1. Lands representing the distributive share of a Creek Indian
who died after his enrollment and before their selection or
allotment and which thereafter were selected, allotted, and deeded
in his name pursuant to the Act of April 26, 1906, c. 1876, § 5, 34
Stat. 137, and earlier statutes, are to be considered as going to
his heirs not as a direct allotment to them, but as an inheritance,
the alienability of which by full-bloods is determined not by § 19
of the Act of 1906 or § 1 of the Act of May 27, 1908, c.199, 35
Stat. 312, respecting allotments to living allottees, but by the
provisions governing alienability by heirs. P.
254 U. S.
108.
2. In this regard, it is not the usual distinctions between
title by purchase and title by descent that must control, but the
letter and spirit of the acts of Congress.
Id.
3. The power vested in the Secretary of the Interior by the Act
of April 26, 1906,
supra, to approve or disapprove
conveyances of inherited allotments when made by adult full-blood
Indian heirs was not recalled by the Act of May 27, 1908,
supra, as to conveyances made, though not approved, before
its enactment, nor does the lapse of 2 years between the deed and
its approval affect the validity of the conveyance in the absence
of any lawful intervening disposal. P.
254 U. S.
109.
4. The provision in § 9 of the Act of May 27, 1908,
supra, that no conveyance of any interest of any
full-blood Indian heir shall be valid "unless approved by the court
having jurisdiction of the settlement of the estate" of the
deceased allottee prescribes a rule for future conveyances. P.
254 U. S.
110.
5. Section 6 of the Act of May 27, 1908,
supra, which
subjects the persons and property of minor allottees to the
jurisdiction of the probate courts of the State of Oklahoma does
not include or affect inherited lands in its provision that "no
restricted lands of living minors shall be sold or encumbered,
except by leases authorized by law, by order of the court, or
otherwise."
Id.
Page 254 U. S. 104
6. Section 6 of the Act of May 27, 1908,
supra, and
other acts of Congress, explicitly subject the persons and property
of Indian minors of the Five Civilized Tribes to the jurisdiction
of the probate (county) courts of Oklahoma; § 9 of that act
declares that the death of any allottee shall remove all
restrictions upon the alienation of his land, with the proviso that
no conveyance of any interest of any full-blood Indian heir in such
land shall be valid "unless approved by the court having
jurisdiction of the settlement of the estate of said deceased
allottee."
Held, harmonizing the sections, that the
proviso of § 9 is to be taken as referring only to adult full-blood
heirs, and that a probate court having jurisdiction over the
persons and property of minor full-blood heirs, but not of the
settlement of the estate of the deceased allottee from whom they
inherited, was the proper court to sanction a conveyance of the
allotment made by their guardian. P.
254 U. S.
111.
7. The general rule giving to the court of guardianship
exclusive power to direct the guardian and supervise the management
and disposal of the ward's property obtains in Oklahoma, and an
intention to depart from it in an act of Congress respecting the
lands of minor full-blood Indians should not be accepted unless
very clearly and explicitly evinced. P.
254 U. S.
112.
250 F. 209 affirmed.
The case is stated in the opinion.
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
By this suit, certain conveyances of lands allotted in the name
and right of a Creek Indian after his death were assailed, and
their cancellation sought, by the heirs who
Page 254 U. S. 105
made them. On the final hearing, the district court upheld two
of the conveyances, 235 F. 626, and that decree was affirmed by the
circuit court of appeals, 250 F. 209. The present appeal is by the
heirs.
The circumstances to be considered are as follows: by the Act of
March 1, 1901, c. 676, 31 Stat. 861, as modified by the Act of June
30, 1902, c. 1323, 32 Stat. 500, provision was made for the
allotment and distribution of the Creek tribal lands and funds
among the members of the tribe. An enrollment was to be made of (a)
all members living on April 1, 1899; (b) all children born to
members after that date up to and including July 1, 1900, and
living on the latter date, and (c) all children born to members
after July 1, 1900, up to and including May 25, 1901, and living on
the latter date. All who were so enrolled were to share in the
allotment and distribution. If any of these died before receiving
his allotment and distributive share, the lands and moneys to which
he "would be entitled if living" were to "descend to his heirs" and
be "allotted and distributed to them accordingly." A provision in
the Act of March 3, 1905, plainly intended to amend and supplement
the earlier acts, authorized the inclusion of all children born
between May 25, 1901, and March 4, 1905, and living on the latter
date, c. 1479, 33 Stat. 1071.
Originally, all lands allotted to living members in their own
right were subjected to specified restrictions on alienation, but
those allotted in the right of deceased members were left
unrestricted up to the passage of the act of April 26, 1906, c.
1876, 34 Stat. 137.
Skelton v. Dill, 235 U.
S. 206;
Adkins v. Arnold, 235 U.
S. 417,
235 U. S. 420;
Mullen v. United States, 224 U. S. 448;
Brader v. James, 246 U. S. 88,
246 U. S. 94;
Talley v. Burgess, 246 U. S. 104,
246 U. S. 107.
Section 19 of that act materially revised the restrictions
respecting lands of living allottees, and § 22 dealt with the
alienation of inherited lands, including, as this Court has
Page 254 U. S. 106
held, lands allotted in the name and right of a member after his
death.
Talley v. Burgess, supra, p.
246 U. S. 108.
Section 22 read as follows:
"That the adult heirs of any deceased Indian of either of the
Five Civilized Tribes whose selection has been made, or to whom a
deed or patent has been issued for his or her share of the land of
the tribe to which he or she belongs or belonged, may sell and
convey the lands inherited from such decedent, and if there be both
adult and minor heirs of such decedent, then such minors may join
in a sale of such lands by a guardian duly appointed by the proper
United States court for the Indian Territory. And, in case of the
organization of a state or territory, then by a proper court of the
county in which said minor or minors may reside or in which said
real estate is situated, upon an order of such court made upon
petition filed by guardian. All conveyances made under this
provision by heirs who are full-blood Indians are to be subject to
the approval of the Secretary of the Interior under such rules and
regulations as he may prescribe."
Section 5 of the same act directed that all patents or tribal
deeds for allotments should issue "in the name of the allottee" --
meaning the member in whose right the allotment was made -- and
provided that, if he were then dead, the title should inure to and
vest in "his heirs," as if the patent or deed "had issued to the
allottee during his life." A like provision is found in § 32 of the
Act of June 25, 1910, c. 431, 36 Stat. 855.
Further provisions bearing on the alienation of lands of living
allottees and also inherited lands were embodied in the Act of May
27, 1908, c.199, 35 Stat. 312, to be noticed presently.
The lands in question were allotted in the name and right of
Freeland Francis, a Creek child who was born in 1903, was lawfully
enrolled June 10, 1905, and died twelve days later. After his
death, the allotment was
Page 254 U. S. 107
duly selected and made by the Commission to the Five Civilized
Tribes, and, in regular course, a patent or deed was issued in his
name. His heirs, to whom the title passed under the statutes
already noticed, were his mother, Annie Francis (now Harris), his
half-brother, Mack Francis, his brother, Amos, and his sister,
Elizabeth. These were all enrolled Creeks -- three being full-blood
Indians and one a half-blood.
January 15, 1908, after the allotment was perfected, the mother,
who was an adult, sold and conveyed her interest, and that
conveyance was approved by the Secretary of the Interior July 6,
1910, the approval as indorsed on the deed reading:
"The conveyance by Annie Francis of her interest as full-blood
Indian heir in and to the within described lands allotted to
Freeland Francis, a new-born Creek citizen, Roll No. 1070, who died
prior to May 27, 1908, is hereby approved in accordance with the
provisions of the act of Congress approved April 26, 1906."
The half-brother, Mack, sold and conveyed his interest in 1910,
after he attained his majority, but the validity of that
transaction is not questioned. He was not a full-blood Indian, but
a half-blood.
January 15, 1912, the interest of Amos and Elizabeth, who were
minors, was sold and conveyed by their guardian under the direction
and approving order of the county court wherein the guardianship of
their persons and property was pending.
At the time of Freeland's death, the family was residing in that
part of the Indian Territory which, on the advent of statehood
(November 16, 1907) became Wagoner County, and, shortly after his
death, they removed to and ever since have resided in what became
Okmulgee County. The lands are in the latter county, and it was in
the county court thereof that the guardian's sale and conveyance
were directed and approved.
Page 254 U. S. 108
The conveyance by the mother, who was a full-blood Indian, and
that by the guardian of Amos and Elizabeth, who were full bloods,
are the ones to be considered on this appeal. All rights under them
are held by parties who were defendants in the district court, and
are appellees here.
The grounds on which the conveyances are assailed are four in
number -- one directed at both conveyances, one at that of the
mother alone, and two solely at that of the guardian. They will be
taken up in this order.
1. It is urged that the heirs took the lands as allottees, and
not as heirs of Freeland -- in other words, that they received the
lands as a direct allotment to them, and not as an inheritance --
and therefore that such of them as were full-blood Indians were
restrained and disabled from disposing of the lands by reason of
the restrictions applicable to living allottees of the full blood.
If the premise were right, the conclusion would be unavoidable.
See § 19, Act of 1906,
supra, and § 1, Act of
1908,
supra. But the premise is not right, as is shown by
statutes already mentioned, such as § 28 of the Act of 1901, § 7 of
the Act of 1902 and § 5 of the Act of 1906. The allotment was made
in virtue of the right of Freeland, who was one of those among whom
the tribal property was to be distributed. Under the statutes, that
right was not extinguished by his death, but was preserved for his
heirs, and it was preserved for them because they were his heirs,
and not because their relation to it was otherwise different from
that of other members of the tribe. Such individual claims as they
had to the tribal lands were to be satisfied by their individual
allotments. What they were to receive in the right of Freeland was
the lands and moneys to which "he would be entitled if living," and
these were to "descend" to and vest in them as "his heirs," as if
he had received the same "during his life." Putting aside the
distinctions between title by purchase and title by descent
Page 254 U. S. 109
which prevail in the absence of controlling statutes, and giving
effect to the letter and spirit of what Congress has enacted, we
think it is manifest that these heirs must be regarded as having
received these lands as an inheritance from Freeland, and not as a
direct allotment to them.
Perryman v. Woodward,
238 U. S. 148,
238 U. S. 150;
Talley v. Burgess, supra.
2. The first restrictions applicable to Creek lands such as
these were embodied in § 22 of the Act of 1906, hereinbefore set
forth. As respects the mother's conveyance, which was executed
January 15, 1908, all that was necessary under that section to make
the conveyance effective -- the mother being an adult full-blood
Indian -- was that it be approved by the Secretary of the Interior.
As before shown, it was approved by that officer July 6, 1910. But
it is urged that, before his approval was given, all power to
approved had been taken from him and lodged elsewhere by the Act of
May 27, 1908. Evidently the Secretary did not so construe that act
when his approval was given, else he would have withheld it. Not
only so, but his action in this instance was in accord with the
practice of his office for a considerable period, and also with an
opinion rendered to him by the Attorney General. 27 Ops.Attys.Gen.
530. This administrative view is, of course, entitled to respect,
and those who have relied thereon ought not lightly to be put in
peril. But it is not controlling. We have examined the act,
including § 9, upon which reliance is had, and are of opinion that,
as to conveyances made prior to the act, the power of the Secretary
to examine and approve or disapprove under § 22 of the prior
enactment was not taken away. The act contains no express
revocation of that power, nor any provision inconsistent with its
continued exercise as to prior conveyances. The provision in § 9
that no conveyance of any interest of any full-blood Indian heir
shall be valid "unless approved by the court having jurisdiction of
the settlement of the
Page 254 U. S. 110
estate" of the deceased allottee, taken according to its natural
import, prescribes a rule for future, rather than prior,
conveyances, and no reason is perceived for rejecting its natural
import. Had there been a purpose to cut off action by the Secretary
as to conveyances already made, some of which were before him at
the time, it is but reasonable to believe that other words aptly
expressing that purpose would have been used. The matter hardly
would have been left to conjecture or uncertain implication.
Besides, the absence of such a purpose is measurably reflected by
the declaration in § 1 that "the Secretary of the Interior shall
not be prohibited by this act from continuing to remove
restrictions as heretofore." The lapse of two and one-half years
between the execution of the conveyance and its approval is not
material, there being no lawful intervening disposal.
Pickering
v. Lomax, 145 U. S. 310;
Lykins v. McGrath, 184 U. S. 169.
3. Section 6 of the Act of 1908 subjects the persons and
property of minor allottees to the jurisdiction of the probate
courts of the state, and, in a proviso, says: "No restricted lands
of living minors shall be sold or incumbered, except by leases
authorized by law, by order of the court or otherwise." One ground
on which the guardian's sale on behalf of the minor heirs, Amos and
Elizabeth, is assailed is that it was in violation of this proviso.
But, in our opinion, the proviso does not include or affect
inherited lands. It refers, as a survey of the act shows, to lands
of living minor allottees, and not to lands inherited from deceased
allottees. Section 9 expressly recognizes that the latter may be
sold, and this proviso cannot be taken as prescribing the contrary.
The word "living" evidently is intended to mark the distinction.
What is intended is to make sure that minor allottees receive the
benefit of the restrictions prescribed in § 1, and not to impose
others. Apparently it was apprehended that the general language of
§ 6 might be taken as enabling probate
Page 254 U. S. 111
courts and guardians to sell without regard to those
restrictions, and the office of the proviso is to prevent this. So
understood, it is in accord with the general scheme of the act, and
not in conflict with any other provision.
4. The remaining objection to the guardian's conveyance is that
it was not approved by the court having jurisdiction of the
settlement of the estate of Freeland, the deceased allottee.
The situation out of which the objection arises is at least
novel. Freeland died June 22, 1905, and the conveyance was made
January 15, 1912. Statehood had intervened, and counties had been
organized where there were none before. He resided and died in what
afterwards became Wagoner County, and, under the local law, the
county court of that county is the one which, at the time of the
conveyance, would have had jurisdiction of the settlement of his
estate. The court in the Indian Territory which would have had such
jurisdiction prior to statehood was no longer in existence. The
conveyance was not approved by the County Court of Wagoner county,
but was approved by the County Court of Okmulgee County, which,
under the local law, was the only court having jurisdiction of the
guardianship of the persons and property of the minors, Amos and
Elizabeth. The lands were in that county and the minors, as also
the other heirs, were residing there.
Section 6 of the Act of 1908 and other congressional enactments
explicitly subject the persons and property of Indian minors of the
Five Civilized Tribes to the jurisdiction of the probate courts of
Oklahoma. In that state, the county courts are the probate
courts.
Section 9 of the same act declares:
"That the death of any allottee of the Five Civilized Tribes
shall operate to remove all restrictions upon the alienation of
said allottee's land:
Provided, that no conveyance of any
interest of any full-blood Indian heir in
Page 254 U. S. 112
such land shall be valid unless approved by the court having
jurisdiction of the settlement of the estate of said deceased
allottee."
If, in this instance, the same court had had jurisdiction of the
guardianship of the minor heirs and of the settlement of the estate
of the deceased allottee, no embarrassment would have ensued, but,
as that was not the case, the question arises whether it was
essential that the guardian's conveyance, directed and approved, as
it was, by the court having control of the guardianship, should
also be approved by the court having jurisdiction of the settlement
of the deceased allottee's estate. The circuit court of appeals
answered in the negative, and, while the question is not free from
difficulty, we think that solution of it is right.
Of course, the purpose in requiring any approval is to safeguard
the interests of the full-blood Indian heir. Where he is a minor,
he can convey only through a guardian, and no court is in a better
situation to appreciate and safeguard his interests than the one
wherein the guardianship is pending. Besides, as a general rule, a
guardianship carries with it exclusive power to direct the guardian
and to supervise the management and disposal of the ward's
property. It is so in Oklahoma. This rule is so widely recognized
and so well grounded in reason that a purpose to depart from it
ought not to be assumed unless manifested by some very clear or
explicit provision. The Act of 1908 contains no manifestation of
such a purpose outside the proviso in § 9. That proviso seems
broad, but so is the provision in § 6 subjecting the persons and
property of minor Indians to local guardianship. As both are in the
same act, they evidently were intended to operate harmoniously, and
should be construed accordingly. The proviso does not mention
minors under guardianship, and to regard its general words as
including them will either take all supervision of the sale of
their interest in
Page 254 U. S. 113
inherited lands from the court in which the guardianship is
pending or subject that court's action to the approval of another
court of the same rank. In either event, conflict and confusion
will almost certainly ensue, and be detrimental to the minor heirs.
But, if the proviso be regarded, as well it may, as referring to
heirs not under guardianship -- in other words, to adult heirs --
the two provisions will operate in entire harmony, and all
full-blood heirs will receive the measure of protection intended.
We think this is the true construction.
Decree affirmed.