Allen v. Oliver

• Decision Date: 22 June 1911
• Docket Number: Case Number: 898
• Citation: 1911 OK 224,31 Okla. 356,121 P. 226
• Parties: ALLEN v. OLIVER.
• Court: Oklahoma Supreme Court

1911 OK 224

121 P. 226

31 Okla. 356

ALLEN v. OLIVER.

Case Number: 898

Supreme Court of Oklahoma

Decided: June 22, 1911

Syllabus

¶0 INDIANS--Cherokee Allotments--Alienation. Under sections 14 and 15 of the Cherokee Agreement, approved July 1, 1902 (Act July 1, 1902, c. 1375, 32 St. 717), all lands allotted to members of the said tribe, except homesteads, were alienable in five years after issuance of patent, and not prior thereto.

Error from District Court, Rogers County; John. H. Pitchford, Judge.

Action between James P. Allen and H. H. Oliver. From the judgment, Allen brings error. Affirmed.

Knight, Ezzard & Holtzendorff, W. H. Kornegay, and S. T. Bledsoe (Veasey & Rowland, of counsel), for plaintiff in error

John Q. Adams, for defendant in error

George S. Ramsey, amicus curiae

DUNN, J.

¶1 This case, presenting error from the district court of Rogers county, Okla., was filed on the 9th day of January, 1909.

¶2 There is but one question presented, which is: When, under the Cherokee Agreement, an act of Congress approved July 1, 1902 (32 Stat. 716, c. 1375), and voted upon and accepted by the Cherokee Tribe of Indians on the 7th day of August, 1902, may a member of said tribe of Indians lawfully alienate the surplus lands included within his allotment? This requires a consideration of sections 14 and 15 of the said act, which read as follows:

"14. Lands allotted to citizens shall not in any manner whatever or at any time be encumbered, taken, or sold to secure or satisfy any debt or obligation, or be alienated by the allottee or his heirs, before the expiration of five years from the date of the ratification of this act.

"15. All lands allotted to the members of said tribe, except such land as is set aside to each for a homestead as herein provided, shall be alienable in five years after issuance of patent."

¶3 It is said in the brief of counsel for plaintiff in error that if a conveyance made by a Cherokee allottee of Indian blood, subsequent to the expiration of five years from the ratification of the agreement, but before the expiration of five years from the issuance of patent, should be held valid, the judgment of the trial court must be reversed, and the contention of plaintiff in error sustained. If, on the other hand, it shall be held that a conveyance made by an allottee, subsequent to the expiration of five years from the ratification of the agreement, but within five years from the issuance of patent, is void, then on this question the judgment of the trial court is correct.

¶4 At the outset it may be stated that Congress has, by the use of the language employed in the foregoing sections, left its actual meaning considerably obscured, and that either construction leaves ground for argument that the other view is correct. Either of these sections, standing alone, provided restrictions are held to have been within the legislative purview, would be simplicity itself; but, taken together, each has a tendency to render the meaning of the other obscure and uncertain. It is a fundamental canon of construction that no word, sentence, or section of an act shall be rejected if, on any reasonable hypothesis, it can be given a field within which to operate. If this were not the rule, and we were permitted to entirely reject section 15, our difficulties would be entirely relieved; or if, when the apparent policy and purposes of the act are taken into consideration, it could be assumed that restrictions were intended, and we were relieved of considering section 14, the same result would follow. The sole duty of a court in construing legislation is to ascertain from the language used, when possible, the legislative intent; but where obscurity exists it is often essential, in order to ascertain the particular intent of the Legislature, to call to the aid of the court some degree of implication, or, as was said by Chief Justice Marshall, in the case of Durosseau v. United States, 6 Cranch 307, 314, 3 L. Ed. 232, quoted approvingly in the case of The Paquete Habana, 175 U.S. 677, 20 S. Ct. 290, 44, 44 L. Ed. 320 L. Ed. 320:

"The spirit, as well as the letter, of a statute must be respected; and where the whole context of the law demonstrates a particular intent in the Legislature to effect a certain object, some degree of implication may be called in to aid that intent."

¶5 And, in order to interpret an uncertain or obscure statute aright, courts must view the subject of legislation from the position occupied by those who have written it, and ascertain the legislative intent from the general purposes of the act. This thought is expressed by Judge Nott, in the case of Upton v. United States, 19 Ct. Cl. 46, 49, as follows:

"In this country, where statute law is the hurried work of overbusy individuals, very little importance can be attached to accidents of phraseology. Every year of judicial experience renders plainer the fact that judges, to interpret aright, must put themselves in the position of the legislators who make the statute, and gather from its general purposes the meaning of its obscurer parts."

¶6 In the case of People ex rel. Keeney v. City of Chicago, 152 Ill. 546, 38 N.E. 744, from which this court quoted approvingly in the case of Town of Eufaula v. Gibson et al., 22 Okla. 507, 518, 98 P. 565, 569, it is said:

"A thing within the intention is regarded as within the statute, though not within the letter; and a thing within the letter is not within the statute, unless within the intention. Perry County v. Jefferson County, 94 Ill. 214; People v. Hoffman, 97 Ill. 234; Anderson v. Chicago, Burlington & Quincy Railroad Co., 117 Ill. 26, 7, 7 N.E. 129 N. E. 129. The several provisions of the statute should be construed together in the light of the general objects and purposes of the enactment, and so as to give effect to the main intent, although particular provisions are thus construed not according to their literal reading. Hill v. Harding, 93 Ill. 77; Wabash, St. Louis & Pacific Railway Co. v. Binkert, 106 Ill. 298. The intention is to be gathered from the necessity or reason of the enactment, and the meaning of words enlarged or restricted according to the true intent. Castner v. Walrod, 83 Ill. 171, 25 Am. Rep. 369; Cruss v. Aden, 127 Ill. 231, 20 N.E. 73, 3 L. R. A. 327. That which is implied is as much a part of the statute as that which is expressed. Potter's Dwarris, 145; United States v. Babbit, 1 Black 55, 17 L. Ed. 94."

¶7 In this act, as in all of the others under which the lands of the tribes of the Indian Territory were allotted to them, provision is made against the power of immediate alienation on the part of the allottees. The reason for this was noted by this court in the case of Hancock et al. v. Mutual Trust Co. et al., 24 Okla. 391, 103 P. 566, wherein it was said:

"Recognition of the general inability of the individual members to at once successfully cope in a business way with many of the people among and surrounding them was taken by providing that all of those who were living, and who under the treaty personally took their allotments, were held, by virtue of the terms of the act, to be restricted in their right of alienation, and to take the land subject to this restriction. This condition and the reason for it are well stated in the case of Jackson v. Thompson et al., 38 Wash. 282, 80 P. 454, wherein the Supreme Court of that state, speaking through Mr. Justice Dunbar, said: 'The Indians are wards of the government. These arrangements and provisions are provisions in their interest and by their consent, as indicated in the solemn treaties executed. The government, from the necessities of the case, in consideration of the inexperience of the Indians, was compelled to insert these provisions in deeds which it issued to them to prevent

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