318 U.S. 206 (1943), 171, United States v. Oklahoma Gas & Electric Co.

Docket Nº:No. 171
Citation:318 U.S. 206, 63 S.Ct. 534, 87 L.Ed. 716
Party Name:United States v. Oklahoma Gas & Electric Co.
Case Date:February 15, 1943
Court:United States Supreme Court

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318 U.S. 206 (1943)

63 S.Ct. 534, 87 L.Ed. 716

United States


Oklahoma Gas & Electric Co.

No. 171

United States Supreme Court

Feb. 15, 1943

Argued December 9, 1942




1. A permit granted by the Secretary of the Interior under § 4 of the Act of March 3, 1901, to the State of Oklahoma to open and establish a public highway over Indian allotted lands is to be construed, in the absence of any governing administrative ruling, statute, or Congressional policy to the contrary, as authorizing the State to license the erection and maintenance of a rural electric service line, a proper use of the highway under state law. P. 209.

2. The Indian allotted lands involved in this case were not within a "reservation" as used in the Acts of February 15, 1901, and March 4, 1911. P. 215.

127 F.2d 349 affirmed.

Certiorari 317 U.S. 608, to review the affirmance of a judgment, 37 F.Supp. 347, dismissing a complaint.

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JACKSON, J., lead opinion

MR. JUSTICE JACKSON delivered the opinion of the Court.

The United States sued the Oklahoma Gas and Electric Company in the United States District Court asking a declaratory judgment that the Company illegally occupies with its pole line certain Indian land, and a mandatory injunction to terminate such occupation. The case turns on whether permission to the State of Oklahoma to establish a highway over allotted Indian land given under § 4 of the Act of March 3, 1901,1 includes the right to permit maintenance of rural electric service lines within the highway bounds.

The United States, at all relevant times, held title to half of a quarter section of land in Oklahoma in trust for She-pah-tho-quah, a Mexican Kickapoo Indian allottee thereof, and, since her death, for her heirs. The State of Oklahoma applied to the Secretary of the Interior "to grant permission in accordance with § 4 of the Act of March 3, 1901 (31 Stat.L. 1058, 1084), to open and establish a public highway" across the land in question. The highway width was 80 feet, and it extended 2577 feet on these lands, occupying 4.55 acres thereof. The State paid therefor $1,275 as compensation to the heirs of She-pah-tho-quah, and on January 20, 1928, the map of definite location was on behalf of the Secretary endorsed

Approved subject to the provisions of the Act of March 3, 1901 (31 Stat.L. 1058, 1084), Department regulations

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thereunder, and subject also to any prior valid existing right or adverse claim.

Section 4 of the Act of March 3, 1901, under which the application was specifically made and granted, provides:

That the Secretary of the Interior is hereby authorized to grant permission, upon compliance with such requirements as he may deem necessary, to the proper State or local authorities for the opening and establishment of public highways, in accordance with the laws of the State or Territory in which the lands are situated, through any Indian reservation or through any lands which have been allotted in severalty to any individual Indian under any laws or treaties but which have not yet been conveyed to the allottee with full power of alienation.

Apparently the Secretary has never issued a regulation applicable to this case. Cf. 25 Code of Federal Regulations § 261.1 et seq.

The highway was opened, and, in 1936, the Oklahoma State Highway Commission, with statutory authority to act in the matter,2 granted respondent the license under which it occupies a portion of the highway with its rural electric service line. The license is in terms revocable at will, provides for location of the poles 38 feet from the center of the highway, and requires all lines to be kept in good repair. The licensee assumes all liability for damage, and the license recites that it is "granted subject to any and all claims made by adjacent property owners as compensation for additional burden on such adjacent and abutting property."

The Secretary considered this use of the property not warranted by his permission to the State to establish a highway under § 4 of the Act of March 3, 1901. He demanded that the Company apply to him under the Acts

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of February 15, 1901 and March 4, 1911,3 for permission to maintain its lines and, when the Company refused, instituted this action. The District Court dismissed the complaint, and the Circuit Court of Appeals [63 S.Ct. 536] for the Tenth Circuit affirmed. 37 F.Supp. 347; 127 F.2d 349. The question appeared important to the administration of Indian affairs, and we granted certiorari. 317 U.S. 608.

It is not denied that, under the laws of Oklahoma, the use made of the highway by respondent, the State's licensee, is a lawful and proper highway use, imposing no additional burden for which a grantor of the highway easement would be entitled to compensation. But the Government denies that the Act of March 3, 1901, providing "for the opening and establishment of public highways, in accordance with the laws of the State or Territory in which the lands are situated," submits the scope of the highway use to state law. Its interpretation gives the Act a very limited meaning, and substantially confines state law to governing procedures for "opening and establishment" of the highway. It offers as examples of what is permitted to state determination whether a state or county agency builds the road, whether funds shall be raised by bond issue or otherwise, and the terms and specifications of the construction contract. The issue is between this narrow view of the State's authority and the broader one which recognizes its laws as determining the various uses which go to make up the "public highway," opening and establishment of which are authorized.

We see no reason to believe that Congress intended to grant to local authorities a power so limited in a matter so commonly subject to complete local control.

It is well settled that a conveyance by the United States of land which it owns beneficially or, as in this case, for

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the purpose of exercising its guardianship over Indians, is to be construed, in the absence of any contrary indication of intention, according to the law of the State where the land lies.4 Presumably Congress intended that this case be decided by reference to some law, but the Government has cited, and we know of, no federal statutory or common law rule for determining whether the running of the electric service lines here involved was a highway use. These considerations, as well as the explicit reference in the Act to state law in the matter of "establishment," as well as of "opening," the highway indicate that the question in this case is to be answered by reference to that law, in the absence of any governing administrative ruling, statute, or dominating consideration of Congressional policy to the contrary. We find more of these.

Apparently the Secretary has never sought to solve the problem of this case by an administrative ruling, and whether he might do so is a question which the parties have neither raised nor discussed, and upon which we intimate no opinion.

In construing this statute as to the incidents of a highway grant, we must bear in mind that the Act contemplated a conveyance to a public body, not to a private interest. There was not the reason to withhold continuing control over the uses of the strip that might be withheld wisely in a grant of indefinite duration to a private grantee. It is said that the use here permitted by the State is private and commercial, and so it is. But a license to use the highway by a carrier of passengers for hire, or by a motor freight line, would also be a private

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and commercial use in the same sense. And it has long been both customary and lawful to stimulate private self-interest and utilize the profit motive to get needful services performed for the public. The State appears to be doing no more than that.

This is not such a transmission line as might endanger highway travel or abutting owners with no compensating advantage. It is a rural service line, and to bring electric energy in to the countryside is quite as essential to modern life as many other [63 S.Ct. 537] uses of the highway. The State has granted nothing not revocable at will, has alienated nothing obtained under the Act, has permitted no use that would obstruct or interfere with the use for which the highway was established, and has not purported to confer any right not subsidiary to its own or which would survive abandonment of the highway.

The interpretation suggested by the Government is not shown to be necessary to the fulfillment of the policy of Congress to protect a less-favored people against their own improvidence or the overreaching of others; nor is it conceivable that it is necessary, for the Indians are subjected only to the same rule of law as are others in the State, and then only by permission of the Secretary, subject to compliance with "such requirements as he may deem necessary."

Oklahoma is spotted with restricted lands held in trust for Indian allottees. Complications and confusion would follow from applying to highways crossing or abutting such lands rules differing from those which obtain as to lands of non-Indians. We believe that, if Congress had intended this, it would have made its meaning clear.

The Government relies, however, on the Acts of February 15, 1901, and of March 4, 1911, which it says require the Secretary's consent to cross Indian land with electric lines regardless of the prior grant of permission for the

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highway. We believe that they are inapplicable to the land in suit, and therefore need not determine what would be their effect if they did apply.

The Act...

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