« ForrigeFortsett »
in the probate courts by unscrupulous and designing persons who obtain control of their estates through guardianship proceedings for the sole and only purpose of robbing them; that the majority of Creek Indian minors are now landless, due to the fact that guardians have squandered their estates through these same courts on the pretext of obtaining funds for the minors' maintenance and education when it is well known that the Government maintains excellent educational institutions free of all cost to Indians; that the moment an Indian becomes wealthy through the discovery of oil or mineral on his allotment he is brought into court and declared incompetent and one or more guardians appointed, thus placing the Indian in a class with children, insane, and idiotic persons; that the guardianship of wealthy Indian estates are used by candidates of county judiciary offices as a political football and kicked to the person contributing most to his success; and
Whereas it was the sole object and intent of the Creek delegates in inserting article 4, act of Congress approved March 1, 1901 (31 Stat. 861), as relates to the appointment of guardians, to defeat just such evils as are now being practiced; that by act of Congress the Secretary of the Interior is acting in the capacity of guardian and custodian of the funds of restricted Indians without any cost whatever for such services; and that the dual guardianship as imposed by the State courts is unnecessary, costly, and detrimental to the welfare and best interests of the Indian; and that, owing to the Indians being in the minority and the unscrupulous and grafting element in the majority, no relief or reforms can be expected from the State legislature nor from our Representatives in Congress: Therefore be it
Resolved, That the members of this association strongly protest the further appointment of white or non-Indian guardians over Indians, and that the Secretary of the Interior be urgently requested to take immediate steps to obtain legislation by Congress to correct and stop the aforementioned evils of the probate court system in Oklahoma; that this association strongly favors legislation giving the Secretary of the Interior absolute jurisdiction over the estates of restricted Indians; further
Resolved, That copies of this resolution be sent to the Secretary of the Interior, the Governor of the State of Oklahoma, the Commissioner of Indian Affairs, the chairman of the Committee on Indian Affairs of the United States Senate, the chairman of the Committee on Indian Affairs of the United States House of Representatives, the Superintendent of the Five Civilized Tribes, and the attorney for the Creek Nation.
Approved, August 18, 1923.
When that resolution was brought to my attention, I felt it was my duty to follow that with some effort to ascertain just what were the facts covering the guardianship situation in Oklahoma, having lived among them myself 23 years and knowing a great many of the existing conditions. Upon that I determined to make a fair and statistical report of as many counties as possible, in the administration of guardianship estates, and to make a complete report in those counties, showing a comparison of the relative costs and actual conditions of administration. We took the probate force and a part of my clerical help and made a complete report in six counties under the supervision of the Five Civilized Tribes, scattered among the 40 counties of our supervision, those counties being Creek, Okmulgee, Muskogee, Okfuskee, McCurtain, and Stephens Counties, scattered in the counties of great wealth under Indian supervision. I have made a complete report individually of each county; a complete summary of all the counties, to which I will draw your attention, and leave here for the record the entire report. I will quote from one paragraph of the report, as follows:
For the above-mentioned six counties, it appears that out of the total 14,229 cases there were 9,042 cases in which, by reason of the fact that no reports were in the files, no information as to receipts or as to expense of administration could be obtained. In most of these cases where the reports or papers were not in the files, either no reports had been furnished by the guardians or else the reports
were missing and unaccounted for, except that in some cases, however, the reports had been withdrawn temporarily by attorneys upon their receipts therefor. Of the total 5,187 cases, in which the reports on file were examined, 2,821 were those relating to estates of Indian wards, 494 were those relating to freedmen wards, and 287 were those relating to estates of white wards, and in 1,585 cases the persons examining the files were unable to determine as to racial classification of the wards. The total receipts shown by the papers examined to have been received in the 2,821 Indian cases aggregated $14,750,043.94; the cost administration, including court costs, costs of guardians' bonds, administrators', guardians', and attorneys' fees, amounted to $2,002,385.37; the cost of administration being 13.57 per cent of the receipts."
The report referred to is as follows:
Hon. CHARLES H. BURKE,
Commissioner of Indian Affairs,
Washington, D. C.
DECEMBER 31, 1923.
SIR: 1. In your letter of November 9, 1923, to Edwin S. Booth, special assistant to the Attorney General, in response to his communication of October 18, 1923, in regard to Indian probate matters in eastern Oklahoma, it was stated "that from reports and communications received there are indications that there are many cases where there have been flagrant violations of trust by the guardians of the Indians and administrators of Indian affairs, and that there are excessive fees to attorneys, and that the costs of administration and guardianship are unnecessarily high, and that the estates have been, and are being, to a more or less extent, dissipated through unnecessary or wasteful expenditures, from which the Indians derive little or no real benefit."
2. In compliance with your instructions of November 9, 1923, an investigation has been made concerning these probate and other matters affecting the estates of Indians of the Five Civilized Tribes, and a report in regard thereto is herein below set forth.
3. It is deemed appropriate that in connection therewith, and before setting out the facts ascertained in the present investigation, some reference be made to certain laws and proceedings thereunder, and effect thereof, relating to the Indian allotted and inherited lands and funds, and leading up to the present state and condition of affairs.
4. The annual report of the Superintendent for the Five Civilized Tribes for the fiscal year ended June 30, 1923, contains the information that there were 101,506 Indians, freedmen, and others, enrolled on the final rolls of the Five Civilized Tribes, and that, to them or their heirs there had been allotted land aggregating 15,794,218 acres.
5. By the agreements by and between the United States and the several tribes under which the above-mentioned allotments of land were made it was provided that the allotments should be subject to a restriction against alienation for a certain period of time. The restriction against alienation was set out in the allotment patents. By the act of Congress of April 21, 1904 (33 Stat. L. 169), the restrictions upon the alienation of lands of all allottees of the Five Civilized Tribes who were not of Indian blood, except minors, were, except as to homesteads, thereby removed. Authority was also granted by the above mentioned act to the Secretary of the Interior to remove, upon application of adult Indian allottees, the restriction against alienation of their allotted land, except as to homesteads. By section 19 of the act of Congress approved April 26, 1906 (34 Stat. L. 137), however, it was provided that no full-blood Indian of the Five Civilized Tribes should alienate or dispose of his allotted lands for a period of 25 years from the date of the act, unless such restriction should, prior to the expiration of said period, be removed by act of Congress. By section 1 of the act of Congress approved May 27, 1908 (35 Stat. L. 312), the restrictions against alienation were removed from all lands, including homesteads, of allottees enrolled as intermarried whites, as freedmen, and as mixed-blood Indians having less than one-half Indian blood, and including minors. The restrictions were also removed from all lands, except homesteads, of allottees enrolled as mixedblood Indians having one-half or more than one-half and less than three-quarters Indian blood. As to the other allotted lands from which the restrictions had not been removed, it was provided that they should not be subject to alienation, contract to sell, power of attorney, or any other encumbrance prior to April 26, 1931, except that the Secretary of the Interior might remove such restrictions wholly or in part under such rules and regulations as he might prescribe.
6. From the annual report of the superintendent for the Five Civilized Tribes for the fiscal year 1923 it appears that the allotted land from which restrictions have been removed aggregates 13,742,406 acres, of which the restrictions on 12,439,553 acres were removed by operation of the acts of Congress, which removal of restrictions was not based upon the competency or ability of the allottees to care for their business or property rights, but upon their quantum of Indian blood.
7. In the annual report of the superintendent for the Five Civilized Tribes for the fiscal year 1916 the then superintendent, referring to the result, stated that— "Time and developments have demonstrated that quantum of blood does not indicate business capacity, or the lack of it. A reliable estimate discloses the startling probability that approximately 90 per cent of the members of the Five Civilized Tribes, who have had their restriction against alienation of their lands removed by congressional acts, have parted title thereto, If this assumption is correct, we are confronted with the astounding result that within less than 10 years 75 or 80 per cent of a race of landlords, through their own inexperience and lack of appreciation of thrift, or through the farsighted activities and often cunning of their fellows, have been transformed into a race of tenants, and, unfortunately, deferred tenants."
8. The report of the superintendent for the Five Civilized Tribes for the fiscal year 1923 indicates that on June 30, 1923, there were remaining 17,410 Indians of the Five Civilized Tribes whose allotments, or parts of allotments, were still restricted as to alienation, and that the allotted land still restricted as to alienation is approximately 2,051,812 acres. The royalties and other incomes from these restricted lands are paid into the office of the superintendent for the Five Civilized Tribes for the benefit of the respective Indians entitled thereto; the care, investment, and disbursement of these restricted individual Indian moneys are under the supervision of the Department of the Interior. It appears from the superintendent's report that $5,719,337.94 of the individual Indian moneys were, during the year, paid out to the Indians, or disbursed for their benefit, and that on June 30, 1923, there remained a balance of unexpended individual Indian moneys amounting to $11,260,510.50.
9. In a report of November 3, 1915, the then superintendent for the Five Civilized Tribes, in referring to the restricted individual Indian moneys, and efforts made by interested parties to obtain the investment or other disbursement thereof, for all manner of business, states that—
"There is every pressure imaginable, not only from those who desire to separate the Indian from his money, but in many cases from the Indians themselves, brought to bear upon me to purchase various and sundry things with Indian moneys, or to make loans on all kinds and classes of securities, and, even, to pay out the money without restriction thereon whatever to individuals, guardians, administrators and every other conceivable way possible, to get the money out of the hands of the department."
As indicative of the condition of affairs, it is clear, therefrom, that under similar pressure the Indians, who were not competent to properly handle their estates and protect their own interests, but from whose lands the restrictions were removed by operation of the acts of Congress, and whose incomes, derived from such lands, became unrestricted, would not long be able to withstand the pressure and the efforts of grafters and others, to get them to invest their moneys in all kinds of "blue sky" propositions, and, in the end, the Indian, through his inexperience and business incompetency, loses his land and dissipates his funds.
10. By section 22 of the act of Congress of April 26, 1906 (34 Stat. L. 137), adult heirs of a deceased allottee of the Five Civilized Tribes were permitted to sell and convey lands inherited from the decedent, and it was provided that minor heirs might join in the sale of such inherited lands by a guardian, duly appointed by the proper United States court for the Indian Territory. It was further provided, however, that
"all conveyances made under this provision by heirs who are full-blood Indians are to be subject to the approval of the Secretary of the Interior, under such rules and regulations as he may prescribe."
By section 9 of the act of Congress of May 27, 1908 (35 Stat. 312), however, the death of any allottee of the Five Civilized Tribes operated to remove all restriction against the alienation of said allottees' lands, provided, however"that no conveyance of any interest of any full-blood Índian heir in such lands shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee. * * *
The provision of law, last above quoted, removed from the Secretary of the Interior the right and authority to supervise the sale of Indian allotted land
inherited by full-blood Indian heirs, and conferred the authority and supervision over such matters upon the county courts of the State. Many of these full-blood Indian heirs are wholly incompetent to transact business of considerable consequence. Many complaints are received from the Indian heirs against their grantees on account of alleged inadequate considerations and practices of fraud. The superintendent for the Five Civilized Tribes, in a communication of November 28, 1923, to Mr. F. E. Brandon, special supervisor stated that"the practical working of this law as now applied does not always protect the Indian heir but often permits results inimical to the best interest of the Indian, in that he does not receive a fair and adequate consideration for the land sold; and in this connection I call attention to certain concrete cases that have come under the observation of the office through the examination, in the course of official business, of abstracts of title covering lands located in several counties of eastern Oklahoma, formerly Indian Territory. * * ""
In illustration, the superintendent referred to 20 cases as examples, and your attention is especially invited thereto as set forth in the superintendent's letter. 11. In one case, that of Lottie Carney, a full-blood Chickasaw, sole heir of Lucy Carney, deceased, it appears that on May 18, 1915, she sold to Edna F. King, by deed approved by the county court of Pontotoc County, Okla., certain described 154.45 acres in Pontotoc County, for a consideration of $1,600, and that, within three days thereof, the purchaser was able to borrow on the same land $2,100, being $500 more than the sum she paid to the Indian heir as the purchase price of the land.
In another case, that of the heirs of Louvina Bills, deceased, two of whom were full-blood Indians, and one a half-blood Indian, it appears that on February 12, 1916, Thomas Dick, the half blood, sold his undivided one-third interest in a certain described 120 acres in Carter County, Okla., inherited from Louvina Billis, deceased, to one C. W. Rollins for $1,600, and that seven days later James S. Culberson and Lewis Page, the two full-blood heirs sold, with the approval of the county court of Atoka County, Okla., their undivided inherited two-thirds interest in the above mentioned 120 acres to C. W. Rollins for $1,000. In other words, the half-blood Indian heir, whose interest was unrestricted as to alienation, disposed of his undivided one-third interest for $600 more than the two full-blood Indian heirs were able to obtain for their undivided two-thirds interest, although the sale of the full-bloods' interest was with the approval of the county court.
In another case, that of the full-blood Indian heirs of Mitchell Sarwanoke, deceased Creek Indian, it appears that on July 28, 1917, three of the heirs sold their interests in a certain described 30-acre tract in McIntosh County, with the approval of the county court, for $433.33, and that, on August 8, 1917, the remaining heirs of the decedent sold their interests, with the approval of the same court, for $216.66. It is noted that on August 8, 1917, the date the purchaser completed his purchase of the land, he was able to effect a loan on the land of $830, being $180 more than he paid as the purchase price of the land.
In another case, that of the heirs of Leolena Johnson, a deceased full-blood Choctaw Indian, it appears that on November 14, 1918, the full-blood heirs sold, with the approval of the county court of Haskell County, Okla., the 200 acres of land inherited from Leolena Johnson to one R. S. Bristow for a consideration of $2,000, and that, within 19 days after the purchase of the land, the purchaser was able to borrow on the land from the American Investment Co. the sum of $4,007, being $2,007 more than the amount paid to the Indian heirs as the purchase price of the land.
In another case, that of the full-blood Indian heirs of William Joseph, a deceased Choctaw Indian, it appears that the heirs sold, with the approval of the county court of Choctaw County, for a consideration of $2,000, a certain 160-acre tract, inherited from the above-named decedent, and that, within three days after the execution of the deed conveying the minor heir's undivided one-half interest in the land, the purchaser obtained on the land a loan of $3,420, being $1,420 more than was paid to the Indian as the purchase price of the land.
In another case, that of the full-blood Indian heirs of Wilson Cole, deceased, it appears that the heirs sold, on November 22, 1921, with the approval of the county court of McCurtain County, Okla., certain described 80 acres of land to James R. London, for a consideration of $1,250, and that London, one day later, sold the land to one A. E. Martin for $3,500, and that Martin, on the day of his purchase, borrowed on the land from the Monarch Loan Co. the sum of $1,980.
12. These cases, as stated by the superintendent in his communication to Special Supervisor Brandon, must, as a matter of fact, be but a small part of the
whole number of similar cases to be found in all the counties of eastern Oklahoma. They furnish convincing proof that the full-blood Indians do not, in many instances, receive adequate compensation for their interests in inherited land sold under the provisions in section 9 of the act of May 27, 1908.
13. In connection with the above, reference is made to the matter of approval by the county court of Pontotoc County, Okla., of a deed from Israel Lewis, Choctaw Indian, heir of Sarah Lewis, deceased Choctaw, covering certain inherited land, and to the report of November 7, 1923, to you from Mr. J. H. Finley, United States probate attorney, concerning the transaction. In this case it appears from the probate attorney's report, that the land was sold for $2,800, which was $1,702 less than the appraised value of the land, and $700 less than the land might have been sold for to another party.
It has been held by the Supreme Court of the State of Oklahoma that the approval, by the county courts, of deeds of full-blood Indian heirs, conveying inherited lands, is not a judicial act and can not be appealed from. It appears from Probate Attorney Finley's letter in the Lewis case, that other probate attorneys have stated they have had similar cases where deeds were approved to Indian lands for less than the actual value of the land, or without notice to the probate attorney; and that the protests of probate attorneys appear to be of little avail. A copy of Probate Attorney Finley's report, above mentioned, is inclosed.
14. In section 2 of the act of Congress approved June 14, 1918 (40 Stat. L. 606), it is provided
"That the lands of full-blood members of any of the Five Civilized Tribes are hereby made subject to the laws of the State of Oklahoma, providing for the partition of real estate. Any land allotted in such proceedings to a full-blood Indian, or conveyed to him upon his election to take the same at the appraisement, shall remain subject to all restrictions upon alienation and taxation obtaining prior to such partition. In case of a sale under any decree or partition, the conveyance shall operate to relieve the land described of all restrictions of every character."
Referring thereto, the Superintendent for the Five Civilized Tribes, in his communication of November 28, 1923, to Special Supervisor Brandon, states that"Suits for the partition of lands are usually brought in the district courts, and this may be done without any notice whatever to the United States probate attorneys, thus depriving some of the heirs, possibly, from obtaining the advice and counsel of representatives of the department. The discretionary power of the court in taxing as costs attorneys' fees might, if misused, prejudice the rights or property interests of the full-blood Indian heirs. The section above quoted opens another avenue, whereby the full-blood Indian heir may be divested of his inheritance without the counsel and advice of the Federal Government."
A copy of the above-mentioned communication of November 28, 1923, of the superintendent for the Five Civilized Tribes to Special Supervisor Brandon, is inclosed.
15. By operation of the provisions of the act of Congress, approved May 27, 1908 (35 Stat. L. 312), Federal supervision was removed over the estates of a large number of Indians, including minors. In section 6 of the above-mentioned act of 1908, it was provided, among other things-
"That the persons and property of minor allottees of the Five Civilized Tribes shall, except as otherwise specifically provided by law, be subject to the jurisdiction of the probate courts of the State of Oklahoma."
This, of course, gave the probate courts of the State complete jurisdiction over the persons and property of minor allottees from whose estates restrictions had been removed. There is some question, in view of the provision "except as otherwise specifically provided by law," as to what jurisdiction, if any, the probate courts of the State may have in the matter of estates of restricted minor Indians and of individual Indian funds, or income derived from such estates, held under the supervision of the Secretary of the Interior. In reference to the question of the supervision and control by the Secretary of the Interior over the restricted Individual Indian funds of Indians of the Five Civilized Tribes, your attention is invited to the decision of the Supreme Court of the United States in the Eastman Richard case (250 U. S. 235) and the decision of the United States Circuit Court of Appeals for the eighth circuit in the Hinkle case 261 Fed. 518).
The probate courts of the State have been asserting jurisdiction relative to rstates, not only of minor restricted Indians, but also of adult incompetent restricted Indians. For further reference as to the jurisdiction conferred upon the probate courts by the act of May 27, 1908, see provisions of sections 2, 6, , and 9 of said act. An enormous volume of work devolved upon the county courts as the result of said legislation.