaf Addition to the City

of Broken Arrow, Oklahoma, according to the recorded plat

thereof, and [!151] that title and possession of said real

property and the improvements thereon owned by said

defendant should be quieted in said defendant as against all

claims or demands by the plaintiff, Nellie Atkins Armstrong,

the plaintiff's husband, Ruskin Armstrong, and those claiming,

or to claim, by, through or under them or any of them.!

12. The Court further concludes that court costs herein

expended should be taxed and assessed against the plaintiff, and

that the defendants, and each of them, should have and recover

judgment against the plaintiff, for the amount of court costs

herein expended by each of such defendants respectively.

13. The Court further concludes that the receiverships

herein should be dissolved, possession of the premises

redelivered by the respective receivers in accordance with

Conclusion of Law No. 11 above, said receivers discharged from

their duties and responsibilities, and the funds currently held

by said receivers should be deposited with the Court to be

hereafter distributed pursuant to further order of this Court.

'In its amended Order of February 24, 1975, relative to the issuance

of a preliminary injunction in this cause, the Tenth Circuit Court of

Appeals authorized and empowered this Court to adjust the equities

between the parties at the trial of the cause on its merits. Under the

evidence presented and issues raised at the trial on the merits of this

cause, and in consideration of the above and foregoing findings of fact

and conclusions of law of this Court, this Court concludes that a balancing

or adjustment or (sic) the equitites between the parties is not warranted

and that the exercise of such power extended this Court is not necessary.

A. 72

JUDGMENT

The Court, on this 2nd day of August, 1977, filed in this

cause its Findings of Fact and Conclusions of Law, which are

hereby incorporated herein and made a part of this Judgment.

Pursuant to such Findings of Fact and Conclusions of Law:

IT IS ORDERED, ADJUDGED AND DECREED that

judgment be denied the plaintiff on each count and cause of

action alleged by plaintiff in her Complaint and amendments

thereto and that judgment be entered herein denying to

plaintiff in its entirety the relief sought by her in her Complaint

and amendments thereto.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the defendants and _ cross-complainants,

Owen D. Young and Robert L. Latch, d/b/a Young & Latch

Investments, a general partnership, are the owners of and vested

with full and complete legal and equitable title in and to the

following described real property, together with all improve-

ments thereon and rights and appurtenances thereunto

belonging, located in Tulsa County, State of Oklahoma, to-wit:

Lots One (1), Two (2) and Three (3), Block One (1),

and Lot Two (2), Block Two (2), MAPLE LEAF ADDI-

TION to the City of Broken Arrow, Tulsa County,

Oklahoma, according to the recorded plat thereof,

and that said defendants and cross-complainants are entitled

to the peaceable possession and quiet enjoyment of all said real

property, improvements and appurtenances.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that title to the above described real property and

all improvements thereon and rights and appurtenances there-

unto belonging be and the same is hereby quieted and

confirmed in the defendants and cross-complainants, Owen D.

Young and Robert L. Latch, d/b/a Young & Latch Investments,

A. 73

a general partnership, against any and all claims thereto of the

plaintiff, Nellie Atkins Armstrong, and the third-party

defendant herein, Ruskin Armstrong.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the plaintiff, Nellie Atkins Armstrong, and the

third-party defendant, Ruskin Armstrong, and each of them,

have no right, title, estate, lien, claim or interest in and to the

above described real property, improvements thereon and rights

and appurtenances thereunto belonging, or any part thereof,

and that siad plaintiff and third-party defendant, and all those

claiming or to claim by, through or under them, or any of

them, be and they are hereby perpetually barred [1152] and

enjoined from setting up or asserting any right, title, estate,

lien, claim or interest in and to the above described real

property and premises adverse to the title thereto of the

defendants, Owen D. Young and Robert L. Latch, d/b/a Young

& Latch Investments, a general partnership.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the plaintiff, Nellie Atkins Armstrong, and said

third-party defendant Ruskin Armstrong, and all those claiming

or to claim by, through or under them, or any of them, be and

they are each hereby perpetually barred and enjoined from

interfering with the possession and quiet enjoyment of the

aforesaid real property and premises by the defendants and

cross-complainants, Owen D. Young and Robert L. Latch,

d/b/a Young & Latch Investments, a general partnership, and

their tenants and all other persons claiming by, through or

under said defendants and cross-complainants.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the defendant and cross-complainant, Maple

Leaf Apartments, Ltd., a limited partnership, is the owner

of and vested with full and complete legal and equitable title

in and to the following described real property, together with

all improvements thereon and rights and appurtenances there-

unto belonging, located in Tulsa County, State of Oklahoma,

to-wit:

A. 74

Lot One (1), Block Two (2), MAPLE LEAF ADDITION

to the City of Broken Arrow, Tulsa County, Oklahoma,

according to the recorded plat thereof,

and that said defendant and cross-complainant is entitled to

the peaceable possession and quite enjoyment of all said real

property, improvements and appurtenances.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that title to the real property last above described

and all improvements thereon and rights and appurtenances

thereunto belonging be and the same is hereby quieted and

confirmed in the defendant and cross-complainant, Maple

Leaf Apartments, Ltd., a limited partnership, against any

and all claims thereto of the plaintiff, Nellie Atkins Armstrong,

and the third-party defendant herein, Ruskin Armstrong.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the plaintiff, Nellie Atkins Armstrong, and the

third-party defendant, Ruskin Armstron, and each of them,

have no right, title estate, lien, claim or interest in and to the

real property last above described, improvements thereon

and rights and appurtenances thereunto belonging, or any part

thereof, and that said plaintiff and said third-party defendant,

and all those claiming or to claim by, through or under them,

or any of them be and they are hereby perpetually barred and

enjoined from setting up or asserting any right, title, estate,

lien, claim or interest in and to the latter described real

property and premises adverse to the title thereto of the

defendant and cross-complainant, Maple Leaf Apartments,

Ltd., a limited partnership.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the plaintiff, Nellie Atkins Armstrong, and

said third-party defendant Ruskin Armstrong, and all those

claiming or to claim by, through or under them, or any of

them, be and they are each hereby perpetually barred and

enjoined from interfering with the possession and quiet enjoy-

ment of the last above described real property and premises

A. 75

by the defendant and _ cross-complainant, Maple Leaf

Apartments, Ltd., a limited partnership, and their tenants

and all other persons claiming by, through or under said

defendant and cross-complainant.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that Robert L. Latch, the duly appointed.trustee

in possession of the following described real property situated

in Tulsa County, State of Oklahoma, to-wit:

Lot Two (2), Block Two (2), MAPLE LEAF ADDITION

to the City of Broken Arrow, Tulsa County, Oklahoma,

according to the recorded plat thereof,

be and he is hereby directed to immediately deliver peaceable

possession of the latter described real property, together with

all improvements thereon and appurtenances thereunto

belonging, to the defendant, Maple Leaf Apartment, Ltd., a

limited partnership. IT IS FURTHER ORDERED, ADJUDGED

AND DECREED that said trustee in possession be and he is

hereby directed to render to this Court within fifteen (15) days

from the date hereof a written account of his acts as trustee

reflecting all receipts and disbursements by him with respect

to such trusteeship and said trustee is further ordered and

directed by this Court to immediately and forthwith deposit

with the Clerk of this Court all monies in his possession received

by him as trustee, the same together with all monies presently

held by said Clerk as a part of the latter trusteeship to be

hereafter distributed and disbursed pursuant to further order

of this Court.

IT IS FINALLY ORDERED, ADJUDGED AND

DECREED that the defendants and cross-complainants herein

have and recover from the plaintiff judgment for all their costs

herein expended.

A. 76

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

_ No. 74-1286

NELLIE ATKINS ARMSTRONG,

Plaintiff-Appellant,

Vv.

MAPLE LEAF APARTMENTS, LTD.,

a Limited Partnership; BROKEN ARROW

MALL, INC., a Corporation; OWEN D.

YOUNG and ROBERT L. LATCH, d/b/a Appeal from

YOUNG & LATCH INVESTMENTS, a the United

General Partnership; FIRSTTUL MORT- States District

GAGE COMPANY, a Corporation; SACK- Court for the

MAN-GILLIAND CORPORATION, a Northern

corporation; FIRST NATIONAL BANK District of

& TRUST COMPANY OF TULSA, OKLA- Oklahoma

HOMA, a National Banking Association; (D.C. No.

and HAMILTON INVESTMENT TRUST, 74-C-119)

a Massachusetts Business Trust,

Defendants-Appellees.

i a a a ee _ ee _e_ ee_ e ee_ e

Jay C. Baker, Tulsa, Oklahoma (C. Rabon Martin and

Christopher J. Grant, Tulsa, Oklahoma, on the brief), for

Plaintiff-Appellant.

Royce H. Savage, Tulsa, Oklahoma, for Defendant-Appellee

Maple Leaf Apartments, Ltd. (Chris L. Rhodes III, Tulsa,

Oklahoma, James R. Ryan, Tulsa, Oklahoma, James D. Groves,

Tulsa, Oklahoma, and Charles A. Whitebook, Tulsa, Oklahoma,

on the brief), for Defendants-Appellees.

A. 77

Before LEWIS, Chief Judge, and HOLLOWAY and DOYLE,

Circuit Judges.

DOYLE, Circuit Judge.

(Filed December 12, 1974)

This appeal seeks reversal of a judgment which denied

plaintiff a preliminary injunction incidental to an ejectment

and quiet title action filed in the United States District Court

for the Northern District of Oklahoma in which the plaintiff,

a person of American Indian ancestry, sought to set aside a

deed to land which had been alloted. Jurisdiction arises under

28 U.S.C. § § 1331 and 1353.

The embattled conveyance was executed on December 3,

1965. This did not end the matter because by Act of Congress

the conveyance of restricted land requires approval to be

obtained from the county court in Oklahoma for the county

in which the land was situated. Act of August 4, 1947, 61 Stat.

731.

Originally, the subject land had been allotted to Billy

Atkins, a full-blood Creek Indian and had been restricted

against alienation by the Act of May 27, 1908, 35 Stat. 312.

Atkins died in 1929 and 120 acres, which included the land

involved in this action, descended to plaintiff and her two

brothers. They, in turn, effected a voluntary partition of the

tract, part of which is involved in this action. It is unclear

from the evidence whether plaintiff had a full interest in the

tract or merely a one-third interest, but this is unimportant

here. The Act of Congress contains restrictions on the aliena-

tion of land acquired by devise or inheritante from Indians

whose land had been restricted and is absolute in its require-

ment that the conveyance in order to be valid has to be

approved in open court.!

1 The statute in question reads:

A. 78

Plaintiff is unquestionably a one-half blood Creek Indian

who meets the terms of the statute.

_ The evidence at the hearing established that plaintiff

had first given the option to sell this property in 1964. Subse-

quently there was an assignment to H. Harold Becko who was

named as a defendant only after he had filed a petition seeking

approval of the conveyance. Very soon after she had executed

the option, the plaintiff apparently entertained doubts about

conveying the property. She consulted her then attorney who

told her that she could not avoid conveying the property even

in the face of the fact that one of the checks given for the

option was dishonored. Notwithstanding her change of mind,

she executed the warranty deed to H. Harold Becko on

December 3, 1965 for a consideration of $107,100.

We have noted that the necessary approval of the county

court was not obtained at the time of conveyance. At trial Mr.

Petrik, the attorney who had represented plaintiff in connection

(Footnote 1 continued):

[The] petition for approval of conveyance shall be set for

hearing not less than ten days from date of filing, and notice

of hearing thereon, signed by the county judge, reciting the

consideration offered and a description of the land shall be

given by publication in at least one issue of a newspaper of

general circulation in the county where the land is located

and written notice of such hearing shall be given to the

probate attorney of the district in which the petition is filed

at least ten days prior to the date on which the petition is

to be heard. The grantor shall be present at said hearing and

examined in open court before such conveyance shall be

approved, unless the grantor and the probate attorney shall

consent in writing that such hearing may be had and such

conveyance approved in the absence of the grantor, and the

court must be satisfied that the consideration has been paid

in full. (Emphasis added.)

Section 1(b), Act of August 4, 1947, 61 Stat. 731.

A. 79

with the conveyance, testified that plaintiff would have asked

the court not to approve the deed had she had an opportunity

to do so. No such consent was then sought. The evidence

further established that neither Mr. Petrik nor plaintiff knew of

the restriction or the necessity for approval.

Becko conveyed the land to one C. H. Rosenstein, trustee,

who quit-claimed to Manual Brown, who conveyed to Broken

Arrow Mall, Inc., from which the present defendant Maple

Leaf Apartments acquired its title. There has been substantial

improvement since the original conveyance.

The action here was filed in the United States District

Court for the Northern District of Oklahoma February 22,

1974, soon after appellant became aware that the land was

restricted. Subsequently (on March 4, 1974), Becko instituted

proceedings in the Probate Division of the District Court of

Tulsa County, Oklahoma in which he sought to have the 1965

deed retroactively approved. The probate division ordered that

the approval hearing would be conducted without competitive

bidding. It issued a subpoena commanding the presence of

plaintiff at the hearing. She did not, however, appear but

filed a motion to dismiss March 12, 1974. Following this, the

plaintiffs in the action, defendants-appellees here, sought a writ

of attachment from the state district court and the judge of the

probate division presently has under advisement the issuance

of the requested warrant for Mrs. Armstrong’s arrest. The

District Court for the Northern District of Oklahoma denied

plaintiff's motion for a preliminary injunction against the state

court action. The court did not, however, dismiss the case.

It retained jurisdiction over the ejectment suit pending the

outcome of the state court proceedings. It is the denial of the

preliminary injunction which is before us. Pending this appeal

the parties have stipulated to hold the probate proceedings in

abeyance.

A. 80

I,

We first consider whether the pertinent statute allows the

Oklahoma court to approve a conveyance of restricted land

without the consent of and indeed over the protest of the

Indian grantor of such land. If the statute allows this to be done

it would then follow that the Oklahoma district court (probate

division) would be entitled to proceed and that the federal

district court’s ruling denying the preliminary injunction was

correct. We must hold that the denial of relief was not correct.

In our judgment the court’s approval of the conveyance cannot

be given without the consent of or over the objection of the

Indian grantor.

The statute itself considered in context with the general

scheme of similar statutes dating back to 1906 defining and

providing procedures for restrictions on Indian lands furnishes

an initial answer. The major effect of the 1947 Act was to

extend restrictions on lands held by full-blood Indians in the

Five Civilized Tribes to half-blood Indians who had received

the lands by devise or inheritance; the result is that the under-

lying policy applicable to full-blood Indians was extended to

half-blood heirs.

Unquestionably the object of the restrictions was to

protect the Indians from improvident dispositions resulting

from overreaching by members of other races. Alonzo v. United

States, 249 F.2d 189 (1957), cert. denied, 355 U.S. 940

(1958).?

2 See also Sunderland v. United States, 266 U.S. 226 (1924); United

States v. Bowling, 256 U.S. 484 (1921); Heckman v. United States, 224

U.S. 413 (1912); Goddard v. Frazier, 156 F.2d 938 (10th Cir. 1946),

cert. denied , 329 U.S. 765 (1946); Drummond v. United States, 131 F.2d

568 (10th Cir. 1942).

A. 81

There is little recorded legislative history. There were

hearings, however, before the House Public Land Committee

which were not printed. These are described by W.F. Semple

in his book, Oklahoma Indian Land Titles 811 (1952). In

commenting on the procedure to be followed in the 1947 Act,

Semple states that a first step is the filing in the county court

(which was then the proper

This text is long and has been trimmed here. Open the source document for the complete record.