Indians are wards of the Nation; Congress has plenary control
over tribal relations and property, and this power continues after
the Indians are made citizens, and may be exercised as to
restrictions on alienation of allotments. Tier v. Western
Investment Co., 221 U. S. 286
Choate v. Trapp, 224 U. S. 665
The provision in the Act of April 21, 1904, c. 33, Stat. 204,
removing certain restrictions on alienation of allotments to
Choctaw Indians imposed by the Act of July 1, 1902, was within the
power of Congress and was not, under the Fifth Amendment, an
unconstitutional deprivation of property of Indians to whom
allotments had been made; nor did it impair the obligation of the
contract theretofore made between the United States and the Choctaw
and Chickasaw Nations in regard to allotments.
whether the grantee of an Indian can avail of
the right, if any, of the Indian to assert the unconstitutionality
of an act of Congress affecting
Page 239 U. S. 415
the right of the Indian, or whether such grantee can be heard to
urge right of the tribe to which his grantor belonged.
32 Okl. 247 affirmed.
The facts, which involve the title to allotted lands conveyed by
a Choctaw Indian and the construction, application and
constitutionality of Acts of Congress relating to the allotment of
lands to Choctaw Indians and restriction of alienation thereon, are
stated in the opinion.
Page 239 U. S. 416
MR. JUSTICE McKENNA delivered the opinion of the Court.
Suit to quiet title, brought by Johnson, defendant in error, in
the District Court of Grady County, State of Oklahoma, against
plaintiffs in error.
The contention of defendant in error is that the land was an
allotment to one Selin Taylor, a member of the Choctaw Tribe of
Indians by blood; that, on November 22, 1904, a patent was duly
issued to him, executed by the proper officers of that Nation and
the Chickasaw Nation, and the United States, and that, at the time
of the allotment, the land was inalienable.
On February 9, 1906, the United States Indian agent issued to
Taylor a certificate (No. 2458) removing Taylor's disabilities
respecting the alienation of the land, and on February 16th Taylor
conveyed the land by warranty deed to C. B. Campbell, and the
latter and his wife, on March 13th following, conveyed the land by
like deed to Johnson. The deeds were duly recorded.
On November 15, 1906, Taylor and his wife conveyed the land by
warranty deed to James E. Whitehead, and on October 22, 1909,
Whitehead conveyed the land to one McNeill, who, on the 25th of
that month, conveyed to Johnson.
Johnson's petition alleged that the claim of title of the
defendants (plaintiffs in error here) was based upon a power of
attorney covering the land, executed by Taylor on March 11, 1907,
and charged that the power of attorney constituted a cloud upon his
The answer of the defendants admitted the allotment to Taylor
and the execution of the various instruments of conveyance from him
and his grantees to Johnson, and alleged that Taylor received his
allotment under an act of Congress of July 1, 1902, known as an
"Act to Ratify and Confirm an Agreement with the
Page 239 U. S. 417
Choctaw and Chickasaw Tribes of Indians, and for Other
Purposes," and that the act was called an "agreement" and was
ratified by Congress and the voters of those tribes, and was a
binding contract upon the United States and the Indians of those
tribes, and particularly Taylor. That Taylor is not a ward of the
United States, and was not at the time the land was allotted, and
that, by an act of Congress of March 3, 1901, c. 68, 31 Stat. 1447,
Taylor was made a citizen of the United States, with the rights,
privileges, and immunities of such.
That the Choctaw and Chickasaw Nations, and not the United
States, are the grantors in the patent to Taylor, and imposed
restrictions upon him against the alienation of the land, and have
not consented to the removal of those restrictions. That the deeds
executed by Taylor under which Johnson claimed title were in
violation of such restrictions, and therefore void. That the patent
to Taylor was issued by authority of § 29 of the Act of Congress of
June 28, 1898, c. 517, 30 Stat. 495, and contained the following
clause: "Subject, however, to the provisions of the act of Congress
approved July 1st, 1902 (32 Stat. 641)."
That Taylor and the defendants claim title to the land under
that agreement and patent; that the restrictions imposed upon the
alienation of the land were for the protection and benefit of the
members of the tribes; that Taylor was a full-blood Choctaw Indian
and a member of the Choctaw tribe, did not understand the English
language, was wholly ignorant of land values, was in need of and
entitled to the protection and benefit of the restrictions so
imposed, and that such "protection was of great value and was to
him property as much as the land itself."
That the deeds executed by Taylor to Campbell and Whitehead were
in open violation of the restrictions against alienation in the Act
of Congress of July 1, 1902, supra,
under which Taylor was
allotted the land, and also in
Page 239 U. S. 418
violation of the restrictions upon alienation contained in the
patent from the Choctaw and Chickasaw Nations to him, and were
executed under an unconstitutional act of Congress approved April
21, 1904, c. 1402, 33 Stat. 204. That the object of that act of
Congress and of the certificate to Taylor was to remove the
restrictions upon the alienation of the land, and that they impair
the obligation of the contract or binding agreement "upon the
United States and upon the Choctaw and Chickasaw Nations and upon
all Choctaws and Chickasaws," and especially Selin Taylor, and are
repugnant to the act of Congress under which Taylor was allotted
the land, and also to the Constitution of the United States and the
clause in the Fifth Amendment thereof which provides that no person
shall be deprived of his property without due process of law. A
cancellation of the deeds was prayed, the annulment of the interest
of Johnson in the land and the rents thereof, and judgment for the
possession of the land.
A demurrer to the answer was sustained, and defendants
(plaintiffs in error) declining to plead further, a decree was
entered quieting Johnson's title to the land. Upon appeal, the
judgment was sustained by the supreme court of the state, and error
was prosecuted from this Court.
The record presents the general question, was the land alienable
by Taylor? This depends upon the validity of certificate No. 2458,
issued to Taylor, and that again on the validity of the Act of
Congress of April 21, 1904 (33 Stat. 204). This act removed the
restrictions imposed by the Act of July 1, 1902, upon allottees of
either of the Five Civilized Tribes who were not of Indian blood,
and provided for the removal by the Secretary of the Interior of
all restrictions upon the alienation of all other allottees of said
tribes (with certain exceptions) upon application to the Indian
agent in charge of such tribes, if the agent was satisfied, upon
full investigation of each individual
Page 239 U. S. 419
case, that the removal of restrictions was for the interest of
The certificate shows that the application was made by Taylor,
and yet plaintiffs in error assert the invalidity of both
certificate and act because they are, it is contended, repugnant to
the Act of Congress of July 1, 1902 (32 Stat. 641), which, it is
contended, constituted a contract between the United States and the
Choctaw and Chickasaw Nations and all Choctaws and Chickasaws; that
the restriction upon alienation was a protection to Taylor "against
his own improvident acts," that it was "not a personal privilege
and repealable," but was "an incident attached to the land itself,"
and "was to him property as much as the land itself."
The Act of July 1, 1902, is entitled, "An Act to Ratify and
Confirm an Agreement with the Choctaw and Chickasaw Tribes of
Indians, and for Other Purposes." It recites that, "in
consideration of the mutual undertakings here contained, it is
agreed" that (§ 16, p. 643) all land shall be alienable after issue
of patent in certain quantities and at certain times,
"provided that such land shall not be alienable by the allottee
or his heirs at any time before the expiration of the Choctaw and
Chickasaw tribal governments for less than its appraised
that (§ 68, p. 656)
"no act of Congress or treaty provision, nor any provision of
the Atoka agreement inconsistent with this agreement, shall be in
force in said Choctaw and Chickasaw Nations;"
and, further (§ 73, p. 657) that
"this agreement shall be binding upon the United States and upon
the Choctaw and Chickasaw Nations and all Choctaws and Chickasaws,
when ratified by Congress and by a majority of the whole number of
votes cast by the legal voters of the Choctaw and Chickasaw Tribes
in the manner following: . . ."
It is conceded by plaintiffs in error that an act of Congress
can supersede a prior treaty, but they insist that it is
Page 239 U. S. 420
well settled "that Congress is without power to change a
contract or agreement for a valuable consideration with an
individual Indian allottee." Choate v. Trapp, 224 U.
, and Jones v. Meehan, 175 U. S.
, are cited, and incidentally Marchie Tiger v.
Western Investment Co., 221 U. S. 286
Mullen v. United States, 224 U. S. 448
The cases do not apply. It has often been decided that the
Indians are wards of the nation, and that Congress has plenary
control over tribal relations and property, and that this power
continues after the Indians are made citizens, and may be exercised
as to restrictions upon alienation. Marchie Tiger v. Western
Investment Co. supra.
Against this ruling Choate v.
does not militate. In the latter case, it was decided
that taxation could not be imposed upon allotted land a patent to
which was issued under an act of Congress containing a provision
"that the land should be nontaxable" for a limited time; and,
excluding the application of the Marchie Tiger
was said that exemption from taxation "and nonalienability were two
separate and distinct objects." And further, "[o]ne conveyed a
right and the other imposed a limitation." The power to do the
latter was declared, and it was said,
"the right to remove the restriction [limitation upon
alienation] was in pursuance of the power under which Congress
could legislate as to the status of the ward, and lengthen or
shorten the period of disability. But the provision that the land
should be nontaxable was a property right, which Congress
undoubtedly had the power to grant. That right fully vested in the
Indians and was binding upon Oklahoma."
Jones v. Meehan, supra,
is an instance of the same
principle, and is not opposed to the power of Congress to remove
restrictions upon alienation. And there is nothing antagonistic to
the cited cases in Mullen v. United States, supra.
A question was intimated in the Marchie Tiger
Page 239 U. S. 421
grantee of an Indian could avail himself of the Indian's right,
if he had any, to assert the unconstitutionality of an act of
Congress, and it is still more questionable whether plaintiffs in
error can be heard to urge the rights of the Choctaw and Chickasaw
Nations. However, we may reserve opinion. Those nations are not
parties to this suit, and no contract rights of Taylor have been