Harris v. Bell

• Decision Date: 30 April 1918
• Docket Number: 4911.
• Parties: HARRIS et al. v. BELL et al.
• Court: U.S. Court of Appeals — Eighth Circuit

250 F. 209

HARRIS et al. v. BELL et al.

No. 4911.

United States Court of Appeals, Eighth Circuit.

April 30, 1918

[Copyrighted Material Omitted]

James C. Davis, of Muskogee, Okl. (R. C. Allen, of Muskogee, Okl on the brief), for appellants.

P. J Carey, of Muskogee, Okl., for guardian ad litem.

Belford & Hiatt, of Okmulgee, Okl., for appellee Womack

Frank F. Lamb, of Okmulgee, Okl., for appellee Gill.

William M. Matthews, of Okmulgee, Okl. (John S. Kirkpatrick, R. C. Martin, and H. M. Kirkpatrick, all of Idabel, Okl., and George S. Ramsey, of Muskogee, Okl., on the brief), for other appellees.

Before SANBORN and SMITH, Circuit Judges, and TRIEBER, District Judge.

SANBORN Circuit Judge.

This case presents many questions. The first is the character and extent of the restrictions on the alienation of 160 acres of land, which was formerly the property of the Creek Tribe, and was, on December 4, 1907, allotted by the Dawes Commission in the name of Freeland Francis, a new-born full-blood Creek Indian, who was born on April 30, 1903, was enrolled on June 10, 1905, and died on June 22, 1905. The right of Freeland Francis to an allotment, and to the land when allotted, descended under the Creek Agreements and the acts of Congress to his mother, Annie Francis (who by marriage has become Annie Harris), his brother Amos Francis, his sister Elizabeth Francis, and his half-brother Mack Francis. Annie, Amos, and Elizabeth are full-blood Creek Indians; Mack is a half-blood. On January 15, 1908, Annie made a deed of her interest in the land to Laura L. McGinnis, which was approved by the Secretary of the Interior on July 6, 1910, and the respondents H. L. Lightsey and John R. Taylor have succeeded to the right conveyed by that deed. On January 22, 1912, W. J. Cook, as guardian of Amos and Elizabeth, pursuant to orders of the county court of Okmulgee county, Okl., made his guardian's deed of their interest in the land to the respondents Lightsey and Taylor. The appellants Annie, Amos, and Elizabeth claim that these deeds are void on account of restrictions on their power to alienate these lands by sections 5, 19, and 22 of the Act of April 26, 1906, c. 1876, 34 Stat. 137, and section 9 of the Act of May 27, 1908, c. 199, 35 Stat. 312.

The court below was of the opinion that the appellants' right to alienate this land was exempt from the restrictions imposed by these acts, and that was the opinion of this court in a like case. Sunday v. Mallory, 150 C.C.A. 408, 237 F. 526. The Supreme Court, however, on March 4, 1918, decided, in cases not distinguishable from that here in hand, that full-blood heirs of a deceased enrolled citizen of one of the Five Civilized Tribes, on whose account an allotment was selected after his decease by an administrator or by the Dawes Commission, are subject to the restriction in section 22 of the Act of April 26, 1906, to the effect that all conveyances made thereunder by heirs who are full-blood Indians are subject to the approval of the Secretary of the Interior. 34 Stat. 145; Brader v. James, 246 U.S. 88, 38 Sup.Ct.

285, 62 L.Ed. . . .; Talley v. Burgess, 246 U.S. 104, 38 Sup.Ct. 285, 62 L.Ed. . . . . And this court has followed that decision. David v. Youngken (filed April 3, 1918) 250 F. 208, . . . C.C.A. . . . .

In view of these decisions, the question arises whether or not Annie's deed, made on January 15, 1908, and approved by the Secretary of the Interior on July 6, 1910, constituted a lawful conveyance. Counsel for the appellants insist that it did not: First, because, as they insist, she and the brothers and sisters of Freeland Francis took as allottees, and not as heirs, and she and they were prohibited from alienating their interests in the land by sections 5 and 19 of the Act of April 26, 1906, 34 Stat. 138, 144; and, second, because the power of the Secretary to approve her deed under section 22 of that act was revoked by the Act of May 27, 1908. 35 Stat. 312, 315, Sec. 9. But the first contention is inconsistent with the decision of the Supreme Court in Brader v. James, and of this court in David v. Youngken, cited above. In those cases the Supreme Court and this court had before them the question what restrictions were imposed by the Act of April 26, 1906, upon the alienation of their lands by full-blood descendants of deceased Indians in whose names those lands had been selected and allotted after their death, and they called such descendants heirs, and held that the restrictions imposed by section 22 governed their right of alienation. Moreover, Congress has persistently kept separate and imposed different restrictions upon the alienation of those to whom lands were allotted while they were living (Original Creek Agreement of March 1, 1901, c. 676, 31 Stat. 861, 863, Sec. 7; Supplemental Creek Agreement, Act of June 30, 1902, c. 1323, 32 Stat. 500, 503, Sec. 16; Act of April 26, 1906, 34 Stat. 144, Sec. 19), and by the heirs of those deceased Indians in whose names lands were selected and allotted after their death (Original Creek Agreement, 31 Stat. 869, 870, Sec. 28; Supplemental Creek Agreement, 32 Stat. 500, 501, Sec. 7; Act of March 3, 1905, c. 1479, 33 Stat. 1048, 1071). By the acts first cited restrictions were placed upon the alienation of their lands by the members of the first class, but no restrictions upon the alienation of their lands by the members of the second class were imposed by any act of Congress prior to the Act of April 26, 1906. Skelton v. Dill, 235 U.S. 206, 207, 35 Sup.Ct. 60, 59 L.Ed. 198. The appellants in this case are members of the second class. They obtained their title under section 28 of the Original Creek Agreement, section 7 of the Supplemental Agreement, and the provision of the Appropriation Act of March 3, 1905, 33 Stat. 1048, 1071, to the effect that the Dawes Commission might enroll children born subsequent to May 25, 1901, but prior to March 4, 1905, and living on the latter date, to Indians whose enrollment had theretofore been approved by the Secretary, and might enroll and make allotments to such children. Freeland Francis was one of these new-born citizens.

The acts of Congress relating to this class of citizens in effect provide that the lands and moneys to which such citizen would have been entitled if living shall descend to his heirs according to the applicable laws of descent and distribution, and shall be allotted and distributed to them accordingly. 31 Stat. 869, 870, Sec. 28; 32 Stat. 500, 501, Sec. 7; 33 Stat. 1071. It was not as original members of the Creek Tribe, to whom allotments were made while they were living, or as heirs of such members. It was not as allottees, but as heirs of a new-born citizen, for whom no selection or allotment had been made while he was living; it was not in their own right, but in his right, that the mother and the brothers and sister of Freeland Francis took this land. Now the Act of April 26, 1906, preserves the distinction between the two classes made by the prior legislation. It provides in section 19 (34 Stat. 144), with exceptions not relevant here, that no full-blood Indian of either of the Five Tribes shall have power to alienate the lands allotted to him for 25 years. It provides in section 22 that the adult heirs of any deceased Indian of either of said tribes, whose selection has been made, may sell and convey the lands inherited from such decedent, but that conveyances made under this provision by full-blood Indian heirs shall be subject to the approval of the Secretary of the Interior. Section 19 applies to full-blood Indians to whom lands were allotted while they were living, and it does not apply to their heirs or to the appellants. Section 22 applies to the heirs of deceased Indians whose selections have been made. The appellants are such heirs, and their power of alienation was not restricted by section 19; but the restriction thereon imposed by the Act of April 26, 1906, was imposed thereon and governed exclusively by section 22 thereof. Nor is there anything in section 5 of the act inconsistent with this conclusion. The first position of counsel for the appellant here is therefore untenable.

Counsel's second position, that the power of the Secretary of the Interior to approve and validate Annie's deed was revoked by the Act of May 27, 1908, is not more tenable. She made her deed on January 15, 1908, before the Act of May 27 of that year was passed. At that time she had the right to convey her land subject only to the approval of the Secretary, and he had the right and power to approve it under section 22 of the Act of April 26, 1906, and he did approve it on July 6, 1910. The Act of May 27, 1908, provides in section 9 that the death of any allottee of the Five Civilized Tribes--

'shall operate to remove all restrictions upon the alienation of said allottee's land: Provided, that no conveyance of any interest of any full-blood Indian heir in such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee.' 35 Stat. 312, 315.

The argument is that the Act of May 27, 1908, repealed the provision of section 22 of the Act of April 26, 1906, regarding the approval by the Secretary and that this deprived him of the power to approve deeds made before the passage of the Act of May 27, 1908. But that act declares that:

'The Secretary of the Interior shall not be prohibited by this act from continuing to remove restrictions as heretofore, and nothing herein shall be construed to impose restrictions removed from land by or under any law prior to the passage of this act.' 35 Stat. 312.

It makes an express amendment of the Act of April 26, 1906, 35 Stat. 315, Sec. 8, and it contains no express repeal of that act or...