McIntosh v. Dill

Decision Date07 February 1922
Docket Number11865.
Citation205 P. 917,86 Okla. 1,1922 OK 35
CourtOklahoma Supreme Court

Rehearing Denied April 4, 1922.

Syllabus by the Court.

The requirements of a well-organized and civilized government require that the power to control the persons and property of those non sui juris, such as infants, lunatics, and those held incompetent, and being such persons as are incapable of contracting themselves, must be vested somewhere and this power rests primarily in the people as parens patriæ and their legislative department of government, and it continues to reside in such department until the people, by their Constitutions, have taken it from the Legislature and vested it elsewhere, and, most generally in such instances, in the courts. The Legislature itself may vest it in the courts. Where such jurisdiction is vested in the courts by the Constitution, the Legislature cannot infringe upon such constitutional jurisdiction. Where the Legislature itself grants the power to the courts, it having the power to give it has the power to take away. The only limitation on this legislative power is that, if rights have become vested under the grant of a power, the Legislature cannot encroach upon such vested right by enactments that effect, or destroy such vested rights.

The Congress of the United States, so long as it possesses jurisdiction of an Indian or Indian tribe, has the power to place restrictions upon alienation of the lands of such Indian or tribe, and at the same time the Congress has the power to remove such restrictions upon alienation, if in the judgment of Congress it is wise to do so, and the only limitation upon this power of Congress is that it cannot disturb by its enactments, either in favor of the Indian or of third persons; and the exercise of such power by Congress as thus defined and limited is not in contravention of the Fifth Amendment of the Constitution of the United States which provides that no person shall be deprived of property without due process of law. This is upon the theory that no person can base a claim to a vested right in the denial of a right. A disability is not a property right, and the assertion of a vested interest therein is a legal fallacy. Loman et al. v. Paullin, 51 Okl. 294, 152 P. 73.

Indian tribes and individual members thereof are primarily under the control and supervision of the Congress of the United States and, so long as this power subsists, the Congress has plenary authority to control and direct the disposition of the property rights of the Indian as a member of a tribe or as an individual, and the doctrine of parens patriæ applies to this relation between Congress and the Indians--that of guardian and ward--and is sovereign in its scope.

Restrictions upon landed allotments of Indians arising by reason of enactments of Congress, whether based upon minority or degree of blood, or both, is an exercise of plenary power of Congress heretofore defined, and being an exercise of the will and discretion of Congress, and Congress has equal unlimited power to remove such restrictions as the judgment and discretion of Congress may dictate, and Congress may express this will by a general enactment or by a special enactment applicable to a particular Indian and affecting his particular allotment.

A proceeding pursued in a guardianship court seeking to convey title to an allotment or a portion thereof of a minor Indian, whose lands at the time of such attempted involuntary conveyance are restricted as to alienation, such court at the time not being authorized thereunto by Congress, is a void proceeding and a deed procured thereunder is a nullity. But it is held that Congress may, by a subsequent special act, and while said Indian allottee is still under the jurisdiction of Congress and the allotted lands of said Indian, and their disposition are still under the control of Congress, remove such restrictions and approve and validate said transaction, and make the deed of force and effect from its date.

Additional Syllabus by Editorial Staff.

The doctrine of "parens patriæ" is the inherent power and authority of a Legislature to provide protection of the person and property of persons non sui juris, such as minors, insane and incompetent persons.

Appeal from District Court, Okfuskee County; Lucien B. Wright, Judge.

Action in ejectment by Mildred McIntosh, plaintiff, against W. H. and M. E. Dill, defendants. Judgment for defendants, and plaintiff appeals. Affirmed.

Restrictions of Indian allotments arising by Acts of Congress, whether based on minority or degree of blood, or both, is an exercise of plenary power, and being an exercise of the will and discretion of Congress, Congress has equal unlimited power to remove such restrictions as its judgment and discretion may dictate, and Congress may express this will by a general or by a special enactment applicable to a particular Indian, and affecting his particular allotment in view of 32 Stat. 503, March 16, 31 Stat. 861, 35 Stat. 312, and 11 Stat. 431.

George C. Crump, of Holdenville, and Thos. H. Owen and Alvin F. Molony, both of Oklahoma City, for plaintiff in error.

Gibson & Hull, of Muskogee, and T. H. Wren, Tom Hazlewood, and J. C. Wright, all of Okemah, for defendants in error.


This is an action in ejectment tried on an agreed statement of facts in the district court of Okfuskee county. A jury was waived. Judgment by the court was rendered in favor of the defendants in error, and the plaintiff below, plaintiff in error herein, has appealed.

The parties herein will be designated as plaintiff and defendant as in the trial court.

The plaintiff is a three-fourths Creek Indian by blood, and is an allottee of the Creek Nation, and the land for which she sues is a part of her surplus allotment, and described as follows: The north half of the southeast quarter of section 12, township 11 north, range 9 east, Okfuskee county, Okl.

Plaintiff was born in June, 1898, and on the 23d day of June, 1906, Bunny McIntosh, her father, was duly appointed her guardian by the United States Court for the Western District of the Indian Territory. He filed a petition in said court for authority to sell the land in question, and on the 9th day of July, 1907, the court made an order directing the guardian to make the sale.

The sale of the land was sought as an addition to the town of Okemah, which is now the county seat of Okfuskee county, and the guardian caused the land to be platted into lots and blocks, streets and alleys, and on the 27th and 28th days of September, 1907, the property was sold, in which sale divers and many persons became purchasers. From said sale plaintiff received more than $16,000, and the property has been improved, and many homes placed thereon, and said property, including said improvements, has become of great value, estimated at $300,000.

Defendant W. H. Dill declares no claim to any interest in the property, but defendant M. E. Dill asserts ownership of lots 4, 5, and 6 of block 19, which are a part of the tract heretofore described, and upon which lots improvements have been placed to the value of $4,000 or more, and she deraigns her title back to the guardian's sale, and only those lots are involved in this particular action.

The plaintiff attained her majority on the 18th day of June, 1916, and brought this action on the 21st day of July, 1919, and as the gravamen of her suit contends that, at the time the court ordered the sale to be made, the alienation of the land was restricted, and the order therefore being void, conferred no authority upon the guardian whatever to make said sale, and that hence the conveyance was a nullity.

Against this contention of the plaintiff, the defendant insists upon three grounds that the judgment of the trial court should be affirmed:

First. That the Congress cured any defects in said title and vested the title in the purchasers by a special act of Congress passed June 25, 1910, and that said act had the effect of validating the title in the purchasers at said sale; said provision being section 26, 3 Kappler on Indian Laws and Treaties, p. 482, and provides as follows:

"That all sales and conveyances made by Bunny McIntosh, legal guardian of Mildred McIntosh, a minor, mixed-blood Creek Indian, under decree of the United States court of the Western District of Indian Territory, sitting at Wewoka, rendered on the 9th day of July, 1907, and sold on the 27th and 28th days of September, 1907, and conveying various portions of the north half of the southwest quarter of section 13, township 11 north, range 9 east, of said lands, and adjoining the town of Okemah, be and the same are hereby validated, and all restrictions upon said lands heretofore placed by act of Congress are removed."

Second. The defendants contend that the plaintiff, Mildred McIntosh, after reaching her majority, and on the 28th day of June, 1916, made a final settlement with her legal guardian, and received from said guardian the proceeds from the sale of said lots, and that she thereby ratified the sale of said property, and by said action estopped herself from setting up her claim to said property.

Third. The defendant invoked the statute of limitations, or that the plaintiff had delayed beyond the statutory period in filing said suit after the accrual of her cause of action.

Our holding in this case is such that it becomes unnecessary for us to consider but one of these contentions of the defendant in error. We hold that the act of Congress had the effect of validating the title of the defendant in and to said lots, as contended by the defendant, and that holding is decisive of this case, and results in an affirmance of the judgment of the trial court...

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