George Sutherland

“ It is quite true that the jurisdiction of a federal court must affirmatively and distinctly appear and cannot be helped by presumptions or by argumentative inferences drawn from the pleadings. If it does not thus appear by the allegations of the bill or complaint, the trial court, upon having its attention called to the defect or upon discovering it, must dismiss the case, unless the jurisdictional facts be supplied by amendment. ”

“ And where, as here, the jurisdictional facts appear upon the face of the record; where the very contention of the party interposing the challenge to the jurisdiction is such as to plainly establish it, beyond the possibility of successful dispute, thus eliminating any element of surprise; and where the amendment must necessarily be allowed by the trial court, it would be mere ceremony to reverse the decree and remit the purely formal making of the amendment to the lower court. ”

“ In the trial court the jurisdiction was in no way called in question; but it was challenged, for the first time, in the Circuit Court of Appeals, and is challenged here. It is alleged that all the parties are citizens and residents of Oklahoma, and the question of jurisdiction depends upon whether the suit arises under a law of the United States. The bill avers that Larney went into possession of the allotment by authority of treaties between the Creek Nation and the United States and the laws of Congress dealing with the land and individuals of that Nation. ”