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Vol. III. p. 496, sec. 6.

Vol. III, p. 496, sec. 6.

INDIANS.

An Indian alWhen citizenship attaches. lottee on the receipt of his first patent must be deemed within the provision of section 6 that, "upon the completion of said allotments and the patenting of the lands to said allottees," each allottee shall have the benefits of, and be subject to, the laws of the state where he resides, in view of the further grant of citizenship which that section extends to every allottee, and of the fact that the issue of the final patent provided for by section 5 was to be delayed for twenty-five years, when it was to be issued to the first patentee or his heirs. Matter of Heff, (1905) 197 U. S. 488, 25 S. Ct. 506, 49 U. S. (L. ed.) 848.

Effect of granting citizenship. — The grant of citizenship to the Indians was intended for their protection, and was not a renunciation by the United States of the authority which it had always exercised to adopt such measures as in its judgment were wise for the protection of the Indian in his rights. U. S. t. Allen, (1910) 179 Fed. 13, 103 C. C. A. 1.

Effect on laws of descent. Under the various provisions of this Act providing for the allotment of Indian lands, the laws of descent of the state apply to these lands. Guyatt v. Kautz, (1905) 41 Wash. 115, 83 Pac. 9.

Jurisdiction of state courts. The provision in this section and other sections of this Act, providing for the allotting of lands constituting an Indian reservation to the Indians in severalty, and the issuing of patents to the allottees therefor, and further providing that, upon the completion of said allotments and the issuing of patents to each of the allottees constituting the tribe, each allottee shall have the benefit of and be subject to the laws, both civil and criminal, of the state in which he may reside, upon completion of the allotments the state and the issuing of patents to each of the allottees, confers jurisdiction on courts to try and punish an allottee for any violation of the laws of the state, though the offense committed be one against the person or property of an Indian or other person within the limits of an Indian reservation. Er p. Savage, (1908) 158 Fed. 205; In re Now-ge-zhuck, (1904) 69 Kan. 410, 76 Pac.

877.

After public land has been allotted to an Indian under this Act he is not subject to prosecution for violating Act of Cong. Jan. 15, 1897, ch. 29, sec. 5, 29 Stat. L. 487, 3 Fed. Stat. Annot. 389, prohibiting the commission of rape within the limits of an Indian reservation, but which contains no express provision that it should be applicable to Indians residing on allotted lands, but is subject to the laws of the state in which the crime was alleged to have been committed. Kiva, (1903) 126 Fed. 879.

U. S. v.

Restrictions upon alienation contained in patents issued to Indian allottees of lands in severalty, as required by different Acts of Congress, were not repealed by this section.

Nelson v. John, (1906) 43 Wash. 483, 86 Pac.
933.

Federal control of proceeds of land after
citizenship. A patent issued to an Indian
allottee, pursuant to the treaty of Sept. 30,
1854, authorizing the President to assign land
to Indians with such restrictions on the power
of alienation as he may impose, stipulated
that neither he nor his heirs should sell the
tract without the consent of the President.
Regulations approved by the President pro-
vided that the proceeds of timber taken from
allotted lands should be deposited in a na-
tional bank subject to check of the Indian
owner of the allotment, countersigned by the
Indian agent. It has been held that, though
an allottee becomes a citizen under this sec-
tion, his power to dispose of the proceeds re-
ceived from the sale of his timber is subject
to the approval of the Indian agent. Tom-
kins v. Campbell, (1906) 129 Wis. 93, 108
N. W. 216.

Alaska Indians. - Under this Act those In-
dians or half-breeds in Alaska who have vol-
untarily taken up their residence separate
and apart from any tribe of Indians, and
have adopted the habits of civilized life, be-
come thereby citizens of the United States by
In re Minook, (1904) 2
naturalization.

Alaska 200.

Government control of liquor traffic not disturbed. Contra to the original note, see Matter of Heff, (1905) 197 U. S. 488, 25 S. Ct. 506, 49 U. S. (L. ed.) 848, set out in note to this title, vol. 3, p. 384, sec. 1. - When lands comWho become citizens. posing an Indian reservation have been al lotted and patented in severalty among the members of the band or tribe of Indians occupying such lands, each and every allottee becomes a citizen of the state wherein such reservation is located, and subject to the laws thereof. Moore v. Nah-con-be, (1905) 72 Kan. 169, 83 Pac. 400.

Taxation. Land allotted under an Indian treaty which exempts such land from levy, sale, or forfeiture until the state legislature shall, with the consent of Congress, remove the restriction, can no longer escape taxation after the Indian patentee has become a citizen under this section, which in addition to the grant of citizenship provides that Indians to whom allotments have been made shall have the benefit of, and be subject to, the laws, both civil and criminal, of the state or territory in which they may reside, and the ten years during which Congress, by the Act of March 3, 1893, 27 Stat. L. 612, 633, ch. 209, postponed the operation of the provision of Wash. Laws 1889, 1890, p. 499, granting the power of alienation "in like manner and with like effect as any other person may do under the laws of the United States and of this state," and removing all restrictions in reference thereto, have expired. Goudy r. Meath, (1906) 203 U. S. 146, 27 S. Ct. 48, 51 U. S. (L. ed.) 130, affirming (1905) 38 Wash. 126, 80 Pac. 295.

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Vol. III, p. 500, sec. 3.

Action for use and occupation. - An Indian may recover, in an action for mesne profits, the rental value of lands allotted to him by the United States government, from a person who has used and occupied the same under a lease that is void because not sanctioned and approved by the officers of the Interior Department. Phillips . Reynolds, (1907) 79 Neb. 626, 113 N. W. 234.

Approval by Secretary of Interior. - This section does not authorize the leasing of the lands embraced within an Indian allotment, unless it is made to appear to the Secretary of the Interior that the allottee cannot, by reason of age or other disability, personally and with benefit to himself occupy or improve his allotment or any part thereof. Williams v. Steinmetz, (1905) 16 Okla. 104, 82 Pac. 986.

The statutory requirement that leases made by Indian allottees of the Cherokee and other civilized tribes in the Indian Territory should be subject to approval by the Secretary of the Interior before being effective confers on the secretary only the power of approval or disapproval, and gives him no authority to initiate or make a lease, or to change or ignore its provisions, and his approval of an assign ment of a lease, made without the consent of the lessor, in direct violation of its conditions, does not validate such assignment. Midland Oil Co. v. Turner, (1910) 179 Fed.

Vol. III, p. 501, sec. 5.

Jurisdiction of state courts to determine descent. Where, in the proceedings for the settlement of the estate of an Indian allottee, there being other property than the land which warranted administration, the parties, by stipulation and mutual consent, submitted to the state court the question whether S. was heir of the decedent, it was held that the court had jurisdiction to determine the question, though the judgment did not transfer the title to, or disturb the possession of, the allotted land held by the United States in trust for decedent and his heirs; the government being entitled to recognize, or refuse to recognize, the order as conclusive or prima facie evidence of the fact. Smith v. Smith, (1909) 140 Wis. 599, 123 N. W. 146.

Vol. III, p. 503, sec. 1.

Repeal. In so far as this Act conferred jurisdiction upon the courts to determine questions of heirship and descent as they may affect allotted lands during the trust period it was repealed by implication by the Act of June 25, 1910, ch. 431, 36 Stat. L. 855, making the Secretary of the Interior a special tribunal to determine such questions and declaring that his decision shall be "final and conclusive," thus making the jurisdiction conferred upon him exclusive. Bond r. U. S., (1910) 181 Fed. 613; Pel-Ata-Yakot r. U. S., (1911) 188 Fed. 387.

74, 102 C. C. A. 368, modifying (1909) 167 Fed. 646.

Where a party holds a lease of Indian lands which has been approved by the proper officers of the Interior Department, such lease containing a provision that the party holding the lease will not, at any time during the period for which the said lands and premises are leased, sublet the same to any person without the consent thereto of the party of the first part and the approval of the same by the Secretary of the Interior, a subleasing of the same without the consent of the Secretary of the Interior is void, and conveys no right by such subleasing, and the sublease cannot be enforced. The doctrine of estoppel between landlord and tenant does not apply. Reeves . Sheets, (1905) 16 Okla. 342, 82 Pac. 487.

A lease of an Indian allotment which has not been approved by the Secretary of the Interior is absolutely null and void; and where a party under such a lease plants the land to corn and cultivates it, and the cattle of the allottee, in connection with the cattle of another, break down the fence and destroy such corn, the lessee cannot recover for the value of his share thereof. The lease having been made in violation of a positive statute, the law will grant him no relief. Williams v. Steinmetz, (1905) 16 Okla. 104, 82 Pac. 986.

Legitimacy of issue. Though Act Cong. Feb. 8, 1887, ch. 119, 24 Stat. L. 390, 3 Fed. Stat. Annot. 496, declares Indians receiving allotments in severalty thereunder to be citizens of the United States, subject to the laws of the state in which they live, and Act Cong. March 3, 1885, ch. 319, 23 Stat. L. 340, makes the state law of alienation and descent applicable to such allotments, yet, under the direct provisions of this section the issue of a male and female Indian, who cohabited as husband and wife according to the custom of Indian life, is deemed legitimate, to determine the descent of land. Kalyton v. Kalyton, (1903) 45 Ore. 116, 74 Pac. 491, 78 Pac. 332; In re House, (1907) 132 Wis. 212, 112 N. W. 27; Smith v. Smith, (1909) 140 Wis. 599, 123 N. W. 146.

Retrospective effect. An invalid retrospective effect is not given to the provision of this section authorizing Indians claiming to be entitled to an allotment of land to prosecute, in the proper federal Circuit Court, any action in relation to their right thereto, by construing such Act to include a suit by an Indian to obtain an allotment to which she claims she was, at the time of the passage of such Act, entitled, under the Allotment Act of March 3, 1885, 23 Stat. L. 340, ch. 319, and to have canceled the alleged improper allotment of such land to another. Hy-Yu

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Vol. III, p. 503, sec. 1.

INDIANS.

Tse-Mil-Kin r. Smith, (1904) 194 U. S. 401,
24 S. Ct. 676, 48 U. S. (L. ed.) 1039, affirmed
(1902) 119 Fed. 114, 55 C. C. A. 216.

Exclusive federal jurisdiction.—State courts were not given jurisdiction of controversies necessarily involving a determination of the title, and, incidentally, of the right to the possession of Indian allotments while the same were held in trust by the United States, by the provision of the Act of Aug. 15, 1894, 3 Fed. Stat. Annot. 504 note, 28 Stat. L. 286, ch. 290, delegating to the federal Circuit Courts the power to determine such questions, since the purpose of that Act to continue the exclusive federal control over disputes concerning allotments which, prior to that Act, could only have been decided by the Secretary of the Interior, is manifested by its provision that a judgment or decree in any such controversy shall be certified by the court to the Secretary of the Interior, and by the provision of this section that in such suits "the parties thereto shall be the claimant as plaintiff and the United States as party defendant." McKay v. Kalyton, (1907) 204 U. S. 458, 27 S. Ct. 346, 51 U. S. (L. ed.) 566, reversing (1904) 45 Ore. 116, 74 Pac. 491, 78 Pac. 332.

Under this section the United States Circuit Courts had jurisdiction of a suit by the only child of a deceased Indian to recover lands allotted to him in the Umatilla reservation under Act March 3, 1885, ch. 319, 23 Stat. L. 341, which provided that the lands allotted thereunder should be held in trust by the United States for the sole use and benefit of the allottee, "or in case of his decease, of his heirs, according to the laws of the state of Oregon," although it was alleged that the lands were withheld by complainant's stepmother under a claim of dower Patawa v. U. S., (1904) 132 Fed. therein.

893.

The District Court of the territory of Oklahoma had jurisdiction of suits brought therein by persons of Indian blood or descent to establish their rights to allotments, pursuant to this section. Young v. U. S., (1910) 176 Fed. 612.

- In an action brought by Scope of action. a person claiming the right to an allotment of land on an Indian reservation against the United States to establish such right, as authorized by this section the jurisdiction of the court is not restricted to a determination of the right of the plaintiff to any allotwhere a particular tract is ment; but, claimed, the right of any adverse claimant may also be litigated, and for that purpose he may, and should, be joined as a party deU. S. r. Fairbanks, (1909) 171 Fed. fendant. Where several claim337, 96 C. C. A. 229. Joinder of actions. ants of allotments sued jointly to establish their rights to separate allotments in a District Court of the territory of Oklahoma, it was held that a demurrer to their petition was properly sustained by the District Court, where one of the grounds of the demurrer was a misjoinder of causes of action. Young v. U. S., (1910) 176 Fed. 612.

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was

Parties. The United States cannot be regarded as a necessary party to a suit brought under the Act of Aug. 15, 1894, 28 Stat. L. 286, 305, ch. 290, prior to the amendatory Act of Feb. 6, 1901, 31 Stat. L. 760, ch. 217, to determine the respective rights of two Indians, each claiming under the Allotment Act of March 3, 1885, in view of the provision of the Act under which the action brought, that the judgment or decree of the court in favor of any claimant to an allotment upon being properly certified to the Secretary of the Interior, shall have the same effect as if the allotment had been allowed and approved by the Secretary. Hy-Yu-TseMil-Kin r. Smith, (1904) 194 U. S. 401, 24 S. Ct. 676, 48 U. S. (L. ed.) 1039, affirmed (1902) 119 Fed. 114, 55 C. C. A. 216.

The jurisdiction of suits by Indians, involving their right to lands allotted under any law or treaty, conferred on the Circuit Courts of the United States by this section, is exclusive, but in all such actions the United States must be made a party defendant as therein provided. Parr v. U. S., (1904) 132 Fed. 1004.

In an action Decision of land department. brought under this section, which gives to a person in whole or in part of Indian blood or descent the right to bring such action to establish the right to an allotment of land by virtue of an Act of Congress, which he claims to have been unlawfully denied him, the decision of the Land Department, upon the question whether or not the plaintiff when a person of mixed blood was recognized as a member of the tribe entitled to the benefit of the Act, will not in all cases be followed, since in case of an adverse ruling such rule would leave the plaintiff without the remedy which it was the purpose of the Waldron v. U. S.. statute to give him. (1905) 143 Fed. 413.

Appointment of receiver. Under this section the courts have power to appoint a receiver for the lands involved in a suit where a proper showing therefor is made. Smith v. U. S., (1905) 142 Fed. 225.

Selection of specific land necessary before suit. This section contemplates the selec tion of specific land for allotment by the claimant before the institution of a suit, upon which the judgment or decree may operate as Reynolds . U. S., a complete allotment. (1909) 174 Fed. 212, 98 C. C. A. 220. Right to share in tribal property. - Originally the test of the right of individual Indians to share in tribal lands and other tribal property was existing membership in the tribe; but this rule has been so broadened by Act March 3, 1875, ch. 131, sec. 15, 18 Stat. L. 420, 3 Fed. Stat. Annot. 490, and Act Feb. 8, 1887, ch. 119, sec. 6, 24 Stat. L. 390, 3 Fed. Stat. Annot. 496, and other Acts, as to have place individual Indians who have abandoned once existing, and tribal relations adopted the customs, habits, and manners of civilized life, upon the same footing in respect of this right as though they had maintained their tribal relations. Oakes v. U. S., (1909) 172 Fed. 305, 97 C. C. A. 139.

Vol. III, p. 505, sec. 7.

Approval of Secretary of the Interior.Under this section the approval of the Secretary of the Interior is necessary to the validity of any conveyance, whether by an adult or a guardian. U. S. v. Leslie, (1909) 167 Fed. 670.

Effect on trust. - Where lands were allotted to an Indian citizen under the Allotment Act of 1877, restraining alienation for twenty-five years, it was held that this section did not vacate the trust of such lands held by the United States, but that on the sale of the lands, with the consent of the Secretary of the Interior, by the heirs of the deceased allottee, the trust attached to the proceeds, which was only payable to such heirs under rules prescribed by the Interior Department. National Bank of Commerce t. Anderson, (1906) 147 Fed. 87, 77 C. C. A. 259.

Lien of judgment. — A judgment of the District Court against an adult Indian is not a lien upon his inherited lands situated in the county where such judgment is rendered.

Beall v. Graham, (1907) 75 Kan. 98, 88 Pac. 543.

Illegitimate child. — Where a child was born out of wedlock to an Indian woman to whom Indian reservation lands were allotted, and such child survived her, it was held that he was her heir at law. Beam v. U. S., (1907) 153 Fed. 474, affirmed (C. C. A. 1908) 162 Fed. 260.

Exemption from taxation. The proceeds of the sales of allotted lands by the Indian heirs of the allottees under this section, which have been deposited by direction of the Secretary of the Interior in a bank selected by the commissioner of Indian affairs to the credit of the heirs in proper proportions, subject to their checks only when approved by the agent or officer in charge, are held in trust by the United States for the same purposes as were the lands, and are exempt from taxation by any state or county for the same reason. U. S. v. Thurston County, (1906) 143 Fed. 287, 74 C. C. A. 425, reversing (1905) 140 Fed. 456.

Vol. III, p. 510. [No appropriation hereafter for sectarian schools.]

The declaration of policy that the government shall make “no appropriation whatever for education in any sectarian school," contained in the various Indian Appropriation Acts, has reference only to gratuitous appropriations of public moneys, and has no application to appropriations made to fulfil obligations under the Sioux treaty of April 29, 1868, 15 Stat. L. 635, 637, or to expenditures

Vol. III, p. 517, sec. 2.

Cattle issued for stockraising purposes. Under the Act of Congress ratifying agreements made with Indian tribes in Montana, including the Blackfeet, which provides inter alia for the issuance of cattle to such Indians for stockraising purposes, and that all such cattle and their increase shall bear the brand of the Indian Department, and shall not be sold, exchanged, or slaughtered except by consent of the agent in charge, an Indian to whom such cattle are issued acquires only a conditional ownership for the purposes stated in the Act, and it is the right and duty of the United States to protect such ownership, for which purpose it may main

of the income of the trust fund set apart by the Act of March 2, 1889, 25 Stat. L. 888, 894, 895, ch. 405, sec. 17, for the use of the Sioux Nation, in part consideration of cessions of lands to the United States. Quick Bear v. Leupp, (1907) 30 App. Cas. (D. C.) 151, affirmed (1908) 210 U. S. 50, 28 S. Ct. 690, 52 U. S. (L. ed.) 954.

tain an action in a federal court in behalf of an Indian from whom cattle so issued have been unlawfully taken; and such right is not affected by the fact that an Indian in whose behalf such an action is brought is a woman who is married to a white man, and has thereby become a citizen of the United States. but who remains on the reservation with her tribeit being expressly provided by this section that such marriage and citizenship shall not "impair or in any way affect the right or title of such married woman to any tribal property or interest therein." McKnight v. U. Š., (1904) 130 Fed. 659, 65 C.

C. A. 37.

Vol. III, p. 517. [Children of white man and Indian woman to have rights of mother.]

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Vol. X, p. 150, sec. 12.

Repeal. The provision in this section as to the twenty-one-year restriction was superseded as to full-blooded Indians by section 19 of the Act of April 26, 1906, 34 Stat. L. 137, 144. 1999 Supp. Fed. Stat. Annot. 199, which forbids full bloods to alienate, sell, dispose of, or encumber in any manner any of the lands allotted to them for the period of twenty-five years after the passage and ap

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Alienation of land. By reason of Act of Cong. June 28, 1898, ch. 517, sec. 29, 30 Stat. L. 507, 3 Fed. Stat. Annot. 453, and by this section, it has been held that a sale by a fullblood Choctaw Indian to a white man of a portion of her allotment before the removal of restrictions upon her power to alienate and an agreement to convey same when her restrictions are removed is void; and that notes executed by such Indian to the purchaser for

Indian allotment covered by a patent, without the approval of the Secretary of the Interior, whose authority to approve or disapprove such sales is not disturbed by this section.

governed by this section and the practice in the national courts, and not by the statutes of Arkansas or the practice in its courts. Laurel Oil, etc., Co. v. Galbreath Oil, etc., Co., (C. C. A. 1908) 165 Fed. 162.

and patents to be corrected.]

limitation of six years from the date of their issuance imposed by Act March 3, 1891, ch. 561, sec. 8, 26 Stat. L. 1099, 6 Fed. Stat. Annot. 526, on suits generally to cancel patents. La Clair v. U. S., (1910) 184 Fed. 128.

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land, and becomes part of the realty, and by reason of this section no materialman's lien can attach to it, since the only estate of the allottee in the land to which the building can and does attach is one that can neither be alienated by her nor subjected to any lien. Contracts for speculation. — See under this title, vol. 3, p. 455, sec. 29.

Control for sale of surplus allotment. under this title, vol. 3. p. 455, sec. 29.

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the purpose of indemnifying him against loss in the event she fails to convey said land after her restrictions are removed are also void; and recovery thereon cannot be had, although the purchaser paid the purchase price of the land at the time of the sale. Howard . Farrar, (1911) 28 Okla. 490, 114 Pac. 695. See also Simmons v. Whittington, (1910), 27 Okla. 356, 112 Pac. 1018.

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