CHAPTER 12 ALIENATION IN CREEK NATION § 80. Résumé of the provisions of allotment agreements relating to subject of restrictions on alienation. 81. 82. Alienation-Restrictions on, of surplus Creek allotment. 82a. Alienation-Creek freedmen allotments. 82b. Alienation-Creek adopted citizens. 83. Alienation-Restrictions on land allotted in the name of deceased member under section 28 of the Original Creek Agree ment. 84. Involuntary alienation-Restrictions on. § 80. Résumé of the provisions of allotment agreements relating to subject of restrictions upon alienation.-Restrictions upon alienation of lands allotted to members of the Creek Tribe of Indians were imposed in both the Original and Supplemental Creek Agreements-in the Original Agreement by section 7 thereof (Act March 1, 1901, c. 676, 31 Stat. 863), and in the Supplemental Agreement by section 16 thereof (Act June 30, 1902, c. 1323, 32 Stat. 503). The language in section 7 of the Original and section 16 of the Supplemental Agreements, though differing slightly in wording, is substantially identical in meaning, with the single exception that the five-year period of restriction upon alienation in the Original Agreement is made to run from the ratification thereof, to wit, May 25, 1901, and in the Supplemental Agreement five years from the date of the approval thereof, which was August 8, 1902. The language of section 16 is a little more explicit and definite than the language found in section 7. The provisions of section 7 apply to all conveyances made prior to the 8th day of August, 1902, and the provisions of section 16 apply to all conveyances made subsequent to that date. Section 7 of the Original Agreement and section 16 of the Supplemental Agreement fix the period of restriction on aliena tion on all lands (homestead and surplus) allotted to living members of the tribe. Section 28 of the Original Agreement and section 8 of the Supplemental Agreement each provide for the allotment of lands, and that the land and money to which an allottee would have been entitled, if living, shall in case of death before receiving an allotment be allotted and descend to his heirs, in the first instance according to the law of descent of the Creek Nation, and in the last instance as provided in the Supplemental Agreement. § 81. Alienation-Restrictions on surplus Creek allotment. The restriction upon alienation of the surplus lands of allottees of the Creek Tribe ran for the period of five years from August 8, 1902, and expired so far as the Supplemental Agreement provides at midnight of August 7, 1907.1 There is nothing indefinite or uncertain about the time of the expiration of such restrictions. The courts have generally, and with substantial uniformity, held that in computing the time during which the alienation of allotted Indian land is forbidden the date of the beginning of the restriction should be included. The restrictions imposed by the Supplemental Creek Agreement having begun on the 8th day of August, 1902, they expired with the 7th day of August, 1907. Prior, however, to the expiration of the restrictions imposed under the Supplemental Agreement, there was additional legislation extending indefinitely the restriction requiring the Secretary's approval of conveyances by full-blood heirs. The surplus. lands of the Creek allottee, both under the Original and Supplemental Agreements, were subject to alienation at all times on approval of the Secretary of the Interior. 1 Baker v. Hammett, 23 Okl. 480, 100 Pac. 1114; Iowa Land & Trust Co. v. Dawson (Okl.) 134 Pac. 39. 2 Taylor v. Brown, 147 U. S. 640, 13 Sup. Ct. 549, 37 L. Ed. 313. 3 Tiger v. Western Inv. Co., 221 U. S. 286, 31 Sup. Ct. 578, 55 L. Ed. 738. The Acts of March 3, 1903, April 21, 1904; April 26, 1906, and May 27, 1908, affect the right to alienate the surplus lands of Creek allottees.* § 82. Alienation-Creek homestead.-Under the Original Creek Agreement: "Each citizen shall select from his allotment forty acres of land as a homestead, which shall be nontaxable and inalienable and free from any incumbrance whatever for twenty-one years. The homestead of each citizen shall remain, after the death of the allottee, for the use and support of the children born to him, after the ratification of this agreement, but if he have no such issue, then he may dispose of his homestead by will, free from limitation herein imposed, and if this be not done the land shall descend to his heirs according to the laws of descent and distribution of the Creek Nation, free from such limitation." The provision in the Supplemental Creek Agreement regulating the alienation of the homestead of the Creek allottee is as follows: "The homestead of each citizen shall remain, after the death of the allottee, for the use and support of children born to him after May 25, 1901, but if he have no such issue then he may dispose of his homestead by will, free from the limitation herein imposed, and if this be not. done the land embraced in his homestead shall descend to his heirs, free from such limitation, according to the law of descent herein otherwise prescribed." The Supreme Court of the state, considering these two provisions, together with the following provision of section 7 of the Original Agreement, to wit: "Lands allotted to citizens hereunder shall not in any manner whatsoever, or at any time, be incumbered, taken, or sold to secure the satisfaction of any debt or obligation contracted or incurred. prior to the date of the deed to the allottee therefor, and For discussion of Act March 3, 1903, see section 92; of April 21, 1904, see sections 93 to 95; of April 26, 1906, see sections 96 to 104; and of May 27, 1908, see chapter 53. 5 such lands shall not be alienable by the allottee or his heirs at any time before the expiration of five years from the ratification of this agreement, except with the approval of the Secretary of the Interior"-held that the homestead was not alienable by the heirs of the allottee prior to the expiration of five years from the ratification of the Original Creek Agreement. In other words, the court brought forward as cumulative the restrictions imposed against the alienation of the surplus allotment and applied the same to the homestead allotment. It was, however, in a case where the land had been allotted in the name of a deceased member of the tribe. Subsequently the court reversed this decision, and held that the homestead of the Creek allottee, where no issue was left surviving born subsequent to May 25, 1901, descended free of all restrictions on alienation, and that such homestead lands were alienable by the heirs of the allottee immediately upon his death." The United States District Court for the Eastern District of Oklahoma has likewise held, with reference to both the Original and Supplemental Agreement, that where no issue survives the allottee born after May 25, 1901, the homestead may be disposed of by will, free from restrictions on alienation, and if not so disposed of descends to the heirs of the allottee free from all restrictions on alienation. It is readily apparent that the interpretation given this act in the latter decision by the Supreme Court of the state and by the United States District Court for the Eastern District of Oklahoma is the correct one. It has been held that the Act of April 26, 1906, operates to extend restrictions on alienation 5 Barnes v. Stonebraker, 28 Okl. 75, 113 Pac. 903; Sanders v. Sanders, 28 Okl. 59, 117 Pac. 338. 6 Rentie v. McCoy, 35 Okl. 77, 128 Pac. 244; Deming Inv. Co. v. Bruner Oil Co. (Okl.) 130 Pac. 1157; Manuel v. Smith (Okl.) 130 Pac. 1159; Woodward v. De Graffenried (Okl.) 131 Pac. 162; Iowa Land & Trust Co. v. Dawson (Okl.) 134 Pac. 39. 7 In re Lands of Five Civilized Tribes (D. C.) 199 Fed. 811. 8 Mullen v. United States, 224 U. S. 448, 32 Sup. Ct. 494, 56 L. Ed. of inherited Creek lands, but whether it applied to lands which descended free from restrictions on alienation has not been determined. The Act of May 27, 1908, is, however, applicable to conveyances by full-blood heirs of inherited Creek lands.10 § 82a. Alienation-Creek freedmen allotments.-Under the various treaties and agreements between the United States and the Creeks, the Creek freedmen were entitled to participate in the division of lands and properties of the Creek Tribe or Nation of Indians. Under these treaties and agreements Creek freedmen numbering in excess of 6,100 were enrolled as "freedmen of the Creek Tribe," but with all the rights, so far as the allotment of tribal lands are concerned, of Creek citizens. Allotments were made to such enrolled Creek freedmen, homestead and surplus, under the same terms and conditions and subject to the same restrictions on alienation as those made to members of the Creek Tribe. Creek freedmen, however, were enrolled on separate rolls as freedmen, and therefore not of Indian blood, within the purview and meaning of subsequent legislation making the right of alienation dependent upon the absence or the quantum of Indian blood of the allottee or heir.11 § 82b. Alienation-Creek adopted citizens.-There are enrolled on the final roll of Creek citizens by blood the names of a number of adopted citizens who are not of Creek blood. The fact that such persons are not of Creek blood is indicated by the designation given under the column Tiger v. Western Inv. Co., 221 U. S. 286, 31 Sup. Ct. 578, 55 L. Ed. 738. 10 For discussion of Act of April 26, 1906, see sections 96 to 104, and of May 27, 1908, see chapter 15. 11 Sharp v. Lancaster, 23 OkL 349, 100 Pac. 578; Blakemore v. Johnson, 24 Okl. 544, 103 Pac. 554; Rentie v. McCoy, 35 Okl. 77, 128 Pac. 244; United States v. Jacobs, 195 Fed. 707, 115 C. C. A. 507; Hawkins v. Oklahoma Oil Co. (C. C.) 195 Fed. 345; United States v. Shock (C. C.) 187 Fed. 862; McNac v. Jones (Okl.) 132 Pac. 1088. |