Heckman v. United States, ante, p.
224 U. S. 413,
followed to effect that the United States has capacity to maintain
a suit in equity to set aside conveyances of allotted lands made by
allottee Indians in violation of statutory restrictions.
The question in this case is: what are the restrictions In the
case of allotments to Seminole freedmen?
Page 224 U. S. 459
The relations of the United States to Seminole freedmen by
treaties and statutes reviewed, and
held that the United
States is entitled to maintain an action to set aside all
conveyances made by Seminole freedmen of homestead lands, of
surplus lands made by minor allottees, and by adult allottees if
made prior to April 21, 1904, but that such an action cannot be
maintained as to conveyances made by adult allottees after April
21, 1904.
179 F. 13 modified and affirmed as to this point.
The facts, which involve the validity of certain conveyances of
allotted lands made by Seminole Indians and also the right of the
United States to have such conveyances set aside, are stated in the
opinion.
MR. JUSTICE HUGHES delivered the opinion of the Court.
The question presented by this appeal is with respect to the
right of Seminole freedmen to convey the lands allotted to them in
severalty pursuant to the Act of July 1, 1898, c. 542, 30 Stat.
567. The United States sued to cancel conveyances alleged to have
been made contrary to the statute. Demurrer to the bill was
sustained by the circuit court, and its judgment was reversed by
the circuit court of appeals.
United States v. Allen, and
similar cases, 179 F. 13. So far as the demurrer contested the
capacity of the United States to bring a suit of this character,
the case stands upon the same footing, in all
Page 224 U. S. 460
material respects, as that of
Heckman v. United States,
ante, p.
224 U. S. 413, and
the right of the United States to enforce such restrictions as may
have been imposed upon the alienation of the allotted lands is no
longer open to dispute.
The inquiry must be what are the restrictions in the case of
allotments to Seminole freedmen, and have they been violated?
As to each of the tracts of land in question, it was
alleged:
"And your orator further shows that each of the tracts of land
hereinafter, in paragraph numbered six, described, is situated in
the Eastern District of Oklahoma, and was at the time of the
transactions of sale or encumbrance mentioned in that paragraph,
allotted lands of the members of the Seminole Tribe of Indians,
allotted to freedman members of said tribe, and none were lands
which had been patented to individuals at the time of the
transactions in question; that they were not lands of heirs of
allottees; that all contracts for the sale, disposition of any of
said allotments prior to the date of patent, were expressly
declared by law to be void; that this law applied to all allotments
of Seminole lands not inherited from allottees; that, accordingly,
defendants had knowledge, and were, by said law, put upon inquiry
and notice as to the inalienability of said unpatented lands, and
had notice accordingly that the particular tracts had not been
patented, any such patenting being a matter of public record and of
public action; that, moreover, the unpatented condition of said
allotted lands was notorious and of common knowledge, since none of
the Seminole allotted lands have been patented, and that other
public laws of Congress and public agreements imposed further
restrictions upon the transfer and encumbrance of the particular
lands herein, in paragraph six, described, belonging to the
particular class of tribal members herein
Page 224 U. S. 461
mentioned, in addition to those arising from the absence of
patenting, and these restrictions were known, notified, and
notorious in like manner."
While it appears that a large number of conveyances are involved
in the suit, only two are specifically described in the printed
record on this appeal, the descriptions of the others, as set forth
in the bill, having been omitted by stipulation. In the two cases
particularly mentioned, the conveyances were made in August, 1906,
and March, 1907. It is not stated whether the lands embraced
therein were homestead or so-called "surplus" lands, but it is
conceded in argument that they were of the latter class. The
government says in its brief:
"In the printed record, it happens that the transactions set out
include only lands allotted other than homestead, but other
transactions complained of in the bill, omitted from the printed
record for the sake of brevity, include lands allotted as
homesteads as well."
The broad ground is taken by the government that all conveyances
of the lands allotted to members of the Seminole tribe are void
because made prior to the date of patent.
By the Treaty of 1832 (7 Stat. 368), the Seminoles relinquished
to the United States their claim to the lands then occupied in the
Territory of Florida, and agreed to emigrate to the lands assigned
to the Creeks, west of the Mississippi, it being understood that an
additional extent of territory proportioned to their numbers should
"be added to the Creek country," and that they should be received
"as a constituent part of the Creek Nation." Provision to this
effect was made in the Creek Treaty of 1833 (7 Stat. 417, 419),
which was satisfactory to the Seminoles, and territory was assigned
to them accordingly. 7 Stat. 423. There were further agreements in
1845 (9 Stat. 821) and in 1856 (11 Stat. 699). In 1866 (14 Stat.
755), lands which had been ceded to the Seminoles by the Creeks
were conveyed to the United States at a stipulated price,
Page 224 U. S. 462
and the United States, having obtained from the Creeks the
westerly half of their lands, granted to the Seminoles a tract of
200,000 acres which was to constitute the national domain of the
latter. Subsequently, the United States purchased for the Seminoles
another tract on the east, consisting of 175,000 acres. Acts of
March 3, 1873, 17 Stat. 626, c. 322, August 5, 1882, 22 Stat. 265,
c. 390. It was provided in the Treaty of 1866, inasmuch as there
were among the Seminoles "many persons of African descent and
blood, who have no interest or property in the soil and no
recognized civil rights," that
"these persons and their descendants, and such other of the same
race as shall be permitted by said nation to settle there, shall
have and enjoy all the rights of native citizens, and the laws of
said nation shall be equally binding upon all persons of whatever
race or color who may be adopted as citizens or members of said
tribe."
Pursuant to the policy of allotting tribal lands among the
individual members of the Five Civilized Tribes (Act of March 3,
1893, c. 209, 27 Stat. 645), an agreement was made by the Dawes
Commission with the Seminoles on December 16, 1897, which was
ratified by the Act of July 1, 1898. This agreement provided (30
Stat. 567, c. 542):
"All lands belonging to the Seminole tribe of Indians shall be
divided into three classes, designated as first, second, and third
class; the first class to be appraised at five dollars, the second
class at two dollars and fifty cents, and the third class at one
dollar and twenty-five cents per acre, and the same shall be
divided among the members of the tribe so that each shall have an
equal share thereof in value, so far as may be, the location and
fertility of the soil considered; giving to each the right to
select his allotment so as to include any improvements thereon,
owned by him at the time, and each allottee shall have the sole
right of occupancy of the land so allotted to him,
Page 224 U. S. 463
during the existence of the present tribal government, and until
the members of said tribe shall have become citizens of the United
States. Such allotment shall be made under the direction and
supervision of the Commission to the Five Civilized Tribes, in
connection with a representative appointed by the tribal
government, and the chairman of said commission shall execute and
deliver to each allottee a certificate describing therein the land
allotted to him."
"All contracts for sale, disposition, or encumbrance of any part
of any allotment made prior to date of patent shall be void."
Leases by allottees were permitted upon certain conditions.
The deeds of the allotted lands were to be executed at the
termination of the tribal government, and each allottee was to
designate forty acres, which, by the terms of the deed, should be
inalienable and nontaxable as a homestead in perpetuity. The
provision on this subject was as follows:
"When the tribal government shall cease to exist, the principal
chief last elected by said tribe shall execute, under his hand and
the seal of the Nation, and deliver to each allottee, a deed
conveying to him all the right, title, and interest of the said
Nation and the members thereof in and to the lands so allotted to
him, and the Secretary of the Interior shall approve such deed, and
the same shall thereupon operate as relinquishment of the right,
title, and interest of the United States in and to the land
embraced in said conveyance, and as a guaranty by the United States
of the title of said lands to the allottee, and the acceptance of
such deed by the allottee shall be a relinquishment of his title to
and interest in all other lands belonging to the tribe, except such
as may have been excepted from allotment and held in common for
other purposes. Each allottee shall designate one tract of
Page 224 U. S. 464
forty acres, which shall, by the terms of the deed, be made
inalienable and nontaxable as a homestead in perpetuity."
A supplemental agreement was made with the Seminoles on October
7, 1899, ratified on June 2, 1900 (31 Stat. 250, c. 610), which
provided for the enrollment of children born to Seminole citizens
to and including December 31, 1899, and all Seminole citizens then
living, and also that, if any member of the tribe should die after
that date, the lands, money, and other property to which he would
be entitled if living, should descend to his heirs.
The Act of March 3, 1903, c. 994, § 8 (32 Stat. 982, 1008),
contained the following provisions as to the duration of the tribal
government, the execution, delivery, and recording of deeds and the
inalienability of homesteads:
"SEC. 8. That the tribal government of the Seminole Nation shall
not continue longer than March fourth, nineteen hundred and six:
Provided, That the Secretary of the Interior shall at the
proper time furnish the principal chief with blank deeds necessary
for all conveyances mentioned in the agreement with the Seminole
Nation, contained in the Act of July first, eighteen hundred and
ninety-eight (30 Stat. 567, c. 542), and said principal chief shall
execute and deliver said deeds to the Indian allottees, as required
by said act, and the deeds for allotment, when duly executed and
approved, shall be recorded in the office of the Dawes Commission
prior to delivery, and without expense to the allottee, until
further legislation by Congress, and such records shall have like
effect as other public records:
Provided further, That the
homestead referred to in said act shall be inalienable during the
lifetime of the allottee, not exceeding twenty-one years from the
date of the deed for the allotment. A separate deed shall be issued
for said homestead, and during the time the same is held by the
allottee it shall not be liable for any debt contracted by the
owner thereof. "
Page 224 U. S. 465
The restriction upon the alienation of homestead lands applied
as well to the freedmen as to the other allottees, but it was
removed, with respect to the freedmen, by the Act of May 27, 1908,
c. 199 (35 Stat. 312). This statute, in fixing the status -- after
sixty days from the date of the act -- of the lands of allottees of
the Five Civilized Tribes, theretofore or thereafter allotted,
provided:
"All lands, including homesteads, of said allottees enrolled as
intermarried whites, as freedmen, and as mixed-blood Indians having
less than half Indian blood, including minors, shall be free from
all restrictions."
The present bill was filed on July 23, 1908, and the conveyances
it assails were executed before this provision of the Act of 1908
became operative. Previous conveyances were not validated by the
statute, but, on the contrary, it declared any attempted alienation
or encumbrance of allotted lands, prior to the removal of
restrictions, to be void. Section 5,
id., 313. It follows
that the instruments described in the bill, insofar as they may
have purported to convey homestead lands, were executed in
violation of law, and the government was entitled to have them set
aside.
The "surplus" lands were embraced in the general restriction
contained in the agreement of December 16, 1897, ratified by the
Act of July 1, 1898, that "all contracts for sale, disposition, or
encumbrance of any part of any allotment made prior to date of
patent shall be void." Apart from the provisions as to leases, this
was the only restriction upon the alienation of surplus lands
imposed by that agreement, and no further restriction applicable to
the freedmen allottees was placed upon such lands by subsequent
statute.
The situation with respect to the Seminole allotments may be
briefly stated. The commissioners to the Five Civilized Tribes
found little difficulty in preparing the rolls of the Seminoles or
in making the allotments. The enrollment following the ratification
of the agreement of
Page 224 U. S. 466
1897 was begun in July, 1898, and was finished in August of that
year. The rolls containing the additional names, provision for
which was made by the supplemental agreement of 1899, were
forwarded to the Department in December, 1900, and were approved by
the Secretary of the Interior on April 2, 1901. Reports of
Commission to Five Civilized Tribes, 1900, p. 12; 1901, p. 30. In
June, 1901, the commission undertook the making of allotments, and
this was practically completed at an early date. In their report
for 1903 (pp. 36, 37), the commissioners said:
"The last annual report of the commission showed the completion
of allotment in the Seminole Nation, save as to the recording of a
small number of allotments, and the issuance of certificates
therefor, which was finished early in the past year."
Subsequently there were additional allotments to after-born
children, in accordance with the Act of March 3, 1905. 33 Stat.
1071, c. 1479. As already noted, the allottees were to receive
their deeds on the expiration of the tribal government, which, by
the Act of 1903, was not to continue longer than March 4, 1906. By
Joint Resolution of March 2, 1906, Congress provided for the
continuance of "the tribal existence and present tribal
governments" of the Five Civilized Tribes "in full force and effect
for all purposes under existing laws" until all the property of the
tribes should be distributed (34 Stat. 822), and by the Act of
April 26, 1906, they were continued "until otherwise provided by
law" (§ 28, 34 Stat. 137, 148, c. 1876). While the duration of the
tribal government was thus extended, the last-mentioned statute
expressly authorized the principal chief of the Seminoles meanwhile
-- that is, before its termination -- to execute deeds to
allottees. Section 6,
id., 139. These deeds, however, had
not been delivered at the time of the conveyances in question. None
of the lands, says the bill, had been patented to individuals, and
they were not lands of heirs of allottees.
Page 224 U. S. 467
It is urged that the time for the issuance of patents was fixed
as the 4th of March, 1906, and that, in law, they will be deemed to
have been delivered on that date or within a reasonable time
thereafter; that, although provision was made for the continuance
of the tribal government, there was likewise authority for the
delivery of the deeds prior to its termination. The contention that
the restriction was thus removed cannot be sustained. The agreement
of 1897 did not fix a definite time for the termination of the
tribal government, and while the Act of 1903 set a limit to its
existence, Congress was competent to extend it. This was done, and
the mere authorization of the execution of patents before the
tribal government ceased to exist cannot be regarded as a repeal of
the explicit provision that contracts for the sale or encumbrance
of the allotted lands prior to the date of patent should be void.
The one did not override the other; they could stand together.
But, in 1904, after the allotments to the Seminoles had been
made, the restrictions upon the alienation by adult allottees of
the Five Civilized Tribes, who were not of Indian blood, of lands
other than homesteads, were removed. The provision was as follows
(Act of April 21, 1904, c. 1402, 33 Stat. 189, 204):
"And all the restrictions upon the alienation of lands of all
allottees of either of the Five Civilized Tribes of Indians who are
not of Indian blood, except minors, are, except as to homesteads,
hereby removed, and all restrictions upon the alienation of all
other allottees of said tribes, except minors, and except as to
homesteads, may, with the approval of the Secretary of the
Interior, be removed under such rules and regulations as the
Secretary of the Interior may prescribe, upon application to the
United States Indian agent at the Union Agency in charge of the
Five Civilized Tribes, if said agent is satisfied, upon a full
investigation of each individual case, that such
Page 224 U. S. 468
removal of restrictions is for the best interest of said
allottee. The finding of the United States Indian agent and the
approval of the Secretary of the Interior shall be in writing, and
shall be recorded in the same manner as patents for lands are
recorded."
This statute undoubtedly applied to allottees of the Seminole
Nation, as one of the Five Civilized Tribes, and the enrolled
freedmen of that tribe, according to the classification of the
commission in making the rolls, fell within the description of
allottees "not of Indian blood." The freedmen were persons of
African descent, embracing former slaves and their descendants, who
had been admitted to the rights of native citizens under the Treaty
of 1866. Report of Dawes Commission, 1898, pp. 11, 13. While the
law did not prescribe that a separate roll of freedmen should be
made in the case of the Seminoles, the commission in fact made one.
As to this they said in their report for 1898 (p. 13), referring to
the Seminoles:
"Indeed, it is essentially a nation of full-bloods, save as to
its colored citizens, who, under treaty provision, are on an equal
footing with the citizens by blood. About one third of the citizens
of the Seminole Nation are freedmen, and while the law does not
specifically require a separate roll of each of these classes, the
commission's data will enable it to so separate them."
Accordingly, the freedmen in the rolls of the Seminoles, upon
which the allotments were based, appear as a class distinct from
the citizens by blood. Final Rolls of Citizens and Freedmen of the
Five Civilized Tribes, pp. 615, 627. And the commissioner to the
Five Civilized Tribes, in his report for 1908 (p. 7), in stating
the total number of the enrolled Seminoles, with the degree of
blood of each, gives the number of the citizens of full blood and
of mixed blood, three-fourths or more, one-half to three-fourths,
and less than one-half blood, and then the number of the enrolled
freedmen as a separate group. The bill does not allege that the
allottees in
Page 224 U. S. 469
question had any Indian blood, but describes them simply as
"freedmen members of said tribe," and, in the specifications of the
conveyances which appear in the record, the grantors are named as
Seminole freedmen whose names are on the freedmen roll. The import
of the allegation, then, is that these grantors were not of Indian
blood, and, so far as they were adults, they came within the
provision of the Act of 1904 removing restrictions upon the
alienation of surplus lands.
These adult grantors stood in precisely the same position --
after the Act of 1904 -- as though they had received their
allotments without any restriction upon their right to alienate the
interest thus acquired. It is insisted, however, that this interest
was not of such a character as to be susceptible of transfer. This
is not a tenable proposition. Stress is laid upon the provision in
the agreement of 1897 that each allottee should have "the sole
right of occupancy of the land so allotted to him." But it is not
to be supposed that, by this form of words, Congress intended in
the case of the Seminoles to provide that, by virtue of the
allotment, the member of the tribe should receive an interest of a
different nature from that received by allottees of other tribes.
The lands were allotted to the members of the tribe in severalty,
so that each should have his distinct portion. The allotments
constituted their respective shares of the tribal property, set
apart to them as such, and while the execution of the deeds was
deferred, each had meanwhile a complete equitable interest in the
land allotted to him. The nature of the allottee's interest is
sufficiently shown by other provisions of the agreement of 1897, as
ratified by Congress, and by statutes
in pari materia. In
the agreement, it was provided that any allottee might lease his
allotment on certain conditions. With respect to the townsite of
Wewoka, which was to be controlled and disposed of according to the
provisions of the Act of the General Council of the
Page 224 U. S. 470
Seminole Nation of April 23, 1897, it was provided that, on
extinguishment of the tribal government, deeds should issue "to
owners of lots," as in the case of allottees. The interests of the
allottee was a descendible interest. By the supplemental agreement
of 1900, in the case of the death of a member of the tribe after
December 31, 1899, the lands "to which he would be entitled if
living" were to descend to his heirs. Section 5 of the Act of April
26, 1906, relating to "patents or deeds to allottees in any of the
Five Civilized Tribes" to be thereafter issued -- thus including
those to be issued to the Seminole allottees -- provided that, if
any such allottee should die before the deed became effective, the
title to the lands described therein should "inure to and vest in
his heirs;" and further, that,
"in case any allottee shall die after restrictions have been
removed, his property shall descend to his heirs or his lawful
assigns, as if the patent or deed had issued to the allottee during
his life"
(34 Stat. 138, c. 1876), and § 19 of that act contained a
proviso declaring that conveyances theretofore 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 solely because said conveyances were made prior to
issuance and recording or delivery of patent or deed."
The inalienability of the allotted lands was not due to the
quality of the interest of the allottee, but to the express
restriction imposed. Their equitable interest was one which, in the
absence of restriction, they could convey.
Doe v.
Wilson, 23 How. 457;
Crews v.
Burcham, 1 Black 352;
Barney v. Dolph,
97 U. S. 652,
97 U. S. 656;
Jones v. Meehan, 175 U. S. 1,
175 U. S. 15-18;
Godfrey v. Iowa Land & Trust Co., 21 Okl. 293;
Mullen v. United States, ante, p.
224 U. S. 448. And
hence, on the removal of the restrictions upon alienation, the
adult allottees not of
Page 224 U. S. 471
Indian blood were entitled to convey their surplus lands. So far
as the bill assails such conveyances, it is without equity.
As all the conveyances made to the appellants are not
particularly described in the printed record before this Court, it
is impossible to specify those which were lawful and those which
were obnoxious to the statute. We are of opinion (1) that the bill
should be sustained so far as it relates to conveyances of
homestead lands; (2) that it should also be sustained to the extent
that it is directed against conveyances of surplus lands made by
freedmen allottees who were minors, and thus excepted from the
provision of the Act of April 21, 1904, and those made by adult
allottees prior to that date, and (3) that, so far as the bill
relates to conveyances of surplus lands made by adult freedmen
allottees subsequent to April 21, 1904, it should be dismissed.
The judgment of the circuit court of appeals will therefore be
affirmed, with the modification that the cause shall proceed in
conformity with this opinion.
It is so ordered.