Marchie Tiger v. Western Investment Company 30 1910

• Decision Date: 23 January 1911
• Docket Number: No. 60,60
• Citation: 31 S.Ct. 578,221 U.S. 286,55 L.Ed. 738
• Parties: MARCHIE TIGER, Piff. in Err., v. WESTERN INVESTMENT COMPANY and Ellis H. Hammett, R. C. Allan, and J. C. Pinson, Copartners under the Name of Coweta Realty Company. Argued November 30 and December 1 and 2, 1910. Ordered for reargument
• Court: U.S. Supreme Court

221 U.S. 286

31 S.Ct. 578

55 L.Ed. 738

MARCHIE TIGER, Piff. in Err.,

v WESTERN INVESTMENT COMPANY and Ellis H. Hammett, R. C. Allan, and J. C. Pinson, Copartners under the Name of Coweta Realty Company.

No. 60.

Argued November 30 and December 1 and 2, 1910.

Ordered for reargument January 23, 1911.

Reargued March 1 and 2, 1911.

Decided May 15, 1911.

Messrs. W. L. Sturdevant, M. L. Mott, and W. A. Brigham for plaintiff in error on original argument.

Messrs. W. L. Sturdevant, M. L. Mott, and W. A. Brigham for plaintiff in error on reargument.

[Argument of Counsel from pages 287-291 intentionally omitted] Messrs. George S. Ramsey, S. T. Bledsoe, Evans Browne, C. L. Thomas, L. J. Roach, Chris M. Bradley, and R. C. Allen for defendants in error.

[Argument of Counsel from pages 291-294 intentionally omitted] Messrs. Wade H. Ellis and Henry E. Colton for the United States.

Mr. W. W. Hastings for the Cherokee Nation.

[Argument of Counsel from pages 294-298 intentionally omitted] Mr. Justice Day delivered the opinion of the court:

This case involves the validity of conveyances made by Marchie Tiger, plaintiff in error, a full-blood Indian of the Creek tribe, to the defendants in error, the Western Investment Company, and Ellis H. Hammett, R. C. Allan, and J. C. Pinson, copartners under the name of Coweta Realty Company.

The lands in controversy were located in the Indian territory, were allotted under certain acts of Congress, to which we shall have occasion to refer later, and were inherited by Marchie Tiger during the year 1903 from his deceased brother and sisters, Sam, Martha, Lydia, and Louisa Tiger, also members of the Creek nation, and allottees of the lands which passed by inheritance to Marchie Tiger.

According to the law of descent and distribution, which had been put in force in the Indian territory, Marchie Tiger was the sole heir at law of his deceased brother and sisters. 32 Stat. at L. 500, chap. 1323; Mansfield's Dig. Arkansas Stat. chap. 49, § 2522.

On August 8, 1907, Marchie Tiger sold and conveyed by warranty deed to the defendant in error the Western Investment Company certain of the said lands for the sum of $2,000, which was paid by the company. On July 1, 1907, Marchie Tiger sold and conveyed by warranty deed certain other of said lands to the Coweta Realty Company, and likewise sold and conveyed the same, in the same manner, on July 26, 1907, on August 8, 1907, and on August 13 1907, to the Coweta Realty Company; the consideration agreed to be paid by the company was $3,000, of which $558 was paid. The plaintiff in error offered to return the amounts paid by the respective purchasers, and made tender thereof, which was refused, and this suit is brought to have the deeds in question canceled, and the claim set aside as a cloud upon plaintiff's title.

Each and all of these conveyances were made without the approval of the Secretary of the Interior. The supreme court of Oklahoma held the conveyances valid and denied relief to the plaintiff in error. 21 Okla. 630, 96 Pac. 602.

Two questions arise in the case. First: Could a full-blood Creek Indian, on and after the 8th day of August, 1907, convey the lands inherited by him from his relatives, who were full-blood Creek Indians, which lands had been allotted to them, so as to give a good title to the purchaser, although the conveyance was made without the approval of the Secretary of the Interior? Second: If the legislation of Congress in question undertook to make such conveyances valid only when approved by the Secretary of the Interior, is it constitutional?

An answer to these questions requires a consideration of certain treaties and legislation concerning title to these lands. In 1833 [7 Stat. at L. 417], the United States made a treaty with the Creek nation of Indians, in consideration of which they were to move to a new country west of the Missippi, and to surrender all the lands held by them east of the Mississippi, and the United States agreed to convey to them a tract of land comprising what is now a part of the state of Oklahoma.

On August 11, 1852, in pursuance of this treaty, the United States issued a patent for the tract of country mentioned, in which it was recited that the grantor, 'in consideration of the premises, and in conformity with the above-recited provisions of the treaty aforesaid, has given and granted, and by these presents does give and grant, unto the Muskogee (Creek) tribe of Indians, the tract of country above mentioned, to have and to hold the same unto the said tribe of Indians so long as they shall exist as a nation and continue to occupy the country hereby assigned to them.'

Upon this tract of land the Creeks became a settled people, and established a government. In 1893 the United States, in pursuance of a policy which looked to the final dissolution of the tribal government, took steps toward the distribution and allotment of the lands among the members of the tribe. On March 3, 1893, Congress passed an act (27 Stat. at L. 645, chap. 209), which provides:

'Sec. 15. The consent of the United States is hereby given to the allotment of lands in severalty, not exceeding one hundred and sixty acres to any one individual within the limits of the country occupied by the Cherokees, Creeks, Choctaws, Chickasaws, and Seminoles; . . . and upon the allotment of the lands held by said tribes respectively the reversionary interest of the United States therein shall be relinquished and shall cease.'

Section 16 of the act provided for the appointment of commissioners to enter upon negotiations with the Cherokee, Choctaw, Chickasaw, Creek, and Seminole Nations, looking to the extinguishment of the tribal title to lands in the territory held by the nations or tribes, whether by cession of the same, or some part thereof, to the United States, or by allotment and division thereof in severalty among the Indians of such nations or tribes, or by such other method as may be agreed upon by such nations or tribes with the United States, with a view to such adjustment on the basis of justice and equity as might, with the consent of such nations or tribes, so far as might be necessary, be requisite and suitable to enable the ultimate creation of a state or states of the Union, which shall embrace the lands within the Indian territory.

After negotiations and legislation looking to the enrolment of the tribes entitled to citizenship, an act of Congress known as the original Creek agreement was passed. (Act of March 1, 1901, 31 Stat. at L. 861, chap. 676.)

Section 7 of that act contains certain restrictions upon the title of individual Indians after the same had been conveyed to them by the Creek Nation, with the approval of the Secretary of the Interior. Section 7 of the act of March 1, 1901, was amended by the act of June, 30, 1902 (32 Stat. at L. 500, chap. 1323), known as the supplemental creek agreement.

Section 16 of the act superseded § 7 of the first Creek agreement, and, as it contains the restriction on alienation of allotted lands, important to be considered, so much of that section as contains such restrictions is here quoted:

'Sec. 16. 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, nor be alienated by the allottee or his heirs before the expiration of five years from the date of the approval of this supplemental agreement, except with the approval of the Secretary of the Interior. Each citizen shall select from his allotment forty acres of land, or a quarter of a quarter section, as a homestead, which shall be and remain nontaxable, inalienable, and free from any encumbrance whatever for twenty-one years from the date of the deed therefor, and a separate deed shall be issued to each allottee for his homestead, in which this condition shall appear.'

This agreement was ratified by the action of the Creek National Council, and approved by the President of the United States August 8, 1902.

It is thus apparent that the five-year limitation created by § 16 of the act of 1902, upon the alienation of lands by the Creek Indians, had expired when the conveyances in controversy were made.

Within that five years, and about fifteen months before the expiration thereof, Congress passed the act of April 26, 1906 (34 Stat. at L. 137, chap. 1876), entitled, 'An Act to Provide for the Final Disposition of the Affairs of the Five Civilized Tribes in the Indian Territory, and for other Purposes.'

Sections 19, 20, 22, and 23 of the act are important to be considered, and are given in full in the margin.

"Sec. 19. That no full-blood Indian of the Choctaw, Chickasaw, Cherokee, Creek, or Seminole tribes shall have power to alienate, sell, dispose of, or encumber in any manner any of the lands allotted to him for a period of twenty-five years from and after the passage and approval of this act, unless such restriction shall, prior to the expiration of said period, be removed by act of Congress; and for all purposes the quantum of Indian blood possessed by any member of said tribe shall be determined by the rolls of citizens of said tribes, approved by the Secretary of the Interior; Provided, however, that such full-blood Indians of any of said tribes may lease any lands other than homesteads for more than one year under such rules and regulations as may be prescribed by the Secretary of the Interior; and in case of the inability of any full-blood owner of a homestead, on account of infirmity or age, to work or farm his homestead, the Secretary of the Interior, upon proof of such inability, may authorize the leasing of such homestead under such rules and regulations: Provided, further, that conveyances heretofore made by members of any of the Five Civilized Tribes subsequent to the selection of allotment and subsequent to removal of restriction, where patents thereafter issue, shall not be deemed or held invalid...