Wadsworth v. Boysen

• Decision Date: 23 November 1906
• Docket Number: 2,456.
• Citation: 148 F. 771
• Parties: WADSWORTH v. BOYSEN.
• Court: U.S. Court of Appeals — Eighth Circuit

148 F. 771

WADSWORTH v. BOYSEN.

No. 2,456.

United States Court of Appeals, Eighth Circuit.

November 23, 1906

Timothy F. Burke, U.S. Atty., for appellant.

John W Lacey and John N. Baldwin, for appellee.

Before SANBORN and VAN DEVANTER, Circuit Judges, and PHILIPS District judge.

PHILIPS District Judge.

This is an appeal seeking to reverse the action of the Circuit Court in overruling a demurrer to a bill in equity and granting a temporary injunction. The controversy grows out of the following state of facts:

On the 1st day of July, 1899, the appellee, Asmus Boysen, of the state of Iowa, entered into a contract of lease with the Shoshone and Arapahoe tribes of Indians, occupying the Wind River reservation, in the state of Wyoming, which contract was approved by the Secretary of the Interior. The contract recited that the said Indian tribes were authorized by the provisions of the third section of the act of Congress approved February 28, 1891 (26 Stat. 795, c. 383), as amended by Act Cong. Aug. 15, 1894, c. 290, 28 Stat. 305, to lease the lands for certain purposes, which was ratified by their principal chiefs, etc. This lease embraced a territory of about 178,000 acres. It ran for a period of 10 years, and the use of it was limited to mining coal thereon. The consideration for this lease was the payment of a royalty of 10 per cent. of the cash value of the coal at the mines. While the appellee was thus occupying the leased premises and mining coal thereon, on March 3, 1905, Congress, by Act March 3, 1905, c. 1452, 33 Stat. 1016 et seq., ratified the agreement made between James McLaughlin, United States Indian inspector, respecting their said reservation, whereby said tribes agreed to cede and relinquish to the United States all the right, title, and interest to a portion of the lands embraced in said reservation, within certain prescribed lines, reserving the rights of individual Indians who had made selection of lands to surrender the same and select other lands in lieu thereof within the diminished reserve at any time before the ceded lands were open for entry. In consideration of this cession the United States was to dispose of the ceded lands under the provisions of the homestead, townsite, coal, and mineral land laws, or by cash sale at specified prices, and to hold and distribute the proceeds for the benefit of said Indian tribes in a manner provided in the act. This agreement was accepted and ratified by Congress, with certain amendments made thereto. 33 Stat 1019, 1021.

The second article of this amended agreement contained the following proviso:

'That nothing herein contained shall impair the rights under the lease to Asmus Boysen, which has been approved by the Secretary of the Interior; but said lessee shall have for thirty days from the date of the approval of the surveys of said land a preferential right to locate, following the government surveys, not to exceed six hundred and forty acres in the form of a square, of mineral or coal lands in said reservation; that said Boysen at the time of entry of such lands shall pay cash therefor at the rate of ten dollars per acre and surrender said lease and the same shall be canceled. Provides further, that any lands remaining unsold eight years after the said lands shall have been opened to entry may be sold to the highest bidder for cash without regard to the above minimum limit of price; that lands disposed of under the town-site, coal and mineral land laws shall be paid for at the prices provided for by law, and the United States agrees to pay the said Indians the proceeds derived from the sales of said lands, the amount so realized to be paid to and expended for said Indians in the manner hereinafter provided.'

As the appellee, Boysen, to avail himself of this provision, had to proceed within 30 days from the date of the approval of the surveys of said ceded lands to make his selection and location of the 640 acres, he at once entered upon the ceded lands with employes and began explorations and examinations to determine the presence of mineral or coal, with the employment of machinery suitable thereto, with a view to making such selection within the prescribed limited time. The appellant, Harry E. Wadsworth, who was at the time the Indian agent in charge of said Indian tribes and reservation, made objection to the said proceedings of the appellee, and forbade his entering upon and selecting said 640 acres outside of the lands embraced within said leased premises. His obstruction went to the extent of suffering the destruction of the machinery so employed by the appellee, and warning him, under threat of forcible ejection, from the lands included in the ceded territory outside of said leased premises. A portion of the leased lands were in the ceded domain, and a portion were within the diminished reserve. The proportion of this division of the leased lands does not affirmatively appear. In this conjuncture the appellee, Boysen, in order to prevent the loss of his right by lapse of the 30-day period, should he carry the contest before the Department of the Interior, filed his bill in equity in the United States Circuit Court for the State of Wyoming against said appellant, Wadsworth, and those concerting with and aiding him in said interference and obstruction, setting out in detail the facts aforesaid, praying for an order and decree enjoining them therefrom. To this bill the United States district attorney for Wyoming interposed a demurrer, which was overruled, and a temporary injunction as prayed was granted.

The chief contention of appellant is (1) that the Indian tribes never assented to the preferential right sought to be given by the act of Congress to the appellee; and (2) that the correct construction of said proviso is that the selection to be made by appellee is limited to 640 acres of mineral or coal lands situate within the boundaries of the original lease.

Is the right reserved to the appellee by the proviso void for the reason that it conflicts with the agreement made with said Indian tribes? The Indian tribes of this country, while somewhat sui generis in their relation to the United States, have ever been recognized as possessing so much of the qualities of national political independence as to be subject to the treaty-making power between them and the government. This is especially so in respect of territory assigned to them as reservations. Such treaties in practice take the form of agreements entered into between the particular tribe and some designated representative of the Interior Department, or person or persons designated thereto by act of Congress. Like any other treaty, when not self-executing, which becomes the subject of congressional revision and approval, Congress may modify or amend such provisions as affect the United States or its subjects, or entirely supersede them. In such case, whenever a conflict is alleged to exist between the treaty and the legislative act of amendment, the courts, in construing them, while endeavoring to give force and effect to both, if they cannot be reconciled, will give effect rather to the legislative amendment. Head Money Cases, 112 U.S. 581, 5 Sup.Ct. 247, 28 L.Ed. 798; Whitney v. Robertson, 124 U.S. 190, 194, 8 Sup.Ct. 456, 31 L.Ed. 386. The treaty is of no greater force than the act of Congress, and, when it becomes the subject of judicial cognizance in the courts, it is held to be subject to such provision as Congress may attach by modification or amendment. Chinese Exclusion Case, 130 U.S. 587, 600, 9 Sup.Ct. 623, 32 L.Ed. 1068. This rests upon the established rule that the provisions of an act of Congress, passed in the exercise of its constitutional power, when clear and explicit, will be upheld by the courts, although in seeming conflict with an antecedent treaty stipulation. Fong Yue Ting v. United States, 149 U.S. 698, 13 Sup.Ct. 1016, 37 L.Ed. 905; Ward v. Race Horse, 163 U.S. 511, 16 Sup.Ct. 1076, 41 L.Ed. 244.

We do not, however, perceive any real conflict between the agreement made with the Shoshone and Arapahoe Indian tribes and the act of Congress. The treaty was not self-enforcing, but was made subject to congressional recognition and enforcement, with power to add such amendments thereto as would make it acceptable to Congress. Accordingly Congress did amend it in several particulars, among which was the proviso in favor of the appellee. Appellant was not called upon to complain of any assumed divergence between the agreement and the action of Congress. Neither can we assent to the view expressed by the United States attorney as to the general scope or character of the act in question. He asserts that:

'The act under consideration ratifies the cession of all of the lands north of the Big Wind river, etc., except so much thereof as are described in a certain lease to Asmus Boysen.'

The ratification in fact is a confirmation of the cession of 'all the lands embraced within the said reservation,' except certain described lands, which are not only a part of the leased lands, but the lands retained by said Indians as their diminished reservation. As this contains in fact a part, and only a part, of the leased territory, it follows that the leased lands, as such, are not excepted from the conceded grant, which contains a vastly larger body of lands. We are unable to find any expression in the act indicating an exception of the leased lands from the cession. On the contrary, both the language and scope of the act are to concede to the United States all the lands of the reservation, except the designated territory expressly retained by the Indian tribes as a diminished reservation the sense and the logic of which, it must be conceded, was the extinguishment of the...