Oklahoma, K. & M.I. Ry. Co. v. Bowling

• Decision Date: 09 March 1918
• Docket Number: 5026.
• Parties: OKLAHOMA, K. & M.I. RY. CO. v. BOWLING.
• Court: U.S. Court of Appeals — Eighth Circuit

249 F. 592

OKLAHOMA, K. & M.I. RY. CO. v. BOWLING.

No. 5026.

United States Court of Appeals, Eighth Circuit.

March 9, 1918

Edward R. Jones, of Muskogee, Okl., and Ephraim H. Foster, of Oklahoma City, Okl., for appellant.

H. H McCluer and Roland Hughes, both of Kansas City, Mo. (Vern E Thompson, of Miami, Okl., on the brief), for appellee.

Before HOOK, CARLAND, and STONE, Circuit Judges.

HOOK Circuit Judge.

This is an appeal by the railway company from an order of temporary injunction at the suit of George E. Bowling.

It involves the validity of condemnation proceedings to take lands for railroad purposes under Act Feb. 28, 1902, c. 134 32 Stat. 43, commonly called the Enid & Anadarko Act. The lands are in that part of the state of Oklahoma that was formerly Indian Territory. The proceedings were begun by the company after the admission of the state, in the United States District Court for the Eastern Judicial District, as successor to the jurisdiction of the United States Courts in the Indian Territory. The precise question is whether the act of 1902, aided by a later act to which reference will be made, continued to apply to lands like those of the plaintiff after the territory became a part of the state.

The lands had been tribal property of the confederated Wea, Peoria, and other tribes of Indians, had been allotted in severalty, and after the expiration of all restrictions upon alienation had been conveyed to and become the property of the plaintiff, a citizen of Missouri. The Indian title and interest had wholly ceased. The act of 1902 authorized any railroad company to take and condemn a right of way, etc., 'in or through any lands held by any Indian tribe or nation, person, individual, or municipality in said territory, or in or through any lands in said territory which have been or may hereafter be allotted in severalty to any individual Indian or other person under any law or treaty, whether the same have or have not been conveyed to the allottee, with full power of alienation. ' Section 13. After Oklahoma was admitted as a state, in 1907, Congress adopted Act May 27, 1908, c. 199, 35 Stat. 312, relating to removal of restrictions from part of the lands of Indian allottees. The railway company points to the following provision of that act:

'No restriction of alienation shall be construed to prevent the exercise of the right of eminent domain in condemning rights of way for public purposes over allotted lands, and for such purposes' the sections of the act of 1902 on that subject 'are hereby continued in force in the state of Oklahoma. ' Section 1.

Upon this it is argued that all lands in what was formerly the Indian Territory were either allotted or unallotted, that the lands of plaintiff fell in the former class, and that Congress not only had the power, but manifested its intention, to continue the condemnation provisions of the act of 1902 as to them, notwithstanding the fact that the Constitution and laws of the state of Oklahoma contained full provisions regarding the condemnation of lands for railroad purposes and subjected such proceedings to the jurisdiction of the state courts.

The authority of Congress over the territories of the United States is a familiar feature of our history. Before they are admitted to statehood it exercises as to them the combined powers of the national and state governments by direct legislation, and also through local legislative bodies whose acts are subject to its supervision, or, as was the case with the Indian Territory, by extending thereto certain of the laws of an organized state....