69 F. 886 | U.S. Circuit Court for the District of Nebraska | 1895
In the bill filed in this case, it is ' averred: That the Winnebago tribe of Indians was originally domiciled on lands situated in tbe state of Minnesota. That by the provisions of the act of congress approved February 21, 1863, tbe president of tbe United States was authorized to take steps for the peaceful removal of the tribe from that state, and to set apart for the use of the tribe a tract of unoccupied land, not within tbe limits of any state, and in extent at least equal to tbeir existing reservation in Minnesota. That in pursuance of this act the tribe was first removed into the then territory of Dakota, and from there, in the year 1865, it was removed into the then territory of Nebraska; and by a treaty made between the Omaha tribe of Indians and the United States, under date of March 6,1865, the Omaha tribe ceded and sold to the United States a tract of land from the north side of the Omaha reservation, to he used as a reservation for the Winnebagos. See 14 Stat. 667. That by a treaty made under date of March 8, 1865, between tbe United States and the Winnebago tribe (see 14 Stat. 671), the latter
It is further averred in said bill that in the act of congress, approved February 21,1868, it: was provided that when the tribe should be removed to the new reservation the secretary of the interior might allot to said Indians lands in severalty, which they may cultivate and improve, “which lands, when allotted, shall be vested in said Indian and his heirs without the right of alienation, and shall be evidenced by patent”; it being further declared in said act “that said Indians shall be subject to the laws of the United States and to the criminal laws of the state or territory in which they may happen to reside. They shall also be subject to such rules and regulations as the secretary of the interior may prescribe; but they shall be deemed incapable of making any valid civil contract with any person other than a native member of tlieir tribe without the consent of the president of the United States.” And it is alleged that under the provisions of this act, in the year 1871, about 1,900 acres of land were allotted lo individual Indians.
It is further averred: That on the 8th of February, 1887, congress passed an act entitled “An act to provide for the allotment of lands in severalty to Indians on the various reservations and to extend the protection of the laws of the United States and the territories over the Indians and for other purposes.” That under the provisions of this act a large body of land embraced within, and forming a part of, the reservation in Nebraska, has been allotted to individual Indians, such allotments being approved by the secretary of the interior in September, 1893; the patents being issued in December, 1893, and each patent containing the recital that “the United States of America. in consideration of the premises, and in accordance with the provisions of the 5th section of said act of congress of the 8th of February, 1887, hereby declares that it does,and will hold the land thus allotted (subject to all the restrictions and conditions contained in said 5th section), for the period of twenty-five years, in trust for the sole use and benefit of the allottee named therein.”
It is further averred in said bill: Thai, in the treaty between the Ornaba Indians and the United States concluded March 6, 1865, it was provided that all laws passed, or which may be passed, by congress, regulating trade and intercourse with the Indian tribes, shall have full force and effect upon the Omaha reservation, and that no ■white person, except such as shall be in the employ of the United States, shall be allowed to reside or go upon any portion of said
It is further averred in said bill that there was no provision made by treaty, act of congress, or otherwise, for the leasing of any lands assigned or allotted to Indians in severalty, or held in common, other than to native members of their respective tribes, until the passage of the act of congress adopted February 28,1891, amendatory of the act of February 8, 1887, which conferred power on the secretary of the interior to prescribe rules and regulations for the leasing of lands allotted to Indians whenever, by reason of age or other disability, the allottee was not able to occupy or improAm the lands assigned to him.
It is further averred that said Omaha and Winnebago tribes of Indians have ahvays been, and now are, under the charge and control of an Indian agent, who is under the direction of the commissioner of Indian affairs; that the present agent for said tribe is William H. Beck, captain in the tenth cavalry, United States army, who was appointed in June, 1893, by the president of the United States, pursuant to the act of congress of July 13,1892, which authorized the detailing army officers for such duty and service.
It is then charged in said bill that in the year 1888 one John S. Lemmon, in violation of law, commenced leasing portions of the Winnebago reservation from the Indians to whom allotments had been made; that subsequently the Flournoy Live-Stock & Real-Estate Company was organized, of which corporation said Lemmon was and is president; that Lemmon assigned to the company the leases previously taken by him, and the company proceeded to take a large number of additional leases in the years 1S9Ü--91, running from five to ten years, the whole amount thus leased amounting to fully 37,000 acres; that John B. Carey and several other parties named
It is further charged that all the leases thus made were taken by the named parties in open violation of law, contrary to the rules and regulations adopted by the interior department relative to the leasing of allotted lands, and against the protests of the present agent of said tribes and his predecessors; that the parties in possession aro cultivating the lands for their own benefit; that they refuse to vacate the same, and wholly refuse to recognize the rights and power of the United States over said lands, as trustee for said Indians; that the presence of the named parties upon said lands, under the circumstances detailed, is inimical to the best interests of the Indians, subversive of the just authority of the United States, and a direct interference with the control of the department of the interior, through the commissioner of Indian affairs and the agent for said tribes, over said lands and the reservation of which they form I»art, and also greatly interferes with the efforts of the United States government to civilize said Indians, and to prepare them for and advance them in the rights and duties of citizens of the United States.
It is further charged in said bill that in an action in equity brought by the Flournoy Live-Stock & Real-Estate Company v. William II. Beck, in the United States circuit court for the district of Nebraska, and thence appealed to (he circuit court of appeals for the Eighth judicial circuit (12 C. C. A. 497), it was held and ruled that the leases obtained by the named company were wholly void; that nevertheless the said company, and parties holding under it, continue to assert title to said leaned lands, and refuse to vacate the game; that the company continues to sublet the lands unlawfully held by it, and encourages the occupation of the lands in question by the parties to whom it has leased the same. In the bill is to be found a full description of the lands thus claimed to be unlawfully leased and occupied, together with a statement of the several parties in possession of said lands under said leases, thus alleged to be wholly void and illegal. The Flournoy Company and the other parties named, in number 231, are made parties defendant to the bill, and a mandatory injunction is prayed, restraining the defendants from interfering with the India m a gent in the discharge of his official duties in connection with the lands of said reservations set apart for the Omaha and Winnebago tribes of Indians; from in any manner inciting or inducing any of said Indians to lease or otherwise contract about said lands without the consent of the Indian agent, under the rules and regulations of the secretary of the interior; commanding them to immediately vacate all lands held in possession by them; and restraining them from entering upon any of said lands, or from leasing or contracting about them, in violation of law.
To the bill demurrers on behalf of the defendants have been inter
In support of the first ground stated, to v> it, that a court of equity has not jurisdiction, because the remedy at law is adequate, it is argued that the United States could institute an action in ejectment against each one of the” several named parties in possession of the leased lands, and in that way oust them from possession, in case it were decided that the leases were void. The action of ejectment is one which lies to regain possession of realty, with damages for the unlawful detention. The right of present possession of the lands in question is in the Indians, and not in the United States. The title is held by the government in trust for the Indians, and it is, to say the least, extremely doubtful whether the United States could maintain an action of ejectment based upon the assertion of a right to-immediate possession. But, if such action might be maintained, a judgment therein would fall far short of affording the full measure of relief sought for in the present suit. The theory of the bill is that the United States is a trustee for the Indians, and holds the title of the lands in trust for them, and, by force of the treaties with them, is charged with the performance of certain duties towards them, and that there exists a trust relation of a high and delicate character, and that, for the proper performance of these trust duties, it is necessary that the defendants should not only be ousted from the possession of the leased lands, but that the defendants should be restrained from inducing the Indians to make further leases of any portion of the reservation, and from interfering with the Indian agent in the performance of his duties. The bill seeks the aid of the court, as a court of equity, to assist in the proper performance of trust duties and ■ obligations, and to protect the rights of the Indians, and the relief sought to that end is not available in an action at law; and therefore it cannot be held that the equitable jurisdiction is barred because of the existence of an adequate remedy at law. Thus, in Kilbourn v. Sunderland, 130 U. S. 505, 9 Sup. Ct. 594, it is said, “The jurisdiction in equity attaches unless the legal remedy, both in respect to the final relief and the mode of obtaining it, is as efficient as the remedy which equity would confer under the same circumstances.”
The second ground of demurrer is that the bill is multifarious, because it is exhibited against a large number of defendants who hold under different leases, executed by different lessors, and that there is no common interest justifying the bringing the one suit, instead of separate proceedings against each defendant.
In Walker v. Powers, 104 U. S. 245, it is said:
“By multifariousness ‘is meant the improperly joining in one hill distinct and independent matters, and thereby confounding them; as, for example, the uniting in one bill of several matters, perfectly distinct and unconnected,*891 against one defendant, or the demand of several matters, of a distinct and independent nature, against several defendants, in the same bill.’ Story, Eq. Tl. § 271.”
In the case at bar the complainant’s right of action is based upon the trust relation existing between the United States and the Indians In regard to the lands in question, and there is therefore a common interest and a common question, as against all the defendants; and therefore the bill will not be held to be multifarious, being within the rule stated in Story, Eq. PL § 285, to wit:
“Another exception to the general doctrine respecting multifarionsness and misjoinder, which has already been alluded to, is when the parties (either plaintiffs or defendants) have one common interest touching the matter of the bill, although they claim under distinct titles, and have independent interests” (in which event the objection of multifariousness will not be sustained).
The last and principal ground of demurrer is that the plaintiff is not entitled to the relief prayed for upon the allowing made in the bill, in support of which it is contended: (1) That the Indians to whom the lands have been allotted in severalty are no longer tribal Indians; are not, therefore, under the control of the agent, either as to person or property; that these Indians are citizens of the United Htates, and have ceased to be wards of the national government. And (2) that the leases executed by these Indians are valid, and the possession of the defendants, based thereon, is lawful.
In 1lie sixth section of the act of congress of February 8, 1887 (24 Stat. 388), it is declared that every Indian bom within the United ¡átales, to whom allotment of lands in severalty has been made under the provisions of that or any other act of congress, or under any treaty, shall be deemed to be a citizen of the United States, and entitled to all the rights, immunities, and privileges of citizenship, without in any manner impairing or otherwise affecting the right of such Indian to tribal or other property. The argument in support of the demurrer, in effect, goes upon the theory that citizenship of the alottee is inconsistent with any restraint upon the right of alienation of, the lands allotted in severalty. The error of this assumption is clearly shown in the opinion of the court of ajipeals in the case of Real-Éstate Co. v. Beck, already cited. The instances in which the United States has conferred an interest in lands upon citizens, but subject to a restraint upon alienation, are numerous, and it has never been held that a restriction upon the right of alienation is so inconsistent with citizenship that the two cannot coexist. The'right to alienate lands is denied to minors, and yet, during their minority, they may be citizens of the United States, with all the privileges and rights conferred thereby. It is to be expected that in the effort to advance the Indian from his semi-savage condition, and to change his tribal condition into individual citizenship, many anomalous situations will arise, which must be viewed in the light of all the legislation upon the same subject, including the treaties made with the several tribes.
The fact, urged in argument, that under the laws of the state of Nebraska the Indians in question, to whom lands have been assigned
It is further urged in argument that lands allotted in severalty cease to be parts of the “Indian country,” as that phrase is used in the statutes of the United States. Whatever may be the relation of the allotted lands to the so-called Indian country, with respect to other provisions of the statutes, such as those regulating the sale of intoxicating liquors and the like, there can be no question that the title of these lands remains in the United States; that they form part of the lands set apart as a reservation for these Indians by the treaties made with these tribes; and that the duty, and consequently
It is also asserted in argument that the leases taken by the Flournoy Company and other defendants from the Indians to whom allotments have been made are valid, and that these lessees, and those holding under them as subtenants, cannot be rightfully dispossessed. It is averred in the bill that the Flournoy Company had brought a bill in equity in this court against William II. I Seek, to restrain him from interfering with the possession of these lands under the leases in question, and that the court of appeals for this circuit had held