By section 16 of the Act of May 29, 1908 20 (35 Stat. 451, c. 216), jurisdiction is conferred upon the Court of Claims, with the right of appeal to the Supreme Court of the United States, to hear and determine the claims of certain persons for services rendered and expenses incurred by them as attorneys for the Choctaw and Chickasaw freedmen in the prosecution of their claims for allotments of land within the domain of the Choctaw and Chickasaw Nations.

It is further provided that the court shall render judgment for such amount, if any, as there is adjudged to be justly and equitably due to said attorneys as the value of the services rendered and expenses incurred by them for and on behalf of said freedmen, such judgment to run against the individuals for whom such services were rendered and to constitute a lien upon their respective allotments for the pro rata amounts thereof.

the Choctaw

§ 78. Mississippi Choctaws.-Under Chickasaw Supplemental Agreement all persons identified by the Commission to the Five Civilized Tribes as Mississippi Choctaws were permitted, at any time within six months after the date of identification by the Commission, to make bona fide settlement in the Choctaw-Chickasaw country, and upon proof of such settlement to the Commission within one year after identification to be enrolled as Mississippi Choctaws entitled to allotment as provided for citizens and members of said tribe.

The Mississippi Choctaws were required to be, and were, enrolled upon separate rolls. Under section 42 of said supplemental agreement when such Mississippi Choctaw had resided for a period of three years in the Choctaw or Chickasaw Nation he became entitled, upon proof of such residence, to receive a patent for his allotment as provided in the Atoka Agreement. The land so allotted to a Mississippi Choctaw was required to be held by him as

20 See section 597c.

provided in said agreement for members of the Choctaw and Chickasaw Tribes respectively.

Failure to make proof within four years after enrollment by the allottee or his heirs terminated his interest in the land selected in allotment, in which event the lands were to be sold by the Secretary of the Interior for not less than the appraised value and the proceeds turned in to the Choctaw and Chickasaw Tribes.

By the Act of Congress approved May 31, 1900 (31 Stat. 236, c. 598), before provision had been made for admitting the Mississippi Choctaws as allottees of the Choctaw and Chickasaw Tribes, there was inserted in the Indian Appropriation Bill a provision declaring all contracts or agreements looking to the sale or incumbrance in any way of the lands to be allotted to Mississippi Choctaws to be void. This legislation was brought about by reason of the fact that many contracts had been made with members of these tribes in Mississippi for the purchase of their lands as soon as allotted.

The certificate issued by the Commission to the Five Civilized Tribes to Mississippi Choctaws was, in the first instance, termed a homestead designation as to the homestead selection, and an allotment designation as to the lands in excess of the homestead. Patents issued to the Mississippi Choctaws contained the recital that they had duly complied with the act with reference to residence, etc. Until the compliance by the Mississippi Choctaws with the requirements of the statute, their interest in the allotted lands was subject to be terminated by failure so to do. After compliance with the statute the relation of the Mississippi Choctaw to his allotment is the same as that of members of the Choctaw and Chickasaw Tribes. Such allotted lands were subject to the restriction upon alienation imposed upon allottees of the Choctaw and Chickasaw Tribes by the Choctaw-Chickasaw Allotment Agreements,

In

as well as to other provisions of said agreements.11 other words, Mississippi Choctaws are, after issuance of patent, to all intents and purposes Choctaws and Chickasaws, and subject to all legislation affecting the allotted lands of said tribes as fully and completely as are the Choctaws and Chickasaws.

By section 27 of the Act of May 29, 1908,22 the Court of Claims is authorized and directed to hear, consider and adjudicate the claims of certain persons for services rendered and expenses incurred in the matter of the claims of Mississippi Choctaws to citizenship in the Choctaw Nation and to render judgment thereon on the principle of quantum meruit.

There are two provisions for the satisfaction of such judgment as may be rendered: One, that it may be paid from any funds now or hereafter due any such Choctaw as an individual by the United States. The second is that the lands allotted to such Mississippi Choctaws shall be subject to a lien for the satisfaction of such judgment as may be rendered by the Court of Claims.

Notices of liens claimed under this provision have been filed with the register of deeds in many of the counties of the state of Oklahoma.

§ 78a. Intermarried whites and adopted citizens.-White persons intermarrying with members of either the Choctaw or Chickasaw Tribes of Indians, in accordance with the laws and customs of the tribes respectively, were entitled to participate in the allotment of the tribal lands and distribution of tribal property.

Separate rolls were prepared of the Choctaw citizens by intermarriage and of the Chickasaw citizens by intermarriage, and allotments were made to such intermarried citizens of the Choctaw and Chickasaw Tribes under the Choctaw-Chickasaw Supplemental Agreement.

21 Hoteyabi v. Vaughn, 32 Okl. 807, 124 Pac. 63.

22 See section 597d.

The allotments so made to such intermarried citizens were divided into homestead and surplus, and were held subject to all restrictions on alienation imposed upon the allottees or allotted lands of members by blood of said tribes. They were enrolled, however, as members not of Indian blood of said tribes, and are so treated in the application of subsequent legislation removing or otherwise. affecting restrictions on alienation.23

§ 79. Involuntary alienation.-Section 15 of the Choctaw-Chickasaw Supplemental Agreement is as follows: "Lands allotted to members and freedmen shall not be affected or encumbered by any deed, debt or obligation of any character contracted prior to the time at which said land may be alienated under this act nor shall said lands be sold except as herein provided."

The Supreme Court of the state, in construing this statute, has held that it means that there shall be no burden on the title or charge against such allotment, and that the same shall in no event become liable for any debt or obligation contracted prior to the removal of restrictions, and that the lands of an allottee may not, as against his heirs, after his death, be charged with any liability on account of any obligation incurred by the ancestor during his lifetime, and while the lands were subject to restrictions on alienation; 24 and such has been the construction. of similar provisions of other statutes.25

It has, however, been held that this statute does not exempt the lands of the allottee for torts committed or

23 Lynch v. Franklin (Okl.) 130 Pac. 599; Frame v. Bivens (C. C.) 189 Fed. 785.

24 In re Davis' Estate, 32 Okl. 209, 122 Pac. 547.

25 Western Inv. Co. v. Kistler, 22 Okl. 222, 97 Pac. 588; In re Washington's Estate (Okl.) 128 Pac. 1079; In re Daubner (D. C.) 96 Fed. 805; Wallowa Nat. Bank v. Riley, 29 Or. 289, 45 Pac. 766, 54 Am. St. Rep. 794; Coleman v. McCormick, 37 Minn. 179, 33 N. W. 556; Towner v. Rodegeb, 33 Wash. 153, 74 Pac. 50, 99 Am. St. Rep.

BLED.IND. (2D ED.)-6

perpetrated by him prior to allotment, or to the time the allotted lands become alienable.20

The first-mentioned case is pending on writ of error in the Supreme Court of the United States. 27 It was strenuously urged to that court in another case that this section operates to prohibit alienation of allotted lands by Choctaw and Chickasaw allottees, except where such alienation is specifically authorized by other provisions of the agreement. The court, however, failed to find in this statute, directed against involuntary or forced alienation, any prohibition against voluntary alienation of allotted lands.28

26 Simmons v. Mullen, 33 Okl. 184, 122 Pac. 518; Brun v. Mann, 151 Fed. 145, 80 C. C. A. 513, 12 L. R. A. (N. S.) 154.

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

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