be inalienable during the lifetime of the allottee, not exceeding twenty-one years from date of certificate of allotment.

No provision was made for allotment of lands in the name of a deceased enrolled member under the Atoka Agreement, but was in the supplemental agreement.

So far as restrictions upon alienation under the ChoctawChickasaw allotment agreement are concerned, they may be classified as follows: (1) Restrictions upon alienation of homesteads of members of the tribe; (2) restrictions upon the alienation of surplus lands of living members of the tribe; (3) restrictions upon alienation of inherited surplus lands; (4) restrictions upon the alienation of land allotted to Choctaw and Chickasaw freedmen; (5) restrictions upon alienation of land allotted in the name of deceased members of the tribe; and (6) restrictions upon involuntary alienation.

The subject-matter of restrictions upon alienation under the Choctaw-Chickasaw agreements is believed to be controlled almost exclusively by the provisions of the supplemental agreement. The provisions of the original or Atoka Agreement apply only when not in conflict with the provisions of the supplemental agreement. Inasmuch as the supplemental agreement is complete in itself as applied to restrictions upon alienation, little reason can be found for the application of the restrictions found in the original agreement to lands allotted under the supplemental agreement. The court has, in a few instances, given more prominence to the effect of the provisions of the Atoka Agreement imposing restrictions upon alienation than is consistent with the language of the supplemental agreement and its exclusiveness where applicable.3

§ 72. Alienation of homestead-Restrictions on.-By specific terms of the allotment agreement the homestead of the Choctaw and Chickasaw allottees was made inalienable

8 Lewis v. Clements, 21 Okl. 167, 95 Pac. 769.

during the lifetime of the allottee, but not exceeding twentyone years from date of certificate of allotment. The homestead here referred to is a part of the allotment designated as and reserved for homestead purposes under the allotment agreement. It may, and most frequently does, exist as to land never in fact occupied as a homestead. It is not a homestead as that term is usually understood and applied. It is an arbitrary application of the term "homestead" to a certain part of the allotment, which the allottee is prohibited from alienating during his lifetime. The word "homestead," as generally used in this treatise, unless otherwise modified, relates to the homestead reserved and set apart under the provisions of the various allotment agreements and allotment acts, and not to the homestead by occupancy under the homestead laws of Oklahoma. This provision restricting alienation of the homestead is clearly personal to the allottee and ceases upon his death. The prohibition against alienation during the lifetime of the allottee is an implied grant of authority to the heirs of the allottee to alienate upon his death. The homestead, therefore, of a living member of the Choctaw and Chickasaw Tribes becomes alienable upon his death, and regardless of whether certificate of allotment or patent has issued. Subsequent legislation affecting the right of alienation of the homestead allotment by both the allottee and his heirs is found in Act April 26, 1906, and in Act May 27, 1908.

§ 73. Alienation of fractional part of surplus of living members.-Section 16 of the supplemental agreement, which fixes the restrictions upon alienation of the allotments of members of the Choctaw and Chickasaw Tribes in excess

4 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.

The Act of April 26, 1906, is reproduced in chapter 52, and its effect on the right of alienation is discussed in sections 97 to 104.

• The Act of May 27, 1908, is reproduced in chapter 53, and its effect on the right of alienation is discussed in sections 107 to 116.

of the homestead, and commonly known and referred to as the "surplus allotment," is as follows: "All lands allotted to members of said tribes, except such land as is set aside to each for a homestead as herein provided, shall be alienable after issuance of patent as follows: One-fourth in acreage in one year, one-fourth in acreage in three years, and the balance in five years; in each case from date of patent: Provided, that such land shall not be alienable by the allottee or his heirs at any time before the expiration of the Choctaw and Chickasaw tribal governments for less than its appraised value."

This provision presents for consideration a double question. When do the lands allotted under this section become alienable if the allottee continues to live? When do they become alienable in case of death of the allottee?

We will consider, first, when the fractional parts of the surplus allotment become alienable where the allottee continues to live.

To summarize the language of the act, one-fourth in acreage may be alienated by the allottee after issuance of patent and at the expiration of one year from the date thereof, and one-fourth in acreage may be alienated after issuance of patent and at the expiration of three years from the date thereof, and the remainder may be alienated after issuance of patent and after the expiration of five years. from the date thereof.

The two questions to be determined in arriving at a proper solution of the meaning of this provision are: What constitutes the issuance of a patent? and what is the date of the patent?

The process of executing and delivering Choctaw and Chickasaw patents was as follows: The patent was prepared by the Secretary of the Interior, signed by the Principal Chief of the Choctaw Nation, the time of his signature being dated, signed by the Governor of the Chickasaw Nation, the time of his signature being dated, and approved

by the Secretary of the Interior, the time of his approval being dated. The patent was, at the convenience of the officials, recorded and delivered to the allottee.

When is a patent, taking such course, issued, and what is its date? Judge Campbell, in a recent opinion, in one of the Indian land suits pending in the District Court of the United States for the Eastern District of Oklahoma, held that a patent is not issued under this provision until delivered to the patentee, notwithstanding it is required by section 66 of the supplemental agreement to be recorded in the office of the Commissioner to the Five Civilized Tribes before delivery and such recording shall have like effect as other such records. He further concludes that after the Act of April 26, 1906, a patent was issued when recorded, because under the provision of section 5 of that act the recording is made to operate as a conveyance of the legal title without delivery. It is probable that in this particular the Act of April 26, 1906, is but declaratory of an existing rule rather than the establishment of a new one.

§ 74. Date of patent.-The patent is but a joint deed, executed by the Principal Chief of the Choctaws and the Governor of the Chickasaws as grantors. It is doubtful if the Secretary's approval of the Choctaw and Chickasaw patent was either necessary or effectual to accomplish anything. It certainly is no part of the execution of the conveyance. It is no proper part of the patent. If necessary to the validity of the patent, it makes the same effectual as of the date of its execution. 8

It is not believed that the date of a patent thus executed could by any legitimate interpretation of the statute be as

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

8 Pickering v. Lomax, 145 U. S. 310, 12 Sup. Ct. 860, 36 L. Ed. 716; Jones v. Meehan, 175 U. S. 1, 20 Sup. Ct. 1, 44 L. Ed. 49; Lykins v. McGrath, 184 U. S. 169, 22 Sup. Ct. 450, 46 L. Ed., 485; Almeda Oil Co. v. Kelley (Okl.) 130 Pac. 931; Ingraham v. Ward, 56 Kan. 550, 44 Pac. 14; Campbell v. Kansas Town Co., 69 Kan. 314, 76 Pac. 840.

cribed to a time later than the date of the signature of the last grantor. If the purpose of the statute had been to fix as the period of time from which to calculate the beginning of the restriction period the date of the Secretary's approval, or the delivery of patent, language could have easily been found capable of expressing such conclusion. There is no logical reason, nor anything apparent from the 'context, which would authorize a court by construction to change the wording of the act, "from date of patent," so as to make it read "from date of Secretary's approval" or "date of delivery."

"Date of patent," "date of approval," "date of recording," and "date of delivery" are distinct acts, having reference to different steps in the progress of completing the allottee's evidence of title, and should be so considered. It is fair to assume that this statute, by "date of patent," means the date of the signature of the representatives of the grantors signing the same.

§ 75. Alienation of inherited surplus allotment.-Are the restrictions upon alienation of surplus lands, imposed by section 16 of the Choctaw-Chickasaw Supplemental Agreement, personal to the allottee, and expire upon his death, do they run with the land, or are they for a fixed period of time, regardless of the death of the allottee?

The question presented is a grave one, and cannot be considered free from doubt. For almost a century various restrictions, differing much in their phraseology, have been imposed upon the alienation of allotted Indian lands. No other restrictions upon alienation have been couched in the same language, or language of similar import, to that of section 16. In previous instances the language has either made the restrictions more clearly personal, or for a def

9 Clark v. Libbey, 14 Kan. 435; Libby v. Clark, 118 U. S. 250, 6 Sup. Ct. 1045, 30 L. Ed. 133; Taylor v. Brown, 5 Dak. 335, 40 N. W. 525; Id., 147 U. S. 640, 13 Sup. Ct. 549, 37 L. Ed. 313; Peoria & Miami Indians, 29 Land Dec. 239.