United States v. Rundell

• Decision Date: 12 September 1910
• Docket Number: 575,Equity.
• Parties: UNITED STATES v. RUNDELL et al.
• Court: U.S. District Court — Eastern District of Oklahoma

181 F. 887

UNITED STATES v. RUNDELL et al.

No. 575, Equity.

United States Circuit Court, E.D. Oklahoma.

September 12, 1910

Paul A Ewert, for the United States.

W. H Kornegay and H. H. McCluer, for defendants.

CAMPBELL District Judge.

This is a suit by bill in equity, instituted by the United States of America against John E. Rundell and others, seeking to have set aside certain conveyances, and to have decreed as invalid a certain judgment of the United States Court for the Northern District of Indian Territory, sitting at Wagoner, of date May 19, 1899. The land involved was originally the allotment of Pete-lon-o-zah, or William Wea, a member of the confederated Wea, Peoria, Kaskaskia, and Piankeshaw tribes of Indians, being a portion of the lands formerly held in common by said tribes in what is now northeastern Oklahoma. By the patent from the United States to said allottee, dated April 8, 1890, it was provided:

'That said lands shall not be alienated or subject to levy, sale taxation, or forfeiture for a period of twenty-five years from the date hereof, and any contract or agreement to sell or convey said land before the expiration of said period shall be absolutely null and void, to have and to hold the said land with the appurtenances thereunto belonging to the said Pe-te-lon-o-zah, or William Wea, and to his heirs, forever, with proviso as aforesaid.'

It is alleged that the allottee, William Wea, died intestate in January, 1894, seised of said lands, and that thereafter the defendant Rundell procured certain persons, who claimed to be the heirs of said allottee, to execute deeds to him for said land, and that he also fraudulently caused to be instituted in the said United States Court for the Northern District of Indian Territory a certain action, wherein said purported heirs were plaintiffs and the said Rundell was defendant, and fraudulently procured a judgment to be rendered by said court, adjudging and decreeing the validity of a certain contract on the part of said heirs to convey said land to the defendant Rundell, and such conveyance and those subsequently made by defendant Rundell and his grantees, and the judgment of said court it is now sought to have set aside by this proceeding.

To the bill the defendants the Miami Investment Company, and George E. Bowling have demurred. By the demurrer it is urged that complainant has no interest in the matters and things alleged in the bill, and no right, title, interest, or claim in or to the lands described therein entitling it to maintain this suit or obtain the relief sought; that complainant is in no sense guardian of said allottee or his heirs, and has no right, authority, duty, or function, either in its own right or as sovereign or guardian, entitling it to maintain the suit; that it does not appear that the complainant or the tribe or the heirs of the said allottee, or any person of Indian blood, has any right, title, or interest in or claim to said land, or in the matters and things set forth in the bill; that it does not appear that the heirs of the said allottee ever requested the complainant to bring the suit; and that less than the jurisdictional amount is involved.

Since the argument and submission of this case upon the demurrer, the United States Court of Appeals for this circuit has rendered its decision in the case of United States v. Allen et al., 179 F. 13. In that case, as in this case, the United States have brought suit in their own name, without joining the allottees, to cancel and set aside certain alleged unlawful conveyances of restricted Indian allotments of members of the Five Civilized Tribes. The point was there made by the defendants that the United States, having divested itself of every vestige of the title to such allotments, not even holding the legal title in trust, as in the case of allotments made under the general allotment act of 1887 (Act Feb. 8, 1887, c. 119, 24 Stat. 388), they had no such interest in the suits as entitled them to maintain the actions. The court said:

'The Supreme Court of the United States, in the case which carried the emancipation of the Indians and their property to the fullest extent, expressly recognizes the right of the government to enforce, by appropriate action in court, the restraints which it imposed upon the alienation of Indian allotments. The court says in the Heff Case, 197 U.S. 489, 509, 25 Sup.Ct. 506, 512, 49 L.Ed. 848: 'Undoubtedly an allottee can enforce his right to an interest in the tribal or other property (for that right is expressly granted), and equally clear is it that Congress may enforce and protect any condition which it attaches to any of its grants.

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