2. Construction In general.-Title to unallotted lands of the Choctaw and Chickasaw Nations is in the respective Indian tribes or nations and is divested by delivery of patents under rules prescribed by the Secretary of the Interior. Ward v. Ward (Okl.) 182 P. 675.

An action will not lie to establish a resulting trust in the unallotted lands of the Choctaw and Chickasaw Nations sold at public sale prior to payment of the price and delivery of the patent. Id.

5. Indian reservations-President's power.-Under General Allotment Act Feb. 8, 1887, § 1, as amended by this

section, authorizing the President to cause allotments to be made from lands which may be advantageously utilized for agricultural or grazing purposes, the fact that an allotment selected by an Indian is in part heavily timbered, and until cleared is more valuable for timber than for agriculture or grazing, does not justify a refusal to make the allotment. U. S. v. Payne (C. C. A. Wash.) 284 F. 827.

Cited without definite application, U. S. v. Bowling (C. C. A. Okl.) 261 F. 657; In re Jessie's Heirs (D. C. Okl.) 259 F. 694; State v. Superior Court for Okanogan County (Wash.) 181 P. 688.

improvements is created by operation of law. Andrews v. Carlisle (Okl.) 189 P. 175.

§ 4197. (Act Feb. 8,

1910, c. 431, § 9.)

Cited

F. 694.

Cited without definite application,

F. 615; In re Jessie's Heirs (D. C.

See Eugene Sol Louie v. U. S. (C. C. A. Idaho) 274 F. 47; U. S. v. Yakima County (D. C. Wash.) 274 F. 115.

1. Power to restrict alienation by Indians.-Congress has plenary power over restricted lands allotted to Indians as long as the tribal relation exists, until by some act the title is vested by purchase in some party other than the allottee. In re Jessie's Heirs (D. C. Okl.) 259 F. 694.

2. Purpose and construction of restrictions on alienation.-Under this section, the trust period begins from date of trust patent, and not from approval of allotments. United States v. Reynolds, 39 S. Ct. 409, 250 U. S. 104, 63 L. Ed. 873, reversing decree (C. C. A. Okl.) Reynolds v. United States, 252 F. 65.

2 SUPP. U.S.COMP. '23-80

"Restricted lands" within Act April 18, 1912, § 6, supplementary to and amendatory of Act June 28, 1906, and declaring invalid partition or sale of such lands of a deceased Osage allottee, till approved by the Secretary of Interior, means, as is shown by a later sentence in that section and by various provisions of the act of 1906, lands the alienation of which is subject to restrictions imposed by Congress to protect the Indians from their own incompetency. Kenny v. Miles, 39 S. Ct. 417, 250 U. S. 58, 63 L. Ed. 841, reversing judgment (Okl.) 162 P. 775.

Lands allotted in the name of an Osage Indian under Act June 28, 1906, whether allotted before or after her death, held, in view of sections 1, 2, 6, 7, and 8 thereof, restricted lands, so that, under Act April 18, 1912, § 6, they (1265)

cannot be sold or partitioned after her death without approval of the Secretary of the Interior; neither she nor her heirs, who are of Osage blood and members of the tribe, having received a certificate of competency. Id.

Judgment ordering a partition or sale in suit under Act April 18, 1912, § 6, for partition of lands of a deceased Osage allottee, is inoperative and binding on no one, the lands being restricted, and there being no approval by the Secretary of the Interior, without which the section provides no partition or sale of such lands shall be valid; and so is not conclusive on the question of heirship in proceedings for settlement of deceased's estate. Id.

As respects both trust allotments to Indians, which are those in which a certificate or trust patent declaring that the United States will hold the land for a designated period in trust for the allottee, and restricted allotments, which are those in which a patent issues at once conveying the land to the allottee and imposing a restriction upon its alienation for a designated period, the United States exercises a supervisory control. U. S. v. Bowling, 41 S. Ct. 561, 256 U. S. 484, 65 L. Ed. 1054, reversing judgment (C. C. A. Okl.) 261 F. 657.

In view of Act Cong. May 27, 1908, § 4, the minority of a Choctaw Indian of one-eighth blood is a restriction against alienation of lands allotted to him in any manner except by a guardian duly authorized by proper proceedings in county court. First State Bank of Hewitt v. Lowery (Okl.) 178 P. 983. Where Indian' of Wyandotte tribe was allotted 40 acres of land and a trust patent therefor under this section, and at trial on his petition for divorce and his wife's cross-petition it appeared that period of restriction had expired, but that he had not received his final patent, he held equitable title in fee, so that decree awarding it to wife as permanent alimony and for support of herself and minor children was valid under Rev. Laws 1910, 8 4969. Johnson v. Johnson (Okl.) 179 P. 595.

The phrase "restricted lands of living minors," as used in proviso to Act Cong. May 27, 1908, § 6, has reference to the allotted lands of such minors that are restricted by section 1 of the act. Coleman v. Davis (Okl.) 180 P. 381.

Lands inherited by full-blood Creek Indian minors from full-blood Creek allottee are not "restricted lands" within proviso in section 6 of Act Cong. May 27, 1908, prohibiting sale or incumbrance of restricted lands of living minors, except by leases authorized by law, by order of the court, or otherwise. King v. Shults (Okl.) 180 P. 550.

A "minor," within Act Cong. May 27,

1908, § 6, includes males under 21 years and females under 18 years, and an order of district court granting such a minor the rights of majority does not authorize him or her to do any act then or thereafter affecting his or her allotted lands independent of jurisdiction and supervision of county courts of the state. Mortgage & Debenture Co. v. Burrows (Okl.) 182 P. 238.

The qualification in Act Cong. May 27, 1908, § 6, relating to Indian minors, "except as otherwise provided by law," means federal law and not state law. Id.

Federal statutes providing for allotment of Indian lands and patents, with restrictions upon alienations, were enacted to protect Indians from schemes and fraudulent practices of white men, not to aid in the unconscionable and inequitable enforcement of stale claims, to the injury of innocent parties who in good faith, for value, and by regular procedure, have purchased allotted Indian lanas through the Interior Department of the United States. Crosbie v. Partridge (Okl.) 205 P. 758.

3. Restriction as running with the land. The duty of the United States to protect an allotment from alienation during the restricted period is not dependent on the citizenship or noncitizenship of the allottee. U. S. v. Moore (C. C. A. Okl.) 284 F. 86.

5. Extension of trust period.Alienation of land allotted Indians being within the trust period of 25 years, extended 10 years by executive order, provided for and authorized by this section, was void by terms of the act. U. S. v. Reynolds, 39 S. Ct. 409, 250 U. S. 104, 63 L. Ed. 873, reversing decree (C. C. A. Okl.) Reynolds v. U. S., 252 F. 65.

7. Removal or modifications of restrictions.-Section 19, Act April 26, 1906, providing that "no full-blood Indian * shall have power to alienate in any manner any of the lands allotted to him for a period of 25 years from and after the passage and approval of this act, unless such restrictions shall, prior to the expiration of said period, be removed by act of Congress," held to have the effect of reimposing restrictions theretofore removed by operation of law, but not to render invalid a subsequent conveyance by a full-blood Cherokee Indian of his surplus allotment, where previous to the passage of the act, under a prior law, the Secretary of the Interior had approved the recommendation of the Indian agent, made after a quasi judicial investigation, and removed the restrictions in the particular case, and his approval had been recorded in the same manner as patents are recorded. U. S. v. Smith (D. C. Okl.) 266 F. 740.

Act Cong. May 27, 1908, removing re

strictions from part of the lands of allottees of the Five Civilized Tribes, is a revising act intended as a substitute for all former acts, and repeals Act Congress April 26, 1906, and previous congressional enactments in conflict with the same subject. Coleman v. Davis (Okl.) 180 P. 381.

Act Cong. May 27, 1908, was a revising act, and was intended as a substitute for all former acts relating to restrictions on lands of allottees, and repealed Act Cong. April 26, 1906, and previous conflicting acts of Congress. King v. Shults (Okl.) 180 P. 550.

Under Act Cong. May 27, 1908, § 9, the death of an allottee of Five Civilized Tribes removed all restrictions on alienation of such allottee's land; the first proviso of such section imposing on Indian heirs merely a personal restriction to convey without approval of proper county court.

Id.

9. Laws governing Indian allottees.Lands allotted under Act Cong. March 1, 1901, § 28, in name of Creek citizen, who died intestate and without issue before receiving allotment, descend to his heirs according to law of descent and distribution of Creek nation; and, where both parents survive, the mother, as the nearest relation inherits to exclusion of father. Renfro v. Olentine (Okl.) 178 P. 119, certiorari denied 39 S. Ct. 389, 249 U. S. 614, 63 Ed. 803.

Lands allotted under Act Cong. March 1, 1901, § 28, in name of Creek citizen, who died intestate and without issue before receiving allotment, descended to his heirs according to law of Creek Nation; and, where he left only a brother of his mother and a brother and two sisters of his father, the mother's brother inherited to exclusion of paternal uncles and aunts. Haney v. Anderson (Okl.) 178 P. 120, certiorari denied 39 S. Ct. 288, 249 U. S. 606, 63 L. Ed. 799.

Laws Muskogee (Creek) Nation, c. 12, art. 2, § 1, and Laws of Muskogee Nation 1893, c. 14, § 258, confers upon an illegitimate child, which has been recognized by its father the right to share in the estate of putative father, but do not entitle brother and sister of half blood of illegitimate child to share in its estate with the sister of whole blood when father predeceased such child. Oklahoma Land Co. v. Thomas (Okl.) 179 P. 937.

Father's recognition of an illegitimate child did not have general effect of legitimating child, but only determined the line of descent as to property of such father or child at time of their deaths, respectively, and did not affect relations between child and its mother, and as to her child was still illegitimate. Íd.

The rules by which descent of property is cast are subject to the legislative will, and, when Mansf. Dig. c. 49, was

an

extended over Creek Nation by Act Cong. June 30, 1902, prior to death of illegitimate child, its allotment would descend as provided therein. Id. Where a full-blood Choctaw Indian woman died in 1906 possessed of an allotment, and her nearest relatives on her father's side were an uncle and a cousin, and on her mother's side cousins, all being Indians by blood, Mansf. Dig. Ark. § 2531, controls, and an undivided half of the allotment goes to the maternal heirs, and the other half to the paternal heirs. Palmer v. King (Okl.) 183 P. 411.

10. Jurisdiction of state courts. -Act Cong. May 27, 1908, § 6, subjects the persons and property of minor allottees of the Five Civilized Tribes, except as otherwise specifically provided by law, to the jurisdiction of the probate courts of the state of OklahoColeman v. Davis (Okl.) 180 P.

ma.

381.

13. Indian title during trust period.The trust patents for Indian allotments, which were intended to prevent the allottees from improvidently alienating or incumbering the land, conveyed to the Indians the equitable title and beneficial use to all that would have passed under a full patent. State of Oklahoma v. State of Texas, 42 S. Ct. 406, 258 U. S. 574, 66 L. Ed. 771. 15. Inheritable estate.-The heirs of a deceased member of the Creek Tribe of Indians, to whom patents have issued for lands allotted in his right, take title to such lands by inheritance. King v. Shults (Okl.) 180 P. 550.

A Creek citizen, dying before receiving his allotment, is not seized at his death of an inheritable estate in lands afterwards allotted to him or to his heirs and the descent is cast when the certificate of allotment is issued, and is governed by the law then in effect. Hamilton v. Bahnsen (Okl.) 183 P. 413.

Where a "reservation plat and memorandum slip," on file with Dawes Commission, in allotment record of one M., was made prior to ratification of Original Creek Agreement of March 1, 1901, and where M. had died July 7, 1899, and where there was no authority for such reservation and no law permitting allotment to deceased at that time nor to his heirs, the exhibit gave the heirs no inheritable estate. Id.

Under General Allotment Act 1887, and in view of Act Cong. June 25, 1910, an Indian allottee taking a trust patent, which restrained alienation for a period of 25 years, but provided for conveyance at the end of that time free from all incumbrances, and in event of prior death for patent to the heirs of the allottee, took an inheritable estate. (Per Polley and Whiting, JJ.; McCoy, P. J., and Smith, J., contra.)

Highrock v. Gavin (S. D.) 179 N. W. 12.

24. Deeds and incumbrances by Indians during trust period.-In suit to quiet title to land formerly the allotment of a minor full-blood Creek Indian, who died, so that the land was inherited by her mother, a defendant who conveyed it to plaintiffs' predecessor, in view of defendants' cross-bill and offer of proof showing that the mother's attorney, while purporting to act for her in securing the approv al of her deed, and in causing decree to be entered in her suit for cancellation against the grantee, forever barring her right, was in fact acting on behalf of the grantee's successor, etc., held, that a summary disposition of the case by entry of decree for plaintiffs and dismissal of the cross-bill on the merits was improper it being the duty of the court to hear defendants' proofs; the cross-bill not constituting a collateral attack on the order of the county court of Oklahoma approving the mother's deed, but standing as an original bill to set aside for fraud the orBarnett v. der approving the deed. Kunkel (C. C. A. Okl.) 259 F. 394.

A deed by the mother of a minor full-blood Creek Indian, who inherited an allotment of land from her daughter, was of no effect, where approved by the county court of a county of Oklahoma in which the daughter was not a resident when she died; the court not having had jurisdiction. Id.

Deed of a minor full-blood Creek Indian's allotment of land, inherited by her mother, executed two days before patent for the land was issued, though the selection of the allotment had been legally made and approved before, held not void under Act April 26, 1906, § 19, and Act May 27, 1908, § 5, rendering void a deed of lands of the Five Civilized Tribes, if made before the removal of "restrictions"; "restrictions," as used, referring to prohibitions against alienation. Id.

In an action to quiet title, in which the defendants claimed that the county court's approval of an Indian's deed to an allotment under which the plaintiffs claimed had been procured by fraud, the defendants had the burden of proving such fraud. Barnett v. Kunkel (C. C. A. Okl.) 283 F. 24.

Under this section, providing that allotments of lands made thereunder shall be held in trust "for the sole use and benefit" of the allottee, and further providing that "any contract made touching the same" before expiration of the trust period "shall be absolutely null and void," the protection extends to the use of the land, and a mortgage by an allottee of growing crops thereon is void. U. S. v. First Nat. Bank (D. C. Wash.) 282 F. 330.

Where an Indian allottee signed a Ideed and transmitted it to an Indian

superintendent for delivery to the purchaser, the superintendent was not the purchaser's agent, and his reception of the deed did not constitute a delivery. U. S. v. Lane (App. D. C.) 258 F. 520.

Evidence in action to quiet title to land involving only question of age of an allottee, plaintiff's grantor, at date of his deed to defendant, evidence held to reasonably support findings and judgment for plaintiffs. Hart v. Summers (Okl.) 178 P. 89.

Rev. Laws 1910, § 2260, has no application to restricted Indian lands, but Act Cong. May 27, 1908, controls; and where purchaser comes into possession of land under conveyance by restricted Indian, such possession does not affect Indian's right to convey to another after restrictions are removed. Groom v. Dyer (Okl.) 179 P. 12.

A conveyance of allotted restricted Indian lands made in violation of a federal statute authorizing the alienation of such lands is against public policy and absolutely void, and in no manner can any right, title, or interest in such lands be acquired under such a conveyance. Tidal Oil Co. v. Flanagan (Okl.) 209 P. 729.

The general rule that a deed of general warranty conveys the afteracquired title of the grantor has no application to restricted Indian lands. Probert v. Kibby (Okl.) 209 P. 916.

Where an Indian, by blood being the allottee of land, died leaving as his sole heir his father, a full-blooded Indian, and by act of Congress the alienation of the land was restricted because the father was a full-blood Indian, a warranty deed executed by the children of the father during his lifetime, who were of the half blood did not convey their after-acquired interest which they inherited on the death of their father. Id.

1

25. Agreements to purchase.Trust patents issued by the federal government to Indians of the White Earth Indian Reservation under the general Indian Allotment Act and acts supplementary thereto, which do not on their face convey the fee title and need be established in an appropriate judicial proceeding, do not show a marketable title which the purchaser can be compelled to accept. Geray v. Mahnomen Land Co. (Minn.) 173 N. W. 871.

Until it is established that an Indian taking under a trust patent was of mixed blood, the title derived through such patent is not a marketable title. Id.

29. Power of alienation.-The equitable interest in allotted lands of Indians held in trust by the government may be conveyed, where no restriction on alienation is imposed. Mixon v. Littleton (C. C. A. Okl.) 265 F. 603.

Under Act Feb. 13, 1891, ratifying an agreement with the Sac and Fox

Nation of Indians, providing for allotments of land to be held in trust by the government for specified periods, but not expressly restraining alienation, an allottee's wife, a white woman of no Indian blood, could convey her interest as heir, and, under her warranty deed, her title under a patent subsequently issued inured to the benefit of her grantee. Id.

31. Leases by Indians during trust period. This section declaring void conveyances and contracts regarding Indian allotted lands, does not prevent an allottee from leasing his land pursuant to Act June 25, 1910, § 4 (Comp. St. § 4221), and regulations of Secretary of the Interior adopted thereunder which authorize such leases under certain conditions. Miller v. McClain, 39 S. Ct. 297, 249 U. S. 308, 63 L. Ed. 618, affirming judgment (Kan.) McClain v. Miller, 149 P. 399. This section, prohibiting conveyances and contracts regarding Indian allotted lands, does not prohibit an allottee from selling the crop rental reserved by him in a lease made pursuant to Act June 25, 1910, § 4 (Comp. St. § 4221), and the regulations of the Secretary of the Interior made thereunder. Id. Under Act May 27, 1908, § 1, declaring the homestead allotment of an Indian inalienable prior to April 26, 1931, unless restrictions be removed by Secretary of Interior, section 2, authorizing leases for oil and gas of restricted lands with the approval of the Secretary of the Interior, and section 9, declaring that death of an allottee shall remove restrictions on alienation, provided that, if an allottee die leaving issue born since March 4, 1906, deceased's homestead shall remain inalienable, unless restrictions are removed as proved in section 1, for the use and support of such issue, till April 26, 1931, unless such issue sooner die, the three heirs of such an intestate allottee having leased the homestead for oil and gas with approval of the Secretary of the Interior, but without any removal of restrictions on alienation being attempted or intended, the royalties take the place of the part of the homestead removed by mining, and that one who was issue born after March 4, 1906, is entitled to the interest or income therefrom until April 26, 1931, unless sooner dying, leaving the principal to go to the heirs in general on termination of her special right. Parker v. Riley, 39 S. Ct. 405, 250 U. S. 66, 63 L. Ed. 847, reversing decree (C. C. A. Okl.) 243 F. 42.

Where a bank refused payment of a certified check for bonus for oil and gas lease executed by guardian of fullblooded Indian minor on a portion of his restricted allotment, following attempted withdrawal by lessees of application for approval of lease, it was proper for the United States to recov

er from the bank the amount of the check, in view of regulation of Interior Department, providing for the control and disposition of "royalties, rents, and payments," since the government, having a right under such regulation to collect the bonus, had a right to bring an action on a certified check therefor. Central Nat. Bank of Tulsa, Okl., v. U. S. (C. C. A. Okl.) 283 F. 368.

Lessees to whom guardian of fullblooded Indian minor had executed an oil and gas lease on a portion of his restricted allotment, and who had made an application for the approval of such lease, could not withdraw application prior to such approval. Id.

Where lessees placed in escrow certified check for bonus for lease on the condition that the check be returned to lessees, on failure of Secretary of the Interior to approve lease within 60 days, the bank could not refuse payment thereon, on approval of lease within the 60 days, though prior to approval thereof the lessees attempted to withdraw application for approval, notwithstanding irregularity of making check subject to negotiation only in event of approval of lease within 60 days, since the Secretary of the Interior, by approval of lease within the 60-day period, waived irregularity, and neither the bank nor the lessees could complain thereof. Id.

Lessees could not predicate withdrawal of application for approval of Indian's lease on portion of restricted allotment on a letter of the Indian superintendent, since the superintendent had no authority to act on the lease; the approval of the lease being a matter for the Secretary of the Interior. Id.

Where lessees placed certified check for bonus for Indian's lease on portion of restricted allotment in escrow, on condition that the check be returned on failure of the Secretary of the Interior to approve lease within 60-day period, the fact that the check was prematurely delivered did not affect the bank's liability thereon, on approval of lease within the required time. Id.

Where lessees placed certified check for bonus for Indian lease on portion of restricted allotment in escrow, on the condition that it be returned if the Secretary of the Interior failed to approve the lease within the 60-day period, the fact that the lessees, who made ineffectual attempt to withdraw application for approval of lease, did not ratify the lease after approval thereof by the Secretary of the Interior, and made no claim under it, did not affect the Indian's right to the amount of the check. Id.

Indian allottee's lease, not executed on prescribed government form and not approved by superintendent of Indian affairs, was invalid, and lessee having