plied to the Creek Nation left their authority to convey in the same condition as before the passage of the act. That is to say, before the passage of the act 17 they could sell with the approval of the Secretary and not otherwise. The Supreme Court of the United States, after a very elaborate consideration of the provisions of this act, held 18 "that, while it permitted inherited lands to be conveyed by full-blood Indians, it nevertheless intended to prevent improvident sales by this class of Indians, and made such sales valid only when approved by the Secretary of the Interior." The court then considered the question of the constitutionality of the act and came to the conclusion that it was well within the power of Congress. It may be noted that at the time the Act of April 26, 1906, became effective, the grantor in the conveyance, and who was assailing the legality of the same, held his lands, both allotted and inherited, subject to restrictions upon alienation and without authority to convey except with the approval of the Secretary of the Interior. § 103. Date of death as affecting right of alienation under section 22 of the Act of April 26, 1906.-Immediately following the approval of the above act it was construed by the Department of the Interior as applicable to conveyances of inherited lands where the allottee had died. prior to April 26, 1906, as well as where he had died subsequent to that date. This was the practically uniform and uninterrupted interpretation of this statute by the Department until the 7th day of June, 1911, when the Secretary submitted the question of his jurisdiction to approve conveyances by full-blood heirs where the allottee died prior to April 26, 1906, to the Attorney General of the United States. 17 Western Inv. Co. v. Tiger, 21 Okl. 630, 96 Pac. 602. 18 Tiger v. Western Inv. Co., 221 U. S. 286, 31 Sup. Ct. 578, 55 L. Ed. 738. BLED.IND.(2D Ed.)—8 The Attorney General held that the Secretary had no jurisdiction to consider or approve a conveyance of inherited Indian lands where the allottee died prior to April 26, 1906.19 This was in line with and carrying out the spirit and policy evidenced by a former opinion construing the Act of May 27, 1908.20 This construction by the Attorney General, if correct, renders null and void a great number of conveyances approved by the Secretary in the five-year interval between the passage of the act and the opinion of the Attorney General, where the ancestor died prior to April 26, 1906, and enormous sums of money invested upon departmental approval would, if the Attorney General's interpretation is correct be confiscated. The opinion of the Attorney General is based upon the assumption that to apply the act to the alienation by heirs. where the ancestor died prior to April 26, 1906, would make it retroactive in effect. This opinion evidences a complete misapprehension of what constitutes retroactive legislation. It came after a decision by the Circuit Court of Appeals which held that the Act of April 26, 1906, empowered an heir to sell and convey land absolutely without the approval of the Secretary of the Interior, where the ancestor died in May, 1901, substantially five years before the passage of the Act of April 26, 1906.21 This opinion of the Attorney General also came shortly after an opinion of the Supreme Court of the United States construing the Act of April 26, 1906, and holding that the Secretary's approval was necessary to the conveyance by a full-blood heir whose ancestor died prior to April 26, 1906, where the lands were subject to restrictions on alienation. at the time of the approval of said act.22 19 29 Opinions Attorney General, 131. 20 27 Opinions Attorney General, 530. 21 Shulthis v. McDougal, 170 Fed. 529-536, 95 C. C. A. 615. 22 Tiger v. Western Inv. Co., 221 U. S. 286, 31 Sup. Ct. 578, 55 L. Ed. 738. In the last-mentioned case a brief was filed on behalf of the United States by a Special Assistant Attorney General in which it was strenuously urged that the Act of April 26, 1906, applied to the conveyance involved, notwithstanding the ancestor died long prior to the date of said act. § 104. Freedmen lands-Alienation of-Purchased under section 16 of the Act of April 26, 1906.-Under section 16 of the Act of April 26, 1906, freedmen of each of the Five Civilized Tribes were given a preference right to purchase, out of the residue of the lands of each of said nations after allotment was completed, land enough, at the appraised value, to equal, with that already allotted to them, forty acres in area. Freedmen very generally took the benefit of the preference right granted to purchase sufficient lands, together with those previously taken in allotment, to amount to forty acres in area. These lands so purchased were alienable without restrictions. CHAPTER 15 RESTRICTIONS ON ALIENATION-FIVE CIVILIZED TRIBES- 109. Mixed-blood Indians having less than half Indian blood. 110. Allottees having more than half and less than three-fourths Indian blood-As to surplus lands. 111. Allottees enrolled as mixed-blood Indians having half or more than half Indian blood-Homesteads. 112. Allotted lands of full bloods and mixed bloods of threefourths or more Indian blood. 113. 114. 115. Alienation by heirs of less than half blood. Alienation of homestead inherited from an allottee of one- Alienation of inherited lands by full bloods. 116. Court having jurisdiction of settlement of estate of deceased allottee. § 105. Scope of this title.-Under this title will be discussed the Act of May 27, 1908, as affecting the right of alienation of allotted and inherited lands of members of the Five Civilized Tribes. Wills, leases, etc., will be considered under separate titles as will the subjects of eminent domain, age and quantum of Indian blood, taxation, mineral leases, conveyances before removal of restrictions, jurisdiction of probate courts, etc. The application of the Act of May 27, 1908, to allotted and inherited Indian lands may be classified as follows: 1. Intermarried whites, all allotted lands. 2. Freedmen, all allotted lands. 3. Mixed-blood Indians of less than one-half Indian blood, all allotted lands. 4. Mixed-blood Indians having half or more and less than three-quarters Indian blood, surplus lands. 1 Act May 27, 1908, reproduced in full as chapter 53. 5. Allottees enrolled as mixed bloods having half or more of Indian blood, homesteads. 6. Full bloods and enrolled mixed bloods of three-quarter or more Indian blood, all allotted lands. The provisions of said act as applicable to conveyances. of inherited lands may be classified as follows: 1. By heirs of less than full blood. 2. By heirs of full blood. 3. By heirs of allottees of one-half or more Indian blood leaving issue born since March 4, 1906. In each instance, in fixing the status of the right to alienate, minors are placed with adults of the same class; that is to say, wherever restrictions are removed as to adults they are likewise removed as to minors, and wherever restrictions are extended as to adults they are extended as to minors, and wherever modified as to adults they are modified as to minors. In other words, no distinction is made under this act between adult and minor allottees or heirs. § 106. Rule for interpretation of act.-Section 1 of the Act of May 27, 1908, contains the following provision: "The Secretary of the Interior shall not be prohibited by this act from continuing to remove restrictions as heretofore, and nothing herein shall be construed to impose restrictions removed from land by or under any law prior to the passage of this act." The last part of this sentence prescribes a rule of interpretation for the application of the provisions of the entire act. It is that "nothing in said act shall be construed to impose restrictions removed from land by or under any law prior to the passage of this act." In a recent case 2 the United States District Court for the Eastern District of Oklahoma held that this provision applies only to restrictions theretofore removed by the Secretary of the Interior under authority of law and to restric 2 United States v. Shock, 187 Fed. 870. |