In view of the evils sought to be prevented, and in aid of the
expressed policy of the Indians and the United States, the
prohibition on alienation by allottees under the Choctaw and
Chickasaw agreement ratified by the Act of July 1, 1902, c. 1362,
32 Stat. 641, should be construed as extending to devise by
will.
While the Act of April 28, 1904, putting in force the laws of
Arkansas in the Indian Territory, enabled an Indian to dispose of
his alienable property, it did not operate to remove existing
statutory restrictions.
That it was the understanding of Congress that an act did not
remove restrictions may be indicated by subsequent acts passed for
the express purpose of removing such restrictions.
33 Okl. 199 affirmed.
The facts, which involve the application and construction of
Acts of Congress imposing and affecting restrictions on alienation
of lands allotted under the Choctaw and Chickasaw agreement
ratified July 1, 1902, are stated in the opinion.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a suit by the heirs of Maggie Taylor, a member of the
Chickasaw tribe of Indians, against the plaintiff in error, her
husband and devisee, to recover her allotment, which she devised to
him. The answer relied upon the
Page 235 U. S. 43
will, the plaintiffs demurred, and the courts of Oklahoma
sustained the demurrer and gave judgment for the plaintiffs. 33
Okl.199. The question is whether the devise was invalid under the
supplemental agreement with the Choctaws and Chickasaws, ratified
by the Act of Congress of July 1, 1902, c. 1362, 32 Stat. 641.
By § 12 of the above act,
"each member of said tribes shall, at the time of the selection
of his allotment, designate as a homestead out of said allotment
land equal in value to one hundred and sixty acres of the average
allottable land of the Choctaw and Chickasaw nations, as nearly as
may be, which shall be inalienable during the lifetime of the
allottee, not exceeding twenty-one years from the date of
certificate of allotment, and separate certificate and patent shall
issue for said homestead."
By § 16, all lands allotted to members of said tribes except
homestead shall be alienable after issue of patent, one-fourth in
acreage in one year, one-fourth in three years, and the rest in
five years, but not for less than its appraised value before the
expiration of the tribal governments. The plaintiff in error, in
aid of the construction of §§ 12, 16, for which he contends, and to
show that transactions
inter vivos alone were aimed at by
the word "inalienable," invokes § 15, which enacts that allotted
lands
"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."
The land in question was allotted to Maggie Taylor in 1903,
including, it would seem, a homestead; patents were issued on
December 20, 1904, and were approved by the Secretary of the
Interior and delivered on December 28, 1904. She made her will on
March 22, and died on March 25, 1905, so that, if the foregoing
prohibitions extend to a devise, they include the one under which
the plaintiff in error claims. Obviously they could be read in a
narrower
Page 235 U. S. 44
sense, and, whichever interpretation be adopted, it would not be
helped by long discussion. In view of the evils sought to be
prevented, and in aid of what we understand to have been the policy
of the Indians and the United States in their agreement, we are of
opinion that the supreme court of this state was right in extending
the prohibition to wills. To the same effect is
Hayes v.
Barringer, 168 F. 221.
See also Jackson v. Thompson,
38 Wash. 282.
A further and distinct argument is based upon the act to provide
for additional judges, etc., of April 28, 1904, c. 1824, § 2, 33
Stat. 573, to the effect that all the laws of Arkansas theretofore
put in force in the Indian Territory are extended to embrace all
persons and estates in said territory, whether Indians, freedmen,
or otherwise, and full jurisdiction is conferred upon the district
courts in the settlement of all estates of decedents, and the
guardianship of minors and incompetents, whether Indians, freedmen,
or otherwise. The Arkansas law of wills was a part of the law that
thus had been adopted for the Indian Territory before 1904, and it
is contended that the result of the above extension was to free the
Indians from the restrictions so specifically imposed upon them in
1902. Of course, nothing of that sort was intended. As said below,
the extension enabled
"the Indian to devise all his alienable property by will made in
accordance with the laws of the State of Arkansas, but did not
operate to remove any of the restrictions theretofore placed upon
lands of Indians by Act of Congress."
That this was the understanding of Congress is indicated by Acts
of April 26, 1906, c. 1876, § 23, 34 Stat. 137, 145, and May 27,
1908, c. 199, 35 Stat. 312, giving Indians power to dispose of
their allotments by will.
Judgment affirmed.