CHAPTER 20

APPROVAL OF CONVEYANCES, ETC., BY COURTS AND ADMINISTRATIVE OFFICERS

§ 163. Approval of conveyances-In general.

164. Approval-Power of Secretary over conveyances, etc. 165. Approval of conveyances, leases, wills, etc., by the court.

§ 163. Approval of conveyances-In general.—Substantially all of the allotment agreements and legislation enacted for making the same effective provide for the removal of restrictions on alienation by the Secretary of the Interior, or approval of conveyances, leases, wills, etc., of allotted or inherited lands by the Secretary of the Interior, or the approval of such conveyances, leases, wills, etc., by some court, usually the court exercising probate jurisdiction in the county in which the land is located.

None of these agreements or statutes prescribe any rule, regulation, or procedure for the approval of such conveyances. Such approval, whether by an administrative officer or a court, is an administrative act, and amounts to no more than the consent of the person authorized to approve the making of the conveyance, lease, will, or other instrument involved. The authority to approve gives no authority to initiate, make, or execute a conveyance. The act of approval, whether by an administrative officer or by the court, does not involve the exercise of judicial power, and the order of approval is not an adjudication of the execution of the conveyance, of the payment of the consideration, or that there was no wrong done or fraud perpetrated by the parties thereto in connection therewith.

§ 164. Approval-Power of Secretary over conveyances, etc. The acts requiring the submission of conveyances, leases, wills, etc., of allotted or inherited allotted Indian lands to the Secretary of the Interior for his approval are too numerous to mention in detail. They are all of the

same general import. Conveyances of land otherwise inalienable may be made upon the approval of the Secretary of the Interior. Some of the statutes contain the further provision that such approvals may be made under such rules and regulations as he may prescribe.

The Secretary of the Interior has, under statutes authorizing him to approve conveyances, whether specifically authorized to do so or not, authority to make such reasonable rules and regulations as may appear to him to be necessary for the protection of the allottees in the execution by him of the terms of the act. Such rules and regulations, not inconsistent with the act, have the force and effect of law. Conveyances of nonalienable land, authorized to be made upon the approval of the Secretary of the Interior, are, when made without his approval, either wholly void or voidable.2

The authority of the Secretary to approve is not destroyed by lapse of time, or even by the death of the grantor.3 Nor is it within the power of one of the parties, who has submitted a duly executed conveyance to the Secretary of the Interior for his approval, to destroy his authority to act thereon by an attempted withdrawal of the conveyance from his consideration.*

§ 165. Approval of conveyances, leases, wills, etc., by the court. By section 9 of the Act of May 27, 1908, no con

1 Caha v. United States, 152 U. S. 211, 14 Sup. Ct. 513, 38 L. Ed. 415; United States v. Thurston County, Neb., 143 Fed. 287, 74 C. C. A. 425; Simmons v. Whittington, 27 Okl. 356, 112 Pac. 1018; Almeda Oil Co. v. Kelley, 35 Okl. 525, 130 Pac. 931; Jennings v. Wood, 192 Fed. 507, 112 C. C. A. 657; In re Heirs of Pa-pee-ze-see-wah, 6 Land Dec. 251; In re Nancy Whitefeathers, 26 Land Dec. 25.

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

& Pickering v. Lomax, 145 U. S. 310, 12 Sup. Ct. 860, 36 L. Ed. 716; Jones v. Meehan, 175 U. S. 1, 20 Sup. Ct. 1, 44 L. Ed. 49; Lykins v. McGrath, 184 U. S. 169, 22 Sup. Ct. 450, 46 L. Ed. 485; Almeda Oil Co. v. Kelley, 35 Okl. 525, 130 Pac. 931; Ingraham v. Ward, 56 Kan. 550, 44 Pac. 14.

4 Almeda Oil Co. v. Kelley, 35 Okl. 525, 130 Pac. 931.

veyance of any interest of any full-blood Indian, of either of the Five Civilized Tribes, is valid unless approved by the court having jurisdiction of the settlement of the estate. of the deceased allottee."

This is a congressional grant of administrative authority to the county courts of the state of Oklahoma having territorial jurisdiction to administer the estates of deceased allottees of the Five Civilized Tribes who left surviving them full-blood heirs.

Section 23 of the Act of April 25, 1906, contains a very similar provision with reference to a will of a full-blood Indian disinheriting the parent or spouse. Such will is required, under said act, to be approved by the judge of the United States Court for the Indian Territory, or a United States commissioner, and by section 8 of the Act of May 27, 1908, a judge of the county court of the state of Oklahoma.

No procedure is prescribed for the presentation of conveyances of the character described to the court for its approval. The function being purely an administrative one, and the act of approval not being a judgment of the court, and not operative to divest the party grantor of any rights he may have, it is within the power of the court to adopt any rule of procedure it may deem reasonably effective to fulfill the purpose of the act. The approval is required to be made by the court, and not the judge; but this was no doubt for the purpose of preserving a public record of the papers presented, the proceedings had and the order of approval.

The judge of the court is as fully authorized to prescribe such rules and regulations as he may deem proper for the submission to the court of conveyances for approval under said act as is the Secretary of the Interior under various

Harris v. Gale (C. C.) 188 Fed. 712; MaHarry v. Eatman, 29 Okl. 46, 116 Pac. 435; Mullen v. Short (Okl.) 132 Pac. 230; United States v. Knight (C. C. A.) 206 Fed. 145.

acts conferring upon him authority to approve conveyances of allotted or inherited lands.

The county court exercises jurisdiction to approve solely as a delegated federal administrative power, just as the Secretary exercises the same character of power in making similar approvals. It was as fully within the power of Congress to confer this authority upon a county court as it was upon the Secretary of the Interior, and Congress has left the county court as free and untrammeled as to procedure as it has the Secretary. This was, no doubt, upon the assumption that the authority conferred would be exercised to the accomplishment of that for which it was created, the protection of the incompetent full blood against improvident conveyances.

The procedure should be such that the court may assure itself that the conveyance or lease was duly executed by the party whose name is signed thereto, and that the consideration recited has been paid or secured. Where the approval of a conveyance of inherited land is sought, the petition should set out in detail the facts showing the relation of the grantor to the decedent, from which it can be ascertained whether under the law such grantor takes by inheritance the estate he is seeking to convey.

The personal appearance of the grantor on the presentation of the application is desirable, although not absolutely necessary, and a recital of such appearance in the order of approval tends to show that a full and fair investigation was made of the conditions surrounding the conveyance and the execution thereof and of the payment of the consideration.

CHAPTER 21

CONVEYANCE OF LANDS OF MINORS THROUGH PROBATE PROCEEDINGS IN THE INDIAN TERRITORY

§ 166. Jurisdiction of United States courts in the Indian Territory to appoint guardians and order the sale of the lands of the minor members of the Five Civilized Tribes.

167. 168.

Minors-Who were.

Appointment of guardian or curator.

169. Sale of real estate of minors for purposes of education. Sale of real estate of minors for investment. Leases of minors' land in Indian Territory.

170. 171.

§ 166. Jurisdiction of United States courts in the Indian Territory to appoint guardians and order the sale of the allotted lands of the minor members of the Five Civilized Tribes. Section 31 of the Act of May 2, 1890,1 extended chapter 73 of Mansfield's Digest of the Statutes of Arkansas of 1884, entitled "Guardians, Curators and Wards," over and put the same in force in the Indian Territory. Said section further provided that the United States court for the Indian Territory should appoint guardians and curators under the provisions of said chapter. On the 28th day of April, 1904,2 the President approved an act providing for the appointment of additional judges in the Indian Territory, and for other purposes, which provided: "All the laws of Arkansas heretofore put in force in the Indian Territory are hereby continued and extended in their operation so as to embrace all persons and estates in said territory, whether Indian, freedmen, or otherwise, and full and complete jurisdiction is hereby conferred upon the district courts in said territory in the settlements of all estates of decedents, the guardianships of minors and incompetents, whether Indians, freedmen, or otherwise." Prior to this time Congress had enacted that after June 28, 1898, the laws of the various tribes or nations of Indians should not

1 Act May 2, 1890, c. 182, 26 Stat. 81.

2 See section 365.