Brader v. James

• Decision Date: 11 January 1916
• Docket Number: Case Number: 4721
• Citation: 49 Okla. 734,1916 OK 50,154 P. 560
• Parties: BRADER v. JAMES.
• Court: Oklahoma Supreme Court

1916 OK 50

154 P. 560

49 Okla. 734

BRADER v. JAMES.

Case Number: 4721

Supreme Court of Oklahoma

Decided: January 11, 1916

Syllabus

¶0 1. INDIANS -- Allotment -- Deed Conveying Inherited Lands -- Validity. Section 22 of the act of Congress of April 26, 1906 (34 Stat. at L. 137, c. 1876), giving to the adult heirs of any deceased Indian of either of the Five Civilized Tribes whose selection has been made, or to whom a deed or patent has been issued for his or her share of the land of the tribe to which he or she belongs or belonged, authority to sell and convey the lands inherited from such decedent, but which further provides, "All conveyances made under this provision by heirs who are full-blood Indians are to be subject to the approval of the Secretary of the Interior, under such rules and regulations as he may prescribe," renders void a deed to inherited lands, whether surplus or homestead, allotted during the lifetime of a deceased full-blood Choctaw, who died prior to the date of the passage of the act, where the heir, an adult full-blood Choctaw, attempted to convey by deed, on August 17, 1907, without obtaining the approval of the Secretary of the Interior to such conveyance.

2. SAME. The title to the lands in controversy being, at the date of the passage of the act of April 26, 1906, in the defendant in error, any conveyance thereafter made by her was controlled by the law then in force; and as such law provided that a conveyance by a full-blood Indian heir was subject to the approval of the Secretary of the Interior, and such approval not having been secured, the deed was void.

3. INDIANS -- Guardianship -- Termination -- Power of Congress. Congress, in pursuance of the long established policy of the government, has a right to determine for itself when the guardianship which has been maintained over the Indian shall cease.

4. SAME--Alienation of Inherited Allotted Lands--Approval. Congress, in the exercise of its constitutional authority, and while the guardianship relation over full-blood Indians continues, may impose restrictions on full-blood Indian heirs, requiring that conveyances by them of inherited allotted lands be approved by the Secretary of the Interior; and this, notwithstanding the restrictions imposed by prior legislation have expired by limitation, or by the death of the allottee.

5. SAME--Statutes. The Acts of Congress of July 1, 1902 (32 Stat. at L. 641, c. 1362), April 26, 1906 (34 Stat. at L. 137, c. 1876), June 16, 1906 (34 Stat. at L. 267, c. 3335), and May 27, 1908 (35 Stat. at L. 312, c. 199), pertaining to the affairs of the Chickasaw and Choctaw Indians, and the Enabling Act, evince no intention on the part of the United States to discontinue or surrender, but on the contrary, to continue, its relation of guardianship over full-blood Choctaw and Chickasaw Indians, in respect to the alienation by them of inherited allotted lands.

6. SAME--Validity of Statute--Impairment of Rights. The rights of full-blood Choctaws, who were made citizens of the United States by the act of March 3, 1901 (31 Stat. at L. 1447, c. 868), with all the rights, privileges, and immunities of such citizens, were not unconstitutionally impaired by Act April 26, 1906, par. 22, imposing restrictions upon the alienation by them of inherited allotted lands, notwithstanding that prior to the passage of the act the lands so inherited, or a part thereof, may have been free of all restrictions. Hardy, J., dissenting.

Downs & Ellis and E. A. Blythe, for plaintiff in error.

Works & Copping, for defendant in error. C. C. Herndon, Tibbetts & Green, H. A. Ledbetter, Joseph P. Rossiter, J. C. Wright, and E. E. Hood, amici curiae.

SHARP, J.

¶1 On October 27, 1905, Cerena Wallace, a full-blood Choctaw Indian, died, leaving as her sole surviving heir at law her daughter, Rachel James, nee Reeves, the defendant in error. Thereafter, and on the 17th day of August, 1907, said defendant in error, a full-blood Choctaw, joined by her husband, Davis James, attempted to convey by warranty deed a part of the lands inherited by her from her deceased mother, the lands sold constituting the homestead allotment of 160 acres and 40 acres of the surplus allotment. On the 13th day of September, 1909, the purchaser, Tillie Brader, for the consideration of $ 1, executed to the plaintiff in error, J. H. Brader, a quitclaim deed to said land. The deed executed by Rachel James and her husband to Tillie Brader was never approved by the Secretary of the Interior, neither does it appear that it was ever presented for approval. On August 28, 1912, Rachel James instituted in the district court of Choctaw county an action at law to recover the possession of said land, and for the use and occupation thereof during the time the same was occupied by defendant, Brader. Trial being had, judgment was awarded plaintiff for the possession of the land and for $ 250, which sum the court found to be the reasonable rental value of the property, after crediting the defendant with the value of all improvements which he had erected thereon. The record before us fairly presents these questions: (1) Could Rachel James, a full-blood Choctaw Indian, on and after the 26th day of April, 1906, and before May 27, 1908, convey the lands inherited by her from her mother, who was a full-blood Choctaw Indian, which lands had been allotted to her during her lifetime, so as to give a good title to the purchaser, without the conveyance being approved by the Secretary of the Interior; (2) if the legislation of Congress undertook to make such conveyances valid only when approved by the Secretary of the Interior, is it constitutional? The allotment made to Cerena Wallace was under authority of, and, originally in the matter of alienation, controlled by, sections 12, 15, and 16 of the Supplemental Agreement with the Choctaws and Chickasaws of July 1, 1902 (32 Stat. at L. 641, c. 1362). According to section 12 of said agreement, it was provided that each member of said tribes should, at the time of the selection of his allotment, designate as a homestead out of said allotment lands equal in value to 160 acres of the average allottable land of the Choctaw and Chickasaw Nations, as nearly as might be, which should be inalienable during the lifetime of the allottee, not exceeding 21 years from the date of certificate of allotment, and that separate certificate and patent should issue for said home-stead. As to the surplus allotment, it was provided by section 16 that all the lands allotted to the members of said tribes, except such land as was set aside to each for a homestead, as therein provided, should be alienable after the 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 should 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. In section 15 it was provided that lands allotted to members should not be affected or incumbered by any deed, debt or obligation of any character, contracted prior to the time at which said land might be alienated under said act, nor should said land be sold except as therein provided. It will be observed that the homestead lands were inalienable "during the lifetime of the allottee, not exceeding 21 years from the date of certificate of allotment." The period of restriction was thus definitely limited, and the clear implication is that when the prescribed period should expire, the lands were to become alienable; that is, by the heirs of the allottee upon his death, or by the allottee himself at the end of 21 years. Thus, with respect to homestead lands, the Supplemental Agreement imposed no restriction upon alienation by the heirs of a deceased allottee. This was the view taken in Mullen et al. v. United States, 224 U.S. 448, 32 S. Ct. 494, 56 L. Ed. 834, where it was said that, where lands were allotted to a living member of the tribe, upon his death the homestead portion thereof descended free of restrictions. When the 40 acres of surplus allotment became alienable it is impossible to determine from the record; neither, as we shall presently see, is it important to a determination of the case. Some 16 months prior to the conveyance by Rachel James, Congress passed the act of April 26, 1906 (34 Stat. at L. p. 137, c. 1876). From this act it appears that Congress had undertaken to make new provisions for the protection of full-blood Indians of the Five Civilized Tribes, and to place them, as to the alienation, disposition, and incumbrance of their lands, under restrictions such as to operate to protect them, and to require the Secretary of the Interior to approve conveyances of certain classes of Indians, in order that they might part with lands of the character named therein only upon fair remuneration, and when their interests had been sufficiently safeguarded by competent authority. This intention is clearly expressed in various sections of the act, particularly in sections 19, 21, 22, and 23. While all are important, and bear upon the question of the policy of Congress with regard to full-blood Indians, section 22 is the only one with which we are directly concerned. This section provides:

"That the adult heirs of any deceased Indian of either of the Five Civilized Tribes whose selection has been made, or to whom a deed or patent has been issued for his or her share of the land of the tribe to which he or she belongs or belonged, may sell and convey the lands inherited from such decedent; and if there be both adult and minor heirs of such decedent, then such minors may join in a sale of such lands by a guardian duly appointed by the proper United States court for the Indian Territory. And in the case of the organization of a state or territory, then by a proper court of the county in which

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