Bowling v. United States

• Decision Date: 13 October 1911
• Docket Number: 3,585.
• Citation: 191 F. 19
• Parties: BOWLING et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

191 F. 19

BOWLING et al. v. UNITED STATES.

No. 3,585.

United States Court of Appeals, Eighth Circuit.

October 13, 1911

Halbert H. McCluer (Roland Hughes, on the brief), for appellants.

Paul A Ewert, Sp. Asst. Atty. Gen., for the United States.

Before SANBORN, Circuit Judge, and MARSHALL and W. H. MUNGER District judges.

MARSHALL District Judge.

This suit was instituted by the United States against 29 defendants to obtain a decree setting aside various conveyances of a tract of land originally allotted to Pe-te-lon-o-zah, or William Wea, a member of the Confederated Wea, Peoria, Kaskaskia and Piankeshaw Tribe of Indians, and also to declare void a judgment rendered by the United States Court for the Northern District of the Indian Territory, which decreed a transfer of this land.

As ground for this relief, the bill alleged an allotment and patent to William Wea of the land under an act of Congress approved March 2, 1889, entitled 'An act to provide for allotment of land in severalty to the United Peoria and Miamies in Indian Territory, and for other purposes' (Act March 2, 1889, c. 422, 25 Stat. 1013); the death of William Wea, intestate leaving heirs; a contract between certain Indians claiming to be the only heirs of said Wea, and one of the defendants, George E. Rundell, by which these heirs agreed to convey the land to Rundell for the purchase price of $1,000, $25 of which was paid by Rundell at the date of the contract, the balance to be paid when the heirs established their right to convey and on delivery of a deed for the land; a suit instituted by these heirs against Rundell for a specific performance of this contract resulting in the judgment mentioned above, in which it was decreed that the plaintiffs in that suit were the only heirs of William Wea, had full right to convey this land, and that the contract be specifically enforced; a delivery of a deed to Rundell pursuant to this decree, and various mesne conveyances purporting to vest the title in the Miami Investment Company, one of the appellants; the fact that this judgment and all of these conveyances were prior to the expiration of the 25-year period of restraint on alienation imposed by the act of Congress; and further that the action instituted by the heirs of Wea against Rundell was collusive and a part of a fraudulent scheme to obtain title to this land in violation of the prohibition against alienation. Bowling, one of the mesne grantors, and the Miami Investment Company jointly demurred to the bill. This demurrer was overruled, and they then answered. The substantial facts alleged in the bill were admitted by the answer, except that all of the averments of collusion and fraud in respect to the action between the heirs of William Wea and Rundell were denied; and it was affirmatively alleged that this suit was instituted in good faith to settle an actual controversy, and the judgment therein was a complete estoppel against the prosecution of the present action. The cause was set down for hearing on bill and answer, and from the decree in favor of the United States this appeal is prosecuted.

The questions involved, as stated in appellants' brief, are: (1) Does the restraint on alienation of allotted land imposed by the act of Congress run with the land so as to bind Indian heirs of the allottee, or, is it personal to the allottee, ceasing with his death? (2) Has the United States such an interest as entitles it to maintain this suit in its own name? (3) Is the judgment of the territorial court a conclusive adjudication of this controversy?

As early as 1854, by a treaty with the United States, the Wea Tribe of Indians became confederated with the Peoria, Kaskaskia, and Piankeshaw Tribes (May 30, 1854, 10 Stat. 1082). By virtue of the treaty of February 23, 1867, 15 Stat. 513, this confederated tribe was permitted to dispose of the lands which they had theretofore acquired in Kansas, and, with the proceeds, to purchase certain lands acquired by the United States from the Senecas and Quapaws and situated in the northeast part of what is now the state of Oklahoma. The land in controversy here is part of the land so purchased. The twenty-second article of this treaty contained this clause:

'The land in the second and fourth articles of this treaty proposed to be purchased from the Senecas and Quapaws, and lying south of Kansas, is hereby granted and sold to the Peorias.' 15 Stat. 519.

The general allotment act (Act Feb. 8, 1887, c. 119, 24 Stat. 388) excepted the Peoria Indians, by which name the Confederated Tribe was known, from its provisions; but the act of March 2, 1889, c. 422, 25 Stat. 1013, with the consent of these Indians, extended all of the provisions of the general allotment act, excepting section 6, and, so far as was consistent with the other provisions of the act, to the Confederated Wea, Peoria, Kaskaskia and Piankeshaw Tribe of Indians. Section 6 of the general allotment act conferred citizenship upon each Indian to whom an allotment of land was made under any law of or treaty made with the United States, but this exception became immaterial when by the act of May 2, 1890, citizenship was expressly granted to the members of this tribe (Act May 2, 1890, c. 182, Sec. 43, 26 Stat. 99).

With respect to the alienation of allotted land, it was provided in the act of March 2, 1889, that:

'The land so allotted shall not be subject to alienation for twenty-five years from the date of the issuance of patent therefor, and said land so allotted and patented shall be exempt from levy, sale, taxation, or forfeiture for a like period of years. As soon as all the allotments or selections shall have been made as herein provided, the Secretary of the Interior shall cause a patent to issue to each and every person so entitled, for his or her allotment, and such patent shall recite in the body thereof that the land therein described and conveyed shall not be alienated for twenty-five years from the date of said patent, and shall also recite that such land so alloted and patented is not subject to levy, sale, taxation, or forfeiture for a like period of years, and that any contract or agreement to sell or convey such land or allotments so patented entered into before the expiration of said term of years shall be absolutely null and void.'

Under these statutory provisions the land in question was allotted to William Wea and a patent therefor issued to him, granting it in fee...