Vol. X, p. 151, sec. 22.

The word "person," as used in this section, includes members, citizens, and freedmen. Hancock v. Mutual Trust Co., (1909) 24 Okla. 391, 103 Pac. 566.

Alienation by heirs.-Lands allotted, homestead and surplus, under the provision of this section, in the name of a deceased mem

Vol. X, p. 151, sec. 23.

Jurisdiction of court over Secretary of Interior. The fact that the legal title to allottable Indian lands is still in the govern ment does not defeat the jurisdiction of a court over a suit to compel the Secretary of the Interior to undo, as wholly unwarranted and unauthorized by law, his action in summarily erasing from the approved rolls of citizenship in the Choctaw and Chickasaw Nations the name of one who has received an allotment certificate and is in possession of the land. Garfield v. U. S., (1908) 211 U. S. 249, 29 S. Ct. 62, 53 U. S. (L. ed.) 168, affirming (1907) 30 App. Cas. (D. C.) 177.

Burden of proof. In an action of ejectment by an allottee of the Chickasaw tribe of Indians, where the plaintiffs, in support of their title, show that the lands in controversy

ber of the Choctaw tribe of Indians, are alienable by his heirs after lawful selection, prior to the lapse of one, three, or five years, and prior to the issuance of a certificate or patent. Hancock v. Mutual Trust Co., (1909) 24 Okla. 391, 103 Pac. 566.

were allotted to them and certificates of allotment issued to them therefor, and that said certificates have never been canceled, and where the defendants' only defense to the action is that their grantor selected said lands as his allotment before the same were allotted to plaintiffs, but admit that the selection of said lands as allotment for their grantor has been canceled by the Secretary of the Interior, the burden is upon defendants to show facts rendering the order of cancellation invalid in order to overcome the presumption of plaintiffs' right to possession of the lands arising from the certificates of allotment to them, and obtaining by reason of section 23. Sorrels v. Jones, (1910) 26 Okla. 569, 110 Pac. 743.

Review of judgment of citizenship court. No authority has been conferred upon the Secretary of the Interior by this section and Act of April 26, 1906, 34 Stat. L. 137, 1909

Vol. X, p. 154, sec. 31.

Constitutionality. This and the following two sections, establishing a Choctaw and Chickasaw citizenship court for the purpose of determining citizenship in such tribes, and providing the procedure therein, are constitutional. Wallace v. Adams, (1905) 6 Ind. Ter. 32, 88 S. W. 308. Jurisdiction.

In (1907) 26 Op. Atty. Gen. 127, it appeared that R. and T. were children of a white father by his third wife, a white woman, his first and second wives having been Choctaws. Both parents and these children lived in the Choctaw Nation and were recognized and regarded as Choctaw citizens. The children were enrolled by the Choctaw Committee on Citizenship in 1892. Their application to the Commission to the Five Civilized Tribes for enrolment under the Act of June 10, 1896, 29 Stat. L. 321, 339, 3 Fed. Stat. Annot. 430, was denied, which decision was reversed by the United States court in the Indian Territory, and its judgment affirmed by the Supreme Court, (1899) 174 U. S. 445, 469, 19 S. Ct. 722, 43 U. S. (L. ed.) 1041. Subsequently, on appeal by

Supp. Fed. Stat. Annot. 190, to review the judgments of the citizenship court. (1907) 26 Op. Atty.-Gen. 127.

the Nation under the Act of July 1, 1902, 32 Stat. L. 641, 646-649, their application was denied by the Choctaw and Chickasaw citizenship court. It was held that the citizenship court had jurisdiction and that its judgment was final.

Effect as to persons not parties. A decree of the Choctaw and Chickasaw citizenship court in a test case against ten persons who had been admitted to citizenship or enrolment by the United States courts in the Indian Territory, vacating, for certain irregu larities, the judgments of those courts, was held to be binding on a person similarly situated who was not made a party, but who did not avail himself of his privilege, under the Act of July 1, 1902, to transfer his individual case from the territorial court to the citizenship court, but chose to abide the outcome of the case against the ten representatives of his class. Wallace r. Adams, (1907) 204 U. S. 415, 27 S. Ct. 363, 51 U. S. (L. ed.) 547. affirming (C. C. A. 1906) 143 Fed. 716.

Duty of transferring cause to citizenship court. The annulment by the Choctaw and

1909 Supp., p. 191, sec. 2.

1909 Supp., p. 192, sec. 3.

Construction of statute. The language of this section constitutes a legislative interpretation of article 9 of the treaty of Aug. 11, 1866, and supersedes pro tanto that treaty. Garfield v. U. S., (1909) 34 App. Cas. (D. C.) 70.

The Secretary of the Interior, after due notice and a hearing, has authority to reverse his action in enrolling the names of persons claiming to be members of the Cherokee Nation and to cancel allotment certificates issued to them, where such action was taken before

1909 Supp., p. 194, sec. 10.

Construction of section. The provisions of this section in regard to the control of the tribal schools and the lands and property pertaining thereto by the Secretary of the Interior, and the use of the tribal funds for the purpose of defraying the necessary expenses of such schools, is purely a governmental and administrative matter, involving no taking of

1909 Supp., p. 195, sec. 11.

Control of finances. The Secretary of the Treasury may safeguard all disbursements on behalf of the Seminole Nation now authorized and require that all Seminole warrants issued after Jan. 1, 1907, shall be approved by the

1909 Supp., p. 198, sec. 18.

Suit to cancel patents or deeds. A suit by the United States for the use of the Creek Nation of Indians to cancel patents or deeds to town lots belonging to said nation in its tribal capacity and sold by the United States for its benefit under Act March 1, 1901, ch. 676, sec. 10, 31 Stat. L. 864, on the ground that such deeds were obtained by fraud for less than the price at which lots were authorized by such Act to be sold, and to recover such lots for the tribe, is within the authority given by this section, which authorizes the Secretary of the Interior to bring suit in the name of the United States for the use of any of the Five Civilized Tribes "for the collection of any moneys or recovery of any lands claimed by any of said tribes." U. S. v. ReaRead Mill, etc., Co., (1909) 171 Fed. 501.

1909 Supp., p. 199, sec. 19.

Right of Congress to impose restrictions. — The lands of the Seminole Nation having been granted to it merely in its corporate capacity as a nation, the United States gov. ernment may, as a condition of their allotment in severalty and the extinguishment of its own ultimate interest therein, impose the restrictions upon their alienation provided by this section. (1907) 26 Op. Atty.-Gen. 340.

Bond given by lessee of Indian lands. It is competent for the Secretary of the Interior to require by rules and regulations that all payments under a lease shall be made to an Indian agent, and that the lessee shall give a bond to the United States to secure the performance of the lease, and in such case the United States may maintain an action against the lessee and his surety on the bond for

1909 Supp., p. 199, sec. 20.

Jurisdiction of Secretary of Interior. — Leases of allotments of Indian minors in the Indian Territory, confirmed and approved by the trial courts of that territory since April 26, 1906, are not subject to the approval or

1909 Supp., p. 200, sec. 22.

Constitutionality. The rights of the Creek Indians in the Indian Territory who were made citizens of the United States by the Act of March 3, 1901, ch. 868, 31 Stat. L. 1447, with all of the rights, privileges, and immunities of such citizens, were not unconstitutionally impaired by this section, extending the prohibition against the alienation of allotted lands by the allottee or his heirs without the approval of the Secretary of the Interior, created by the supplemental Creek agreement of June 30, 1902, ch. 1323, 32 Stat. L. 500, beyond the five-year limitation therein expressed. Tiger v. Western Invest. Co., (1911) 221 U. S. 286, 31 S. Ct. 578, 55 U. S. (L. ed.) 738, reversing (1908) 21 Okla. 630, 96 Pac. 602.

Prosecution by private counsel. The provision of this section authorizing the Secretary of the Interior to bring suit in the name of the United States for the use of any of such tribes for the collection of any moneys or the recovery of any lands claimed by it, and "to pay from the funds of the tribe interested the costs and necessary expenses incurred in maintaining and prosecuting such suits," is within the power of Congress, and under such authority the secretary may employ private counsel to conduct such suits; the United States having no interest therein as a suitor. And in any event a defendant in such a suit cannot be heard to object that it was not brought by a law officer of the government. U. S. r. Rea-Read Mill, etc., Co., (1909) 171 Fed. 501.

breach of such conditions. U. S. v. Comet Oil, etc., Co., (1911) 187 Fed. 674.

Taxation. Under this section providing that "all lands upon which restrictions are removed shall be subject to taxation, and the other lands shall be exempt from taxation as long as the title remains in the original allottees," and Act May 27, 1908, ch. 199, sec. 4, 35 Stat. L. 313, 1909 Supp. Fed. Stat. Annot. 233, which provides that "all land from which restrictions have been or shall be removed shall be subject to taxation and all other civil burdens as though it were the property of other persons than allottees of the Five Civilized Tribes," the exemption from taxation does not exist any longer, in any case, than the time during which the land is inalienable. U. S. v. Shock, (1911) 187 Fed. 862.

disapproval of the Secretary of the Interior, but the orders of the courts confirming and approving them are final. Morrison r. Burnette, (1907) 154 Fed. 617, 83 C. C. A. 391.

Effect upon alienation of land. — The prohibition against the alienation of allotted lands by the allottee or his heirs, without the approval of the Secretary of the Interior, created by the supplemental Creek agreement of June 30, 1902, ch. 1323, 32 Stat. L. 500, was continued, as to conveyances by fullblooded Indian heirs, beyond the five-year limitation therein expressed by this section, which, after empowering adult heirs of a deceased Indian of either of the Five Civilized Tribes to convey their inherited lands, provided that "all conveyances made under this provision by heirs who are full-blooded Indians are to be subject to the approval of the Secretary of the Interior," and in section 29 repealed all inconsistent legislation. Tiger

This section had the effect of removing the restrictions on alienation imposed by section 19 of this Act on lands allotted to Indians of the full blood on their descent to either adult or minor heirs of less than full blood, and on such descent the lands become alienable and therefore taxable. U. S. v. Shock, (1911) 187 Fed. 862.

A deed to an undivided interest in the allotment of a citizen of the Creek Nation, set apart to her under Act of June 28, 1898, ch.

1909 Supp., p. 201, sec. 24.

Effect on existing allotments. — This section is prospective in its operation, and does not authorize the highway officials of the state to take and condemn without compensation a strip one rod on each side of the sec

517, 30 Stat. L. 495, and who died in possession thereof prior to Act of March 1, 1901, ch. 676, 31 Stat. L. 861, made, executed, and delivered by heirs of said allottee after the expiration of five years from the ratification of the agreement with the Creek Nation contained in said Act of March 1, 1901, and after Act of April 26, 1906, ch. 1876, 34 Stat. L. 145, is valid. Sanders v. Sanders, (Okla. 1909) 117 Pac. 338.

The term "inherited." -See Shulthis v. McDougal, (1909) 170 Fed. 529, 95 C. C. A. 615, affirming (1907) 162 Fed. 331, set out in the original note.

tion line traversing the allotment of a fullblood Indian, whose land was allotted prior to the passage of the Act. Good v. Keel, (Okla. 1911) 116 Pac. 777.

1909 Supp., p. 225, sec. 8.

Necessity for approval of Secretary of Interior. — The approval of a deed by the Secretary of the Interior is essential to the

1909 Supp., p. 232, sec. 1.

Right of United States to enforce restrictions. The plan of the United States government in dissolving the Five Civilized Tribes of Indians and distributing their land in severalty was a great governmental project, having for its object the social and industrial advancement of the Indians, and the various Acts pertaining thereto must be construed in consonance with such purpose and not merely as real estate transactions. The relation of government to the Indians is not to be measured by the law governing the ordinary relation of guardian and ward, nor are the limitations imposed on the alienation of land governed by the strict rules of law relating to grantor or grantee, but the United States, by virtue of its peculiar relationship to the Indians and to prevent the policy to be worked out through such legisla

tions on alienation by suit. The United States may maintain a suit to set aside a conveyance of lands allotted to an Indian of the Osage tribe in Oklahoma, in violation of the restrictions imposed by Congress on their alienation. U. S. v. Aaron, (1910) 183 Fed. 347.

-

Restriction of alienation follows land. The provision in this clause against alienation is impersonal to the allottee, and runs with the land, and is effective against alienation after the land has descended to the heirs of the allottee. U. S. v. Aaron, (1910) 183 Fed. 347.

validity of the deed, and without it the grantee acquires no title. U. S. v. Aaron, (1910) 183 Fed. 347.

tion from being defeated, may enforce such restrictions on alienation in the courts although retaining neither a legal nor an equitable estate in the lands after the allotment. U. S. r. Allen, (C. C. A. 1910) 179 Fed. 13, reversing (1907) 171 Fed. 907.

The sixty days specified in this section refers entirely to the status of lands as specified and fixed by this section, and the other sections take effect as of the date of the approval of the Act, unless some other date is specified. (1909) 27 Op. Atty.-Gen. 530.

Sale by probate court. By reason of this section and sections 2 and 6 of this Act the restrictions on the alienation of the allotments of minor Indians of the Creek tribe of Indians, having less than half Indian blood, are removed, and allotments of such allottees may be sold under the order and supervision

of the probate courts of the state. Jefferson v. Winkler, (1910) 26 Okla. 653, 110 Pac. 755.

Minors. A minor within the meaning of that term as used in this section and sections 2 and 6 of this Act includes males under the age of twenty-one years and females under the age of eighteen years, and the marriage of such minor does not confer upon him or her the authority to sell his or her allotted lands independent of the jurisdiction and supervision of the probate courts of the state. Jefferson v. Winkler, (1910) 26 Okla. 653,

110 Pac. 755. See also Kirkpatrick r. Bur gess, (Okla. 1911) 116 Pac. 764.

Power of Congress to extend period of prohibited alienation. It is within the power of Congress to enlarge the period within which an Indian allottee is prohibited from alienating his land beyond that imposed when the allotment was made, so long as the land is held by the allottee, although in the meantime he may have been made a citizen. U. S. r. Allen, (C. C. A. 1910) 179 Fed. 13, reversing (1909) 171 Fed. 907; U. S. r. Shock, (1911) 187 Fed. 870.

ardson, (1911) 28 Okla. 408, 114 Pac. 710; Gleason r. Wood, (1911) 28 Okla. 502, 114 Pac. 703; Choate v. Trapp, (1911) 28 Okla. 517, 114 Pac. 709; Alexander r. Rainey, (1911) 28 Okla. 518, 114 Pac. 710. See also under this title, 1909 Supp., p. 199, sec. 19.

made by an Indian allottee in violation of the statutory restrictions on alienation. U. S. r. Allen, (C. C. A. 1910) 179 Fed. 13, reversing (1909) 171 Fed. 907.

1909 Supp., p. 235, sec. 9.

Construction of statute. This section provides that all allotted lands of enrolled fullblood Indians of the Five Civilized Tribes, and enrolled mixed bloods or three-quarters or more Indian blood "shall not be subject to alienation . prior to April 26, 1931, except that the Secretary of the Interior may remove such restrictions." It further provides that "nothing herein shall be construed to impose restrictions removed from land by or under any law prior to the passage of this Act." It has been held that the latter provision does not apply to the supplemental agreement with the Creek Indians approved June 30, 1902, ch. 1323, 32 Stat. L. 500, under which the restrictions on alienation of surplus allotments expired Aug. 8, 1907, but only to restrictions theretofore removed by the Secretary of the Interior, under authority of law, and to restrictions removed by Act of Congress theretofore passed, not for the purpose of imposing but of removing restrictions imposed by prior legislation; that under the first provision all allotments, whether of homestead or surplus lands, made to enrolled full bloods and mixed bloods of three-quarters or more Indian blood are not alienable nor

suits, and such power extends to suits relating to allotments which were freed from restrictions by section 1 of the Act in respect to conveyances or contracts previously made. U. S. v. Allen, (C. C. A. 1910) 179 Fed. 13.

taxable until the restrictions thereby imposed have been removed. U. S. v. Shock, (1911) 187 Fed. 870.

Taxation of lands inherited from allottees. -The provision of this section that "the death of an allottee of the Five Civilized Tribes shall operate to remove all the restrictions upon the alienation of said allottees' land" is qualified by the further provision, first, that the full-blood heirs of such allottee cannot dispose of their interest in such inherited lands without the approval of the court having jurisdiction of the settlement of the estate of the deceased allottee, and second, if the deceased allottee be of one-half or more Indian blood, leaving children surviving him born since March 4, 1906, the homestead remains inalienable during the life or lives of such children, or until April 26, 1931, unless restrictions are sooner removed by the Secretary of the Interior. In view of such provisions, the interests of such full-blood heirs and the homesteads of deceased allottees of one-half or more Indian blood leaving children born since March 4, 1906, are not alienable or taxable until such restrictions are removed, but all other interests in such in