The policy of Congress in regard to restrictions upon alienation
of allotments has been to protect Indians against their own
improvidence, whether shown by acts of commission or omission,
contracts or torts.
The prohibition contained in § 15 of the Act of July 1, 1902, as
to affecting or encumbering allotments made under the act by deeds,
debts, or obligations contracted prior to the termination of period
of restriction on alienation applies to a judgment entered against
an allottee, whether based on a tort or on a contract.
A tort may be a breach of a mere legal duty or a consequence of
negligent conduct, and a confessed judgment based on a prearranged
tort might hecome an easy means of circumventing the policy of the
statutes restricting alienation of Indian allotments if alienation
could be effected by levy and sale under such a judgment.
33 Okl. 184 reversed.
The facts, which involve the construction of the provisions of
the Act of July 1, 1902, affecting alienation of
Page 234 U. S. 193
allottee lands, and the effect of judgments against the
allottee, are stated in the opinion.
Page 234 U. S. 195
MR. JUSTICE McKENNA delivered the opinion of the Court.
Plaintiff in error brought suit in the district court in and for
the Seventh Judicial District, Johnston county, State of Oklahoma,
to restrain defendant in error, who was defendant in the trial
court, from selling under execution issued upon a judgment obtained
against one F. A. Bonner certain lands, which are described,
belonging to plaintiff in error. He was plaintiff in the action,
and we will so refer to him. Plaintiff, it is alleged, derived his
title from F. A. Bonner by warranty deed dated October 17, 1908,
Bonner then having unrestricted right to sell. Bonner is a member
and citizen of the Choctaw Tribe of Indians, of one-sixteenth
degree of Indian blood, and that the lands described constitute his
allotment as a member and citizen of such tribe; that the judgment
upon which the execution was issued was rendered and the debt
evidenced by it contracted more than five years prior to the
issuance of the execution, and at a time when the lands were
inalienable, and that, under the laws of the United States and the
treaties between the Chickasaw and Choctaw Nations and the United
States, the lands were exempt from the operation of the judgment.
That defendant threatens to sell the lands, and that a sale thereof
and the deed which may be executed will cast a cloud upon
plaintiff's title. A restraining order was issued. Defendant, in
his answer, alleged that, when the restraining order was served
upon him, he was in possession of the lands under the execution,
which he set up as a defense. He admitted the other allegations of
the plaintiff, and alleged that E. F. Ham
et al.,
plaintiffs in the judgment, were necessary parties. He prayed a
dissolution of the restraining order and that the suit be
dismissed.
Subsequently, Millord F. Ham and others filed "their interplea
in said cause," and asked to be made defendants.
Page 234 U. S. 196
For answer to plaintiff's petition, they alleged the following:
they recovered the judgment in controversy against Frank Bonner for
the sum of $2,966.66 2/3 on January 31, 1901, as damages for the
killing of the husband of one of the interpleaders and the father
of the others, upon which executions were issued, but all returned
unsatisfied, and finally, on the 29th of September, 1908, the
interpleaders caused the execution in controversy to be issued and
levied upon the lands described in plaintiff's petition. On
February 23, 1906, Bonner became the owner of the lands by
allotment of the same as an Indian, and the judgment thereupon
became a lien upon the lands. Subsequently, that part of the Indian
territory and the southern district where the lands are located
became a part of what is now Johnston County, and the judgment is
still a lien upon the lands and was a lien at the time of the
purchase by Mullen, who, at the time of the alleged conveyance to
him, had full knowledge and notice of the judgment, and knew that
an execution had been issued and levied upon the lands, and that
therefore he is not an innocent purchaser of them, but took them
subject to the judgment.
Mullen demurred to the answer of Simmons and to that of the
interpleaders upon the grounds (1) that they did not constitute a
defense; (2) they failed to show that the execution was a lien upon
the lands, failed to show that the lands were seized by the sheriff
prior to the deed to plaintiff, and failed to show that a lien
attached by virtue of the execution; (3) the lands, having been
taken in allotment by Bonner, were not subject under the law to any
debt, deed, contract, or obligation of any character made prior to
the time at which the lands could be alienated by the allottee;
that the judgment was recovered against him more than five years
before the lands were alienable, and that the lands were not
subject to it or to the execution issued upon it.
The judgment of the court was that it
"doth overrule
Page 234 U. S. 197
plaintiff's general demurrer and his first special demurrer . .
. , and doth sustain plaintiff's second special demurrer . . . and
the interpleaders and the defendant elect to stand upon their
answer and interplea herein, refuse to plead further, and the court
finds for the plaintiff, and that he is entitled to the relief
prayed for in his petition. . . ."
And it was adjudged that the defendant Simmons, as Sheriff of
Johnston County, and his deputies, and the interpleaders, be
enjoined and restrained forever from issuing or causing to be
issued any execution or other process upon the judgment rendered
against Frank Bonner in favor of the interpleaders, and from
levying the same upon the lands described.
The supreme court of the state reversed the judgment,
deciding
"that the lien of interpleader's judgment attached to the
allotment as soon as it came into being; that plaintiff took the
land subject thereto, and that the same should be enforced and said
land sold to satisfy the same, and that, too, notwithstanding the
provisions of the 15th section of the act of July 1, 1902, which
has no material bearing on the question."
The section referred to is as follows:
"Lands allotted to members and freedmen shall not be affected or
encumbered by any deed, debt, or obligation of any character
contracted prior to the time at which said land may be alienated
under this Act, nor shall said lands be sold except as herein
provided."
32 Stat. 642, c. 1362.
The Supreme Court of Oklahoma, in deciding that this provision
did not apply, distinguished between the obligations resulting from
an Indian's wrongful conduct and the obligations resulting from his
contracts, saying: "A judgment in damages for tort is not a
debt contracted'" within the contemplation of § 15. In other
words, the court was of the view that the tort retained its
identity, though merged in the judgment. However, we need not enter
into the controversy of the cases and the
Page 234 U. S.
198
books as to whether a judgment is a contract. Passing such
considerations and regarding the policy of § 15 and its language,
we are unable to concur with the Supreme Court of
Oklahoma.
This Court said, in
Starr v. Long Jim, 227 U.
S. 613,
227 U. S. 625,
that the title to lands allotted to Indians was "retained by the
United States for reasons of public policy, and in order to protect
the Indians against their own improvidence." It was held, applying
the principle, that a warranty deed made by Long Jim at a time when
he did not have the power of alienation "was in the very teeth of
the policy of the law, and could not operate as a conveyance,
either by its primary force or by way of estoppel," after he had
received a patent for the land.
The principle was applied again in
Franklin v. Lynch,
233 U. S. 269, and
its strict character enforced against the deed of a white woman who
acquired title in an Indian right. It is true, in these cases, the
act of the Indian was voluntary or contractual, and, it is
contended, a different effect can be ascribed to the wrongs done by
an Indian, and that, in reparation or retribution of them, the
state law may subject his inalienable lands -- inalienable by the
national law -- to alienation. The consequence of the contention
repels its acceptance. Torts are of variable degree. In the present
case, that counted on reached, perhaps, the degree of a crime, but
a tort may be a breach of a mere legal duty -- a consequence of
negligent conduct. The policy of the law is, as we have said, to
protect the Indians against their improvidence, and improvidence
may affect all of their acts -- those of commission and omission,
contracts and torts. And we think § 15 of the Act of July 1, 1902,
was purposely made broadly protective, broadly preclusive of
alienation by any conduct of the Indian, and not only its policy,
but its language, distinguishes it from the statute passed on in
Brun v. Mann, 151 F. 145. Its language is that
"lands allotted . . .
Page 234 U. S. 199
shall not be
affected or encumbered by any deed, debt,
or
obligation of any
character contracted prior
to the time at which"
the lands may be alienated, "nor shall said lands be sold
except" as in the act provided. The prohibition, then, is that the
lands shall not be "affected . . . by any obligation of any
character," and, as we have seen, an obligation may arise from a
tort as well as from a contract -- from a breach of duty or the
violation of a right.
Exchange Bank v. Ford, 7 Colo. 314,
316. If this were not so, a prearranged tort and a judgment
confessed would become an easy means of circumventing the policy of
the law.
Judgment reversed and case remanded for further proceedings
not inconsistent with this opinion.
MR. JUSTICE DAY dissents.