Cherokee Allotment Agreement, 32 Stat. 716, § 59 (1902).The same is so in relation to patents issued to the Creeks.
In re Lands of Five Civilized Tribes, 199 F.811, 819 (E.D. Okla. 1912).
Mills § 22.
Original Creek Allotment Agreement, 31 Stat. 861, § 23 (1901).There was a similar provision as to patents issued to the Seminoles.
In re Lands of Five Civilized Tribes, supra.
Mills § 111.
Original Seminole Allotment Agreement, 30 Stat. 567, 568 (1898).However, there is no such provision in the allotment acts relating to the Chickasaws and Choctaws. It is said, Mills § 56, that the reversionary interest of the United States was extinguished by a joint patent from these tribes executed by the Principal Chief of the Choctaws and the Governor of the Chickasaws because of § 15 of the Act of March 3, 1893, 27 Stat. 612, which gave the permission of the United States to allotment of not to exceed 160 acres to any one individual, and upon allotment the reversionary interest of the United States shall be relinquished and shall cease. The only difficulty with this explanation is that the Supplemental Choctaw-;Chickasaw Allotment Agreement, 32 Stat. 641 (1902) provided that each member was to receive land equal in value to 320 acres of the average allotable land.
Mullen v. U.S., 224 U.S. 448 (1912).But until allotment is made, lands remain communal and there is no interest in an individual or his heirs (when allotted to the heirs of the deceased) that is alienable.
Ballinger v. U.S. ex rel. Belle Frost, 216 U.S. 240 (1910).
Wallace v. Adams, 143 F.716 (8th Cir. 1906).
Mills §§ 21, 60, 110, 147.
Mullen v. Pickens, 250 U.S. 590 (1919).The court can go behind the patent only for mistake of law or for fraud.
Robinson v. Caldwell, 55 Okla. 701, 155 P. 547 (1916)
Franklin v. Lynch, 233 U.S. 269 (1914).
Colbert v. Patterson, 83 Okla. 212, 201 P.256 (1921).The patent or certificate of allotment must be recorded in the county where the land is situate; the allotment records, certified copies of which may, under section 12, Act of May 27, 1908, 35 Stat. 312, 316, be filed in the county, merely recite the fact that certain land, describing it, has been allotted to a certain Indian, giving roll number, age and sex. Such records are not a sufficient basis of title; where the abstractor certifies to the records of the Dawes Commission at Muskogee filing of patent in county may be waived.
Higgins v. Waters, 60 Okla. 209, 159 P.1129 (1916).
"Carter v. Prairie Oil and Gas Co. 160 Pac. 319.A second, and probably earlier version has the same item except for the last two citations, which are missing. The statements of law in the item are at best incomplete. There is authority for the proposition that where the original deed was given at a time when the controlling statutes expressly provided that a deed given in contravention thereof could not be ratified, for example, the Creek Supplemental Allotment Agreement § 16, 32 Stat. 500 at 503 (1902). A subsequent deed given in ratification thereof is also void.
Catron v. Allen, 161 Pac. 829".
Nunn v. Hazelrigg, 216 F.330 (8th Cir. 1914).A statute provided that "every deed executed before, or for the making of which a contract or agreement was entered into before the removal of restrictions, be and the same is hereby, declared void".
Oates v. Freeman, 57 Okla. 449, 157 P.74 (1916).
Alfrey v. Colbert, 7 Ind. T.338, 104 S.W. 638 (1907).
§ 16, 34 Stat. 137 at 144 (1906).Under this Act it was held that deeds contrary to the restriction in existence at the time the deed was given, whether given before this Act or after, were void in the sense that they were not capable of ratification by a deed subsequent to the removal of restrictions where the attempt at ratification was made prior to the passage of 35 Stat. 312 on May 28, 1908.
Hudson v. Johnson, 87 Okla. 128, 209 P.2d 325 (1922).With the passage of the aforementioned Act of 1908, the Oklahoma Court's reaction to the question of ratification of a previously given void deed took a curious turn.
Johnston v. Burnett, 81 Okla. 294, 198 P.489 (1921).
Williams v. Diesel, 65 Okla. 163, 165 P.187 (1917).
Nixon v. Woodcock, 64 Okla. 86, 166 P.183 (1917).
Ehrig v. Adams, 67 Okla. 157, 169 P.645 (1918).In the first decision, hereinafter referred to as Ehrig I, the opinion was written by Commissioner Devereux and adopted, per curiam, in whole. The Commissioner after setting out the language of the 1908 Act as quoted above said that § 16 of the Creek Supplemental Agreement, 32 Stat. 500, 503 (1902), above, contained comparable language and that the Eighth Circuit, in Nunn v. Hazelrigg, above, had held that under that language a new deed, given without new consideration after the restrictions were removed, could not ratify the former deed.
(Hereinafter referred to as Ehrig II.)
See Campbell v. Daniels 68 Okia. 254, 173 P. 517 (1918) and cases cited therein.Land not liable for any claim contracted before the removal of restrictions; removal of restrictions does not subject land to forced alienation.
Mullen v. Simmons, 234 U.S. 192 (1914) (tort claim).A will is an alienation and speaks from the death of the devisor. [Strange as it may seem, both versions of the notes used the word "devisee", rather than the word "devisor".]
Posey v. Abrahams, 165 Okla. 140, 25 P.2d 287 (1933).
Choctaw Lumber Co. v. Coleman, 56 Okla. 377, 156 P.222 (1916).
In re French's Estate, 45 Okla. 819, 147 P.319 (1915).
Bennett 71, 77 and cases cited therein.
Mills §§ 120, 125, 190.
Semple § 374.
Hayes v. Barringer, 168 F.221 (8th Cir. 1909).Leases and mortgages are alienations, pro tanto.
Wilson v. Greer, 50 Okla. 387, 151 P.629 (1915).
Taylor v. Parker, 33 Okla. 199, 26 P.573 (1912).
Mills § 284.
Semple § 195.
Moore v. Sawyer 167 F.826 (E.D. Okla. 1909).A partition is an alienation and cannot be enforced against a restricted Indian except as authorized by Congress.
Chapman v. Siler, 30 Okia. 714, 120 P.608 (1912).
U.S. v. Hellard, 322 U.S. 363 (1944).Restricted land including rents therefrom may not be taken under judgment for alimony even though the allottee had the power to make a lease for not in excess of five years.
Coleman v. Battiest, 65 Okla. 71, 162 P.786 (1917).
Mills §§ 281, 336, 360.
Mills Supp. §§ 281, 336b and c. Semple §§ 227-;240.
Childers v. Childers, 62 Okla. 130, 163 P.948 (1916).
Burney v. Burney, 61 Okla. 35, 160 P.85 (1916).
Deere v. Neumeyer, 54 Okla. 377, 154 P.350 (1916) overruled on another point by Brown v. Miller, 89 Okla. 287, 215 P.748 (1923).When in this chart land is shown to be alienable by a minor, it must be understood that the minor must act through a guardian and by order of county court. This statement was true at the time this chart was originally prepared. With the court reform, county courts were abolished and guardianship matters transferred to the district courts.
Rogers v. Noel, 34 Okla. 238, 124 P.976 (1912).
Mills § 204.
Semple § 282.
Truskett v. Closser, 236 U.S. 223 (1915).Minority is a restriction. Prior to Act of 1908, deeds given after majority to ratify a prior deed did not have that result, as prior deeds were incapable of ratification.
Cotton v. McClendon, 128 Okla. 48, 261 P.150 (1927).
Henly v. Davis, 57 Okla. 45, 156 P.337 (1916). Mills § 210.
Mills Supp. § 210.
Semple § 409.
Hudson v. Johnson, 87 Okia. 128, 209 P.325 (1922).A deed given after the Act of 1908, however, even where there was no new consideration by one who had reached his majority did ratify a deed given prior to his majority.
Campbell v. Daniels, 68 Okla. 254, 173 P.517 (1918).
Mills § 215.
Mills Supp. § 215-;13.
See discussion of ratification above.
Truskett v. Closser, 236 U.S. 223 (1915).
Mills §§ 216-;217.
Mills Supp. §§ 216-;217.
Semple §§ 419, 425.
Rice v. Ruble, 39 Okla. 51, 134 P.49 (1913).Notice that in the Act of 1908 "the rolls" are made conclusive evidence of "quantum of blood", whereas "enrollment records" are conclusive as to age. Mills §§ 297-;310, Mills Supp. §§ 310a-;310b, and Semple §§ 91-;92 develop the significance of this distinction.
Mills § 303.
Semple § 91.
Gilcrease v. McCullough, 249 U.S. 178 (1919).
McDaniels v. Holland, 230 F.945 (8th Cir. 1916).
Heffner v. Harmon, 60 Okla. 153, 159 P.650 (1916).
Mills § 310.
Mills Supp. §§ 310a and c.
Semple § 92.
Gilcrease v. McCullough, 63 Okla. 24, 162 P.178 (1917), aff'd 249 U.S. 178 (1919).Prior to the Act of 1947, the question of determining quantums of blood of unenrolled Indians was troublesome, Semple § 96. In 61 Stat. 731, § 2 (1947) it is provided:
"In determining the quantum of Indian blood of any Indian heir or devisee, the final rolls of the Five Civilized Tribes as to such heir or devisee, if enrolled, shall be conclusive of his or her quantum of Indian blood. If unenrolled, his or her degree of Indian blood shall be computed from the nearest enrolled paternal and maternal lineal ancestors of Indian blood on the rolls of the Five Civilized Tribes."Semple § 96 cites Norris v. Johnson, 205 Okla. 98, 235 P.2d 926 (1951) as holding that (1) evidence that an enrolled ancestor was a half-;blood instead of full as shown by the rolls was inadmissible. Section 97 of Semple takes the position, seemingly correct, that only blood of an ancestor of the Five Civilized Tribes is to be considered. The plain language of the statute so indicates. But Semple's language, § 96, that "This section of the 1947 Act deals with the manner in which the degree of blood of an Indian grantor, whether enrolled or unenrolled may be ascertained" is, standing alone, over-;broad. The language of the section clearly limits its applicability to "Indian heirs or devisees"; allottees are not mentioned. The context of the section seems to indicate that Semple meant to be understood as referring to heirs and devisees alone.