Oil Gas Co v. United States

• Citation: 43 S.Ct. 60,260 U.S. 77,67 L.Ed. 140
• Decision Date: 13 November 1922
• Docket Number: No. 52,BREWER-ELLIOTT,52
• Parties: OIL & GAS CO. et al. v. UNITED STATES
• Court: United States Supreme Court

260 U.S. 77

43 S.Ct. 60

67 L.Ed. 140

BREWER-ELLIOTT OIL & GAS CO. et al.

v UNITED STATES.

No. 52.

Argued Oct. 12 and 13, 1922.

Decided Nov. 13, 1922.

[Syllabus from pages 77-78 intentionally omitted] Messrs. W. A. Ledbetter, S. P. Freeling, H. L. Stuart, and E. E. Blake, all of Oklahoma City, Okl., for appellants.

Mr. Assistant Attorney General Riter, for the United States.

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 river bed 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 river bed 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 river bed 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 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 river bed to the main channel and still had it. It entered a decree as prayed in the bill. The Curcuit 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 river bed, 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 river bed 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.¹ The de scription 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 conveyance from the Cherokees to the United States in trust for the Osages recites the Cherokee Treaty of 1866 (14 Stat. 799), the Acts of June 5, 1872, March 3, 1873, and March 3, 1883, and conveys to the United States the tract of country described in the Act of June 5, 1872, except that, instead of its being bounded by the main channel of the Arkansas river, it is described as townships and fractional townships, 'the fractional townships being on the left bank of the Arkansas river.' The deed purports to be executed under authority of an act of the Cherokee Nation, which directed a deed under the Act of March 3, 1883, requiring conveyance, satisfactory to the Secretary of the Interior, to the United States in trust for the Osages now occupying said tract, 'as they occupy the same.'

We have no doubt that the title to the river bed is to be determined by the language of the Act of June 5, 1872 and that the meaning of the Cherokee deed is to be interpreted not as if its words stood alone but in the light of the acts of Congress in pursuance of which it was made, and especially of the Act of 1872, under which the Osages took possession, and which was enough to vest in them good title to the land described therein without the deed of 1883. Choate v. Trapp, 224 U. S. 665, 673, 32 Sup. Ct. 565, 56 L. Ed. 941; Jones v. Meehan, 175 U. S. 1, 10, 20 Sup. Ct. 1, 44 L. Ed. 49; Francis v. Francis, 203 U. S. 233, 237, 238, 27 Sup. Ct. 129, 51 L. Ed. 165.

Coming then to consider the effect of the words of the Act of 1872 in bounding the Osage reservation 'by the main channel of the Arkansas river,' we are met by the argument that the United States had no power to grant the bed of the Arkansas river, a navigable stream, to the Indians, because it held title to it only in trust to convey it to the states to be formed out of the Louisiana Purchase which when admitted to the Union must, in order to be equal in power to the other states, be vested with sovereign rights over the beds of navigable waters and streams. The case of Pollard's Lessee v. Hagan, 3 How. 212, 11 L. Ed. 565, is cited to sustain this proposition. That was a case where a Spanish claimant of land under navigable waters in Alabama, seeking to establish title against the state, relied on a confirmation of an invalid Spanish grant by the United States enacted after Alabama became a state. Such a confirmation was held to be ineffective against the sovereign title of the state. The language of Mr. Justice McKinley, who spoke for the court, fully sustains the argument made here that even before statehood, the United States was without power to convey title to land under navigable water and deprive future states of their future ownership. Such a view was not necessary, however, to the case before the court and has since been qualified by the court through Chief Justice Taney in Goodtitle v. Kibbe, 9 How. 471, 478, 13 L. Ed. 220. Ward v. Race Horse, 163 U. S. 504, 16 Sup. Ct. 1076, 41 L. Ed. 244, relied on by counsel for appellants does not sustain their contention. The gist of the court's holding there was that a right to hunt upon the unoccupied lands of the United States so long as game might be found thereon granted by the United States in an Indian treaty made before the statehood of Wyoming was not to be construed as intended to continue thereafter or to give immunity from the Wyoming game laws.

The whole subject has been clarified after the fullest examination of all the authorities in a most useful opinion by Mr. Justice Gray, speaking for the court in Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, 38 L. Ed. 331. On page 47 of 152 U. S., on page 565 of 14 Sup. Ct. (38 L. Ed. 331), the learned Justice says:

'VIII. Notwithstanding the dicta contained in some of the opinions of this court, already quoted, to the effect that Congress has no power to grant any land below high-water mark of navigable waters in a territory of the United States, it is evident that this is not strictly true.'

And he then reviews the cases and thus states the court's conclusion (152 U. S. 48, 14 Sup. Ct. 566, 38 L. Ed. 331):

'We cannot doubt, therefore, that Congress has the power to make grants of lands below high-water mark of navigable waters in any territory of the United States, whenever it becomes necessary to do so in order to perform international obligations, or to effect the improvement of such lands for the promotion and convenience of commerce with foreign nations and among the several States, or to carry out other public purposes appropriate to the objects for which the United States hold the territory.

'IX. But Congress has never undertaken by general laws to dispose of such lands. And the reasons are not far to seek. * * *

'The Congress of the United States, in disposing of the public lands, has constantly acted upon the theory that those lands, whether in the interior, or on the coast, above high-water mark, may be taken up by actual occupants, in order to encourage the settlement of the country; but that the navigable waters and the soils under them whether within or above the ebb and flow of the tide, shall be and remain public highway; and, being chiefly valuable for the public purposes of commerce, navigation and fishery, and for the improvements necessary to secure and promote those purposes, shall not be granted away during the period of territorial government; but, unless in case of some international duty or public exigency, shall be held by the United States in trust for future States, and shall vest in the several states, when organized and admitted into the Union, with all the powers and prerogatives appertaining to the older states in regard to such waters and soils within their respective jurisdictions; in short, shall not be disposed of piecemeal to individuals as private property, but shall be held as a whole for the purpose of being ultimately administered and dealt with for the public benefit by the state, after it shall have become a completely organized community.'

We do not think the declared purpose of the Louisiana Purchase Treaty with France (8 Stat. 200) that statehood should be ultimately conferred on the inhabitants of the territory purchased, relied on by the appellants, varies at all the principles to be applied in this case. They are the same in respect to territory of the United States whether derived from the older states, Spain, France of Mexico. If the Arkansas river were navigable in fact...