The late Dr. Maurice H. Merrill was fond of repeating that which Dr. John B. Cheadle said in introducing his course in Indian Land Titles. As I best recall it, what he said was:
While all the courses in law school that you have taken heretofore have been characterized by a logical progression of rational ideas, Indian Land Titles can best be described as a collection of capricious applications of arbitrary statutes.
It is my recollection that Dr. Merrill was repeating what he had heard when a student of Dr. Cheadle. If I am correct this would have happened in the very early twenties. By 1930 Dr. Cheadle in the Preface to his "Cases on Alienation and Descent of Indian Lands and Property" was able to say:
While the subject of Indian Land Titles honors legal principle quite as much in the breach as in the observance yet there is a body of case material which throws light upon principles of interpretation as applied in this field and on historical development of policy on the part of Congress...
While I do not pretend to be the master of the field that Dr. Cheadle was, I confess to having sufficient confidence, or conceit if you choose, to claim that I am beginning "to see the forest." This has come first in putting together my "Cases and Materials on Problems in Lands Allotted to American Indians," commonly referred to as "Oklahoma Indian Land Titles." As I worked checking the charts, see for example pages 109-116a, and the authority behind those charts, the statutes and cases in the notes to the charts, see pages 117-153, particularly as I updated the notes and modified some of the post 1908 charts, I became more and more comfortable and even more confident. I was,it finally "dawned" on me, developing a sense of flow in the development of the law.
It is the desire to pass on that sense of flow that leads me to the publication of this book. This book is a flow chart" to my previous book. I hope that it will be a short cut in learning to use my "Oklahoma Indian Land Titles"; hence I have called it "A Guide to Rarick's Oklahoma Indian Land Titles."
Very frankly, this book is based on notes that I made for teaching Indian Land Titles to law students at the University and notes that I used in teaching the same subject in Continuing Legal Education courses in Tulsa, in Oklahoma City and at O.U. on "Football Saturdays".
Perhaps a word about the structure of the first book would be the appropriate place to begin.
In putting that book together there were really two steps. I first put together a book out of which to teach a course in Indian Land Titles. We xeroxed enough copies for those enrolled in the course and several for me. I taught the course and was as satisfied with the process as one ever can be under the circumstances.
Several lawyers, title lawyers, who heard of the materials, indicated that they would like to have them. So the question entered my mind of whether with some "beefing up" the book could become a first place to look for answers in Indian title problems. Then our CLE people asked if the book could be the basis of a course to be taught on football Saturdays to practitioners and students. I thought it could be done by deemphasizing the teaching of law and concentrating on how to use the book.
Since you may not have yet examined that book, my first step will be to guide you through its table of contents. So please open the book to which this is a guide to page Roman numeral vii. The Table of Contents.
Part I is the legal background to congressional power on Indian lands. This material, eleven United States Supreme Court cases, should be read as early in one's study of Indian land titles as possible. These cases exam the relations among the federal government, the state governments, the tribes and the individual Indian in relation to land. I suppose the short but accurate conclusion from these cases is that except for confiscation without compensation Congress may and has done as it wills in the area of Indian lands.
The remaining three parts are devoted to the consideration of the alienability of allotted Indian land. The first of the three deals with the Five Civilized Tribes, the second with the General Allotment Indians, and the last with the Osage.
Now, some details about the Five Civilized Tribes materials. The first item is the Fitzpatrick Charts. They, in their original form, ran from the respective dates of the allotment agreements with the various tribes down to 1931. Those charts were published in 1917. We will use them down to the date of the Act of 1908 only.
The charts from 1908 to 1931 are continued on a chart on page 116a, but we will not consider it. Between 1917 and 1931 statutes were passed which were not reflected in the Fitzpatrick Charts. The charts are followed by notes to the charts. I have updated those notes which are pertinent to the portions of the charts we will use. I did not update those notes dealing with the charts after 1908. That material will be presented in the next set of charts.
Following the notes to the Fitzpatrick Charts, you will find lengthy excerpts from or the full text of a number of the cases cited in the preceding notes. I have tried to select those cases which you will probably want to consult most often. I have based those guesses on my own experience. I selected those cases which I most consulted in checking and updating the notes.
The next item is the extension of the Fitzpatrick Charts running from 1908 to the present time, I hope. These charts and notes were originally prepared by Richard Gholston in 1958.
This version of the extension I refer to as the Gholston - Rarick Extension. I include both names because I have edited the charts to a limited extent and have updated the notes. For this reason, I have added my name to prevent Gholston being blamed for my errors.
Following the charts and notes, I have included those important cases which are most often apt to be looked at by anyone using the extension charts and their notes.
The next items are the full text of the statutes important after 1908. The 1908 Act refers to the 1906 Act as do some more recent acts. Therefore, I start with the 1906 Act because these acts are found only in the Statutes at Large, and I decided to reproduce them in the book for convenience of those who do not have easy access to the Statutes at Large.
Following these statutes, I have placed a section called "Miscellany". This section consists of seven brief discussions of some important aspects of title examination in the Five Civilized Tribes which cannot be expressed adequately on a chart.
Next comes Part III dealing with lands allotted under the General Allotment Act. It contains charts and notes. There are then two articles taken from the Oklahoma Bar Association Journal. One is on land titles in Oklahoma under the General Allotment Act. The other relates specifically to Kickapoo titles. The Kickapoos were allotted under the General Allotment Act, but many of them moved to Mexico. This resulted in a less paternalistic policy in relation to their land. Again, I have included the most important cases cited in the notes. For years I did very little in my courses with the Osage unless I had students who had Osage County connections. However, with Tulsa now expanding into Osage county, I have developed a chart and notes for the Osage lands. Again, there is the text of the important Osage cases.
The only thing worthy of remark is the somewhat lengthy introduction to the Osage charts.
Again, this material could not be reduced to chart form; I put it in narrative form in the introduction.
That completes the Table of Contents.
The tables which follow the Table of Contents should be useful. In the Table of Cases, each case cited in the book, except those which are merely cited in the text of another case, is listed. The pages whereat they are cited are listed. An asterisk preceding a page number indicates that a substantial portion on all of the case is set out at that page. The Table of Articles lists each law journal or law review article cited in the book and the pages where cited. In the Table of Books, there are listed several treatises on Indian land titles including Bennett, Bledsoe, Mills with his Supplement, and Semple. In each case, the sections of these treatises cited and the pages where cited are listed.
In the Table of Statutes, the various Acts of Congress cited are listed by their effective dates. Each item has its Statutes at Large citation, and pages where cited, listed. The Table also includes similar information for the Code of Federal Regulations, Popular Names of Acts, and the United States Code.
May I make a suggestion to facilitate the use of the charts? I soon became frustrated by having to turn back and forth from the charts to the appropriate notes and then back to the charts only to have to return to the notes. Much of this frustration can be avoided by making xerox copies of all of the charts and binding all those copies together and separately from the book. I suggest leaving those charts which came in the book there - in the book. In that way, you will still have a copy from which to reproduce even if the separate charts are lost or mislaid.