1. Land allotted and patented under § 28 of the Act of March 1,
1901 (Original Creek Agreement) in the right of a full-blood Creek
Indian to his "heirs," without naming them, passes to them as an
inheritance, and not as an allotment in their own right. P.
295 U. S.
406.
2. The restriction made by § 1 of the Act of May 27, 1908, on
alienation of lands allotted to full-blood Indians of the Five
Civilized Tribes, in Oklahoma, relates to land which the allottee
took in his own his right, and not to land allotted in the right of
a deceased ancestor and which came to him as an heir. P.
295 U. S.
411.
3. The purpose of the provision of § 9 of the Act of May 27,
1908,
"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 such land shall be valid
unless approved by the court having jurisdiction of the settlement
of the estate of said deceased allottee,"
was to prescribe rules reflecting future alienation by heirs --
as well where they had become such before the Act as where they
might become such thereafter. P.
295 U. S.
412.
4. The proviso above quoted from § 9 of the Act of May 27, 1908,
should be read in connection with the statutes whereby Congress
authorized and recognized guardianships of estates of full-blood
heirs who were minors or were mentally incompetent, and, so read,
although couched in general terms, it does not require that a
conveyance made by the guardian of a minor or incompetent heir
pursuant to a sale directed and approved by the court having
control of the guardianship shall also be approved by another
court, of the same rank, having jurisdiction over the estate of the
ancestor. Pp.
295 U. S. 412,
295 U. S.
414.
5. When Congress subjected Indian minors and incompetents of the
Five Tribes and their estates to the guardianship laws of Oklahoma,
it did not thereby incorporate those laws into the federal
restrictions; it merely gave its assent to their application to
such
Page 295 U. S. 404
Indians, and the laws remained state laws, as before, and as
such were to be applied to these Indians. Apart from limitations
expressly imposed by Congress, the state laws have the same
application to Indian guardianships that they have when the wards
are minors or incompetents of other races. P.
295 U. S.
415.
6. Whether the proceedings in such Indian guardianships conform
to the state statutes is a question of state, not federal, law.
And, in the absence of congressional provision to the contrary, the
time and mode of seeking the correction of errors believed to have
been committed by the state courts in such proceedings, as also the
effect of inaction in that regard, are all controlled by the state
laws, as in the instance of other guardianship proceedings. P.
295 U. S.
416.
7. As applied to a suit by a full-blood Creek Indian to recover
an inherited allotment which, while he was of age but mentally
incompetent, was sold and conveyed by his guardian with the
approval of the Oklahoma County Court, but whose right of action
became barred by the state statute of limitations, § 2 of the Act
of Congress of April 12, 1926, purporting to lift the bar in such
cases for a period of two years following the approval of that Act
is unconstitutional. P.
295 U. S.
416.
8. As respects suits to recover real or personal property where
the right of action has been barred by a statute of limitations and
a later Act has attempted to repeal or remove the bar after it
became complete, the rule sustained by reason and preponderant
authority is that the removing Act cannot be given effect
consistently with constitutional provisions forbidding a
deprivation of property without due process of law. P.
295 U. S.
417.
167 Okla. 531,
30 P.2d 875,
affirmed.
Appeal from a judgment affirming a judgment for the defendants
in a suit brought by Stewart, a full-blood Creek Indian, to recover
an interest in land.
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This was a suit brought in a court of Seminole county, Oklahoma,
by a full-blood Creek Indian to recover an
Page 295 U. S. 405
interest in land inherited from his grandmother, also a
full-blood Creek Indian, and afterward sold by his guardian. The
asserted grounds for a recovery were (1) that the proceedings
whereby the plaintiff was adjudged an incompetent and subjected to
guardianship on that basis, and also the proceedings leading to the
sale, were invalid because in some particulars irregular or not in
accord with the laws of Oklahoma; (2) that the sale was in
contravention of a controlling federal restriction on alienation,
and (3) that an Act of Congress of April 12, 1926, c. 115, § 2, 44
Stat. 239, permitted the suit to be brought within two years after
the act's approval, notwithstanding any bar which may have arisen
under the state statutes of limitation before such approval.
The defendants answered and a trial was had at which judgment
was given for them on a demurrer to the plaintiff's evidence. The
Supreme Court of the state affirmed the judgment, 167 Okl. 531,
30 P.2d 875,
and put its decision on the grounds (a) that the suit was barred by
the state statutes of limitation, and (b) that the Act of Congress
of April 12, 1926, relied on by the plaintiff as avoiding such a
bar, could not be applied, because, if applied, if would deprive
the defendants, who are holding under the guardian's sale, of
vested rights without due process of law. The court's opinion did
not mention the federal restriction on alienation set up by the
plaintiff; but, of course, the judgment necessarily meant that the
court regarded the asserted restriction as not requiring a
different result.
The plaintiff brings the case here by appeal, and complains that
the Supreme Court of the state erred (1) in applying the state
statutes of limitation over his objection that they could not be
applied without bringing them into conflict with the federal
statute restricting alienation, and (2) in holding the Act of
Congress of April 12, 1926, invalid as applied to the situation
disclosed.
Page 295 U. S. 406
The facts in the light of which these complaints are to be
considered are as follows:
The plaintiff and his grandmother were full-blood Indians of the
Creek Tribe, enrolled as such, and entitled to share in the
allotment of the tribal lands among the members. She died before
receiving her allotment, and, after her death, the land in
question, which was part of the tribal lands, was allotted and
patented in her right, the patent being issued to her "heirs"
without naming them. Under the applicable statute, the heirs
received the land as an inheritance from her, and not as an
allotment in their own right. [
Footnote 1] The plaintiff was one of the heirs. He also
received an allotment in his own right, and thus, like many others,
he had a personal allotment as well as an interest in inherited
land.
Thereafter, in 1907, the County Court of Hughes County,
Oklahoma, regularly appointed John A. Jacobs guardian of the
plaintiff's person and estate, he then being a minor, and that
being the county of his residence. In 1914, that court entered an
order (1) reciting it was made after a hearing in the plaintiff's
presence and at which he was examined; (2) finding he was then over
the age of 21 years, but was incompetent to manage his own affairs
and still in need of a guardian; (3) also finding Jacobs, the then
guardian, was a proper person to be continued as such; (4)
declining to accept a resignation tendered by Jacobs, and (5)
ordering that the guardianship be continued, and that thereafter
Jacobs should act "as guardian
Page 295 U. S. 407
for North Stewart, incompetent," and should "be governed by the
laws relating thereto." [
Footnote
2] Jacobs assented, and the subsequent proceedings were all
entitled "In the Matter of the Guardianship of Noah Stewart, an
Incompetent."
In May, 1916, the guardian, by a verified petition, requested
the county court to authorize a sale of the plaintiff's interest in
the inherited land for the purpose of securing money needed for his
maintenance and support and for the improvement of his personal
allotment. A month later, the court entered an order reciting a
hearing on that petition after lawful notice; finding the proposed
sale was necessary for the purposes named, and directing the
guardian to make the sale. Under that order, the guardian made the
sale at public auction to the highest bidder and reported it to the
county court. July 11, 1916, the court entered an order (1) finding
that due notice of the intended sale was given, that the sale was
fairly conducted and legally made, and that the price was not
disproportionate to the value of the property; (2) confirming and
approving the sale, and (3) directing the guardian to execute a
deed to the purchaser. The purchase price was paid to the guardian,
and he executed and delivered to the purchaser a deed, which was
filed for record in the proper office July 12, 1916. The purchaser
then entered into possession, and he and his grantees remained in
possession continuously thereafter. The defendants are the present
claimants under the guardian's sale.
As part of the plaintiff's evidence, it was stipulated that the
Secretary of the Interior had never removed any restrictions on the
alienation of the inherited land, and that the same thing was true
of the plaintiff's personal allotment.
Page 295 U. S. 408
But the defendants, although joining in the stipulation,
objected that the facts stipulated were immaterial.
August 4, 1917, the county court, after a hearing, entered an
order adjudging that the plaintiff had become competent and
discharging the guardian. The present suit was begun April 11,
1928.
The Supreme Court of the State, in applying the state statutes
of limitation said:
"Under the provisions of § 1444, O.S.1931, no action for the
recovery of any estate, sold by a guardian, can be maintained by
the ward, unless it is commenced within three years next after the
termination of the guardianship, or when a legal disability to sue
exists by reason of minority or otherwise at the time when the
cause of action accrues, within three years next after the removal
thereof. The plaintiff could have commenced his action at any time
within three years after August 4, 1917. Under the provisions of §
100, O.S. 1931, any person entitled to bring an action for the
recovery of real property, who may be under any legal disability
when the cause of action accrues, may bring his action within two
years after the disability is removed. Under that statute, the
plaintiff could have brought his action within two years after
August 4, 1917. Under the provisions of the second subdivision of §
99, O.S. 1931, an action for the recovery of real property sold by
a guardian, upon an order or judgment of a court directing such
sale, brought by the ward or his guardian, must be brought within
five years after the date of the recording of the deed made in
pursuance of the sale. Under that statute the plaintiff could have
brought his action within five years after the 12th day of July,
1916."
Under the state statutes thus described, the court held that the
plaintiff's asserted right to call in question the guardian's sale
was barred before the suit was begun and
Page 295 U. S. 409
before the approval of the Act of Congress of April 12,
1926.
1. Was the guardian's sale, as directed and approved by the
county court, a forbidden alienation within the meaning of any then
existing federal restriction? The plaintiff insists it was and
points to the Act of May 27, 1908, c.199, 35 Stat. 312, as
containing the restriction.
As a preliminary to considering that statute, it will be helpful
to refer to the conditions and legislation which preceded its
enactment.
The Creek Tribe was one of the Five Civilized Tribes, each of
which owned and occupied a tribal domain in the Indian Territory.
Congress never provided a territorial government for that
Territory, but ultimately did establish local courts therein and
invested them with probate, as well as civil and criminal,
jurisdiction. The laws for the Territory consisted largely of
Arkansas statutes put in force therein by Congress, and these
statutes included chapters providing comprehensively for the
administration of estates of decedents, minors and incompetents,
and for the sale of their property. At first, the adopted Arkansas
statutes were not intended to be fully applicable to Indians, but
Congress soon made them applicable to all persons, "irrespective of
race," [
Footnote 3] and later
on declared that the courts in the Territory should have "full and
complete jurisdiction" of all "estates of decedents, the
guardianships of minors and incompetents, whether Indians,
freedmen, or otherwise." [
Footnote
4]
November 16, 1907, the Territory of Oklahoma and the Indian
Territory were admitted into the Union as the State of Oklahoma
under an enabling act passed by Congress June 16, 1906, c. 3335, 34
Stat. 267, and amended
Page 295 U. S. 410
March 4, 1907, c. 2911, 34 Stat. 1286. The enabling act and the
Constitution of the new state united in declaring that, with
exceptions not material here, "all laws in force in the Territory
of Oklahoma" at the time of the state's admission should be "in
force throughout the State" and that the "courts of original
jurisdiction of such State" should be the successors of "all courts
of original jurisdiction of said Territories."
The laws of the Territory of Oklahoma which were thus put in
force "throughout" the new State included comprehensive provisions
for the administration of estates of decedents, the appointment of
guardians of minors and incompetents, and the management and sale
of their property. In the Territory of Oklahoma, jurisdiction over
these subjects was vested in probate courts and, by the
Constitution of the new State, that jurisdiction was committed to
county courts.
The lands of the Creek Tribe were allotted among its enrolled
members pursuant to the Act of March 1, 1901, c. 676, 31 Stat. 861,
as modified and supplemented by the Acts of June 30, 1902, c. 1323,
32 Stat. 500, and March 3, 1905, c. 1479, 33 Stat. 1071. Under
these acts, 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.
[
Footnote 5]
The Act of April 26, 1906, c. 1876, 34 Stat. 137, substituted a
system of revised restrictions made applicable to all of the Five
Civilized Tribes. In § 19, it dealt with restrictions relating to
lands of living allottees, and in § 22 with those relating to
inherited lands, including, as this Court has held, lands allotted
in the right of deceased members. [
Footnote 6] Under § 22, the right of full-blood Indian
heirs to alienate the inherited lands was subjected to the
Page 295 U. S. 411
restriction that the conveyance be approved by the Secretary of
the Interior.
The Act of May 27, 1908, c.199, 35 Stat. 312, again revised the
restrictions and practically substituted its § 1 for § 19 of the
Act of 1906, and its § 9 for § 22 of that Act. Thus, like the Act
of 1906, it dealt with the restrictions relating to lands of living
allottees separately from those relating to inherited lands.
In § 1, the Act of 1908, after declaring that certain lands of
designated classes of allottees "shall be free from all
restrictions," provides:
"All homesteads of said allottees enrolled as mixed-blood
Indians having half or more than half Indian blood, including
minors of such degrees of blood, and all allotted lands of enrolled
full-bloods, and enrolled mixed-bloods of three-quarters or more
Indian blood, including minors of such degrees of blood, shall not
be subject to alienation, contract to sell, power of attorney, or
any other incumbrance prior to April twenty-sixth, nineteen hundred
and thirty-one, except that the Secretary of the Interior may
remove such restrictions, wholly or in part, under such rules and
regulations concerning terms of sale and disposal of the proceeds
for the benefit of the respective Indians as he may prescribe."
Counsel for the plaintiff place some reliance on that
restriction. But there is no basis for doing so. The plaintiff's
relation to the land in question was that of an heir, and not that
of an allottee. [
Footnote 7]
The land was allotted in the right of his deceased grandmother, so
she, rather than he, should be regarded as the allottee.
Section 9 relates to the alienation of inherited lands. So far
as is material here, it provides:
"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
Page 295 U. S. 412
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."
While this provision, if taken literally, might be regarded as
confined to subsequent deaths and resulting heirships, a reading of
the entire act, including its introductory sentence, shows that the
purpose was to prescribe rules respecting future alienation by
heirs -- as well where they had become such before the Act as where
they might become such thereafter. The provision has been so
applied by this Court. [
Footnote
8]
The first sentence in the quoted part of § 9, where not
restrained by the proviso, undoubtedly frees the inherited lands
from all restrictions on alienation. But, as respects an heir who
is a full-blood Indian, the proviso obviously restrains that
sentence, and, if taken literally, makes unlawful any conveyance of
any interest of such an heir in the inherited lands unless the
conveyance be approved by the court having jurisdiction of the
settlement of the estate of the deceased allottee. Here, the heir
was a full-blood Indian. So the question arises, whether the
proviso is intended to include a conveyance made pursuant to a
guardian's sale, such as was directed and approved by the county
court in this instance.
The proviso makes no mention of minors or incompetents under
guardianship or of conveyances made by their guardians under the
direction of courts having jurisdiction of their estates. Under
other acts of Congress, the persons and estates of Indian minors
and incompetents in the Indian Territory and the State of Oklahoma
have long been subjected to the jurisdiction of local courts, and
that jurisdiction is recognized throughout the allotment statutes
before described and in § 2 of the Act of 1908. True,
Page 295 U. S. 413
that jurisdiction could not be exercised otherwise than in
keeping with the laws of Congress relating to such Indians and
their lands; but this constitutes no reason for putting aside the
statutes granting and recognizing the jurisdiction when a related
statute is being examined and construed.
The court which would have jurisdiction of the settlement of the
estate of the deceased allottee (plaintiff's grandmother) is either
the same county court that directed and approved the guardian's
sale or the county court in an adjoining county. So, the court
named in the proviso and the one which directed and approved the
guardian's sale were either identical or of the same rank.
A similar question respecting the construction and application
of the proviso was considered by this Court in 1920. The case
involved a sale of inherited land by the guardian of minor heirs
who were full-blood Creek Indians, the guardian having acted under
the order of the court having control of the guardianship, and it
was held that the proviso, rightly construed, did not include such
a sale.
In that case, the court said: [
Footnote 9]
"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. "
Page 295 U. S. 414
"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 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
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 . . . , all full-blood heirs will
receive the measure of protection intended. We think this is the
true construction."
In principle, what was said there is applicable here. That the
Indian heir in that case was a minor and, in this, was an
incompetent is not material. The important thing, both there and
here, is that the conveyance was made under the direction of the
court having jurisdiction of a pending guardianship over the heir's
estate. The guardianships were alike in point of congressional
authorization and recognition, had like purposes, and were attended
by like measures of control.
Plainly the proviso should be read in connection with the
statutes whereby Congress authorized and recognized such
guardianships and in the light of familiar rules of
Page 295 U. S. 415
construction. Upon such a reading, it becomes reasonably certain
that the proviso, although couched in general terms, is not
intended to include a conveyance made by the guardian of a minor or
incompetent heir pursuant to a sale directed and approved by the
court having control of the guardianship of the heir's estate.
The review which we have made of the federal restrictions shows
that the guardian's sale was not a forbidden alienation under any
of them.
2. We come, then, to the contention respecting the application
of the state statutes of limitation. It proceeds on the assumption,
first, that the guardian's sale was in direct conflict with the
federal restrictions on alienation, and secondly, that the
proceedings whereby the plaintiff was brought under guardianship as
an incompetent, as also the later proceedings leading to the sale,
were not in conformity with the state statutes, and that these
irregularities brought the sale in conflict with the
restrictions.
We have already shown that the first assumption is not tenable.
And we are of opinion the second is ill grounded.
When Congress subjected Indian minors and incompetents and their
estates to the laws of the State in respect of guardianships, it
did not thereby incorporate those laws into the federal
restrictions. It merely gave its assent to their application to
such Indians. The laws remained state laws, as before, and, as
such, were to be applied to these Indians. Congress expressly
imposed a limitation fixing stated ages of majority for them. This,
of course, put that matter beyond the reach of the state statutes,
and the courts of the State have so ruled. Apart from this
limitation and some others not material here, the state laws have
the same application to Indian guardianships that they have when
the wards are minors or incompetents of other races.
Page 295 U. S. 416
Whether the proceedings in such Indian guardianships conform to
the state statutes is a question of state, not federal, law. And,
in the absence of congressional provision to the contrary, the time
and mode of seeking the correction of errors believed to have been
committed by the state courts in such proceedings, as also the
effect of inaction in that regard, are all controlled by the state
laws, as in the instance of other guardianship proceedings.
It follows from these considerations that, subject to a matter
about to be considered, no federal statute or right was violated or
infringed in applying the state statutes of limitation to this
suit.
3. The remaining question is whether there was error in the
ruling that the Act of April 12, 1926, could not be given effect in
this case without depriving the defendants of property contrary to
the due process of law clause of the Constitution.
The defendants hold the rights transferred by the guardian's
sale and deed. The deed was filed for record July 12, 1916, and the
grantee then went into possession. The plaintiff had then attained
his majority, but was under guardianship as an incompetent. That
disability and guardianship terminated August 4, 1917. The
guardian's sale and deed were not challenged until April 11, 1928,
when this suit was begun. In the meantime, any right the plaintiff
may have had to challenge the sale and deed had become barred by §
1444 and subdivision 2 of § 100 of the state statutes of
limitation. The bar became effective July 12, 1921, if not August
4, 1920, in that, under the operation of those statutes ,the
guardian's sale and deed then ripened into an unassailable
title.
Section 2 of the Act of April 12, 1926 (44 Stat. 240) declares
that: "No cause of action which heretofore shall have accrued to"
any restricted Indian of any of the Five Civilized Tribes
"shall be barred prior to the expiration of a
Page 295 U. S. 417
period of two years from and after the approval of this Act,
even though the full statutory period of limitation shall already
have run or shall expire during said two-years' period, and any
such restricted Indian, if competent to sue, or his guardian, or
the United States in his behalf, may sue upon any such cause of
action during such two-years' period free from any bar of the
statutes of limitations."
We are of opinion that so much of the section as purports to
free from any bar of the statutes of limitation a cause of action
such as is here presented, notwithstanding the full period of
limitation had run prior to the act's approval, falls nothing short
of an attempt arbitrarily to take property from one having a
perfect title and to subject it to an extinguished claim of
another.
As respects suits to recover real or personal property where the
right of action has been barred by a statute of limitations and a
later act has attempted to repeal or remove the bar after it became
complete, the rule sustained by reason and preponderant authority
is that the removing act cannot be given effect consistently with
constitutional provisions forbidding a deprivation of property
without due process of law. [
Footnote 10] "The reason is," as this Court has said,
"that, by the law in existence before the repealing act, the
property had become the defendant's. Both the legal title and the
real ownership had become vested in him, and to give the Act the
effect of transferring this title . . . would be to deprive him of
his property without due process of law. [
Footnote 11]"
The state court so ruled in this suit, and we sustain that
ruling.
Judgment affirmed.
[
Footnote 1]
The allotment in the right of the grandmother was made under §
28 of the act of March 1, 1901, which, after providing for the
enrollment of all tribal citizens living on April 1, 1899,
declares,
"and if any such citizen has died since that time, or may
hereafter die, before receiving his allotment of lands and
distributive share of all the funds of the tribe, the lands and
money to which he would be entitled, if living, shall descend to
his heirs . . . and be allotted and distributed to them
accordingly."
[
Footnote 2]
See Mullen v. Glass, 43 Okl. 549, 143 P. 679;
Yarhola v. Strough, 64 Okl.195, 166 P. 729;
Lytle v.
Fulotka, 106 Okl. 86, 233 P. 456;
Johnston v. Guy,
165 Okl. 156,
25 P.2d
625.
[
Footnote 3]
Act of June 7, 1897, c. 3, 30 Stat. 62, 83.
[
Footnote 4]
Act of April 28, 1904, c. 1824, § 2, 33 Stat. 573.
[
Footnote 5]
Skelton v. Dill, 235 U. S. 206;
Adkins v. Arnold, 235 U. S. 417,
235 U. S. 420;
Talley v. Burgess, 246 U. S. 104,
246 U. S.
107.
[
Footnote 6]
Talley v. Burgess, supra, 246 U. S.
108.
[
Footnote 7]
Harris v. Bell, 254 U. S. 103,
254 U. S.
108.
[
Footnote 8]
Harris v. Bell, 254 U. S. 103,
254 U. S. 108,
254 U. S.
114.
[
Footnote 9]
Harris v. Bell, 254 U. S. 103,
254 U. S.
112-113.
[
Footnote 10]
Cooley, Const.Lim. (6th Ed.) p. 448.
[
Footnote 11]
Campbell v. Holt, 115 U. S. 620,
115 U. S.
623.