Neilson v. Alberty
| Decision Date | 07 January 1913 |
| Citation | 129 P. 847,36 Okla. 490,1913 OK 28 |
| Parties | NEILSON v. ALBERTY. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
By the fourth paragraph of section 2 of Act Cong. June 28, 1906, c 3572, 34 Stat. 539, known as the Osage Allotment Act, all lands allotted to the members of the Osage Tribe were made inalienable for a period of 25 years from date of selection.
Under the provisions of paragraph 7 of section 2 of said act (Act June 28, 1906, c. 3572, 34 Stat. 540), adult members of the Osage Tribe, to whom certificates of competency were issued by the Secretary of the Interior, could sell and convey manage, control, and dispose of their surplus allotted lands but could not sell the oil, gas, coal, or other mineral covered by said lands.
Said last above provision of the act applies only to voluntary conveyances by the allottee, such as were effected by the personal will of the owner, and not to the creation of liens or transmissions of title by operation of law, unless arising out of the further provision, making the surplus lands subject to taxation.
A judgment was rendered in the United States Court in the Indian Territory against an Osage Indian on the 1st day of December, 1903. July 30, 1909, the Secretary of the Interior approved a patent to said Indian's surplus allotment of Osage Indian lands, and on the 30th day of October following issued to said allottee a certificate of competency as authorized by Osage Allotment Act June 28, 1906, c. 3572, 34 Stat. 539. On the 29th day of January, 1910, a transcript of said Indian Territory judgment was filed with the clerk of the district court of Osage county, in which county the judgment debtor's surplus lands were situated. Held, that the issuance of the certificate of competency did not remove the restrictions on alienation so as to subject said lands to a judgment lien.
Additional Syllabus by Editorial Staff.
Osage Allotment Act June 28, 1906, c. 3572, § 2, par. 7, 34 Stat. 540, authorizes the Secretary of the Interior to issue certificates of competency to allottees who shall then have the right to manage, control, and dispose of his or her lands the same as any citizen of the United States. Held, that the word "manage," as so used, means to have under control, under direction, to conduct, to guide, to administer, to treat, to handle, while "control" means to exercise restraining or governing influence over, to check, to counteract, to restrain, to regulate, to govern, to overpower, and "to dispose of" means to exercise finally one's power of control over, to pass over into the control of some one else, as by selling, to alienate, to part with, relinquish or get rid of, and such words did not contemplate either a sale of underlying mineral or of the surplus lands by a judgment lien.
Commissioners' Opinion, Division No. 1. Error from District Court, Osage County; John J. Shea, Judge.
Action by Cynthia Alberty against F. A. Neilson. Judgment for plaintiff, and defendant brings error. Affirmed.
Grinstead, Mason & Scott, of Pawhuska, for plaintiff in error.
R. B. Boone and Leahy & MacDonald, both of Pawhuska, for defendant in error.
February 17, 1910, Cynthia Alberty filed her petition in the district court of Osage county, alleging that she was a citizen of the Osage Tribe of Indians, and the owner of an allotment of land situated in the Osage reservation, consisting of 160 acres homestead and 498.28 acres surplus allotment, which lands were allotted to her under the provisions of an act of Congress of June 28, 1906, commonly known as the Osage Allotment Act; that deeds or patents therefor had been duly issued and recorded; that, pursuant to a provision of said act, the Secretary of the Interior on the 8th day of October, 1909, issued to said plaintiff a certificate of competency, by virtue of which she was authorized to sell, dispose, or incumber her surplus allotted lands; that on the 1st day of December, 1903, in an action wherein said F. A. Neilson was plaintiff and said Cynthia Alberty was defendant, brought in the United States Court for the Northern District of the Indian Territory, at Claremore, said plaintiff recovered a judgment against said defendant for the sum of $1,139.97. Thereafter, and on the 29th day of January, 1910, the plaintiff in said action caused a certified copy of said judgment to be entered upon the judgment docket in the district court of Osage county, and that said judgment was at the time of the institution of the latter action unsatisfied. The petition further charged that said judgment, being of record, constituted a cloud upon the title to her surplus lands, and was a bar to her ability to dispose of or incumber them; that under the law then in force said lands were not liable to the satisfaction of any debt contracted prior to the issuance of the final patent in fee (the dates of the various acts being set forth in the petition); and that said judgment did not constitute a lien upon said lands, but that, notwithstanding said fact, it appeared as a prima facie lien, and operated to her great damage and detriment, and would so continue to do. Plaintiff asked that the court decree that said judgment was not a lien upon her surplus land, and that said judgment should not stand as a prima facie cloud upon her title to her surplus allotment. Defendant's demurrer to the petition being overruled, and defendant electing to stand on his demurrer, judgment was rendered for plaintiff according to the prayer of her petition.
A determination of the case involves a consideration of various sections of the act of Congress authorizing the division of the land of the Osage Indians of Oklahoma Territory, approved June 28, 1906. This act authorizes first, second, and third selections or allotments of 160 acres each, with a provision that the allottee may share in the remaining unallotted lands. It provides in the fourth paragraph of section 2 that of such selections the allottee shall be permitted to designate which shall be a homestead, and that his certificate of allotment and deed shall designate the same as a homestead, and the same shall be inalienable and nontaxable until otherwise provided by act of Congress. The remaining selections shall be known as surplus lands, and shall be inalienable for 25 years, except as thereinafter provided. In the seventh paragraph of said section 2 it is provided that the Secretary of the Interior in his discretion, at and upon the petition of any adult member of the tribe, may issue to such member a certificate of competency, authorizing him to sell and convey any of the lands deeded him by reason of the act, except his homestead, which shall remain inalienable and nontaxable for the period of 25 years, or during the life of the homestead allottee, if upon investigation, consideration, and examination of the request he shall find any such member fully competent and capable of transacting his or her own business, and caring for his or her own individual affairs, provided, that, upon the issuance of such certificate of competency, the lands of such member (except his or her homestead) shall become subject to taxation, and such member, except as therein provided, shall have the right to manage, control, and dispose of his or her lands the same as any citizen of the United States, provided, that the surplus lands shall be nontaxable for the period of three years from the approval of said act, except where certificates of competency are issued, or in case of the death of the allottee, unless otherwise provided by Congress.
Further inhibitions are contained in said section against the sale of oil, gas, coal, or other minerals covered by said lands, which are reserved to the use of the tribe for a period of 25 years, and the royalties on which are to be paid to said tribe as thereinafter provided. It will thus be seen that the homestead allotment shall be and remain inalienable and nontaxable for a period of 25 years, or during the life of the homestead allottee, while the surplus lands are made inalienable for 25 years except as in said act provided; the provision referred to being the issuance to the allottee of a certificate of competency. In other words, that without the issuance of a certificate of competency no alienation, voluntary or involuntary, could be made of said lands, at least during the lifetime of the allottee; that the lands were not subject to either alienation or incumbrance of any kind or in any form. Any authority, therefore, for the transition of title, the creation of a lien or incumbrance, or any act of commission or omission that would in any wise affect the title of the living allottee, must be found in the seventh paragraph of said section, authorizing the Secretary of the Interior to issue certificates of competency to adult members of the tribe. This certificate, it is provided, shall be issued at the request and upon the petition of such member, and if, upon investigation, consideration, and examination of said request, such member shall be found to be fully competent and capable of transacting his or her own business, and caring for his or her own individual affairs, the Secretary may in his discretion issue a certificate authorizing the allottee to sell and convey any of his surplus lands; that upon the issuance of such certificate, by express enactment, the surplus lands became subject to taxation, and such member was given the right to manage, control, and dispose of his surplus lands the same as any citizen of the United States.
Does therefore, this statute contemplate the attaching of a judgment lien to the surplus lands of such citizen upon the issuance of such certificate? If not, the judgment of the court below should be affirmed. Obviously the first...
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