Argument for Shulthis.

225 U.S.

c. 379, was to provide a body of law for that Territory until it became a State, and the effect was the same as though those laws had been adopted by a Territorial legislature.

In this case held, that as the jurisdiction of the Circuit Court depended solely upon diverse citizenship, the judgment of the Circuit Court of Appeals was final; and, notwithstanding the case involved conflicting claims to allotted lands in the Creek Nation, it was not one arising under the laws of the United States.

Appeals from 170 Fed. Rep. 529, dismissed.

THE facts, which involve the determination of the question of finality of judgments of the Circuit Court of Appeals under the act of 1891, in a suit brought to determine conflicting rights to a tract of land in the Creek Nation, are stated in the opinion.

Mr. C. L. Thomas, with whom Mr. Edgar A. de Meules was on the brief for appellant in No. 156, and appellee in No. 157:

This court has jurisdiction.

The effect of the patent issued to the lessor of appellant, by the United States and the Creek Nation, requires an interpretation of § 7 of the act of June 30, 1902, 32 St. L. 500, and necessarily presents a Federal question. McGilvra v. Ross, 215 U. S. 70; Shively v. Bowlby, 152 U. S. 1.

The defendant, Kiefer Oil & Gas Company, being, as alleged in the bill, "a corporation duly organized

under and by virtue of the laws of the United States in force in the Indian Territory," this suit is one arising under the laws of the United States, and, therefore, the jurisdiction of this court exists in this case. Osborn v. Bank of United States, 9 Wh. 739; Pacific Removal Cases, 115 U. S. 1; Nor. Pac. Ry. Co. v. Amato, 144 U. S. 465; Butler v. National Home, 145 U. S. 64; Texas & Pac. Ry. Co. v. Cox, 145 U. S. 593; Union Pac. v. Harris, 158 U. S. 326; Wash.-Idaho Ry. Co. v. Cœur d'Alene Ry. Co., 160

225 U. S.

Argument for Appellee in No. 156.

U. S. 77; Texas & Pac. Ry. v. Gentry, 163 U. S. 253; Sup. Lodge v. Kalinski, 163 U. S. 289; Texas & Pac. Ry. Co. v. Cody, 166 U. S. 606; Smith v. Rieves, 178 U. S. 436; Mo. Pac. Ry. Co. v. Soderberg, 188 U. S. 526; Tex. & Pac. Ry. Co. v. Eastin, 214 U. S. 153; In re Dunn, 212 U. S. 374; Wolf v. C. O. & G. Ry. Co., 133 Fed. Rep. 601; Sup. Lodge v. England, 94 Fed. Rep. 369; Sup. Lodge v. Hill, 76 Fed. Rep. 468; Freehold Land Co. v. Gallegos, 89 Fed. Rep. 769; Canary Oil Co. v. Standard Co., 182 Fed. Rep. 663.

As it appears from the bill that the original jurisdiction of the Circuit Court was not dependent entirely upon diverse citizenship, the judgment of the Circuit Court of Appeals was not final, and the right of appeal to this court exists. Nor. Pac. Ry. Co. v. Soderberg, 188 U. S. 526; Howard v. United States, 184 U. S. 676; Sonnentheil v. Christian Brew. Co., 172 U. S. 401; Bankers' Casualty Co. v. Minneapolis, 192 U. S. 380; Florida Central Ry. Co. v. Bell, 176 U. S. 325; Colorado Min. Co. v. Turck, 150 U. S. 142; Third St. Ry. Co. v. Lewis, 173 U. S. 460.

Mr. James P. Harrold for appellant in No. 157.

Mr. Geo. S. Ramsay and Mr. Preston C. West for appellee in No. 156:

This court has no jurisdiction on appeal from the Circuit Court of Appeals, because the jurisdiction of the Circuit Court was dependent entirely upon the opposite parties to the suit being citizens of different States. And whether or not the jurisdiction of the Circuit Court depended solely upon the diversity of citizenship must be determined from an examination of the plaintiff's bill to the exclusion of all other parts of the record. Colorado Min. Co. v. Turck, 150 U. S. 141; Florida Central R. R. Co. v. Bell, 176 U. S. 325; West. Un. Tel. Co. v. Ann Arbor R. Co., 178 U. S. 232; Bonin v. Gulf Co., 198 U. S.

Argument for Appellce in No. 156.

225 U.S.

116; Empire State M. & D. Co. v. Hanley, 198 U. S. 293; Bankers' Casualty Co. v. Minneapolis &c. R. Co., 192 U. S. 378; Arbuckle v. Blackburn, 191 U. S. 406.

Jurisdiction cannot be conferred upon the Circuit Court by the defendants setting up a Federal question, or making a claim to the title under some Federal law. The answer cannot be examined to aid the court in deciding this question. Cases supra and Metcalf v. Watertown, 128 U. S. 586; Ayres v. Polsdorfer, 187 U. S. 586; Mountain View Min. Co. v. McFadden, 180 U. S. 534; Chappell v. Waterworth, 155 U. S. 102; Tex. & Pac. R. R. Co. v. Cody, 166 U. S. 606; Powell v. Brunswick Co., 150 U. S. 433; Arkansas v. Kansas Coal Co., 183 U. S. 187; Devine v. Los Angeles, 202 U. S. 315; Press Publishing Co. v. Monroe, 164 U. S. 107; Tennessee v. Union Bank, 152 U. S. 454; Eastlake Land Co. v. Brown, 155 U.S. 488; Oregon Short Line v. Skottowe, 162 U. S. 491; Spencer v. Duplan Silk Co., 191 U. S. 527; Boston Copper Co. v. Montana Ore Co., 188 U. S. 633; Third Street R. Co. v. Lewis, 173 U. S. 458; Shields v. Boardman, 98 Fed. Rep.. 455; California Oil Co. v. Miller, 96 Fed. Rep. 19.

Where jurisdiction is claimed on the ground that there is a Federal question involved, it is not sufficient that jurisdiction may be inferred argumentatively under averments, and the allegations showing the Federal question must be positive, and the Federal question must clearly appear. Handford v. Davies, 163 U. S. 274; Iowa v. Chicago, M. & St. P. R. Co., 33 Fed. Rep. 391; Manhattan R. Co. v. New York, 18 Fed. Rep. 195.

Plaintiff's allegation that he bases title to the oil and gas in the land, and the right to operate the same and have the defendants enjoined from operating for oil and gas, is not sufficient to show a Federal question, although the plaintiff alleges that his rights exist under an oil and gas lease executed by a Creek Indian and approved by the Secretary of the Interior, as required by act of Con

gress. Shoshone Min. Co. v. Rutter, 177 U. S. 508; Florida Central Co. v. Bell, 176 U. S. 328; Blackburn v. Portland Mining Co., 175 U. S. 571; Romie v. Casanova, 91 U. S. 379; Blue Bird Mining Co. v. Largey, 49 Fed. Rep. 289; Starin v. New York, 115 U. S. 248; Bonin v. Gulf Company, 198 U. S. 115.

The fact that the corporation was organized under the provisions of the corporation laws of Arkansas put in force in the Indian Territory by act of Congress, does not show a Federal question. Union Pacific R. Co. v. Harris, 158 U. S. 327; Boyd v. Great Western Coal Co., 189 Fed. Rep. 115; Binns v. United States, 194 U. S. 491.

MR. JUSTICE VAN DEVANTER delivered the opinion of the court.

These are appeals from decrees of the Circuit Court of Appeals for the Eighth Circuit affirming a decree of the Circuit Court for the Eastern District of Oklahoma dismissing on the merits a bill in equity, as also a petition in intervention, brought to determine conflicting claims to a tract of allotted land in the Creek Nation. The allegations of the bill may be summarized as follows:

The complainant, Shulthis, is a citizen of Kansas. One of the defendants, the Kiefer Oil and Gas Company, is a corporation organized in the Indian Territory under the Arkansas statutes which were put in force therein by an act of Congress, and since the admission of Oklahoma as a State "has been and now is a citizen and resident of said State" and of the Eastern District thereof. The other defendants are citizens of that State, resident in that district. The intervenor, George Franklin Berryhill, is a member by blood of the Creek Nation, duly enrolled as such, and his wife is not a member.

A son, named Andrew J. Berryhill, was born to the

intervenor and his wife in May, 1901, and died in November following, leaving no brother or sister surviving. In October, 1902, the deceased son's name was placed on the roll of the Creek Nation by the Commission to the Five Civilized Tribes, and thereafter an allotment, including the tract in controversy, was made to his "heirs " from the lands of the Nation, and a deed or patent was issued to such heirs with the approval of the Secretary of the Interior. Subsequently, and in March, 1906, George Franklin Berryhill and his wife, claiming to be the sole heirs of Andrew J. and the owners in fee of this tract, executed to the complainant a lease thereof, granting to him the right to explore for and extract oil and gas from the land for the term of fifteen years. The lease was made conformably to regulations prescribed by the Secretary of the Interior, was filed with the United States Indian Agent at Muskogee, in the Indian Territory, March 21, 1906, and was approved by the Secretary of the Interior April 19, 1907. The complainant complied with the regulations, duly paid the advance royalty provided for in the lease, and claims the sole and exclusive right to prospect for and extract the deposits of oil and gas existing in and under the land, which are said to be extensive and to have a value many times in excess of $2,000. Respecting the claims and acts of the defendants the bill alleges:

"Your orator further shows that the defendants and each of them claim and assert some right, title and interests in and to said lands and particularly to the said oil and natural gas deposits adverse to your orator, but the nature of said claims of said defendants is to your orator unknown; but your orator states that they have no such right, title or interest in the said deposits of oil and natural gas or any part thereof; that whatever claimed rights the said defendants or any of them have therein, were acquired long subsequent to the right of