Hampton v. Ewert

• Decision Date: 06 September 1927
• Docket Number: No. 7514.,7514.
• Citation: 22 F.2d 81
• Parties: HAMPTON et al. v. EWERT et al.
• Court: U.S. Court of Appeals — Eighth Circuit

22 F.2d 81 (1927)

HAMPTON et al. v. EWERT et al.^*

No. 7514.

Circuit Court of Appeals, Eighth Circuit.

September 6, 1927.

Joseph W. Howell, of Tulsa, Okl., for appellants.

William M. Matthews, of Kansas City, Mo., and Joseph C. Stone, of Muskogee, Okl. (A. E. Spencer, of Joplin, Mo., A. C. Wallace, of Miami, Okl., and George J. Grayston, of Joplin, Mo., on the brief), for appellees.

Before STONE and VAN VALKENBURGH, Circuit Judges, and TRIEBER, District Judge.

VAN VALKENBURGH, Circuit Judge.

This action was brought in the District Court for the Eastern District of Oklahoma to recover the value of lead and zinc ore removed from the allotment of one Mary J. Calf, a full-blood Quapaw Indian who died on or about December 7, 1912. The pleadings are of great length, and the object of the suit is thus well epitomized in the brief of appellants:

"It has for its purpose the cancellation of a certain contract for lead and zinc mining lease on said lands, as well as subsequent contracts in furtherance of the original contract, with the further purpose of having a trust declared in the proceeds of the ore sales resulting from mining operations under the several contracts in question or the recovery of a sum equal to the value thereof, and incidental relief by way of accounting, injunction, and the appointment of a receiver."

The relationship of the parties to the litigation will be hereinafter stated, in so far as may be necessary for an understanding of the issues.

Mary J. Calf, allottee, died about December 7, 1912. She left as her heirs Clarissa (Clara) A. Valliere, now Showalter; John Buffalo; Flora Valliere (Clemons); and the appellants Georgia Valliere (Hampton), James Amos Valliere, and Iva Amelia Valliere. Of the remaining appellants, Ruth Buffalo De Hanas succeeds by inheritance to the one-sixth interest of John Buffalo, deceased, and Lelia Gregory by inheritance to one-half of the estate of Flora Valliere Clemons, deceased. May 5, 1914, a contract was entered into for a lead and zinc mining lease on the allotment of the said Mary J. Calf, in which contract the heirs of Mary J. Calf, by their guardians appointed by the county court of Ottawa county, Oklahoma, were grantors, and one J. S. Mabon was grantee. This contract, while taken in the name of Mabon, was for the joint benefit of himself, the appellee Lenoir C. Church, and Paul A. Ewert, now deceased, who is represented in this appeal by Sidney T. Ewert, executrix under his will. This contract was assigned to appellee Welsh Mining Company, and on October 26, 1915, said mining company obtained a mining lease on said land from the guardians of appellants, appointed as hereinbefore stated. This lease ran for a term ending May 3, 1924, or 10 years, in effect, from the date of the original contract, and reserved a royalty of 5 per cent. to the lessors. On the date this lease was executed, all the heirs of Mary J. Calf, with the exception of Clarissa Showalter, were minors. Flora Valliere Clemons was 15 years of age; appellant James Amos Valliere, 14 years; Georgia Valliere Hampton, 12 years; and Iva Amelia Valliere, 9 years. John Buffalo, now deceased, was then 19 years old, and Clarissa Showalter had shortly before reached the age of 18 years. In executing the lease aforesaid, one O. K. Knight acted as guardian for Iva Amelia Valliere; one A. S. Thompson, as guardian for John Buffalo; Clarissa Valliere Showalter executed for herself and as guardian for Flora E. Valliere, James A. Valliere, and Georgia Valliere Hampton.

The lease in question purported to be made under authority of the Act of June 7, 1897 (30 Stat. 72), which reads as follows:

"That the allottees of land within the limits of the Quapaw Agency, Indian Territory, are hereby authorized to lease their lands, or any part thereof, for a term not exceeding three years, for farming or grazing purposes, or ten years for mining or business purposes. And said allottees and their lessees and tenants shall have the right to employ such assistants, laborers, and help from time to time as they may deem necessary: Provided, that whenever it shall be made to appear to the Secretary of the Interior that, by reason of age or disability, any such allottee cannot improve or manage his allotment properly and with benefit to himself, the same may be leased, in the discretion of the Secretary, upon such terms and conditions as shall be prescribed by him. All acts and parts of acts inconsistent with this are hereby repealed."

The contract for lease was approved and confirmed by the probate court of Ottawa county, Oklahoma, on June 19, 1914, and on October 26, 1915, the same court entered an order approving and confirming the lease of that date. The Welsh Mining Company held this lease and operated the mines on the land covered thereby until October 30, 1917, when it transferred the lease to one L. S. Skelton. To secure the unpaid balance of the consideration for this transfer, it retained a lien on the product of the mines until the balance of the purchase price, to wit, $1,400,000, should be paid. It was provided that Paul A. Ewert should receive 2½ per cent. of the product from this and other leases, to which reference will be made. It was further provided that this provision of the contract should be binding upon the successors of the parties, including their administrators.

Operations were continued under the contract of October 30, 1917, until the spring or summer of 1920. During this period Skelton and his successor, appellee the Skelton Lead & Zinc Company, operated the mines. Of this latter company L. S. Skelton was the sole shareholder, with the exception of 2 shares. The said L. S. Skelton is now deceased, and his estate is represented by appellee William B. Hudson, as administrator with the will annexed. For the purposes of this opinion it is deemed unnecessary to set forth the relationship of appellees other than those hereinabove described.

The record discloses that the said Mabon had also contracted for leases covering the allotments of one Thomas Buffalo and one Buffalo Calf, deceased, Quapaw allottees; that he assigned his interest therein to the said Welsh Mining Company, which company, on August 21, 1917, obtained leases covering said last-named allotments in its own name. By letter of August 17, 1918, to said Welsh Mining Company, by whom said last-named leases were presented for approval, the Commissioner of Indian Affairs called attention to the fact that all of the Indian heirs, except one, which were parties to said leases, had been declared incompetent by the Secretary of the Interior in 1916; that none of the contracts were made pursuant to the regulations of the department, approved April 7, 1917, governing the execution of lead and zinc mining leases on the land of incompetent members of the Quapaw Tribe. He said further:

"Premises considered, I am unwilling to approve these leases, but, in order that you may have full opportunity to be heard, you will be allowed 30 days from the date hereof in which to submit further showing in support of your application. In the event the leases are disapproved, the land will be again offered for leasing upon such terms as may be fair and just to the Indians as well as to all parties concerned. Any person or persons who may be found to have substantial equities will be protected to the extent that equity and justice may demand."

April 7, 1917, the Department of the Interior had promulgated rules and regulations pursuant to an active policy of control over the leasings of the Quapaw lands of minors. Section 4 of those regulations reads as follows:

"Upon the approval of these regulations the superintendent shall secure and forward to the Commissioner of Indian Affairs a correct copy of all lead and zinc mining leases covering restricted lands of incompetent Indians executed prior to the dates when such Indians, respectively, were declared to be incompetent. The superintendent shall also forward with each copy of a lease so executed a full report showing when and where such lease was recorded, the present parties in interest, the status of the property with respect to mining operations thereon, together with any other information that may be necessary to disclose whether action should be taken by the Department of the Interior to protect or safeguard the interests of the lessor. Such leases will be taken up separately in the light of the special conditions relating to each, with a view to bringing the leased lands within the operation of these regulations or the execution of new leases in accordance therewith."

Under the procedure directed by section 4 an investigation was made by the Commissioner of Indian Affairs; this investigation, involving several hearings, covered a period of nearly two years. The leases on the Buffalo Calf and Thomas Buffalo allotments, which had been presented for approval, were primarily involved. The lease on the Mary J. Calf allotment, now before us, was also reviewed; it being felt that:

"A proper appreciation of the equities in this case cannot be had without taking into consideration the fact that the original contracts between Mabon and his associates and these Indian heirs also include a third allotment, which they inherited from Mary J. Calf; said allotment being contiguous to the allotment of Thomas Buffalo."

The finding of the Indian office was announced April 11, 1919.

It having been developed at the foregoing hearings that the rights accruing under the Mary J. Calf lease were predicated upon practically the same facts as in the case of the Thomas Buffalo and Buffalo Calf leases, it was determined by the Commissioner of Indian Affairs that those claiming rights under that lease should be called upon to show cause why the same should not be referred to the courts for cancellation, or be submitted for approval upon such conditions as should be found just and equitable to all concerned. In June, 1920, a...