inite time, or fixed the same more clearly upon the land, than does the above provision. The usual restriction runs against alienation by either the allottee or his heirs for a given period, or until the happening of a specific contingency.

Recurring to the language used in sections 12, 13 and 16, it will be noticed that the word "heir" does not appear in any one of said sections, except in the proviso of section 16. The body of section 16 is that "all lands allotted to the members of said tribe, except such land as is set aside for each as a homestead as herein provided, shall be alienable after issuance of patent as follows." And this is an affirmative provision. The language is not that the lands shall not be alienable until after issuance of patent, but is a declaration that they shall be alienable under certain conditions in a certain time after issuance of patent. This is not in itself a restriction upon alienation. It is a positive provision permitting alienation under certain conditions. It might well have been and probably was contemplated that the lands under some other provision would become alienable sooner than provided in section 16, but that in any event under the terms of this section, if they had not otherwise become alienable, they should become alienable in one, three and five years after the issuance of patent. Wherever Congress undertook to absolutely limit alienation, it did so by negative provision, limiting or denying the right to alienate, and not by an affirmative provision, providing that the lands should become alienable at a given time. The most that can be said in support of this provision as a restriction upon alienation is that Congress at that time recognized that there were existing restrictions, and that it intended to provide that, whatever the conditions might be, in no event should these restrictions extend beyond the time provided in section 16.

There were allotted to the members of the Choctaw and Chickasaw Tribes only 320 acres of the average allottable

lands of the tribes. These two tribes were thought at that time to own a sufficient acreage to allot to each member 500 acres of average allottable land. The subsequent addition of names to the tribal roll will probably reduce the amount that can be actually allotted to about 450 acres. If it had been thought for the best interest of the members of the tribes that they should own more than 320 acres of the average allottable land each, it seems that Congress would have allotted to them an additional acreage. The surplus over and above that which is allotted to members and freedmen is to be sold and the money divided. This ought to be conclusive of the fact that both Congress and the tribes were of the opinion that 320 acres of the average land was all that the Indian could beneficially use as an allotment. This allotment was not limited to the adult members of the tribe; but every member thereof, whether he was rocked in the cradle, a full-grown man in possession of all of his faculties, or tottering on the edge of the grave, was provided with a full allotment. What reason could have prompted either Congress or the tribes to have thus restricted the alienation of inherited land, when both had recognized by their action that 320 acres was the maximum limit of land which could be beneficially used by a member of the tribe. Further, the homestead, which was considered the more valuable part, was made alienable immediately upon the death of the allottee. Is there any reason to suppose, from the language used or the considerations prompting the insertions of these provisions in the agreement, that it was deemed advisable that the surplus lands should remain inalienable for a longer period than the homestead?

The Supreme Court of the state has indicated that the restrictions contained in section 16, in so far as the time. limit is concerned, expire with the death of the allottee; that the only restriction against alienation by the heirs is

that they shall not, during the existence of the tribal government, alienate for less than the appraised value.1o

11

The Supreme Court of the United States 11 used the following language with reference to this provision: "On the other hand, the proviso of paragraph 16, which relates to the additional portion of the allotment, or the so-called 'surplus' lands, contains a restriction upon alienation, not only by the allottee, but by his heirs."

The court did not say whether this restriction was one of a time limit or upon sale for less than the appraised value. Interpreted in the light of surrounding conditions and of the language of the homestead provision, the inference is strong that the only restriction against alienation by heirs is that the land shall not sell for less than the appraised value.

The United States District Court for the Eastern District of Oklahoma has recently held that the time restrictions imposed upon alienation do not expire with the death of the allottee, but that they continue as a prohibition against alienation by the heirs for the same period of time they would have existed against the allottee if he had continued to live.12

Under existing conditions no lawyer could safely advise his client to purchase where the title depended upon the validity of a conveyance made by the heirs of an allottee before the expiration of the time limit provided in section 16. Neither can he advise a client, who holds title under such conditions, to assent to the invalidity thereof until adjudged to be invalid by a court of last resort.

The language of this section is of such doubtful import that a lawyer can do little more than hazard an opinion of the result of its final interpretation. The question of when

10 Hancock v. Mutual Trust Co., 24 Okl. 391, 103 Pac. 566.

11 Mullen v. United States, 224 U. S. 448, 32 Sup. Ct. 494, 56 L. Ed. 834.

12 In re Lands of Five Civilized Tribes (D. C.) 199 Fed. 811.

the surplus allotment of Choctaw and Chickasaw allottees becomes alienable under the Choctaw-Chickasaw Supplemental Agreement is involved in the case of Gannon v. Johnson now pending in the Supreme Court of the state, and an opinion may be expected at an early date, as the cause was submitted at the June, 1913, term. Subsequent legislation affecting the right of alienation of the surplus allotment of the allottee of the Choctaw and Chickasaw Nations is found in the Acts of April 21, 1904,13 April 26, 1906,1 and May 27, 1908.15

§ 76. Alienation of land allotted in name of ancestor.— By section 22 of the supplemental agreement it is provided that there shall be selected an allotment in the name of each deceased member dying subsequent to September 25, 1902, and that such allotment so selected in the name of the deceased member shall descend to his heirs according to the laws of descent and distribution as provided in Mansfield's Digest of the Statutes of Arkansas.

It will be observed that no restriction whatever is imposed upon the alienation by the heirs of land allotted in the name of the ancestor under this section, nor is there any such connection between sections 16 and 22 as would indicate that it was intended that the restrictions contained in section 16 should control in the alienation of lands allotted under section 22.16

The Supreme Courts of the state and of the United States have each held that there are no restrictions on the alienation by heirs of lands allotted in the name of a deceased member of the tribe, that allotment confers upon the allottee full equitable title and establishes his right to a patent, and that the heirs of the allottee may, therefore, convey from and after allotment and without awaiting the issuance

13 For discussion of Act April 21, 1904, see sections 93 to 95. 14 For discussion of Act April 26, 1906, see sections 97 to 104.

15 For discussion of Act May 27, 1908, see sections 105 to 116. 16 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.

of patent.1 Such is the rule declared in the earlier similar cases by the Supreme Court of the United States.18

§ 77. Alienation-Freedmen lands.-Under section 13 of the supplemental agreement the allotment of each Choctaw and Chickasaw freedman is made inalienable during the lifetime of the allottee, not exceeding twenty-one years from date of certificate of allotment.

Under the Atoka Agreement, following the provision for the selection of homesteads for members of the tribe and imposing restrictions upon alienation thereof, is a declaration that such provision shall apply to the Choctaw and Chickasaw freedmen.

Section 3 of the Act of April 26, 1906, contains the declaration that lands allotted to freedmen of the Choctaw and Chickasaw Tribes shall be considered homesteads and be subject to all acts of Congress applicable to Choctaw and Chickasaw homesteads.

It is a fair interpretation of this legislation that the lands allotted to Choctaw and Chickasaw freedmen be classed as homesteads for the purpose of determining their alienability.

Under said section 13 specific provision is made that such lands shall be inalienable during the lifetime of the allottee, not exceeding twenty-one years from date of patent, and therefore, by direct implication, made alienable either at the expiration of the twenty-one years or on death of the allottee.10

17 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.

18 Doe ex dem. Mann v. Wilson, 23 How. 457, 16 L. Ed. 584; Jones v. Meehan, 175 U. S. 1, 20 Sup. Ct. 1, 44 L. Ed. 49; Stark v. Starr, 94 U. S. 477, 24 L. Ed. 276; Ballinger v. United States ex rel. Frost, 216 U. S. 240, 30 Sup. Ct. 338, 54 L. Ed. 464; Simmons v. Wagner, 101 U. S. 260, 25 L. Ed. 910; Barney v. Dolph, 97 U. S. 652, 24 L. Ed. 1063.

19 In re Lands of Five Civilized Tribes (D. C.) 199 Fed. 811; Mullen v. United States, 224 U. S. 448, 32 Sup. Ct. 494, 56 L. Ed. 834.