RESTRICTIONS ON ALLOTMENTS
TO THE OSAGE INDIANS
The material on the Osage begins on page 413 with some rather lengthy introductory remarks. Here is a quick summary of those remarks.
Each allottee had three turns in selecting land and in each turn selected 160 acres. The land selected in one turn was to be homestead.
Then the remainder of Osage County was then divided up among the allottees by a commission.
Practically no land was immediately available directly to whites. The exceptions were town site lots and railroad bounty land.
The minerals were reserved to the tribe and income therefrom is the source of money divided quarterly to those having "head rights".
The allottees were those on the roll as of 1/1/1906, living children of those on roll of 1/1/1906 and those born to those on the roll between 1/1/1906 and 7/1/1907. Those not included in the three groups above are referred to as "unallotted".
Where legislation speaks of "members of the tribe" that usually means "allottees".
On pages 414 and 415 there is discussion of legislation on probate and wardships. At the bottom of page 415, there begins a discussion of Certificates of Competency and there is a discussion tracing the issuance to allottees, then to those not allotted, and legislation permitting one having a Certificate to have it revoked.
On page 417 there is a discussion of taxation. All surplus became taxable three years after allotment. Taxation of homestead in the hands of allottees, heirs and devisees passes through several stages with the quantum of blood, i.e. less than one-half or one-half or more having an influence from time to time.
At the bottom of 418, a discussion of inheritance and wills follows.
At the top of page 421, the key to the Osage charts begins.
Please turn to page 425. As in the case of the Five Civilized Tribes, the basic break down of the table is in terms of time periods. The broadest column is divided by the various types of alienors, i.e. allottees, heirs, devisees or by type of alienation, i.e. by will, partition, or sale by the Secretary.
The five columns on the right hand side serve the same functions as they did in the case of the Five Civilized Tribes.
The first column contains numbers of the appended notes which contain the authority for the statement of that line. The second column concerns age of the alienor but there are only three symbols used. "A" means adults and that means 21 or over. "All" means the statement is true of both adults and minors but of course where minors can alienate, they can alienate only through a guardian. The third symbol occurs only once. It is "18" which indicates that Congress had extended the privilege of making a will to 18 year olds.
The third column relates to classification of land, that is homestead and surplus. But again only three symbols used. "All" indicates that the statement is true of both homestead and surplus. "5" means it was true of surplus alone. In several places the symbol "N/A" occurs in relation to land purchased after allotment for Osage Indians. "N/A" indicates that the classification of surplus or homestead was not applicable.
The last two columns pertain to blood quanta. If an "X" appears in the next to last column, it indicates the statement is true about those who are one-half or more Osage blood. If an "X" appears in the last column the statement is true of those of less than one-half Osage blood.
The basic assumption in applying these charts is, again, that an allotment is inalienable unless it can be demonstrated that it is alienable. Again, the second assumption is that a transaction's validity is determined by the law as it existed at the time of the transaction.
Chart from 1906 to 1909
In this first period, the entire matter of alienability is controlled by whether the allottee had been issued a Certificate of Competency.
If the allottee of the land in question had a Certificate of Competency, then he could, if an adult, alienate his surplus only regardless of his quantum of Osage blood.
In relation to the allottees note 1 beginning on page 443 controls.
The first matter set out is from the Allotment Act. It provides that selections classified as homestead shall be inalienable and non-taxable until Congress provides otherwise. The rest, surplus, was to be inalienable except as otherwise provided, for 25 years.
The last paragraph on page 443 provides for the issuance of Certificates of Competency by the Secretary to the members found to be fully competent and capable of handling his own affairs.
It should be noted that the issuance of the Certificate of Competency affected only surplus. Surplus became alienable and moreover taxable immediately on issuance of a Certificate. If no Certificate of Competency were issued, the allottee's surplus remained non-taxable for three years. Homestead remained inalienable and off the tax tolls for twenty five years.
Claims of Judgment Creditors
What of availability of Osage lands to satisfy judgment debts in this early period. There was no legislation on the matter until 1912, see the last paragraph on page 444. But it was held by the Neilsen case on page 445 that Osage allotments were restricted against involuntary alienation from the time of allotment. Further, it was held that the issuance of a Certificate of Competency permitted voluntary but not involuntary alienation.
By Heirs and Devisees
It should be noted that the next section in the 1906 to 1909 period applies to both heirs and devisees. This came as a bit of a shock to me because in relation to the Five Civilized Tribes and the General Allotment Indians, the ability to devise land came only by specific Congressional enactment. However, it was held in the La Motte case, cited on page 444, that the Certificate of Competency imparted testamentary as well as inter vivos alienability.
The Act of 1906 was silent as to alienability by heirs and devisees. But it was held by Aaron v. United States, a 1913 Eighth Circuit case, cited in note 2, page 445, that freedom from restraints on alienation runs with the land as a matter of policy. This is not surprising; the policy had been established in Five Civilized Tribes.
Where the allottee had a Certificate of Competency, that made not only the surplus but homestead immediately alienable in the hands of the heir because the seventh paragraph of section 2 of of Act of 1906, see bottom of page 443, provided that if the allottee got a Certificate of Competency, his homestead remained inalienable for 25 years or for the life of the allottee. For this reason it was held by the Aaron case that the Certificate of Competency in the allottee freed homestead in the hands of his heir or devisee.
It had been held in relation to the Five Civilized Tribes that where the "allottee" died before allotment that the heirs of the allottee took free of restriction. In Kenny v. Miles, cited on page 445, the United States Supreme Court held that it mattered not whether the ancestor had died before or after allotment, her heirs were restricted. The Five Civilized Tribe cases were based upon language in the Allotment Acts to those tribes that was not present in the Osage Act.
It is clear from material on pages 445 and 446, that an heir who was also an allottee and who had a Certificate of Competency could alienate his inherited land as well as his allotted surplus.
Since Certificates of Competency would be issued only to an adult it would be 1928 before the question would arise Could a non-allotted Osage get a Certificate of Competency?" The Act of 1912, provided that an unallotted heir took free of restriction, see note 5 on page 450. Of course at first the unallotted Osage heirs would all be minors, but they could convey through a guardian.
White heirs were never restricted.
What of non-Osage Indian heirs? My best guess is they were not restricted surely as long as unalloted Osage were not restricted.
Chart from 1909 to 1912
The only change, and it applies to both allottee and heirs and devisees, was made by the Act of 1909 set out on pages 448-449. It authorized the Secretary to sell "part or all of surplus lands of any member of the . . . Osage tribe". In spite of the tendency to equate "any member of tribe" with "allotted member", the Court in the Aaron case considered this to include the land of deceased allottees. Therefore the Secretary could sell land inherited by non-allotted heirs or devisees. This change is indicated in the added last line of the "By Allottee" and "By Heir or Devisee" sections. The first line of each of the sections is a repetition from the period before indicating that as to these matters the law remained the same.
Chart from 1912 to 1918
As to allottees the first new matter is the third line. The statute authorized Osage allottees to swap land among themselves, if the Osage Council and the Secretary approved, see note 4, page 449. This permitted Osage allottees to consolidate their holdings physically.
The "By Heirs" section, in the first two lines, repeats the corresponding lines in the previous time frame. The last two lines are added by the Act of 1912. Section 6 of that Act deals with the lands of deceased Osage allottees. First look at the sentence beginning four lines down from top of page 450. "When the heirs of such deceased allottees have Certificates of Competency or are not members of the tribe, the restrictions on alienation are hereby removed." The third line in the "By Heirs" section is the result of the first part of the sentence, "When the heirs of such deceased allottees have Certificate of Competency." It should be noted that only adult heirs would have Certificates of Competency which would mean that they were also allottees.
The last line of the section "By Heirs" derives from the last part of the sentence," or are not members of the tribe". Until one becomes accustomed to dealing with the Osage, one might think that these referred to white or Indians of other tribes but the La Motte case, cited on page 450, holds that those Osage born on or after July 1, 1907 are "not members of the tribe" and are therefore not restricted.
Notice that for the first time we have a section on partition. Section 6 of the Act of 1912 in note 5, page 449, which we have been examining is basically an authorization for the Oklahoma courts to partition or to sell the lands, if the heirs can't agree upon partition in kind. But notice the proviso, "That no partition" and that seems to include partition in kind by the agreement of the heirs, partition in kind by the courts or partition by sale "was valid until approved by the Secretary." Kenny v. Miles cited in note 6, page 450 holds that without that approval, the partition and the finding of heirship made therein were equally void and not binding upon the parties in a subsequent probate of the deceased estate.
Sale in Probate Matters.
This too is a new section. Section 3 of the Act of 1912, cited in the last paragraph of note 7 on page 453 put probate of restricted lands in the hands of the county court of Oklahoma. But the last proviso of the section requires that any sale or alienation in probate matters had to have the approval of the Secretary, see last paragraph of note 7, page 452.
These two sections, that is "Partition Where otherwise Restricted" and "Sale in Probate Matters" appear repeatedly in the Osage charts and are still law at the present time. For this reason no additional comment on these two sections will be made as they appear in the charts for subsequent periods.
By Will Where Otherwise Restricted
The next section, the first on page 427, is also a new section in the chart. Prior to adoption of the Act of 1912, Osage allottees who had certificates of competency could devise their allotments as a part of their being generally unrestricted. With the adoption of section 8 of the Act of 1912, set out in note 7, page 451, even though the Osage had no Certificate of Competency and therefore was otherwise restricted, he was authorized to make a will. The section requires that the will of the otherwise restricted Indian had to be approved by Secretary, either before or after death, and that the will is not to be admitted to probate or have any validity without the approval of the Secretary.
The first line of this section is a repetition of a line in the previous charts. The second line in the "By Devisees" section has been the subject of much self-debate. It is accurate. It is within the La Motte decision that the unallotted are not members of the tribe and not restricted. It could be criticized that it is surplusage. To be a "devisee" one would have to take under a valid will, that is, a will by an allottee having a Certificate of Competency or a will approved by the Secretary. That is a devisee would have to take under either the first or third lines and under either the devisee is unrestricted. If this reasoning is valid line 2 becomes surplusage. But I left it in on the off chance that I have over-looked some matter in which there might be a valid will, not coming under the first or third line. Even if it is surplusage, one can be kind and call it an alternate reason. Notice that the line is carried forward into charts relating to more recent periods.
Refer now to the third line in the "By Devisees" section. As indicated in note 7, the La Motte case states that even though not expressly so provided, nevertheless a devisee under an approved will takes without restrictions.
Chart 1918 to 1921
The only changes made by the Act of 1918 occur in the section "By Allottees". The Act permitted allottees to switch designations of homestead to land previously held as surplus upon application to Secretary. The change had to be recorded in Osage County Clerk's Office. Notice that the Act is set forth in note 8 on page 452. Thefirst three lines of the section on allottees carry the additional designation, note 8.
The last line is a new line within this section. The Act of 1918 carried a provision authorizing the Secretary to permit allottees to sell either homestead or surplus. The rest of the 1918 to 1921 duplicates the previous chart.
Chart 1921 to 1925
The Act of 1921, see note 9 on page 453, removed all restrictions on less than half-blood adults. This is reflected in the first line of the "By Allottee" section. To implement this change the Act also required the Secretary within four months to determine what members of the tribe were of less than one-half Indian blood and their age. His determination on these matters was final and conclusive. Homestead was to remain non-taxable in the hands of the original allottee until April 8, 1931.
There is nothing new in this section. The law from the previous period is carried over.
Notice that the statute has been strictly construed as not affecting any conveyance but a conveyance by an allottee of his allotment, see United States v. Johnson cited on page 454. This accounts for the other new line in this time period, the first line in the "By Will" section.
As I explain in note 9, pages 453-454, this line is for the purpose of making it clear that an allottee under this Act could his allotment if he were an adult and less than one-half-devise blood as determined by the Secretary but under the Johnson case, he would not have power to devise land which he had inherited.
Also notice that the chart and note, page 453-454, take the position that the removal of restrictions as to less than half- bloods, as determined by the Secretary, made their allotments available to the claims of creditors from 1921 to 1925. I have nothing by way of decision to support the proposition. But since I prepared the book, my conviction has grown that I am right. Notice the exception to the removal of restrictions in the last line of Section 3 as set out in note 9. It states the exception to the removal of restriction, that homestead is to remain non-taxable until 1931. The expression of this exception to removal of restrictions excludes all other exceptions to the removal of restrictions under the doctrine of expressio unius est exclusio alter ius.
Chart 1925 to 1929
Now for the Act of 1925 and the chart beginning at top of 431.
There is a big change in the first line in the allottee chart. Between 1921 and 1925, if I am right, the less than half-bloods were totally unrestricted. Section 6 of the Act of 1925 made contracts for debts not approved by the Secretary by an allottee of less than half-blood void. It was held in Osage Motor v. United States cited on page 453 that that included mortgages. The rest of the "By Allottees" section is repetition of the same section in the prior chart.
By Allotted Heirs
Section 3 of the Act of 1925, see note 10, page 454, covers the status of heirs and devisees who are members of the tribe, in other words allotted heirs and allotted devisees. To me it is clear that this section does not reimpose restrictions on unallotted heirs and devisees. See the first five new paragraphs on page 455.
The next question is on what allotted heirs does section 3 operate. The language is clumsy "members of one-half or more Indian blood or who do not have Certificates of Competency". In United States v. Johnson cited on page 455, it was held that "or" could not be read as "and". The result would be that only allottees of less than one-half Indian blood who had a Certificate of Competency were unrestricted by the section. As the chart reflects only less than one-half-bloods who have Certificates of Competency are unrestricted as to inherited land. All others, that is all heirs who are half-bloods or more and those less than one-half who do not have a Certificate of Competency must have their conveyances of their inherited land approved by the Secretary. As to allotted devisees, see that section, infra.
By Unallotted Heirs
This is merely a repetition of the last line of the old "By Heir" section. Because of the complexities as to allotted heirs, I thought it expedient to divide the "By Heirs" section into allotted and unallotted heirs. The next two sections "Partition" and "Sale" in Probate Matters" are repetitions of sections in the previous chart.
By Will Where Otherwise Restricted.
The "By Will" section has changes. Each of the two lines has new authority cited.
The first line, "Allotment only by Allottee" has note 13 added. Note 13, page 457, emphasizes that Section 3 of the Act of 1925 reinforces the requirement that the will of a less than one-half-blood who does not have a Certificate of Competency must be approved by the Secretary either before or after the testators death.
Note 14, page 457, has the same function in relation to the second line of the section.
By Allotted Devisees
Beyond a doubt this next section is the most complex in the whole Osage chart. The section is the function of section 3 of the Act of 1925, note 10, page 454. We have looked at this before in relation to heirs. Here we are discussing the alienability of lands devised to "members of the Osage Tribe," that is devised to allottees, of "one-half or more Indian blood or who do not have Certificates of Competency". Again as in the case of heirs, it is devisees of one-half or more blood and devisees of less-than one-half who do not have Certificates of Competency who are restricted as to land devised under wills approved by Secretary.
I think it is clear that the mere approval of a will by the Secretary where the will would have been valid as to the land in question without his approval does not bring that land under the restrictions of section 3 of the Act of 1925, see Cox v. Smith and the Donelson case in third new paragraph on page 456.
In preparing this section I first went about determining and listing what wills would have been valid without the Secretary's approval. I listed those wills in the note, see the fifth paragraph, note 13, page 456, and in the chart as (1), (2), (3) and (4). In each of these cases the testator of the devisee in question was unrestricted as to making a will. It is only where the will giving property to an allotted devisee had to be approved that section 3 of the Act of 1925 is applicable.
Some of the last four unnumbered lines of the section could possible be included in some of the numbered lines. Some of the last four may be redundant among themselves but, nevertheless, I will risk being redundant with greater "cool" than I will risk leaving something out altogether.
The first line of the unnumbered four is so because under the verbiage of the section those who have a Certificate of Competency and are less than half-bloods were not restricted. The second line is true because those devisees who did come within the restricted classes could convey if Secretary approved.
The third unnumbered line covers the situation where the devisee is less than one-half and has a Certificate of Competence. Such devisees are expressly excluded from the restrictions imposed by Section 3. The fourth unnumbered line is true because no legislation had ever imposed restrictions on devisees' conveyances which were not vulnerable to the Secretary's approval of the conveyance.
By Unallotted Devisee
Now we come to a repetition of the line that I have referred to before as perhaps being surplus. Under the "By Devisee" section under Act of 1912, page 427, the statement that an unallotted devisee was not restricted while true could be misleading because prior to the Act of 1925, all devisees, allotted or not were unrestricted. But as we saw the Act of 1925, Section 3, on page 454 reimposed restrictions on land inherited by allottees and on devisee-allottees. Therefore, the previous line 2 in the section "By Devisees" has now become a separate section and it is no longer surplusage. I might add that it is this development, this line becoming anything but surplus, which was the primary reason for my not removing it in prior portions of this material.
Alienation of Property Purchased for an Osage
Now for last section on the chart of 1925-1929. It deals with land purchased for Osage with restricted funds by the Secretary. Similar to Carney-Lacher deeds in the case of the Five Civilized Tribes, the deed to the Osage contained language restricting it in his hands. The B.I.A. has taken position that a Certificate of Competency permits the grantee in this sort of deed to alienate, see note 15, page 458. The language of the Act authorizes the Secretary to approve the alienation of such land.
In 1931, the 25 year period of restrictions would have run out so in 1929 Congress extended restrictions until 1959, see note 16, page 459.
Chart from 1929 to 1938
But in the same Act, section 5, see note 17 on page 459, Congress equated restrictions on non-allotted and allotted Osage. Because only Osage born on or after 7/1/07 were unallotted, none would reach 21 until 1928. Hence the concern for the unallotted who are already beginning to come of age. We will see the results of this on a line by line basis. But first note that Congress did some "tinkering" with the provisions concerning contracts for debt and allotted land being available to creditors. Under the Act of 1925 the allotted Indian was completely protected against contract for debts not approved by the Secretary unless the allotted Indian had a Certificate of Competency. Unallotted heirs had no protection at all from the claims of contract creditors, -see--note 12 on page 457. Congress equalized this and made land of a less than half-blood Osage, allotted or unallotted, available to contract creditors if they had Certificates of Competency, see note 17 on page 459.
There is no change in the "By Allottee" section.
By Allotted and Unallotted Heirs
The next section differs from the corresponding section in the previous charts because there is now a single rule for allotted and unallotted heirs. The two lines in the section are repetitions of the same lines in the previous chart as to allotted heirs. That is, if the heir is of less than half-blood, he is restricted unless he has a Certificate of Competency. If the heir is one-half or more Indian blood whether allotted or not, he may alienate only with Secretary's approval.
The first line applies only to allottees; it cannot apply to the unallotted because unallotted heirs have no allotments of their own, see note 18, 460.
The second line makes the law previously applicable to allotted Osage equally true of the unallotted.
By Allotted and Unallotted Devisees
The first change in this section from the "Allotted Devisee" section in the prior chart is line (2). About this see note 19, page 460, and particularly the second paragraph. One of the sources for an allottee having a title by a devise which was not under a will which had to be approved by the Secretary was by devise from an unallotted testator. The Act of 1929 put an end to this source by imposing on the unallotted the same restrictions as on the allotted. Of course, the only unallotted testators would be those who were born on or after July 1, 1907 and who had reached 21. The earliest this could have happened is July 1, 1928. Therefore the line designated as (2) now reads, "Where the testator-devisee was unallotted and died before March 2, 1929, the date upon which Congress eliminated the distinction between the allotted and the unallotted.
Before leaving the Act of 1929, it should be emphasized that at least after the Act of 1912 until this Act, unallotted Osage were totally unrestricted. This Act imposed restrictions on the unallotted but the Act also provided that Certificates of Competency could be issued to the unallotted under the same conditions as they could be issued to the allotted, see last paragraph, note 17 on page 460.
Act of 1938
With 21 years of the last extension still to run, in 1938 Congress further extended the restrictions until 1984. This Act as amended is the current law.
This was followed by a period of about 9 years with no changes as indicated on the charts.
Act of 1947
In 1947 Congress validated contracts from debts made by Osage veterans under the so called "G.I. Bill of Rights" and validated all contracts for debts made by Osage who reached the age of 21 without Secretarial approval. However, land allotted was available to creditors only as to those Osage having Certificates of Competency. Please notice that I have in note 21, pages 461-463, traced step by step the development of the Government's policy in invalidating contracts for debt not approved by the Secretary and the policy of protecting allotted lands from sale for the satisfaction of judgments, even where the debt was valid, and at times when the land was alienable voluntarily.
Chart from 1948 to 1978
In 1948, Congress lifted all restrictions on Osage allotted lands in the hands of allotted or unallotted Osage who had or thereafter received a Certificate of Competency.
It should be noted that the Act of 1948 was repealed in 1978. For this reason this Act is treated separately in an one line entry. This served as an additional basis for valid conveyance during this period.
Act of 1956
The Act of 1956 was a part of the governments program to upgrade Indian housing. The Secretary was authorized to approve mortgages so that Indians could mortgage the allotted land and have housing built for them on their restricted land. Notice the Montana case cited in note 23, page 464 therein. The Montana State Court held that the Act of 1956 did not bestow jurisdiction on state courts to entertain suits to foreclose mortgages.
Act of 1978
At this point we reach the law governing transactions which were made beginning Oct. 21, 1978 and which will continue to control until Congress otherwise provides, -otherwise, see note 28, page 47.
This, I hope, will not occur until after June 30, 1992, the date of my statutory senility, a phrase I picked up from one Maurice Hitchcock Merrill. This is the date upon which some one else can take over Indian Land Titles.
The first section of the chart has nothing new.
But the section on "By Heirs" is again divided as to allotted and unallotted heirs. The same is true in part of allotted and unallotted devisees below. I separated them to emphasize a problem as to the meaning of the 1929 Act which imposed, see note 17 on page 459, the same restrictions on the unallotted as then imposed upon the allotted.
As I explain in note 24, page 464-466, Congress gave no indication in the 1929 Act that it intended to keep the restrictions of the unallotted and allotted equal thereafter. Indeed the language of the 1929 Act, if anything seems to negate that thought.
In the Act of 1978, Congress amended the 1925 Act which had placed restraints on members, that is allotted Osage, who inherited or took by devise. As drafted that Act restricted all allotted heirs and allotted devisees of one-half or more Indian blood and those allotted heirs and allotted devisees of less than one-half-blood who did not have a Certificate of Competency. This Act was amended by striking out the language '' of one-half or more Indian blood." This amendment resulted in freeing from restrictions all allotted heirs or allotted devisees who had a Certificate of Competency.
But as I have said, my policy of conservatism dictates that where there is any lack of clarity take the view of the stricter restriction. Again I say, I would rather refuse to pass a title and lose in a suit for specific performance than I would to pass the title and lose in ejectment.
I refer you to the last sentence in note 24 on page 466, where the net result of taking the conservative position is stated.
Short Form Probate
As indicated by the pertinent note, note 27, page 469-470, if the restricted estate is $10,000 or less then the Secretary can handle the restricted estate on the request of one or more heirs or devisees.
The next section which is altered by the Act of 1978 is the "By Will" section. Two matters are of importance. First, if this statute is relied upon, an eighteen year old Osage can now make a will. The second thing is that a will can be approved only after the death of the testator by a hearing held by the Secretary which is described in some detail.
As I said in the note, note 25 on pages 466-468, I do not think that the Act ·of 1978 changes the first line concerning an allottee devising his allotment.
This same note also contains some legislation affecting probate, guardian and wardship matters in the district courts of Oklahoma.
By Allotted and Unallotted Devisee
Notice the next section pertaining to devisees is a repeat of all but the last two lines in the same section in the chart relating to the Act of 1929. The matters dealt with in those last two lines of the 1929 to 1938 period are treated in the next two sections.
The next two sections deal with the same problem which we talked of in relation to allotted and unallotted heirs. The Act of 1978 amended the Act of 1925 dealing with allotted devisees who took under wills which had to be approved by the Secretary.
There has been no amendment as to unallotted devisees who took in wills which had to be approved by the Secretary. Therefore as to the unallotted devisees, the chart takes the conservative approach; unallotted devisees of one-half or more Indian-blood are restricted even if they have Certificates of Competency. They may convey only with Secretarial approval. It is only the less than half-blood unalloted devisees who are unrestricted if they have a Certificate of Competency.
It may be that there is some redundancy between these sections and the section, "Allotted and Unallotted Devisees," just above, but I have not been able to assure myself that there is redundancy and just where it occurs. At worst I'm only saying the same thing twice.
Mortgage Where Otherwise Restricted
This section came into the charts as the result of the Act of 1956. It remains unchanged.
Inter Vivos Trusts Where Otherwise Restricted
This is a new section in the charts. Please see note 26, page 469.
Restrictions Extended Until Congress Otherwise Provides
This, together with note 28, page 470, is self explanatory.