The title examiner's problem in relation to land allotted under the General Allotment Act is a much simpler matter than in relation to the land of the Five Civilized Tribes or of the Osage.

      The basic techniques of restricting alienation accounts for a goodly part of the difference. The General Allotment Act respects fundamental concepts of property where the basic concept in relation to the Five Civilized Tribes and the Osage flies in the face of those same general principals. Parliament in 1290 in Quia Emptores had put the cap stone on the principle that those who owned in fee simple could freely alienate their land. Subsequently doctrines developed in what comes to be known as equity establish the institution known as a trust. And equity further permitted restraints on alienation of the beneficiary's interest where the legal title was held by a trustee. In the case of the Five Civilized Tribes and the Osage, legal title in fee simply was placed in the allotted Indian and contrary to the teachings of the history of law various allottees, heirs, and devisees were restrained from alienating their land. On the other hand in the case of the General Allotment Indians, the theory is that legal title is kept by the United States government in trust for the allotted Indian. The Indian's equitable interest is restrained against alienation. This is of course consistent with the law applicable to trusts generally. The concept of spendthrift trusts and the inalienability of the interest of the beneficiaries is well known and understood by the legal community.

      In the second place, the number of variables in relation to the General Allotment Indians is considerably smaller. First, in spite of what appears on the chart in one of the tables, there was no classification of homestead and surplus in the General Allotment Act scheme of things. Further in relation to the Five Civilized Tribes, there were, you will recall, six classes of Indianness, or rather four classes of Indians, intermarried whites and blacks, the so called freedmen.

      In relation to the General Allotment Indians one is or is not of Indian blood. And while the litigation on the matter is scanty indeed, when land allotted to an Indian under the General Allotment Act comes into the hands of one not of Indian blood by descent or devise, while the legal title remains in the United States as trustee, the trust is a dry trust leaving only the ministerial duty of issuing a fee patent and the land becomes subject to taxation. See the Paukne case cited in the second paragraph on page 338. The Court relied on a case holding that when Osage land came into the hands of an heir not of Indian blood the land became alienable. That case, the Levindale LeadCo. case is set out at length on page 495.

      Semple is of the opinion, see section 783, that the land would become alienable and taxable on the death of the ancestor or testator of the white rather than upon the date when the Secretary finds the land or an interest therein to have passed to the white.

      Problem; how does the examiner determine whether the alleged white is indeed white? Determination of the Secretary in the probate process? Suit for specific performance? Quiet title action? In the Paukne case, the non-Indian wife brought suit in Oklahoma Courts to enjoin the tax sale of her interest and the further levy of property taxes. The state courts held that it was immaterial whether the wife was Indian or not because legal title was still in the United States. The United States Supreme Court held that if she was non-Indian, the land was taxable even though legal title were still in the United States and reversed and remanded for proceedings not inconsistent with its opinion.

      I dwell on this case as background for the final reason I offer for the General Allotment Indian Titles being relatively simple. This final reason takes the form of a generalization which is: in the General Allotment Indians, land never becomes alienable without some act of the Secretary except where land has come into the hands of a non-Indian heir or devisee. If the abstract does not show this act of the Secretary or a determination made by the Secretary or some court that the heir is not Indian, presume and contend that the title is unmarketable.

      Let's turn to the charts beginning on page 339. There are only three pages of them. First notice that the structures of the tables is radically different than the Five Civilized Tribes and the Osage. The major divisions in those charts are time periods. Here the major divisions are the function of the kind of alienation and or the status of the alienor or both.

      However, the first division makes a liar out of me. The first division contains a single statement that from the effective date of the General Allotment Act until May 26, 1902, alienation by allottee or their heirs was simply impossible. The controlling note is the first on page 347. In the General Allotment Act S 5, set out in the note, it was provided that after the Secretary had approved the allotments that he should issue patents which are referred to as trust patents because of the language of the statute and the language included in the patent.

      In addition the section set out provides:
1. Extension of period beyond 25 years by the President. The last sentence on the page refers you to 25 CFR which lists the extension of the trust period for the various tribes of Indians. As far as I can find in Oklahoma only the Kaws are completely unrestricted.
2. A declaration that any conveyance or contract made during the period is void.
3. Applies the law of descent and partition of Kansas to Indians under General Allotment Act in the Indian Territory and the law of descent and partition of the state on territory where the lands are situated as to other Indians not in the Indian Territory.

Second Section on the Chart

      Semple S 786, regards this as the basic provision for alienation by heirs. First notice that in this section there are separate restrictions on surplus and homestead because the Act under consideration, see note 2 on page 348 so provides. The truth of the matter is that in the General Allotment Act no provision was made for the designation of homestead. If you were to check all the other charts, every entry carries the symbol "all" in this column, so this is the last you will hear about General Allotment homestead or General Allotment surplus. There is only a General Allotment allotment.

      The section of the U.S. Code, 25 U.S.C. S 379, set out on page 348 provides that adult heirs of an allottee may sell and convey surplus land with approval of Secretary.

      In the case of a minor heir, he must have a court appointed guardian and the guardian must be ordered by the court to sell the land and the Secretary must approve the conveyance. Nothing more is required.

      There are several cases cited from South Dakota and Minnesota holding that where the Secretary approves a conveyance, title is taken out of the United States and put in the grantee and the land becomes subject to the jurisdiction of the state courts. If the grantor was not the true heir, the grantee then holds in trust for the true heir.

      Notice under this section, there was no provision for the determination of heirship. The United States Supreme Court in the Egan case, cited at top of page 349 and set out at length on 381, held that a determination of heirship was not necessary for the heir to be able to make marketable title. As indicated in the first two paragraphs on page 349 federal courts bent "hell" out of a couple statutes and upon those warped constructions did determine heirs. In a 1906 Act, not applicable to Indian Territory, the Secretary was authorized to cancel a trust patent on the death of an allottee within the restricted period and to issue a new patent to his heirs after the Secretary's determination who they were.

Third Section on the Chart

      This brings us to the third section of the chart whose main topic is Act of 1910. The Act authorizes the Secretary to determine heirship and declares that the Secretary's decision shall be final and conclusive.

      It authorizes the Secretary to issue a fee patent to competent heirs and to sell the land if one or more heirs are incompetent.

      The Secretary is authorized to partition if land is suitable for partition and if that partition is advantageous to the heirs.

      The shares of competent heirs are to be conveyed to them by fee patent and the proceeds of sale belonging to incompetent heirs are to be held in trust by the Secretary.

      Notice that this Act when passed was made inapplicable to Oklahoma.

      However, in 1913, see note 4 on page 351, the Act was amended to make it applicable to Oklahoma.

      In 1916, the law discussed in this section was further amended. It is now found 25 U.S.C. SS 372 and 378. Some of the differences between the 1913 legislation and the 1916 legislation are discussed in notes 3, 4, and 5, pages 349-353.

      Let me make it clear that at least under the 1916 legislation, the Secretary is authorized to issue fee patents to competent heirs. In section 372, the issuance of fee patents seems to be tied to the determination of heirs and partition. It seems to me that in section 378, there is authority for partition and issuance of fee patents to competent heirs at a time subsequent to the determination of heirs.

      In note 3, pages 349-350, which deals with partition, there is a case cited, the Bellm case, which holds that the partition authorized by this statute did not authorize a partition by sale which could result in alienation to non-Indians. But it authorized partition in kind among heirs when the heirs could not get along as tenants in common.

      But alienation is possible under this section, and note that a white spouse of an Indian could acquire by inheritance an undivided interest. This undivided interest would be alienable. The section providing for partition in kind, becomes a source of valid title without the intervention of the Secretary doing other than partitioning in kind. Or, as far as that goes, the white heir could alienate an undivided interest.

      The opinion in the Bellm case assumes that an appropriate court could have partitioned in kind but could not partition by sale. The court involved was the court for the Northern District of Indian Territory. The case was a collateral attack to cancel a deed issued pursuant to the sale decreed by the court. As to this point the court said relying on Goodrum v. Buffalo, 162 Fed 817, 89 C.C.A. 525, (8th Cir. 1908) that a court order could lend no validity to the transaction.

      In Chema v. Fodder, cited page 353 and reported at length on page 385, the non-Indian heir claimed that the Secretary could not partition her interest under the statutes authorizing the Secretary to partition among the heirs of an allottee so she brought suit to partition in Federal District Court. Judge Daugherty held that because some of the heirs were Indian and still restricted that the United States was an indispensable party and since the United States had not authorized a suit to partition, that the suit would be dismissed. The Chema court noted that the court in Bailess v. Paukune, said that the Secretary could issue the non-Indian a fee patent in severalty as to her share or could even issue a fee patent to her undivided interest. It said the last solution was no solution at all, pages 386-387.


      The Bellm case holds that although the law of Kansas as to partition had been made applicable to the General Allotment Indians in the Indian Territory, that the intent of imposing a trust on lands for twenty-five years showed that partition could be only partition in kind.

      It was said in Chema v. Fodder that the Unites States is necessary party to partition General Allotment land. Since there must be Congressional approval for United States to be sued, there could be no partitions by courts; only the Secretary is authorized to partition.

      Title 25 U.S.C. S 372 authorizes Secretary to partition and may do so by sale.

      Title 25 U.S.C. 5 378 authorizes partition but language is consonant with partition in kind; there is no mention of sale.

      But notice note 14 on page 364 and the Sampson case discussed therein.

Fourth Section on the Chart

      The next section is at the top of page 343. The legislation there under consideration was necessitated by the use of a second technique of restricting alienation by the General Allotment Indians. While by far the most used technique was to issue the Indian only a trust patent, in several cases a fee patent containing restrictions against alienation were issued.

      In the third proviso of Section 372 discussed above, the Secretary was authorized to issue certificate of competency upon application to the Indian or his heirs. The issuance of the certificate removed all restriction in the deed. When this legislation was first adopted the proviso was made applicable to Oklahoma. Upon amendment in 1913, the exclusion was limited to the Five Civilized Tribes and the Osage. It became applicable in Oklahoma to General Allotment Indians whose patents contained restrictions rather than being trust patents. In Oklahoma apparently the Kaws or Kansas Indians had such restrictions instead of trust patents, see note 6 beginning on page 353. It should be noted that it is reported in note 6 that the restrictions on Kaw surplus expired on March 3, 1948 after the restrictions on homestead expired on December 31, 1947.

Fifth Section on the Chart

      Move on to the section on Wills. First notice that in this section, wills became available to restricted allottees of 21 years under the General Allotment Act outside of Oklahoma. During this period, the will had to be approved by Commissioner of Indian Affairs and Secretary of Interior, see note 7. This state of affairs continued until 1913 when the provision was amended.

      Before 1913, 25 U.S.C. 373 applied only to allottees who had reached 21. But in 1913 it was expanded to include any person, presumable heirs and devisees as well having any right, title or interest. The Secretary alone had the power of approval which he could exercise either before or after the death of a testator. Further, if after approval, it is discovered that there has been fraud in execution or procurement of will, the Secretary has one year after death of testator to cancel will and the property will pass by inheritance. The devisee could not make good title until one year after death of the testator.

      The death of testator and approval of will does not remove restrictions but the Secretary may remove restrictions or cause a fee patent to issue to the devisee. Only the Five Civilized Tribes and the Osage were exempted from the Act.

      A recent decision, Tooanippa v. Hickle, cited in note 8 and set out at length at 389, holds first that the Secretary's approval or disapproval is subject to judicial review, contrary to that which is the law in determining heirs where the Secretary's word is final. I suggest that only a literal application of the statutes permits such a decision. That decision certainly makes Congress look whimsical. Determination of heirs is a question of fact and law and is truly a legal matter like those usually appealable.

      The approval or not of a will seems to me to have a lot of policy and discretion involved; yet that is reviewable. Further the Court greatly limits the discretion of the Secretary's authority to disapprove a will. I have doubts about the soundness of this decision in this respect as well.

      Personal observation: the real reason behind the Secretary's disapproval in this case does not appear from the opinion. The real basis was a substantial doubt that the testator had any intention of letting the will ever take effect. His favorite indoor and outdoor sport was making wills in favor of whomever, at the moment, was supplying him with creature comforts including his favorite thirst quenchers. These facts were known to the BIA personnel who acted for the Secretary in disapproving the will. These facts were not a part of the record and not before the courts.

Sixth Section on the Chart

      As to this section, I would suggest to you that the statutory authority is set out in note 9 on page 355, 25 U.S.C. 404. Notice that the fourth line excepts the lands, in Oklahoma and the States of Minnesota and South Dakota whereas in the last proviso only Minnesota and South Dakota are exempted.

      To be on the safe side, I took the position on chart that the statute is not applicable to Oklahoma.

Seventh Section on the Chart

      The next section deals with sales by the Secretary of non-competent allottees or heirs. In United States v. Nez Pence County, cited in note 10 on page 357, the Court ruled that non-competents included not only those who lack capacity because of nonage, imbecility or insanity but also those who had only a trust patent or a patent containing restrictions against alienation. The Bacher v. Patencio case, cited on page 357, upheld the Area Director when he approved the sale but subsequently refused to issue the patent because the Indian for whom a conservator had been appointed decided he wanted to keep the land.

Eighth Section on the Chart

      Perhaps this is the most important provision as far as alienation by allottees goes. Let us look at the statute in note 11 on page 358, particularly the first proviso.

      The consequences of the issuance of the fee patent authorized therein is included in the notes in the bottom half of page 359 and on page 360.

      The Dillon case is particularly significant because it holds that where a fee patent is issued, even though issued because of fraud, the issuance of the patent and the following deed of the allottee could not be set aside. The action was barred by the state statute of limitations. The Court quoted the first part of 25 U.S.C 349 set out on page 358.

      In the case which runs over from page 359 to page 360, a fee patent was issued without the Indian having applied. The court held that the United States was not relieved of its trust duties and that under the circumstance the land did not become subject to state taxation.

      The Chatterton case, on page 360, held that where the allottee did apply for a patent, its issuance could be attacked only directly and not collaterally.

      The Dickson case on the same page is one of those Chinese puzzles I dearly love. The patent had been issued before the allottee had reached his majority under state law. He conveyed to A before he reached 21. Then after reaching 21 he conveyed to B. The U.S. Supreme Court held that B prevailed. The Court reasoned that although the issuance of the fee patent did determine his age as far as-his right to have the patent, the issue of the patent did not determine the effect of his deed to A. After the issuance of the patent, state law controlled and under state law he was not 21 even if the issuance of the patent determined that he was, so his deed to A was voidable and the subsequent conveyance to B was tantamount to a disaffirmance of his prior deed to A.

Ninth Section on the Chart

      The next section is, with a reading of note 12, self explanatory but I do want to make this point even though the statute says it clearly.

      That point is that under applicable statute 25 U.S.C. S 408 set out on page 360, the duty of the Secretary when he has accepted a surrender from the allottee is to reallot the land to the children subject to the same restrictions to which it was subject in the hands of the allottee.

Tenth Section on the Chart

      The next to last section on the chart deals with a statute authorizing the Secretary to approve mortgages of Indian owners. Perhaps I need to explain the question marks before and after the beginning date "3/29/19562' I inserted these marks because there was an argument by those sponsoring this legislation that the Secretary already had the power. But money lenders were not sure that the argument that the Secretary's power to approve sales included the lesser power to approve mortgages. This argument seems sound to me. Congress at the request of the B.I.A. passed the legislation and included a curative provision providing that in all prior cases where the Secretary had approved mortgages before the date of the Act, his approval was confirmed.

      The desirability of such legislation is obvious. The owner of restricted land needing money to develop the land would have to have collateral to borrow that money from commercial sources. In many cases his only collateral would be the restricted land, but if the land could not be mortgaged - no loan. The power of the Secretary to approve or disapprove of the loan gives the Secretary some controls over the use of the money.

Eleventh Section on the Chart

      The last section was added in 1983. I just stumbled over it in looking for something else. It seems to me that in light of Sampson v. Andrews, cited on page 364, it may become a frequently used device by coheirs.