relating to the alienation of their allotted lands, as members of such tribe.' The allotments of freedmen are divided into homestead and surplus as are the allotments of members of the tribe, and were subject to the restrictions on alienation imposed in the Cherokee Allotment Agreement, on the alienation of homestead and surplus allotments respectively of the members of such tribe.

In applying subsequent legislation to freedmen allottees and heirs of the Cherokee Tribe, they should be treated as members of said tribe not of Indian blood.

The restriction on alienation of the surplus allotment of adult freedmen allottees was removed by the Act of April 21, 1904, and all restrictions on alienation of the homestead allotment of adult freedmen and upon both homestead and surplus allotments of minor freedmen were removed by the Act of May 27, 1908.

$70a. Alienation-Intermarried Cherokees.-A limited number of white persons who intermarried with members of the Cherokee Tribe, prior to November 1, 1875, were entitled to enrollment and participation in the lands and properties of the tribe."

No distinction is made in the allotment agreement as affecting the right of alienation between inter married citizens and other citizens of the Cherokee Tribe. Such intermarried citizens, however, were enrolled upon a separate roll, and are citizens not of Indian blood, and are so considered and treated in the application of subsequent legislation removing restrictions on alienation.

§ 70b. Involuntary alienation.-Section 14 of the Cherokee Agreement provides that "lands allotted to citizens

7 Landrum v. Graham, 22 Okl. 458, 98 Pac. 432; United States ex rel. Lowe v. Fisher, 223 U. S. 95, 32 Sup. Ct. 196, 56 L. Ed. 364; Cherokee Nation & United States v. Whitmire, 223 U. S. 108, 32 Sup. Ct. 200, 56 L. Ed. 370.

8 Landrum v. Graham, 22 Okl. 458, 98 Pac. 432.

9 Cherokee Intermarried Cases, 203 U. S. 76, 27 Sup. Ct. 29, 51 L. Ed. 96.

shall not in any manner whatever or at any time be encumbered, taken, or sold to secure or satisfy any debt or obligation, or be alienated by allottee or his heirs, before the expiration of five years from the date of the ratification of this act."

This provision undoubtedly prevents the enforced alienation of allotted lands prior to the expiration of five years from the ratification of the agreement. Does it prevent the enforced alienation subsequent to that time to satisfy a judgment rendered or debt contracted prior thereto? If it does permit such enforced alienation to satisfy a previous debt, the efficacy of the provision will be very greatly impaired. The provision with reference to the alienation of the homestead is that, "during the time said homestead is held by the allottee, the same shall be nontaxable and shall not be liable for any debt contracted by the owner thereof while so held by him." This language is somewhat broader than the language applicable to the surplus, and was perhaps meant to prohibit the enforced alienation of the homestead at any time on a debt contracted while the land so designated is occupied as a homestead.

This provision is in the nature of an exemption, rather than a restriction upon alienation. It is designed to protect members of the tribe against their own improvidence. Similar provisions have received a liberal interpretation to this end.10 It has been held, however, that the exemption under the Choctaw agreement, which is in language similar to the above provision, does not exempt lands of Choctaw and Chickasaw allottees from liabilities for torts 11 perpetrated prior to the time such lands become alienable. The basis of this conclusion is that a tort is not a debt contracted, or an obligation, within the contemplation of the section of the agreement involved. Cases con

10 Western Inv. Co. v. Kistler, 22 Okl. 222, 97 Pac. 588; In re Davis' Estate, 32 Okl. 209, 122 Pac. 547.

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

struing the exemption of the homestead carved out of public lands are treated as authority for the distinction applied. In view of the uniform liberal interpretation given by the courts for the purpose of protecting the Indian allottee against the enforced alienation of his allotted restricted lands upon any pretense whatever, it is a question of grave doubt as to whether this and similar provisions will be construed as failing to give protection against negligence or wrongful acts of the allottee.

§ 70c. Cherokee Outlet allottees.-The Cherokee Nation, in ceding what is known as the Cherokee Outlet to the United States, reserved the right to have not exceeding seventy members of the Tribe select an allotment out of the ceded lands; the aggregate of the allotments so selected not to exceed 5,600 acres.12

Pursuant to this reservation sixty-two Cherokee Indians received allotments, aggregating 4,949.45 acres. Such allotments were made, confirmed by the Secretary of the Interior, and conveyed to the allottees, respectively, by the United States in fee simple and without restrictions on alienation.13

12 Act March 3, 1893, c. 209, 27 Stat. 612-640. 13 17 Land Decisions, 225, 230.

BLED.IND. (2D ED.)—5

CHAPTER 11

ALIENATION AND RESTRICTIONS THEREON UNDER CHOCTAW-CHICKASAW AGREEMENTS

$71. A general résumé.

72.

73.

74.

75.

76.

77.

78.

Alienation of homestead-Restrictions on.

Alienation of fractional part of surplus of living members.
Date of patent.

Alienation of inherited surplus allotment.

Alienation of land allotted in name of ancestor.

Alienation-Freedmen lands.

Mississippi Choctaws.

78a. Intermarried whites and adopted citizens. 79. Involuntary alienation.

§ 71. A general résumé.-The original allotment agreement entered into by the Choctaws and Chickasaws was executed April 23, 1897, and approved by Congress June 28, 1898, and was ratified by the Choctaws and Chickasaws.1

Before any of the lands of the Choctaws and Chickasaws were allotted, the Choctaw-Chickasaw Supplemental Agreement 2 was approved by Congress and ratified by the Choctaws and Chickasaws and became effective as of the 25th day of September, 1902.

The supplemental agreement contained a statement that no act of Congress, nor treaty provision, nor any provision of the Atoka Agreement inconsistent with the said supplemental agreement, should be in force in the Choctaw and Chickasaw Nations. Only such portions of the Atoka Agreement as are not in conflict with the supplemental agreement, or are not covered by the terms thereof, remain in force.

The Atoka Agreement provides for homestead and sur plus allotments to members of the tribe and an allotment to Choctaw and Chickasaw freedmen, the alienation of which is to be controlled by the provision relating to Choc

1 Reproduced in full as chapter 44. 2 Reproduced in full as chapter 45.

taw and Chickasaw homesteads. No provision is made for the allotment of lands in the name of deceased members.

The Atoka Agreement also contains a provision declaring any sale or incumbrance or contract looking to the sale of the land of any allottee, except as provided in the act, null and void.

The supplemental agreement, in addition to making provision for the allotment of a homestead and surplus to each member of the tribe and an allotment of forty acres to every Choctaw and Chickasaw freedman provides for the allotment of a distributive share in the name of deceased members of the tribe who were living September 25, 1902, and who died prior to the selection of an allotment.

Under the original agreement the homestead of the allottee was made inalienable for the lifetime of the allottee, not exceeding twenty-one years from date of patent; and under the supplemental agreement the homestead was made inalienable during the lifetime of the allottee, not exceeding twenty-one years from date of certificate of allotment.

Under the original agreement. the surplus lands of members of the tribe were alienable for a price to be actually paid, including no former indebtedness, one-fourth in one year, one-fourth in three years and the balance in five years from date of patent.

Under the supplemental agreement the surplus lands were alienable after issuance of patent, one-fourth in acreage in one year, one-fourth in acreage in three years, and the remainder in five years, in each case from date of patent, but were not to be alienable before the expiration of the tribal government by the allottee or his heirs for less. than the appraised value.

Under the original agreement the homestead provision applicable to the members of the tribe was made applicable to the allotment of the Choctaw and Chickasaw freedmen.

The supplemental agreement, instead of making the provision relating to the homestead of members of the tribe applicable, provided that the allotment of freedmen should