
    COOK v. HARJO et al.
    No 16754
    Opinion Filed July 27, 1926.
    1. Appeal and Error — Sufficiency of Evidence — Review in Equity Case.
    In an appeal to this court from a judgment of a trial court, in a case of purely equitable cognizance, where the record discloses competent and material evidence sufficient co mate prima facie proof of every fact essential to the existence of the defense of the defendant on which the judgment is based, and the judgment is not .clearly against the weight of‘the evidence, the judg-menc will not be set aside.
    
      2. Indians — Tribal Status of Allottee — Con-' clusiveness of Allotment.
    The question of fact whether a ‘Creek Indian is entitled to be on the rolls, of citizenship, and to participate in the division of tribal lands, cannot bet retried in the courts, when not impeached for fraud c¡r mistake, where the decision of the Dawes Commission to place the name of such Indian on the roll of Creek citizens by blood has been • followed by the action of the Interior Department confirming the allotment and ordering the parents conveying the lands, which were in tact issued.
    3. Appeal and Error — Discretion of Trial Court — New Trial for Newly Discovered Evidence. ,
    A motion for a new trial, ota account of newly discovered evidence, is addressed to the sound discretion of the trial court, and in the absence of an abuse of such discretion its action thereon will not be disturbed on appeal.
    (Syllabus by Foster, C.)
    Commissioners’ Opinion, Division No. 5.
    Error irom District Court, Okfuskee County ; John L. Norman, Judge.
    Action by Wallace C. Cook against Albert Harjo and others to determine the title and ownership of land. Judgment; for defendants, and plaintiff appeals.
    Affirmed.
    O. T. Huddleston and Dogan Stephenson, for plaintiff in error.
    James 0. Davis, for defendants in error.
   • Opinion by

FOSTER, 0.

This was a proceeding brought in the court beLoiw by the plaintiff in error, Wallace C. Cook, against Moses Jefferson, Thomas Jefferson, Señora Jefferson, Henry W. Perryman, Melissa Crow, Jonas Harjo, Tarso Harjo, Thomas Homahta, D. B. Jackson, T. B. Slick, and the heirs, executors, administrators, devisees, trustees, and assigns of Martie, deceased, as defendanrs, pursuant to chapter 261 of the 1919 Session Laws of Oklahoma, to determine the title and ownership of 160 acres of land located in Okfuskee county.

The plaintiff in error claimed title through approved conveyances from the above-named defendants, except L. B. Jackson and T. B. Slick, as heirs at law of Martie, deceased, a full-blood Creek Indian enrolled opposite roll Not 8164.

Notice by publication was obtained upon the unknown heirs of Martie, deceased, pursuant to which various defendants appeared im the case and set up title to said allotment, among them being the defendants in error, Albert Harjo, Alex Harjo, and Martha Harjo. The asserted claims of various oth-' er defendants were denied by the trial court in its judgment, Irom which no appeal has been prosecuted.

The trial court, however, in its judgment determined that each of the defendants in error was entitled to an undivided one-eighch interest in the allotment in question, and rendered judgment accordingly. From this judgment and from an order overruling his motion for a new trial, the' plaintiff in error appeals to this court for review, claiming in the first place that the judgment is against the clear weight of che evidence.

The trial court found that Henry W. Perry-man, Melissa Crow, Thomas Homahta, Jonas Harjo, Tarso Harjo, Alex Harjo, Albert Har-jo, and Martha Harjo were all second cousins of Martie, deceased, and each entitled to inherit* the undivided one-eighth interest in his allocment. The effect of this judg-' meat, as we understand it, is that the plaintiff in error is the owner only of the five-eighths undivided interest in said allotment, the remaining tbree-eighths interest being still owned by the defendants in error.

The question, therefore, for our determination, under the record here presented, is whether the judgment of the trial court to the effect that the defendants in error were entitled to share equally in the allotment in question with Henry W. Perryman, Melissa Crow, Thomas Homahta, Jotaas Harjo, and Tarso Harjo is against, the clear weight of the evidence.

Ic seems to be agreed between the parties that Martie, the allottee, died in 1917, intestate, unmarried, and without issue, leaving neither father, mother, brother, nor sisj ter surviving. The parties appear also to be in agreement that Martie was a son of Fushutche Harjoi, and Peeoher. The evidence relied on by both sides to establish the relationship of the contending parties with Mar-tie was largely a matter of vague reeollection by aged witnesses of events transpiring many years ago and of hearsay statements communicated irom one relative to another, and viewed in its entirety the evidence was not very certain and definite.

The contention of the defendants in error that cliey are second cousins of Martie appears to be based upon the theory' that Mar-tie left surviving neither brothers nor sisters nor descendants of brothers or sisters, and that their relationship was craced through .Cinda, an aunt of Martie and the grandmother of the defendants in error; that Lhe father and mother of Martie were Eushutclie Harjo and Peeoher; that Cinda was a sister of Eushutclie Harjo, whose daughter, Lucy Harjo, was the mother of the defendants in error, making Martie, deceased, and the defendants in error second cousins.

This was substantially the testimony of all- the defendants in error, which appears to be corroborated by the conduct and declarations of Martie himself. "When we come bo consider (he claim of 'the plaintiff in error that Henry W. Perryman, Melissa Crow, Thomas ITomahta, Jonas Harjo, and Tarso Harjo were more closely related to Martie than the defendants in envoi, plaintiff in error’s witnesses do not appear to be in agreement: as to the facts relied upon to establish such relationship.

. Some of the witnesses, particularly Thonn as ITomahia, made plaintiff in error’s grantors second cousins Of Martie, tracing the relationship through Hulputta Harjo, a brother of Martie’s father, Eushutclie Harjo, and through certain sisters of Peecher, Martie’s mother, while other witnesses for plaintiff in error, notably Tecumseh Green and Okfus-kee Harjo, repudiated this theory and traced the relationship of some of plaintiff’s grantors through an alleged brother of Martie, Osia Yahola, the admitted father of Melissa Crow.

It developed later, during a hearing in the trial court on plaintiff’s supplemental motion foir a new trial, that plaintiff in error seemed to rely upon the testimony of ’Shawnee Harper and Janies Rabbit to the effect generally that I-Iulputta Harjo was not, as testified to by Thomas Homahta, an uncle of Martie, but on the contrary was a brother of Martie, which would make Thomas I-Iomahta a nearer relation of Mar-tie than he appeared to be according to his own testimony.

• There was, in our view of the case, such a lack of consistency in the sworn testimony of the various witnesses for plaintiff in er-i ror and such vagueness and uncertainty in the stories detailed by some of these witnesses as in our opinion to fully justify the trial court in finding in favor of the defendants in error, establishing them to be second cousins of Martie, and entitled equally with the plaintiff in error’s grantors to inherit' his estate.

. In an action of equitable cognizance it is the duty of the Supreme Court on appeal to review (he entire evidence, weigh the testimony of the witnesses, as well as the facts and circumstances which tend to corroborate or discredit them, and to determine the case accordingly, and if upon such review the judgment and finding of the tria_l court is not clearly against the weight of the evi-' deuce, the judgment of the trial court should be sustained.

It is well settled in this state than in an equitable action the presumption is in favor of the finding of the trial court, and it will not be set aside unless clearly against the weight of the evidence. Simpson v. Schall et al., 110 Okla. 90, 236 Pac. 384; Johnston v. Key et al., 110 Okla. 19, 235 Pac. 211.

Upon a careful survey of the entire evidence we cannot say that the judgment of the trial court is clearly against the weight thereof.

The next proposition relied on by the plaintiff in error for a reversal of the judgment is that the trial court erred in not granting him a new tonal on the ground of newly discovered evidence. This contention is based on two propositions: (1) That it had been discovered, subsequently to the trial, by the plaintiff in error that a judgment had been rendered by the district courc of Creek county in a proceeding for the determination of the title to’ the allotment of one Choelle, that the defendants in error were noc heirs of the said Choelle, and that this, judgment operated to bar the claims of defendants in error in the instant case, by reason of the fact that Martie and Choel-le are in fact the same person. (2) That new evidence was discovered by the plaintiff in error subsequent to the trial, material to his cause, which could not witn reasonable diligence have been discovered before the trial, and thafthis evidence, when produced at a subsequent 'hearing, would probably change the result of the trial.

It appears that there was a hearing in the trial court upon plaintiff in error’s supplemental motion for a new trial in which considerable testimony was introduced on both sides, and tlie trial court, after Rearing ami considering all «£ tlie testimony, overruled 'said application for a new trial based on newly discovered evidence. Among oilier things, tlie pleadings in tlie Creek county ease were introduced in evidence, together with the entire transcript o. the evidence in that case and the final judgment of the court therein. There also was introduced in evidence tlie census and enrollment cards of both Choelle, Creek roll No. 8184, and Martie, Greek roll No. 8104; 'also the Creek tribal rolls ,of 1859, 1807, and 1895, toge.lier with the affidavits of James Rabbit and Shawnee Harper, to the effect that Martie was a brother and not a nephew of I-Iutpul-ta Harjo, and the counter affidavits of Tilla Harjo and Yupahake, to the effect that Ilnl-putta Harjo and Martie were not brothers. It appeared from this evidence that the first time the names of Clioelle and Martie appeared on any Indian roll was that of the 1895 rolls, wherein Martie appeared opposite No. 109, Muyaka Town, and OboeUe appeared opposite No. 8, of Pukon Taliliasse Town. The evidence also disclosed that Martie sometimes went by tlie name oí Choelle and was known and recognized under various other-names by the Creek Indians of Ms day, and that an investigation was conducted by the Secretary of the Interior about the year 1912 ro determine whether there had been duplicate allotments made to tlie same person, under the names of Choelle and Martie, resulting in the institution l>y the government of an action in the United States court to cancel the allotment of Choelle in Creek county, which was subsequently dismissed for want of evidence.

There is no showing that tlie defendants in error appeared and participated in tlie trial of the proceeding in Creek: county. An examination of the pleadings in the Creek county case fails to disclose tliat tlie identity of Clioelle and Martie was put in issue thereby, or that the judgment of the Creek county court in that proceeding actually determined that issue. On the other hand, that proceeding merely determined the heir-ship and ownership of an allotment of land in Creek county which all parties agreed had been allotted to Choelle, Creek roll No. 8184.

It surely cannot be successfully maintained that the action of the Dawes Commission in enrolling Martie and Choelle under separate roll numbers and issuing enrollment cards as to each showing different ages and card numbers and in issuing census cards as to each showing d-'fferenr tribal enrollments, different fathers and different mothers, could be impeached by the judgment of a state court in a proceeding for the determination of title and heirship, where there was no issue raised in the pleadings of fraud or mistake on the part of the officials of the Indian department in so enrolling these parties.

In U. S. v. Wildcat, 244 U. S. 111, the Supreme Court of the United States, speaking through Mr. Justice Day, held:

“The question of fact whether a Creek Indian was living- on April 1, 1899, the decision which was committed to the Dawes Commission by the Curtis Act o: June 28, 1898 (30 Stat. at L. 495, chap. 517), and the Creek Agreement of March 1, 1901 (31 Stat. at L. 861, chap. 676), No. 28, authorizing such Commission to make investigation and determine the names of those entitled to be on the rolls of citizenship and to partid-1 pate in ‘he division of tlie tribal lands?, cannot be retried in the courts, when not impeached for fraud or mistake, where the decision of tlie Commission to place the name of such Indian on the roll of Creek citizens by blood has been followed by the action otf the Interior Department, confirming ihe allotment, and ordering the patents conveying the lands, which were in fact issued.”

In Folk v. U. S., 233 Fed. 177, the Eighth Circuit Court of Appeals, speaking through Mr. Justice Sanborn, held :

“The adjudications by the Dawes Com-1 mission of the enrollment of Indians and the allotment of their lands and the patents issued rherech are conclusive and impervious to collateral attack. In suits in equity to avoid them by direct attack the burden is on him wlio attacks them, and he may successfully assail neither of them by doubrful evidence, or a mere preponderance of it. He may succeed only by full proofs, clear, convincing, unambiguous, and entirely satisfactory to the court on every material issue.”

The action of the United States through its representatives in dismissing its action to cancel the allotment of Choelle in Creek county on the ground that the allotment was a duplicate allotment, for want of evidence, and its failure to- institute an action to cancel the allotment of Martie in Oltfus-1 kee county on similar grounds, is to our minds a strong circumstance tending to show that the representatives of the United States did not regard Martie and 'Choelle as one and the isame person.

Furthermore, can it be said that there is in this record clear, unambiguous, and convincing countervailing evidence clearly establishing- error or mistake in enrolling Mar-tie and Choelle as separate individuals, in view of the testimony of Martie himself, appearing- in the record, that he was not related to Turn Emarthla, who is shown by the census card of Ghoelle to have been Ohoelle’s father?

Note. — ¡See under (1) 2 R. O. L. p. 202; 1 R. 4 R. O. L. Supp. p. 91; 81. (2) 81 O. J. p. 490 885 §2817; 20 R. O. L. Supp. p. 1051; 4 R. 0. R. .0. L. Supp. 109.6. 05 cq A ft bn COtP . . CQ fth r' 1-1 o - mw cd o p, tH M ■ . o o a 1-5 4 O £ . M ^ . cq 02 n ft o W r4 05 4 • O l£> CCO ft ^

Plaintiff in error finally contends that he was entitled to a new trial because of statements made by James Rabbit and Shawnee Harper in their affidavits filed by plaintiff in error, as newly discovered evidence, to the effect that Hulputta Harjo was the son of Fushutehe Harjo.

The general rule established in this stace is that a motion for a new trial, on the ground -of newly discovered evidence, is addressed to the sound discretion of the trial cotart, and unless that discretion has been abused, the ruling of the erial court will not be disturbed on appeal. Schaap v. Williams, 99 Okla. 21, 225 Pac. 910; Lamb v. Alexander, 83 Okla. 292, 201 Pac. 519.

We have already called attention to the lack of consistency in the evidence of different witnesses for plaintiff in error as to the relationship of plaintiff in error’s granc-ors with Martie.

One of the theories of plaintiff in error urged in the argument of his assignment that the judgment of the trial court was clearly against che weight of the evidenefe was that Martie was a brother of Osia Yahola, which would result in giving the entire allotment boi Melissa Crow as a niece of Martie. Another theory was that embodied in tbe testimony of Thomas Homah-ca, to the effect that Hulputta Harjo and Fushutehe Harjo were brothers and that he (Thomas Homahta) was a grandchild of Hul-putta Harjot, and therefore a second cousin, of Martie, who was conceded to toe a son of Fushutehe Harjo.

The relationship as detailed by the wit-' ness, Homahta, appears to have been the theory adopted by plaintiff in error in the trial court from the following:

“¡By Mr. Huddleston: Unless there is a disputed point along that line, whether Hul-putta had any children or not, I will not introduce further evidence.
“By Mr. Davis: I don’t know. Are you claiming he was a brother of Fushutehe Harjo?
“By Mr. Huddleston: Yes, sir.”

The evidence, as contained in the affidavits of James Rabbit and Shawnee Harper, relied upon by tbe plaintiff in error as newly discovered evidence, advances still another theory of the relationship of plaintiff in error’s grantors with Martie, in direct conflict with the testimony of Thomas Homahta, to the effect that Hulputta Harjo was a soa of Fushutehe Harjo and a brother of Martie, which would make Thomas Homahta a grand, nephew of Martie, instead of a second cousin, as testified to by him at the trial.

When the affidavits of Tilla Harjo and Yupahake are considered in opposition to the affidavits of James Rabbit and Shawnee Harper, in which it is stated that Hulputta Harjo and Martie were not brothers, it is difficult to conceive how a new trial could result in any different judgment than has already been rendered, or in what respect the trial court abused its discretion in refusing to grant a new trial on the ground of newly discovered evidence as contained in these affidavits.

We perceive no error in the action of che trial court in refusing to grant a new trial on the ground of newly discovered evidence. For the reasons stated in the opinion, the judgment off the trial court is in all things affirmed.

By the Courc: It is so ordered.  