Opinion
No. 4564.
January 30, 1953.
H.A. Ledbetter, Ardmore, Okla., for appellant.
Fred W. Smith, Attorney Department of Justice, Washington, D.C. (James M. McInerney, Asst. Atty. Gen., Edwin Langley, U.S. Atty. Muskogee, Okla., and Roger P. Marquis, Attorney, Department of Justice, Washington, D.C., on the brief), for appellee.
Before PHILLIPS, Chief Judge, and HUXMAN and PICKETT, Circuit Judges.
The main question presented by this appeal is whether the federal government has power to maintain an action for the recovery of restricted Indian Land against one who holds such land under a void lease or whether such action must be brought in the name of the lessee claiming right to possession under a valid lease from the allottee.
Since we are dealing here with a restricted Indian, a ward of the federal government, and her restricted land, the answer must be sought in the federal decisions. An unbroken line of decisions clearly establishes the power of the government to maintain such an action.
Heckman v. United States, 224 U.S. 413, 32 S.Ct. 424, 56 L.Ed. 820; United States v. Forness, 2 Cir., 125 F.2d 928; United States v. Gilbertson, 7 Cir., 111 F.2d 978; United States v. Drumb, 10 Cir., 152 F.2d 821; United States v. Colvard, 4 Cir., 89 F.2d 312; Board of Commissioners of Tulsa County, Oklahoma v. United States, 10 Cir., 94 F.2d 450; McGugin v. United States, 10 Cir., 109 F.2d 94; Stoltz v. United States, 9 Cir., 99 F.2d 283.
The subsidiary question presented is that the court should have in any event required a restoration of the consideration paid by appellant to the restricted Indian for the void lease. No request was made that the allottee, Jane Robinson, be made a party to the action for this purpose. See Heckman v. United States, 224 U.S. 413, 32 S.Ct. 424, 56 L.Ed. 820. It is clear from the record that the court did not err in refusing to require restoration of the consideration.
Upon authority of Heckman v. United States, 224 U.S. 413, 32 S.Ct. 424, 56 L.Ed. 820, and other cases cited in Footnote 1, the judgment appealed from is affirmed.