Beck v. Flournoy Live-Stock & Real-Estate Co., 520.

• Decision Date: 10 December 1894
• Docket Number: 520.
• Citation: 65 F. 30
• Parties: BECK v. FLOURNOY LIVE-STOCK & REAL-ESTATE CO.
• Court: U.S. Court of Appeals — Eighth Circuit

65 F. 30

BECK v. FLOURNOY LIVE-STOCK & REAL-ESTATE CO.

No. 520.

United States Court of Appeals, Eighth Circuit.

December 10, 1894

Ralph W. Breckenridge, Sp. Asst. to U.S. Atty. (A. J. Sawyer, U.S Atty., on the brief), for appellant.

H. C Brome (A. H. Burnett and R. A. Jones, on the brief), for appellee.

Before CALDWELL and THAYER, Circuit Judges.

THAYER Circuit Judge.

This is an appeal from a decree rendered in favor of the Flournoy Live-Stock & Real-Estate Company, who was the complainant in the circuit court, whereby the appellant, William H. Beck was enjoined from interfering with the complainant's possession of a large body of land situated within the limits of the Omaha and Winnebago Indian reservation in the state of Nebraska. In June, 1893, the appellant, who is a captain in the United States army, was detailed by the president to take charge of the Omaha and Winnebago Indian agency in the state of Nebraska, pursuant to an act of congress approved on July 13, 1892, which authorized army officers to be detailed by the president for such service. 17 Stat. 120, c. 164. Prior to that time, during the year 1890 and the early part of the year 1891, the Flournoy Live-Stock & Real-Estate Company, which will be hereafter referred to as the 'Real-Estate Company,' had secured leases from certain Winnebago Indians for about 37,000 acres of land lying within said reservation, and was in possession of the land, either by its agents or its sublessees, claiming the right to hold, occupy, and use the land in question. Said leases had been obtained by the real-estate company without the sanction or approval of the commissioner of Indian affairs, and, as soon as the existence of the same became known to the department of the interior, the department pronounced the leases in question to be utterly null and void, and of no force and effect whatsoever. In the month of July, 1893, after the appellant had assumed charge of the agency, he was directed by the commissioner of Indian affairs to cause notices to be served upon the appellee and upon all other persons holding leases for land within said reservation that the leases were void, and would not be recognized by the department of the interior, and that the leased premises must be vacated by the various lessees not later than December 31, 1893. The appellant was proceeding to execute this order, and to serve such notices, when the present bill of complaint was filed by the real estate company in the circuit court of the United States for the district of Nebraska. An interlocutory injunction was granted by the circuit court on October 10, 1893, restraining the appellant from interfering with the real-estate company's possession or use of lands lying within the reservation, and held by it under leases obtained from Winnebago Indians. This injunction was modified in some respects in May, 1894, but, as finally entered on July 16, 1894, it forever enjoined and restrained the appellant from interfering with or disturbing the real-estate company or its lessees in the possession or use of the lands described in the bill of complaint.

The fundamental question presented by the record is whether the leases that have been obtained by the real-estate company in the manner aforesaid for lands situated within the Omaha and Winnebago reservation are valid, and the consideration of that question involves a brief reference to the various treaties and acts of congress under and by virtue of which the lands in question were acquired and are now held by the Indian lessors. The Winnebago tribe of Indians was originally domiciled on lands situated in the state of Minnesota, but by an act of congress approved on February 21, 1863, the president of the United States was authorized to take such steps as he might deem necessary to effect the peaceful removal of the tribe from that state. He was also empowered to assign and set apart for the use of said tribe a tract of unoccupied land, beyond the limits of any state, in extent at least equal to their diminished reservation in the state of Minnesota. 12 Stat. 658, c. 53. Pursuant to this act the Winnebagoes were first removed and settled upon lands in the territory of Dakota, where they appear to have been located as early as the year 1865. By a treaty that was concluded between the United States and the Winnebago tribe of Indians on March 8, 1865, and proclaimed on March 28, 1866, the tribe ceded its reservation in Dakota to the United States, and in consideration therefor the United States agreed 'to set apart for the occupation and future home of the Winnebago Indians forever all that certain tract or parcel of land ceded to the United States by the Omaha tribe of Indians, on the 6th day of March A.D. 1865, situated in the territory of Nebraska and described as follows, viz.: Commencing at a point on the Missouri river four miles due south from the north boundary line of said reservation; thence west ten miles; thence south four miles; thence west to the western boundary line of the reservation; thence north to the northern boundary line; thence east to the Missouri river; and thence south along the river to the place of beginning.' 14 Stat. 671. Shortly after the conclusion of the aforesaid treaty the tribe moved to the reservation last described, and has since continued to live thereon. During the period of their residence on said reservation, which has been generally termed the 'Omaha and Winnebago Reservation,' they have at all times been under the charge and control of Indian agents who have been appointed by the government from time to time to supervise the affairs of the tribe. The fourth section of the act of congress approved on February 21, 1863 (12 Stat. 659, c. 53), provided, in substance, that when the Winnebago tribe of Indians was removed to its new reservation, the secretary of the interior might allot lands in severalty to the individual members of said tribe 'not exceeding eighty acres to each head of a family other than chiefs, to whom larger allotments may be made, which lands, when so allotted, shall be vested in said Indian and his heirs without the right of alienation and shall be evidenced by patent. ' Under the aforesaid provision of said act, allotments were made in the year 1871 or 1872 to various members of the tribe to the extent of about 960 acres, which are a part of the lands involved in the present suit. The patents issued for the lands so allotted referred to the act of February 21, 1863, under which the same had been issued, and in the granting clause contained the following limitation, to wit: 'Without the right of alienation as stipulated in the act of congress aforesaid. ' No further allotments of land appear to have been made to members of the Winnebago tribe of Indians until after the passage of an act of congress approved on February 8, 1887, which is entitled 'An act to provide for the allotment of lands in severalty to Indians on the various reservations, and to extend the protection of the laws of the United States and the territories over the Indians, and for other purposes.' 24 Stat. 388, c. 119. The first section of this act authorized the president of the United States to cause Indian reservations on which Indians were then located under the care of the government to be surveyed, and the lands to be allotted in severalty to the Indians living thereon, in certain prescribed proportions, 'whenever, in his opinion, any such reservation or part thereof was advantageous for agricultural or grazing purposes. ' The second section of the act prescribed the manner in which land should be selected for allotment, either by the Indians themselves or by the Indian agent in charge of the reservation. The third section of the act provided that allotments should be made under the supervision of special agents appointed for that purpose, and that the allotments, when made, should be certified to the secretary of the interior for his action, and be deposited in the general land office. The fifth and sixth sections of the act, which have a more immediate bearing on the questions at issue in this case, are as follows:

'Sec. 5. That upon the approval of the allotments provided for in this act, by the secretary of the interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect, and declare that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs, according to the laws of the state or territory where such land

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