33. 34. Patent. Act of April 26, 1906, vesting title in heirs or assignee. § 29. Selection.-The tribal lands of the Five Civilized Tribes were allotted to the members thereof under allotment agreements made with the tribes respectively by the Commission to the Five Civilized Tribes. While these various allotment agreements differ in detail as to preference rights in the selection of allotment, the amount of land to be allotted, etc., the procedure on allotment was, as to all of the tribes, substantially identical, and may be described in general terms, as it possesses only historical interest, and is of little practical importance at the present time. The matter of membership in the Seminole Tribe being less complicated than in the other tribes, and that tribe having been the first to enter into an allotment agreement, the lands thereof were the first to be allotted. Next in order was the Creeks, and the Cherokees, Choctaws and Chickasaws somewhat later. Land offices were established at various places and a designated member of the Commission placed in charge thereof. The procedure in the matter of the selection of allotments was as follows: A member of a tribe, desiring to assert his preference right to select a given tract or parcel of land in allotment, appeared at the land office and presented his selection of the same in writing. This selection or application contained a showing either that the land sought to be allotted was unappropriated public domain, or that the applicant was the owner of the improvements thereon, and, therefore, had the preference right of selecting the same in allotment. Under the allotment agreements made with each of the tribes the preference right was given to each and every member of the tribe of selecting in allotment the lands upon which he owned the improvements, provided, of course, he could not select more than his pro rata share of the land of the tribe. Any member of the tribe desiring to assert his preference right to select such previously selected tract in allotment might do so by appearing before the Commission within nine months after the original selection, and filing a contest denying the right of the party first making the selection to take the land in allotment, and asserting his own superior right to select the same. Thereupon summons was issued and served upon the party making the first selection, and the case was tried before the Commission to the Five Civilized Tribes, as contests in the land offices are ordinarily tried, and a judgment entered adjudging which of the parties was entitled to take the land in allotment. From this judgment an appeal could be prosecuted to the Commissioner of Indian Affairs, and from the Commissioner of Indian Affairs to the Secretary of the Interior. In making his selection the member of the tribe does all that is required of him to perfect his title. Such selection, therefore, and the acceptance of the same by the departmental officials, operates to pass the equitable title to the allottee and to segregate the lands selected from tribal holdings and convert the same to individual ownership.1 All proceedings subsequent to selection, completing segrega 1 Mullen v. United States, 224 U. S. 448, 32 Sup. Ct. 494, 56 L. Ed. 834; Doe ex dem. Mann v. Wilson, 23 How. 457, 16 L. Ed. 584; French v. Spencer, 21 How. 228, 16 L. Ed. 97; Best v. Polk, 18 Wall. 112, 21 L. Ed. 805; Lamb v. Davenport, 18 Wall. 307, 21 L. Ed. 759; Crews v. Burcham, 1 Black, 352, 17 L. Ed. 91; Ryan v. Carter, 93 U. S. 78, 23 L. Ed. 807; Jones v. Meehan, 175 U. S. 1, 20 Sup. Ct. 1, 44 L. Ed. 49; Oliver v. Forbes, 17 Kan. 113; Clark v. Lord, 20 Kan. 390; United States v. Torrey Cedar Co. (C. C.) 154 Fed. 263; United States v. Moore (C. C.) 154 Fed. 712; Thomason v. Wellman & Rhoades (C. C. A.) 206 Fed. 895. tion and passing of legal title, relate back to and are effective as of date of selection. § 30. Cancellation of allotments.-Enrollment as a member of the tribe was a condition precedent to allotment, under the allotment agreements with each of the Five Civilized Tribes. In a few instances the name of enrolled members were stricken from the rolls, after they had made their selection in allotment, and sometimes after patents had been issued. The more numerous of the cases in which this was done were those in which lands had been allotted in the name of a deceased member of a tribe, or the heirs of a member, after his death; that is to say, the rolls were to be closed as of a given date. Lands were allotted either in the name of or to the heirs of members who died subsequent to that date and before allotment. The Secretary of the Interior claimed that the enrollment of members of the tribe had been fraudulently secured upon the proof that they had died subsequent to the date fixed, which would entitle their heirs to participate, when in fact they had died prior to such date, and the heirs were not entitled to participate. The right of the Secretary to cancel an allotment was very thoroughly considered by the Supreme Court of Oklahoma in the case of Sorrels v. Jones et al. In that case the Secretary, without notice, canceled the allotment on the ground that the member of the tribe in whose name the same had been made died prior to the 25th day of September, 1902, and that his heirs were, therefore, not entitled to have an allotment made in his name for their use and benefit. The court held that the Secretary had juris 2 Mullen v. United States, 224 U. S. 448, 32 Sup. Ct. 494, 56 L. Ed. 834; Jones v. Meehan, 175 U. S. 1, 20 Sup. Ct. 1, 44 L. Ed. 49; De Graffenried v. Iowa Land & Trust Co., 20 Okl. 687, 95 P. 624; Sorrels v. Jones, 26 Okl. 569, 110 Pac. 743; Hooks v. Kennard, 28 Okl. 457, 114 Pac. 744; Godfrey v. Iowa Land & Trust Co., 21 Okl. 293, 95 Pac. 792; Irving v. Diamond, 23 Okl. 325, 100 Pac. 557. diction, upon proper investigation, to cancel the allotment; that, notwithstanding the cancellation was made without notice, it was not thereby rendered a nullity.3 While the court did not directly pass upon the question, it is perhaps a fair inference from the opinion that if the parties claiming title by virtue of a conveyance from the heirs of the person in whose name the land had been allotted had been able to show that the allotment was canceled without notice to the heirs, and that the party was in fact living on the 25th day of September, 1902, the court would hold that the Secretary's cancellation of the allotment was invalid.. § 31. Allotment certificate.-At the expiration of nine months from the date of selection, if no contest had been filed, an allotment certificate was issued to the person who had selected the land in allotment. Under section 23 of the Choctaw-Chickasaw Supplemental Agreement (Act July 1, 1902, c. 1362, 32 Stat. 643) the allotment certificate is made conclusive evidence of the right of the allottee to the tract of land described therein. Section 21 of the Cherokee Agreement (Act July 1, 1902, c. 1375, 32 Stat. 717) contains a similar provision. No direct provision is made under the Creek (Act June 30, 1902, c. 1323, 32 Stat. 500) or Seminole Agreements (Act July 1, 1898, c. 542, 30 Stat. 567) for the issuance of allotment certificates, but certificates were issued to allottees of both of these tribes containing a recital that the lands therein described had been allotted to the member mentioned therein as a homestead or exclusive of homestead in accordance with the facts. It was said of these certificates that they are dual in effect, that they represent the adjudication of the special tribunal empowered to decide that the members to whom they are issued are entitled to the land, and are a convey Sorrels v. Jones, 26 Okl. 569, 110 Pac. 743. ance of the right to the title to the allottee and are impervious to collateral attack.* Certificates of allotment were sometimes erroneously issued, delivered and recorded before the expiration of the contest period. When an error of this character was discovered, a return of the certificate was requested, but such request was not always complied with. The issuance and recording in the office of the Commission of one of these certificates would be but a mistake or misprision of a clerk, and could hardly be considered to operate as a cloud upon the title of a person finally adjudged by the Commission to be entitled to take the land in allotment. § 32. Patent.-Allotment agreements with each of the Five Civilized Tribes provided for the issuance of a patent or patents to the allottee for the lands selected in allotment. In some of the agreements the Secretary's approval was required as a condition precedent to the delivery of the patent to the allottee. No such approval was required in the Choctaw and Chickasaw Agreements. These patents were executed by the Governor or Principal Chief of the tribe and operated to pass to the allottee the fee simple title to the lands granted. Their acceptance also operated as a relinquishment of the interest of the allottee in lands. patented to other members of the tribe. The patents in each instance made reference to the act under which they were issued, doubtless for the purpose of giving public notice of the character of title passing and of the restrictions imposed upon alienation thereunder. The patent operated to pass to the allottee the full legal title and to consummate the allotment proceedings, which began with the selection of the land patented in allotment. Restrictions on alienation, whether recited in a patent or not, do not operate to deprive the title passed thereby of its fee simple character. A restriction on alienation is not inconsistent with a fee simple title, and is not intended 4 Wallace v. Adams, 143 Fed. 716, 74 C. C. A. 540, affirmed 204 U. S. 415, 27 Sup. Ct. 363, 51 L. Ed. 547. |