United States v. Abrams

• Decision Date: 19 September 1910
• Docket Number: 1,113.
• Parties: UNITED STATES v. ABRAMS et al.
• Court: U.S. District Court — Eastern District of Oklahoma

181 F. 847

UNITED STATES v. ABRAMS et al.

No. 1,113.

United States Circuit Court, E.D. Oklahoma.

September 19, 1910

Paul A Ewert, for the United States.

J. J Bulger, V. E. Thompson, and S. C. Fullerton, for defendants.

CAMPBELL District Judge.

In March, 1893, the National Council of the Quapaw Tribe of Indians, owning lands in what is now northeastern Oklahoma passed an act providing for the allotment of said lands in severalty to the individual members of the tribe, subject to congressional approval, and rules and regulations to be prescribed by the Secretary of the Interior. By Act March 2 1895, c. 188, 28 Stat. 907, it was provided:

'That the allotments of land made to the Quapaw Indians, in the Indian Territory, in pursuance of an act of the Quapaw National Council, approved March 23rd, 1893, be and the same are hereby ratified and confirmed, subject to revision, correction and approval by the Secretary of the Interior: Provided, however, that any allottee who may be dissatisfied with his allotment shall have all the rights to contest the same provided for in said act of the Quapaw National Council subject to revision, correction, and approval by the Secretary of the Interior. And the Secretary of the Interior is hereby authorized to issue patents to said allottees in accordance therewith: Provided, that said allotments shall be inalienable for a period of twenty-five years from and after the date of said patents: And provided further, that the surplus lands on said reservation, if any, may be allotted from time to time, by said tribe to its members, under the above entitled act.'

On September 26, 1896, pursuant to said act of Congress, a patent for the land involved in this case was issued to Charley Quapaw Blackhawk, a member of said tribe, with habendum clause as follows:

'Now, know ye, that the United States of America, in consideration of the premises, and in conformity with the provisions in said act of Congress approved March 2, 1895, the order and schedule of allotment aforesaid, has given and granted, and by these presents does give and grant unto the said Charley Quapaw Blackhawk, and to his heirs, the said tract above described; but with the stipulation and limitation contained in the aforesaid act, that the land embraced in this patent shall be inalienable for the period of twenty-five years from and after the date hereof; to have and to hold the same, together with all the rights, privileges, immunities and appurtenances of whatsoever nature thereunto belonging, unto the said Charley Quapaw Blackhawk, and to his heirs forever: Provided, as aforesaid, that said tract shall be inalienable for the period of twenty-five years.'

On June 7, 1897 (Act June 7, 1897, c. 3, Sec. 1, 30 Stat. 72), Congress further provided:

'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.'

This is a suit by the United States to cancel certain lease contracts and contracts assigning royalties thereunder entered into by the allottee with the various defendants. Demurrers are interposed by the defendants on the ground that the government has no such interest in the action as will entitle it to maintain the bill, and that there is no equity in the bill. If from the bill it appears that any of the alleged contracts or leases are in violation of the conditions or limitations imposed by acts of Congress, under which the allottee has taken his allotment, then the complainant has such interest as entitles it to maintain this action. United States v. Allen (C.C.A.) 179 F. 13. Do the leases or contracts sought to be canceled violate the provisions of such acts of Congress? On June 11, 1902, the allottee leased his allotment to the defendant Abrams for mining purposes for the term of 10 years for a cash payment of $10, and a royalty of 5 per cent. of the market value, at the place mined or produced, of all mineral produced, except gas, for which a royalty of $40 per annum for each paying well was to be paid. The 5 per cent. royalty provided for was to be paid monthly, and, pending such operation as would result in a royalty exceeding $20 per annum, the lessee agreed to pay a minimum annual royalty of $20. The complainant concedes the foregoing lease to be a valid lease, and contends that it is still in force, and that all subsequent leases and contracts are invalid. On August 13, 1903, the foregoing lease was assigned by Abrams to the defendant, the Iowa & Oklahoma Mining Company. The bill further alleges that on August 24, 1903, the allottee and said Abrams entered into another mining lease contract for the term of 10 years from date thereof, covering the same land, in consideration of a cash payment of $18, and royalty of 5 per cent. on the output, and a minimum annual royalty of $21. This contract contains this clause:

'All leases or parts of leases heretofore made are by mutual consent canceled, annulled, and abrogated.'

It appears that on November 2, 1904, Abrams assigned the last-mentioned lease to the Iowa & Oklahoma Mining Company. It is further alleged that on March 25, 1905, the allottee executed a mining lease on the same property to L. C. Jones and A. J. thompson, for the term of 10 years, for a cash bonus of $10 and a 5 per cent. output royalty. This lease has this clause:

'Subject to prior mining lease executed by said first party January 1st, 1902, unto A. W. Abrams.'

On July 31, 1905, the lessee, Jones, assigned his interest in said lease to Thompson.

The bill further alleges that on April 4, 1905, the allottee leased his said allotment to the said Iowa & Oklahoma Mining Company for mining purposes for a term of 10 years from date, for a cash bonus of $25 and 5 per cent. output royalty, $40 per annum for each gas well, and a minimum annual royalty of $21. No reference is made in this lease to any former leases. It is further alleged that on the 22d day of May, 1906, the allottee leased his said allotment to the said Iowa & Oklahoma Mining Company, for mining purposes, for the term of 10 years from date, for a cash bonus of $25 and 5 per cent. output royalty, $40 per annum for each paying gas well, and a minimum annual royalty of $21. The last-mentioned lease also contains this provision:

'Provided, that it is expressly understood and agreed by and between the parties hereto that the execution and delivery and acceptance of this lease shall not in any manner be construed as a waiver or relinquishment by the lessee of any rights, title, interest, or claim which it now holds, owns, or enjoys under and by virtue of prior leases held by it upon the lands above described, which leases are recorded within the office of the deputy clerk and ex-officio recorder in and for the First recording district of Indian Territory, at Miami, in Book 'Q,' at page 558, in Book 'S,' at pages 55 and 177, and this lease and all former leases above referred to shall run concurrently; that it is expressly declared that no merger of the leases above referred to into each other or into this lease is contemplated by the execution of this lease; and that the said party of the second part may elect under which of the leases it holds upon the lands above described that it will operate and make payments to said first party, and that the payments and performances by said second party under either of the leases it holds upon said lands shall be in full payment and satisfaction of all requirements and conditions set forth in said several leases held by it upon said land for the term of said respective leases above referred to.'

'(The foregoing clause constitutes a part of the written terms and conditions of a certain mining or business lease executed by Charley Quapaw Blackhawk to the Iowa & Oklahoma Mining Company of Baxter Springs, Kansas, dated May 12th, 1906, upon the N.W. 1/4 and the N.W. 1/4 of the S.W. 1/4 of Sec. 32, Twp. 29, R. 24, Quapaw Reservation, Ind. Ter., and is attached to and made a part thereof.)'

It is further alleged that on July 28, 1906, the allottee made a mining lease to the said Iowa & Oklahoma Mining Company, covering his said allotment, for the term of 20 years from date, for a cash bonus of $21, 5 per cent. output royalty, $40 per annum for each paying gas well, and a minimum annual royalty of $21. The last-mentioned lease has this provision:

'Provided, that it is expressly understood and agreed by and between the parties to this lease that this lease and those certain mining leases held by said second party and recorded in the office of the deputy clerk and ex-officio recorder in and for the First recording district, Indian Territory, in Book 'Q,' p. 558, Book 'S,' p. 55, and Book 'S,' page 177, & Book 'G,' pages 296-297, shall run concurrently until the expiration of the said leases respectively; and that no waiver, relinquishment, or forfeiture of any of the rights or interests now held by said second party under the prior leases is intended by the execution, delivery, and acceptance of this lease, and that no

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