RESTRICTIONS ON ALLOTMENTS
TO THE FIVE CIVILIZED TRIBES
FROM THE ACT OF 1933 UNTIL THE ACT OF 1947
First as to the section on allottees, the section, with the exception of the citations to notes, is identical to the section on the previous chart. In the first four lines, the pertinent note is note 21 on page 245. This note merely indicates that the Acts of 1933 and 1945 whose effect is reflected by this chart made no changes in the Act of 1908 as extended by the Act of 1928. Reference is made again to note 1 which summarizes the law as to allottees from 1908 down to the current time.
In the last line of the "By Allottee" section, note 22 on page 245 reports that the Acts of 1933 and 1945 had no effect on the law applicable to allottees.
By Heirs and Devisees, Lines 1 and 2
In this next section on the chart relating to heirs, direct and remote, devisees of allottees and so forth, there is considerable change from the prior law, and there was much confusion resulting from the Act of 1933.
First compare the section as a whole with the same section on the previous chart on page 219. In the previous chart the only heirs or devisees who were restricted were full-bloods. See the final line of that section on page 219. Notice the first line of the section on heirs and devisees on page 221. It is only the less than half-bloods who are unconditionally unrestricted. This was the result of the Act of 1933, see note 27 at bottom of page 249.
It should be noted that in these restrictions the language used is acquired by inheritance, devise, or gift". It is not "devise of an allottee". It would seem that devisees of heirs or devisees as well as devisees of allottees were included.
One of several important questions in construing this Act was what did Congress mean by a "restricted Indian". As set out in note 24 on page 246, for reasons therein recited, it was decided that "restricted Indian" meant an Indian of one-half or more Indian blood.
Now there has been a great debate on whether land or Indians are restricted. The answer it seems to me is either "both" or "neither". In the first place no Indian of less than one-half Indian blood including intermarried whites and freedmen are restricted as to any land regardless of how or when acquired. On the other hand all those of one-half or more Indian blood are not restricted as to all land. It all depends on how and when the Indian of one-half or more Indian blood acquired the land.
The second line of the section says that even if the heir or devisee was a restricted Indian, that is of one-half or more Indian blood, he is not restricted as to his inherited or devised land if the land was not restricted in the hands of his ancestor from whom he inherited it or not restricted in the hands of the testator who devised it to him. This statement seems to be patently true but the truth of the matter is, it took an act of Congress to get that result. Note 25 on page 248 tells us the story. The Act of 1933 said: No conveyance of any interest in land of any full-blood Indian heir shall be valid unless approved by the county court. In Murray v. Ned, cited in note 25, page 248, the ancestor had bought the land in question with unrestricted funds so there is no question but what the land was freely alienable in the ancestor's hands. But the statute said interest in land of full-blood heir. The Tenth Circuit Court said "any" means any, even if ancestor was not restricted. The U.S. Supreme Court denied certiorari.
The Act of 1945 cured this situation, not only as to conveyance by restricted Indians prior to the Act of 1945 but as to conveyances subsequent to the Act. Notice that each of the subsequent charts carries a line identical to line 2 of the "By Heirs" section.
By Heirs and Devisees, Line 3
Line 3 of the "By Heirs" section is the function of the reaction of Congress to the infamous Kirby v. Parker case. This case and the confusion from which it resulted are discussed at length in note 26 on page 248 at page 249. The Act of 1933 imposed restrictions on heirs and devisees of one-half or more Indian blood. Previously only full-blood heirs and devisees were restricted. The full-blood heirs' and devisees' deeds had to be approved by the county court of the county having jurisdiction of the estate of the ancestor or testator. Refer back to note 11 on page 239.
The Act of 1933, although it restricted heirs and devisees of one-half or more Indian blood, did not provide who could - - approve their deeds. Prior law had provided expressly for removal of restrictions only. Only full-blood heirs were previously restricted. Perhaps less than full-blood heirs and devisees could have their deeds approved under the Act of 1926, that is by the county court of the county having jurisdiction over the estate of the less than full-blood heir's ancestor or the estate of the less than full-blood devisee's testator.
But the net result of this mess was that of all the devisees and heirs, recipients of gifts of land, and grantees of land purchased with restricted funds, the law was clear as to only one group, the full-blood heirs and devisees. Their deeds could be approved by the county court.
Before I go on, a word about the meaning of lands acquired by gift in this statute. This situation was apparently created by the Secretary permitting restricted Indians to give deeds approved by the Secretary to their children; see note 23, pages 245-246, wherein Semple S 23 is quoted. I can find no clear cut authority as to the meaning of "purchase with restricted funds, by or for" in this statute, but this clearly would include lands held under Carney-Lacher deeds. Query as to lands, if any, purchased with restricted funds but conveyed to the Indian by a deed without the language restraining alienation. Semple in S 67 at least implifies that there were no such cases or he implies, if there were, one not charged with knowledge that the land was purchased with restricted funds would not be embarrassed by the fact that the- lands had, indeed, been so purchased.
By Heirs and Devisees, Line 3
But notice line 3. It says that any heirs, devisees, donees or purchasers with restricted funds of less than full-blood as well as heirs and allottees and so forth of full-blood could alienate if their deed was approved by the county court or by the Secretary. How did this come about. This is detailed in note 26, pages 248-249. Therein Kirby v. Parker is cited. It concerned the validity of a deed by a seven-eighths-blood heir whose deed was not approved by anyone. Therein the court said that it was sufficient to hold that his deed was void and that it was not necessary to speculate how he might have made a valid deed. This added fuel to the fire. After the passage of the 1933 Act, the Secretary and county courts had both been approving deeds. After the decision in Kirby v. Parker the cry went up and Congress passed the Act of 1947. This Act validated all deeds, made between the effective date of the Act of 1933 and the effective date of the Act of 1947 whether the land was acquired by inheritance or devise, which were approved by either a county court or by the Secretary. But if the conveyance were attacked on a basis other than approval, the conveyance was not affected by the Act. This Act is further discussed in the previously mentioned "Miscellany" in the section labeled "Curative Acts" beginning on page 332.
Before I leave this matter completely, I want to point to another problem involved in the provisions of the Act of 1933 concerning full-blood heirs and devisees. There was some thought after this act that full-blood devisees were no longer restricted except where restricted under the Act of 1933; that is as to land which was tax-exempt and where the entire interest was all in the hands of restricted heirs and devisees.
Because section 8 of the Act of 1933 speaks of full-blood heirs having their deeds approved by the county court and does not mention full-blood devisees, some, including Semple, thought that full-blood devisees were restricted thereafter only where the land was tax-exempt, see note 16a., pages 243-244.
He, Semple, cites one case from the Eastern District of Oklahoma so holding but he also cites another from the Northern District holding that full-blood devisees were restricted as to non-tax-exempt land as well. The question as far as I can find has never reached the Circuit Court of Appeals. Gohlston had taken the conservative position on the chart that full-blood devisees remained restricted as to non-tax-exempt land. Under the circumstances I concur with that decision; it is better to hold a title to be bad and refuse to perform the contract and lose in a specific performance suit than it is to hold the title to be good and lose in an action for ejectment.
By Heirs and Devisees, Lines 4, 5 and 6
Now to move to the last three lines of the second section of the chart on 221, lines 4, 5 and 6.
First notice that full-blood heirs and devisees are not included in the statements in these three lines. The reason they are not included is that the Act of 1933 did not lift the pre-1933 restrictions on the full-bloods and these last three lines, lines 4, 5 and 6, relate to the additional restrictions imposed by the Act of 1933. Each of these lines involve the absence of a condition precedent to the applicability of the restrictions on heirs, devisees and so forth in the Act of 1933. The first two, (1) tax-exempt and restricted and (2) not all of the heirs or devisees being one-half or more Indian blood are expressed requirements of the Act. See for a discussion of the requirement, note 27 on pages 249-250. This material points out that tax-exempt and restricted land would include only land in hands of allottees of one-half or greater Indian blood whose restrictions could be removed by Secretary (and of course Carney-Lacher lands) and land in hands of heirs and devisees of full Indian blood.
Under the Act of 1928, tax-exempt land had to be selected from these kinds of land. See the section of "Miscellany" dealing with "State Ad Valorem Taxation" beginning on page 319.
There is a problem involved in "how do you know if land was tax-exempt". The answer to this question has to be, if you cannot establish that it was not tax-exempt, you must assume it was and hence restricted.
There is a provision concerning tax-exemption in the Act of 1947, see (b) at the top of page 300. Is this helpful in our problem? I dont think so. We are not concerned about "tax-exempt" after 1949. Under this chart we are worried was it tax-exempt between January 27, 1933 and August 4, 1947. Notice that the Act of 1947 repealed the section of the Act of 1933 about which we are speaking and replaced it with a provision restricting heirs and devisees of one-half or more Indian blood regardless of tax-exempt or taxable and regardless of whether the entire interest was inherited by or devised to Indians one-half or more Indian blood.
I see now, as I had never seen before the necessity of developing criteria or rules to determine whether during the period of 1933 to 1947 what lands were subject to tax and which were not. I say this is needed because I am clearly unwilling to say that the land was not tax-exempt simply because there has not been filed a tax-exemption certificate as provided for by the Act of 1928 prior to August 4, 1949. What I am saying is simply this: I can find nothing that validates a deed given before 1947 to land which was in fact tax-exempt, simply because no certificate was filed showing that it was in fact tax-exempt at the time the conveyance was made.
By Heirs and Devisees, Line 6
One more comment about this section, and that about line 6, must be made. Line 6 is not clearly accurate without the footnote at the bottom of the chart.
It is generally agreed that the Act of 1933 was not retroactive. That much is clear from the Margold Opinion cited in note 28, page 251, as well as from other authority cited in that note.
Therefore, if we have before us a deed of either a one-half or more but less than three-fourths or three-fourths or more but less than full-blood heir or devisee, that deed is good if that heir or devisee held immediately under an allottee who died prior to 1933. That is so because the heir or devisee would have been free of restriction because prior to 1933 only full-blood heirs or devisees were restricted. But suppose that the allottee of the land in question died prior to January 27, 1933 and the land passed to that allottee's full-blood heir or devisee before 1933 and that full-blood heir or devisee died after the effective date of the Act of 1933 and then it passed to an heir or devisee of one-half or more Indian blood. Line 6 without the footnote would be applicable but the land would not have at anytime been free of restriction. The rationale of Line 6 would not be satisfied and I submit that line 6 is too broadly stated except as modified on the revised chart.
I make only one comment on the next section, the "By Will" section on page 221. It is identical with the "By Will" section on the previous chart except the power of the U.S. Judge or Commissioner is omitted on the chart. Under examination I do not believe that that omission was intentional and the authority of the U.S. officers continues. I make the same comment in relation to charts on 223 and 225.
By Grantees Under Carney-Lacher Deeds
The last section, "By Grantees" under Carney-Lacher deeds is identical with the same section of the chart on 219.