Wade v. Fisher
39 App. D.C. 245
D.C. Cir.
1912
Check Treatment
Mr. Justice Van Orsdel

delivered the opinion of the Court:

Counsel for appellants has proceeded in this case upon a false premise. The lease has been treated as one between individual parties with full power to act for themselves. The authorities cited in counsel’s brief are directed to cases of that sort. If the parties have full power to act in the premises, then the lessor is •confronted with two outstanding leases upon the same land, and the right of possession under the respective leaseholds would be a proper subject of litigation in the courts of Oklahoma, where *248the land is situated. But that is not this case. Annie King acquired the land as her allottable portion of the land of the Creek Nation. Her title came to her, burdened with certain limitations imposed by Congress. Among others, she was authorized by secs. 19 and 20 of the act of 1906 to lease the land for oil and gas mining purposes, as was done in this instance, but this power is subject to the approval of the Secretary of the Interior. Without his approval to such a lease it is null and void.

The lease set forth in the bill provides that, unless at least one well is drilled upon the land within twelve months of the approval of the lease by the Secretary, the lease shall be mill and void. It also provides for forfeiture for nonpayment of royalty and rent when the same shall become due. As to both of these conditions, plaintiffs failed. If the power to declare a forfeiture and execute a lease to others is vested solely in the allottee, then plaintiffs should have brought their action in the courts of Oklahoma. If, however, the power is vested in the Secretary to investigate through his Department, and, in case of forfeiture, cancel the lease and approve another, as it is' averred he threatens, to do, it would be the exercise of official discretion vested in him by Congress, as its agent, to supervise and control the leasing of allotted Indian lands. We think this duty is imposed upon the Secretary, and he can only be devested of it by Congress. His. judgment in the approval or disapproval of a lease cannot be controlled by injunction. In the absence of arbitrary conduct on his part, it must be assumed that he is acting for the best interests of the Indian. It is the way provided by Congress for exercising in this particular the guardianship which the government has assumed for the protection of the Indian. The matter is one wholly within the official discretion of the Secretary ; and, .in the absence of evidence of its abuse, the courts will not, by extraordinary writ, interfere with its exercise. Fisher v. United States, 37 App. D. C. 436; United States ex rel. Ness v. Fisher, 223 U. S. 683, 56 L. ed. 610, 32 Sup. Ct. Rep. 356; United States ex rel. McKenzie v. Fisher, ante, 7.

It is contended by counsel for appellants that the action of the *249Secretary is illegal in that he failed to give notice of his intention to cancel appellants’ lease. It appears in the bill that a hearing was had before the Indian superintendent at Muskogee, Oklahoma, and that plaintiffs have prosecuted their appeal up through the various tribunals of the Department to the Secretary. They have by their own averment had their day in court' at every stage of the proceeding, and are not in position to urge lack of notice.

The decree dismissing the bill is affirmed, with costs.

Affirmed.