Mayes v. Association

• Decision Date: 11 December 1897
• Docket Number: 9654
• Citation: 58 Kan. 712,51 P. 215
• Parties: JOEL B. MAYES, as Principal Chief of the Cherokee Nation, etc., v. THE CHEROKEE STRIP LIVE STOCK ASSOCIATION et al
• Court: Kansas Supreme Court

51 P. 215

58 Kan. 712

JOEL B. MAYES, as Principal Chief of the Cherokee Nation, etc., v. THE CHEROKEE STRIP LIVE STOCK ASSOCIATION et al

No. 9654

Supreme Court of Kansas

December 11, 1897

Decided January, 1897.

Error from Sumner District Court. Hon. James A. Ray, Judge.

Judgment affirmed.

Thomas George and W. W. Schwinn, for plaintiff in error.

Chester I. Long, J. C. Pollock, J. A. Burnette and Haughey &amp McBride, for defendants in error.

JOHNSTON J. Doster, C. J., concurring. ALLEN, J., dissenting.

OPINION

JOHNSTON, J.

This action was brought by Joel B. Mayes, as Principal Chief of the Cherokee Nation and for its benefit, against the Cherokee Strip Live Stock Association and a number of persons alleged to be members of or connected with the Association. Subsequently, C. J. Harris became Principal Chief of the Cherokee Nation and the action was revived in his name. The action is upon a contract to lease a large body of land, constituting what is called the Cherokee Strip or Outlet, which was entered into between the Cherokee Nation and the Association. Among other things, the petition alleges that the Cherokee Nation is and has been the absolute owner in fee simple of the Outlet, which is said to contain about six million acres; that, on May 15, 1883, an act was passed by the National Council of the Cherokee Nation, authorizing a lease of the lands to the Association in consideration of the yearly rental of $ 100,000; and that in pursuance of this authority a written contract was executed, leasing the lands in the Outlet to the Association for a period of five years at an annual rental of $ 100,000, payable in advance, in two equal semi-annual payments. The lease, which is set out at length in the petition, contained many provisions in regard to the manner in which the land should be used and the conditions upon which the lease might terminate. It is alleged that the possession of the Outlet was taken by the Association under this lease, that the land was used for grazing purposes, and that the rent therefor was paid until the end of the five-year period; that, in December, 1888, the National Council of the Cherokee Nation passed an act providing for the renewal of the lease for another period of five years, with all the conditions, obligations and restrictions provided in the first lease, except that the annual rental was increased to $ 200,000; the renewal to be deemed effective as soon as the Association should file an acceptance of the specified conditions. It is alleged that the acceptance was made in due form. The Association entered upon the use of the lands under the second lease, and made semi-annual payments of $ 100,000 each therefor until June 30, 1890, when a payment of $ 100,000 was due for the period ending December 31, 1890; since which time it has failed and refused to make any payments in accordance with the terms of the lease.

There was an averment that the Association occupied the land through the season of 1890 with a great many cattle, and derived large profits from the pasturage and use of the land. It was also alleged that the manner in which the Association was organized, and the way in which it had conducted its business and disposed of its property, tended to defeat a recovery. Many of the averments of the petition bore only upon the application for a receiver, which is of no present importance.

Demurrers were filed by the defendants, upon several grounds, the principal one being that the facts stated did not make out a cause of action in favor of the plaintiff and against the defendants. The court sustained the demurrers, and that ruling is here for review.

The contentions of the parties are mainly directed at the legality of the lease and the effect of illegality. One claim is that the Cherokee Nation had no title to the land in the Outlet, and therefore no right to execute the lease or recover for the use of the land. The lands were patented to the Cherokee Nation by the United States in 1838. While the lands in question are designated as an outlet, they are included in the same patent and substantially upon the same terms as the lands granted to the Cherokees for a permanent home. Their title was more than a mere occupancy determinable at the pleasure of the United States. It was more than the ordinary Indian title; and, in respect to it, it has been held that they "hold their land by title different from the Indian title -- by occupancy. They derived it by grant from the United States. It is a base, qualified or determinable fee, without the right of reversion, but only a possibility of reversion, in the United States." United States v. Reese, 5 Dill. 405, 27 F. Cas. 742. This, in effect, puts all the estate in the Cherokee Nation. The grant was made upon a condition that the granted land should revert to the United States if the Cherokee Nation became extinct or should abandon the same. As has been said, there is, therefore, only a possibility of reversion, and we think the Cherokee Nation should be regarded as in a certain sense the owners of the land, and in the absence of any congressional restriction would be entitled to the use and control of the same. They hold it, however, subject to the Federal law which Congress has enacted for their protection, and in furtherance of the governmental policy in dealing with Indians. Being within the territorial limits of the United States, they are subject to the Federal authority, and Congress may pass laws regulating their conduct as well as of the people with they may come in contact. A provision of an act of Congress applicable to the Indians prohibits such a lease as was made in this instance, and it is contended that as it is in violation of law no action can be maintained thereon nor any recovery for the benefits derived thereunder. Section 2116 of the Revised Statutes of the United States is as follows:

"No purchase, grant, lease or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution. Every person who, not being employed under the authority of the United States, attempts to negotiate such treaty or convention, directly, or indirectly, or to treat with any such nation or tribe of Indians for the title or purchase of any land by them held or claimed, is liable to a penalty of one thousand dollars. The agent of any State who may be present at any treaty held with Indians under the authority of the United States, in the presence and with the approbation of the commissioner of the United States, appointed to hold the same, may, however, propose to, and adjust with, the Indians the compensation to be made for their claim to lands within such State, which shall be extinguished by treaty."

There was no treaty or consent of the United States to the lease but it was made in violation of the foregoing provision. Instead of consenting, the officers of the United States denied the right to enter into a lease, and, in considering the effect of the statutory provision upon the lease in question, the Attorney General held that "whatever the right or title may be, each of these tribes or nations is precluded by the force and effect of the statute from either alienating or leasing any part of the reservation, or imparting any interest or claim in or to the same, without the consent of the Government of the United States. A lease of the land for grazing purposes is as clearly within the statute as a lease for any other or general purposes, and the duration of the term is immaterial. One who enters with cattle or other live stock upon an Indian reservation under a lease of that description made in violation of the statute, is an intruder and may be removed therefrom as such, notwithstanding his entry is with the consent of the tribe." 18 Ops. Attys. Gen. 235, 486. Acting upon the advice of the Attorney General that the lease...