(with the exception of Choctaws and Chickasaws, who are governed by the same laws) So that, in passing on these titles more than two hundred and fifty conditions may arise which do not appear in the ordinary title. Nevertheless, these titles are just as fixed and certain as any titles, provided one stays within the clear meaning of the acts of Congress.

There is a class of title that all admit is alienable, and another class that all admit is inalienable; then there is the twilight zone of uncertainty in which lurks speculators known as "grafters," who, either through ignorance of, or total disregard for the acts of Cor gress, have purchased thousands of acres of land, the alienability of which has always been questioned by the more conservative title experts of the state, and because of this very uncertainty, these lands have been acquired at a nominal purchase price.

A bona fide purchaser, seeking legitimate investment at a fair consideration can acquire an absolute title to thousands of acres of Indian land, which has never been questioned by the courts, provided he will seek the counsel of any reputable title expert.

In the Marchie Tiger case, the supreme court of Oklahoma held that the provisions of the act of April 26, 1906, requiring the Secretary of the Interior to approve the deed of full blood heirs, was retroactive and could not be held to apply to a class of land the restrictions on which had expired under the operation of a prior act. This decision, inasmuch as it involved the interpretation of a federal statute, was in no sense conclusive, but stood subject to review by the supreme court of the United States.

While I have the utmost respect for the supreme court of my state, I could not hold with them in this interpretation and therefore, for the last three years have refused to recommend loans of this character; the position is vindicated by the fact that on May 11, 1911, the Marchie Tiger case was reversed by the Supreme Court of the United States; and the records of the commissioners of the land office will show that I have disapproved more than one hundred thousand dollars worth of loans on which the state would now hold worthless mortgages had I seen fit to follow the ruling of the Supreme Court of Oklahoma in the Marchie Tiger case.

While it is estimated that the celebrated Marchie Tiger case made void the title under which more than one-quarter million acres of land was held in Oklahoma, I submit that every acre of this land was purchased with the full knowledge that the title was uncertain and the reason this land was purchased rather than land that had unquestionable title was that the clouded title forced down the market

value.

In the case of Hancock, et al., vs. the Mutual Trust Company, the Supreme Court of Oklahoma held that prior to the act of Congress approved May 26, 1906, and under the act of July 18, 1902, the heirs of a deceased Cherokee Indian might alienate the lands inherited from such a decendant.

A similar question came before the Secretary of the Interior on January 29, 1907, in the case of the heirs of Robinson Watson, and upon an opinion from the Attorney General of the United States, the Secretary of the Interior made a ruling on alfours with the above holding of the Supreme Court of Oklahoma. On October 17, 1908, the identical tract of land, title to which was held to be good, in the above case of the Watson heirs, was submitted to the state for a loan, and I disapproved the title in the following language: I do not agree with the reasoning of the honorable Attorney General of the United States. I think that the deduction is unsound and farfetched in the extreme.

*

My

opinion is that while this class of title is such that a speculator might afford to invest his own money thereon, it is not such as would justify a trustee in loaning a fund which is to be held sacred for the benefit of the unborn generations of the school children of the state. This law is retroactive in its nature, therefore, there is some question as to its constitutionality, but until the courts pass on this question. the only safe position is to follow the act of Congress, of April 26, 1906."

While this point has not yet been decided by the Supreme Court of the United States, yet a ruling contrary to the above ruling of the Attorney General was made June 7, 1911, by the Honorable Attorney General of the United States, in re the heirs of Lucy Cole; holding squarely that such lands were inalienable.

Of the four million dollars loaned by the commissioners of the land office since statehood, three-quarters of a million is on Indian land to which the title is unassailable.

The Attorney General of the United States, October 17, 1909, construing section nine of the act of Congress of May 27, 1908, held that its provisions were not retroactive, and that all conveyances by full-blood heirs of the deceased allottees who died prior to May 27, 1908, in order to pass a valid title to the estate of said deceased allottees must be approved by the Secretary of the Interior. On May 27, 1911, the Supreme Court of Oklahoma in the case of MacHarry vs. Eatman (not et published) held directly to the contrary, and the United States court for the eastern district of Oklahoma has also held with the Supreme Court of Oklahoma in a case parallel with the one above referred to.

It is my opinion that the Attorney General in the above opinion has correctly interpreted the law and that this interpretation will we followed by the Supreme Court of the United States in due time. However, as the state and federal authorities are clearly at variance on this point, which has been adjudicated by both state and federal courts, the only safe method in approving titles of this class, prior to a final adjudication, is to require the approval of the Secretary of the Interior, and also of the probate court.

Where the original allottee has parted with his title and the purchase is from a party other than the allottee, the question of the validity of the title depends upon the date of the deed from the original allottee.

With the exception of the Creek Nation, there was practically no land in the Five Civilized Tribes alienable prior to the act of April 21, 1904, which law is still effective and was supplemented by the act of April 26, 1906.

Next in point is the purchase direct from the Indian, in which case the act of Congress, approved May 27, 1908, which became operative after sixty days, namely, July 26, 1908, governs absolutely irrespective of previous enactments on the subject, with the exception of certain conditions as to the estates of deceased Indians.

The acts of Congress above referred to form the main basis of alienation of Indian lands and effect all of the Five Civilized Tribes alike.

Next came a few specific acts relating to individual tribes. In the Choctaw and Chickasaw agreement, approved by Congress July 1, 1902 (33 Stat. L. 641), Section sixteen is as follows:

"All lands allotted to members of said tribes, except such land as is set aside to each for homestead as herein provided shall be alienable after issuance of patent as follows: One-fourth in acreage in one year, one-fourth in acreage in three years, and the balance in five years; in each case from the date of patent. Provided, that such land

shall not be alienable by the allottee or his heirs at any time before the expiration of the Choctaw and Chickasaw tribal governments for less than its appraised value."

This law remained in effect until the act of May 26, 1908, with regard to all Indians except full-bloods, having been repealed as to full-bloods by the act of April 26, 1906. The law was never effective as to Choctaw and Chickasaw freedmen, because such freedmen had no surplus allottment, the land being homestead.

In the Creek agreement on March 9, 1900 (31 Stat. L. 861) Section 7, we find the following language:

"Lands allotted to citizens hereunder shall not in any manner whatsoever or at any time, be encumbered, taken or sold to secure or satisfy any debt or obligation contracted or created prior to the date of the deed to the allottee therefor, and such lands shall not be alienable by the allottee or his heirs at any time before the expiration of five years from the ratification of this agreement, except with the approval of the secretary of the interior."

The supplemental Creek treaty of June 30, (30 Stat. L. 500), Section 16, reaffirms the above proposition of law in practically the same language, its only effect being the extension of the time to five years from the date of said supplemental agreement instead of five years from the date of the original agreement, therefore, from March 1, 1901, until August 8, 1907, the surplus allottment of the Creek Indians could be sold with the approval of the Secretary of the Interior.

After August 8, 1907, the surplus land of said Creeks, except fullbloods, could be sold free from any restrictions and without the approval of the Secretary of the Interior, said condition existing until the act of July 26, 1908, which act repealed the provision of the treaty above quoted.

There were certain conditions under which the Creek citizen could make a valid will to his land prior to April 26, 1904, but titles arising under these conditions are so rare that it is not deemed sufficiently important to be of great interest.

Cherokee Agreement, approved April 21, 1902 (32 Stat. L. 716) Section 15, is as follows:

"All the lands allotted to members of said tribe, except such lands as set aside for homestead as herein provided, shall be alienable in five years after the issuance of patent."

This provision was repealed as to full-bloods by the act of April 26, 1906, and repealed as to all other Indians by act of July 27, 1908. There are very few deeds made under this provision of law, however, as there are very few patents whose date extended back five years before the acts repealing said law.

Aside from this provision there was no provision either in the Cherokee or Seminole Nations for the alienation of lands prior to the act of congress of April 21, 1904, above quoted.

The following general principles applying to each of the Five Civilized Tribes is conclusive proof as to age of allottee, while the tribal roll is conclusive proof as to the per cent of blood.

Land of an allottee is not liable for any claim or lien contracted prior to the removal of restrictions, and is only taxable after the removal of restrictions.

Oklahoma statutes removing the disability of a minor to make contracts does not affect Indian minors in the transfer of Indian lands.

Chapter 49, Mansfield's digest of the statutes of Arkansas (governing as to descent and distribution) was made to apply to the respective tribes after the following dates:

Choctaw and Chickasaw, September 25, 1902.

Creek, July 1, 1902.

Seminole, October 7, 1902.

Cherokee, August 7, 1902.

All patents must be approved by the Secretary of the Interior. It has been held, in the case of Shulthis vs. McDougal, 95 C. C. A., page 615, that the Indians of these tribes held their lands as tenants in common; that their right to participation came as an estate of inheritance from their tribal ancestors who, as above set out, received a deed to this land from the United States government at the time they oc cupied same.

There is, therefore, no reason in equity why the Secretary of the Interior should approve these deeds and the provision that he should so do was wholly gratuitous on the part of congress and partakes of the nature of "malicious mischief."

In closing, I cannot forbear the remark that, with the exception of the outrage that was perpetrated on the Indians of the Five Civilized Tribes, in forcing them to share their lands with the negro slaves as a penalty for having espoused the cause of the once glorious and ever immortal Southern Confederacy-with this exception, the greatest curse that has fallen to the Indians since they were robbed of the main bulk of their estate east of the Mississippi, is the annoying, long distance, restrictive supervision of the federal government over the little that is left to them.

The courts have held that the United States stands in loco parentis to the Indians. It is a significant fact, whatever right of guardianship the government has, existed at a time when the Indian was a naked and untutored savage, and so greatly needed the guidance of the paternal hand of the "Great White Father." But that hand was then lifted to smite him, and, now that the restraining hand is no longer needed, the Indian is surfeited by unsolicited solicitude and in the language of Shakespeare 'he dies of much cherishing.'

The Indians of Oklahoma are amply able to take care of themselves, and if the restrictions were lifted from all their lands, the influx of home builders would double the price of land in the east side of the state.

There are thousands of acres of Indian land clearly alienable, but the lack of confidence in titles that exists in the minds of non-resident investors, through their failure to discriminate between good and bad Indian titles, keeps the market price down, and allows the "grafters" to secure the land at a nominal price.

Bars make a prison though they be bars of gold; and the bonds that bind a man whose soul cries out for liberty become shackles of servitude, whether they be the hand of a marshal or the annoying supervision of a misguided federal government.

The spirit of liberty was not born in the breasts of the Revolutionary patriots-it was indigenous to the soil; and the wild out-cry for 'Liberty or Death' was equally well expressed by the twang of every bow-string that answered the crack of the invader's rifle; and the same spirit burns today in the breast of every proud Indian citizen of Oklahoma and will smoulder there until the restrictions are removed.

DEPARTMENT OF STATE BANK COMMISSIONER.

The state bank commissioner is appointed by the governor, by and with the advice and consent of the senate. The office was created by the first state legislature and its tenure is four years. The salary is $4,000 per annum and traveling expenses. Eight assistants are appointed by the commissioner, each receiving a salary of $2,000 and traveling expenses. It is the duty of the bank commissioner to examine each bank or trust company at least twice each year. The bank commissioner has the power at any time, when he deems it necessary, to call upon any bank or trust company organized under the laws of the state, and upon any national bank whose depositors are protected by the depositors' guaranty fund, for a statement of the condition of its funds.

The state banking board is composed of the governor and two members appointed by the governor, by and with the advice and consent of the senate. The members receive a salary of $6.00 per day for the time necessary to transact the businss of the department, and expenses. The bank commissioner is ex-officio secretary of the board, with a bookkeeper and clerk as an assistant. The board has supervision of the depositors' guaranty fund.