# Appendix — Armstrong v. Maple Leaf Apartments, Ltd.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 901

## Text

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 rea

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0231%3A2. Public record. Not legal advice.