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Ark. 97, 113 S. W. 1014; White-Wilson-Drew Co. v. Egelhoff, 96 Ark. 105, 131 S. W. 208.
[7,8] Infants are not liable on contracts not for necessaries, but it has been uniformly held that, if, after becoming of age, they execute a new contract in writing, they will be liable on it. Watkins v. Wassell, 15 Ark. 73; Barnaby v. Barnaby, 1 Pick (Mass.) 221; American Mortgage Co. v. Wright, 101 Ala. 658, 14 South. 399; Ward v. Anderson, 111 N. C. 115, 15 S. E. 933; Houlton v. Manteuffel, 51 Minn, 185, 53 N. W. 541. An infant may be estopped by acquiescence after he becomes of age. Brazee v. Schofield, 124 U. S. 495, 504, 8 Sup. Ct. 604, 31 L. Ed. 484.
The judgment is right, and is affirmed.
LA MOTTE et al. v. UNITED STATES.
UNITED STATES v. LA MOTTE et al.
(Circuit Court of Appeals, Eighth Circuit. January 30, 1919.)
Nos. 5099, 5129.
1. INDIANS 10-INDIAN LANDS-GRANTS-CONDITIONS.
The United States, as owner of the fee of lands allotted to Indians,
may impose such conditions as it sees fit in its grant to them. 2. INDIANS 15(1)-LANDS-ALIENATION-RESTRICTIONS.
The United States, as guardian of tribal Indians, may impose such restrictions on their alienation of lands allotted as may seem advisable for
their protection and welfare. 3. INDIANS 16(3)—LANDS-LEASES.
Under First Allotment Act June 28, 1906, 88 2–7, 12, held that the Secretary of the Interior is required to approve a lease of lands allotted under the statute and held by minors or other incompetent Indians, whether such lands came to them by allotment, descent, or devise, and whether the lease was arranged by a parent, guardian, or. administrator, who might or might not be a nonmember of the tribe, or an Indian cer
tified as competent, or was approved by the state county court. 4. INDIANS 16(3)-LANDS-LEASES.
Under Osage Allotment Act, $8 2–7, 12, where lands are held by tenants in common, part of whom are incompetent and part competent, or nonmeinbers of the tribe, a iease to be valid must be approved by the Secretary of the Interior; the remedy of the competent tenant being to secure
partition in accordance with Act April 18, 1912, c. 83, $ 6. 5. INDIANS 16(3)—LANDS—LEASES.
Under the Osage Allotment Act of June 28, 1906, held that, though restrictions as to alienation removed from surplus lands do not, where the lands have been conveyed or devised, etc., follow the land into whosesoever hands it may pass, yet a lease of lands owned by noncompetent Indians, to be valid, must be approved by the Secretary of the Interior, though it has come to them through descent, devise, or purchase
from or through competent or nonmembers of the tribe. 6. INDIANS 16(3)-LANDS-LEASES--FORMS.
Under the Osage Allotment Act of June 28, 1906, which requires leases of the lands of noncompetent Indians to be approved by the Secretary of the Interior, and in view of section 12 declaring that all things neces
sary to carry into effect the provisions of the act shall be done, the Secre. Com For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
tary may prescribe a form of lease, and require that leases be executed in
such form as a condition to his approval. 7. INDIANS Om 16(3)-LANDS-AUTHORITY OF UNITED STATES.
Where a lease by an Indian allottee was approved by the Secretary of the Interior, and the lessee went into possession, the government is not concerned, and has no authority to protect the lessee from trespass by cattle, where the freehold is not injured, and the allottee lessor is not affected. Appeal from the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.
Bill by the United States against George G. La Motte and others. From the decree, defendants appeal, and complainant cross-appeals. Modified and affirmed.
T. J. Leahy and C. S. Macdonald, both of Pawhuska, Okl., for La Motte and others.
John A. Fain, U. S. Atty., of Lawton, Okl., and Redmond S. Cole, Asst. U. S. Atty., of Pawnee, Okl.
Before CARLAND and STONE, Circuit Judges, and ELLIOTT, District Judge.
STONE, Circuit Judge. Cross-appeals from an injunction bill brought by the government against George G. and Anna Marx La Motte. The purpose of the bill as revealed in the prayer was to prevent the La Mottes from "entering into any lease, of any kind or character, with any incompetent Osage Indian, and by any means or manner, other than that prescribed by the Secretary of the Interior; and that they be further restrained and enjoined from using, Occupying, and exercising any control, and from assigning and subleasing any lands informally leased or acquired, as aforesaid, from any incompetent Osage Indian member of the Osage Tribe of Indians in Oklahoma. without first having complied with the rules and regulations of the Secretary of the Interior."
The basis of the bill was (a) that the La Mottes were dealing and intended to continue to deal in agricultural leases of lands of noncompetent Osage Indians without securing the approval of such leases or subleases by the Secretary of the Interior and without complying with the rules and regulations of the Secretary concerning such leases; (b) that in so doing and in placing their customers upon such lands they were interfering with and preventing the proper leasing of the lands by the Secretary in accordance with such rules and regulations; (c) that the placing of such customers upon these lands gave rise to numerous trespasses on such lands and also upon other land inclosed within the fencing of the lands so attempted to be controlled by them; (d) that it would require a multitude of suits by the government to prevent such trespasses and clear these lands of such intruders.
The modus operandi of the La Mottes is described as follows:
“That the defendants are pretending to be engaged in the business of leasing Osage Indian lands for the use of various and numerous persons, firms and corporations to graze cattle thereon, and for agricultural purposes. That the manner and means of procuring leases for use as aforesaid is, in
For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
substance, as follows: That the said defendants will solicit various incompetent Osage Indians to execute a lease upon lands allotted to them, which said leases are not in the form prescribed by the Secretary of the Interior, but are informal, in that they do not comply with the provisions of Exhibit A [form of lease required by the Department). That the defendants will continue to procure as many leases from as many allottees within a certain prescribed area until said defendants have, under the guise of said leases, obtained in their own name, or in the name of the person whom they represent, a body of land which they cause to be inclosed with fence, and denominate the same a 'pasture'; that this ‘pasture' is then leased, or subleased, or contracted, to the person, firm, or corporation desiřing the use of the same to graze cattle thereon and for agricultural purposes. That the said defendants charge said persons, firms, or corporations a large sum of money, and place said persons, firms, or corporations in possession of said land, and thereafter said lands are used by said persons, firms, or corporations, for grazing purposes and for agricultural purposes, the said defendants guaranteeing to said persons, irms, or corporations that they will pay all trespass money and all rentals, and that the defendants will assume all liability to the said persons, firms, or corporations that may be occasioned by the use and occupancy of the said lands as aforesaid; that it is not the intention, nor the custom of said defendants, to have said leases, so procured from said incompetent Osage Indians, signed, subscribed and sworn to before an officer of the Osage Indian Agency; neither is it the intention nor the custom to submit said leases to the Secretary of the Interior for his consent and approval; but that, ou the contrary, immediately after the procurement of said leases as afore said, the said defendants, for a sum stated, proceed to place the person, firm, or corporation (designing] to use the said land, in possession.
“The plaintiff alleges that the defendants have, by the aforesaid manner and means, acquired informal leases from incompetent Osage Indians to the amount of approximately 25,000 acres of land, the exact number of which the plaintiff is unable to ascertain, but alleges that it is informed and believes that the number of acres so acquired will far exceed the amount of 25,000
The plaintiff alleges that, for a number of years past, the defendants have procured, by the manner and means aforesaid, 'pastures' for H, M. Stonebreaker, T. P. Ryger, Lee Russell, Brown & Ellingwood, a partnership, R. H. Chowing, Thompson & Shipman, a partnership, Ross Heaton, and divers other persons, and have placed said persons and firms in possession, and have used and occupied lands belonging to incompetent Osage Indian allottees, for agricultural purposes and for grazing cattle, without complying with the rules and regulations of the Secretary of the Interior, as above set out, and without the knowledge or consent of the Secretary of the Interior, and that the defendants have established themselves in a permanent business conducted in the aforesaid manner, and are at the present time procuring, and will continue to procure, leases as aforesaid, for persons, firms, and corporations for the aforesaid purposes.”
The bill also particularizes as to 26 described pieces of property so treated by them.
The answer admits the leasing of "lands in Osage County from Osage Indians and other people for grazing and agricultural purposes." It further says that it leases large bodies of land for grazing purposes adjacent to lands belonging to noncompetent Osage Indians and “that in order to lease their own lands
to cattle men who desire and demand large acreage, it is necessary for them to agree with such cattle men that they will protect and guarantee them from damages by reason of trespass upon such Indian lands. These defendants deny that they take possession of such lands or that they deliver possession to their own lessee of the same, but merely hold themselves liable for any trespass money that may be due on account
of stock running upon the same.” The answer then deals with the specifically described tracts raising various questions concerning the authority of the Secretary over grazing and agricultural leases on Osage Indian lands in the different instances there illustrated. The answer conclụdes with a prayer:
"That the court declare and decree that these defendants may, without any violation of any authorized rules and regulations of the Secretary of the Interior, lease lands from the parents of minor Osages; also lands which are under the control of guardians and administrators duly appointed by the county court of Osage county, Oklahoma, and lands which are inherited by members of the tribe from deceased members of the tribe, even though such members do [not?) have certificates of competency, without conforming to the rules and regulations of the Secretary of the Interior concerning the leasing of Osage Indian lands, and that the court decree that the Secretary of the Interior has no authority under the law to promulgate rules and regulations concerning the leasing of lands of any of the members of the Osage Tribe of Indians and define and determine the authority of the Secretary of the Interior concerning the approval of farming and grazing leases of lands be longing to members of said tribe.”
The decree of the court found that the following kinds of leases were invalid without the approval of the Secretary, to wit, of land of minor allottee by parents one of whom was a white nonmember of the tribe; of land of minor allottee by surviving parent, a white nonmember of the tribe; of land of minor allottee by parents after both of them had received certificates of competency under the Act of June 28, 1906 (34 Stat. 539, c. 3572); of land of minor allottee by father after receipt by him of such certificate of competency; of homestead allotment by competent Indian after receipt of certificate of competency under the above statute; of surplus allotment of noncompetent adult; by such heirs of lands allotted
to noncompetent adult heirs (deceased dying intestate August 3, 1907, before selection of land); of surplus land, by noncompetent devisee; by a white nonmember of the tribe who was grantee under warranty deed from devisee of sole heir of land allotted to said heir as heir of Indian dying before June 28, 1906 (deceased, heir and devisee all being noncompetents and devisee receiving under will approved by Secretary providing "all devises of real estate made hereunder, are made subject to the condition that the real estate shall not be incumbered or alienated, without the consent of the Secretary of the Interior'). It found to be valid, leases executed by a guardian duly appointed by the county court, such leases being duly approved by the county court, on lands of minor allottees, and declared a certain lease would have been valid had it been made by a duly appointed administrator of surplus land allotted to decedent.
As to certain lands held in common the decree found as follows: (1) That where the lease was upon land inherited from allottee by his father, to whom a certificate of competency had been issued, and by his mother, to whom no such certificate had been issued, and the father thereafter had lost his interest through foreclosure of a mortgage placed by him thereon and the purchaser thereunder and the mother had executed a lease that the lease was valid as to the interest of the purchaser and void as to that of the mother; (2) that where the land of an infant allottee descended to his father, a noncompetent,
and to his mother, a white nonmember of the tribe, and the father acquired by purchase the mother's interest from her grantee, and subsequently leased the entire land, the lease was valid as to the interest coming through the mother and invalid as to that descending to the father; (3) that where lands descended from a noncompetent allottee to five heirs, three of whom were noncompetent (one having since died and his estate being in administration) and two had received competency certificates before the inheritance; and the estate had been administered and partition proceedings in progress; and the competent heirs had conveyed their interests to appellants; that appellants were enjoined from leasing the interest of the noncompetents or “from occupying or using the premises, or any part thereof, without the approval of the Secretary of the Interior"; (4) that where land descended from a noncompetent allottee to three heirs, two of which are norcompetent and one a nonmember of the tribe (lacking enrollment, though apparently a son), and thereafter through the death of the latter his interest descends to one of the other of the above two heirs, his mother, and she sold this latter interest to appellants who occupy and use the land with her consent, the other heir being a minor; that appellants are the owners of the one-third interest purchased but are enjoined from "in any manner occupying or using the said lands, or any portion thereof, or from inclosing same, or in any manner dealing with said lands, or any part thereof, without the consent of the Secretary of the Interior, or without procuring a lease upon the undivided onethird [two-thirds?] interest which is restricted.'
The decree also found that there was no duty on the part of the government to protect from trespass, not injurious to the freehold, land leased in accordance with the rules and regulations of the Secretary of the Interior and upon which the lessee was paying the rental due. This was an instance of such land being adjacent to or surrounded by land belonging to appellants which had all been inclosed as a large pasture by an outside fence with no fence between this leased land and that of appellants; the trespass being by grazing cattle. The court denied a motion to dismiss the bill for defect in parties (in that the noncompetent Osage Indians were the real and sole parties in interest) and for lack of equity (in that no grounds for injunctive relief were stated and the existence of an adequate remedy at law by ejectment).
The various assignments of error cover all of the instances presented by the above statement. In their entirety they present for determination the broad questions of the powers and duties generally of the government in the protection of Osage Indian allottees and landowners and their lessees respecting agricultural and grazing leases and, in particular, the powers and duties of the Secretary of the Interior in that regard.
[1, 2] In dealing with tribal Indians in respect to severalty lands the United States has dual sources of authority. In the first place it may, as owner of the fee, impose such conditions as it sees fit in its grani to the Indian. In the second place it may, as the guardian of a people in a state of pupilage, impose such restrictions as seem advisable for the protection and welfare of such wards in the enjoyment or own