
    BRANDENBURG & BRANDENBURG v. MORONEY.
    (No. 2746.)
    (Supreme Court of Texas.
    May 12, 1920.)
    Indians <®=>16(1) — Department of Interior not empowered to authorize ' reinstatement! of lease, where not empowered to authorize original lease.
    The Department of Interior, being without power to authorize a lease of coal lands of Choctaw and Chickasaw Indians under Act Cong. July 1, 1902, c. 1362, 32 Stat. 641, had no right to authorize the reinstatement of such a lease previously canceled and then of no force; such reinstatement being in legal effect the same as the creation of original leasehold rights in the land.
    Certified Question from Court of Civil Appeals of Fifth Supreme Judicial District.
    Suit by Brandenburg & Brandenburg against W. J. Moroney. The former appealed to Court of Civil Appeals, from which court a question is certified to Supreme Court.
    Question answered.
    Seay & Seay, of Dallas, for appellant.
    Currie MeCutcheon and W. J. Moroney, both of Dallas, for appellee.
   PHILLIPS, C. J.

Brandenburg & Brandenburg sued W. J. Moroney to recover $500.00 claimed to be due them as attorneys’ fees for legal services in procuring the reinstatement of a certain lease of coal lands in what was formerly the Choctaw Nation in the Indian Territory, originally made by the Department of the Interior to Thomas H. Chambers and held by the Chambers Coal Mining Company as assignee.

According to the certificate, the defense to the suit was that the plaintiffs were employed to obtain a valid re-instatement of the lease which had theretofore been forfeited ; that the alleged re-instatement procured by the plaintiffs was void, rendering the lease of no value, in that at the time of the purported re-instatement there was in effect an Act of Congress prohibiting leases of such lands; and accordingly the defendant was due the plaintiffs nothing for their services.

The re-instatement of the lease was based, it appears, upon a letter of the Assistant Secretary of the Interior, dated July 12th, 1912, addressed to the Commissioner of Indian Affairs, stating in substance that the previous cancellation or forfeiture of the lease ought to be revoked because of certain equitable considerations and the advantage which would accrue under the lease to the Indians owning the land; and authorizing the re-instatement of the lease upon the payment of all amounts delinquent. and the assignee’s showing that it was in position to actively prosecute mining operations, and furnishing satisfactory security for future compliance with the terms of the lease. •

The question certified by the honorable Court of Civil Appeals is whether, under the Act of Congress of July 1st, 1902, a re-in-statement of the lease was authorized upon compliance with the conditions imposed by the Assistant Secretary of the Interior in this letter.

The act in question was a comprehensive one, ratifying the agreement entered into between the Dawes Commission and- the representatives of the Choctaw and Chickasaw Indians in relation, generally, to the lands of those tribes. It was- in force at the time of the purported re-instatement of this lease, and admittedly applied to the land embraced in it. It contained the following provision:

“No lease of any coal or asphalt lands shall be made after the final ratification of this agreement, the provisions of the Atoka agreement to the contrary notwithstanding.”

This provision was binding upon all departments of the Federal Government and plainly prohibited the making of any lease of any coal lands belonging to these two tribes of Indians. The Department of the Interior being without the power to authorize a lease of any of those lands at the time of its action with respect to this lease, it equally had no power to authorize the re-in-statement of such a lease previously cancel-led and then of no force. In legal effect, such action was nothing less than the creation of original leasehold rights in the particular land, and therefore clearly within the interdiction of the act.

Our investigation has disclosed no rule of Federal decision contrary to this interpretation of the act. No different meaning can in our opinion be given it. 
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