The Act of May 27, 108, c.199, 35 Stat. 312, extending to April
26, 1931, the period of restriction upon the alienation of certain
Indian allotments, contained an excepting clause declaring that
"nothing herein shall be construed as imposing restrictions removed
by or under any prior law;"
held that restrictions which
had been terminated by lapse of time as contemplated by the law
imposing them were "removed from the land by or under" a prior law
within the meaning of the excepting clause.
203 F. 410 affirmed.
The facts, which involve the construction of the Act of May 27,
1908, extending restrictions on alienation of Indian allotments,
are stated in the opinion.
Page 235 U. S. 78
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This is a suit to cancel two deeds of land allotted to an
enrolled citizen of the Creek tribe of Indians. The land is what is
known as surplus, as distinguished from homestead, land, and the
allottee is of three fourths Indian blood. The allotment was made
under the Act of June 30, 1902, 32 Stat. 500, c. 1323, known as the
Supplemental Creek Agreement, which provided in § 16 that the land
should be inalienable by the allottee or his heirs for a period of
five years, expiring, as it is said in the briefs, August 8, 1907.
In 1912, the allottee deeded the land to Bartlett, one of the
appellees, and shortly thereafter Bartlett deeded it to Lashley,
the other appellee. These are the deeds sought to be cancelled, and
the right to that relief is rested upon a provision in § 1 of the
Act of May 27, 1908, 35 Stat. 312, c. 199, declaring that
"all allotted lands of . . . enrolled mixed-bloods of three
quarters or more Indian blood . . . shall not be subject to
alienation, contract to sell, power of attorney, or any other
encumbrance prior to April twenty-sixth, nineteen hundred and
thirty-one,"
etc. As the original restriction upon alienation expired several
months before the passage of the Act of 1908, and also long before
the deed from the allottee to Bartlett, the important question in
the case is whether Congress intended by the Act of 1908 to
reimpose
Page 235 U. S. 79
and extend that restriction in respect of allotments which
theretofore had been entirely freed from it through the expiration
of the period prescribed for its existence. The district court,
adhering to an opinion given in another case (
United States v.
Shock, 187 F. 870, 873), answered the question in the
affirmative, and the circuit court of appeals, concluding that the
answer should be the other way, directed that the bill be
dismissed. 203 F. 410.
If taken literally, the language which we have quoted from the
Act of 1908 is doubtless broad enough to embrace all allotments of
the class described, whether then subject to the original
restriction or theretofore freed from it. But that language is not
to be taken literally, for it is followed by a declaration that
"nothing herein shall be construed to impose restrictions removed
from land by or under any law prior to the passage of this act."
That this declaration is intended to qualify or restrain what
precedes it is conceded, but to what extent is the subject of
opposing contentions.
Under prior legislation, the lands of the Five Civilized Tribes,
including those of the Creeks, had been allotted in severalty, all
subject to restrictions upon alienation which were to be terminated
by the lapse of varying periods of time. As to some of the lands,
these periods had expired, thereby lifting the restrictions. In
some instances, Congress had abrogated the restrictions in advance
of the time fixed for their termination, and in still other
instances they had been cancelled by the Secretary of the Interior
in the exercise of authority conferred by law. But as to most of
the lands, the restrictions were still in force. It was in this
situation that Congress, by the Act of 1908, extended or enlarged
the period of restriction in respect of "all allotted lands of . .
. enrolled mixed-bloods of three quarters or more Indian blood,"
and accompanied its action with an explanation that it was not
intended to
Page 235 U. S. 80
impose restrictions theretofore "removed from any land by or
under any law."
The real controversy is over the meaning of the word "removed."
It is not questioned that it embraces the action of Congress and of
the Secretary of the Interior in abrogating or cancelling
restrictions in advance of the time fixed for their expiration, but
it is insisted that it does not embrace their termination by the
lapse of time. In short, the contention is that the word is used in
a sense which comprehends only an affirmative act, such as a
rescission or revocation while the statutory period was still
running. Although having support in some definitions of the word,
the contention is, in our opinion, untenable, for other parts of
the same act, as also other acts dealing with the same subject,
show that the word is employed in this legislation in a broad sense
plainly including a termination of the restrictions through the
expiration of the prescribed period. This is illustrated in §§ 4
and 5 of the Act of 1908, and § 19 of the Act of April 26, 1906, 34
Stat. 137, c. 1876, and is recognized in
Choate v. Trappe,
224 U. S. 665,
224 U. S. 673,
where, in dealing with some of these allotments, it was said that
"restrictions on alienation were removed by lapse of time."
Decree affirmed.
MR. JUSTICE McREYNOLDS took no part in the consideration and
decision of this case.