United States v. Noble

• Decision Date: 23 May 1912
• Docket Number: 3,551.
• Parties: UNITED STATES v. NOBLE et al.
• Court: U.S. Court of Appeals — Eighth Circuit

197 F. 292

UNITED STATES v. NOBLE et al.

No. 3,551.

United States Court of Appeals, Eighth Circuit.

May 23, 1912

Paul A Ewert, Sp. Asst. Atty. Gen., for the United States.

Vern E Thompson and S. C. Fullerton (A. S. Thompson and J. J Bulger, on the briefs), for appellees.

Before ADAMS and SMITH, Circuit Judges, and MARSHALL, District Judge.

SMITH Circuit Judge.

The Quapaw Tribe of Indians were finally located in Indian Territory, now Oklahoma, and it was agreed their lands should be conveyed to them in common by the government under treaty proclaimed April 12, 1834 (7 Stats. 424).

March 23, 1893, the Quapaw National Council provided for the allotment of these lands in severalty. By the Indian appropriation act of March 2, 1895 (28 Stats. 876, 907) Congress ratified and confirmed these and future allotments subject to revision, correction, and approval by the Secretary of the Interior, and the Secretary was authorized to issue patents, and provided that such allotments should be inalienable for 25 years from date of the allotment. In pursuance of this provision, there was allotted to Charley Quapaw Blackhawk 200 acres of land, which was duly patented September 26, 1896. By Indian Appropriation Act June 7, 1897 (30 Stats. 62, 72), it was 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.'

Under this provision Blackhawk, on January 11, 1902, leased his allotment to A. W. Abrams for mining purposes, for 10 years, for $10 down and 5 per cent. in value of all minerals, and $40 per annum for each paying gas well, with a guaranty that the royalties would equal $20 per annum. August 13, 1903, Abrams assigned this lease to the Iowa & Oklahoma Mining Company. August 24, 1903, Blackhawk, for $18 and the continuance of the royalties and a guaranty of $21 a year therefrom, made a new lease for 10 years to A. W. Abrams, and expressly canceled the former lease. The new lease was assigned on November 2, 1904, to the Iowa & Oklahoma Mining Company. March 25, 1905, Blackhawk, in consideration of $10 and the payment of 5 per cent. royalties, leased his allotment to L. C. Jones and A. J. Thompson, for 10 years, subject to the lease of January 1 (11), 1902, to Abrams. July 31, 1905, Jones assigned his interest in this lease to Thompson. April 4, 1905, Blackhawk leased his allotment for 10 years to the Iowa & Oklahoma Mining Company, for $25 and 5 per cent. of the mining product and $40 a year for each gas well, with a guaranty that the royalties would equal $21 per annum. August 16, 1902, Blackhawk assigned to Charles F. Noble the royalties, rents, and proceeds of the lease of January 11, 1902, to Abrams, and, if said lease was surrendered or became void, then for the period of 10 years, and on the same day Noble assigned one-half of his interest under the assignment to John M. Cooper. Subsequently suit was brought to set aside this assignment and was successful as to one-half of the royalties after January 31, 1906, and thereafter Blackhawk assigned one-half of his half so recovered, or one-fourth of the royalties, to his attorneys A. S. Thompson and V. E. Thompson.

The United States government brought suit to set aside all the conveyances heretofore referred to and others, but, as it was successful on demurrer as to such other conveyances, they are not material here. As to these conveyances a demurrer was sustained to the bill (United States v. Abrams (C.C.) 181 F. 847), and the government appeals. It was held by the court in United States v. Allen, 179 F. 13, 103 C.C.A. 1, and by the Supreme Court in Heckman et al. v. United States, 224 U.S. 413, 32 Sup.Ct. 424, 56 L.Ed. 820, that suit could be brought by the United States to set aside a conveyance of the title within the period of restriction.

This case involves a different question as to the ability of the United States to maintain an action to set aside a lease covering the period authorized by the act of June 7, 1897. There is substantially no difference between this case and the case of United States v. A. W. Abrams et al., 194 F. 82, 114 C.C.A. 160, except that in that case it appears that, after the taking of the last lease, there was an express release of all the prior ones, and the lessee only claimed to hold under the last lease. That was true of all the leases here in question except the lease of April 4, 1905. The last-named lease was sustained upon the showing that the acceptance by the tenant of a new lease constituted a surrender of an old lease by operation of law unless the surrender would be contrary to the intention of the parties. 24 Cyc. 1369.

It is contended that, as a surrender on April 4, 1905, would at once turn the property over to Jones and Thompson under the lease of March 25, 1905, it was manifestly contrary to the intention of the parties to have the lease of April 4, 1905, considered as a surrender of the lease of August 24, 1903, as this would put Jones and Thompson in possession over 9 years before they would otherwise be so and leave a remnant of only about 10 days under the lease then being made. This court is, however, unable to find any necessity for a release of the old leases if none of them extended over 10 years from their execution.

The history of the change of the law with reference to the Indians must be borne in mind. At first treaties were negotiated with them as alien but dependent people, but it was established by the Supreme Court that the government was the guardian of the Indians, and that the authority of Congress was plenary as to them, yet they were largely independent of the ordinary rules of guardianship as to minors and as to persons of unsound mind. Originally they had no individual real estate, but as among themselves they bought and sold personal property without restraint, except in a few isolated instances their power to trade was limited to their own tribe. For example the Indian appropriation law of July 4, 1884 (chapter 180, 23 Stats. 94), provided that cattle purchased by the government and turned over to the Indians could only be sold to members of the same tribe without the consent of the Indian agent. Laws were enacted prohibiting the liquor...