260 U.S. 77 (1922), 52, Brewer-Elliott Oil & Gas Company v. United States

Docket Nº:No. 52
Citation:260 U.S. 77, 43 S.Ct. 60, 67 L.Ed. 140
Party Name:Brewer-Elliott Oil & Gas Company v. United States
Case Date:November 13, 1922
Court:United States Supreme Court

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260 U.S. 77 (1922)

43 S.Ct. 60, 67 L.Ed. 140

Brewer-Elliott Oil & Gas Company


United States

No. 52

United States Supreme Court

Nov. 13, 1922

Argued October 12, 13, 1922




1. Where an act of Congress setting apart and confirming a reservation to the Osage Indians out of lands formerly occupied but ceded by the Cherokees described the west boundary as "the main channel of the Arkansas River," and a deed to the United States for the Osages, made by the Cherokees in pursuance of this and

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other acts and of a treaty, described the land only by whole townships, and by fractional townships "on the left bank of the Arkansas River," held that the deed was to be interpreted in conformity with the act, and that the act carried title to land in the riverbed out to the main channel. Pp. 82, 87.

2. Congress has power to make grants of lands below high water mark of navigable waters in a Territory, to carry out public purposes appropriate to the objects for which the United States holds the Territory. P. 83. Shively v. Bowlby, 152 U.S. 1, 47.

3. This principle was not affected as to lands within the Louisiana Purchase by the purpose, declared in the treaty with France, that statehood should ultimately be conferred on the inhabitants of the territory purchased. P. 86.

4. A navigable river is one which is used or is susceptible of being used in its ordinary condition as a highway for commerce over which trade and travel are or may be conducted in the modes customary on water. P. 86.

5. The evidence in this case affords no ground for rejecting the finding of the two courts below that the Arkansas River, along the Osage Reservation in Oklahoma, is not and never has been a navigable stream. P. 86.

6. A grant of land in the bed of a nonnavigable river made by the United States while holding complete sovereignty over the locality including it cannot be divested by a retroactive rule or declaration of the state subsequently created out of that territory classifying the river as navigable. P. 87.

7. Such a grant being attacked upon the ground that the river was navigable and its bed not subject to be granted by the United States, the question of navigability is not a local, but a federal, question. P. 87. Wear v. Kansas, 245 U.S. 154, distinguished.

270 F. 100 affirmed.

Appeal from a decree of the circuit court of appeals affirming a decree of the district court in favor of the United States in a suit brought on its own behalf and as trustee for the Osage Tribe of Indians to cancel oil and gas leases granted the appellants by the State of Oklahoma covering land constituting part of the bed of the Arkansas River within the Osage Reservation, and to enjoin operations under the leases and quiet title in the United States as trustee.

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TAFT, J., lead opinion

MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.

This is an appeal from a decree of the circuit court of appeals of the Eighth Circuit affirming that of the district court for Western Oklahoma. The bill in equity was filed by the United States for itself and as Trustee for the Osage Tribe of Indians, against the Brewer-Elliott Oil & Gas Company, and five other such companies, lessees, under oil and gas leases granted by the State of Oklahoma, of portions of the bed of the Arkansas River, opposite the Osage Reservation in that state. It averred that the riverbed thus leased belonged to the Osages, and not to Oklahoma, and that the leases were void, that the defendants were prospecting for, and drilling for, oil in the leased lots in the riverbed and were erecting oil derricks and other structures therein, and prayed for the cancelling of the leases, the enjoining of defendants from further operations under their leases, and a quieting of the title to the premises in the United States as trustee.

The State of Oklahoma intervened by leave of Court, and in its answer denied that the Osage Tribe or the United States as its trustee owned the riverbed of which these lots were a part, but averred that it was owned by the state in fee. The other defendants adopted the answer of the state.

After a full hearing and voluminous evidence, the district court found that, at the place in question, the Arkansas River was, and always had been, a nonnavigable

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stream, that, by the express grant of the government, made before Oklahoma came into the Union, the Osage Tribe of Indians took title in the riverbed to the main channel, and still had it. It entered a decree as prayed in the bill. The circuit court of appeals held that, whether the river was navigable or nonnavigable, the United States, as the owner of the territory through which the Arkansas flowed before statehood, had the right to dispose of the riverbed, and had done so to the Osages. It also concurred in the finding of the district court that the Arkansas at this place was and always had been nonnavigable, and that the United States had the right to part with the riverbed to the Osage Tribe when it did so. It affirmed the decree.

The Osage Tribe derived title to their reservation from the Act of Congress of June 5, 1872, entitled an act to confirm to the Great and Little Osage Indians a reservation in the Indian Territory (17 Stat. 228). The Act, with its recitals, is printed in the margin. * The description

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of the tract conveyed is:

Bounded on the east by the ninety-sixth meridian, on the south and west by the north line of the Creek country, and the main channel of the Arkansas River, and on the north by the south line of the State of Kansas.

The Act of March 3, 1873, 17 Stat. 530, 538, directed the Secretary of the Treasury to transfer $1,650,600 from Osage funds to pay for lands purchased by the Osages from the Cherokees. The Act of March 3, 1883, 22 Stat. 603, 624, appropriated $300,000 to be paid to the Cherokees for this and other lands on condition of their executing a proper deed. The...

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