219 F. 864 | 8th Cir. | 1915
Reed sued Welty to quiet his title to land which had been allotted under laws relating to the Creek Nation of Indians. Both claimed under conveyances from heirs of Thomas Knight, a Creek citizen of the full blood.
" Lands allotted to citizens shall not in any manner whatever or at any tirncbe incumbered, taken, or sold to secure or satisfy any debt or obligation nor be alienated by the allottee or his heirs before the expiration of five years from the date of the approval of this Supplemental Agreement, except with the approval of the Secretary of the Interior. Each citizen shall select from his allotment forty acres of land, or a quarter of a quarter section, as a homestead, which shall be and remain nontaxable, inalienable, and free from any incumbrance whatever for twenty-one years from the date of the deed therefor, and a separate deed shall he issued to each allottee for his homestead, in which this condition shall appear. * * * The homestead of each citizen shall remain, after the death of the allottee, for the use and support of 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 the limitation herein imposed, and if this be not done the land embraced in his homestead shall descend to his heirs, free from such limitation, according to the laws of descent herein otherwise prescribed. Any agreement or conveyance of any kind or character violative of any of the provisions of this paragraph shall be absolutely void*866 and not susceptible of ratification in any manner, and no rule of estoppel shall ever prevent the assertion of its invalidity.”
In Skelton v. Dill, 35 Sup. Ct. 60, 235 U. S. 206, 59 L. Ed. — (decided November 30, 1914), the Supreme Court held these restrictions applied only to allotments made to living Creek citizens in their own right, not to those made on behalf of deceased members of the tribe. Reed’s original petition contained an averment that Thomas Knight died intestate before receiving his allotment, and after his death the land in controversy was allotted to his three children as his heirs. On demurrer the trial court held the pleading sufficient — that the restrictions against alienation did not apply. Reed v. Welty, 197 Fed. 419.
The allotment to Thomas Knight was made by the Commission under Act June 28, T898, c. 517, 30 Stat. 495, known as the Curtis Act. This was followed by Act March 1, 1901, c. 676, 31 Stat. 861, commonly called the Original Creek Agreement, which was not to be effective uptil ratified by the Creek Nation. As already stated, Tilomas Knight died April 6, 1901. On May 25, 1901, the Original Agreement was ratified by the Creek Nation and thereafter patents were issued to the heirs. Section 6 of this Agreement provides:
“All allotments made to Creek citizens by said Commission prior to tbe ratification of this Agreement * * * are confirmed, and the same shall, as to appraisement and all things else, be governed by the provisions of this agreement; and said Commission shall continue the work of allotment of Creek lands to citizens of the tribe as heretofore, conforming to provisions herein. * * * ”
According to the amended petition the patents were issued direct to the heirs of Thomas Knight without reallotment of the land to them. It may be observed that section 7 of the Original Agreement contained restrictions against alienation similar to those of section 16 of the Supplemental Agreement; also that under the Curtis Act the lands allotted were nontransferable until after full title was acquired.
It is contended on behalf of Reed, who prevailed below, that Thomas Knight was not an allottee within the meaning of section 16 above quoted, but that the land went direct to his heirs free from restrictions. It is urged that the allotment made to him under the Curtis Act gave merely an exclusive right of use and occupancy of the surface, and not a legal or equitable estate susceptible of inheritance at death; also that, as Thomas Knight died before the Original Creek Agreement became effective, the allotment to him, such as it was, lapsed, there being no such thing as an allotment to a dead person, and therefore in his case there was nothing to confirm by section 6 of that Agreement; and, finally, that the execution of deeds direct
We also think the estate or right of such an allottee was intended as inheritable. The plans for distribution of the Creek lands were the result of agreement between the government and the Creek Nation. Whatever power Congress might otherwise have exercised, it chose to make the matter the subject of convention with the Indians rather than of pure legislation, and in construing the Agreements regard should be had to the sense naturally conveyed to those principally to be affected. If under the Agreements mere unexercised rights to allotment of lands and moneys were descendible or inheritable (see section 28, Original Agreement, and sections 7 and 8, Supplemental Agreement), there is no difficulty about a right that has been exercised. An allotment to a Creek citizen under the Curtis Act gave an interest or estate that would descend to his heirs at his death. See Goat v. United States, 224 U. S. 458, 470, 32 Sup. Ct. 544, 56 L. Ed. 841. The subsequent patents to the heirs were a recognition of their inheritance of the allotted lands, not of an unexercised right. And that is the theory of the amended petition, though the argument was otherwise. After reciting the allotment to Thomas Knight, his death, the names of his heirs, the patents for the lands, etc., the pleading continues :
“Said lands passed to said lieirs in equal parts under and by virtue of the Original Creek Treaty. * * * ”
An argument is also made upon the provisions as to homesteads in section 16 of the Supplemental Agreement. The administrative con
The decree is reversed, and the cause is remanded for further proceedings in conformity with this opinion.