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The defendant in error commenced this action in the United States court for the southern district of Indian territory. The now plaintiffs in error were named as defendants. S. L. and S. T. Williams are brothers, and Jennie L. Williams is the wife of the defendant S. L. Williams. Recovery was [216 U.S. 582, 583] sought by the bank, as an innocent holder for value, before maturity, upon a note for $5,000, executed by the defendants, dated February 4, 1904, and payable to the order of Susan E. Mays, with interest. The consideration for the execution of the note was thus alleged in an amended complaint:
The amended complaint was demurred to on the following grounds:
The demurrer was overruled. In an amended answer, thereafter filed, after admitting the making of the note, and averring that it was executed by Jennie Lee Williams as principal and by the other defendants as sureties, the following allegations were made:
Tishomingo, Indian Territory, February 4, 1904
Know all men by these presents:
That I, Susan E. Mays, of Maysville, Indian territory, for and in consideration of the sum of one dollar ($1), cash in hand to me this day paid by Samuel L. Williams, Jennie Lee Williams, and receipt of which money is hereby acknowledged, and the further consideration of the sum of five thousand dollars ($5,000), to be paid me by said Samuel L. Williams, Jennie Lee Williams, on the 4th day of May, 1904, which indebtedness is evidenced by a promissory note of even date herewith, due on the 4th day of May, 1904, bearing interest at the rate of 8 per cent per annum from date, signed by S. L. Williams, Jennie Lee Williams, and S. T. Williams, I hereby bargain, sell, and convey and relinquish all my right, title, or claim which I have in any way in and to the possession of the lands and improvements situated upon the N. 1/2 of the N.E. 1/4 of the E. E. 1/4 of sec. 16, and the N.E. 1/4 of the N.W. 1/4 of the S.E. 1/4 sec. 16, and the S.E. 1/4 of the N.E. 1/4 of the S.E. 1/4 of sec. 16, all in township 4 N., range 2 W., Chickasaw Nation, Indian territory.
Relinquishing unto the said Samuel L. Williams and Jennie L. Williams all rights which I have in and to the proceeds due or to become due, or from the sales of town property, or my interests in the said town site, located on the above described premises, hereby relinquishing to them any claim that I have by any former agreements pertaining to any town site on said lands above described.
Witness my hand on this the 4th day of February, 1904.
Susan E. Mays.
A demurrer to the amended answer was sustained, and, the defendants refusing to plead further, judgment was entered on April 14, 1905, in favor of the bank for the full amount of the note, with interest and costs. A writ of error was allowed [216 U.S. 582, 588] and the cause was taken to the United States court of appeals for the Indian territory. While the cause was pending in that court, Oklahoma became a state, and by virtue of the enabling act the cause was transferred to the supreme court of the new state. On December 24, 1907, a petition was filed on behalf of the plaintiffs in error in the supreme court of the state, accompanied with bond, and it was prayed that the cause be removed into the circuit court of the United States for the eastern district of Oklahoma, upon the ground 'that, by virtue of the enabling act, it was entitled to be so removed because the suit herein is of a civil nature at law, arising under the Constitution and laws of the United States.' The application was denied, and, from a judgment of affirmance thereafter entered (20 Okla. 274, 95 Pac. 457), this writ of error is prosecuted.
The errors assigned in substance are that the supreme court of Oklahoma erred in overruling the application to remove, in holding that error was not committed by the trial court in overruling the demurrer to the amended complaint, and in deciding that error was not committed in sustaining the demurrer to the amended answer.
Messrs. W. O. Davis, L. S. Dolman, and R. E. Thomason for plaintiffs in error.
[216 U.S. 582, 590] Messrs. S. T. Bledsoo and J. B. Thompson for defendant in error.
Statement by Mr. Justice White:
Mr. Justice White, after making the foregoing statement, delivered the opinion of the court:
In addition to discussing the merits, the defendant in error presses upon our attention a motion to dismiss, in substance upon the ground that no question of a Federal nature is presented. As the plaintiffs in error had no greater right to prosecute the writ of error than is possessed by suitors generally when seeking the review of a final judgment of a state court ( 20, enabling act, as amended, 34 Stat. at L. 1287, chap. 2911), it results that our power to review is controlled by Rev. Stat. 709, U. S. Comp. Stat. 1901, p. 575. Irrespective of other contentions, beyond peradventure a question of a Federal nature, however, was raised by the contention, denied by the state court, that a right or privilege existed under a statute of the United States to remove the cause into the circuit court of the United States, and the motion to dismiss cannot therefore prevail.
As to the denial of the right to remove.-The claim of plaintiffs in error is that the right to remove the cause into the circuit court of the United States arose from the fact that it was a suit arising under the Constitution and laws of the [216 U.S. 582, 593] United States, and that the right existed by virtue of 16 of the enabling act, as amended on March 4, 1907 (34 Stat. at L. 1286, chap. 2911 ), the pertinent portion of which is as follows:
In the petition for removal it was alleged in support of the right to remove--
The contention that the cause of action arose under the Constitution or laws of the United States is plainly untenable. Recovery by the bank was in no wise predicated upon any right conferred upon it or its assignor to contract, as was done, and the fact that the makers of the note relied for their defense upon provisions contained in a certain statutes as establishing that the transaction upon which the right to recover was based was prohibited by law 'would only demonstrate that the suit could not be maintained at all, and not that the cause of action arose under the Constitution or laws of the United States.' Arkansas v. Kansas & T. Coal Co. 183 U.S. 185, 190 , 46 S. L. ed. 144, 147, 22 Sup. Ct. Rep. 47.
As to the asserted Federal questions claimed to arise upon the rulings in respect to the overruling of the demurrer to the [216 U.S. 582, 595] amended complaint and the sustaining of the demurrer to the amended answer.- In the light of the allegations of the complaint and the admissions ( either express or implied from the failure to deny) contained in the amended answer, we think the record established that Susan E. Mays and Jennie Lee Williams were members either of the Choctaw or Chickasaw tribe of Indians; that Mrs. Williams selected for allotment and filed upon 40 acres of land, upon which were improvements, situated adjacent to the town of Maysville, Indian territory. The right of Mrs. Williams to select the land being disputed by Susan E. Mays, she filed a contest against the same before the Commission to the Five Civilized Tribes. When this was done, Susan E. Mays was not in the occupancy of any other land liable to allotment. Pending the proceedings, by way of compromise, Susam E. Mays agreed to abandon the contest instituted by her, and relinquish her right to the allotment of the land in controversy and the improvements thereon, in consideration of the execution of the note in suit; that said note was executed for the benefit of the separate estate of Jennie Lee Williams, and was delivered to Susan E. Mays, who thereupon abandon the prosecution of her said contest before the Commission, and the allotment of the land to Mrs. Williams followed.
Compromises of disputed claims are favored by the courts (Hennessy v. Bacon, 137 U.S. 78 , 34 L. ed. 605, 11 Sup. Ct. Rep. 17); and presumptively, the parties to the compromise in question possessed the right to thus adjust their differences. We come, then, to consider whether, as claimed, there was a want of consideration for the note because of an express or implied statutory prohibition against the transaction which formed the consideration for the note.
In the demurrer to the amended complaint, the claim advanced to defeat the right to recover on the note, which was substantially reiterated in the amended answer, was that, in truth, the sale was of the land, and was illegal because not made according to the method for acquiring allottable tribal [216 U.S. 582, 596] land provided for in agreements between the government of the United States and the Choctaw and Chickasaw governments, and because controversies as to allotments of land over which the Dawes Commission had jurisdiction could alone be determined by that body. We do not pause to consider whether these general allegations constituted such a special setting up of a right, privilege, or immunity under a law or laws of the United States as is required by Rev. Stat. 709. Considering the complaint and answer in their entirety, especially when viewed in the light of the allegations of the petition for removal, it clearly results, as stated in the petition for removal, that 'the consideration for the said note was that the payee thereof should cease to prosecute further and abandon a certain contest then pending before the Commission to the Five Civilized Tribes, in which the payee was contestant and the appellant herein was contestee.' In the argument at bar, while counsel has referred to statutory provisions and to various decisions which it is asserted establish that a sale by an Indian of part of an excessive holding of allottable tribal land or of improvements thereon would not be a valid consideration for a note given to evidence the price of such sale, we have been referred to no statute nor cited to any treaty or agreement made with the Indian Tribes giving rise even to the suggestion that where a bona fide contest existed between two Indians as to right to a tract or tracts of land, arising from a claim based upon selection, on the one hand, and, on the other, because of occupancy and improvements, it would be unlawful for the latter to abandon his contention as to his preferential right for a money consideration. Nor have we been referred to any statutory provision which, either expressly or impliedly, deprived the parties to a contest of their right to compromise simply because of the pendency of the contest before the Commission to the Five Civilized Tribes. An opinion of the United States court of appeals of the Indian territory, a tribunal which was specially competent to pass upon a question of the kind [216 U.S. 582, 597] we are considering, lends support to the conclusion we have reached, that a member of either the Choctaw or Chickasaw tribe, when, as here, there is no showing that such a member was the holder of an excess of lands subject to allotment, was not prohibited at any time from selling his improvements upon tribal land, or abandoning his right to the possession thereof to another Indian. The opinion referred to was announced in the case of Thomason v. McLaughlin, 7 Ind. Terr. 1, 103 S. W. 595, in which case, among other questions, the court passed upon the validity of a sale of tribal land by one Indian to another after the enactment of the act of June 28, 1898, known as the Curtis bill (chap. 517, 30 Stat. at L. 495), wherein, in 29, is embodied the so-called Atoka agreement. After referring to a provision in 17 of the act, limiting the extent of an Indian's holding before allotment to the approximate share of the lands to which he and his wife and minor children were entitled, and making it a misdemeanor to retain the possession of an excess of such share after the expiration of nine months from the passage of the act, the court said (p. 9):
While the asserted Federal questions are not so wholly devoid of substance as to be purely frivolous, they are, nevertheless, without merit, and the judgment must be and it is affirmed.
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Citation: 216 U.S. 582
Docket No: No. 130
Argued: March 09, 1910
Decided: March 21, 1910
Court: United States Supreme Court
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