§ 277. Constitutionality of the statute.-So far as the author has been able to discover, the constitutionality of the statute has not been directly drawn in question. Decrees entered in proceedings to determine heirship have been sustained by the Supreme Court of California as final in more than a score of cases. The provisions for notice are identical with those required in civil actions presumedly including those relating to proceedings in rem. The proceeding to determine heirship to property in the control of the court is practically a proceeding in rem, and actually so as to all parties who cannot be personally served. The statute seems to have prescribed with fairness the constitutional guaranties of notice and opportunity to be heard. Twenty-five years' actual application in a state having more controversies over heirship than perhaps any other state in the Union, without its constitutionality being challenged in the court of last resort, is at least reasonable evidence that the statute is not violative of fundamental guaranties.11

§ 278. Not applicable to lands held under trust patents. -The provisions of this statute are not applicable to allotted Indian lands, where the title is held by the United States in trust for the use and benefit of the allottee; that is to say, where the lands have been allotted and a preliminary or trust patent only issued. Prior to June 25, 1910, if the jurisdiction of the Secretary of the Interior was not exclusive in the matter of determining the heirs of allotted lands held in trust by the United States, only the federal courts had jurisdiction to determine the same.

For a number of years the state courts assumed jurisdiction to determine heirship in such cases, but it was finally decided by the Supreme Court of the United States that they possessed no such jurisdiction.

14 Christianson v. King County (D. C.) 196 Fed. 791; Id. (C. C. A. 203 Fed. 894; Goodrich v. Ferris, 214 U. S. 71, 29 Sup. Ct. 580, 53 L Ed. 914; William Hill Co. v. Lawler, 116 Cal. 359, 48 Pac. 323.

By the Act of June 25, 1910, except as to allotted lands in Oklahoma, all jurisdiction of all courts to determine heirship where allotted lands were held in trust was divested, and full, complete and exclusive jurisdiction vested in the Secretary of the Interior to determine such heirship.

By the Act of February 14, 1913, amending section 2 of the Act of June 25, 1910, the jurisdiction of the Secretary of the Interior to determine heirship is extended to lands inherited from allottees of all Indian tribes while the lands are held in trust or subject to restriction on alienation, except the Five Civilized Tribes and the Osages.15

15 See sections 948a and 948c.

CHAPTER 30

EASEMENTS IN INDIAN LANDS

§ 279. Easements in general.

280. Easements for railway purposes-Act of March 2, 1899. 281. Easements for railway purposes-Act of February 28, 1902,

and later acts.

282. Right of way for pipe lines through Indian lands.

283. Right of way for telephone and telegraph companies. 284. Rights of way for light and power companies.

285. Public roads-In general.

286. Public roads-Cherokee Nation.

287. Public roads-Creek Nation.

288. Public roads-Choctaw, Chickasaw and Seminole Nations. 289. Public roads-Osage Nation.

§ 279. Easements in general.-Easements for railroad right of way, station grounds and other railway purposes have been granted by Congress through Indian reservations and tribal lands almost from the beginning of railway construction. In most instances, in the early days, these grants were by special acts. It is probable that many of these grants operated to pass a fee simple title rather than an easement. Grants of this character are discussed under the title of easements because they are usually so regarded. It is not the purpose to here draw a distinction between those grants which operate to pass a fee title and those which grant only an easement. Easements have also been granted by Congress over Indian lands for pipe line purposes, telegraph and telephone lines, light and power transmission lines and for public highways.

The application of these acts will be considered with reference to the grants of authority in the particular cases.

§ 280. Easements for railway purposes-Act of March 2, 1899.-By Act of March 2, 1899,1 a right of way was granted to railway, telegraph, and telephone lines through any Indian reservation, through any lands held by any

1 30 Stat. 990, c. 374.

BLED.IND.(2D ED.)-20

tribe or nation reserved for agency uses and purposes, and lands allotted in severalty to any individual Indian which had not been conveyed to the allottee with full power of alienation. This statute was applicable to Indian reservations, tribal lands, and individual allottees in any state or territory of the United States. This act was, so far as applicable to the then Indian and Oklahoma Territory, and to the now state of Oklahoma, repealed by the Act of February 28, 1902 (32 Stat. 43, c. 134); said repeal being by the substitution of the provisions of the Act of February 28, 1902, for those of the Act of March 2, 1899.

By section 16 of the Act of June 25, 1910, the Act of March 2, 1899, was amended, as applicable to Indian reservations, tribal lands and Indian allotments located outside of Oklahoma, to require, as a condition precedent to each and every grant of right of way, that the railway company applying therefor stipulate that it will construct and permanently maintain suitable passenger and freight stations for the convenience of each and every town site established by the government along said right of way.

§ 281. Easements for railway purposes.-The Act of February 28, 1902,3 commonly known as the "Enid & Anadarko Act," by the first twelve sections granted a right of way to the Enid & Anadarko Railroad Company and prescribed a procedure for the acquisition of a right of way under said grant.

Sections 13 to 23, inclusive, of the Enid & Anadarko Act, constituted a general grant of right of way to railway companies to locate, construct, own, equip, operate, use and maintain railway, telegraph and telephone lines into or through the Indian Territory, the Osage Nation and Oklahoma Territory, with the right to take and condemn lands for right of way, depot grounds, terminals and other rail

2 See section 929.

3 32 Stat. 43, c. 134, 3 Fed. Stat. Ann. 475. See, also, chapter 79 hereof.

way purposes. Said grant was. operative as to all lands held by any Indian tribe or nation, person, individual, or municipality in said territories and to all lands which had been or should thereafter be allotted in severalty to any individual Indian or other person, whether the same had been or not conveyed to the allottee with full power of alienation. Although the lands located within the territory of Oklahoma and Osage Nation are not mentioned in section 13, by the proviso to section 23 of the act is extended to the Osage Reservation and to other Indian reservations and allotted lands in the territory of Oklahoma. It is not the purpose to consider the various steps necessary to acquire a right of way under the provisions of this act, but to note its existence and general scope.

By section 25 of the Act of April 26, 1906, the Enid & Anadarko Act was extended so as to make it applicable to light and power companies. Some amendments were also made in the matter of procedure, which are perhaps applicable to proceedings to condemn lands for railway purposes.

By section 1 of the Act of May 27, 1908, it is provided: "No restriction of alienation shall be construed to prevent the exercise of right of eminent domain in condemning rights of way for public purposes over allotted lands, and for such purposes sections thirteen to twenty-three, inclusive, of an act entitled 'An act to grant the right of way through Oklahoma Territory and the Indian Territory to the Enid & Anadarko Railway Company and for other purposes,' approved February 28, nineteen hundred and two (32 Statutes at Large, page 43) are hereby continued in force in the state of Oklahoma."

All of the other provisions relating to the granting of rights of way to railway companies other than that in the Act of May 27, 1908, became effective prior to statehood. There seems to have been a careful and consistent effort to keep alive and make effective in the territories and in