Bluejacket v. Ewert, 265 F. 823

Bluejacket v. Ewert

265 F. 823 | 8th Cir. | 1920

MUNGER, District Judge

(after stating the facts as above). [1] Complaint is made because the court refused to permit the plain*827tiff to file an amended bill, and to set aside the submission of the case and allow further testimony on behalf of the plaintiff. The application was made 11 weeks after the case had been heard upon the pleadings and the testimony. The showing in support of the application is of great length, but a recital of its merits would not be profitable. There was no error in refusing the application. It is also urged that a confirmation by the county court of the report of the guardians’ sale was essential to convey the title of the wards. Neither the statute authorizing the sale of such lands nor the rules of the Secretary of the Interior make such a requirement, and the authority of Congress was plenary in fixing the conditions upon which sales of these Indian lands would be permitted.

The claim that defendant was disqualified from purchasing the land is founded upon the provisions of section 2078 of the Revised Statutes (Comp. St. § 4026), as follows:

. “No person employed in Indian affairs shall have any interest or concern in any trade with the Indians, except for, and on account of, the United States; and any person offending herein, shall be liable to a penalty of five thousand dollars, and shall be removed from his office.”

[2] All the facts shown in evidence in relation to Mr. Ewert, the defendant, that are claimed to bring his purchase within the condemnation of this statute may be shortly stated. Mr. Ewert was an attorney at law formerly residing in Minnesota. On October 23, 1908, the Attorney General of the United States appointed him as a special assistant to the Attorney General to assist in the institution and prosecution of suits to set aside deeds made to certain allotments in the Quapaw Indian agency. His official residence was fixed at Miami, Okl. He removed to Oklahoma, going first to Muskogee and remaining there the greater part of November. About the 1st of December he moved to Miami and appears to have continued to reside there for some months thereafter. These facts sufficiently show that he was employed in Indian affairs. Although he was an appointee of the Department of Justice, his business was Only in connection with Indian lands and litigation concerning them. The statute does not regard the department from whence comes the appointment but the department in connection with which the services are rendered. Do the facts show that the defendant had an interest in any trade with the Indians? In United States v. Douglas, 190 Fed. 482, 111 C. C. A. 314, 36 L. R. A. (N. S.) 1075, this court reviewed the history of the legislation relating to the statute in question and outlined the general meaning of the word “trade” as used in the statute. It was there said:

“The statute in question, being penal in nature, should, of course, bo strictly construed. There is little if any conflict as to the usual and ordinary meaning of the word ‘trade.’ It is defined in Webster’s International Dictionary as: ‘The act or business of exchanging commodities by barter or by buying and selling for money; commerce; traffic; barter.’

“The Century Dictionary defines it as: ‘The exchange of commodities for other commodities or for money. The business of buying or selling, dealing by way of exchange, commerce, traffic. Trade comprehends every species of exchange or dealing either in the produce of land, in manufactures, or in bills or money.’

*828“In the New American Encyclopaedic Dictionary it is defined as: "‘The act, occupation or business- of exchanging commodities for other commodities or for money. The business of buying and selling; dealing by way of sale or exchange; commerce; traffic.’

“In Bouvier’s Law Dictionary it is said: ‘In its most extensive signification, the word includes all sorts of dealings by way of sale or exchange.’

“In Rapalje and Lawrence’s Law Dictionary it is defined as: ‘Traffic; commerce; exchange of goods for other goods or for money.’

“In 28 American and English Encyclopedia of -Law (2d Ed.) 33S, it is said: ‘In ordinary language the word “trade” is employed in three different senses: First, in that of the business of buying and selling; second," in that of an occupation generally; and, third, in that of a mechanical employment in contradistinction to agriculture and the liberal arts.’

“In May v. Sloan (May v. Rice), 101 U. S. 237, 25 L. Ed. 797, it is said: ‘The word “trade,” in its broadest signification, includes not only the business of exchanging commodities by barter, but the business of buying and selling for money, or commerce and traffic generally.’

“In Queen Ins. Co. v. State, 86 Tex. 250, 22 L. R. A. 483, 24 S. W. 397, and in Texas & Pacific Coal Co. v. Lawson, 89 Tex. 401, 34 S. W. 920, it is said: ‘The word “trade” means traffic, which is-defined to be the passing of goods and commodities from one person to another for an equivalent in goods or money.’

“It has further been judicially defined as: ‘The exchange of commodities for other commodities or for money; the business of buying and selling; dealing by way of sale or exchange.’ In re Grand Jury (D. C.) 62 Fed. 840; United States v. Cassidy (D. C.) 67 Fed. 705; United States v. Coal Dealers’ Ass’n (C. C.) 85 Fed. 265.

“Similar citations could be almost indefinitely multiplied. It is manifest that, if the word -‘trade’ was employed in the statute in.question in its ordinary use and acceptation, the defendant had both interest and concern in trade with the Indians on her own account, and not on account of the United States.”

[3, 4] The statute was held to apply to the purchase by an industrial teacher at the Indian agency of cattle from the Indians on the reservation, because such a person might be expected to wield a large influence, and such an influence should not be used to subserve self interest in barter with the Indians. The facts in the present case do not disclose the direct exertion of any influence over the Indians. It is not shown that the defendant ever saw or communicated with any of the plaintiffs or that the Indians were conscious that defendant was employed in Indian affairs. The presumption is that the rules established by the Secretary of the Interior governing sales of inherited Indian lands were followed by the officials in charge of that sale; that defendant’s bid for these lands was delivered to the Indian agent and by him transmitted to the Secretary, together with all the proceedings and the report of the agent, and with a showing that there was no agreement or understanding between defendant and plaintiffs. So far as appears the defendant was but a passive recipient of a conveyance from the Indians. Exercising its undoubted authority, the government offered the property for sale, advertised it, made the appraisal, received the bids, decided upon approval of its acceptance by the Indians, approved the deed, and controlled the receipt and disposition of the purcháse price.

The defendant therefore-claims that he was not engaged in any trade with the Indians, but that his dealing was with the United States. This view ignores the fact that-the plaintiffs in deciding whether to *829refuse or accept defendant’s bid, and in executing the deed to defendant as grantee may have signed it because of confidence in his official position and his relation to the Indians. One purpose of the statute is to prevent the possible play of official influence over the' mind of the Indian in his consideration of any proposed trade with him. Another purpose is to preserve loyalty, or at least disinterestedness toward the Indian’s interests by those employed in Indian affairs. If it were held that the statute did not apply to a trade between an official of the Indian department and the Indians except where the Indian was conscious that he was dealing with such an employe the way would be open for employes and officers of the Indian department to take advantage of their knowledge of the Indians’ affairs and of their needs, to make purchases or sales for their own benefit through third persons, agents and corporations. Similarly, officers and employes of the Indian department at Washington or at any agency could trade with Indians living at a distance if they were not acquainted with their official positions. The statute is not confined in terms to trade with the Indians, when the Indian is conscious of the position of the official, nor when an effect upon the trade by the use of his official position is demonstrated, and such a construction would be contrary to the practical interpretation that has been placed upon the statute by the Indian department ever since its enactment. The conclusion is that the statute applied to the taking of the deed by the defendant.

[5, 6] The plaintiff executed this deed in April, 1909, and this suit to cancel the deed was begun in June, 1916. The time within which the adult grantors could have brought such a suit under the statutes of limitation applicable to suits or cases by the laws of Oklahoma had then expired. The complainants of that class were therefore obligated to plead and prove the facts and circumstances showing that they were not guilty of laches, in order to maintain the suit after the lapse of time fixed by the analogous statute of limitations. Kelley v. Boettcher, 85 Fed. 55, 29 C. C. A. 14; Redd v. Brun, 157 Fed. 190, 84 C. C. A. 638, and cases cited. The bill contains no allegations and the proofs afford no facts to take the case out of the ordinary rule and to make it equitable to allow its maintenance at this time, unless it be the fact that the plaintiffs were Indians. The adult plaintiffs were free to make conveyance of this land, even though they were Indians, and their tribal relations had been severed, and they were chargeable with the same diligence as white people in discovering and pursuing their legal remedies. Felix v. Patrick, 145 U. S. 317, 331, 332, 12 Sup. Ct. 862, 36 L. Ed. 719; Schrimpscher v. Stockton, 183 U. S. 290, 296, 22 Sup. Ct. 107, 46 L. Ed. 203. The deed to defendant was made by Carrie Bluejacket as guardian of four of the minor heirs — William, Blanche, Amy and Clyde Bluejacket. Among the plaintiffs in this bill are Amy Bluejacket and Clyde Bluejacket, as minors, suing by their next friend, and Blanche Bear, formerly Blanche Bluejacket, who is not alleged or shown to be a minor, and Carrie Bluejacket who sues as the heir of William Bluejacket, deceased, but the date of his death is not shown. Whether guardianship of any of these minors has been terminated is not shown. By section 6583 of the Revised Taws of Oklahoma (1910) it is provided:

*830“No action for the recovery of any estate, sold by a guardian, can be maintained by the ward, or by any person claiming under him, unless it is commenced within three years next after the' termination of the guardianship, or when a legal disability to sue exists .by reason of minority or otherwise, at the time when the cause of action accrues, within three years next after the removal thereof.”

[7] The suit of Amy and Clyde Bluejacket obviously is not barred by laches. Their rights to maintain a suit to disaffirm their deed before they have attained their majority is conferred by the Oklahoma statutes. Rev. Laws Okl. (1910) § 885; Ryan v. Morrison, 40 Okl. 49, 135 Pac. 1049.

[8-11] The suit of Blanche Bear and of Carrie Bluejacket, as heirs of William Bluejacket, is not shown by the bill nor by the proofs to have been begun too late to obtain the relief demanded. It was incumbent upon the defendant to show that laches existed sufficient to bar their suit, if such fact did not appear from the face of the bill or in their proofs. In order to obtain a cancellation of a deed it is ordinarily necessary that plaintiffs do equity by restoring the consideration received therefor, but this rule does not apply to the disaffirmance of the deed of an infant, if prior to the disaffirmance and during infancy the consideration received has been disposed of, wasted or consumed and cannot be returned. It is not necessary to place the grantee in statu quo. MacGreal v. Taylor, 167 U. S. 688, 698, 17 Sup. Ct. 961, 42 L. Ed. 326; Alfrey v. Colbert, 168 Fed. 231, 235, 93 C. C. A. 517. If there is no evidence that the infant has received the consideration he is not required to offer to return it. Blakemore v. Johnson, 24 Okl. 544, 103 Pac. 554; Monumental Ass’n v. Herman, 33 Md. 133; Thormaehlen v. Kaeppel, 86 Wis. 378, 56 N. W. 1089; Stull v. Harris, 51 Ark. 294, 11 S. W. 104, 2 L. R. A. 741; Richardson v. Pate, 93 Ind. 423, 47 Am. Rep. 374; Clark v. Tate, 7 Mont. 171, 14 Pac. 761; Bradshaw v. Van Valkenburg, 97 Tenn. 316, 37 S. W. 88. The presumption is that the purchase money was deposited in banks or with the Indian agent, as required by the rules. There is no evidence that shows the money to have been withdrawn either by the guardian of the minors or by the minors, or that any of it ever came into their possession. An obligation to restore to defendant the consideration for the conveyance of these lands therefore does not appear.

It appears that the defendant has mortgaged the land to secure an indebtedness of his. The mortgagee is not a party to the suit. Plaintiffs ask for a judgment against defendant equal to the amount of this incumbrance, and they also ask for an accounting for the rents and profits of the land since the date of the conveyance. We think the decree should be reversed and the case remanded with directions to grant the prayers of Amy and Clyde Bluejacket, of Blanche Bear and of Carrie Bluejacket as heirs of William Bluejacket for a cancellation of the deed from these four minor heirs to the defendant, and for an accounting and for indemnification against the apparent lien of the mortgage on their shares of the lands. The decree as to the other plaintiffs will be affirmed, and no costs be adjudged against any of the parties.