Shore v. Shell Petroleum Corporation

• Decision Date: 23 December 1931
• Docket Number: 540,541.,534,No. 533,533
• Citation: 55 F.2d 696
• Parties: SHORE v. SHELL PETROLEUM CORPORATION et al., and four other cases.
• Court: U.S. District Court — Panama Canal Zone

55 F.2d 696 (1931)

SHORE v. SHELL PETROLEUM CORPORATION et al., and four other cases.

Nos. 533, 534, 540, 541.

District Court, D. Kansas, Second Division.

December 23, 1931.

F. Dumont Smith and Eustace Smith, both of Hutchison, Kan., and F. M. Rogers, H. W. Goodwin and John Bradley, all of Wellington, Kan., for plaintiffs.

Roland Boynton, Atty. Gen., John G. Egan, Asst. Atty. Gen., and Benj. F. Hegler, of Wichita, Kan., for executive council, State of Kansas.

Thompson, Mitchell, Thompson & Young (by P. G. McElwee) of St. Louis, Mo., for defendant Shell Petroleum Corp.

HOPKINS, District Judge.

These actions involve the question of ownership of the bed of the Arkansas river contiguous to certain upland owned by the plaintiffs.

The several bills of complaint contain practically the same allegations. In each instance the plaintiff alleges and contends that the lands in controversy form a part of land allotted to the Osage Indians by the federal government for a reservation; that the government held the naked title to such lands in trust for the use and benefit of the Osages; that the plaintiff deraigned his title from the Osages through patents of the government; that plaintiff owns and holds these riparian lands with all of the rights appurtenant thereto as held by the Osages, including the ownership of the bed of the river, adjacent to plaintiff's land to the center of the river; that the river is a nonnavigable stream and that the state never had any right or title thereto.

The answers allege, and the defendants contend, that the title to the river bed is in the state of Kansas and has been leased by its officials to the Shell Petroleum Company; deny that the Osages ever had any title to the land or the river bed, but that the purposes of the various treaties between the Osages and the government affecting the lands were to set aside the lands in question and other lands to the Osages as a reservation; that the legal title to the lands was in the government, before patents were issued to plaintiffs' grantors. The answers plead the patents and allege that they contained no provision purporting to convey any portion of the river bed to the patentees; that the river is, and always has been, navigable.

The case stands submitted for final decree. The contentions of the parties present various questions for consideration.

Did the Osage Indians hold title to the river bed? Did plaintiffs deraign their titles from the Osages or directly from the federal government? Did the patents, under which plaintiffs claim, convey any part of the river bed? Does the federal or (local) state law control the construction to be placed on the patents through which plaintiffs claim? This being litigation over property rights between private parties, in which neither the federal government nor the Osages are interested. Was the Arkansas river navigable in Kansas at or prior to the dates of the issuance of the patents, and what effect, if any, does such navigability or nonnavigability have on the claims of the respective parties?

It is strongly argued by the plaintiffs that the treaty of 1825 conveyed to the Osage Indians the full title and ownership of the lands within the reservation, to the Indians, and that this had the effect of conveying to them title to nonnavigable streams within the reservation.

It may be noted that the Osages are members of the Sioux family and as part thereof formerly ranged somewhere in the region including the Allegheny Mountains from the northern line of what is now Pennsylvania to a portion of Northeastern Georgia. They gradually migrated westward before the advancing civilization of the whites, and after occupying other reservations under treaties with the United States, eventually entered into the Treaty of June 2, 1825, 7 Stat. L. page 240, which established what is known as the original Osage Reservation in Kansas. It was a strip of country fifty miles wide north and south and extending from a line twenty-five miles west of the western boundary line of the state of Missouri to a line north and south which ran through a point called the Rock Saline.

Article 1 ceded and relinquished all of the right, title and interest, and claim of the Great and Little Osage Indians in certain lands therein described, to the United States.

Article 2 created the original Osage Reservation and provided: "Article 2. Within the limits of the country, above ceded and relinquished, there shall be reserved, to, and for, the Great and Little Osage Tribes or Nations, aforesaid, so long as they may choose to occupy the same, the following described tract of land: beginning at a point due East of White Hair's village, and twenty-five miles West of the Western boundary line of the State of Missouri, fronting on the North and South line, so as to leave ten miles North, and forty miles South, of the point of said beginning, and extending West, with the width of fifty miles, to the Western boundary of the lands hereby ceded and relinquished by said Tribes or Nations."

Later came the Treaty of September 29, 1865, 14 Stat. L. page 687.

Article 1 granted and sold to the United States certain lands therein described for the sum of $300,000, which was to be placed to the credit of the tribe in the treasury of the United States and used for certain purposes therein stated.

By article 2 another strip of land twenty miles in width north and south was ceded to the United States to be held in trust and surveyed and sold for their benefit. This article provides: "Article 2. The said tribe of Indians also hereby cede to the United States a tract of land twenty miles in width from north to south, off the north side of the remainder of their present reservation, and extending its entire length from east to west; which land is * * * to be surveyed and sold for their benefit under the direction of the Commissioner of the General Land-Office, at a price not less than one dollar and twenty-five cents per acre, as other lands are surveyed and sold, under such rules and regulations as the Secretary of the Interior shall from time to time prescribe. The proceeds of such sales, as they accrue, after deducting all expenses incident to the proper execution of the trust, shall be placed in the treasury of the United States to the credit of said tribe of Indians."

The lands, the sale of which was thus provided for, are referred to thereafter in the treaty as "trust lands." The balance of the reservation is thereafter referred to in the treaty as the "diminished reservation."

The land now owned by the plaintiffs, riparian to the Arkansas river, lies within what was formerly this Diminished Reservation.

Articles 15 and 16 of this treaty provided for the possible removal of the Osage Indians from the Diminished Reservation to lands to be acquired for them in the Indian Territory.

Article 15 provided that the Osage Indians might unite with any tribe of Indians at peace with the United States residing in the Indian Territory.

Article 16 provided for the contingency of the Osages' removal to the Indian Territory, in which event the Diminished Reservation should be sold by the United States in the manner provided in relation to the trust lands. It will be seen by reference to article 2, quoted above, that it contains the provision that the trust lands are to be sold "at a price not less than $1.25 per acre." By virtue of the provision in article 16 that the lands in the diminished reservation should be sold in the same manner as provided in relation to the trust lands, the lands in the diminished reservation were thereafter sold for $1.25 per acre. The exact language of article 16 is as follows: "Article 16. It is also agreed by said contracting parties, that if said Indians should agree to remove from the State of Kansas, and settle on lands to be provided for them by the United States in the Indian Territory on such terms as may be agreed on between the United States and the Indian tribes now residing in said Territory or any of them, then the diminished reservation shall be disposed of by the United States in the same manner and for the same purposes as hereinbefore provided in relation to said trust lands, except that 50 per cent. of the proceeds of the sale of said diminished reserve may be used by the United States in the purchase of lands for a suitable home for said Indians in said Indian Territory."

The provisions of article 16 were subsequently carried out, the Great and Little Osages having met in full council and relinquished to the United States all of their rights in the Diminished Reserve on the 10th of September, 1870. The Diminished Reserve was sold in accordance with the terms of said article and certain lands were acquired, with 50 per cent. of the proceeds, from the Cherokee Nation in the Indian Territory, for the Osage Indians. The lands so acquired in the Indian Territory became the lands of the Osage Tribe now located in the state of Oklahoma, formerly in the Indian Territory. Such lands were owned in fee simple, upon certain conditions, by the Cherokee Nation, and the title of the Cherokee Nation to such lands was acquired by the Great and Little Osage Indians. The title of the Cherokee Nation so acquired by the Osages became the subject of litigation in the case of Brewer-Elliott Oil & Gas Co. v. United States, 260 U. S. 77, 43 S. Ct. 60, 64, 67 L. Ed. 140. As that case is cited and much relied upon by the plaintiffs in the present litigation, it is important to bear in mind that the title there involved was the title of the Cherokee Nation which had passed to the Osages. The title of the Cherokee Nation depended upon different statutes and treaties than did the title of the Osages to the Diminished Reservation in territory now located in the state of Kansas. Here we are confronted with the question as to the title of the Osages to the Diminished Reservation in territory now located in the state of Kansas, with...