Vol. III, p. 446, sec. 15. [Owner of improvements to deposit appraised

Vol. III, p. 447, sec. 16. [Royalties and rents to be paid into treasury — to credit of tribe.]

Vol. III, p. 448, sec. 16. [Retention of lands, etc., until allotment.]

[Enrolment of Cherokees, etc.]

Vested rights. A woman's rights as widow and heir under the Cherokee statute of descent, having vested on death of her husband, are not affected by the subsequent repeal of the statute by this section. Nivens v. Nivens, (1903) 4 Ind. Ter. 574, 76 S. W. 114.

[ALLOTMENT OF LANDS.]

[MEMBERS'

Vol. III, p. 458, sec. 29, sixth par. [It is agreed, etc.]

Validity of regulations by Secretary of Interior. In U. S. v. McMurray, (1910) 181 Fed. 723, it was held that regulations by the Secretary of the Interior were void which required lessees of coal and asphalt lands to mine on each lease 3,000 tons the first year,

4,000 tons the second, 7,000 tons the third, 8,000 tons the fourth, and 15,000 tons the fifth and each succeeding year, or pay the royalties on such quantities if not mined. and prescribing that a failure to do so would subject the lease to cancellation.

Vol. III, p. 469. [Continuance of authority no enrolment unless citizen.] Rights of intermarried whites. See under this title, vol. 3, p. 449, sec. 21.

Vol. III, p. 485. [Commission to five civilized tribes Creek roll — rules for descent.]

Descent and distribution.-Chapters 49 and 155, Mansf. Dig. (Ind. Ter. Annot. Stat. 1899, ch. 21, 58), entitled "Descent and Distribution," and "Wills and Testaments," respectively, as modified by Acts of Congress (Act May 2, 1899, ch. 182, 26 Stat. L. 81; Act June 30, 1902, ch. 1323, 32 Stat. L. 500), were in force in the Creek Nation on the 13th day of November, 1905. In re Brown, (1908) 22 Okla. 216, 97 Pac. 613.

Where a child was born to citizens of the Creek Nation on May 6, 1901, died in November, 1901, was enrolled by the commission on Oct. 8, 1902, allotment selected on April 28, 1904, and patent issued to his heirs on Oct. 10, 1904, it was held that the Arkansas law of descent and distribution embodied in chapter 49, secs. 2522-2545 of Mansfield's Digest (Ind. Ter. Annot. Stat. 1899, secs. 1820–1843), nominated the heirs of such deceased child and fixed the shares and portions the heirs derived in such allotment. Shulthis t. MacDougal, (1907) 162 Fed. 331.

Vol. III, p. 491.

Time section took effect. The provision of this section repealing the provisions of the original agreement made by the Creeks, in so far as it provided for descent and distribution according to the Creek law of descent and distribution, and substituting therefor chapter 49 of Mansfield's Digest (Ind. Ter. Annot. Stat. 1899, ch. 21), did not, by virtue of the joint resolution of Congress, take effect until July 1, 1902. De Graffenreid r. Iowa Land, etc., Co., (1908) 20 Okla. 687, 95 Pac. 624.

Dower. The noncitizen widow of an allottee of a quarter section of land of the Creek Nation, whose husband died in June, 1906, was held to be entitled to dower in his estate, and until it was assigned to her was entitled to remain and possess the home or house of her late husband, together with the farm thereto attached, free from all rent. Hawkins v. Stevens, (1908) 21 Okla. 849, 97 Pac. 567.

[Further application of homestead laws to Indians ented lands held in trust.]

Ejectment. An Indian patentee of public land, who was entitled to present and exclusive possession thereof, though the land was held in trust for him by the United States for a period of twenty-five years, at the end of which time he would acquire the fee, could maintain ejectment therefor alone without joining the United States; his title being sufficient to support a possessory action. Frazeer. Piper, (1908) 51 Wash. 278, 98 Pac. 760.

Restriction on alienation. Where an Indian held under this section, extending the homestead privilege to Indians, but inhibiting the alienation of land patented thereunder for a period of twenty-five years after patent, an attempted sale within that period was void. Frazee v. Piper, (1908) 51 Wash. 278, 98 Pac. 760.

Vol. III, p. 492, sec. 1, note.

Construction of statute. Under the general Indian Allotment Act of 1887, a continuing power was vested in the President, which

Laws governing issuance of patent.Though an Indian entered upon public land under Act Cong. March 3, 1875, ch. 131, 18 Stat. L. 402, 3 Fed. Stat. Annot. 490, extending the privileges of the homestead laws to Indians who have abandoned their tribal relations, and prohibiting alienation until five years after patent is issued, but was not entitled to make final proof until after the enactment of this section continuing the homestead privilege but extending the prohibition of alienation to twenty-five years, it was held that the patent was issuable under the latter Act so that the twenty-five years' prohibition of alienation applied to such land. Frazee v. Piper, (1908) 51 Wash. 278, 98 Pac. 760.

was not exhausted by the first order for allotments. U. S. v. Fairbanks, (1909) 171 Fed. 337, 96 C. C. A, 229.

Vol. III, p. 493, sec. 2.

Vol. III, p. 493, sec. 2.

Right to allotment.

INDIANS.

Where the mother of P., a Walla Walla Indian, married an Iroquois, and P., who was born within the Walla Walla region, was a minor when her mother again married a French Canadian, but never severed her tribal relations, which were subsequently expressly recognized by a general Indian council, it was held that the marriage of her mother did not deprive P. of the right to select lands held for allotment in the Umatilla Indian reservation for herself and her children. Smith v. Bonifer, (1907) 154 Fed. 883, affirmed (1909) 166 Fed. 846, 92 C. C. A. 604.

In La Clair v. U. S., (1910) 184 Fed. 128, it was held that the plaintiffs were not debarred from the right to receive allotments on the Yakima reservation by the fact that their parents had received allotments on the Puyallup reservation as heads of families, and that the plaintiffs were named in the patents as members of such families.

Recovery of lands from divorced wife. In Morrisett v. U. S., (1904) 132 Fed. 891, it appeared that the plaintiff, an Indian of the Walla Walla tribe, selected and claimed the allotment to him of 160 acres of land in the He alUmatilla reservation as the head of a family consisting of himself and his wife. leged that through the misrepresentation of his wife that she was a single woman, eighty acres of the tract so selected was allotted to her, and the remainder only to him as a single His wife afterwards obtained a diperson. It was held that the extra allotment of eighty acres to which the plaintiff was at the time entitled under the law resulted from his status as a married man, and that after he had lost such status, presumably through his own fault, he had no standing in equity

vorce.

to recover from his wife the land which, if
allotted to him, would have been on her ac-
count, if not in her right.

Allotment to adopted members of tribe. –
In La Clair v. U. S., (1910) 184 Fed. 128, it
appeared that the plaintiffs, who were for-
merly members of the Puyallup tribe of In-
dians, but were of Yakima half blood, were
invited by the Yakimas to become members
of that tribe for the purpose of sharing in the
allotment of the lands of their reservation in
severalty, which they did, having been for-
mally adopted by the tribe in accordance with
The Indian agent and the al-
its customs.
lotting agent were fully advised of such ac-
tion, which was taken with their approval,
and with full knowledge of the facts recom-
mended the plaintiffs for allotments, and their
recommendation was approved by the Secre-
tary of the Interior, and patents were issued
to the plaintiffs, which recited that they were
Indians "residing on the Yakima Indian res-
ervation," who had been allotted land therein.
None of plaintiffs had received allotments
elsewhere. The lands have since been for the
most part resided upon and improved by the
allottees, and have become valuable. It was
held that the things done were all that were
required to make plaintiffs members of the
Yakima tribes, and that, even if official rati-
fication of the adoption was required, the ac-
tion of the department amounted to such
ratification.

Person born after Act passed. The fact that a member of an Indian tribe was born after the passage of this Act or of the Nelson Act of 1889 (Act Jan. 14, 1889, ch. 24, 25 Stat. L. 642), does not exclude such persons from the right to an allotment under either of such Acts. U. S. v. Fairbanks, (C. C. A. 1909) 171 Fed. 337.

Vol. III, p. 494, sec. 5. [Patent to issue, etc.]

-

see

Validity of restrictions on alienation. - Restrictions placed by Act of Congress upon the alienation by Indians of lands allotted to them in severalty, and embodied in the patents issued for such lands, are pursuant to a general and beneficent policy of the government for the protection of the Indians, and Nelson v. John, (1906) 43 Wash. are valid.

as

Although

term

Right to maintain trespass. To the same effect as the origthe government by this Act holds in trust the Taxation. U. S. v. Thurston County, legal title to land allotted in severalty to an inal note, Indian, the latter, who is in the rightful possession of the land and has the beneficial use (1906) 143 Fed. 287. 74 C. C. A. 425, retherein, may recover damages for an unlawSmith v. Mosgrove, versing (1905) 140 Fed. 456. ful trespass upon it. - The "heirs." (1908) 51 Ore. 495, 94 Pac. 970. White persons "heirs," as used in the first paragraph of Reed v. this section, includes white persons adopted as members of a tribe of Indians. Clinton, (1909) 23 Okla. 610, 101 Pac. 1055. Jurisdiction of state courts. So long as the United States recognizes the national character of the Indians and that they are under the protection of treaties and laws of Congress, their property is outside the operation of state laws, and the state courts have no jurisdiction over controversies concerning the titles to Indian allotments while the same are held in trust by the United States. Smith v. Mosgrove, (1908) 51 Ore. 495, 94 Pac. 970. Title and control. Under this Act the United States retains title and control over

483, 86 Pac. 933. Indian lands. Where a of Conveyance Indian of land allotted to conveyance by an him was void because the title remained in the United States. the fact that subsequently the Indian obtained a patent and could convey did not inure to the benefit of the purchaser; the rule that where a vendor having no title sells and title subsequently prowhere such sale was cured by him inures to the benefit of the purchaser, not applying prohibited by law. Starr v. Long Jim, (1909) 52 Wash. 138, 100 Pac. 194.

1141

the allotted lands during the trust period without any right in the allottee, except to occupy and cultivate the lands under a paper or writing showing that at a particular time in the future, unless extended by the President, the allottee would be entitled to a patent for the fee. U. S. v. Gardner, (1904) 133 Fed. 285, 66 C. C. A. 663; Bond v. U. S., (1910) 181 Fed. 613.

Effect of allotment. An Indian allottee by accepting an allotment does not cease to be a ward of the government, but still remains in a condition of pupilage and dependency; the determination of all disputes concerning the allotment, its occupancy and possession, and the general control of the Indian remaining within the jurisdiction of the Secretary of the Interior. Bond v. U. S., (1910) 181 Fed. 613.

Right of United States to maintain suit. — The United States may maintain a suit in its own name to cancel a deed to allotted Indian lands, although made under an order of court, if the sale was in violation of the statutory restrictions on alienation. U. S. . Bellm, (1910) 182 Fed. 161. See also U. S. v. Dooley, (1906) 151 Fed. 697.

Cancellation of patents. Where the Interior Department by its officers and agents has recognized the right of Indians to allotments of land as members of a tribe, after full investigation, with full knowledge of the facts and without fraud, and allotments have been made and patents issued to the allottee, the department is without authority to subsequently cancel such patents because of a change in its interpretation of the law; nor

is there any equity which warrants a court in canceling the patents at suit of the government, the allotment being satisfactory to the tribe from whose lands they were made. La Clair . U. S., (1910) 184 Fed. 128.

Title of allottee. The selection of and the filing upon an allotment of land are the inception of the title of the Indian allottee or his heirs, and when the patent, which is only the evidence of title, is issued, it relates back to the inception of the title. Hooks . Kennard, (1911) 28 Okla. 457, 114 Pac. 744.

Construction of proviso. The proviso to this paragraph does not contemplate that the President may extend the period of twentyfive years as to all trust patents issued to Indian allottees of land, but only that such extension may be made in particular cases, in the discretion of the President. (1905) 25 Op. Atty. Gen. 483.

Power to will. It has been held that an allottee under this Act who died within the twenty-five year period had no power to devise his interest in the land allotted. In re House, (1907) 132 Wis. 212, 112 N. W. 27.

Dower. The widow of an Indian to whom an allotment of lands in severalty had been made, as authorized by this Act, is entitled to dower in such lands. Wheeler r. Petite, (1907) 153 Fed. 471.

Effect of citizenship. — The conferring of the rights of citizenship upon an Indian allottee does not authorize him to alienate or lease the land allotted to him, or to make any contract in relation thereto in violation of this section. Williams v. Steinmetz, (1905) 16 Okla. 104, 82 Pac. 986.

Vol. III, p. 495, sec. 5. [Laws of descent and partition.]

Construction. The statute of Kansas relating to descent (Gen. Stat. 1889, ch. 33, secs. 20, 21, 29), which by this section is made to govern the descent of lands allotted in severalty to the members of certain tribes in Indian Territory, provides that if an intestate leaves neither husband, nor wife, nor issue, his estate shall go to his parents, and, if his parents be dead, shall be disposed of in the same manner as if they, or either of them, had outlived the intestate and died in the ownership and possession of the portion thus falling to their share, or to either of them, and that "children of the half blood shall inherit equally with children of the whole blood." It has been held that the word "children," as so used, should be construed as meaning "kindred," and that under such provision, where an Indian woman, whose parents were dead, died unmarried and without issue, but leaving a half-brother, he inherited her land, to the exclusion of her uncles and cousins. Finley v. Abner, (C. C. A. 1904) 129 Fed. 734.

Minnesota. Under this Act where the allottee of land in Minnesota dies after his trust patent has issued, his allotment descends to his heirs, as provided by the laws of that state, to be ascertained by the probate court of the county in which the lands are located. U. S. v. Park Land Co., (1911) 188 Fed. 383.

Washington. Under the laws of descent of Washington which by this section are made applicable to allotted and patented Indian lands therein, the estate of a Puyallup Indian, allotted land under a patent from the United States which contained restrictions on alienation, and provided for forfeiture upon neglect to till the soil or on return to a nomadic life, was an inheritable estate in the lands on his death in 1888. Little Bill v. Swanson, (1911) 117 Pac. 481.

Right to partition land.—In U. S. r. Bellm, (1910) 182 Fed. 161, it was held that the proviso in this paragraph of section 5, adopting the laws of descent of Kansas, was merely for the purpose of providing a rule by which the heirs should be determined, and that the partition statutes were adopted only so far as they provided for a division of the land in case the heirs could not agree to hold it in common; that there was no intention of abrogating the trust in any case, and that the clause "except as herein otherwise provided" excluded the application of a pro. vision of a state partition statute authorizing a sale of the land where it could not be advantageously divided; and that such a sale of land in the Indian Territory, although under an order of court based on the Kansas statute, was null and void.