At the very outset of the discussion of this Act, we need to note that the Act of 1908 is perhaps the single most important act in relation to the Five Civilized Tribes, especially in relation to alienation by allottees, In the first place, the Act was intended to establish a single pattern of alienability by the allottees of all and each of the Five Tribes. The Act provided that the allottees should be restricted as prescribed by the Act until April 26, 1931. This was a period of 25 years after the Act of April 26, 1906. The Act of 1928 extended the same restrictions on allottees until 1956 and the Act of 1955 extended those same restrictions for the life of the allottee. There have been no changes since 1955.

By Allottees, Line 1

      Section 1 of the Act of 1908, (which section became effective July 27, 1908) as shown by note 1 on page 227, removed restrictions on all allottees of less than one-half Indian blood including intermarried whites and freedmen. Both homestead and surplus and both adults and minors were unrestricted. This is reflected by line 1 on the chart relating to the Act of 1908 on page 215.

By Allottees, Line 2

      As to the next quantum of Indian blood, that is one-half or more but less than three-fourths, all lands except homestead, that is surplus, were freed of restrictions, see line 2.

      To say this another way, the homestead of allottees of one-half or more Indian blood and all of the allotted land of allottees of three-quarters or more including full-bloods were restricted.

By Allottees, Lines 3 and 4

      But as indicated in lines 3 and 4, the Secretary could remove these restrictions.

By Allottees, Line 5

      Line 5 in the "By Allottee" section of the chart on 215 is a very peculiar line indeed. It handles the differences in restrictions between the tribes which remained after the attempts in the Acts of 1904, 1906 and 1908 to make the restrictions uniform among the Five Civilized Tribes. Note 2 on page 228 contains the authority for this line. That note indicates that the United States Supreme Court ruled that Congress had not intended to reimpose restriction by the Act of 1908.

      If an Indian allottee were completely free of restrictions on July 27, 1908, his land remained free after that date. Notice that the allottee had to have been free of all restrictions including minority. If he were a minor on that date he would remain restricted unless otherwise unrestricted. This ruling did not, however, effect a large number of interests. The only interests which were free of restriction on July 27, 1908 which would have been restricted except for this United States Supreme Court decision were the surplus allotments of some adult allottees of three-fourths or more but-less than full-blood.

      For reasons set out in note 2 page 228, these interests which remained unrestricted were the surplus of the Cherokees where the patent had been issued for more than five years, the surplus of the Choctaws-Chickasaws as to one-fourth if the patent had been issued for one year on the critical date, July 27, 1908, one-half if the patent had been issued for three years by that date and the entire surplus if the patent had been issued for five years by that date. In each case the sale had to be for the appraised value of the land.

      In the case of the Creeks, the adults of three-quarters but less than full-blood were completely unrestricted because five years had elapsed from August 8, 1902 the date of the proclamation of the Creek Supplemental Agreement, see note 16 on page 149.

      I will refer to freedom from restrictions under this note as "note 2 restrictions". That completes our consideration of the restrictions of allottees under the Act of 1908.

By Heirs

      Now we move to examine the "By Heirs" section of the 1908 chart, page 215. It should be noted that the provisions of the Act of 1908 for other than allottees became effective upon approval of the Act by the President while the section pertaining to allottees, section 1, because of express provision to that effect did not become effective until 60 days later.

      The first provision of section 9, see page 229, looks like operation "new broom". It starts that the death of any allottee shall operate to remove all restrictions on his land, but exceptions and provisions that follow leave the situation quite complex.

      First let us exam the whole of the language in the first column of the "By Heirs" section. It should be noted as used on this chart, "heir," includes heirs of heirs and even heirs of more remote degree, see note 3a on 230. Further it also includes heirs of grantees under Carney-Lacher deeds. This is the first time that term has popped up in my discussion and we need to take a few minutes to examine what and why a Carney-Lacher deed was. Beginning on the very bottom of page 241, note 15 explains the Secretary had money on hand either from oil and gas operations on restricted land or the proceeds of sale of restricted land. The Secretary frequently invested this money for the restricted Indian in land. In order to protect this land from being lost to the avarice of whites, the Secretary had the deed to the Indian contain language restricting the land until the Act of 1908 was expected to run out, that is April 26, 1931. It was held by the U.S. Supreme Court that these restrictions were valid as to the grantees in the deeds, see note 15, page 241. Later it was held that full-blood heirs of Carney-Lacher deed holders were the equivalent of full-blood heirs of allottees, see the Ward Case cited in the second new paragraph on page 242, and were therefore restricted under the Act of 1908.

      Language in Mills' Supplement tends to contradict this stand but as pointed out in the note, Gohlston and I -both believe that Mills meant to say that devisees of Carney-Lacher grantees were not restricted until Act of 1926 rather than the heirs of Carney-Lacher deed holders were not restricted until 1926, see note 15.

      Let us go back to the Act of 1908, see note 3 page 229. After first saying that all heirs are unrestricted, the first provision in the statute excepts the conveyances of full-blooded heirs and requires their deeds to be approved by the court having jurisdiction over the settlement of the full-blood's ancestor's estate.

      This was followed by a proviso for the benefit of the "too lates" or "after borns". Children born after March 4, 1906 received no allotment; hence, they are referred to as "too lates" or "after borns". Congress decided to give them preferential treatment over the other heirs or devisees of their parent if the parent were of one-half or more Indian blood. This idea was of course first used for a period of time in relation to the Creeks.

By Heirs, Line 1

      Now how do these various provisions effect the charts? Look at line 1 in the "By Heirs" section. That line says that heirs, adults or minors, of less than one-half Indian blood may alienate the ancestor's homestead unconditionally. But notice the exception stated in the footnote. The footnote says that line 1 is not applicable where the ancestor of the heir in question was one-half or more Indian and left a child surviving born after March 4, 1906. If the exception is true, the homestead of the ancestor is to be used for the support of the "too late" until he dies or until April 26, 1931, Act of 1908, S 9, see note, page 229.

      It should also be understood that the Secretary could remove the restriction on the homestead and that would wipe out the provision for the "after born".

By Heirs, Lines 2 and 3

      The second line relates to surplus so that line is not affected by the provision for the "after borns." It is affected only by the exception as to full-blood heirs having to have their deeds to surplus approved as indicated in line 3.

By Heirs, Line 4

      Line 4 returns our attention to homestead. It says where there were no "too lates" or where the allottee was less than a half-blood, any heir except a full-blood, could alienate unconditionally.

By Heirs, Line 5

      Line 5 covers the situation where there had been a "too late" born to an allottee of one-half or more Indian blood but the "too late" dies. Then the heirs, even if they are full-bloods may alienate without restriction. Compare that to line 7, the next to last line in the section. If the full-blood heir's ancestor had never had a "too late" then the full-blood heir could not convey homestead without the approval of the county court. But if the ancestor had had a "too late" and the "too late" died the full-blood heir was free of restriction as to homestead. Why -this anomaly? Simply because of the precise language of the statute, see Note 5, page 232.

      It is this kind of "fluky" situation which adds to the aggravation of many of the critics of Indian Land Law.

      Still referring to line 5, the chart could have correctly been filled in all the way across, but to do so would have been repetitious of line 1. I did not therefore change Gohlston. In the shape it is in the chart did not misrepresent. Let me emphasize however that as to full-blood heirs in the line 5 entry, the factor that the ancestor has had a "too late" who subsequently died is absolutely essential for the accuracy of the chart.

By Heirs, Line 6

      Line 6 is likewise worthy of comment. The line illustrates that in dealing with the provision for the protection of the "too lates", it is quantum of the blood of the ancestor allottee which is the material consideration rather than the quantum of the blood of the heir. The line says that if the Secretary does not remove restrictions, regardless of the quantum of the blood of the heir, the heir was restricted as to the homestead of the ancestor, if the ancestor was one-half or more and did indeed leave a "too late". There is a case cited at the top of page 231 in which the heir who was restricted was an intermarried white and her deed of her inherited interest from her husband made prior to the April 26, 1931 and during the lifetime of the "too late" was held to be void. Considering the purpose of the "too late" provision one would suppose that it would have been enough to say that the heir's grantee of the homestead took subject to the interest of the "too late", the right to the income from the homestead. But it was held that the white heir had no alienable interest during the existence of the "too late's" special estate. Again, the authority for this is set out in Note 3b. on pages 230-231.

By Heirs, Line 7

      This line covers the situation of the full-blood heir where no surviving child was born to the allottee after March 4, 1906. There the only restriction on the full-blood heir was his full bloodedness and the county court could approve his deed.

By Heirs, Line 8

      The last line is one which has caused me much anxiety. The proposition of the line is simply that the heir is not restricted if the ancestor was not restricted under the Act of 1908. The line as constituted shows this as applicable to Indian heirs of half or more up to and including full. The statement would also be true if all the quanta spaces were filled in. The fact that the more than one-half and the more than three-fourths is filled in is not really remarkable and could be explained on the basis that unless there was something to the contrary alienability runs with the land. As far as I am concerned the only troublesome part is the inclusion of full-blooded heirs. The Act of 1908 says that full-blooded heirs are restricted and must have their deeds approved by the county court. The question is does this apply to all full-blood heirs or only the full-blood heirs who inherited from a restricted ancestor. This is the problem discussed at great length in note 6 on page 232. I am not going to rehash the discussion in that lengthy note except to say that there is discussed therein a Tenth Circuit case. In that case a full-blood mother inherited from a half-blood son.

      Section 1 of the Act of 1908 had removed restrictions on half-blood allottees as to surplus. The case said that since the son was not restricted as to his surplus (see line 2 of the allottees section on the 1908 chart) his heir even though a full-blood was not restricted as to that surplus. It is said that section 9 of the Act of 1908 which spells out the restrictions on heirs did not reimpose restrictions on heirs when the land was already alienable in the hands of the ancestor under the 1908 Act. This is the old principle of alienability running with the land.

By Devisees

      Now let us move to the section on alienability by devisees.

      First notice that at the very top of the chart, it is indicated that the chart is applicable only until April 12, 1926. Notice that the limit is stated again in the very first column in the section on "By Devisees". Gohlston is making doubly sure that the user is warned that the Act of 1926 changes things radically as to devisees.

      But, back to the state of the law until 1926. It should be recalled that except as to Creeks, a restriction against alienation was a restriction against making wills as well as inter vivos conveyances. Until the Act of 1906, except for the Creeks, there was no authorization to devise land where the land was otherwise restricted. It will be recalled that the Act of 1906 permitted all competent allottees or heirs freely to devise their land except full-bloods who, if they disinherited a spouse, child, or parent were required to have the will approved. This set the stage for there being such a thing as devisees. There was nothing in the Acts of 1906 or 1908 which then placed restrictions of any sort on devisees as a class.

By Devisees, Line 1

      It is clear therefore that as to surplus, devisees could freely alienate and line 1 of the devisee' s section so indicates and regardless of the quantum of blood.

By Devisees, Line 2

      The second provision of section 9 of the Act of 1908, see note 3, page 229, as indicated above, imposed a restriction on the homestead of an allottee of one-half or more Indian blood where he left a surviving "too late". But only where there was a "too late" was homestead of an allottee restricted in the hands of the allottee's devisee. Line 2 reflects then the total alienability of homestead in the hands of a devisee in the absence of a "too late".

By Devisees, Line 3

      This line is similar to line 4 in the "By Heirs" section above and reflects the complete freedom of alienation of a devisee of an allottee whose "too late" preceded the allottee in death.

By Devisees, Line 4

      This line reflects the resulting alienability by a devisee of the allottee's homestead even where there was a "too late" where the Secretary removes restrictions as he was authorized to do in section 9 of the Act of 1908, see note 3.

By Will

      The chart of 1908 examines the power of allottees and heirs to devise land. Notice that the power to devise is the same for allottees and heirs. This is so because the Act of 1906 is still the basic provision covering wills and it begins "Every person" so it is applicable to heirs as well as allottees.

By Will, Lines 1 and 3

      I believe that if I had been doing these chart from scratch, I would have combined lines 1 and 3 of this "By Will" section. Together these lines say that except for full-bloods (who are covered in lines 4-9) where there is no "too late" born to an allottee of one-half or more Indian blood, all Indian allottees and their heirs may freely devise homestead.

By Will, Line 2

      This line says that surplus is not subject to the "too late" provision. Surplus is restricted against devise only in the hands of a full-blood because the Act of 1906 requires their wills to be approved if the will disinherits a spouse, child or parent

By Will, Lines 4 and 5

      These lines deal with a devise by a full-blood of surplus. The "too late" provision does not apply to surplus. Therefore we are dealing only with the full-blood restriction on devises. That restriction required, where a full-blood's will devises land and disinherits a parent, spouse, or child, the acknowledgement before and the approval of a judge of the United States Court for the Indian Territory or a United States Commissioner, under the Act of 1906. The Act of 1908 provided for acknowledgment and approval by a judge of the state of Oklahoma, see note 9, page 237.

By Will, Lines 6, 7, 8, and 9

      These lines deal with devises of full-bloods but with devises of homestead rather than surplus. We have here the full-blood restriction and the "too late" provision both potentially involved.

      Line 6 says if no parent, spouse or child is disinherited and there is no "too late" there is no requirement of approval from anybody.

      Line 7 says where parent, wife or child is disinherited but there is no "too late", the county court, Federal Judge for Indian Territory or a U.S. Commissioner may acknowledge and approve the will. Also under these circumstances a full-blood's will will be valid if the Secretary had removed restrictions.

      Line 8 says if there is no disinheritance of a spouse, child or parent but there is a "too late" the will is good only if the Secretary has removed restrictions.

      Line 9 provides that if there is disinheritance of a parent, spouse or child and there is also a "too late", only if Secretary removes restriction will the will be good.

By Will, Line 10

      Line 10 takes us back again to the note 2 restrictions. These involving the Creek three-quarter-bloods, the Choctaw-Chickasaw one, three and five year provisions as to surplus alienated for appraised value, and the Cherokees where the patent had been issued five years, see note 2, page 228.

      But in light of the provisions expressed in line 2 of this section, it would seem that line 10 is just an additional basis for alienability where it is applicable.