RESTRICTIONS ON ALLOTMENTS
TO THE FIVE CIVILIZED TRIBES
FROM ALLOTMENT OF 1906 UNTIL THE ACT OF 1908
The Act of 1906, section 19 thereof, set out in the middle of page 134, provides that no full-blood allottee of the Five Civilized Tribes shall have power to alienate lands allotted to him for twenty-five years after the passage of the Act unless Congress shall remove the restriction sooner. Let us see what effect this has on our charts.
Restrictions on Full-Blood Allottees 4-26-06 to 7-27-08
First turn to the Seminole chart, page 109. Compare the second line of the section "By Allottees" in the 1904-1906 period with the second line of the "By Allottees" after 1906.
Before 1906 the Secretary could remove restrictions on surplus as to all classes of Indians; but after 1906, the dot is absent from the full-blood column because the Act of 1906 extended restrictions on all land allotted to full-bloods for twenty-five years unless Congress sooner removed. It should be noted that there is a comparable change as to the Cherokees, the Choctaws-Chickasaws, and the Creeks. In each chart it is shown that the Secretary could not, after 1906, remove restrictions as to full-bloods while he could remove restrictions for all classes of Indians of less than full-blood if they were adults and as to their surplus.
Restrictions on Cherokee Allottees 8-7-07 to 7-27-08
There is still another matter to be considered in relation to the Cherokees, please turn to that chart on page 111. Focus on the third period 1906 to 1908. The third line of the "By Allottees" section is new and reads that allottees in this period could alienate their surplus after August 7, 1907, if their patent had been issued for five years. This would be possible if the patents had been issued immediately after the ratification of the Cherokee Allotment Agreement on August 7, 1902. But Mills reports, see page 142, that no patents were issued until several years after 1902. If none were issued for at least a year after the ratification of the Cherokee Agreement, the earliest date of issuance would be August 7, 1903, and it would be August 6, 1908, before the five years would have elapsed. As we shall see the Act of 1908 was effective in July of 1908. It seems safe to say that the third line of the "By Allottee" section in the period 1906 to 1908 on the Cherokee chart, as a practical matter, has not validated any conveyance. The conditions of its applicability were never met because no patents had been issued for five years until after the Act of 1908.
Restrictions on Creek Allottees 8-8-07 to 7-27-08
There is a similar situation in the Creek chart. Please turn to page 115. Again we are examining the chart in relation to the period 1906 to 1908 and again, please focus on the "By Allottee" section. The second line in that section says that from August 8, 1907, allottees of Indian blood, other than full-blood, could alienate their surplus. The authority for this statement is found in note 16 on page 149. The Creek Agreement says, except for homestead, Creek allottees could alienate their allotments after five years. That is, they could alienate their surplus after five years from the date of the ratification of the Creek Allotment Agreement. Later, the Supplemental Creek Agreement reaffirmed this, but extended the five years by causing it to run from the date of the Supplemental Agreement, effective upon the date of proclamation by the President, August 8, 1902. So the restrictions on alienation of surplus by Creek Indian allottees ran out August 8, 1907, but the Act of 1906 was passed prior to that time, and as we have seen, that Act extended the restrictions on full-bloods for twenty-five years unless sooner removed by Congress.
Restrictions on Choctaw-Chickasaw Allottees 4-26-06 to 7-27-08
Perhaps it should be noted specifically that the reimposition of restrictions on full-blood allottees in the Act of 1906 brought an end to the ability of full-blood Choctaw- Chickasaw Indians to convey their surplus under the one, three and five year provisions of the Choctaw-Chickasaw Allotment and Supplemental Allotment Agreements, see line 3, "By Allottees" section, 1906 to 1908 period on the Choctaw-Chickasaw chart, page 113 and note 5, page 132 at 134.
Restrictions on Non-Indian Allottees 4-26-06 to 7-27-08
Again, probably out of an over-abundance of precaution, it should be noted that intermarried white and freedmen allottees of all of the Five Tribes continued to be totally unrestricted as to their surplus, see line 1, "By Allottee" section, 1906-1908 period on chart for each tribe, pages 109-115.
That winds down the discussion of the effects of the Act of 1906 on the lands of allottees.
We now move to looking at the changes the Act of 1906 made as to heirs of allottees.
Restrictions on Heirs 4-26-06 to 7-27-08
Again, please flip back to the Seminole chart on page 109. Focus, if you will, on the period 1906-1908 and on the "By Heirs" section of that period. That section contains eight statements and on first blush seems quite formidable, but notice first that this section is duplicated completely in each of the other three charts. So, in doing the Seminole chart, we cover the other four tribes as well. Notice also that what we have in the eight lines are really four pairs. The pairs are lines 1 and 2, 3 and 4, 5 and 6, and 7 and 8. In the first line of each pair, that is in lines 1, 3, 5, and 7, the heirs of all six categories, except full-bloods, may convey, In the second line of each pair, the full-bloods may convey under the specified circumstances. In the second line of each pair, the condition that the Secretary must approve the deed is added to the circumstances stated in the first line of each pair. For example, take the second pair consisting of lines 3 and 4. Line 3 permits minor heirs to alienate when they are joining adult heirs in a conveyance. This is all that is required for minor heirs of all classes, except full-blood heirs. If you add that the Secretary approves the deed you take care of the full-blood minor heirs' conveyances as expressed in line 4.
Now let us turn to note 5 on page 132, the citation for lines 1 and 2. Notice the first pair of lines deals with adult heirs conveying both surplus and homestead. In regard to adult heirs section 22 of the Act of 1906 provides:
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 decedent; * * *
The rest of the section, except for the last sentence, deals with minor heirs. The last sentence of the section deals with both minor and adult full-blood heirs. It requires all conveyances by full-blooded heirs be approved by the Secretary of Interior. So adult heirs, except full-bloods, may alienate unconditionally as expressed by line 1 of the section we are examining. Line 2, dealing with full-blood adult heirs, requires that the deed be approved by the Secretary.
Now let us look at the other three pairs. Line 3 provides that except for full-blood minors, that minors may convey when they join with adult heirs. The statutory basis for this is that part of section 22 of the Act of 1906 on page 132 which we did not examine before. It begins after the semicolon in the first sentence:
* * * 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 proper court of the county in which the 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.
Notice it was held by the Supreme Court of Oklahoma that if the procedures laid down by this section are complied with, it is irrelevant that state probate procedure required more, Wilson v. Morton, 29 Okla. 745, 119 P.213 (1911). Notice line 4 of the "By Heirs" section which indicates that if the minor heir is a full-blood the deed must also be approved by the Secretary as provided by the last sentence of Section 22 of the Act of 1906.
Lines 5 and 6 of the "By Heirs" section govern the situation where the conveyance by the heirs is made after the passage of the Act of 1906 but where the allottee died prior to that Act and where the deed conveys the allottee's homestead.
It should be recalled that prior to the Act of 1906, where an allottee died, his homestead became unrestricted in the hands of his heirs. The 1906 Act providing that minor heirs could convey only by joining with adult heirs did not apply where the allottee died prior to the Act of 1906, even though the conveyance was made subsequent to the Act of 1906. Once free of restrictions it remains free, unless a subsequent statute requires a different construction.
Notice, however, that even where the allottee died before the Act of 1906, if the minor heir was a full-blood consistent with the last sentence of section 22, see page 132 of the book, the minor full-blood's deed was subject to the approval of the Secretary. This is the thrust of line 6 of the "By Heirs" section.
The last two lines in the "By Heirs" section cover the situation where the so called "allottee" died before April 26, 1906, and where the death of the "allottee" occurred before allotment. You will recall we stated that where the administrator selected the allotment because the "allottee" (who would be better called "enrollee") was dead, that allottee's heirs took free and clear of restrictions. Notice that where this has happened, the next to the last line in the "By Heirs" section says that all minor heirs are still unrestricted as far as federal law goes except full-blood minor heirs and their deeds have to be approved by the Secretary of Interior.
Rights of Creek "After-Borns" and the Act of 1906
One additional matter in relation to Creeks after the Act of 1906. Please turn to the Creek chart on page 115. I am speaking of the special provision for saving the allottee's homestead for any child or children born to an allottee after May 25, 1901. Notice it arises in the "By Heirs" and "By Will" sections in both time frames prior to the Act of 1906, but the special provision for the "after-borns" is missing on the Creek chart after 1906. Why? I have found no one who has commented on this change in the charts after 1906.
But the conclusion that it is the result of the Act of 1906 is certainly suggested. Indeed section 23 of that Act, see page 133, provides:
Every person of lawful age and sound mind may, by last will and testament, devise and bequeath all of his estate, real and personal, and all interest therein; provided, that no will of a full-blood Indian devising real estate shall be valid, if such last will and testament disinherits the parent, wife, spouse or children of such full-blood Indian unless acknowledge before and approved by a judge of the United States Court of the Indian Territory or a United States Commissioner.
Does this authorization, to make wills, clearly erase all provisions for the Creek "after borns"? Let us look again at the provision in the Creek Supplementary Agreement. It is on page 150 and provides:
The homestead of each citizen shall remain after death of the allottee for the use and support of the children born to him after May 25, 1901, but if he have no such issue, then he may dispose of his homestead by will, free from limitation herein imposed, and if this be not done, the land embraced in his homestead shall descend to his heirs, free from such limitations * * *.
I leave you with this question: Does section 23 of the Act of 1906 on page 123 completely wipe out all of the provisions of section 16 of the Creek Supplemental Agreement which devotes the homestead for children born to the allottees after May 25, 1901?
I have trouble, for example, with the position that the granting of the privilege to make a will when the allottee has a "too late" negates the right of the "after born" against the other heirs of the allottee, where the allottee makes no will but dies intestate. But Fitzpatrick by his charts must be understood to have considered it in just this manner.
Restrictions on Devises of Allotments 4-26-06 to 7-27-08
This brings us to a consideration of the "By Will" section in the 1906 to 1908 period. The section is identical on all four of the charts.
Prior to the Act of 1906, only the Creeks had authority to devise their allotments, and then only their homesteads where there were no "after borns". The Act of 1906 was applicable to all Five Tribes. Section 23, thereof, see page 133, provided that every person of lawful age and sound mind could devise all of his real and personal property. However, a will of a full-blood devising real property would not be valid if it disinherited a "parent, wife, spouse, or child," unless the will was acknowledged and approved by a judge of a U.S. Court in Indian Territory by a U.S. Commissioner.
Notice the first line of the "By Will" section on each chart, pages 109, 111, 113 and 115, provides that competent adults of less than full-blood may devise homestead or surplus without restrictions. The second line says that full-bloods may devise if they do not disinherit a parent, wife, spouse or child. And the third line permits a full-blood to disinherit a parent, spouse, or child if the will is acknowledged before and approved by a U.S. Judge or Commissioner. Since the section starts "Every person", it would seem that not only allottees but heirs, and after wills were permitted, devisees, all were included in the "Every person.
This concludes our study of the Fitzpatrick Charts. True, the Fitzpatrick Charts includes the Act of 1908, and purports to extend down to 1931; however, Fitzpatrick Charts were made in 1917 and is incomplete. It does not include the Act of 1926. We will pick up with the Act of 1908 as reflected on the Gholston- Rarick charts beginning on page 209.