United States v. Flournoy Live Stock & Real-Estate Co.

• Decision Date: 08 October 1895
• Citation: 69 F. 886
• Parties: UNITED STATES v. FLOURNOY LIVE-STOCK & REAL-ESTATE CO. et al.
• Court: U.S. District Court — District of Nebraska

69 F. 886

UNITED STATES v. FLOURNOY LIVE-STOCK & REAL-ESTATE CO. et al.

United States Circuit Court, D. Nebraska.

October 8, 1895

A. J Sawyer, U.S. Atty., and R. W. Breckenridge, for the United states.

H. C Brome and Daley & Jay, for defendants.

SHIRAS District Judge.

In the bill filed in this case, it is averred: That the Winnebago tribe of Indians was originally domiciled on lands situated in the state of Minnesota. That by the provisions of the act of congress approved February 21, 1863, the president of the United States was authorized to take steps for the peaceful removal of the tribe from that state, and to set apart for the use of the tribe a tract of unoccupied land, not within the limits of any state, and in extent at least equal to their existing reservation in Minnesota. That in pursuance of this act the tribe was first removed into the then territory of Dakota, and from there, in the year 1865, it was removed into the then territory of Nebraska; and by a treaty made between the Omaha tribe of Indians and the United States under date of March 6, 1865, the Omaha tribe ceded and sold to the United States a tract of land from the north side of the Omaha reservation, to be used as a reservation for the Winnebagos. See 14 Stat. 667. That by a treaty made under date of March 8, 1865, between the United States and the Winnebago tribe (see 14 Stat. 671), the latter tribe ceded to the United States all their title, right, and interest in the reservation occupied by them at Usher's Landing, in the territory of Dakota, the cession being made in consideration of the agreement on part of the United States 'to set apart for the occupation and future home of the Winnebago Indians, forever, all that certain tract or parcel of land ceded to the United States by the Omaha tribe of Indians on the 6th day of March, A.D. 1865, situated in the territory of Nebraska * * * '; the United States further agreeing 'to erect on said reservation an agency building, schoolhouse, warehouse, and suitable buildings for the physician, interpreter, miller, engineer, carpenter, and blacksmith, and a house 18x24 feet, one and a half stories high, well shingled and substantially finished, for each chief.'

It is further averred in said bill that in the act of congress, approved February 21, 1863, it was provided that when the tribe should be removed to the new reservation the secretary of the interior might allot to said Indians lands in severalty, which they may cultivate and improve, 'which lands, when allotted, shall be vested in said Indian and his heirs without the right of alienation, and shall be evidenced by patent'; it being further declared in said act 'that said Indians shall be subject to the laws of the United States and to the criminal laws of the state or territory in which they may happen to reside. They shall also be subject to such rules and regulations as the secretary of the interior may prescribe; but they shall be deemed incapable of making any valid civil contract with any person other than a native member of their tribe without the consent of the president of the United States.' And it is alleged that under the provisions of this act, in the year 1871, about 1,000 acres of land were allotted to individual Indians.

It is further averred: That on the 8th of February, 1887, congress passed an act entitled 'An act to provide for the allotment of lands in severalty to Indians on the various reservations and to extend the protection of the laws of the United States and the territories over the Indians and for other purposes. ' That under the provisions of this act a large body of land embraced within, and forming a part of, the reservation in Nebraska, has been allotted to individual Indians, such allotments being approved by the secretary of the interior in September, 1893; the patents being issued in December, 1893, and each patent containing the recital that 'the United States of America, in consideration of the premises, and in accordance with the provisions of the 5th section of said act of congress of the 8th of February, 1887, hereby declares that it does and will hold the land thus allotted (subject to all the restrictions and conditions contained in said 5th section), for the period of twenty-five years, in trust for the sole use and benefit of the allottee named therein.'

It is further averred in said bill: That in the treaty between the Omaha Indians and the United States concluded March 6, 1865, it was provided that all laws passed, or which may be passed, by congress, regulating trade and intercourse with the Indian tribes, shall have full force and effect upon the Omaha reservation, and that no white person, except such as shall be in the employ of the United States, shall be allowed to reside or go upon any portion of said reservation without the written permission of the superintendent of Indian affairs, or the agent of said tribe, and that no lands assigned in severalty to any Omaha Indian shall be aliened, or otherwise disposed of, except to the United States, or other members of the tribe, under such rules and regulations as shall be prescribed by the secretary of the interior. That on the 7th of August, 1882, congress passed an act providing the allotments in severalty to the members of the Omaha tribe, the sixth section of said act providing 'that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs, according to the laws of the state of Nebraska, and that at the expiration of such period the United States will convey the same by patent to said Indian, or his heirs, as aforesaid in fee, discharged of said trust, and free of all charge or incumbrance whatsoever. And if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching the same, before the expiration of the time above mentioned, such conveyance and contract shall be absolutely null and void. ' That under the provisions of this act a large quantity of the lands in said reservation were allotted to individual Indians of the Omaha tribe, and patents issued therefor, each patent reciting the stipulation contained in the sixth section of said act.

It is further averred in said bill that there was no provision made by treaty, act of congress, or otherwise, for the leasing of any lands assigned or allotted to Indians in severalty, or held in common, other than to native members of their respective tribes, until the passage of the act of congress adopted February 28, 1891, amendatory of the act of February 8, 1887, which conferred power on the secretary of the interior to prescribe rules and regulations for the leasing of lands allotted to Indians whenever, by reason of age or other disability, the allottee was not able to occupy or improve the lands assigned to him.

It is further averred that said Omaha and Winnebago tribes of Indians have always been, and now are, under the charge and control of an Indian agent, who is under the direction of the commissioner of Indian affairs; that the present agent for said tribe is William H. Beck, captain in the tenth cavalry, United States army, who was appointed in June, 1893, by the president of the United States, pursuant to the act of congress of July 13, 1892, which authorized the detailing army officers for such duty and service.

It is then charged in said bill that in the year 1888 one John S. Lemmon, in violation of law, commenced leasing portions of the Winnebago reservation from the Indians to whom allotments had been made; that subsequently the Flournoy Live-Stock & Real-Estate Company was organized, of which corporation said Lemmon was and is president; that Lemmon assigned to the company the leases previously taken by him, and the company proceeded to take a large number of additional leases in the years 1890-91, running from five to ten years, the whole amount thus leased amounting to fully $37,000 acres, that John B. Carey and several other parties named in the bill have, in violation of law, leased of individual members of the Omaha and Winnebago tribes several thousand acres of lands allotted in severalty under the acts of congress hereinbefore recited; and that these parties, including the Flournoy Live-Stock & Real-Estate Company, have sublet these lands to a large number of persons named in the bill, who are now in actual possession of said lands.

It is further charged that all the leases thus made were taken by the named parties in open violation of law, contrary to the rules and regulations adopted by the interior department relative to the leasing of allotted lands, and against the protests of the present agent of said tribes and his predecessors; that the parties in possession are cultivating the lands for their own benefit; that they refuse to vacate the same, and wholly refuse to recognize the rights and power of the United States over said lands, as trustee for said Indians; that the presence of the named parties upon said lands, under the circumstances detailed, is inimical to the best interests of the Indians, subversive of the just authority of the United States, and a direct inference with the control of the department of the interior, through the commissioner of Indian affairs and the agent for said tribes, over said lands and the reservation of which they form part, and also greatly interferes with the efforts of the United States government to civilize said Indians, and to prepare them for and advance them in the rights and duties of citizens of the United States.

It is further charged in said bill that in an action in equity brought...