ment Act and amendments thereto, were not capable of exercising the rights of citizenship and control of their allotted and inherited lands. As a result of this apprehension the General Allotment Act was so amended as to bring allottees, to whom trust patents were thereafter issued, under the control of the Secretary of the Interior. The policy which found expression in the Act of May 8, 1906, has been followed since said date as to Indians other than those of the Five Civilized Tribes, and has been evidenced by some legislation enacted with special reference to those tribes. It is also further emphasized by the Act of June 25, 1910. This policy, however, was directed to the retention, and possibly to the regaining, of departmental control over Indian allottees and allotted Indian lands in certain cases, but did not constitute a departure from the policy of allotment in severalty of Indian reservations. Allotments to the less capable Indians are made in trust and title held by the United States for a period of twentyfive years. Allotments to more capable Indians are made and a fee simple title passed to the allottee, subject to certain restrictions on alienation. In a few instances allotments have been made without restrictions on alienation. As a result of this evolution in policy there has been an evolution in Indian titles from the original right of occupancy to certain reservation rights, thence to a trust patent in some instances, followed by a fee simple patent, and in others by a fee simple patent in the first instance. Whatever the method, the purpose has been to convert the holding in common into an individual fee title. 16. Occupancy of tribal lands of Five Civilized Tribes prior to 17. allotment. Tribal title of other than the Five Civilized Tribes. 18. Occupancy of tribal lands other than those of the Five Civilized Tribes prior to allotment. § 11. In general.-Since the first edition of this book matters relating to the nature and character of the tribal title of each of the Five Civilized Tribes to the lands of such tribes respectively have ceased to be of more than historical importance. The same is true with reference to tribal membership. For this reason the consideration of each of these subjects as to all of the tribes will be grouped together in one chapter, and a brief reference will be 、 made to the treaties and statutes for use in such isolated cases as may occur, where the consideration of these provisions may be necessary to the disposition of any controversy. § 12. Cherokees.-Numerous treaties were entered into between the United States and the Cherokees, the more important of which, and those determining the nature and character of the tribal title acquired by the Cherokee Nation, are as follows: The treaty of May 6, 1828; the treaty of February 14, 1833,2 with the Western Cherokees; and the treaty of December 29, 1835, with the Cherokees. 1 On the 31st day of December, 1838, pursuant to the provisions and guaranties contained in the above-mentioned 1 Act May 6, 1828, 7 Stat. 311. 3 Act Dec. 29, 1835, 7 Stat. 478. treaties, a patent was duly issued to the Cherokee Nation reciting that: "The United States have given and granted and by these presents do give and grant unto the said Cherokee Nation the two tracts of land so surveyed and hereinbefore described. * To have and to hold the same, together with all the rights, privileges and appurtenances thereto belonging to the said Cherokee Nation forever; and subject also to all the other rights. reserved to the United States in and by the articles hereinbefore recited to the extent and in the manner in which said rights are so reserved, and subject also to the condition provided by the Act of Congress of the 28th day of May, 1830, referred to in the above recited third article, and which condition is, that the lands hereby granted shall revert to the United States if the said Cherokee Nation become extinct, or abandons the same." Dissensions having arisen among the different bands of Cherokees, a new treaty was made August 6, 1846. The preamble to this treaty recited that numerous difficulties. had existed for some time past between the different members of the people constituting the recognized Cherokee Nation of Indians, which it was desirable to speedily settle and to restore peace and harmony. It was provided, in article 1 of this treaty, that the lands then occupied by the Cherokee Nation should be secured to the whole Cherokee people for their common use and benefit, and that a patent should issue for the same. 5 At the conclusion of the Civil War (July 1, 1866) a further agreement was made with the Cherokee Nation, by which the treaty between the Cherokee Nation and the Confederate States was repudiated, amnesty was granted by the United States for certain crimes and misdemeanors, the confiscation laws of the Cherokee Nation were abro 4 Act Aug. 6, 1846, 9 Stat. 871. Act July 19, 1866, 14 Stat. 799. gated, slavery was abolished in the Cherokee Nation, and full citizenship rights conferred upon certain Cherokee freedmen. The treaty contained elaborate provisions for the establishment and maintenance of tribal government and for the location of civilized Indians within the Cherokee domain. It was further provided that upon request of the National Council the Secretary of the Interior would cause the country reserved to the Cherokees to be surveyed and allotted among them at the expense of the United States. The title acquired by the Cherokee Nation was a qualified fee, with only the possibility of a reversion in the United States." § 13. Choctaws and Chickasaws.-In 1820 a treaty was entered into by the Choctaw Tribe of Indians and the United States, by the terms of which the United States ceded to the Choctaws a tract of country west of the Mississippi river. The purpose of this cession was to promote the civilization of the Choctaws, the establishment of schools, and the perpetuation of the tribal or national existence. In furtherance of the same purpose, another treaty was made in 1830, by which the United States agreed to cause to be conveyed "to the Choctaw Nation a tract of country west of the Mississippi river, in fee simple, to them and their descendants," etc. In 1837 the Chickasaw Band of the Choctaw Tribe or Nation of Indians, being desirous of having segregated for their use and occupancy a district in the Choctaw Nation, a treaty was entered into between the Choctaws and Chickasaws and the United States • Cherokee Trust Funds, 117 U. S. 288, 6 Sup. Ct. 718, 29 L. Ed. 880; Cherokee Nation v. Southern Kansas Ry. Co., 135 U. S. 641, 10 Sup. Ct. 965, 34 L. Ed. 295; Stephens v. Cherokee Nation, 174 U. S. 445, 19 Sup. Ct. 722, 43 L. Ed. 1041; Cherokee Nation v. Hitchcock, 187 U. S. 294, 23 Sup. Ct. 115, 47 L. Ed. 183; Cherokee Nation v. Southern Kansas Ry. Co. (D. C.) 33 Fed. 900; Mehlin v. Ice, 56 Fed. 12, 5 C. C. A. 403. 7 Act Oct. 18, 1820, 7 Stat. 210. Act Sept. 27, 1830, 7 Stat. 333. Act Jan. 17, 1837, 11 Stat. 573. by which a Chickasaw district was created. This was the first definite separation of the Chickasaw from the Choctaw Tribe. All agreements theretofore made had been between the United States and the Choctaws. All subsequent agreements were made between the United States and the Choctaws and Chickasaws. In 1855 10 the grant to the Choctaws of 1830 was ratified and confirmed to the members of the Choctaw and Chickasaw Tribes, their heirs and successors, to be held in common, etc. Some question arose as to whether or not by the espousal of the cause of the Confederacy the Choctaws and Chickasaws had forfeited the lands granted in the treaties referred to to the United States. This, among other reasons, brought about the treaty of 1866.11 This treaty reaffirmed the previous grants and contained a provision for the allotment of the tribal lands in severalty to the members of the two tribes, including freedmen. The Chickasaws declined to ratify that part of the treaty conferring tribal rights upon the freedmen of that tribe.12 The differences in the provisions of the varying terms of the grants made to the "Choctaws," "Choctaw Nation," "to the members of the Choctaw and Chickasaw Tribes, their heirs and successors, to be held in common," resulted in much controversy as to the character of the title passing under the grants, the capacity in which the grantee or grantees held the title, and the rights of the various persons as beneficiaries under the grants. These treaties and agreements as a whole were finally interpreted as a grant to the nations in their public or governmental capacity, and that the lands thereby granted became the public lands of the two nations and not the prop 10 Act June 22, 1855, 11 Stat. 612. 11 Act April 28, 1866, 14 State. 779. 12 United States v. Choctaw Nation, 193 U. S. 115, 24 Sup. Ct. 411, 48 L. Ed. 640; Flemming v. McCurtain, 215 U. S. 56, 30 Sup. Ct. 16, 54 L. Ed. 88; Ligon v. Johnston, 164 Fed. 670, 90 C. C. A. BLED.IND. (2D ED.)-2 |