156 F.2d 769 (10th Cir. 1946), 3159, United States v. Champlin Refining Co.

Docket Nº:3159.
Citation:156 F.2d 769
Party Name:UNITED STATES v. CHAMPLIN REFINING CO. et al.
Case Date:July 29, 1946
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 769

156 F.2d 769 (10th Cir. 1946)

UNITED STATES

v.

CHAMPLIN REFINING CO. et al.

No. 3159.

United States Court of Appeals, Tenth Circuit.

July 29, 1946

Rehearing Denied Aug. 29, 1946.

Page 770

Fred W. Smith, Atty., Dept. of Justice, of Washington, D.C. (J. Edward Williams, Acting Head, Lands Div., Dept. of Justice, of Washington, D.C., Whit Y. Mauzy, U.S. Atty., of Tulsa, Okl., and Roger P. Marquis, Atty., Dept. of Justice, of Washington, D.C., on the brief), for appellant.

Nathan Scarritt and Harry O. Glasser, both of Enid, Okl. (Mac Q. Williamson, Atty. Gen., Randall S. Cobb, Atty. Gen., J. Walker Field, Asst. Atty. Gen., Walter Marlin, Law and Exe. Counsel for the Commissioners of the Land Office, State of Oklahoma, of Oklahoma City, Okl., and E. S. Champlin, of Enid, Okl., on the brief), for appellees.

Coleman Hayes, of Oklahoma City, Okl., R. B. F. Hummer and D. E. Hodges, both of Bartlesville, Okl., Edward Howell, of Tulsa, Okl., E. R. McNeill, of Pawnee, Okl., N. E. McNeill, of Tulsa, Okl., J. A. McCollum, of Pawnee, Okl., and Roy C. Lytle, of Oklahoma City, Okl., amici curiae.

Before PHILLIPS and MURRAH, Circuit Judges, and KENNAMER, District judge.

PHILLIPS, Circuit Judge.

This is an appeal from a decree adjudging that the State of Oklahoma is the owner of the south half of the Arkansas River bed, in Oklahoma, adjoining four riparian tracts of land, which tracts the United States holds under trust patents for the benefit of certain of its Pawnee and Otoe Indian wards, and that the Champlin Refining Company has a valid and subsisting oil and gas lease upon such south half of the river bed.

The United States originally acquired title to the land in suit as part of the Louisiana Purchase. Under treaties of May 6, 1828, 1 February 14, 1833, 2 and December

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29, 1835, 3 the United States, by deed dated December 31, 1838, conveyed to the Cherokee Nation a large tract of land on both sides of the bed of the Arkansas River, embracing the south half of the river bed here in suit. By the treaty of July 19, 1866, 4 the Cherokee Nation agreed that the United States might settle friendly Indians upon that part of the Cherokee lands known as the Cherokee Outlet, which embraced the portions of the river bed here in suit. Article 16 of that treaty provided that such lands would be conveyed to the Indians so settled. By treaty of October 28, 1867, 5 a reservation was set aside for the Cheyenne and Arapahoe Indians between the Cimarron and Arkansas Rivers. That reservation embraced the portions of the river bed here in suit. It was expressly extended to the middle of the Arkansas River. The Cheyenne and Arapahoe Indians declined such reservations and relinquished their claim. On June 5, 1872, 6 Congress authorized the Cherokee Nation to convey to the Osage Nation a tract of land described as follows: 'Bounded * * * on the south and west by the north line of the Creek country and the main channel of the Arkansas River, * * * ' The conveyance was made. It included the land on the opposite side of the river at approximately the location of the four riparian tracts and the title of the Osage Nation to the north half of the river bed was upheld in subsequent litigation between the United States and the State of Oklahoma. 7

The land on both sides of the Arkansas River at the location of the portions of the river bed here in suit was first surveyed into sections, townships, and ranges in September, 1872. The survey was approved on September 16, 1872.

Two of the riparian tracts are in Township 23 North, Range 4 East of the Indian Meridian. These tracts are held in trust for Pawnee Indians. The other two riparian tracts are located in Township 23 North, Range 3 East of the Indian Meridian. These tracts are held in trust for Otoe Indians.

Under the 1866 treaty with the Cherokees, and pursuant to the Act of March 3, 1881, 8 the Secretary of the Interior designated and assigned for the use and occupation of the Confederated Otoe and Missouria tribes of Indians 'that portion of Tp. 23, N. R. 3 E. lying west of the Arkansas River. * * * ' 9 Pursuant to the 1866 treaty with the Cherokees, and in conformity with the Act of March 3, 1883, 10 the Cherokee Nation, on June 14, 1883, conveyed to the United States in trust for the use and benefit of the Otoe and Missouria Indians: 'Fractional township twenty-three (23) North, range three (3) East of the Indian Meridian; lying and being on the right bank of the Arkansas River, according to a plat of said lands hereto annexed, marked 'A,' and made a part of this conveyance * * * .' 11 On November 24, 1906, a trust patent was issued to Ethel Lewis Barnes, as Indian of the Otoe and Missouria tribes, covering the following described land: 'the South half and the North East quarter of the South East quarter and the Lot numbered five of Section twenty-four, in Township twenty-three North of Range three East, of Indian Meridian in Oklahoma, containing one hundred and fifty-two acres and twenty hundredths of an acre.' The title to such land is now held by the United States in trust for Ethel Lewis Barnes. On June 10, 1907, a trust patent was issued to Anna Robedeaux, an Indian of the Otoe and Missouria tribes, covering the following described land: ' * * * Lot numbered six of Section twenty four in Township twenty three North of Range three East of Indian Meridian in Oklahoma, * * * ' Title to that land is now held

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by the United States in trust for the heirs of Anna Robedeaux. Both of these allotments are bounded by the Arkansas River.

By § 4 of the Act of April 10, 1876, 12 there was set aside as a reservation for the Pawnee Tribe of Indians, in accordance with the 1866 treaty with the Cherokees, the following described land: 'All that tract of country between the Cinnarron (Cimarron) and Arkansas Rivers embraced within the limits of townships * * * twenty three, * * * or range four east, * * * of the Indian meridian.' 13 In accordance with the 1866 treaty with the Cherokees, and pursuant to the provisions of the Act of March 3, 1883, 14 the Cherokee Nation, on June 14, 1883, conveyed to the United States in trust for the use and benefit of the Pawnee Tribe of Indians the following described land: ' * * * fractional townships twenty-three (23) * * * north, range four (4) east; * * * ' 15 The fractional townships referred to in this deed are described as ' * * * the fractional townships being on the right bank of the Arkansas River.' By agreement between the Pawnee Tribe and the United States, made November 23, 1892, 16 the Pawnee Tribe ceded and relinquished to the United States its beneficial interest in such reservation. Art. II of such agreement provided for the making of allotments to individual Pawnee Indians. Thereafter, on October 9, 1893, there was issued to Horace Field, a Pawnee Indian, a trust patent covering the following described lands: 'The South East quarter of the North West quarter, and the Lots numbered one, two and three of Section nineteen in Township twenty-three North of Range four East of the Indian Meridian, in Oklahoma Territory, containing one hundred and twenty-one acres and sixty-six hundredths of an acre.' Title to that tract is now held by the United States in trust for four Indians to whom it passed by descent. On October 9, 1893, a trust patent was issued to William Bayhylle, a Pawnee Indian, covering the following described land: 'The west half of the northeast quarter of section twenty and the southwest quarter of the southeast quarter and the lot numbered six of section seventeen in Township twenty-three north of Range four east of the Indian Meridian, Oklahoma Territory containing one hundred and twenty-nine acres.' Title to that tract is now held by the United States in trust for eight Indians to whom it passed by descent. These two Pawnee allotments are also bounded by the Arkansas River.

All four of the trust patents were issued under § 5 of the General Allotment Act of February 8, 1887, 17 and the trust period has been extended by Executive Orders as provided therein.

The portions of the river bed in suit were situated in Oklahoma Territory. The State of Oklahoma was admitted into the Union on November 16, 1907. All of the allotments were made prior to statehood.

On July 20, 1942, the State of Oklahoma executed two oil and gas leases in favor of Champlin Refining Company, covering the south half of the Arkansas River bed for a considerable distance, including the area of the river bed adjoining the four riparian tracts, and the Champlin Refining Company has drilled one well which is producing in commercial quantities.

On July 13, 1943, the United States commenced the instant action against the Champlin Refining Company to enjoin it from trespassing upon the river bed and drilling for oil and gas thereunder, and for a decree canceling the lease and quieting the title in the United States, its allottees, and their heirs. The State of Oklahoma intervened in the action.

On September 16, 1944, a stipulation was entered into to the effect that it should be considered that the United States had introduced evidence showing the Arkansas River to be nonnavigable in fact at the location of the river bed in controversy on all dates material in this case.

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The trial court found that the patents neither expressly included nor excluded the river bed and that the river, at all times material to the controversy, at the locations of the riparian tracts, was nonnavigable in fact.

In the case of State v. Nolegs, 40 Okl. 479, 139 P. 943, decided in 1914, the court took judicial notice of the fact that the Arkansas River was navigable, and held that the title of patentees to adjoining lands extended only to the high water mark of the stream. The land there involved was a homestead entry. The date of the patent is not disclosed.

The trial court held that the State had power to...

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