McBride v. Farrington

149 F. 114, 79 C.C.A. 56, 1906 U.S. App. LEXIS 4429

• Court: Court of Appeals for the Second Circuit
• Decided: December 4, 1906
• Docket: No. 5
• Status: Published

Opinions

LACOMBE, Circuit Judge.

The plaintiff concedes that, unless he can establish.the proposition that the leases executed by the national secretary of the Chickasaw Nation (October 2 and October 20, 1890) were wholly void, so that'there was a “total failure of consideration,” he cannot recover. He contends that they are void because of the provisions of section 2116, Rev. St. U. S., which reads:

“No purchase, grant, lease or other conveyance of land, or any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered-into pursuant to the Constitution,” etc.

The section, however, was modified, before the making of these leases, by Act March 1, 1889 (25 Stat. 784, c. 333), which repealed all laws theretofore enacted to prevent the Indian nation in question or any other from lawfully making leases for mining coal for a period not exceding 10 years. The leases in question are for the mining of coal, iron, petroleum, oil, gas, asphaltum, and other minerals. If void as to the other minerals, they are apparently valid as to the coal. For what length of time they purported to run is not shown by the record. If for an indefinite time, the terms of the act would no doubt restrict them to 10 years. It is difficult to see how such leases, which apparently' conveyed some rights for a restricted period, can be held to-be so utterly valueless as to constitute an entire failure of consideration.

These reasons lead to an affirmance.

Some reference has been made to Act June 28, 1898 (30 Stat. 495, c. 517) ; but, since that was not passed until two years after the leases were assigned to the Wisconsin corporation, it has no bearing on the question here presented.