other words, the intention of the legislative body must be ascertained and applied.

§ 65. Removal of restrictions on alienation.-Congress has, sometimes by direct legislation, removed restrictions on alienation, and in other instances has directed or authorized the Secretary of the Interior to remove such restrictions under rules and regulations to be prescribed by him consistent with the congressional act. These statutes have usually been couched in language so clear and explicit as apparently to leave little room for controversy as to their meaning.

Notwithstanding this, frequent controversies have arisen over the effect of such acts. For instance, it was insisted that the provision of the Act of April 21, 1904, as follows: "All restrictions upon the alienation of the lands of all allottees of either of the Five Civilized Tribes who are not of Indian blood, except minors, are, except as to homesteads, hereby removed"-did not, when applied to the Seminoles, remove the restriction prohibiting alienation prior to the issuance of patent. Removal of restrictions does not operate to give validity to conveyances void or voidable because made when alienation was prohibited. 17 It was even contended by departmental officers that this statute did not authorize the conveyance by the class of persons mentioned of allotted lands in the Choctaw and Chickasaw, Cherokee, or Creek Tribes of Indians before issuance of patent.

Similar language was used with reference to removal of restrictions upon alienation by adult nonresident Kickapoo, Shawnee, Delaware, Caddo and Wichita Indians.

A restriction upon alienation being any legal impediment to the right to alienate, a removal of all restrictions is a removal of every legal impediment to the exercise of such right.

17 Smith v. Stephens, 10 Wall. 321, 19 L. Ed. 933.

The result was that both the Supreme Court of the state and of the United States held that the effect of the Act of April 21, 1904, was to remove, as to the class to which it was applicable, every legal impediment to the right to alienate.18

§ 66. Alienation-Involuntary restrictions on.-Allotment agreements and statutes usually contain prohibitions against involuntary or enforced alienation as extensive, and sometimes more so, than the prohibitions against voluntary alienation. These provisions are designed to protect the lands of the allottee from forced sale, not only during the period for which restrictions against voluntary alienation are imposed, but from forced sale thereafter against all obligations contracted or incurred at any time before the lands become alienable.19 Some question has arisen as to whether some of these statutes are sufficiently broad to protect the allottee against a judgment for a tort as well as contract obligations.20 In a general way it may be said that these statutes should be liberally construed for the protection of allotted lands against forced sale upon every character of demand that comes fairly within the terms of the prohibition or exemption. These statutes partake much of the nature of exemption statutes, and should have the same liberal interpretation given to such statutes. Particular provisions of the statutes will be considered in connection. with the agreements or legislation of which they are a part.

18 Goat v. United States, 224 U. S. 458, 32 Sup. Ct. 544, 56 L. Ed. 841; Deming Inv. Co. v. United States, 224 U. S. 471, 32 Sup. Ct. 549, 56 L. Ed. 847; Frame v. Bivens (C. C.) 189 Fed. 785; United States v. Jacobs, 195 Fed. 707, 115 C. C. A. 507; Hawkins v. Oklahoma Oil Co. (C. C.) 195 Fed. 345; Godfrey v. Iowa Land & Trust Co., 21 Okl. 293, 95 Pac. 792; Parkinson v. Skelton, 33 Okl. 813, 128 Pac. 131.

19 Western Inv. Co. v. Kistler, 22 Okl. 222, 97 Pac. 588; Simmons v. Mullen, 33 Okl. 184, 122 Pac. 518; In re Washington's Estate (Okl.) 128 Pac. 1079; In re Davis' Estate, 32 Okl. 209, 122 Pac. 547.

20 Simmons v. Mullen, 33 Okl. 184, 122 Pac. 518.

§ 67.

68.

69.

CHAPTER 10

RESTRICTIONS ON ALIENATION-CHEROKEE LANDS

Alienation of homestead.

Alienation of surplus lands.

Alienation of lands allotted in name of deceased member of the tribe.

70. Alienation-Freedinen allotments.

70a. Alienation-Intermarried Cherokees. 70b. Involuntary alienation.

70c. Cherokee Outlet allottees.

§ 67. Alienation of homestead.-Section 13 of the Cherokee Agreement requires "that each member of said tribe shall, at the time of the selection of his allotment, designate as a homestead, out of said allotment, land equal in value to forty acres of the average allottable lands of the Cherokee Nation as near as may be, which shall be inalienable during the lifetime of the allottee, not exceeding twenty-one years from the date of the certificate of allotment. Separate certificate shall issue for such homestead. During the time the homestead is held by the allottee the same shall be nontaxable and shall not be liable for any debt contracted by the owner while so held by him."

With reference to similar language used in the ChoctawChickasaw Supplemental Agreement the Supreme Court of the United States said: "The period of restriction is thus definitely limited, and the clear implication is that when the prescribed period expired the lands were to become alienable; that is, by the heirs of the allottee upon his death or by the allottee himself at the end of twenty-one years." Under the provision of this section it seems perfectly clear that the homestead allotment of the Cherokee allottee is inalienable during his lifetime, not exceeding twenty-one years, and alienable by him, if living, immediately after

the expiration of twenty-one years from date of certificate of allotment, and by his heirs immediately upon his death.1

§ 68. Alienation of surplus lands.-Under section 15 of the Cherokee Agreement all land allotted to a member of the tribe except his homestead is declared to be alienable in five years after issuance of patent. Section 14 of the same agreement provides that "lands allotted to citizens shall not in any manner whatever be incumbered, taken or sold to secure or satisfy any debt or obligation or be alienated by the allottee or his heirs before the expiration of five years from the date of ratification of this act." Section 15 is an affirmative declaration that the surplus lands allotted to members of the tribe shall be alienable in five years after issuance of patent. Section 14 is a negative provision declaring that such lands allotted to Cherokee citizens shall not be alienated by the allottee or his heirs before the expiration of five years from the ratification of. allotment agreement. The meaning of these two sections, taken together, has been the subject of much litigation. On the one hand, it has been contended that the surplus lands of a Cherokee allottee became alienable at the expiration of five years from the ratification of the Cherokee agreement; that is to say, five years from August 12, 1902. On the other hand, it has been contended that the proper interpretation of these two sections is that the lands referred to do not become alienable until five years after issuance of patent. Undoubtedly the use in these two sections of different standards, one in the affirmative and the other in the negative, renders the meaning somewhat obscure and doubtful.

1 Mullen v. United States, 224 U. S. 448, 32 Sup. Ct. 494, 56 L. Ed. 834; Hancock v. Mutual Trust Co., 24 Okl. 391, 103 Pac. 566; Hoteyabi v. Vaughn, 32 Okl. 807, 124 Pac. 63; In re Lands of the Five Civilized Tribes (D. C.) 99 Fed. 811.

2 Heckman v. United States, 224 U. S. 413, 32 Sup. Ct. 424, 56 L. Ed. 820.

4

The Attorney General of the United States held, considering these two sections together, that surplus lands allotted to members of the Cherokee Tribe do not become alienable until five years after issuance of patent. A similar interpretation has been adopted by the Supreme Court of the state of Oklahoma and by the Circuit Court of Appeals for the Eighth Circuit. A writ of error to review the decision of the Supreme Court of the state, so interpreting said provisions, has been sued out to the Supreme Court of the United States; but in view of the interpretation given by the Attorney General and the Circuit Court of Appeals it is hardly probable that the action of the Supreme Court of Oklahoma, in harmony with these conclusions, will be reversed.

§ 69. Alienation of lands allotted in name of deceased member of the tribe.-Section 20 of the Cherokee Agree.ment is in language identical in all material parts with the language of section 22 of the Choctaw-Chickasaw Supplemental Agreement. There is nothing in the other sections of the Cherokee Agreement which require giving to section 20 a different interpretation from that given to section 22 of the Choctaw-Chickasaw Supplemental Agreement. No restrictions whatever are imposed by this section on land selected in the name of deceased members of the tribe. Such land, therefore, is, from the date of selection and the acceptance thereof, alienable without restriction or condition. The Supreme Court of Kansas has held such lands descend subject to restrictions on alienation.*

§ 70. Alienation-Freedmen allotments.-Cherokee freedmen entitled to enrollment and enrolled as freedmen of the Cherokee Tribe may be considered, for all purposes

3 26 Opinions Attorney General, 354.

4 Allen v. Oliver, 31 Okl. 356, 121 Pac. 226.

Truskett v. Closser, 198 Fed. 835, 117 C. C. A. 477.

Mullen v. U. S., 224 U. S. 448, 56 L. Ed. 834; In re Lands of Five Civilized Tribes (D. C.) 199 Fed. 811; Hancock v. Mutual Trust Co., 24 Okl. 391, 103 Pac. 566; Hoteyabi v. Vaughn, 32 Okl.. 807, 124 Pac. 63; Rentie v. McCoy, 35 Okl. 77, 128 Pac. 244.

* Morris v. Greenlees (Kan.) 135 Pac. 569.