United States v. Gray

• Decision Date: 21 October 1912
• Docket Number: 3,794.
• Citation: 201 F. 291
• Parties: UNITED STATES v. GRAY et al.
• Court: U.S. Court of Appeals — Eighth Circuit

201 F. 291

UNITED STATES v. GRAY et al.

No. 3,794.

United States Court of Appeals, Eighth Circuit.

October 21, 1912

Hiram E. Booth, U.S. Atty. (Wm. M. McCrea, of Salt Lake City, Utah on the brief), for the United States.

Before SANBORN and CARLAND, Circuit Judges, and WILLIAM H. MUNGER District Judge.

SANBORN Circuit Judge.

The question which this case presents is whether or not the United States has capacity to sue a lessee and his surety for breaches of the covenants of a lease made by an Indian allottee and approved by the Secretary of the Interior.

Ben Niccowree was an Uncompahgre Ute Indian, under the direction and supervision of the Uintah and Ouray Indian agency, and an allottee of a tract of 80 acres of land under the act of Congress of February 8, 1887, the legal title to which the United States was holding in trust for the period of 25 years for him, or in case of his death for his heirs. Act Feb. 8 1887, c. 119, 24 Stat. 389, Sec. 5; Act May 27, 1902, c. 888, 32 Stat. 263; Joint Res. June 19, 1902, 32 Stat. 744; United States v. Rickert, 188 U.S. 432, 436, 23 Sup.Ct. 478, 47 L.Ed. 532. He had no power to alienate the land during the 25 years, and the act of Congress expressly declared that any conveyance of or contract touching it during that time should be absolutely null and void. Pursuant to section 3 of the act of February 28, 1891 (26 Stat. 795, c. 383), and of the act of August 15, 1894 (28 Stat. 305, c. 290), which provided that when it is made to appear to the Secretary of the Interior that by reason of age, disability, or inability any such allottee cannot personally with benefit to himself occupy or improve his allotment, the same may be leased upon such terms, regulations, and conditions as shall be prescribed by the Secretary of the Interior for a term not exceeding five years for farming or grazing purposes, this land was leased by Niccowree, on terms and conditions approved by the Secretary in accordance with regulations made by him, to the defendant Gray, and the defendant Dinkins became a surety for Gray's performance of the covenants of the lease. This lease recited that it was between 'Ben Niccowree of Uintah and Ouray Indian agency' and Arthur Leon Gray. It contained covenants that Gray would pay to the agent of Uintah and Ouray agency $28 per annum for the use of Niccowree, the allottee, and that he would cultivate all the arable land leased, set out an orchard of not less than 5 acres, seed 20 acres to alfalfa, build a stable, and make other improvements upon the land. It was signed by Niccowree and Gray, it bore the certificate of the Indian agent of the Uintah and Ouray agency that Niccowree could not personally and with benefit to himself occupy or improve the land, and that the rent was just and fair, and the agent testified that he made the lease. The lease also bore the written approval of the First Assistant Secretary of the Interior. The lessee failed to make the improvements he had agreed to make, to the damage of the lessor in the sum of about $1,000. The foregoing facts were proved without contradiction at the trial, and thereupon the court instructed the jury to return a verdict for the defendants, on the ground that the United States had no capacity to maintain the action, because it did not bring it as the holder of the legal title for injury to its ownership of the land, because it had no pecuniary interest or contractual right in the matter, and the action was not brought to enforce any legal prohibition or to redress any violation of any law of the United States.

But for more than a century it has been and still is the governmental policy of the United States to exercise the power granted to it by the Constitution (article 1, Sec. 8, subd. 3) to protect the Indians and their property from the greed rapacity, cunning, and perfidy of the members of the superior race, which have so often driven them to poverty, despair, and war, and to teach and persuade them to abandon nomadic habits and to adopt and practice the arts of civilization. In order to carry out this policy it has reserved and held in trust for them large tracts of land and large sums of money derived from their release of their rights of occupancy of their lands in this country, it has controlled and managed their property for them, it has furnished them with houses, barns, and other permanent improvements, with domestic animals, means of subsistence, and money in small amounts. It has provided them with government agents to advise them and to protect their property, and with physicians, farmers, schools and teachers to instruct them. And while, under the act of 1887, Niccowree has become a citizen of the United States and subject to its laws and the laws of the state in which he resides (24 Stat. 390, Sec. 6), the United States is still pursuing its policy of protection and instruction,...