D. H. WILSON, Gdn., Plaintiff in Error.

VS.

No. 2383.

ASA D. MORTON ET AL., Defendants in Error.

(Rendered November 14th, 1911.)

ERROR FROM THE DISTRICT COURT OF WASHIINGTON COUNTY.

JOHN J. SHEA, Trial Judge.-Affirmed.

The guardian and mother of the Cherokee minor children made, under Section 22 of an Act of Congress, approved April 26th, 1906, (34 U. S. Stat. at L. ch. 1867, p. 137) application to the proper court for an order pernaitting her to sell and convey to the proposed purchaser of the mother's interest, the undivided interest of her minor children and wards in the allotted lands inherited by them from their deceased father, by filing in the court her petition, setting up the price offered by said purchase: and her contract to sell her interest to him, and introduced evidence to establish that the price offered for her wards' interest was the fair, reasonable market value thereof. The court thereupon made an order directing the sale of the minors' interests in the lands, and directed the guardian to convey to the purchaser of her interest the interests of her wards and execute therefor her deed as guardian, all of which was done; and upon report thereof made by the guardian to the court, the sale in all things was approved. HELD, That the sale was made in substantial compliance with said Section 22, supra.

Held also that said statute prescribes the procedure to be followed in making sales of inherited lands of In lian minors, authorized bv said statute to be sold.

(Syllabus by the Court.)

Grinstead, Mason & Scott, Attorneys for Plaintiff in

Error.

Veasey & Rowland and J. D. Talbott, Attorneys for Defendants in Error.

[Statement of Facts.]

Plaintiff in error, as guardian of his two wards, Alberta Mae and Dixie Joe Keeler, brought this action in the district court of Washington county for possession of and to remove cloud from title and for an accounting for the rents and profits on certain lands belonging to

his wards, located in that county. A demurrer to his petition was sustained by the trial court; and, since that action of the court constitutes the only assignment of error for reversal of the cause, it will be necessary to set out in some detail the facts alleged in his petition.

One Albert Keeler, who was a duly enrolled citizen of of the Cherokee Nation and who died on October 20th, 1905, was the father of plaintiff's wards. At the time of his death, there had been allotted to him the east half of lot two (2) and the south half (S.) of lot four (4), T. two N. (2 N.) north, range twelve (12) east, and thereafter deeds to said lands were executed by the duly authorized agents of the government. He left surviving him as his sole heirs at law Blanche Keeler his widow, and his two minor children, now plaintiffs wards. He died intestate, and there was no administration upon his estate. Prior to his death, he had leased the property in controversy for oil and mining purposes to the Cudahy Oil Company. That Company has partially developed the property by drilling oil and gas wells thereon, and an income is being derived therefrom. About one year after Albert Keeler's death, Blanche Keeler surviving wife, was appointed guardian of their two children, and continued to serve as such until the 28th day of September 1908. when the court, in which her guardianship was pending, after due nctice and proper proceedings, removed her as guardian and appointed plaintiff in error. Prior to her removal as guardian, to-wit: May 6th, 1908, she sold and conveyed her one third interest in and to aid land to defendant Asa D. Morton. At the same time she sold and contracted to convey to Morton the interests of her wards in said lands. She therepon filed her verified petition as guardian with the county court, in which she set up the death of her husband, and her owonership of the lands at the time of his death and the offer of Morton to buy the interests of her wards and her tentative contract to sell same to him, and prayed for an order of court permitting and directing her, as guardian, to execute to Morton a deed, conveying their title

and interest in and to the lands. Affidavits supporting the allegations of her petition, that the price offered and agreed upon for the wards interests was the fair market value thereof, were filed with the petition. Upon hearing the application and evidence in support thereof, the court found the price offered for the land was the fair value thereof, and that the best interests of the wards would be subserved by the sale. On the same day the application was presented and filed, to-wit: on the 19th day of May, 1908, the county court ordered that the guardian be authorized to make the sale and convey by deed to Morton the wards' title and interests, and that she be required to give an additional bond as required by law. On the same date, after the deed had been executed by her, the county judge endorsed his approval upon the deed; and upon report of the same having been made by the guardian, an order was made by the county court in all things approving and confirming the sale. The sale and conveyance therefore by Blanche Keeler, as guardian, to Morton was fully completed and consumated on May 19th, 1908.

Opinion of the court by HAYES, J.-By agreement or concessions of counsel, there is but one proposition of law presented by this proceeding. That question is: Whether the proceedings taken and had by Blanche Keeler, guardian, in making the sale of her wards' interests in the lands was in substantial compliance with the requirements of Section 22, of an Act of Congress, approved April 26th, 1906, (34 U. S. Stat. at L. ch. 1876, p. 137). It is the contention of plaintiff in error that in making a sale of a minor Indian's lands under said statute, the statute of probate procedure of the state regulating the sale of real estate to minors shall be followed; and that since it was not followed in this case, the sale is void. This contention necessarily presents as the first question for determination, whether the state statute rescribing the procedure for sale of minors' lands has any plication to the sale made under Section 22 of the federal statute. Our decision upon this question renders it unnecessary to decide whether the departure from the proceedure pursued in this case from the procedure prescribed by the state statues would render the sale void or only voidable.

What is required in order to make a valid sale under

Section 22 of the federal statute, is now presented to this court for the first time. There may have been other cases decided by the court heretofore, under the facts of which this question could have been presented. If so, our attention was not challenged or directed thereto, and no decision thereon has ever been made. The trial court took the view that said Section 22 fixes within its own terms the procedure to be followed in making a sale thereunder, and that no other statute has any application thereto. In that view,

we concur.

Section 22 of an act of Congress of April 26th, 1906. reads as follows:

"That the adult heirs of any deceased Indian of either of the Five Civilized Tribes, whose selection has been made, or to whom a deed or patent has been issued for his or her share of the land of the tribe to which he or she belongs or belonged, may sell and convey the lands inherited from such decendent; and if there be both adult and minor heirs of such decedent, then such minors may join in a sale of such lands by a guardian duly appointed by the proper United States court for the Indian Territory. And in case of the organization of a state or territory, then by a proper court of the county in which said minor or minors may reside or in which said real estate is situated, upon an order of such court made upon petition filed by guardian. All conveyances made under this provision by heirs who are fullblood Indians, are to be subject to the approval of the Secretary of the Interior, under such rules and regulations as he may prescribe."

Congress by this statute intended to and did remove all restrictions upon the alienation of lands inherited from deceased Indians of the Five Civilized Tribes in the hands of adult heirs, which had been placed thereon by the various acts and treaties of Congress with the Indian tribes. It authorized all such adult heirs, except those of fullblood, to sell their inherited lands without the approval of anyone; but full-blood adult heirs could convey only with the approval of the Secretary of the Interior. The act does not undertake to remove generally the restrictions upon alienation by minor heirs. It does authorize. under certain conditions, certain minor heirs to convey. It is important in the construction of the statute and in arriving at the intent of the legislative will to notice the class of minor heirs whose inherited lands are authorized to be sokl. The classification of those who may sell and of those who may not

sell is not made upon the basis of the quantum of Indian blood of the heirs, as has been the case in all instances before and since this act where Congress has attempted to remove restrictions. Upon the power of alienation of certain members of these tribes, but to retain them as to others. The power of the minor heirs to sell is not made dependent apon whether he is a full-blood Indian or less than a fullblood, not dependent upon his age, or upon whether a sale of his land is necessary to his education and support, or to be made for the purpose of investment. His authority to sell by his guardian is made dependent upon the existence of an adult heir, and where there is an adult heir, authority is not given to the minor to sell alone and separately his interest, but he may, acting through his guardian, upon order of court, join the adult heir in a sale. The act does not specifically prescribe that the sale may be made for the purpose or under the procedure prescribed by the statute then in force in the Indian Territory, authorizing and providing for the sales of real estate of other minors than Indians; and if said statutes or the statutes in force at the time of this sale ever had any application to the sales of minors' lands made under said Section 22 of the federal act, they must be held to have done so by implication and not by any express provision of the act. If Congress intended that the statutes in force in the Indian Territory at the time of the passage of this act should fix the precedure to be followed in making such sales at the passage of the act, it may be assumed that Congress knew what such statutes were; and if the procedure prescribed by the statutes would in a large measure defeat the legislative purpose in permitting minor heirs to join the adult heirs in the sale, the act ought not be to held by mere implication to provide that such sales should be governed by those statutes. In placing restrictions upon the alienation by Indian allotices of the Five Ciyilized Tribes of their allotted lands, the legislative purpose was to protect the Indian against his own improvidence, against the cunning of those who, through cupidity might undertake to procure from them their lands at inadequate prices, and to protect them against