right to alienate both homestead and surplus prior to issuance of patent. This prohibition is sufficiently broad, and was undoubtedly intended not only to prohibit alienation by the allottee, but also by his heirs, during the restricted period, to wit, until patent issued. The removal of all restrictions upon the right to alienate any part of the land so allotted would operate to authorize the alienation of such lands, notwithstanding the prohibition contained in the original agreement.

Allotments were made to freedmen of the Seminole Tribe as though they were members of the tribe, and subject to the same restrictions on alienation as lands allotted to regularly enrolled members of said tribe by blood."

Subsequent legislation affecting the right of alienation of allotted and inherited land of the Seminole Nation is found in the Acts of March 3, 1903, April 21, 1904, April 26, 1906, and May 27, 1908.

§ 87. Alienation of lands selected in the name of a deceased member of the tribe under the Seminole Supplemental Agreement.-Under the second section of the Seminole Supplemental Agreement, if an enrolled member of the tribe died after the 31st day of December, 1899, and before receiving his share of tribal lands in allotment, lands to which he would have been entitled, if living, are to be allotted and

4 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; Godfrey v. Iowa Land & Trust Co., 21 Okl. 293, 95 Pac. 792; Stout v. Simpson, 34 Okl. 129, 124 Pac. 754.

5 Goat v. United States, 224 U. S. 458, 32 Sup. Ct. 544, 56 L. Ed. 841.

6 For a discussion of the effect of the Act of March 3, 1903, upou the right of alienation of the Seminole homestead, see section 88.

7 For the effect of the Act of April 21, 1904, upon the right to alienate by adult allottees of their surplus lands, see sections 90 and 93 to 95.

8 For the effect of the Act of April 26, 1906, upon the right of alienation of allotted and inherited Seminole lands, see sections 96 to 104.

> For the effect of the Act of May 27, 1908, upon the right of alienation of allotted and inherited Seminole lands, see chapter 15.

descend and be distributed to his heirs in accordance with the laws of descent and distribution of the state of Arkansas,. with the exception that they shall go first to the mother, instead of to the father, and then to the brothers and sisters, instead of the father.

Are the lands thus selected subject to restriction upon alienation, or do they descend free from all restrictions upon alienation, as do lands allotted in the name of a deceased member of the tribe under the Choctaw-Chickasaw Supplemental Agreement, Cherokee Agreement, and Creek Original and Supplemental Agreements?

In reason, the same rule should be applied as has been applied to land allotted to the heirs or in the name of deceased members of other of the Five Civilized Tribes.10

§ 88. Alienation of homestead as affected by the Act of March 3, 1903.-The Indian Appropriation Act of March 3, 1903, contains a provision that the homestead referred to in the Seminole Agreements shall be inalienable during the lifetime of the allottee, not exceeding twenty-one years from the date of the deed, and that a separate deed shall be issued therefor. This language fixes the status of right to alienate Seminole homesteads subsequent to the 3d day of March,. 1903. The status so fixed is that such lands shall be inalienable during the lifetime of the allottee, but not to exceed twenty-one years from date of deed or patent. Such lands are by necessary implication alienable, under the terms of said act, by the heirs immediately upon the death of the allottee.11

§ 89. Involuntary alienation-Prohibition against-Seminole Nation. The provision of the Seminole Agreement preventing contracts of sale or incumbrance prior to date

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

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

of patent is much broader in its scope than the special provisions of the other allotment agreements. It clearly prohibits any incumbrance of allotted lands prior to date of patent, but it has been held that a removal of restrictions authorizes an incumbrance by mortgage before issue of patent.12

§ 90. Act of April 21, 1904, applicable to allottee in Seminole Nation.-There were numerous persons residing in the Seminole Nation having the right of citizenship therein, who had prior to April 21, 1904, received allotments, and who were not of Indian blood. Possibly some received allotments after April 21, 1904, although the Seminole lands were the first to be allotted. Upon the approval of the Act of April 21, 1904, removing all restrictions upon alienation of surplus lands of all adult persons who were allottees of the Five Civilized Tribes, and who were not of Indian blood, conveyances were made by many Seminole allottees before the issuance of patent, upon the assumption that the removal of all restrictions upon the right to alienate removed all impediments to alienation. The provision in the Seminole Agreement that all contracts for the sale, disposition or incumbrance of any part of the allotment made prior to the date of patent shall be void, was generally regarded as a restriction upon alienation, and therefore repealed by the full and comprehensive language of the Act of April 21, 1904, removing all restrictions upon alienation of surplus lands of adult allottees who were not of Indian blood.

No patents had been issued to Seminole allottees at the time of the passage of the Act of April 21, 1904, and perhaps none have yet been issued, although under the provisions of the Act of April 26, 1906, authority was given to execute and deliver these patents before the expiration of the tribal government. If the effect of this act is not to remove all existing obstacles to the alienation of the surplus lands of

12 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.

Seminole allottees who are not of Indian blood, the inclusion of Seminoles in the provision amounts to nothing, and Congress must stand convicted of a grievous oversight or a grave misconception of what it had previously done.

The Supreme Court of the state of Oklahoma gave this statute most careful, thorough and exhaustive consideration, reaching the conclusion that of necessity it operated to remove all impediments to the alienation of surplus lands of adult Seminole allottees not of Indian blood.13 The Supreme Court of the United States has fully sustained the conclusion of the Supreme Court of Oklahoma and held that the Act of April 21, 1904, removed all restrictions on alienation by deed 14 or mortgage 15 by Seminole allottees. The conveyances involved in the cases in both the Supreme Court of the state and the United States were made prior to issuance of patent. No patents had been issued to Seminole allottees prior to April 21, 1904, and perhaps none prior to September 1, 1913, although authority was given to execute and deliver these patents before the expiration of the tribal government. The effect of the Acts of April 26, 1906, and May 27, 1908, upon the right to alienate allotted and inherited lands of Seminole allottees is considered elsewhere.

13 Godfrey v. Iowa Land & Trust Co., 21 Okl. 293, 95 Pac. 792. 14 Goat v. United States, 224 U. S. 458, 32 Sup. Ct. 544, 56 L. Ed. 841.

15 Deming Inv. Co. v. United States, 224 U. S. 471, 32 Sup. Ct. 549, 56 L. Ed. 847.

CHAPTER 14

SUBSEQUENT LEGISLATION AFFECTING RIGHT OF ALIENATION-FIVE CIVILIZED TRIBES

§ 91.

92.

93. 94.

Act of May 27, 1902, not applicable.

Alienation under Act of March 3, 1903.

Removal of restrictions by Act of April 21, 1904.

Removal by Secretary of restrictions under provision of act of April 21, 1904.

95. Alienation of inherited lands where restrictions have been removed by or under the Act of April 21, 1904.

96. Act of April 26, 1906, extending restrictions on alienation by full-blood allottees.

97. Effect of curative provision of Act of April 26, 1906.

98.

Right of alienation of inherited lands of Five Civilized Tribes as affected by section 22 of the Act of April 26, 1906. 99. Alienation-Removal of restrictions on-By adult heirs of less than the full blood-Section 22 of Act of April 26, 1906. 100. Alienation by minors of inherited lands under section 22 of the Act of April 26, 1906.

101. Joint conveyances by adult and minor heirs under authority of section 22 of the Act of April 26, 1906.

102. Conveyance by full-blood heirs under section 22 of Act of April 26, 1906.

103. Date of death as affecting right of alienation under section 22 of the Act of April 26, 1906.

104. Freedmen lands-Alienation of-Purchased under section 16 of the Act of April 26, 1906.

§ 91. Act of May 27, 1902, not applicable.-The Indian Appropriation Bill, approved May 27, 1902, contained a provision authorizing alienation by heirs of inherited lands covered by trust patent with the approval of the Secretary of the Interior.1 Inasmuch as none of the allottees of the Five Civilized Tribes received trust patents for their lands, there is no reasonable ground upon which this statute could be held applicable to inherited lands of former members of the Five Civilized Tribes. Some time after the passage of the act an application was submitted to the Secretary of the Interior thereunder to approve a deed of lands inherited from an allottee of one of the Five Civilized Tribes. He declined

1 United States Fidelity & Guaranty Co. v. Hansen (Okl.) 129 Pac. 60.

BLED.IND.(2D ED.)-7