Jackson v. Sims, 4510.
| Citation | 201 F.2d 259 |
| Decision Date | 07 January 1953 |
| Docket Number | No. 4510.,4510. |
| Parties | JACKSON et al. v. SIMS. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Vern E. Thompson, Joplin, Mo. (Loyd E. Roberts, Joplin, Mo., was with him on the brief), for appellants.
Frank Nesbitt, Miami, Okl. (Nelle Nesbitt and Robert E. Nesbitt, Miami, Okl., were with him on brief), for appellee.
Before PHILLIPS, Chief Judge, and MURRAH and PICKETT, Circuit Judges.
The appellants Jean Ann Hoffman Jackson, Geneva Hoffman Ramsay, Henry Edward Hoffman, Jr., and Charles Felix Hoffman, are Quapaw Indian owners of a majority interest in a restricted Quapaw Indian allotment in Ottawa County, Oklahoma, and appellant Henry E. Hoffman, a non-Indian, owns an undivided fractional interest in the same allotment. Section 2 of the Act of July 27, 1939, 53 Stat. 1127, authorizes the leasing of restricted Quapaw Indian land for mining or other purposes in accordance with rules and regulations prescribed by the Secretary of the Interior, provided that "no lease, modification, or assignment thereof shall be made over the written protest of adult Indians owning a majority interest therein."
On May 10, 1945, a departmental mining lease was executed in pursuance of the rules and regulations of the Secretary of the Interior on the restricted Indian allotment by all of the then restricted and unrestricted owners of interests therein to the Kansas Exploration Company, a New York corporation, for a period of ten years, and as long thereafter as lead and zinc minerals might be produced in paying quantities, not to extend, however, beyond March 2, 1971. The lease carried a royalty of 12½%. Mining operations were carried on under the terms of the lease until a part of the equipment was destroyed by fire in June 1946. Shortly thereafter, the lessee ceased operations, and in 1949 sold all of its properties, including the equipment on this lease, to George Potter, at the same time executing an assignment of the lease to Potter. When the Indian owners of a majority interest in the leased land protested the assignment, the Secretary of the Interior necessarily refused approval.
A short time later, the lessee executed a "mining sublease" to appellee Dewey S. Sims, who entered into a contract with Potter to rent the equipment thereon for 25% of the net profits from the mining operation. When the sublease was approved by the Secretary of Interior over the protest of the Indian owners, this declaratory action was brought in the District Court for the Northern District of Oklahoma, to construe Section 2 of the Act of July 27, 1939, to prohibit the so-called subleasing of the land, and to enjoin operations under the "mining sublease". The suit is predicated on a twofold contention: that the proviso in Section 2 forbidding "modification, or assignment" of leases over the protest of a majority of the Indian owners includes subleasing; and if not, then the so-called sublease is in fact an assignment within the meaning of the statute.
From the evidence, the trial court found that the sublease executed February 15, 1950 ending April 10, 1955, thirty days prior to the expiration of the primary term of the original lease, and approximately sixteen years prior to the extended term, at a royalty of 12½%, left a reversionary period in the lessee; and that the parties to the sublease did not conspire to transfer all right, title and interest of the lessee in the original lease in order to evade the provisions of the statute prohibiting a modification or assignment of a mining lease over the protest of the adult Indian owners. The court accordingly validated the sublease, dismissed the action, entered judgment for the appellee, and the appellants have appealed.
The argument on appeal is to the effect that when Congress took away the power of the Secretary of the Interior to approve any lease, modification or assignment thereof over the written protest of the Indian owners of a majority interest in restricted Indian land, it intended to give to such Indians the right to accept or reject the party who was to operate the mining lease on their land; that while the statute does not use the word "sublease" it was intended to cover and include any operating contract where the lessee becomes in effect the sole operator under the rules and regulations of the Secretary of the Interior; that this contract, called a sublease, was actually intended to be an assignment for all practical purposes; and that the transaction was nothing more than a subterfuge to avoid the restriction against assignment over the protest of the Indians owning a majority interest. Tracing the history of the legislation, our attention is called to the efforts of the Indian Tribe to extend restrictions on their land, while at the same time giving the Indian owner some voice in the selection of the lessee or operator of the mining leases, culminating in the enactment of Section 2 of the Act of July 27, 1939, and we are urged to construe the prohibitions in the Act liberally to effectuate what is said to be the manifest Congressional intendment.
Prior to the 1939 Act, the Secretary of Interior was authorized to lease Quapaw restricted lands for mining purposes for such period of time and under such terms and conditions as he might prescribe, and the Quapaw Indian owners had no voice in the leasing or the assignment of leases on their lands. See Act of March 3, 1921,...
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