RESTRICTIONS ON ALLOTMENTS
TO THE FIVE CIVILIZED TRIBES
FROM ALLOTMENT TO THE ACT OF 1904
Now, to decipher the charts. First consider the so-called Fitzpatrick Charts, appearing on pages 109, 111, 113, 115 and 116a. Notice the structure: the title of the charts are "Seminole", "Cherokee", "Choctaw-Chickasaw" and "Creek" on pages 109 to 115 respectively. Page 116a applies to all Five Tribes after 1908. It lacks the Act of 1926 so we will not use it.
The left column indicates divisions by critical dates. Thus among Seminoles, please refer back to page 109, the first period runs from 1-1-1900, the date of the Seminole Supplemental Agreement, to 3-3-03, the date of the Act of 1903, an Indian Appropriation Act, which tidied up some Seminole Allotment matters. The next period is from 3-3-03, which refers to the effective date of the Act of 1903, to 4-21-04 which is the date of the enactment of the Act of 1904.
Please turn to page 111 to the Cherokee chart. The first period is 8-7-02, the date of the Cherokee Allotment Agreement, until 4-21-04, the date of the Act of 1904, as we noted previously. There was no Cherokee Supplemental Agreement as there was with the Seminoles.
Perhaps we should articulate that which is implied. The Seminoles, the Cherokees, and the Creeks were allotted land under different agreements. The Choctaws and Chickasaws were also allotted land under a separate agreement from the other three tribes; but, with a single exception, the law for the Chickasaws and the Choctaws is the same.
Please return to the Seminole chart on page 109. The second column has entries, "By Heirs", "By Allottees", and "By Will". I call these sections "By Allottees" section, "By Heirs" section, and so on. In the case of the first two, the chart indicates whose transaction is being discussed as far as alienation goes, the original allottee or his heir. Herein the term "heir" not only includes the immediate heir; but, the term also includes the heir of an heir, and even more remote inheritors, In the statements in the "By Will" section, we are, of course, speaking of a testate rather than an inter vivos conveyance, In the "By Will" section, allottees, heirs and devisees are all covered.
In the third column some of the lines are numbered. Indeed, where there are three or more lines within a section, the numbers make it easier to identify the specific line under examination.
Now please look at the three numbered columns on the right hand side of the chart. In the first column, there is a numeral on each line. Those numerals refer to notes following the charts which contain authority for the proposition stated by that line. In the second numbered column one of three symbols appears "all", "A" or "M". "A" stands for adult, "M" for minor, and "all" means either or both adults and minors.
In the column numbered three (3) there appears an "H", which stands for "homestead." Each allottee (except the Choctaw-Chickasaw freedmen, who were given only forty acres which was homestead) had to designate a portion of his selected allotment to be homestead. This parcel was conveyed to the allottee by a patent labelled "Homestead Patent." The rest of the allotment was popularly called "surplus". The patents to surplus are labelled simply "Allotment Patent." The other symbols are "5" for surplus or "all" indicating that both homestead and surplus are covered by the line. The last six columns are collectively called "quanta of blood." If there is a solid black dot in the first column, the statement in the line is true of full-blood allottees or heirs as the case may be. A partially black dot in the second column indicates that the statement is true about an Indian who is three-quarters or more Indian blood but less than full. A partially black dot in the third column indicates that the statement is true about an Indian who is one-half or more Indian blood but less than three-fourths. A dot in the fourth column indicates an Indian of less than one-half Indian blood. A white dot in the fifth column indicates an intermarried white. A black dot with a diagonal stroke through it in the sixth column indicates a person who is euphemistically referred to as a "freedman", that is a former slave or descendant of a former slave of members of the tribe, In the Seminole tribe some of the Blacks were not slaves, at least, after they joined the tribe.
Restrictions on the Seminoles Prior to 4-21-04
Now let us look at the restrictions on each tribe prior to the Act of 1904, the first act of general applicability. To start let us look at the first statement in the first chart, the chart on page 109 relating to the Seminoles. It says that on and after 1-1-1900 and until 3-3-03 all Seminoles were restricted as to lands allotted or to be allotted except the heirs of an enrollee where the allotment was selected by the enrollee's administrator after the enrollee's death. In such case under authority cited in note 1, page 127, all the allotment of the land could be alienated by heirs, minors or adults by all degrees of Indian blood, by intermarried whites or by freedmen. Please turn to page 127 for authority behind this statement. First notice the quotation from the original Seminole Agreement providing:
All contracts for sale, disposition or encumbrance of any part of any allotment made prior to date of patent shall be void ***. Each allottee shall designate one tract of forty acres which shall, by the terms of the deed, be inalienable and non-taxable in perpetuity.
Under this agreement there could be no alienation by allottees because no patents were issued until April 29, 1912.
But on January 1, 1900 the Seminole Supplemental Agreement came into effect. It provided:
If any member of the Seminole Nation shall die after the 31st day of December, 1899, the lands *** to which he would be entitled if living shall descend to his heirs WHO ARE SEMINOLE CITIZENS according to the laws of descent and distribution of the State of Arkansas and be allotted and distributed to them accordingly; provided, *** the same shall go first to the mother instead of the father, then to the brothers and sisters and their heirs instead of the father.
This was construed to mean that where a Seminole who had been enrolled on the rolls made in preparation for allotment died prior to his selecting his allotment that when selected by his administrator, his heirs regardless of quantum of blood could alienate without any restrictions.
A source of confusion exists in such statements as "When the allottee died prior to allotment." A better statement would be "When the enrolled Indian died prior to allotment." However it is not unusual to see or hear the former phraseology. However the Fitzpatrick Charts used the language "Where selected by administrator" as a "catch" phrase to cover the situation.
It should be noted that under language in the Cherokee Agreement similar to that set out above, there was a like holding in relation to the Cherokee Agreement. (See second line on the Cherokee chart, page 111, and note 11 on page 143.) This was also true in relationship to the Choctaws-Chickasaws. (See the third line in the 1898-1902 period in the "By Heirs" section on page 113 and note 15 on page 147.) This was equally true of the Creeks. (See line 3 in the "By Heirs" section on the Creek chart on page 115, and note 18 on page 147.)
Not only does the principle that the death of an allottee before allotment free all of his allotment in the hands of his heirs apply to all Five Civilized Tribes immediately after the selection was made by the administrator, this remained true until the Act of 1906, effective 4-26-06, reimposed restrictions on full-blood heirs, see note 5 page 132.
Restrictions on the Seminoles 3-3-03 to 4-21-04
Please return to the Seminole chart on page 109. We are ready for the next item, the first line of the period 3-3-03 to 4-21-04. Notice first, that in this period only heirs of allottees could alienate. During the second period on the Seminole chart, the only section is the section "By Heirs." The first line of that section says that where an allottee died after selecting his allotment, his heirs, either adults or minors, could convey his homestead regardless of the quantity of Indian blood of the heir. The authority for this statement is in note 2 which is on page 128. In this note the following language from the Act of March 3, 1903 is set out:
*** [T]he homestead referred to in said Act shall be inalienable during the lifetime of the allottee, not exceeding 21 years from the date of the deed of the allotment.
Because this was the only restriction on the alienation of the homestead in the Act, the courts construed it to mean that upon the death of the allottee, his heirs could convey his homestead. In the note there are citations of cases which so hold and citations to treatises which take the same position.
The second line of this period, is of course a repetition of the only line in the first period of the Seminole chart. We will notice throughout the charts relating to the Five Civilized Tribes that where the law remains the same in the next period, the line reflecting that law is repeated in the subsequent period. I am going to stop with the Seminoles at this point because the next critical period was ushered in by the Act of 4-21-04 which was an Act applying equally to all of the Five Civilized Tribes.
Restrictions on the Cherokees 8-7-02 to 4-21-04
Let's move to the Cherokee chart on page 111 and see what was true in their case prior to the Act of 1904. There the first line is comparable to the second line of the Seminole chart. They both read that heirs, where the allotment was selected by the allottee, may alienate the allottee's homestead whether the heir is a minor or an adult, regardless of the heir's quantum of blood. The authority is contained in note 10 on page 141. Notice therein that section 13 of the Cherokee Allotment Agreement says that the homestead of the allottee shall be inalienable for his lifetime not exceeding 21 years. This was construed to mean that on the death of the allottee his homestead could be alienated by his heirs. This is, of course, similar to the second line of the Seminole chart for similar reasons.
The second line on the Cherokee chart is similar to the first and third lines of the Seminole chart. It relates to the situation where one who was enrolled died before allotment. In note 11 on page 143 there is set out a provision from the Cherokee Allotment Agreement that "if any person shall have died before receiving his allotment the lands shall be allotted in his name and shall descend to his heirs according to the laws of descent and distribution as provided in Chapter 49, Mansfield's Digest".
This is very much like the language in the Seminole Agreement and was construed to result in the heirs (of an enrollee who died before allotment) taking the allotment free of all restriction. We have reached the period beginning with the Act of 1904, so let's move to the Choctaw-Chickasaw chart.
Restrictions on the Choctaws-Chickasaws 6-28-98 to 9-25-02
Here we have something new. The Choctaw-Chickasaw allottees were authorized, as indicated by the first line on the chart to alienate their surplus 1/4 in one year, an additional 1/4 in 3 years and all of their surplus in five years from the date of the patent. This was so as to both minor and adult allottees and without regard to quantum of blood. Let us turn to note 12 on page 144. The applicable statute is the Choctaw-Chickasaw Supplemental Agreement. The first two paragraphs are accurately reflected by the language of the chart but notice the provision in the third paragraph. It adds the requirement that the consideration for the alienation be for the appraisal value. But it should be noted that the provision as to appraised value was not present in the Choctaw-Chickasaw Original Agreement. It was added by the Supplemental Agreement adopted in 1902. So the chart does not carry that limitation in the first line where the original agreement would be controlling. It should be noted that the "for appraised value" condition is a part of every one, three and five year authorization for the rest of the chart.
The appraised value provision was self extinguishing on the expiration of the Choctaw-Chickasaw governments but that has yet to happen. However much of this is rendered moot as a practical matter because apparently no land was allotted until after September 25, 1902. Indeed, Mills in his work at section 85 says very few were issued until after the summer of 1906.
The last paragraph on page 144 is a bit cryptic. It deals with the situation after 1904. It was included in the note, I suppose, by Fitzpatrick as a warning that the Act of 1904, the Act of 1906 and the Act of 1908 removed restrictions as to certain classes so that under provisions of those Acts certain classes could alienate surplus for less than appraised value. See for example the first line of the "By Allot tees" section in the third critical period, 1904-1906). It says that after the Act of 1904 intermarried adult white allottees were completely free of restrictions as to alienation of surplus. We will examine this later.
Notice that prior to 1906, see first paragraph on page 145, the date of the issuance of the patent was assumed to be the date upon which the patent was signed by the Chief of the Choctaws, provided that he signed after the Governor of the Chickasaws. Where the Governor of the Chickasaws signed last, the date of his signature was assumed to be the date of the patent.
After the Act of 1906, the date of recording of the patent seems to be the controlling date because that Act provided that the deeds and patents should be recorded in the office of the Commissioner of the Five Civilized Tribes and when recorded shall convey legal title. (See In re Lands of Five Civilized Tribes cited middle of page 145.)
The pertinent language of that case is set out on page 177, just above the section of the opinion dealing with Freedman Allotments. It may have been noticed that where surplus alone is involved there is never a symbol for the freedmen of the Choctaw- Chickasaw signified by a black dot with a stroke through it on the Choctaw-Chickasaw chart. This is so simply because the Treaty of 1865, which ended the Civil War with the Choctaws- Chickasaws provided that if and when the lands of the Choctaws- Chickasaws were allotted, that the slaves who had been freed by the Emancipation Proclamation should be allotted forty acres only. The Allotment Act adopted thirty-three years later made those forty acres homestead. There was no surplus held by the Choctaw-Chickasaw freedmen.
The next line to be commented upon is on the Choctaw- Chickasaw chart and is line 1 in the "By Heirs" section of the first critical period. While we have already said some things about that line, we need to note that the provision set out in note 12, page 145, says that land shall not be alienable by the allottee or his heirs for less than appraised value.
The court relied upon that provision to lay down the rule that the heirs were bound by restrictions only in those instances where the allottee had been bound at his death. Out of this and some other cases the general principle emerged that unless expressly provided to the contrary, freedom of alienation runs with the land; that is, if the allottee was unrestricted when the land passes to his heirs, the heirs are likewise unrestricted. (See note 13 on page 14.)
The second line in the "By Heirs" section in the Choctaw- Chickasaw chart merely repeats an idea we have seen elsewhere. Where homestead is restricted for the lifetime of the allottee by the Allotment Act, then upon the allottee's death, the homestead is not restricted in the hands of the heirs, see note 14, page
The third line of the "By Heirs" section is again the result of the proposition that if an enrolled Indian died before allotment, then when his administrator selected the enrolled Indian's allotment after his death, the heirs were totally unrestricted, see note 15, page 1947.
Restrictions on the Choctaws-Chickasaws 9-25-02 to 4-21-04
The next time period 9-25-02 to 4-21-04 covers the situation between the time of the Choctaw-Chickasaw Supplemental Agreement and the Act of 1904. This section repeats the four lines of the period in the preceding section, except, as we have mentioned before, the appraised value restriction added by the Supplemental Agreement is added to the line concerning allottees in the 1902 to 1904 period and to the first line of the "By Heirs" section in the 1902 to 1904 period.
Restrictions on the Creeks 5-25-01 to 4-21-04
That brings us to 1904 in regard to the Choctaws-Chickasaws and so we move to the Creek chart on page 113. The first line of that chart introduces a new concept, the idea that land may be alienated by allottees if the Secretary of Interior (or an appropriate underling acting for him) approves the deed. Notice that note 16 on page 149 starts with section 7. of the Creek Allotment Agreement. That section provides that land shall be restricted in the allottee and his heirs at all times until five years from ratification of the Agreement except with approval of the Secretary of Interior.
The second paragraph of note 16 provides for selection of homestead which was not be alienable for twenty-one years. In the third paragraph of that note, it is said that the Creek Supplemental Agreement reaffirmed these provisions except that the five year period of restriction on surplus was moved ahead to run for five years after the effective date of the Supplemental Agreement, rather than for five years from the date of the Original Agreement. If there had been no further legislation the restrictions on surplus would have run out completely except as to minors on August 8, 1907, but there was additional legislation in 1906, as we shall see, which reimposed restrictions on full- blood allottees.
I mentioned the exception as to minors just above. It should be noted that except as to Creek allottees, minority was not a federal restriction prior to 1904. True, a minor could not convey except through a guardian but that was a function of local law rather than federal law. But a Creek allottee who was a minor could not convey even through a guardian. Section 4 of the Original Agreement so provided, see note 16.
An adult allottee could convey surplus prior to the end of the five year period if the Secretary approved his deed. This is the statement made in the first line of the Creek chart, page 115. Line 1 of the "By Heirs" section reflects the same was true of the heirs of allottees, but notice that as to heirs, minority was not a restriction. The Allotment Agreement said that allotments for minors could not be sold during their minority. Nowhere was there such a provision for land inherited by minors.
The second line in the "By Heirs" section introduces a new concept. The "too lates" or "after borns" are the subject of this concept. Who were they? Originally the cut off date for enrollment of the Creeks was May 25, 1901; any Creek born after that date was not to be enrolled and hence would receive no allotment. Those born "too late" to get an allotment were called "too lates" or "after borns". Where a Creek allottee died with a surviving child born after enrollment, the Creek Supplemental Agreement provided, as set out by note 17 on page 150, that:
The homestead of each citizen shall remain after death of the allottee for the use and support of the children born to him after May 25, 1901, but if he have no such issue, then he may dispose of his homestead by will, free from limitation herein imposed, and if this be not done, the land embraced in his homestead shall descend to his heirs, free from such limitations ***.
If there were no "too lates" born to the allottee, the heirs of the allottee could alienate the homestead after the allottees death because, as in the case of other tribes, the homestead was freed of restrictions on the death of the allottee except for the claim of the "too lates".
We have already commented on line 3 of the "By Heirs" section. In all the Five Civilized Tribes, where one who was entitled to an allotment died prior to his selection of his allotment, and thereafter the allotment was selected by his administrator, the heirs of the enrolled but deceased Indian took the deceased's allotment free from restriction on alienation. Note 18, page 151, contains the authority that this proposition is true in the case of the Creeks also.
The next line, the line in the "By Will" section is a bit of a surprise. It permits Creek allottees to alienate their homestead allotment by will if the allottee did not leave a "too late". Notice that no others of the Five Civilized Tribes could make wills disposing of any part of their allotments prior to the Act of 1906. Even Creek adults could devise only their homestead, and only then if there were no "too lates" surviving. Again, we have reached the end of the period before the Act of 1904.