United States v. Oklahoma Gas & Electric Co.

Decision Date23 March 1942
Docket NumberNo. 2390.,2390.
Citation127 F.2d 349
PartiesUNITED STATES v. OKLAHOMA GAS & ELECTRIC CO.
CourtU.S. Court of Appeals — Tenth Circuit

W. Robert Koerner, of Oklahoma City, Okl. (Norman M. Littell, Asst. Atty. Gen., Charles E. Dierker, U. S. Atty., and George H. McElroy, Asst. U. S. Atty., both of Oklahoma City, Okl., and Vernon L. Wilkinson, Atty., Department of Justice, of Washington, D. C., on the brief), for appellant.

Robert M. Rainey, Jr., of Oklahoma City, Okl. (R. M. Rainey and Streeter B. Flynn, both of Oklahoma City, Okl., on the brief), for appellee.

Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.

MURRAH, Circuit Judge.

We are asked to decide whether the appellee, Oklahoma Gas & Electric Company, herein called electric company, may by permission of the state of Oklahoma, but without permission, or consent, of the Secretary of the Interior, construct and maintain a rural electric line upon and along a state highway, constructed and maintained by the state, a portion of which traverses land allotted in severalty to a restricted Indian of the Kickapoo Tribe, the title to which land is held in trust by the Secretary of the Interior. The highway is constructed across and upon the said Indian land in pursuance of a permit, granted to the state of Oklahoma by the Secretary of the Interior under provisions of section 4 of the Act of March 3, 1901, 31 Stat. 1084, 25 U.S.C.A. § 311,1 which authorizes the Secretary of the Interior to grant a permit to the state to open and establish a highway across Indian land in accordance with the laws of the state, wherein situated. The electric company has not applied for, or secured a permit from the Secretary of the Interior to construct and maintain a rural electric line across the Indian land, or along and upon the right-of-way granted the State, and contends that it is not required to do so.

The question for consideration is the meaning, purpose, and intent to be placed upon section 4 of the 1901 Act, supra, and more precisely, the meaning, purpose, and intent of the Congressional use of the words "for the opening and establishment of public highways in accordance with the laws of the State or Territory in which the lands are situated."

The facts, as stipulated and agreed, show that pursuant to the Act of March 3, 1893, Chapter 203, Article 4, 27 Stat. 557, the land in question was allotted in severalty to a restricted Kickapoo Indian. The title remained in the United States for the use and benefit of the allottee and was, at the time herein complained of, restricted land held in trust by the Secretary of the Interior for the use and benefit of the heirs of the original allottee. On July 9, 1926, in furtherance of its design to construct a system of highways, the state of Oklahoma, through its Highway Commission, applied to the Secretary of the Interior for permission to open and establish a public highway upon and across the land in question, in accordance with section 4 of the 1901 Act, supra. After such application, together with a map of definite location, had been filed with the Secretary of the Interior, the United States, through the Secretary of the Interior, filed a claim on behalf of the restricted Indians in the sum of $1,275, as compensation for the establishment of the highway across and upon the allotment in question, which was by the state of Oklahoma paid to the Secretary of the Interior for the benefit of the restricted Indian heirs.

On January 20, 1928, the Assistant Secretary of the Interior approved the application by endorsing on the map of definite location the following: "Approved subject to the provisions of the Act of March 3, 1901 (31 Stat.L., 1058-1084), Department regulations thereunder; and subject also to any prior valid existing right or adverse claim." The highway was opened and established. Thereafter, and on the 9th day of October, 1936, the Highway Commission of the state of Oklahoma, acting under authority of the state laws, granted to the appellee, the electric company, a license and permit to erect, construct, and maintain a system of poles, and other electrical equipment, upon and along the said highway, which included that part of the restricted Indian allotment, over which the Secretary of the Interior had granted permission for the establishment of the said highway. Thereafter, and in pursuance of the said license and permit granted by the said Highway Commission, the appellee in constructing its rural electric service line for the purpose of supplying electrical current to adjacent landowners, erected eight poles along and upon that portion of the highway which traversed the allotted land in question, and on which there was installed the necessary power line.

On the theory that the electric company had no authority to install its power lines on that part of the highway, which traversed the restricted allotted land without first having obtained a permit from the Secretary of the Interior, the United States, through the Secretary of the Interior, brought this suit for declaratory adjudication of its asserted rights, 28 U.S.C.A. § 400, and for a mandatory injunction to remove the poles heretofore erected, and for money judgment in the sum of $5 per pole, in the total amount of $40.

The electric company contends that the authority granted to the state of Oklahoma by the Secretary of the Interior, under section 4 of the 1901 Act, supra, to open and establish a highway in accordance with the laws of the state, carried with it the authority of the state to grant the electric company a permit to construct its lines along and upon that portion of the highway which traversed the allotted land, and that the Secretary of the Interior had no power or authority to interfere with the same. The electric company's contention was sustained and relief denied by the trial court. D.C. 37 F.Supp. 347.

In the first instance, the authority to open and establish a state highway across Indian land allotted in severalty to restricted Indians is derived from the federal statute, section 4 of the 1901 Act, and the extent to which that power may be exercised is subject to the limitations placed upon it by the Act itself. Its interpretation and construction is peculiarly within the competence of the federal courts, uninfluenced by any state notions of its meaning and purpose. State or local laws are applicable only to the extent to which they are made applicable by the federal statute, and the extent to which they are made applicable by the federal statute is also a federal question. United States v. Oregon, 295 U.S. 1, 28, 55 S.Ct. 610, 79 L.Ed. 1267; Colorado v. Toll, 268 U.S. 228, 45 S.Ct. 505, 69 L.Ed. 927; McKelvey v. United States, 260 U.S. 353, 359, 43 S.Ct. 132, 67 L.Ed. 301; Oklahoma v. Texas, 258 U.S. 574, 595, 42 S.Ct. 406, 66 L.Ed. 771, and Utah Power & Light Company v. United States, 243 U.S. 389, 37 S.Ct. 387, 61 L.Ed. 791. The question, therefore, is to what extent were the state laws made applicable to the opening and establishment of the highway in question, and requires a consideration of the statutory scheme designed to subject lands under the exclusive control of the United States to the construction of highways, electric, telephone and telegraph lines necessary and essential to the needs of an advancing and progressive civilization.

The statute here in question is but a fragment of numerous acts of Congress, which have in various forms granted rights-of-way in the nature of easements across and upon public domain, national parks, Indian, and other reservations, under the exclusive control of the National Government.2 It is sufficient to say that each grant, or authorization of a right-of-way upon public domain, or other reservation, has its proper setting in the scheme of national affairs as they relate to progress and development.

Congress authorized the Secretary of the Interior to permit the use of rights-of-way upon public lands and national forests of the United States for the purpose of generating, or distributing electric power by the Act of May 14, 1896, 29 Stat. 120, 43 U.S.C.A. § 957,3 but did not mention Indian lands or Indian reservations.

The Act of May 14, 1896, supra, was superseded by the Act of February 15, 1901, 31 Stat. 790, 43 U.S.C.A. § 959. Under the provisions of this Act, the Secretary of the Interior is authorized and empowered under general regulations to be fixed by him, to permit the use of rights-of-way through public lands and reservations of the United States for electric plants, poles and lines for generation and distribution of electric power; for telephone and telegraph purposes, and for canals, ditches, pipes and pipe lines, flumes and tunnels or other water conduits. The Act provides the details incident to the granting of the permit and specifically provides that the permission given by the Secretary of the Interior can be revoked in his discretion, and does not confer any right, or easement, or interest in, to or over any reservation. The statute makes use of the word "reservation" without specifically mentioning Indian reservations or Indian lands. It is noticeably silent on Indian lands allotted in severalty.

The Act of February 15, 1901, supra, is contemporaneous with the Act of March 3, 1901, supra (of which section 4 is a part). The Act of March 3, 1901, commonly called sections 3 and 4, has been separately codified as sections 319, 357 and 311, 25 U.S. C.A., and in the Statutes at Large as sections 1083, 1084. See United States v. Minnesota, 8 Cir., 113 F.2d 770. Each of these sections of the Act has direct relation to rights-of-way through Indian reservations, tribal lands, and lands allotted in severalty to any individual Indian under any law or treaty. The first paragraph of Section 3, 31 Stat. 1083, 25 U.S.C.A. § 319, empowers the Secretary of the Interior to grant a right-of-way, in the nature of an easement, for the construction, operation, and maintenance of...

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