Bluejacket v. Ewert

• Decision Date: 01 March 1920
• Docket Number: 5316.
• Citation: 265 F. 823
• Parties: BLUEJACKET et al. v. EWERT.
• Court: U.S. Court of Appeals — Eighth Circuit

265 F. 823

BLUEJACKET et al. v. EWERT.

No. 5316.

United States Court of Appeals, Eighth Circuit.

March 1, 1920

Rehearing Denied August 7, 1920.

Hiram W. Currey, of Joplin, Mo. (A. Scott Thompson, of Miami, Okl on the brief), for appellants.

Paul A Ewert, of Joplin, Mo., pro se.

The appellants (hereinafter called plaintiffs) brought suit to cancel a conveyance of land in Ottawa, Okl., made by them to appellee (hereinafter called defendant). From a decree dismissing the bill this appeal is prosecuted. The land had been allotted to Charles Bluejacket, an Indian of the Quapaw tribe, under the provisions of the Act of Congress of March 2, 1895 (28 Stat. 876, 907), and a patent had been issued to him, containing a restriction upon alienation within 25 years from its date. Charles Bluejacket died intestate in 1907, leaving as his heirs the plaintiffs, and others, who are not parties to this suit. The conveyance to defendant by the widow, the adult heirs, and the guardians of the minor heirs of Charles Bluejacket was executed on April 8, 1909, under the authority of that portion of section 7 of the Act of Congress of May 27, 1902 (32 Stat. 245, 275 (Comp. St. Sec. 4223)), which reads as follows:

'That the adult heirs of any deceased Indian to whom a trust or other patent containing restrictions upon alienation has been or shall be issued for lands allotted to him may sell and convey the lands inherited from such decedent, but in case of minor heirs their interests shall be sold only by a guardian duly appointed by the proper court upon the order of such court, made upon petition filed by the guardian, but all such conveyances shall be subject to the approval of the Secretary of the Interior, and when so approved shall convey a full title to the purchaser, the same as if a final patent without restriction upon the alienation had been issued to the allottee.'

The bill alleges as the grounds for setting aside the conveyance that the grantee was disqualified and prohibited by law from receiving the conveyance and that no report of the guardians' deed and sale was approved by the county court which had appointed them.

Before the proceedings were taken for the sale of plaintiffs' lands, the Secretary of the Interior had adopted a set of rules and regulations applying to proposed sales of inherited Indian lands under the provisions of the statute last quoted, and compliance with them was a condition upon which his approval of any conveyance depended. These rules required that a minor heir's interest could only be conveyed by a guardian duly appointed by the proper court, and upon the order of such court, made upon a petition filed by the guardian, but all such conveyances were subject to the approval of the Secretary of the Interior. The owners of inherited Indian land who desired to sell it were also required to petition the Indian agent having charge of the territory wherein the land was situated asking to have the land sold in accordance with the rules of the Secretary, and agreeing that the proceeds of the sale should be placed in designated banks, and its withdrawal was subject to the approval of officers of the Indian department. The Indian agent, if satisfied that the facts alleged in the petition were sufficient, would file the petition and send a copy to the Commissioner of Indian Affairs. The agent was required to post in a conspicuous place in his office for the period of 60 days, a list of the lands, the names of the owners, and the dates when bids would be opened. When any land had been posted for sale, it was the Indian agent's duty to view and appraise it, make a certificate of the appraisement, seal it, and not to open it until the date of sale. The appraisement was not to be made public either before or after the sale and no bid for less than the appraisal value was to be considered. No Indian agent nor any one connected with the agency office could prepare or assist in preparing the bid of any prospective purchaser. The bids were received in sealed envelopes, with the date marked thereon when they were to be opened. The right to reject any and all bids was reserved and the acceptance of all bids was subject to the approval of the owner of the land. Lands not disposed of at the appointed time could, if the owner so desired, be relisted and offered for sale after after 30 days' advertisement, under the same rules that governed their original listing. The Commissioner of Indian Affairs was required to advertise in some local paper of general circulation near the lands the proposed sale of lands and inviting bids therefor, and a list of the lands offered for sale was also to be published in the weekly edition of the newspaper of widest circulation in the county where the lands were situated.

The deed of conveyance was required to be submitted for the Secretary's approval, accompanied by the original petition, the appraisement, all bids,

checks received to apply on payment, a report by the agent of all proceedings prior to the execution of the deed, together with a certificate from the agent that the deed was fully explained to the grantors, that the consideration was the fair price for the land, and that the conveyance was free from fraud and deception. The purchase price in no case was to be paid to the grantors, but deposited in a bank, or paid to the Indian agent, for the benefit of the grantors, when the Secretary should have approved the deed. Affidavits of grantors and grantees were required with the deed, showing that there was no contract, agreement or understanding, oral or written, for the refunding of any of the consideration money to the purchaser, or for the exchange of any property in lieu of the consideration money. The grantee's affidavit was also required to the effect that he was not a party to any association of persons to acquire such lands at less than their fair value, or to prevent open and fair competition in the purchase; that the contract was not procured by false representations to the grantor, or suppression of facts as to the value of the land or any other feature of the transaction; and that neither the grantor nor any person for him had been given or promised any money or thing of value, except the consideration, to induce him to agree to the sale of his land. The form of deed was also prescribed by the rules.

The plaintiff in June, 1908, filed a petition with the Indian agent for the Quapaw Tribe praying for the sale of these lands and agreeing to be bound by these rules governing the sale of such lands. The lands were listed for sale and the time for opening bids fixed for August 17, 1908. An appraisal was also made. This appraisal was kept secret until after the execution of the deed, its approval by the Secretary of the Interior and its delivery to defendant.

Early in July, 1908, petitions were filed with the county court of Ottawa county by the guardians of those of the plaintiffs who were them minors, praying for authority to make sale of the wards' shares in the lands and to join with the other heirs in such sale. The adult heirs waived notice of the hearing upon these petitions and on July 17 orders were entered by the county judge authorizing the guardians to sell the minors' shares according to the rules prescribed by the Secretary of the Interior, and directing a report of the guardians' proceedings under the order. It seems to be conceded by counsel that the proceedings leading up to the deed were substantially as now recited. At the first date fixed for opening bids, one Hughes presented a bid for the lands of $4,000, which was rejected as below the appraised value. The lands were offered a second time, but at the time fixed for receiving bids, September 1, none had been received. The lands were offered a third time, but at the time fixed, October 26, no bids were received. The lands were again offered for the fourth time on November 27, but no bids were received. Bids were invited for the fifth time, and on December 21, the defendant filed a bid of $4,000, which was rejected as below the appraised valuation. At the sixth offering of the lands, on January 25, 1909, the defendant filed a bid of $4,680, which was again rejected as below the appraised valuation. At a seventh offering of the lands on February 22, 1909, the defendant bid $4,000 for a portion of the lands, but this bid was rejected. The lands were again offered for the eighth time on March 29, 1909, and the defendant's bid of $5,000 was accepted. The deed to the defendant was then executed in April, 1909. It was approved by the Secretary of the Interior on July 26, 1909, delivered to defendant and recorded, and defendant took possession some time afterward.

Before SANBORN and STONE, Circuit Judges, and MUNGER, District Judge.

MUNGER District Judge (after stating the facts as above).

Complaint is made because the court refused to permit the plaintiff to file an amended bill, and to set aside the submission of the case and allow further testimony on behalf of the plaintiff. The application was made 11 weeks after the case had been heard upon the pleadings and the testimony. The showing in support of the application is of great length, but a recital of its merits would not be profitable. There was no error in refusing the application. It is also urged that a confirmation by the county court of the report of the guardians' sale was essential to convey the title of the wards. Neither the statute authorizing the sale of such lands nor the rules of the Secretary of the Interior make such a requirement, and the authority of Congress was plenary in fixing the conditions upon which sales of these Indian lands would be permitted.

The claim that defendant was disqualified from purchasing the land is...