United States v. Colvard

• Decision Date: 06 April 1937
• Docket Number: No. 4137.,4137.
• Citation: 89 F.2d 312
• Parties: UNITED STATES v. COLVARD et al.
• Court: U.S. Court of Appeals — Fourth Circuit

89 F.2d 312 (1937)

UNITED STATES v. COLVARD et al.

No. 4137.

Circuit Court of Appeals, Fourth Circuit.

April 6, 1937.

Angus D. MacLean, Sp. Asst. to Atty. Gen. (Harry W. Blair, Asst. Atty. Gen., Marcus Erwin, U. S. Atty., of Asheville, N. C., and Nere E. Day, Sp. Atty., Department of Justice, on the brief), for appellant.

R. L. Phillips, of Robbinsville, N. C., for appellees.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

PARKER, Circuit Judge.

This is a suit instituted by the United States to enjoin the defendants from trespassing on certain lands of the Eastern Band of Cherokee Indians in Graham county, N. C., conveyed to the United States in trust pursuant to the Act of June 4, 1924, 43 Stat. 376, 25 U.S.C.A. 331 note, at page 186. The bill alleges that defendants have entered upon the lands in question and have constructed a roadway for their personal use leading from their sawmill to a public highway; that they threaten to continue using such roadway without having obtained the consent of the United States or complied with the law and regulations in such case provided; and that they have attempted to obtain legal sanction of such roadway in a proceeding instituted before the clerk of the superior court of Graham county, N. C., against the Eastern Band of Cherokee Indians and two members of that tribe, John Teseteskey and Solomon Bird. Attached to the bill is a certified copy of the proceedings referred to, from which it appears that an order was entered condemning a roadway fourteen feet wide over the lands in question, assessing the damages at $14 and reciting that that amount had been paid into court by the petitioners. From an order dismissing the bill for lack of jurisdiction, the United States has appealed. Three questions are presented for our consideration: (1) Whether the court had jurisdiction of a bill filed by the United States to enjoin trespass on lands conveyed to it in trust under the Act of June 4, 1924; (2) whether the court, at the suit of the United States, may grant injunction against trespass on lands so conveyed; and (3) whether the bill should be dismissed because of the proceedings therein shown to have been had in the state court.

Since this is a suit in equity brought by the United States, there would seem to be no question as to the jurisdiction of the court to entertain it, as the District Court is expressly granted jurisdiction of suits at law or in equity brought by the United States, irrespective of the amount involved. 28 U.S.C.A. § 41(1). It is the right and the duty of the government to maintain such suits as may be necessary for the protection of its Indian wards. United States v. Wright (C.C.A. 4th) 53 F.(2d) 300; United States v. Boyd (C.C.A.4th) 83 F. 547; Id. (C.C.) 68 F. 577; In re Celestine (D.C.) 114 F. 551, 552; U. S. v. Winans (C.C.) 73 F. 72, 75; United States v. Flournoy Live-Stock & Real-Estate Co. (C.C.) 71 F. 576, 579; Id. (C.C.) 69 F. 886, 894. And particularly is this true where the United States holds lands in trust for the use and benefit of these wards and suit is necessary for the protection of the lands. United States v. Wright, supra; United States v. Flournoy Live-Stock & Real-Estate Co., supra.

The second and third questions stated above are not, strictly speaking, questions of jurisdiction at all, but are addressed to the merits and involve the right of the government, on the allegations of the bill, to the relief sought. Inasmuch as they go to the foundation of the case, however, and present the questions raised by the motion to dismiss and evidently considered by the court below in holding that it was without jurisdiction "of the parties and of the subject-matter," we feel that we should pass upon them, since we are of opinion, not only that the lower court had jurisdiction of the cause, but also that the bill set forth facts upon which, nothing else appearing, the government was entitled to ask relief.

It is not necessary to recite again the history of the Eastern Band of Cherokee Indians or of the lands here in controversy. We went into this fully in United States v. Wright, supra, 53 F.(2d) 300. While that suit related to the lands in Swain county known as the Qualla Boundary, the lands here involved were conveyed to the Indians by the same instrument and were conveyed by them to the United States in the same manner and under the same trust pursuant to the Act of June 4, 1924, as was the Qualla Boundary. We held in the Wright Case that this band of Indians was such a tribe as was subject to the guardianship of Congress; that the acceptance in trust of lands for allotment to them in severalty, pursuant to the Act of June 4, 1924, was a proper exercise of the power of guardianship; and that the trust in lands thus created constituted an instrumentality of the federal government which Congress might exempt from taxation. While the question here is not one of taxation but whether, for the protection of the lands which are the subject-matter of the trust, the United States may ask an injunction against repeated trespasses which adjacent landowners threaten to continue, the decision in the Wright Case virtually determines it. That case establishes the right of the United States as trustee of the lands to seek injunction for the protection of the interest of the Indians therein; and it is, of course, well settled that injunctive relief is proper against continuing trespass or against repeated trespasses where there is threat of continuance and the remedy at...