1. A final decree of the circuit court of appeals in a suit
removed to the district court upon the ground that it arose under
the laws of the United States held
reviewable here by
appeal, and not by certiorari. P. 264 U. S.
2. Under the constitution and statutes of Oklahoma, the family
homestead of an Indian may include his tribal "homestead" allotment
as well as his tribal "surplus" allotment, and a lease, invalid
because executed by the husband alone, may be set aside in a suit
brought by the husband and wife, unless she is estopped by her acts
and conduct from asserting its invalidity. P. 264 U. S.
3. The power of Congress to deal with the Indians in Oklahoma as
a dependent people and legislate concerning their property with a
view to their protection was reserved by the Oklahoma Enabling Act,
the terms of which were accepted by an ordinance of the
constitutional convention of Oklahoma later ratified with the
constitution of the state. P. 264 U. S.
4. The authority given by the Act of Congress of May 27, 1908,
to a Cherokee Indian of the half-blood to make an oil and gas lease
upon his restricted "homestead" allotment, with the approval of the
Secretary of the Interior, cannot be limited or contravened by the
provision of the Oklahoma law attaching to the execution of a lease
upon the family homestead the condition that it must be also
executed by his wife. P. 264 U.S.
5. The provision of the Oklahoma Enabling Act that all laws in
force in Oklahoma Territory at the time of the admission of the
state should be in force throughout the state, "except as modified
or changed by this Act or by the constitution of the state,"
related only to laws affecting the citizens of the state generally,
and did not authorize the application of such laws in contravention
of acts passed by Congress in reference to the property of Indians
under the power expressly reserved in the Enabling Act itself. P.
264 U. S.
6. The provision in the Oklahoma Constitution that nothing in
the laws of the United States shall deprive any Indian or other
Page 264 U. S. 489
of the benefit of the homestead laws of the state cannot give
validity to laws of the state repugnant to the reserved powers of
the United States in legislating in respect of the lands of
Indians. P. 264 U. S.
7. The "surplus" allotment of a half-blood Cherokee, upon being
freed from all federal restrictions by the Act of May 27, 1908,
became subject to the laws of Oklahoma like
property of other citizens, including the law (supra,
2) restricting the disposition of family homesteads. P.
264 U. S.
8. Regulations of the Secretary of the Interior providing that,
if restrictions were removed from part of the land included in an
oil and gas lease, the entire lease should continue subject to
approval and supervision, and all royalties thereunder be paid to
the Indian agent until lessor and lessee arranged for separate
accountings upon the restricted and unrestricted land held
not to relieve a lease, as to the unrestricted land included, from
invalidity under the Oklahoma family homestead law. P. 264 U. S.
9. Where an oil and gas lease of land is found invalid under the
family homestead law, the court cannot permit the lessees to
continue extracting oil and gas upon the condition that they do not
interfere with the owners' use of the surface as a homestead. P.
264 U. S.
282 F. 93 affirmed in part and reversed in part; certiorari
Appeal from a decree of the circuit court of appeals affirming a
decree of the district court which cancelled a lease made by an
Indian of his homestead and surplus allotments, together
constituting his family homestead, upon the ground that, not being
executed by his wife, the instrument was invalid under the Oklahoma
family homestead law. Certiorari also was granted.
Page 264 U. S. 490
MR. JUSTICE SANFORD delivered the opinion of the Court.
The appellees, Webster Chisholm, a half-blood Cherokee Indian,
and his wife, brought this suit in a state court of Oklahoma to
cancel a supplemental instrument modifying and extending an oil and
gas lease previously executed by him upon his "homestead" and
"surplus" allotments of tribal lands. It was removed to the federal
district court. That court, upon final hearing, entered a decree
adjudging this instrument to be entirely null and void, and
enjoining interference with the plaintiffs' possession of the
premises. [Footnote 1
decree was affirmed by the circuit court of appeals. 282 F. 93. An
appeal to this Court was allowed by a circuit judge, and thereafter
the appellants were also granted a writ of certiorari. 261 U.S.
As the suit was removed to the federal court upon the ground
that it arose under the laws of the United States, [Footnote 2
] the decree of the circuit court
of appeals was not made final by the provisions of Section 128 of
the Judicial Code and Section 3 of the Act of September 6, 1916, c.
448, 39 Stat. 726. Southern Pacific Co. v. Stewart,
245 U. S. 562
Therefore, the appeal was properly allowed under Section 241 of the
Judicial Code, and the writ of certiorari must be dismissed.
Chisholm is an enrolled citizen of the Cherokee Nation, of the
half blood. Pursuant to the Cherokee Agreement -- embodied in the
Act of July 1, 1902, c. 1375, 32
Page 264 U. S. 491
Stat. 716 -- he was allotted two tracts of tribal lands, one of
thirty acres designated as a "homestead," and another adjoining
tract of fifty acres designated as "surplus." The alienation of
both of these tracts was then restricted. In 1904, while unmarried,
he executed an oil and gas lease for a term of fifteen years to the
Creek & Indiana Development Company, covering, as an entirety,
the eighty acres of his two allotments. It contained no provision
for an extension or renewal. This lease was approved by the
Secretary of the Interior. Chisholm married in 1911. In 1912, he
and his wife moved upon the leased land, and have since that time
occupied and claimed the entire eighty acres as a family homestead.
Their residence is upon the "homestead" thirty acres, the
cultivated land and pasture extending upon the "surplus" fifty
acres. Neither owns any other land. In 1914 -- more than five years
before the expiration of the lease -- the lessee having found oil
in paying quantities and completed the drilling of five wells,
Chisholm executed a written instrument modifying the terms of the
lease, in accordance with regulations prescribed by the Secretary
of the Interior, so as to provide for an increased royalty and
extend the lease as long as oil or gas should be found in paying
quantities. This instrument -- hereinafter called the extension
lease -- was approved by the Secretary of the Interior as to the
"homestead" thirty acres, which was still restricted land, but was
neither approved nor disapproved by him as to the "surplus" fifty
acres, from which the restrictions had previously been removed. It
was not, however, executed or joined in by his wife. Later in the
same year, the Development Company assigned the lease to the Sperry
Oil & Gas Company, and that Company in 1918 assigned it to the
Oklahoma Producing & Refining Corporation. The suit was
commenced in 1919, about three months after the expiration of the
term of the original lease. The lessees had then driven eleven
wells on the leased premises
Page 264 U. S. 492
and removed a large amount of oil. All royalty due under the
leases at the original and increased rates had been paid by the
lessees to Chisholm, or to the Indian agent for his benefit, and
had been received by Chisholm, and such payments were continued to
the time of the trial. His wife, however, received no part of this
royalty, and did not learn that he had extended the original lease
until shortly before the commencement of the suit.
1. The ground of decision in both the lower courts was that the
extension lease executed by Chisholm was void under the provisions
of the Constitution and laws of Oklahoma relating to family
homesteads because it was not joined in or consented to by his
wife. The Constitution of Oklahoma provides that the rural
homestead of any family in the state "shall consist of not more
than one hundred and sixty acres of land, . . . in one or more
parcels, to be selected by the owner," and that "nothing in the
laws of the United States . . . shall deprive any Indian or other
allottee of the benefit of the homestead and exemption laws of the
state." Article 12, § 1. These provisions are also contained in the
state statutes. 1 Rev.Laws, 1910, § 3343, p. 834. The family
homestead of an Indian under the state law may include his tribal
"homestead" allotment as well as his tribal "surplus" allotment.
Hyde v. Ishmael,
42 Okl. 279; Norton v. Kelley,
57 Okl. 222; Belt v. Bush
(Okla.), 176 P. 935. It is
further provided by a statute originating in the territorial
Session Laws of 1901, c. 10, p. 78, that "no deed, mortgage or
contract relating to the homestead," except a lease for not
exceeding one year, "shall be valid unless in writing and
subscribed by both husband and wife." 1 Rev.Laws, 1910, § 1143, p.
292. This applies to oil and gas leases covering the homestead.
Carter Oil Co. v. Popp
(Okla.), 174 P. 747; Rich v.
(Okla.), 177 P. 86; Treese v.
Shoemaker, 80 Okla. 235
And the interest of the husband and wife in
Page 264 U. S. 493
the homestead not being severable, a lease or other contract
relating to the homestead executed by the husband alone may be set
aside in an action brought by the husband and wife unless she is
estopped by her acts and conduct from asserting its invalidity.
Hall v. Powell, 8 Okla. 276
Kelly v. Mosby, 34 Okla. 218
Brusha v. Board of Education, 41 Okla.
; Hyde v. Ishmael, supra; Carter Oil Co. v. Popp.
2. In our opinion, however, these provisions of the Constitution
and laws of Oklahoma have no application to so much of the
extension lease as covers the tribal "homestead" of thirty
By the Oklahoma Enabling Act of June 16, 1906 c. 3335, 34 Stat.
267, it was provided that nothing in the Constitution of the state
should be construed to limit or affect the authority of the
government of the United States to make any law or regulations
respecting the Indians of the Territory, their lands, property, or
other rights which it would otherwise have been competent to make.
§ 1. The terms and conditions of the Enabling Act were accepted by
the Constitutional Convention of Oklahoma by an "irrevocable"
ordinance which was ratified with the Constitution itself.
Coyle v. Oklahoma, 221 U. S. 559
221 U. S. 564
Jefferson v. Winkler, 26 Okla. 653
662; Molone v. Wamsley, 80 Okla. 181
182. Congress was thus careful to preserve to the United States the
authority over the Indians, their lands and property, which it
possessed prior to the passage of the Enabling Act, retaining full
power, which it had exercised from the earliest period, to deal
with them as a dependent people and legislate concerning their
property with a view to their protection, with the right to
determine when, in their interest, the government guardianship
should cease, and plenary authority, notwithstanding the bestowal
of federal citizenship upon them, to place restrictions upon their
right of alienating the lands allotted to them. Tiger v.
Page 264 U. S. 494
Investment Co., 221 U. S. 286
221 U. S. 309
Heckman v. United States, 224 U.
, 224 U. S. 416
And in all matters relating to the restrictions upon their allotted
lands resort must be had to the Acts of Congress, and to those Acts
alone. Walker v. Brown, 43 Okla. 144
Collins Inv. Co. v. Beard, 46 Okla.
; Wison v. Greer, 50 Okla.
; Smith v. Williams, 78 Okla.
; Molone v. Wamsley, supra.
By the Act of May 27, 1908, c.199, 35 Stat. 312 -- which was in
force when the extension lease was executed -- it was provided that
the "homesteads" allotted to members of the Five Civilized Tribes
of the half-blood should not be subject to alienation or
incumbrance prior to April 26, 1931, unless such restrictions were
removed by the Secretary of the Interior, but all restrictions upon
the alienation or encumbrance of their other allotted lands were
removed. § 1. And it was further provided that
"leases of restricted lands for oil, gas or other mining
purposes . . . may be made, with the approval of the Secretary of
the Interior, under rules and regulations provided by the Secretary
of the Interior, and not otherwise."
§ 2. No other conditions were attached to the making of such
The authority thus given by the Act of Congress to an Indian of
the half blood to make an oil and gas lease upon his restricted
"homestead" allotment, with the approval of the Secretary of the
Interior, cannot be limited or contravened by the provision of the
Oklahoma law attaching to the execution of a lease upon the family
homestead the condition that it must also be executed by his wife.
This added requirement is inconsistent with the authority given the
allottee by the Act of Congress to make such lease when approved by
the Secretary of the Interior, and, if the wife does not consent to
the lease, would entirely defeat the purpose of Congress. As
applied to an oil and gas lease made by such an allottee upon his
restricted "homestead," the provision of the Oklahoma
Page 264 U. S. 495
law is hence invalid because of its repugnancy to the paramount
Act of Congress.
"The power of Congress to impose restrictions on the right of
Indian wards of the United States to alien or lease lands allotted
to them in the division of the lands of their tribe is beyond
question, and, of course, it is not competent for a state to enact
or give effect to a local statute which disregards those
restrictions or thwarts their purpose."
Bunch v. Cole, 263 U. S. 250
263 U. S.
On the precise question of the effect of a state law which, if
applicable, adds a condition to the exercise by an Indian allottee
of rights granted him by an Act of Congress, the decision in
Blanset v. Cardin, 256 U. S. 319
256 U. S.
-326, is controlling. There, an Act of Congress gave
Indians the right to dispose of their restricted allotments by
will, in accordance with the regulations prescribed by the
Secretary of the Interior and subject to his approval. And it was
held that a will made by an Indian woman, which was approved by the
Secretary of the Interior, devising her restricted lands to others
than her husband was not invalidated by a provision of the Oklahoma
Code that no married woman should bequeath more than two-thirds of
her property away from her husband. The court said:
"The Secretary of the Interior made regulations which were
proper to the exercise of the power conferred upon him . . . , and
it would seem that no comment is necessary to show that [the
provision of the Oklahoma Code] is excluded from pertinence or
operation. . . . In a word, the act of Congress is complete in its
control and administration of the allotment, and of all that is
connected with or made necessary by it, and is antagonistic to any
right or interest in the husband of an Indian woman in her
allotment under the Oklahoma Code. . . . Our conclusion is . . .
that it was the intention of Congress that this class of Indians
should have the right to dispose of property by will under
Page 264 U. S. 496
this act of Congress, free from restrictions on the part of the
state as to the portions to be conveyed or as to the objects of the
testator's bounty, provided such wills are in accordance with the
regulations and meet the approval of the Secretary of the
So it was the intention of Congress that Indian allottees of the
half-blood should have the right to make oil and gas leases upon
their restricted "homestead" allotments, provided they are in
accordance with the regulations of the Secretary of the Interior
and are approved by him.
To the same effect are the decisions of the Supreme Court of
Oklahoma. In Walker v. Brown, supra,
at 146, the court, in
holding that a restrictive provision of an Oklahoma statute was not
intended to apply to the will of an Indian woman devising her
"homestead" allotment under the authority given by the Acts of
"This court has repeatedly held that acts of Congress supplant
the laws of Oklahoma in relation to Indians; that certain state
laws which are applicable to every other citizen are not in force
as against or pertaining to the Indians of the Five Civilized
Tribes, and that we have here, respecting some matters, two classes
of citizens and two legislative sovereignties. . . . It is obvious
that, if the state law were given the construction contended for,
it would have the effect of interfering with the policy of the
Congress toward the Indians in the matter of the alienation of
their allotted lands."
This case was approved and followed in Brock v.
Keifer, 59 Okla. 5
And, in Molone v. Wamsley, supra,
at 183, it was said that
it is "beyond the power of the legislature to enact any law
invalidating or affecting" conveyances by Indian heirs "made and
approved in conformity with the acts of Congress." And see
Haddock v. Johnson, 80 Okla.
The Oklahoma statute derives no additional force as a
restriction upon leases made by Indian allottees because it was in
force as a territorial law at the time the Enabling
Page 264 U. S. 497
Act was passed, and that act provided that all laws in force in
the territory at the time of the admission of the state into the
Union should be in force throughout the state "except as modified
or changed by this act or by the constitution of the state." § 21.
Manifestly this provision related only to statutes affecting the
citizens of the state generally, and was not intended to authorize
the application of such laws in contravention of the Acts passed by
Congress in reference to the property of Indians under the power
expressly reserved in the Enabling Act itself. Nor can it have that
effect. See Truskett v. Closser, 236 U.
Nor is the validity of the extension lease affected by the
provision in the Oklahoma Constitution that nothing in the laws of
the United States shall deprive any Indian or other allottee of the
benefit of the homestead laws of the state. Whether or not this
provision was intended to do more than to protect the allottees
from the enforced seizure of their homesteads, it is sufficient to
say that, whatever its purpose, it can have no more effect than the
Oklahoma statute in giving validity to laws of the state repugnant
to the reserved power of the United States in legislating in
respect to the lands of Indians. Neither the Constitution of a
state nor any act of its legislature, whatever rights it may confer
on Indians or withhold from them, can withdraw them from the
operation of an act which Congress passes concerning them in the
exercise of its paramount authority. United
States v. Holliday,
3 Wall. 407, 70 U. S.
It results that the extension lease executed by Chisholm in
1914, which was made under the regulations of the Secretary of the
Interior and was approved by him as to the "homestead" allotment of
thirty acres, must be held to be valid as to such allotment.
3. As to the fifty acres of the "surplus" allotment, also
included in the extension lease, an entirely different
Page 264 U. S. 498
question is presented. All restrictions upon this land had been
removed by the Act of 1908. When the extension lease was executed,
there was no limitation under the acts of Congress upon Chisholm's
right to alienate, encumber, or lease this tract. It had become in
all respects subject to his control, under the laws of the state,
just as the property of other citizens. Jefferson v.
Winkler, 26 Okla. 653
664. All questions pertaining to its disposal fell under the scope
and operation of those laws. Dickson v. Luck Land Co.,
242 U. S. 371
242 U. S. 375
And, since his wife did not join in the execution of the extension
lease, and there is nothing in her acts and conduct which estops
her from asserting its invalidity, under the provisions of the
Oklahoma statute, as interpreted and applied by the courts of the
state, it must be held to be invalid as to the "surplus" allotment,
and it was to that extent properly set aside.
The fact that the regulations of the Secretary of the Interior
provided that, if the restrictions were removed from a part of the
land included in an oil and gas lease, the entire lease should
continue subject to the approval and supervision of the Secretary
of the Interior and all royalties thereunder should be paid to the
Indian agent until the lessor and lessee made adequate arrangements
to account for the oil and gas upon the restricted land separately
from that, upon the unrestricted, obviously adds nothing to the
force of the extension lease insofar as it includes the fifty acres
of "surplus" lands, and can have no effect in relieving it as to
such lands from the invalidity attaching by reason of the
noncompliance with the laws of the state.
And, the extension lease being entirely invalid as to the
"surplus" fifty acres, the court is without authority to permit the
lessee to continue to extract oil and gas therefrom, although done
in such manner as not to interfere with the plaintiff's use of the
surface as a homestead.
Page 264 U. S. 499
The decree of the circuit court of appeals is affirmed as to so
much of the extension lease as covers the fifty acres of the
"surplus" allotment, and reversed as to so much of said lease as
covers the thirty acres of the "homestead" allotment.
Affirmed in part.
Reversed in part.
See Chisholm v. Creek & Indiana Development Co.,
273 F. 589, the opinion on interlocutory hearing. The Development
Company, although named as a defendant in the original petition,
was not served with process and did not enter its appearance, and
the case was heard only as to the other two defendants, the
See McCune v. Essig, 199 U. S. 382