Poafpybitty v. Skelly Oil Company

PETITIONER:Poafpybitty
RESPONDENT:Skelly Oil Company
LOCATION:Alfred Realty Company

DOCKET NO.: 65
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: Supreme Court of Oklahoma

CITATION: 390 US 365 (1968)
ARGUED: Jan 24, 1968
DECIDED: Mar 18, 1968

Facts of the case

Question

Audio Transcription for Oral Argument – January 24, 1968 in Poafpybitty v. Skelly Oil Company

Earl Warren:

Number 65, Poafpybitty et al.petitioners versus Skelly Oil Company.

Mr. Johns, you may proceed to your argument.

Charles Hill Johns:

Mr. Chief Justice and may it please the Court.

The petitioners in this case are Comanche Indians residing of the State of Oklahoma.

They own some lands that were originally allotted to their predecessor under the General Allotment Act.

The lands are restricted against alienation.

Under the General Allotment Act, these Indian owners are permitted to make an oil and gas lease.

But the oil and gas lease must be approved by the Secretary of the Interior.

They lease some lands to Skelly oil Company.

Skelly Oil Company drilled; sell in wells on the property, produced oil and gas.

They flag the gas into the air.

Petitioners filed suit against Skelly asking damages, money damages for a breach of the expressed and implied governance of the lease.

And notified the United States, invited them to come into the lawsuit.

They did not elect to come into the case.

A trial course sustained a demurrer which is comparable to the motion to dismiss federal practice and it would appeal to the Supreme Court in the State of Oklahoma.

The Supreme Court in the State of Oklahoma held by reason of the federal restrictions against alienation.

These Indian lessor do not have the capacity to bring a suit for damage.

After the Supreme Court had so held by appropriate proceedings, we filed an application for a certiorari which was granted by this Court.

The United States at the invitation of the Court, I have filed a brief amicus curiae and the United States supports our position.

So simply stated it is our position, the only one question here is whether Indian lessors in a departmental oil and gas lease have the capacity to institute and maintain a suit for damages without the joiner the of the United States.

Now, there is no question that the United States had a perfect right to bring such a lawsuit.

It’s our position the Indian lessors have their right to bring such a lawsuit.

The case is here as the Court please, on a question of the pleadings that ended demurrer was sustained.

All the allegations of our petition must be taken as proof.

In other words, we think we should be permitted to bring a lawsuit for damages.

It is our theory that the restrictions against alienation are for the protection of the Indians.

That the United States will not permit certain Indian citizens the right to alienate their lands but that restriction if Your Honor please, goes to the same to the alienation of the property.

It is our position and we submit that it was never the intention of the Congress that an oil and gas lessee such as the respondent in this case would be entitled to benefit by using these restrictions against the Indian and saying that the Indian does not have the right to bring a lawsuit to recover what he thinks he is entitled to receive by reason of a breach of the lease contract.

Supposing you prevail on this —

Charles Hill Johns:

I beg your pardon sir?

Supposing you prevail in this case before us —

Charles Hill Johns:

Yes, sir.

— you try the case, you lose it.

Charles Hill Johns:

Yes sir.

Can the United States bring the suit — now the suit on your behalf?

Charles Hill Johns:

Yes, sir.

There are no questions about that.

There are that — I submit that there is no question about it as I interpret the decisions of this Court and of the —

Indians, now one director perhaps as it shows when United States if he wants to, to come again and sue the — got it all over again?

Charles Hill Johns:

Yes, sir.

I think that’s right sir.

And that is the same situation that applies in any number of different matters as we point that out in our briefs.

But I do not believe if I may say, if Your Honor please, I do not believe that that is the determining test.

The test in this case, if the Court please, is whether or not there has been an intended sale or alienation of the property that is when the federal restriction applied.

Now, and we pointed out in our briefs.

There are some language in the early decision, the Heckman case that of this Court, that indicates clearly that the — a member of the five civilized tribes or the United States Government could bring a lawsuit pertaining to a departmental oil and gas lease.

Some time after that in the Tenth Circuit, there was a case Seitz versus Choctaw and Chickasaw Nations.

In that case reviews of all the authorities were set out in that opinion that is referred to in our brief.

And the Tenth — and the Court of Appeals for the Tenth Circuit, squarely held that either the Indian or the Indian Tribe or the United States could bring such a lawsuit as we seek the right to bring it here.

Now, it is quite clear that the opinion of the state court in this case based to its decision solely on the question of these restrictions prevented the Indian from bringing this suit.

Skelly Oil Company may have raised two or three, other what I think, at least to be interesting question.

One question they raise is they say the Supreme Court of Oklahoma could have decided this case on grounds other than what they did decided on.

I do not think that is the inquiry here.

I think that when the opinion of the States’ Supreme Court squarely basing it this decision on federal regulations, federal laws then it is our position that this Court has jurisdiction to determine whether or not such a decision were sound or unsound.

There is another interesting matter, at least to me, that while the case was in the Supreme Court, Skelly Oil Company filed a motion to dismiss.

The motion to dismiss were denied to dismiss the appeal.

However, in denying the appeal, the Supreme Court stated that in the future a different rule would apply.

In other words, Skelly Oil Company has argued that because a motion to dismiss was denied by the Supreme Court of Oklahoma their lives have been offended under the Federal Constitution because they have been denied to equal protection of the law.

Now, this Court in the Great Northern case that I have said had passed squarely on that question.

That was an interesting case, if Your Honor may please the state court in Montana have ruled and adjudicated the question about tariffs in a previous decision known as the Donnie case when the merit came up to the Supreme Court again in the Great Northern case.

Charles Hill Johns:

The Supreme Court of Montana said, “We’re going to overrule the Donnie case.

But we’re going to apply the rule in the Donnie case to the Great Northern Case and that our ruling here is only prospective.

This Court in that case held that such a decision did not offend the rights of the Great Northern under the Federal Constitution.

And it’s interesting that the Oklahoma Court in writing its opinion on the motion to dismiss followed the Great Northern decision.

I have referred to reserve the balance of my time Your Honor.

Earl Warren:

You may.

We’ll recess now.

John H. Cantrell:

Mr. Chief Justice and may the Court please.

This case contains a much deeper involvement and that indicated by state friend who has proceeding being at this electorate.

As will be indicated I hope by the very brief time which I have to state its various ramifications.

I do believe by way of preliminary that the opinion and decision of the Supreme Court of Oklahoma is much broader in scope and deeper in depths than that indicated by my friend.

In addition to that, I do believe also that under many previous decisions of this Court, I may present to this Court with proprietary matters concerning which the Supreme Court of Oklahoma did not speak consistent with the decree or the decision which was entered.

If the matters were there presented and either erroneously decided or ignored and for that I have no less authority than the language of Mr. Justice Cardozo in Morley Construction Company against Maryland Casualty Company, 300 U.S.185 and 191 which I would briefly refer without a cross appeal.

An appellee may urge and support of a decree any matter appearing in the record.

Although his argument may involve and attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it.

So with that in mind, I think I have just found an outlining to Your Honors the various points which are necessarily involved in a proper decision of the issues in this Court.

Initially, a feel I may say with propriety that I regret and even deplore the suggestion contained in some of the briefs that the decision of the two courts in Oklahoma contrary to the claims of the Indians were the result of racial discrimination.

I believe that the record will indicate beyond per adventure of a doubt that that is not so.

That the doors of the courts were not closed to these Indians and that they had every possible proper consideration are their cause under the procedures of a forum deliberately chosen by the petitioners for the advancement in their cause.

And in that connection I think it is quite proper also to indicate here very briefly and it is covered in the brief more fully, that upon the matter of what the issues were and what kind of a case it was the petitioners were seeking to present, the petitioners made to the trial court a deliberate election of choice of the kind of an action they wish to pursue.

And said to the trial court, “If you will not require us to elect between the two different types of actions which might have been wrong, we will state to Your Honor that hereafter this will be treated solely as an action upon the contract to recover royalties due to the petitioners under the terms of the Department of Lease.”

Now, I say that to Your Honors by way of preliminary because while it is not been definitely stated here in argument, it is clear from the greatest which have been filed and the position of the petitioners below that their theories of their right to maintain this action to successful conclusion are predicated upon the decision of this Court.

In Heckman versus United States in the 212 U.S. 412, 224 U.S. 412, and upon an Act of Congress which as I recall is referred to as the Hasting Act in 1926, applicable only and solely as specifically to the five civilized tribes of which of course the Comanches are not among the number.

The Heckman case is not authority for the maintenance of this action to successful conclusion because the Heckman case contrary to counsel’s statement did not involve an attempt to recover upon a departmental lease.

But involved in action by the United States itself or the cancellation of numerous and as I recall running into thousands are Cherokee restricted Indian’s deeds attempting to convey their allotments contrary to the restrictions imposed by Congress and extended by the congressional enactment of 1906.

The holding in that case after reviewing the treaties with the Cherokees, the holding in that case, a very extensive opinion, was boil down to its ultimate statement that the United States being the guardian of the Indians and the five civilized tribes owe the duty to prosecute upon the behalf of the individual members of those tribes actions to recover interest in their lands.

And then by way of what I shall refer to as considered victim because I wouldn’t wipe and decide or attempt to believe with it.

This Court said in that connection, of course the Indian may bring his own action to recover his interest in tribal lands and if the United States wish to take over the action, it could do so.

And following that, there has been some little use of that victim in cases that are entirely different from this one.

And I may say to Your Honors that, under the law which is applicable to this particular kind of case both under the procedures adopted under the code of procedural Oklahoma and the federal statutes and the federal decisions.

John H. Cantrell:

There cannot be a successful recovery by the Indians in this Court.

Now, Your Honors I would like to have you bare with me a moment while I indicate to you what I consider to be a distinction between an action brought under the Court in Oklahoma to recover an interest or to protect an interest in the lands and an action like this one which is brought to recover alleged royalties due by way of damages or otherwise under and because of the terms of the departmental lease.

There was no departmental lease involved in the Heckman case.

The other statutory provision to which reference has been made as first seen possibly some indication of authority for the Indians to maintain this suit to successful conclusion is as I indicated the Act of 1926, which itself is specifically limited in its effect to lands and the civilized tribes and of course by his very language is not applicable to these Comanches.

And could not be extended in my judgment by judicial fiat beyond that which the Congress clearly intended to accomplish and that was to provide a remedy for the Indians and the five civilized tribes to the exclusion of the United States if it refused to come into the action.

That’s what that act provide for.

So that it is not applicable to this situation and we go to the Supreme Court of Oklahoma with a decision and decree of the District Court of Oklahoma County, Oklahoma limited by virtue of venue provisions of the Oklahoma statutes to a cause of action based upon the contract to recover might as do honor it.

That was the nature of this action and that’s the sole nature of this action.

And that’s the only kind of an action that the Oklahoma County District Court could have tried or the Supreme Court could have reviewed.

The cause of action to recover are established an interest in the lands themselves or their profits or their royalties or their underlying mineral areas had to be instituted if it all in the state courts of Oklahoma in Stevens County, Oklahoma where the land lies.

So that the District Court of Oklahoma County was limited by the place on torts to a contract action upon the contract for the recovery royalties alleged to be due.

Abe Fortas:

Well, that’s not the way the — that’s not the way their complaint reads.

John H. Cantrell:

I beg Your Honor’s pardon.

Abe Fortas:

I said that’s not what they’re complaint says?

John H. Cantrell:

Mr. Justice Fortas, my reason in pointing to the declaration of the petitioner’s counsel to the trial court at the time the motion to elect was filed.

My reason in pointing to that was to show that they declared to the Court at that time that this would be that type of action.

Otherwise —

Abe Fortas:

Well, a complain — is a complaint is an action for waste and the damages asserted is stated in terms of — of the lost of royalty.

John H. Cantrell:

Yes, sir.

Abe Fortas:

But the action itself is an action for waste, do you dispute that?

John H. Cantrell:

Well Your Honor, I say that the expressed language of the amended complaint upon which this final judgment would enter and went to the Supreme Court is that the petitioners were seeking to recover royalties due under the lease.

Now, I’m going to show to Your Honors that royalties if they’re indeed on this waste gas.

If it was waste gas were recoverable are on the contract and not separate and a part from the contract.

And that’s where I get to the basic law which controlled this case and which up to now has not been mentioned the oral argument.

60 statutes at large 939 designate the powers which the Secretary of the Interior should have with respect to these restricted lands.

It’s also cited as 25 U.S.C.A 1 (a).

And it authorizes the Secretary of the Interior to prescribe extensive rule and regulations.

And the Secretary has done so and it has been a time honored process.

When acknowledged by the Court says legal and proper and consistently upheld through the years.

And in all the circuits where Indian Affairs have been involved and in this Court where they have found their way and that has been the consistent holding of the courts that these rules and regulations construed in the light of the statutes authorizing them are — have the force and effect of law and will be read into a release.

John H. Cantrell:

So that here, we have a situation where the rights of the parties, lessor and lessee, are determinable from the phase of the lease aided and supplemented wherever necessary by the rules and regulations adopted by the Secretary of the Interior for the carrying out of this guardianship of the Indian wards of the United States.

And consistently throughout, those regulations you will find that the only type of a lease which these Indians could have made was a departmental oil and gas lease prescribed by the Secretary of the Interior furnished by him, required — requiring the lessee to take that kind of a lease and requiring the lessors to make it.

In it there is reference to these rules and regulations and the lessee and the lessors are required by the terms of the lease and to abide by the terms of the rules and regulations.

So that when you come to a determination of who can prosecute what kind of an action you must have reference to those rules and regulations.

The lease itself says that, “These parties may not declare a termination.”

And when I say these parties, I mean the petitioners.

These petitioners may not declare a determination or bring about in any form a cancellation of this lease as long as they are restricted and can have no action at law or in equity to accomplish that result.

In addition to that, the rules and regulations specifically provide that in the case of waste and this question of what is waste under these regulations is a very involved and serious one.

What it provides the regulations provide that in the case of a waste of gas, determined waste of gas, a royalty shall be paid sets by the Secretary of the Interior.

Not to be less than five cents for every 1,000 cubic feet of the gas waste.

But along with that determination and whether or not there ha been a waste of gas, the Secretary of the Interior is authorized through his subordinates, to whom he may delegate the authority, to manage the operation of the lease hold estate created by this departmental oil and gas lease.

So that the lessee is required and every step of the way in the operations of the oil and gas leases in their drilling, in their production and their sale, to account to the Secretary of the Interior and he has his agent on the ground directing the operations.

And the complaint in this case itself shows that in this particular case, the wells which were producing oil were also producing gas and that the gas was being vented and because there was no market for the gas.

And that went on with the approval of the supervisor until such time as the market was found for the gas.

And there is a potent, very sound economic reason for it which the Secretary of the Interior through his supervisory doctrine.

There were five wells or seven wells surrounded by other wells which were being produced.

Unless these wells were produced, the oil would be drained from under them.

And the only way they could be produced would be to flare the gas.

In order that the person the gas would force to this high gravity oil to the surface which could be marketed and during this whole period during which this gas was flared, the oil was taken under the direction of the supervisor, marketed, converted it into money, and paid into the hand of the Secretary of the Interior according to the terms of the departmental lease.

So that when it’s our Court came to consider the federal law and we concede without hesitation that the federal law control this question of who could proceed on that lease.

What could be recovered on it?

How the lease had to be operated?

What the authority of the Secretary was?

And above all, what protection the lessee got from following the directions of the interiors — Secretary of the Interiors supervision?

Earl Warren:

Would they made — made any difference in this case.

If the Court had not ordered the — the waste claim in the complaint stricken?

John H. Cantrell:

I think it would have made this difference Mr. Chief Justice that under the Oklahoma Code if the place had not voluntarily elected to go to the contract route to recover upon the contract.

Then the Court would have required — would have to require them to have elected which cause of action they were going on because there were inconsistent cause of action under our code and if they had elected to go the contract route to recover for the waste to protect their leasehold estate from waste, they would have been relegated to re-filing their suit in Steven’s County, Oklahoma rather than Oklahoma County, Oklahoma.

Earl Warren:

They would have had — have the stand —

John H. Cantrell:

They could have gone, and then it could have been urged with some propriety under the Heckman decision that they might have been able to have prosecuted that case, if they could have overcome.

John H. Cantrell:

And here again Mr. Chief Justice, I come back to those things which are involved in this case which lied its art and which make it very important.

If they could have overcome the presumptions that exist that the Supervisor and the Secretary of the Interior did their duty and then what was done under their supervision was a proper thing to do.

And there again, this was no waste.

This was not waste and could not be classified or categorized as waste.

Abe Fortas:

Well, let’s see — let me see if I understand this.

In their second amended — in their amended complaint in response to the Court decision.

The plaintiffs did not abandon their cause of action for waste as I read it.

Can you tell me whether I’m right or wrong?

They alleged that they had been injured by the wrongful flaring of gas and they expressly said that the defendant has illegally committed waste in the premises.

And they’re going to say that that is in violation of the oil and gas lease which they these petitioners signed.

And so, they claim damages on account of the wrongful and the illegal waste that they allege in violation of the oil and gas lease.

That the damages to be measured by the royalty that they would have received had the waste not occurred.

Is that — am I correct in my understanding of this —

John H. Cantrell:

Mr. Justice Fortas, you are substantially right in the statement.

But it overlooks that which we have considered to be sacred and they have the force and effect even of law in Oklahoma.

That when the counsel makes a commitment to the Court in open court of which a record is made, that we will not hereafter claim anything in this suit other than the right to recover upon the contract.

We think that under our code in Oklahoma, they are to be held to it.

And I find the Supreme Court of Oklahoma —

Earl Warren:

Where do we find that — where do we find that expressed concession on the part?

John H. Cantrell:

Your Honor will find it in the record and I have also quoted in the brief.

You Honor will find it in the record at —

Abe Fortas:

If you find it I think you’re talking about page 18 of the record.

What happened here as I understand it is that counsel agreed to strike an allegation that the waste was in violation of the conservation statutes of the State of Oklahoma.

Earl Warren:

Correct.

Abe Fortas:

And the counsel did agree that he was — his claim was founded upon the provision in the oil and gas lease that prohibits the lessees, Skelly Oil Company respondent here, from committing waste.

Now, is that right or is it wrong?

John H. Cantrell:

Well, it is partially right, Mr. Justice Fortas.

Abe Fortas:

Well tell me, where it’s partially wrong?

John H. Cantrell:

Well, here is the significance of the court’s order.

Board announcement of appraised counsel to the Court that well said language before had stricken from said petition.

John H. Cantrell:

Only one cause of action is stated, presented by or intended to be asserted in and by said petition and that only recovery in contract will be sought in this action by appellees.

The motion of the defendant to require election is between two separate causes of action.

Abe Fortas:

No, sir.

But the — but the petition — amended petition filed thereafter would indicate that what was meant by that is that the cause of action for waste — the cause of action for waste is preserved but it is bottomed upon the covenant in the oil and gas lease which commence the lessee not to commit a waste.

John H. Cantrell:

One more thing you overlook Mr. Justice Fortas and that is the Oklahoma venue statute which immediately — would have immediately ousted the District Court of Oklahoma County in any jurisdiction to have heard this case upon any searched ground because the statute is perfectly clear.

And the decision of the Supreme Court of Oklahoma are now numerous to that effect that an action such as this, if it be for a waste for taking off the dissipation of the interest land itself, is an action which must be brought in the county where the land lies.

Byron R. White:

Yes.

But what if the contract tells us that the lessee shall not commit waste which this one indicates, it’s still an action on the contract, isn’t it?

John H. Cantrell:

It might be an action on the contract, Mr. Justice White.

But at the same time under the Oklahoma statute, it is for taking of the nature of a contract which had to be brought in Stephens County and could not have been prosecuted in Oklahoma County.

Byron R. White:

Well, that’s just the venue problem.

John H. Cantrell:

It is a venue problem.

But the problem was raised and from the assurance of counsel that the other cause of action was not involved —

Byron R. White:

But the state of the question doesn’t concern us up here, isn’t it?

John H. Cantrell:

I would think that Your Honor, it does concern you to this extent, that in reviewing a decision on the Supreme Court of Oklahoma which in turn reviews their decision of nisi prius court that Your Honors would have to consider yourselves bound by the established procedures of the jurisdiction.

Byron R. White:

But all that you want to get across is that this is an action on a contract?

John H. Cantrell:

Yes, it’s an action —

Byron R. White:

That’s — that’s your real point —

John H. Cantrell:

It’s an action on the contract which is for royalty —

Byron R. White:

Well —

John H. Cantrell:

— provided for in the regulations which you are a part of the contract.

Byron R. White:

Well, isn’t that — you want to get across the point is an action on this contract with the Secretary you claim has control off.

John H. Cantrell:

As absolute control of and if no one else can exercise any authority over it and it falls neither within any philosophy announced in the Heckman decision or any philosophy ever adopted by the Congress of United States.

Byron R. White:

Well, if the company refuses to pay royalty and the Indians who actually — the Indians signed this lease, didn’t they?

John H. Cantrell:

Yes, they signed it accept to say —

Byron R. White:

They are the lessors.

John H. Cantrell:

Yes, sir.

Byron R. White:

The Indians are the lessor.

If the lessees refuse to pay royalty and wrongfully the Indians claim and they asked the Secretary to bring an action.

He said no.

Byron R. White:

And the Indians and the Secretary are in a dispute as to what — so there has been compliance.

You say that, the Indians have no remedy whatsoever against the lessees?

John H. Cantrell:

No, Mr. Justice White.

I do not say that.

I’m about to point out the remedy which they did have and do have.

Byron R. White:

You mean in the departmental?

John H. Cantrell:

Under the regulations.

All these Indians had to do was to apply to the supervisor for an order directing either the cessation of the flaring of the gas or the accounting and paying for the royalty, under the regulations which are cited in the brief and its Section 221.35 of Chapter 2 of Title 30 of the federal code of regulations.

Under that provision, all these Indians had to do was to go to the supervisor and say, we want give this flaring stop that we want to be paid for it.

The supervisor would have been required at that time to have made a formal decision and stated it one way or another from which an appeal would have been permissible and allowed are cleared up to the Secretary —

Byron R. White:

And then what?

John H. Cantrell:

— to the Secretary to the court.

Byron R. White:

And then what?

John H. Cantrell:

And then it would be determined by the merits of the Congress.

Byron R. White:

Well, I know but what if the Secretary said no?

John H. Cantrell:

It went clearly to the Secretary then you go to the courts.

Byron R. White:

Well, the Indians go to the Court.

John H. Cantrell:

They go to the Court — the losing party goes to the Court.

Byron R. White:

Who do they sue?

John H. Cantrell:

Now — and now Your Honors will bear in mind that there is no allegation anywhere in any pleading filed by the petitioners.

That there was never any kind of misconduct —

Byron R. White:

As with whom do they sue if the Secretary turns them down?

John H. Cantrell:

They — they — if they go up to the administrative remedy to the Secretary of the Interior and he turns him down.

There is a remedy provided but it’s just what for review by the Court of Appeals.

Byron R. White:

Now but whom do they — whom do they sue?

John H. Cantrell:

Well, it’s the Secretary.

And we’re — the lessee is absolutely bound by the orders of the Secretary as to depend of these orders.

And only the Secretary, only the Secretary can recover —

Byron R. White:

Well, he is bound that the lessee — could the lessee can review his orders too in the same manner?

John H. Cantrell:

Yes, in the same manner.

John H. Cantrell:

And that’s the only manner the lessee could review his orders by.

There is an administrative remedy provided for both of these parties and neither — neither the Indians has ever sought to exercise it and it is still open to.

The basic fundamental propositions have been decided by the courts involving these federal regulations and the rights of the Indians to proceed themselves without proceeding through the Secretary numerous cases.

Byron R. White:

Well, apparently the — apparently the Secretary doesn’t believe that this particular administrative scheme was ever intended to be — have this kind of a consequence to be this exclusive.

John H. Cantrell:

Well, Your Honor I think that the Secretary must —

Byron R. White:

— he gave permission for this suit to be brought, I take it?

John H. Cantrell:

No, Your Honor.

I think there has been no formal information granted.

There was an act of a subordinate employee and the Indian officer in Oklahoma approving the attorney contract —

William J. Brennan, Jr.:

Well, what about the — what about the position of the United States in this Court?

Didn’t they take — didn’t they file something here?

John H. Cantrell:

Yes.

The United States has taken the position in this Court.

William J. Brennan, Jr.:

Would be.

I suppose that’s —

John H. Cantrell:

That this Court ought to grant certiorari in this case.

And then —

William J. Brennan, Jr.:

If — so that we care, haven’t we?

John H. Cantrell:

Yes, but I don’t —

William J. Brennan, Jr.:

Did we apparently agree with the petition?

John H. Cantrell:

Well, there is some suggestion that Solicitor General —

William J. Brennan, Jr.:

Is that the way you read that?

John H. Cantrell:

I beg Your Honor’s pardon.

William J. Brennan, Jr.:

You read this is only —

John H. Cantrell:

I don’t find that the opinion there given is very clearly stated Mr. Justice Brennan.

There are ifs and ands about it.

For instance, the question of asset of double exposure is discussed and it is very clearly stated.

And in connection with that, I want to call your attention also to what can happen to the guardian and ward relationship and the administrative regulation of the affairs of these Indians if they — every time they get dissatisfied can bring an action which is directly contrary to the wishes of the Secretary.

Now, in connection with this proposition of why — what the Secretary’s position is, I call Your Honors’ attention to the fact that as a matter of race and because of anticipation that the very thing which is now being argued might be argued.

We notified the Government of the pendency of this action at the earliest opportunity and invited the Government to come in and take the action over and the Government refused to do so.

John H. Cantrell:

Now, if there has been a determination by the department that the Government couldn’t win or shouldn’t prosecute this action then I think it only stricken the proposition that unless the hands of the Secretary are upheld unless his regulations are enforced and unless the scheme of regulation which the Congress itself has specifically provided for.

Isn’t here to regulation goes out the window.

And no oil operator and this is a very practical suggestion.

No oil operator could ever afford to accept and pay for a departmental oil and gas lease and develop it.

Under the regulations of the Secretary of the Interior requiring that operator to abide by the Secretary’s decisions and directions as to the modus operandi, what was to be paid for, what was to be used on the lease to produce oil and then after the fact, have the lessor in is the restricted Indians double back on that decision and go to the Court and say we won’t need to pay for it.

Byron R. White:

This is just the question of whether — where they would be doing their doubling back.

You can see that if they make a claim, if the Secretary hasn’t adequately discharged his duty to his guardian or whatever you want to call them, that they can go to the Secretary — go through an administrative procedure and —

John H. Cantrell:

Yes, sir.

Byron R. White:

— and I would assume that the — in that preceding you would be right there.

Your plant would be right there at every step of the way.

And then when the Secretary makes his own decision, if the Indians are dissatisfied, they can take both you and him to the Court.

John H. Cantrell:

Yes, sir.

Byron R. White:

So after the lease is over with while the lease is being administered.

So it’s just really a question of, where they are going to be questioning the application of this lease, isn’t it?

John H. Cantrell:

Well, no Mr. Justice White.

It’s not quite that sample if you would pardon me to say that.

When the Secretary has exhausted the facts has made the record and that may — and has made a determination of fact based upon that record and then has decided the case, it will not be then a matter or first impression where this Court or another Court reviewing —

Byron R. White:

Yes.

But that’s just — that’s another way of arriving at the resolution of the lawsuit and you apparently prefer to have litigated up through the Department of Interior rather than having the courts to face it in the first instance.

John H. Cantrell:

Well Your Honor, I merely say that there should be adherence to the time honored and almost universally adopted principle that wherein administrative remedy is provided by and for and through an administrative body which has been plowed with the power, the exclusive power, to provide it by the Congress of the United States, that the Courts themselves should not be the ones to change the law.

Byron R. White:

I agree with you on if I agreed with your premise.

But you may be wholly right when we — but the challenge here is to your premise that this is an administrative procedure which has been provided to handle things like this and was intended to be exclusive and the ones who are administering it don’t think it is apparent.

John H. Cantrell:

Well, Your Honor, I doubt very much if that can be said to be the actual fact unless you carry to disregard all of the past history of the operations by the Secretary of the Interior and how it’s been handled.

And now take a new view expressed by the Solicitor General.

Earl Warren:

Mr. Cantrell, I understood you to say that if this were strictly in action for a waste that the plaintiffs would be properly in Oklahoma Court.

Well the only thing is that you object to the venue.

John H. Cantrell:

They’re in which county.

Earl Warren:

Yes.

Now, must they go through the same — must they go through the same administrative proceeding if they bring an action for waste under this contract?

John H. Cantrell:

Oh, I think so and now that is a sign from the administrative remedy argument.

John H. Cantrell:

That’s assuming if there wasn’t any administrator remedy.

Earl Warren:

You seem to make a distinction between earlier in your argument between —

John H. Cantrell:

Oh, yes sir.

Earl Warren:

— between whether they were suing under the contracts and suing for waste.

John H. Cantrell:

But that was before I raised the discussion of the administrator remedy proposition.

I think that before they could get into any court with proprietary properly and successfully maintained an action there, they must have shown and exhausted their administrative remedies which I think were explicit.

But assuming that there is no administrative remedy then they would have had to brought this action for which in a different county from the one we brought up.

Earl Warren:

That I understood you to say yes.

Very well now.

John H. Cantrell:

I think my light is on.

Earl Warren:

Yes, it is.

Very well.

Mr. Johns?

Charles Hill Johns:

Yes, sir.

If the court please, with reference to the position of the United States, I think it’s very clear, if the Court please, that the Solicitor General and his amicus curiae memorandum clearly sets forth that it is the position of the government that the administrative remedies Mr. Cantrell talked about is applicable only to the cancellation on oil and gas mining lease by the Secretary and had no bearing on money damages.

Now, we don’t seek cancellation of their lease.

We merely sue for money damages, and the government in their brief in its conclusion states that in the opinion of the government the judgment of the Supreme Court of Oklahoma should be reversed.

I merely point that out Your Honor because the Department of Justice has taken the same position that we take that there is no adequate administrative remedy and consequently, the only remedy we have is a suit in court.

Hugo L. Black:

Is the only thing the court has decided that the Indian cannot sue?

Charles Hill Johns:

Sir?

Hugo L. Black:

Is the only thing that the court decided is the fact that the Indians cannot file this lawsuit?

Charles Hill Johns:

Yes sir, the Supreme Court —

Hugo L. Black:

Is that the only issue they have discussed or decided?

Charles Hill Johns:

Yes sir that is correct sir.

And I said out in—very briefly in my reply brief where the sole point the Supreme Court of Oklahoma passed on in its syllabus and in its opinion was I’ll read very briefly sir.

In paragraph six of the lease and it’s provided that after the restrictions are removed, the lessor shall have and be entitled to any available remedy in law or equity for breach of this contract by the lessee.

We think under the maxim of expression unis est exclusio alterius, this provision deprives the lessor of the right to prosecute a suit for breach of the lease contract until the restrictions are removed.

And that’s the only question.

Hugo L. Black:

Can I presume in the case — if the case would have go back in be held that the Indian can sue, these people can put up all the defenses they have.

Charles Hill Johns:

As far as I am concerned — I set it out in my reply brief that we are entitled, we submit, to have the Oklahoma Court pass on these questions of venues that Mr. Cantrell argued without determining this Court on federal regulations, federal restrictions alone.

Hugo L. Black:

Is it your belief that if we would have reverse it on the ground that the Indian does have a right to file the lawsuit and try it —

Charles Hill Johns:

I think that’s correct sir.

Hugo L. Black:

— that all of these things they are setting up here or trying to setup could be defended on this Court?

Charles Hill Johns:

Well, if I might suggest, if Your Honor please.

Hugo L. Black:

I’m just asking if that’s your view.

Charles Hill Johns:

My view is that the Supreme Court, this Court should reverse their case on the ground that an incorrect and erroneous construction of the federal statute by the Oklahoma Supreme Court in —

Hugo L. Black:

In what?

Charles Hill Johns:

Sir?

Hugo L. Black:

In what?

Incorrect in what?

Charles Hill Johns:

I reverse it, and that they have said, the Oklahoma Court has said that an Indian lessor that have not had the capacity to bring this period for lawsuit anywhere in the State of Oklahoma.

Hugo L. Black:

And if we reverse it, would we decide anything but that?

Charles Hill Johns:

No, sir.

In my opinion, this Court would not.

It would then go back to the Oklahoma Court and let us argue down there the question of venue before the Oklahoma Supreme Court.

I am convinced they were correct.

I am convinced the venue is properly laid in this suit.

But those are the questions, I submit to the Court is, for the Oklahoma Court.

That’s all.

Earl Warren:

Very well.