manner, by full-blood allottees of the Choctaw, Chickasaw, Cherokee, Creek or Seminole tribes, of lands allotted to them, for a period of twenty-five years from April 26, 1906. The right to remove such extended restrictions by Congress was specifically reserved.

It is further provided that the quantum of Indian blood possessed by any member of the tribe shall be determined by the rolls of citizens of such tribe approved by the Secretary of the Interior. The constitutionality of this act, in so far as it extends restrictions upon alienation, has been sustained by the Supreme Court of the United States, and, in so far as it makes the right of alienation dependent upon the quantum of Indian blood, as shown by the rolls of citizens, has been sustained by the United States District Court for the Eastern District of Oklahoma and by the Supreme Court of the state of Oklahoma, but limited in its application to transactions subsequent to April 26, 1906. The constitutionality, effect and application of this section, and a similar provision found in the Act of May 27, 1908, are more fully discussed under the title "Age and Quantum of Indian Blood." 8

§ 97. Effect of curative provision of Act of April 26, 1906. -Numerous conveyances of allotted lands were made in many of the Five Civilized Tribes before the issuance of patent, and frequently before the issuance of an allotment certificate. This is especially true as to the Choctaw and Chickasaw Nations with reference to lands allotted in the name of a deceased member of the tribe and which were free from all restrictions upon alienation, and in the Seminole Nation with reference to freedmen lands after April 21, 1904.

The right to convey before patent was challenged in many suits instituted to recover such lands on the ground that the conveyance thereof was void because made before issuance of patent. Congress thereupon gave its own interpre

7 Tiger v. Western Inv. Co., 221 U. S. 286, 31 Sup. Ct. 578, 55 L. Ed. 738.

8 See chapter 18.

tation to the original allotment agreements and declared that such interpretation should be applicable to all cases involving the validity of a conveyance of lands of allottees of any of the Five Civilized Tribes, where challenged upon the ground of invalidity solely because made before the issuance of patent.

That interpretation and declaration of the rule to be applied is found in the following language in a proviso to section 19 of the Act of April 26, 1906: "That conveyances heretofore made by members of any of the Five Civilized Tribes subsequent to the selection of allotment and subsequent to removal of restriction, where patents thereafter issue, shall not be deemed or held invalid solely because said conveyances were made prior to issuance and recording or delivery of patent or deed.

The validity of this statute was assailed upon the ground that it sought to make effective conveyances that were ineffectual prior to its enactment. The constitutionality of this statute has not been adjudicated, because the courts have uniformly held that without the statute the right to alienate was not dependent upon the issuance of patent. Congress was undoubtedly aware that the validity of conveyances were being assailed solely upon the ground that patent had not issued at the time they were made.

The purpose of the act was to prevent a misconstruction of the original agreements and the giving to same a meaning different from that which Congress intended they should have in the first instance. The statute merely gives to the conveyance the force and effect it was intended to be given by the parties, and that Congress intended to give it. It does not destroy a vested right, because it may not be said that a man has a vested right to repudiate his obligation, or to have a statute interpreted to mean that which the legislative body enacting it did not intend that it should mean. The rule with regard to curative statutes is that if the objection to the validity of the instrument, or that which de

prives it of validity, was such that it might have been dispensed with, or obviated by a previous statute, it may be done by subsequent legislation. This statute clearly falls within this rule. The doctrine of relation has no application to a conveyance which is wholly void, and a subsequently acquired title will not pass thereunder.10

11

Speaking with reference to the condition which this statute was enacted to meet, and the effect of the statute, the Supreme Court of the United States uses the following language: "But as the lands had been duly allotted the right to patent was established; and there was no restriction in cases under paragraph 22 upon alienation of the lands prior to the date of patent. There was undoubtedly a complete equitable interest which, in the absence of restriction, the owner could convey. Doe ex dem. Mann v. Wilson, 23 How. 457, 16 L. Ed. 584; Crews v. Burcham, 1 Black, 352, 17 L. Ed. 91; Jones v. Meehan, 175 U. S. 1, 15-18, 20 Sup. Ct. 1, 44 L. Ed. 49. And any contention that the conveyances were invalid, solely because they were made before the issuance of patent-the lands not being under restriction-would be met by the proviso contained in section 19 of the Act of April 26, 1906.

Barr v. Gratz, 4 Wheat. 213, 4 L. Ed. 553; Bush v. Marshall, 6 How. 284, 12 L. Ed. 440; French v. Spencer, 21 How. 228, 16 L. Ed. 97; Doe ex dem. Mann v. Wilson, 23 How. 457, 16 L. Ed. 584; Massey v. Papin, 24 How. 363, 16 L. Ed. 734; Elwood v. Flannigan, 104 U. S. 563, 26 L. Ed. 842; Jenkins v. Collard, 145 U. S. 546, 12 Sup. Ct. 868, 36 L. Ed. 812; Dunn v. Barnum, 51 Fed. 355, 2 C. C. A. 265; Kline v. Ragland, 47 Ark. 117, 14 S. W. 474; Stanway v. Rubio, 51 Cal. 41; Steeple v. Downing, 60 Ind. 478; Clark v. Hall, 19 Mich. 356; Fisher v. Hallock, 50 Mich. 463, 15 N. W. 552; Douglass v. McCoy, 5 Ohio, 522; Bernardy v. Colonial & U. S. Mortg. Co., 17 S. D. 637, 98 N. W. 166, 106 Am. St. Rep. 791; Baldwin v. Root, 90 Tex. 546, 40 S. W. 3; Nicodemus v. Young, 90 Iowa, 423, 57 N. W. 906; Johnson v. Newman, 43 Tex. 628: Harrison v. Faulkner (Tex. Civ. App.) 21 S. W. 984; Spiess v. Neuberg, 71 Wis. 279, 37 N. W. 417, 5 Am. St. Rep. 211; 19 Cent. Dig. cols. 468, 469, §§ 315, 316.

10 Bledsoe v. Wortman, 35 Okl. 261, 129 Pac. 841; Berry v. Summers, 35 Okl. 426, 130 Pac. 152.

11 Mullen v. United States, 224 U. S. 448, 32 Sup. Ct. 494, 56 L. Ed. 834.

There is no longer any doubt of the right to alienate before the issuance of patent, except in those particular cases in which the statute prohibits alienation until the issuance thereof. As to those cases a removal of all restrictions permits alienation before the issuance of patent.12

§ 98. Right of alienation of inherited lands of Five Civilized Tribes as affected by section 22 of the Act of April 26, 1906.-Section 22 of the Act of April 26, 1906, is somewhat complex in its nature and has been the subject of more litigation, perhaps, than any other single section of any of the allotment agreements or statutes, with the possible exception of the Creek Agreements involving descent. The statute may be, for purposes of consideration, divided into three parts:

(1) That which authorizes adult heirs of less than the full blood to convey inherited lands wherever such lands have been selected in allotment, or when a deed or patent has been issued therefor.

(2) Authorizing minor heirs to join in the sale of such inherited lands by a guardian duly appointed by the proper United States court for the Indian Territory, or in the case of the organization of a state then by a proper court of a county in which the minors reside or in which the real estate is situated, upon order of court made upon petition filed by the guardian.

(3) Requiring of conveyances made under the provisions of said act by heirs of the full blood to be approved by the Secretary of the Interior under such rules and regulations as he may prescribe.

§ 99. Alienation-Removal of restrictions on-By adult heirs of less than the full blood-Section 22 of Act of April 26, 1906.-Section 22 of the Act of April 26, 1906, provides "that the adult heirs of any deceased Indian of either of the Five Civilized Tribes whose selection has been made, or

12 Goat v. United States, 224 U. S. 458, 32 Sup. Ct. 544, 56 L. Ed.

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 land inherited from such decedent. *

This statute is clear and explicit. It authorizes the adult heir, with the limitation contained in the proviso "of less than the full blood," to sell and convey inherited lands free from all restrictions on alienation, and such has been the interpretation of the act by courts having occasion to consider it.13

§ 100. Alienation by minors of inherited lands under section 22 of the Act of April 26, 1906.-Section 22 of the Act of April 26, 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 lands of the tribe to which he or she belonged, may sell and convey the lands inherited from such decedent 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 a proper court of the county in which 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." This statute will be considered from the standpoint of a removal of restrictions on alienation by authorizing a sale of lands otherwise inalienable jointly with an adult heir.

It is not believed that it was the purpose of this act to impose restrictions on the alienation of the alienable lands of minor heirs. Construing this statute, the Supreme Court of the state of Oklahoma said: 14 "It authorized all such

13 Shulthis v. McDougal, 170 Fed. 529, 95 C. C. A. 615.

14 Wilson v. Morton, 29 Okl. 745, 119 Pac. 213.