13 Utah 454 | Utah | 1896
This action was brought to enjoin the defendant from permitting his sheep to graze on certain lands situate in the southeastern part of this State, and forming a part of the Uintah Indian reservation. The plaintiff claims the right to the possession of said lands under and by virtue of a certain lease executed by one Bobert Waugh, the Indian agent of the reservation, acting under instructions of the secretary of the interior, for and on behalf of the Uintah and White Biver Ute tribes of Indians, with the consent and authority of those tribes granted in council representing and speaking for them, and by one Charles F. Homer, lessee, under the provisions of the act
The principal point relied on by the appellant for a reversal of the case is that the alleged lease is void on the
The appellant contends that the use of the words “bought and paid for” imports, not only that the lands are owned by the Indians, and that the government has transferred its ultimate title to them, but that this has been done by a transaction involving a sale on the part of the government, and actual payment on the part of the Indians. The respondent. maintains that the words-“bought and paid for” mean what they usually import-in their ordinary acceptation, and were used in the' act. to denote the acquisition of ownership, or right to exclu-,
The views thus entertained are supported by the construction which the government itself has placed upon the statute under consideration, as is evidenced by a
While this contemporaneous construction cannot materially affect the decision of this case, still it is entitled to some consideration, as showing the practical construction which the government has placed upon the statute by its officers. The Utah Indians roamed and hunted over the lands in Utah. They had title by right of possesion as original occupants. This was recognized by the United States when it, by treaty, induced them to
Counsel for the appellant refer to the Cherokee Nation as an example where Indian lands had been “bought and paid for.” History, however, shows much similarity in the manner in which the Cherokee Nation and the Uintah and White River Utes acquired their lands, and especially is this so of the White River Utes. The Cherokee Indians originally claimed lands east of the Mississippi river. They were owners and occupants of -those lands from time immemorial — before the approach of civilized man. As civilization made its encroachments, dissentions frequently arose between certain citizens and the Cherokee Nation. To prevent further difficulties, and adjust those which had arisen because of the residence of the Indians within settled portions of the United States, various treaties were made, with a view to the removal of the Indians, but without effect. One was concluded May C, 1828; another February 14, 1833; and in both this government agreed to possess the Cherokee Nation of 7,000,-000 acres of land west of the Mississippi river, and to guaranty it to them forever, on certain conditions agreed upon. 7 Stat. 311; Id. 414. It is apparent from those treaties that the policy of the United States was to induce the Cherokees residing in any of the states or territories to surrender their possessions east of the Mississippi river, and in the then territory of Arkansas, to the United States, and remove to and settle on the lands west of Arkansas provided for them in those treaties. The purpose of the government was consummated by a new treaty, dated December 29, 1835 (7 Stat. 478), in the first article of which the Cherokee Nation ceded, relinquished, and conveyed to the United States all the lands owned,
The evidence tended to show that the trespass complained of was continued and continuing until the service upon the defendant of the restraining order, and that grass and verdure were destroyed, and a portion of the leased land rendered worthless for the remainder of the term of the lease. Where acts of trespass are repeated, continuing, and ruinous, or the damage irreparable, and a remedy at law would be inadequate, an injunction will lie. Spell. Extr. Rem. § 387; High, Inj. § 697; Lembeck v.
We are of the opinion ¡that the respondent is entitled to the possession of the land in question, by virtue of its lease, and that there is no reversible erorr in the record. The judgement is affirmed.