The opinion of the court was delivered by: KNIGHT
This is a motion to dismiss the complaints in some one hundred suits. All involve common questions of law and have been consolidated pursuant to Rule 42 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. They arise from the suit brought by the United States to have certain leases in Salamanca, Cattaraugus County, New York, declared null and void. The grounds for the motions are hereinafter stated and will be considered in the order they are stated.
The first and third causes of action should be dismissed upon the ground that the Seneca Nation of Indians is an essential plaintiff.
No merit is seen in this claim. The authority of the United States to bring the suit is not questioned. The United States is suing as guardian of the Indians in its sovereign capacity and in the carrying out of a governmental policy. The decision of the Supreme Court in Heckman v. United States, 224 U.S. 413, 32 S. Ct. 424, 434, 56 L. Ed. 820, is controlling, and it is necessary only to quote certain portions of the opinion in that case. These are:
"It is further urged that there is a defect of parties, on account of the absence of the Indian grantors. * * * "The argument necessarily proceeds upon the assumption that the representation of these Indians by the United States is of an incomplete or inadequate character; that although the United States, by virtue of the guardianship it has retained, is prosecuting this suit for the purpose of enforcing the restrictions Congress has imposed, and of thus securing possession to the Indians, their presence as parties to the suit is essential to their protection. This position is wholly untenable. There can be no more complete representation than that on the part of the United States in acting on behalf of these dependents, whom Congress, with respect to the restricted lands, has not yet released from tutelage. * * *
"When the United States instituted this suit, it undertook to represent, and did represent, the Indian grantors whose conveyances it sought to cancel. It was not necessary to make these grantors parties, for the government was in court on their behalf. Their presence as parties could not add to, or detract from, the effect of the proceedings to determine the violation of the restrictions and the consequent invalidity of the conveyances."
The reasoning in the foregoing case is definitely applicable to the cases in suit. There are many reported cases in which suits have been brought by the United States as Guardian of Indian Tribes against individuals or corporations. It is urged that the Seneca Nation should be included as a party plaintiff in order that the defendants may be insured of their rights to certain equitable defenses. This reasoning has no support because the equities available against the Indian Nation, on behalf of whom the suit is brought, are available against the United States. United States v. Thekla, 266 U.S. 328, 45 S. Ct. 112, 69 L. Ed. 313; Folk v. United States, 8 Cir., 233 F. 177; Lemmon v. United States, 8 Cir., 106 F. 650.
The second cause of action should be dismissed upon the ground that the United States Indian Agent for the New York Indian Agency is an essential plaintiff.
No merit is seen in this claim. It is true that the act of February 28, 1901, 31 Stat. 819, provides: "That all moneys which shall belong to the Seneca Nation of New York Indians arising from existing leases or leases that may hereafter be made * * * shall be paid to and be recoverable to the United States Indian Agent for the New York Indian Agency for and in the name of the said Seneca Nation." This notion overlooks the fact that this is not an action for the collection of rents under any existing leases. All leases were cancelled as of the date of the notice of cancellation served on these defendants. It is evident that the Indian Agent had no authority to collect on these cancelled leases, since such authority is limited to "existing leases or leases that may hereafter be made."
Irrespective of the foregoing statute, it is believed that even assuming that these were actions to recover rent as such the United States could bring these suits. The agent is merely representative of the government, and surely the government would have the authority to do that which it had delegated to its agent. As stated, this is not an action for the collection of rents but to recover amounts claimed to be due upon liabilities arising since the cancellation of the leases.
The first, second and third causes of action should be dismissed upon the ground that they are not within the ...