United States v. Brown

• Decision Date: 29 October 1925
• Docket Number: No. 6924.,6924.
• Citation: 8 F.2d 564
• Parties: UNITED STATES v. BROWN et al.
• Court: U.S. Court of Appeals — Eighth Circuit

8 F.2d 564 (1925)

UNITED STATES v. BROWN et al.^*

No. 6924.

Circuit Court of Appeals, Eighth Circuit.

October 29, 1925.

O. H. Graves, Asst. U. S. Atty., of Muskkogee, Okl. (Frank Lee, U. S. Atty., of Muskogee, Okl., on the brief), for the United States.

J. L. Hull, of Muskogee, Okl., and Frank Montgomery, of Eufaula, Okl. (N. A. Gibson, of Muskogee, Okl., West, Gibson, Sherman, Davidson & Hull, of Tulsa, Okl., on the brief), for appellees.

Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge.

VAN VALKENBURGH, Circuit Judge.

Miller Tiger, a full-blood Creek Indian, received his allotment, and thereafter a departmental oil and gas lease was executed, covering the same. The royalties therefrom were paid to the superintendent and special disbursing agent for the Five Civilized Tribes. Later one Barclay Morgan and the appellee Rosannah Brown, as joint guardians of Miller Tiger, who was a minor, requested authority of the county court of Okmulgee county to invest the sum of $3,000 of these royalties in 160 acres of agricultural land for a home for said ward, alleging that this investment would be for the best interest of the ward and his estate. Upon hearing, the court authorized the purchase upon condition that the vendor should execute to the Indian a good and sufficient warranty deed in accordance with the rules and regulations prescribed by the Department of the Interior. It was required by the court that the deed should contain the following clause, following a form prescribed by the department for such conveyances:

"Subject to the condition that no lease, deed, mortgage, power of attorney, contract to sell, or other instrument affecting the land herein described or the title thereto, executed during the lifetime of said grantee at any time prior to April 26, 1931, shall be of any force and effect, or capable of confirmation or ratification, unless made with the consent of and approved by the Secretary of the Interior."

Pursuant to this arrangement, on October 24, 1915, a check was drawn by the superintendent for the Five Civilized Tribes for the sum of $3,000 upon the Miller Tiger fund and payable to the order of said guardians, and on the same day was delivered to them and by them deposited in their general guardianship account in bank. On the same day the guardians drew their check against said account in favor of the vendor and delivered it to him in payment of the purchase price of the land. In the meantime, on the 26th of July, 1915, the special form of deed had been executed in accordance with the conditions exacted by the department and by the court and had been recorded; it was delivered simultaneously with the payment of the purchase price. It will be seen, therefore, that every act above described was part of one and the same transaction, which evidences the purpose to make the release of the funds conditioned upon and coincident with the retention of supervision. This was the purpose of the department, by which the controlling regulation was promulgated, and of the court, upon which, as a governmental agency, had been conferred jurisdiction of the subject-matter. Thereafter, in December, 1921, Miller Tiger and wife conveyed 80 acres of this land, to wit, the east half of the southwest quarter of section 24, township 11 north, range 11 east, Okmulgee county, Okl., to appellee Rosannah Brown. Miller Tiger, having attained his majority, had been released from guardianship; but the conveyance last described was not approved by the Secretary of the Interior. January 23, 1922, Rosannah Brown conveyed an undivided one-half interest in this tract to appellee Brotton, who, in turn, conveyed an undivided one-fourth interest to appellees King and Whitenton.

The government, by suit in the court below, sought to cancel the three conveyances last above described, and to quiet the title in Miller Tiger, subject to the restrictions imposed by law and the supervising control of the United States. In opposition thereto, it was contended that the Secretary of the Interior had no authority to invest royalties, derived from leases, in lands, and to impose a restriction against alienation of these lands; further, that the funds, having been paid by the superintendent for the Five Civilized Tribes to the guardians of Tiger, and by them intermingled with other funds, the control thereof by the Secretary terminated, and he had no further power of supervision over the funds, nor over any real estate in which the same might be invested.

To sustain their position appellees rely mainly upon McCurdy v. United States, 246 U. S. 263, 38 S. Ct. 289, 62 L. Ed. 706, and upon the decisions of this court in United States v. Gray (C. C. A.) 284 F. 103, and United States v. Ransom (C. C. A.) 284 F. 108. While this precise situation, involving the identical relationship between the parties, has not been before the courts of last resort, nevertheless the principles announced by the Supreme Court and the Circuit Courts of Appeals in many decided cases furnish us dependable guidance. The act of Congress under which these lands were restricted is that of May 27, 1908. 35 Stat. 312, c. 199. Under authority conferred by that act to make rules and regulations, the Secretary of the Interior, among others, promulgated the following:

"20. In any case where lands are purchased for the use and benefit of any citizen of the Five Civilized Tribes of the restricted class, payment for which is made from proceeds arising from the sale of restricted allotted land, or other moneys held under the control of the Department of the Interior, the superintendent for the Five Civilized Tribes shall cause conveyance of such lands, to be made on form of conveyance containing an habendum clause against alienation or incumbrance until April 26, 1931, as follows: `To have and to hold said described premises, unto the said grantee, ____ heirs and assigns, forever, free and clear and discharged of all former grants, charges, taxes, judgments, mortgages, and other liens and incumbrances of whatsoever nature, subject to the condition that no lease, deed, mortgage, power of attorney, contract to sell, or other instrument affecting the land herein described or the title thereto, executed during the lifetime of said grantee at any time prior to April 26, 1931, shall be of any force and effect or capable of confirmation or ratification, unless made with the consent of and approved by the Secretary of the Interior.'"

That regulation has received confirmation and approval in Sunderland v. United States (C. C. A. 8th Circuit) 287 F. 468, affirmed under the same title, 266 U. S. 226, 45 S. Ct. 64, 69 L. Ed. 259. In the cases just cited the lands allotted to the Indian, and under restrictions as to alienation, were sold; the proceeds of said sale being retained by the Secretary of the Interior to be disbursed under his orders for the benefit of the allottee. With a portion of the funds thus derived the Indian Department had purchased for and on behalf of the Indian other lands. The deed of conveyance for said land, in conformity with the rule above set out, contained the condition therein prescribed that no alienation should be of any force and effect unless made with the consent of and approved by the Secretary of the Interior. In Sunderland v. United States, 266 U. S. 226, 45 S. Ct. 64, 69 L. Ed. 259, the Supreme Court, in affirming the decree of this court, said:

"So long as the Indians remain wards of the government, the interposition of the strong shield of the federal law is justified, to the end that they be not overreached or despoiled in respect of their property of whatsoever kind or nature. * * * If Congress, in fulfillment of its duty to protect the Indians, whose welfare is the peculiar concern of the federal government, deems it proper to restrict for a limited time the right of the individual Indian to alienate land purchased for him with funds arising from the sale of other lands originally subject to a like restriction, we are not aware of anything which stands in the way. * * * Indeed, we think the authority of the Secretary to withhold his consent to the proposed investment of the proceeds subject to his control, includes the lesser authority to allow the investment upon condition that the property into which the proceeds are converted shall be impressed with a like control" — citing with approval United States v. Law, 250 F. 218, 162 C. C. A. 354; United States v. Thurston County, 143 F. 287, 290, 291, 74 C. C. A. 425; National Bank of Commerce v. Anderson, 147 F. 87, 90, 77 C. C. A. 259.

Appellees seek to make the distinction that in the Sunderland Case the lands were purchased with the proceeds of sale of allotted lands, and not with moneys accruing from a lease upon allotted lands, contending that the act of 1908, and the regulation made thereunder, has, in terms, no application to the latter case. United States v. Law, 250 F. 218, 162 C. C. A. 354, decided by this court, dealt also with the sale of a homestead and revestment of funds with restrictions affecting a new purchase. It confirmed authority in the government to hold proceeds and control their disposition in the same way that it had controlled the allotted lands, citing United States v. Thurston County, supra, which was cited also with approval in Starr v. Campbell, 208 U. S....