an ultimate title to the land'; but 'such certificates shall not be assignable, and shall contain a clause expressly prohibiting the sale or transfer by the holder' of such land. After ten years, upon application of the holder and consent of the Council, 'and when it shall appear prudent and for his or her welfare, the President of the United States may direct that such restriction on the power of sale shall be withdrawn and a patent issued in the usual form.' In the event of the death of an allottee without heirs, before patent, the allotment was not to revert to the United States, but to the tribe for disposition by the Council. It is further declared (article 11): "The object of this instrument being to advance the welfare and improvement of said Indians, it is agreed, if it prove insufficient, from causes that cannot now be foreseen, to effect these ends, then the President of the United States may, by and with the advice and consent of the Senate, adopt such policy in the management of their affairs as in his judgment may be most beneficial to them; or Congress may, hereafter, make such provisions of law as experience shall prove necessary.' The judgment was for the defendant in the trial court, and a writ of error was sued out to the Supreme Court of the United States. That court in disposing of the controversy uses the following language: "Indeed, it may be said that arable land is of no use until the timber is off, and it was of arable land that the treaty contemplated the allotments would be made. We encounter difficulties and baffling inquiries when we concede a cutting for clearing the land for cultivation, and deny it for other purpose. At what time shall we date the preparation for cultivation and make the right to sell the timber depend? Must the ax immediately precede the plow and do no more than keep out of its way? And if that close relation be not always maintained, may the purpose of an allottee be questioned and • United States v. Paine Lumber Co., 206 U. S. 467, 27 Sup. Ct. 697, 51 L. Ed. 1139. referred to some advantage other than the cultivation of the land, and his title or that of his vendee to the timber be denied? Nor does the argument which makes the occupation of the land a test of the title to the timber seem to us more adequate to justify the qualification of the Indian's rights. It is based upon the necessity of superintending the weakness of the Indians and protecting them from imposition. The argument proves too much. If the provision against alienation of the land be extended to timber cut for purposes other than the cultivation of the land it would extend to timber cut for the purpose of cultivation. What is there in the latter purpose to protect from imposition that there is not in the other? Shall we say such evil was contemplated and considered as counterbalanced by benefit? And what was the benefit? The allotments, as we have said, were to be of arable lands, useless maybe, certainly improved by being clear of their timber, and yet, it is insisted, that this improvement may not be made, though it have the additional inducement of providing means for the support of the Indians and their families. We are unable to assent to this view." In a subsequent opinion the Paine Lumber Company Case was distinguished and the rule there declared perhaps materially modified. It was held that the restrictions on the right of alienation of lands allotted in severalty under the Chippewa Treaty extended to the disposition of timber on the land as well as to the land itself." In the concluding paragraph of the opinion it is said: "The restriction upon alienation, however, it is contended, does not extend to the timber, and United States v. Paine Lumber Co., 206 U. S. 467, 27 Sup. Ct. 697, 51 L. Ed. 1139, is adduced as conclusive of this. We do not think so. There, as said by the Solicitor General, the land granted was arable, and could be of no use until the timber was cut; here the land granted is 9 Starr v. Campbell, 208 U. S. 527, 534, 28 Sup. Ct. 365, 52 L. Ed. all timber land. And that the distinction is important to observe is illustrated by the allegations of the complaint. It is alleged that the value of the land, exclusive of the timber, is no more than $1,000; fifteen thousand dollars' worth of lumber has been cut from the land. The restraint upon alienation would be reduced to small consequence if it be confined to one-sixteenth of the value of the land and fifteen-sixteenths left to the unrestrained or unqualified disposition of the Indian. Such is not the legal effect of the patent." Other cases more or less instructive are noted in the margin.10 10 United States v. Auger (C. C.) 153 Fed. 671; United States v. Torry Cedar Co. (C. C.) 154 Fed. 263. CHAPTER 24 LEASES-AGRICULTURAL, GRAZING, AND MINERAL PURPOSES, UNDER ALLOTMENT AGREEMENTS § 207. Leases for agricultural, grazing and mineral purposesCherokee Nation. 208. Leases for agricultural, grazing and mineral purposes-Choctaw and Chickasaw Nations. 209. Leases for agricultural, grazing and mineral purposes― Creek Nation. 210. Leases for agricultural, grazing and mineral purposesSeminole Nation. 211. Leases by full-blood allottees of the Five Civilized tribes for agricultural purposes under the Act of April 26, 1906. 212. Leases of Choctaw and Chickasaw allottees for all purposes as affected by section 20 of the Act of April 26, 1906. 213. Leases for agricultural purposes as affected by the Act of May 27, 1908. 214. Oil and gas-Leases for under Act of May 27, 1908. 215. Oil and gas-Leases for under Act of May 27, 1908. 216. Leases of allotted lands under section 3 of the Act of February 28, 1891. 216a. Leases by allottees of other than the Five Civilized Tribes and Osages for Mineral Purposes. 217. Leases of allotted Indian lands held in trust under Act of June 25, 1910. 218. Modoc-Leases for agricultural purposes. 219. Osage-Leases for agricultural purposes. 220. Leases-Peoria, Kaskaskia, Piankeshaw, Wea, and Western 221. Leases by allottees of the Quapaw Agency. § 207. Leases for agricultural, grazing and mineral purposes-Cherokee Nation.-The Cherokee Allotment Agreement authorized Cherokee allottees to rent their allotments or any part thereof for a term not to exceed one year for grazing purposes only, not to exceed five years for agricultural purposes, but in each case without any stipulation or obligation to renew. Leases for a longer period than one year for grazing purposes and for a period longer than five years for agricultural purposes and for mineral purposes were authorized to be made with the approval of the Secretary of the Interior and not otherwise. Any agreement or lease of any kind or character violative of the provision of the section is declared absolutely void, not susceptible of ratification in any matter and no rule of estoppel shall ever prevent the assertion of its invalidity. It has been held, construing this and similar sections of other allotment agreements that one or more leases may be made for the term singular or in the aggregate for not exceeding five years, and that a lease may be made notwithstanding the existence of a prior lease, provided the time for which it runs does not, added to that of the outstanding lease, exceed the five year period.1 It has also been held that the Secretary's approval under this section does not render valid the lease of the lands of a minor allottee where the same was not authorized by the proper court in the exercise of its probate jurisdiction.a § 208. Leases for agricultural, grazing and mineral purposes-Choctaw and Chickasaw Nations.-Under the original Atoka Agreement (Act June 28, 1898, c. 517, 30 Stat. 507) no Choctaw or Chickasaw allottee was permitted to lease his allotment or any part thereof for a longer period than five years and then without the privilege of renewal. Every lease not evidenced by writing setting out specifically the terms thereof, or not recorded in the clerk's office of the United States court for the district in which the land is located, within three months after the time of its execution, is declared to be void and that the lessee shall acquire no rights whatever by an entry or holding thereunder, and no such lease is valid against the allottee unless providing him a reasonable compensation for the lands leased. No further legislation was had upon this subject except that of 1 Whitham v. Lehmer, 22 Okl. 627, 98 Pac. 351; Scraper v. Boggs, 27 Okl. 715, 117 Pac. 193; Scherer v. Hulquist (Okl.) 130 Pac. 544; United States v. Abrams (C. C.) 181 Fed. 847; United States v. Abrams, 194 Fed. 83, 114 C. C A. 160. 2 Jennings v. Wood, 192 Fed. 507, 112 C. C. A. 657. 3 Chapman v. Siler, 30 Okl. 714, 120 Pac. 608; Tate v. Stone, 35 Okl. 369, 130 Pac. 296. |