Colson v. Hickel, 26212.

• Decision Date: 17 August 1970
• Docket Number: No. 26212.,26212.
• Citation: 428 F.2d 1046
• Parties: Barney R. COLSON et al., Appellants, v. Walter J. HICKEL, Secretary of the Interior, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

428 F.2d 1046 (1970)

Barney R. COLSON et al., Appellants, v. Walter J. HICKEL, Secretary of the Interior, Appellee.

No. 26212.

United States Court of Appeals, Fifth Circuit.

June 16, 1970.

Rehearing Denied and Rehearing Denied August 17, 1970.

James E. Rodgers, Richard Hildreth, Washington, D. C., for appellants.

Edward F. Boardman, U. S. Atty., Jacksonville, Fla., Ramsey Clark, Atty. Gen. of U. S., Herbert Pittle, Roger P. Marquis, Shiro Kashiwa and Clyde O. Martz, Asst. Attys. Gen., Dept. of Justice, Washington, D. C., for appellee.

Before COLEMAN, SIMPSON, and MORGAN, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied August 17, 1970.

COLEMAN, Circuit Judge.

It is hardly likely that the Treaty Makers at Prairie du Chien in the year 1830 had any idea that their work would be the starting point for litigation a hundred and forty years out in the future, but it was. This case bristles with legal questions, but the facts are undisputed. The legal complications are compounded by the presence of two separate sets of land scrip, each of a history different to the other. The opinion of the District Court is reported at 278 F.Supp. 826 (M.D., Fla., 1968). We affirm.

I THE FACTS

A. Basic History

On July 15, 1830, by the Treaty of Prairie du Chien (7 Stat. 328) the United States set aside to the halfbreeds of the Sioux Indians a reservation of land in Minnesota. Twenty four years later, by the Act of July 17, 1854 (10 Stat. 304) Congress extinguished this reservation by the issuance of scrip certificates in lieu of the reserved lands.

The pertinent provisions of the 1854 Act read as follows:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the President be, and he is hereby, authorized, to exchange with the half-breeds or mixed-bloods of the Dacotah or Sioux nation of Indians, who are entitled to an interest therein, for the tract of land lying on the west side of Lake Pepin and the Mississippi River, in the Territory of Minnesota, which was set apart and granted for their use and benefit, by the ninth article of the Treaty of Prairie du Chien, on the fifteenth day of July, one thousand eight hundred and thirty; and for that purpose he is hereby authorized to cause to be issued to said persons, on the execution by them, or by the legal representatives of such as may be minors, of a full and complete relinquishment by them to the United States of all their right, title, and interest, according to such form as shall be prescribed by the Commissioner of the General Land-Office, in and to said tract of land or reservation, certificates or scrip for the same amount of land to which each individual would be entitled in case of a division of the said grant or reservation pro rata among the claimants — which said certificates or scrip may be located upon any of the lands within said reservation not now occupied by actual and bona fide settlers of half-breeds or mixed-bloods, or such other persons as have gone into said Territory by authority of law, or upon any other unoccupied lands subject to preemption or private sale, or upon any other unsurveyed lands, not reserved by Government, upon which they have respectively made improvements: Provided, That said certificates or scrip shall not embrace more than six hundred and forty, nor less than forty acres each, and provided that the same shall be equally apportioned, as nearly as practicable, among those entitled to an interest in said reservation: And provided further, That no transfer or conveyance of any of said certificates or scrip shall be valid."

The genesis of the pending litigation is supplied by the express prohibition of the statute: "no transfer or conveyance of any of said certificates or scrip shall be valid".

It did not take long for someone to find a hole in the fence. This is how it worked: Anyone desiring to acquire scrip rights from an Indian to whom the scrip had been issued would obtain from the scripee the scrip certificate. He would also obtain two powers of attorney, left blank as to the description of the land and as to the name of the attorney. By one power of attorney the scripee authorized the selection of the land and the location of the scrip, coupled with the power to obtain a patent from the Government. By the second instrument the attorney in fact was authorized to sell and convey any land which the scripee might thereafter acquire. The first instrument would be filed with the General Land Office. After the location was made and a patent issued in the name of the scripee, a conveyance of the land would then be executed and delivered under the authority of the power of attorney to sell.

The General Land Office quickly challenged this procedure. It held such transactions to be invalid as in violation of the statutory prohibition. The Courts, however, did not agree with that position. The issue was unequivocally settled by the Supreme Court in Midway Company v. Eaton, 183 U.S. 602, 22 S.Ct. 261, 43 L.Ed. 347 (1902), which went up on a writ of error to the Supreme Court of Minnesota.

Citing its prior decisions in Myrick v. Thompson, 99 U.S. 291, 25 L.Ed. 324 (1878), and Felix v. Patrick, 145 U.S. 317, 12 S.Ct. 862, 36 L.Ed. 719 (1892), the Court approved the use of powers of attorney as above described "because the transactions did not constitute a transfer of the scrip as such * * * the transactions were intended as a conveyance of the land, and represented that intention, and could not be shown to be a transfer of the scrip." The Court specifically alluded to the language in Myrick v. Thompson, supra, to the effect that it could conceive of no reason why a scripee was not at liberty, either before or after location was made, to enter into an agreement to secure title to the located lands on the payment of an agreed consideration.

By Interior decision D-29,200, dated April 29, 1914, the decisions in Myrick v. Thompson, supra, and Midway Company v. Eaton, supra, were recognized by the Department in the following language:

"In view of the holding of the Court, it would appear that where a person has purchased land so located and patented under this class of scrip and the title has failed because the Government had already disposed of the land, such purchaser shall be permitted to govern the use of the scrip for purposes of making a new location. Of course, the new selection would have to be in the name of the scripee as was the former one."

B. The Anthony Renville — Anna R. Kean — Barney R. Colson, Scrip

This scrip, Certificate 398 D, was originally issued to Anthony Renville, a Sioux halfbreed, for 160 acres of land. On January 10, 1874, Renville executed and delivered the customary powers of attorney to John S. Newman. March 1, 1877, in the name of Renville, Newman obtained a patent to land located in the dried bed of a previously existing lake in Indiana. By intervening conveyances the title to the land became vested in Anna R. Kean. This patent was held void by the United States Supreme Court in Kean v. Calumet Canal and Improvement Company, 190 U.S. 452, 23 S.Ct. 651, 47 L.Ed. 1134 (1903). The Court held that in 1853 the property had been conveyed by the United States to the State of Indiana under the Swamp Land Act of 1850.

In 1913, the Circuit Court of Lake County, Indiana, in the case of Anna R. Kean v. John S. Newman et al., held that as a result of the cancellation of the patent the contract for the exchange of certificate 398-D had been left unfulfilled as expressed in the Renville power of attorney and that the contract, being specific, for valuable consideration, and for Anna Kean's benefit, remained in full force and effect. The Department of the Interior, April 29, 1914, Case D-29,200, supra, determined that Anna R. Kean should be permitted to govern the use of the scrip for the purpose of making a new selection, requiring only that the new claim be made in the name of the scripee.

On June 10, 1914, Anna R. Kean, acting for Anthony Renville, his heirs and legal representatives, executed a power of attorney, in blank as to the designee, to enter upon, and take possession of any and all pieces and parcels of land or the timber or other materials thereon in the State of ----, "which we own, or which we may hereafter acquire or become seized of" under and by virtue of Scrip Number 398, for 160 acres.

This power of attorney was executed in Cook County, Illinois.

C. The Ellen Angie Williams Scrip

In Dewey County, South Dakota, on February 21, 1910, Ellen Angie appointed Jesse L. Linn her true and lawful attorney to enter upon and take possession of any and all lands which she then owned or in which she was entitled or interested, and to take possession of any and all such lands by virtue of the location of Sioux half-breed Scrip Number 379-C, for 80 acres, issued to her under the Act of Congress of July 17, 1854, and likewise empowered the attorney in fact to select and convey such lands, further empowering the attorney in fact to appoint a substitute or substitutes, etc.

On December 26, 1914, Jesse L. Linn executed a power of attorney, in blank as to the designee.

This instrument was executed in Polk County, Oregon.

On May 19, 1915, in Dewey County, South Dakota, Ellen Angie Williams quitclaimed the land, grantee blank, description blank, which might thereafter be acquired by location of Sioux halfbreed Scrip Number 379-C.

In 1925, Colson acquired the powers of attorney and other documents from a holder which guaranteed the validity of the scrip.

D. Subsequent Proceedings Prior to this Litigation

On January 20, 1956, the Director of the Bureau of Land Management, Department of the Interior, advised Barney R. Colson that the above mentioned scrip certificates were valid, had not theretofore been presented to acquire public land of the United States, that they might be used for that purpose by the...