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Compiled and edited by Charles J. Kappler. Washington : Government Printing Office, 1929.
Revised Statutes of the United States, 1873, sec. 463 (sec. 2, U. S. Code, p. 689):
The Commissioner of Indian Affairs shall, under the direction of the Secretary of the Interior, and agreeably to such regulations as the President may prescribe, have the management of all Indian affairs, and of all matters arising out of Indian relations.
Revised Statutes of the United States 1873, sec. 465 (sec. 9, U. S. Code, p. 689):
The President may prescribe such regulations as he may think fit for carrying into effect the various provisions of any act relating to Indian affairs. * * *
These sections of the Revised Statutes are taken from Acts of Congress of July 9, 1832 (4 Stat. 564), June 30, 1834 (4 Stat. 728), July 27, 1868 (15 Stat. 228), and March 3, 1875 (18 Stat. 450).
The Regulations made by the President pursuant to this section have the force of statutory enactments. (U. S. v. Eaton, 144 U. S. 677; U. S. v. Thurston Co., 143 Fed. 287; Wilkins v. United States, 96 Fed. 837; 5 Op. Atty. Genl. 36-39; U. S. v. Van Wert, 195 Fed. 974; Bridgeman v. U. S., 140 Fed. 577-583.)
The consideration uppermost in the mind of the Congress in passing the above-quoted sections of law, giving the President, the Secretary of the Interior, and the Commissioner of Indian Affairs exclusive jurisdiction over Indian affairs and relations growing out thereof is stated by the Supreme Court of the United States in United States v. Kagama (118 U. S. 375) to be that, because of the primitive dependence and economic helplessness of the Indian people under modern civilization, the Government is charged with the special duty and obligation of protecting them, and this duty and obligation falls upon the Executive branch of the Government and is properly vested in the Secretary of the Interior.
In the protection and development of these dependent people through their pupilage into self-reliant citizenship, the Executive branch of the Government was given almost unlimited discretion in the control of Indian allotments and other instrumentalities designed for their use and benefit. (United States v. Rickert, 188 U. S. 432; United States v. Celestine, 215 U. S. 278; Tiger v. Western Investment Co., 221 U. S. 298.)
The exclusive authority and jurisdiction of the Secretary of the Interior to determine the descent of Indian heirship estates while held in trust by the United States, and to look into all features of a matter coming before him for adjudication, have always been recognized by the United States Courts. (McKay v. Kalyton, 204 U. S. 458.)
An exception to this exclusive jurisdiction was the Act of Congress of August 15, 1894 (28 Stat. 286; 1 Kappler, 68), as amended by the Act of February 6, 1901 (31 Stat. 760; 1 Kappler, 109), conferring special jurisdiction where none existed before, which Act provided that any person who claimed to have been unlawfully denied or excluded from any allotment to which he claims lawfully to be entitled under any treaty or Act of Congress, may commence and prosecute or defend any action, suit, or proceeding in relation to his right thereto in the proper circuit court of the United States, and the judgment or decree of any such court in favor of any claimant shall have the same effect, when properly certified to the Secretary of the Interior, as if such allotment had been allowed and approved by him. But this Act did not apply to the Five Civilized Tribes nor to any lands within the Quapaw Indian agency.
Another exception was the special Act of Congress approved April 28, 1904 (33 Stat. 573; 3 Kappler, 109), applying solely to the Indian Territory. Section 2 reads as follows:
SEC. 2. All the laws of Arkansas heretofore put in force in the Indian Territory are hereby continued and extended in their operation so as to embrace all persons and estates in said Territory, whether Indian, freedmen, or otherwise, and full and complete jurisdiction is hereby conferred upon the district courts in said Territory in the settlements of all estates of decedents, the guardianships of minors and incompetents, whether Indians, freedmen or otherwise. (235 U. S. 421-422; 237 U. S. 386; 256 U. S. 319; 267 U. S. 373; 276 U. S. 58-69.)
Indians in the Indian Territory included the Five Civilized Tribes and the tribes residing within the Quapaw Agency. (Act May 2, 1890, 26 Stat. 81.) 1
The purpose of the Act of 1894 was not at all the determination of heirs, for as far back as that time that question had come up only with respect to the early allotments made to Pottawotamie, Shawnee, Miami, and other Indian reservees in Oklahoma or Kansas (Oklahoma was then Indian Territory) and the Five Tribes; and in those cases the heirs were ascertained according to the tribal customs. Such Indians were given fee patents or certificates which permitted no alienations except to other Indians; and none were to be good until approved by the Secretary of the Interior or the President, as the treaty provided. As to disposition of estates of deceased Pottawotamie reservees under the treaty of February 27, 1867 (15 Stat. 531; 2 Kappler, 970), Art. 8 provided:
That where allottees under the treaty of 1861 shall have died or shall hereafter decease, such allottees shall be regarded, for the purpose of a careful and just settlement of their estates, as citizens of the United States and of the State of Kansas, and it shall be competent for the proper courts to take charge of the settlement of their estates under all the forms and in accordance with the laws of the State, as in the case of other citizens deceased; and in cases where there are children of allottees left orphans, guardians for such orphans may be appointed by the probate court of the county in which such orphans reside, and such guardians shall give bonds to be approved by the said court, for the proper care of the person and estate of such orphans, as provided by law.
But until the laws of descent of the State were made effective over Indian estates by Congress, tribal customs prevailed even though settlement of the estate
was through the county court. (Jones v. Meehan, 175 U. S. 1; Jefferson v. Fink, 247 U. S. 290.) Such administration of estates was not satisfactory, and applied only as specific legislation in each case directed. Still, on the strength of such legislation having been passed, attorneys took into the county courts of the several States the settlement of Indian estates held under trust under the 1887 Allotment Act, and for lack of proper legal defense or supervision or perhaps sufferance in the Departments of Justice and of the Interior, such procedure was permitted. All such were illegal, and subsequently in order to justify such practice it was held that the Secretary might accept the opinion or decree of a court (though such court was without jurisdiction) as his own, and base approval of sales and issuance of patents of such lands on such proceedings and decrees.
The Act of 1894, as originally intended, had no reference to the settlement of Indian estates, but specifically provided that an Indian who had been denied an allotment of land under any law or treaty—that is, an original allotment to himself or to his immediate ancestór—might have his right to such allotment tried in the Federal court. McKay v. Kalyton was an inheritance case and declared positively the lack of jurisdiction of any State court over trust allotments. Federal jurisdiction to determine Indian heirs was never given by Congress; it was merely assumed by the courts after the 1894 Act passed. (Sloan v. U. S. 193 U. S. 614.) And McKay v. Kalyton, supra, so far as inheritance was concerned, decided that the laws of the State as to dower and curtesy, etc., were to be applied in Indian estates. It may here be stated that the Act of 1894, so far as the determination of heirs is concerned, was repealed by the provisions of the Act approved June 25, 1910. (36 Stat. 855; 3 Kappler, 476; Bond v. U. S., 181 Fed. 613; Pel-Ata-Yakot v. U. S., 188 Fed. 387; Parr v. Colfax, 197 Fed. 302.)
The Act of June 25, 1910, did not repeal either the 1894 Act or the 1901 Act amending the 1894 Act. They are still effective (the one as an extension of the other) with respect to the right of an Indian to sue through the Federal court for an original allotment. (U. S. v. Tommy Payne, 264 U. S. 446; First Moon v. Starling White Tail, 270 U. S. 243.)
The Acts of August 15, 1894, February 6, 1901, and March 3, 1911, did not affect authority of the Secretary of the Interior (notes, U. S. Code (Sec. 345, Ante, 764.).
The Act of June 25, 1910, as set forth in Hallowell v. Commons (239 U. S. 506) did not make new law; it merely put on the statute books a law which had been operative from the beginning, having its origin in the plenary power of the Secretary of the Interior under the powers originally granted him over all Indian affairs. The authority held by the Federal Government over Indians and Indian estates, as set forth in Bond v. U. S. (181 Fed. 613), is:
Under the General Allotment Act of February 8, 1887 (24 Stat. 388), providing for the allotment of lands in Indian reservations, the United States retained title and control over the allotted lands during the trust period without any right in the allottee, except to occupy and cultivate the lands under a paper or writing showing that at a particular time in the future, unless extended by the President, the allottee would be entitled to a patent for the fee.
An Indian allottee by accepting an allotment does not cease to be a ward of the Government, but still remains in a condition of pupilage and dependency, the determination of all disputes concerning the allotment, its occupancy, and possession, and the general control of the Indian remaining within the jurisdiction of the Secretary of the Interior. (Hallowell v. Commons, 239 U. S. 506; Tiger v. Western Investment Co., 221 U. S. 311.)
State Courts have no jurisdiction over Indian allotments or inheritances so long as such lands are held in trust by the United States. (Little Bill v. Suvanson, 117 Pac. 481; Smith case, 194 U. S. 408; Gray v. McKnight, 183 Pac. 489.) The Supreme Court of the United States, in the Kalyton case (204 U. S. 458), went into the question of authority of courts over Indian lands and estates, which opinion is very instructive and from which the following is quoted:
The Rickert case (188 U. S. 432) settled that, as the necessary result of the legislation of Congress, the United States retained such control over allotments as was essential to cause the allotted land to inure during the period in which the land was to be held in trust "for the sole use and benefit of the allottees." As observed in the Smith case (194 U. S. 408), prior to the passage of the act of 1894 "the sole authority for settling disputes concerning allotments resided in the Secretary of the Interior." This being settled it follows that, prior to the act of Congress of 1894, controversies necessarily involving a determination of the title and, incidentally, of the right of possession, of Indian allotments while the same were held in trust by the United States, were not primarily cognizable by any court, either State or Federal. It results, therefore,
the act of Congress of 1894, which delegated to the courts of the United States the power to determine such questions, can not be construed as having conferred upon the State courts the authority to pass upon Federal questions over which, prior to the act of 1894, no court had any authority. The purpose of the act of 1894 to continue the exclusive Federal control over the subject is manifested by the provision of that act which commands that a judgment or decree rendered in any such controversy shall be certified by the court to the Secretary of the Interior. By this provision, as pointed out in the Smith case, supra, the United States consented to submit its interests in the trust estate and the future control of its conduct concerning the same to the result of the decree of the courts of the United States—a power which such courts alone exercise by virtue of the consent given by the act. The subsequent legislation of Congress, instead of exhibiting a departure from this policy, confirms it. By the amendments to the act of 1894, approved February 6, 1901 (31 Stat. 760), it is expressly required that in suits authorized to be brought in the circuit courts of the United States respecting allotments of Indian lands "the parties thereto shall be the claimant as plaintiff and the United States as party defendant." Nothing could more clearly demonstrate than does this requirement, the conception of Congress that the United States continued, as trustee, to have an active interest in the proper disposition of allotted Indian lands, and the necessity of its being made a party to controversies concerning the same, for the purpose of securing a harmonious and uniform operation of the legislation of Congress on the subject.
Also, Lane ex rel. Mickadiet v. United States (241 U. S. 201); Hallowell v. Commons (239 U. S. 506).
From these authorities it is established that in placing exclusive jurisdiction over Indians in the Secretary of the Interior, the Legislative branch of the Government intended to clothe him with ample power fully to protect the Indians and to carry out treaty stipulations and moral obligations which the Government has assumed. Without this full power and authority the treaties and trusts imposed upon the Government could not be properly executed.
The validity of the power of the United States (which resided in the Crown or its grantees while we were colonies) has never been questioned in our courts, and it has been exercised uniformly over territory in the possession of the Indians. The existence of this power must negative the existence of any right which may conflict with and control it. (Johnson v. McIntosh, 8 Wheat., 543.)
While it is undoubtedly true that prior to 1906 there was no express provision of law granting power to the Secretary of the Interior to determine heirs of deceased Indian allottees, yet it is obvious that (1) such jurisdiction came within the plenary and general supervisory power possessed by the United States over allotted Indian lands while the title remained in the United States, including the making and approval of rolls of members of the several tribes (U. S. v. Rickert, 188 U. S. 432-35; U. S. v. Bowling, 256 U. S. 488; Reece v. Benge 198 Pac. 493); (2) that such jurisdiction had to be assumed by the Department of the Interior as the Federal agency charged with the duty of carrying out the obligations of the Government toward the Indians (U. S. v. Rickert, 188 U. S. 432) ; and (3) to see that only the persons properly entitled to enrollment and allotment were enrolled and allotted and that the persons determined as heirs of such allottees were the legal heirs of any deceased member.
Prior to the enactment of the General Allotment Act of February 8, 1887 (24 Stats. 388; 1 Kappler, 33-38-56), Indians held tribal lands in common. When a member died his rights in such lands ceased for the reason that no member held title to a particular described piece of land. After the allotment was made, the 1887 Allotment Act provided that—
SEC. 5. That upon approval of the allotments provided for in this act by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect, and declare that the United States does and will hold the land thus allotted; for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or in case of his decease, of his heirs according to the laws of the State or Territory where such land is located.
The trust period under the Allotment Act was fixed at twenty-five years with power in the President to extend the period. From 1887 to 1895 but few allotments to Indians were made. From 1895 to 1902 a very small number of cases calling for determination of heirs were presented to the Indian Office, probably by reason of the doubt prevailing as to whether or not State courts had jurisdiction, some probate courts of the States assumed jurisdiction when Indian cases were presented to determine heirs of Indians.
When the Act of May 27, 1902 (32 Stat. 245-275; 1 Kappler, 120), authorizing adult heirs of deceased Indian allottees to sell and convey inherited lands, was passed, it became the duty of the Secretary of the Interior to ascertain who the rightful heirs were before the heirs were permitted to make a conveyance to a purchaser with his
approval, as provided by the Act. The authority to determine such heirs under the Act of 1902 was implied, on the ground that such determination by the Secretary was imposed upon him by virtue of the duty and obligation resting upon the Government to see that only such persons were declared heirs as had a right to such inheritance, and further, no other tribunal had been provided in that or any other Act relating to trust allotments, excepting the Act approved April 29, 1904, relating to the Indian Territory.
In the Act of May 8, 1906 (Burke Act) (34 Stat. 182; 3 Kappler, 181), express authority to determine heirs of Indians was for the first time conferred upon the Secretary in the following language:
That hereafter when an allotment of land is made to any Indian and any such Indian dies before the expiration of the trust period, such allotment shall be cancelled and the land shall revert to the United States, and the Secretary of the Interior shall ascertain the legal heirs of such Indians, and shall cause to be issued to said heirs and in their names a patent in fee simple for said land, or he may cause the land to be sold as provided by law and issue a patent therefor to the purchaser or purchasers, and pay the net proceeds to the heirs or their legal representatives of such deceased Indian. The action of the Secretary of the Interior in determining the legal heirs of any deceased Indian, as provided herein, shall in all respects be conclusive and final. (215 U. S. 278, 232 U. S. 478, 241 U. S. 2O1, 242 U. S. 371, 243 U. S. 452, In re Heff, 197 U. S. 488, U. S. v. Garden, 189 Fed. 690: Bond v. U. S., 181 Fed. 613; U. S. v. Sutton, 165 Fed. 253.)
The Act of May 8, 1906, expressly excluded from its provisions the Indians in the Indian Territory.
The Acts of March 1, 1907 (33 Stat. 1015-18), May 27, 1902, May 8, 1906, supra, and May 29, 1908 (35 Stat. 441, sec. 1), bearing on the same subject, were amplified and extended by the Act of June 25, 1910 (36 Stat. 855; 3 Kappler, 476).
The method and procedure employed by the Secretary of the Interior in carrying out this trust is thus stated in the decision of the Secretary of the Interior in the Grace Cox case, dated September 26, 1913, reported in 42 L. D., page 493:
The Secretary of the Interior is, as it were, counsel for plaintiff and defendant as well as judge upon the bench. He does not wait for a case to be brought before him, but on the contrary, institutes the necessary proceedings through his representatives in the field, collects the necessary evidence which may be in the form of decrees of the state courts, ex parte or interrogatory affidavits, etc., and renders his decision on legal and equitable grounds. The act (of June 25, 1910) defining the scope of his duties specifically provides that his decisions shall be under "such rules and regulations as he may prescribe." It is evident, therefore, that the Secretary is not "bound" by the decisions or decrees of any court in inheritance matters affecting Indian trust lands, and that it rests entirely in his discretion, from the evidence submitted, as to the determination of Indian heirs.
It was held by the Department that in cases where probate or other court proceedings had, before the passage of the Act of 1910, been had, certified copies of such formal order, judgment, or decree of the court may be furnished as evidence, but such proceedings shall be effective only when adopted by the Secretary of the Interior as his own act and finding. (Cir. 784, In. Of., Oct. 22, 1913.) But there was no general law authorizing such court proceedings, nor any implication in any Federal statute to such effect. (McKay v. Kalyton, 204 U. S. 458.)
In Minnesota v. Hitchcock (185 U. S. 389), the Supreme Court said:
The fee of the lands was in the United States subject to the right of occupancy by the Indian. That fee the Government might convey, and whenever the Indian right of occupancy was terminated the grantee of the fee would acquire a perfect and unburdened title and right of possession.
In all lands granted Indians as allotments in trust, under the General Allotment and other Acts, the Government holds the fee until the restricted period is ended; and when the final patent is issued the fee to the land is thereby extinguished in the Government, and the Indian, his heirs, or the purchaser acquires "a perfect and unburdened title and right of possession." An exception as between Indians is that the Secretary of the Interior has power to impose conditions or restrictions. (U. S. v. Thurston Co., 143 Fed. 289; Wilson v. Wall, 6 Wallace 83 ; Lanham v. McKeel, 224 U. S. 582. )
During the pendency of the trust period on Indian allotments it was found necessary and expedient for Congress to provide for the sale by adult Indians and by heirs of deceased Indians of such allotments or interests therein, or to issue Certificates of Competency or fee patents to allottees who had proved themselves competent to attend to their own business. Previous to the enactment of the Allotment Act of 1887, as amended by the Act of 1891, provisions were made in treaties authorizing
the Indians recipients of land under such treaties to make sale thereof; but a proviso was always added that such sale shall be approved by the President. For such a case citation is made to Pickering v. Lomax (145 U. S. 310) and Likens v. McGrath (184 U. S. 168), thus evidencing the determination of the Government to supervise the transaction of Indians. By the Act of Congress, approved July 26, 1892 (27 Stat., 272; 1 Kappler, 64 ) certain deed records made by Indians were legalized. These deeds show the transfer of lands granted to individual Indians under the several treaties since 1817 whenever a restriction was made that the lands should not be sold without the consent of the President; also the transfer of those lands allotted to individual Indians the patent for which contained a similar restrictive clause upon the sale of the land. (See note, 1 Kappler, 64.)
Subsequently, in order to quiet title in those claiming lands under deeds from Indians approved by the Secretary of the Interior, Congress passed the Act approved May 31, 1902 (32 Stat. 284; 1 Kappler, 121), reading as follows:
That in all actions brought in any State court or United States court by any patentee, his heirs, grantees, or any person claiming under such patentee, for the possession or rents or profits of lands patented in severalty to the members of any tribe of Indians under any treaty between it and the United States of America, where a deed has been approved by the Secretary of the Interior to the land sought to be recovered, the statutes of limitations of the States in which said land is situate shall be held to apply, and it shall be a complete defense to such action that the same has not been brought within the time prescribed by the statutes of said State the same as if such action had been brought for the recovery of land patented to others than members of any tribe of Indians.
SEC. 2. That this Act shall not apply to any suits brought within one year from and after its passage.
This Act provides that in any suit brought for recovery of lands inherited by an Indian and conveyed by deed which has been approved by the Secretary of the Interior, a complete defense of such suit would be that it was not brought within the period of limitations effective in the State where the land is situated, and the Interior Department believes that so far as original conveyances are concerned the title is good and merchantable. (Donaldson v. Roberson, 218 Pac. 879; Hellen v. Morgan, 283 Fed. 433.)
Special Acts of Congress have been enacted, from time to time, covering alienation, by allottees and heirs of deceased allottees, of the Five Civilized Tribes, the Osages, Kaws, Citizen Pottawatomies, and Absentee Shawnees; Modocs in Oklahoma, Peorias, Miamis, Quapaws, Wyandottes, and others. Private special Acts of Congress and provisions in Indian Appropriation Acts from 1894 to 1906 were frequently passed by Congress removing the restrictions on alienation by Indian allottees and their heirs, with the approval of the Secretary of the Interior. For instances of this character see Act approved May 3, 1905 (33 Stat. 1048; 3 Kappler, 140-156).
Special Acts of Congress relating to the sale, alienation, or lease of restricted lands by Indian allottees, or their heirs, of particular tribes were frequently passed by Congress. For example, the Act approved August 15, 1894 (28 Stat. 295; 1 Kappler, 520), provided:
That any member of the Citizen Band of Pottawatomie Indians and of the Absentee Shawnee Indians of Oklahoma to whom a trust patent has been issued under the provisions of the act approved February eighth, eighteen hundred and eighty-seven (24 Stat. L. 888), and being over twenty-one years of age, may sell and convey any portion of the land covered by such patent in excess of eighty acres, the deed of conveyance to be subject to approval by the Secretary of the Interior under such rules and regulations as he may prescribe, and that any Citizen Pottawatomie not residing upon his allotment, but being a legal resident of another State or Territory, may in like manner sell and convey all the land covered by said patent, and that upon the approval of such deed by the Secretary of the Interior the title to the land thereby conveyed shall vest in the grantee therein named.
That Act was modified by the Act of May 31, 1900 (31 Stat. 247; 1 Kappler, 701), which provides:
That the proviso to the Act approved August fifteenth, eighteen hundred and ninety-four, permitting the sale of allotted lands by members of the Citizen Band of Pottawatomie Indians and of the Absentee Shawnee Indians of Oklahoma is hereby extended so as to permit the adult heirs of a deceased allottee to sell and convey the lands inherited from such decedent; and if there be both adult and minor owners of such inherited lands, then such minors may join in a sale thereof by a guardian, duly appointed by the proper court upon an order of such court made upon petition filed by such guardian, all conveyances made under this provision to be subject to the approval of the Secretary of the Interior; and any Citizen Pottawatomie or Absentee Shawnee not residing
upon his allotment, but being an actual resident of another State or Territory, may in like manner sell and convey all the land allotted to him.
That such proviso of the Act approved August fifteenth, eighteen hundred and ninety-four, as herein enlarged, is hereby extended to those members of the Citizen Band of Pottawatomie Indians and the Absentee Shawnee Indians who were given allotments under the Act approved the twenty-third day of May, eighteen hundred and seventy-two, and to their heirs; and any purchasers of Indian blood of lands sold under the provisions of the act last named, or their heirs, who may own other allotted lands under any Act of Congress, may sell all the lands so owned by them in excess of eighty acres, the restrictions against sales by allottees, under the Act last named, to others than the United States or persons of Indian blood being hereby removed; and all such conveyances shall hereafter be subject to the approval of the Secretary of the Interior.
That the provisions hereof as to the sale of inherited lands by heirs of deceased allottees of the Citizen Band of Pottawatomie Indians and Absentee Shawnee Indians are hereby extended and made applicable to the heirs of allottees of the Peoria and Miami Indians, who were authorized by the Act approved June seventh, eighteen hundred and ninety-seven, to sell a portion of their lands, and all sales and conveyances of lands of deceased allottees by their heirs, which have been duly made and executed by such heirs and duly approved by the Secretary of the Interior, are hereby ratified and confirmed.
The Act of Congress approved July 1, 1902 (32 Stat. 636; 1 Kappler, 768), relating to the Kansas or Kaw Indians, section 11, provides:
SEC. 11. That the adult heirs of any deceased Kansas or Kaw Indian whose selection has been made or to whom a deed has been issued for his or her share of the lands of said tribe in Oklahoma Territory, may sell and convey the lands so inherited from such decedent; and if there be both adult and minor heirs of such inherited lands, then such minors may join in a sale thereof by a guardian duly appointed by the proper court of the county in which said minor or minors may reside, upon an order of such court, made upon petition filed by such guardian; all conveyances made under this provision to be subject to the approval of the Secretary of the Interior, under such rules and regulations as he may prescribe.
The first general provision authorizing alienation of restricted lands by heirs of deceased Indians was contained in the Indian Appropriation Act approved May 27, 1902 (32 Stat. 245-275; 1 Kappler, 120), section 7 providing:
That the adult heirs of any deceased Indian to whom a trust or other patent containing restrictions upon alienation has been or shall be issued for lands allotted to him may sell and convey the lands inherited from such decedent, but in case of minor heirs their interests shall be sold only by a guardian duly appointed by the proper court upon the order of such court, made upon petition filed by the guardian, but all such conveyances shall be subject to the approval of the Secretary of the Interior, and when so approved shall convey a full title to the purchaser the same as if a final patent without restriction upon the alienation had been issued to the allottee. All allotted lands so alienated by the heirs of an Indian allottee and all lands so patented to a white allottee shall thereupon be subject to taxation under the laws of the State or Territory where the same is situate: Provided, That the sale herein provided for shall not apply to the homestead during the life of the father, mother, or the minority of any child or children. (246 U. S. 227.)
In carrying into effect section 7 of the Act of May 27, 1902, in the absence of statutory requirement of formal notice and hearing, the Secretary of the Interior, under date of October 4, 1902, approved Rules and Regulations governing the conveyance of inherited Indian lands, and among other paragraphs are the following:
III. Such deed or instrument of conveyance, when submitted for the Secretary's approval, must be accompanied by the original petition, the appraisement, all bids and checks relating to the lands covered by such deed, and a full report by the agent or other officer in charge of all proceedings previous to the execution of the deed; also—
(1) By a certificate signed by two members of a business committee, if there be such, or by at least two recognized chiefs, or by two or more reliable members of the tribe, setting forth that the allottee to whom the land was originally allotted is dead, giving as nearly as possible the date of death. Such certificate shall also show the names and ages of the heirs, adults and minors, of such deceased allottee, but the Department reserves the right to require, if in its judgment it shall be considered necessary, such further and additional evidence relative to heirship as may be deemed proper. If the persons who certify to the death of the allottee are, from their own knowledge, unable to certify as to who are the heirs (with their names and ages) of such deceased allottee, an additional certificate made by persons of one of the three classes herein specified, showing who are the heirs and giving their names and ages (adults and minors) must be furnished.
VI. If in the case of any deceased allottee there shall have been or shall hereafter be probate or other court proceedings establishing who are the heirs of such deceased allottee, a certified copy of the final order, judgment, or decree of the court showing and determining such heirship must be furnished; but where such court proceedings have not been had a compliance with the requirements of the provisions of Paragraph 1 of Section III of the rules as amended will be deemed sufficient to establish the heirship. In the case of sales by guardians, the deed must be accompanied by certified copies of the orders of the proper court appointing the guardian and authorizing him to make the sale. (Senate Document No. 396, part 4, 59th Cong., 2d sess., p. 146-147.)
Section 7 of the Act of Congress approved May 27, 1902, provides "that the adult heirs of any deceased Indian to whom a trust or other patent containing restrictions upon alienation has been or shall be issued for lands allotted to him may sell and convey the lands inherited from such decedent * * * but all such conveyances shall be subject to the approval of the Secretary of the Interior, and when so approved shall convey a full title to the purchaser the same as if a final patent without restriction upon the alienation had been issued to the allottee."
The use of the word "heirs" in this section necessarily implied that the Secretary (because no other tribunal was authorized to determine heirs of deceased Indian allottees) should determine the heirs of such deceased Indians before giving his approval to any deed signed by persons alleged to be the heirs. The Supreme Court in Michigan L. & L. Co. v. Rust, 168 U. S. 592; Frasher v. O'Connor, 115 U. S. 102, 115-16; Noble v. Union R. L. R. R., 147 U. S. 165; and Shaw v. Kellogg, 170 U. S. 312, held Congress by implication conferred upon the Secretary of the Interior the power to make all determinations of law as well as of fact which are essential to the performance of the duty imposed. The Secretary possessed the power and authority to prescribe rules and regulations (Wilkins v. U. S., 96 Fed. 837; U. S. v. Thurston Co., 143 Fed. 287; U. S. v. Eaton, 144 U. S. 677; U. S. v. Van Wert, 195 Fed. 974; Bridgeman v. U. S., 140 Fed. 577; 5 Op. Atty. Genl. 36-39) governing the kind and character of evidence to be furnished him in order that he would be in a position to determine the rightful heirs; and when the Secretary approved a deed with such evidence before him and in the record, his approval, in fact, would amount to a determination that the persons signing the deed are the sole heirs.
The fact is that prior to the passage of the Act of May 8, 1906, the Secretary of the Interior was acting under his supervisory powers over Indian affairs in determining heirs of deceased Indian allottees. Up to that time, it is understood by the Department, the practice was when deeds covering inherited Indian lands were before it for action, to obtain all possible information concerning the heirs of such deceased Indians as called for and required under Paragraphs III (1) and VI of the Regulations above set forth, and in the event the Secretary was satisfied, from the evidence submitted to establish the heirship, that the persons who executed a deed presented to him for approval were the rightful heirs, he would, in his discretion, approve such deed; otherwise he would disapprove same. It was then not the practice or procedure to set forth in the wording of the approval, or by a separate letter returning such approved deed to the Commissioner of Indian Affairs, an express statement that a determination of heirs had been made, such determination being held to be implied as one of the duties cast upon the Secretary in arriving at and giving his approval. In other words, such approval implied not only compliance with all essential requirements of the Rules and Regulations which the Secretary had authority to prescribe, but also that the persons who executed the deed so approved had been found to be the legal heirs.
Considering the Act of 1902, the Rules and Regulations made thereunder, and the record as made up upon which the Secretary is guided in acting upon any given deed, the approval based upon such Rules and the record is undoubtedly complete without specific words to the effect that heirs had been found and determined. (Davidson v. Roberson, 218 Pac. 879-881; Dougherty v. McFarland, 166 NW. 143; Hellen v. Morgan, 283 Fed. 433. Contra, but not so well grounded, Anthis v. Drew, 123 Okla. 18; Tripp v. Sieler, 161 NW. 337.)
The Act of May 8, 1906 (34 Stat. 182; 3 Kappler, 181)—
Provided, That the Secretary of the Interior may, in his discretion, and he is hereby authorized, whenever he shall he satisfied that any Indian allottee is competent and capable of managing his or her affairs, at any time to cause to be issued to such allottee a patent in fee simple, and thereafter all restrictions as to sale, incumbrance, or taxation of said land shall be removed and said land shall not be liable to the satisfaction of any debt contracted prior to the issuing of such patent: Provided further, That until the issuance of fee-simple patents all allottees to whom trust patents shall hereafter be issued shall be subject to the exclusive jurisdiction of the United States: And provided further, That the provisions of this Act shall not extend to any Indians in the Indian Territory.
That hereafter when an allottment of land is made to any Indian, and any such Indian dies before the expiration of the trust period, such allotment shall be canceled and the land shall revert to the United States and the Secretary of the Interior shall ascertain the legal heirs of such Indian, and shall cause to be issued to said heirs and in their names a patent in fee simple for said land, or he may cause the land to be sold as provided by law and issue a patent therefor to the purchaser or
purchasers, and pay the net proceeds to the heirs, or their legal representatives, of such deceased Indian. The action of the Secretary of the Interior in determining the legal heirs of any deceased Indian, as provided herein, shall in all respects be conclusive and final. (215 U. S. 278, 232 U. S. 478, 241 U. S. 201, 242 U. S. 371, 243 U. S. 452.)
The Act of Congress approved March 1, 1907 (34 Stat. 1015-1018; 3 Kappler, 269), provided:
That any noncompetent Indian to whom a patent containing restrictions against alienation has been issued for an allotment of land in severalty, under any law or treaty, or who may have an interest in any allotment by inheritance, may sell or convey all or any part of such allotment or such inherited interest on such terms and conditions and under such rules and regulations as the Secretary of the Interior may prescribe, and the proceeds derived therefrom shall be used for the benefit of the allottee or heir so disposing of his land or interest, under the supervision of the Commissioner of Indian Affairs; and any conveyance made hereunder and approved by the Secretary of the Interior shall convey full title to the land or interest so sold, the same as if fee-simple patent had been issued to the allottee. (219 U. S. 346, 229 U. S. 187, 233 U. S. 223, 234 U. S. 245, 237 U. S. 43, 242 U. S. 371, 243 U. S. 452, 246 U. S. 110, 256 U. S. 519.)
Under this Act and the 1908 Act, post, the courts have held that the Secretary of the Interior, under his plenary powers, had discretion to make conditions as to use of the proceeds and that restrictions on alienation without his consent in deeds to lands purchased with trust funds were good, and preserved Government jurisdiction or established it, under the doctrine of conversion.
The Act of Congress approved May 29, 1908 (35 Stat. 444; 3 Kappler, 356), section 1, provided:
That the lands, or any part thereof, allotted to any Indian, or any inherited interest therein, which can be sold under existing law by authority of the Secretary of the Interior, except the lands in Oklahoma and the States of Minnesota and South Dakota, may be sold on the petition of the allottee, or his heirs, on such terms and conditions and under such regulations as the Secretary of the Interior may prescribe; and the lands of a minor, or of a person deemed incompetent by the Secretary of the Interior to petition for himself, may be sold in the same manner, on the petition of the natural guardian in the case of infants, and in the case of Indians deemed incompetent as aforesaid, and of orphans without a natural guardian, on petition of a person designated for the purpose by the Secretary of the Interior. That when any Indian who has heretofore received or who may hereafter receive an allotment of land dies before the expiration of the trust period, the Secretary of the Interior shall ascertain the legal heirs of such Indian, and if satisfied of their ability to manage their own affairs shall cause to be issued in their names a patent in fee simple for said lands; but if he finds them incapable of managing their own affairs the land may be sold as herein-before provided: Provided, That the proceeds derived from all sales hereunder shall be used, during the trust period, for the benefit of the allottee, or heir, so disposing of his interest, under the supervision of the Commissioner of Indian Affairs: And provided further, That upon the approval of any sale hereunder by the Secretary of the Interior he shall cause a patent in fee to issue in the name of the purchaser for the lands so sold: And provided further, That nothing in section one herein contained shall apply to the States of Minnesota and South Dakota. (243 U. S. 464, 246 U. S. 283, 272 U. S. 728.)
This Act expressly confers power upon the Secretary of the Interior to make such conditions in the interest of the Indian as he deems necessary.
The Act of Congress approved June 25, 1910 (36 Stat. 855; 3 Kappler, 476), section 1, provided:
That when any Indian to whom an allotment of land has been made, or may hereafter be made, dies before the expiration of the trust period and before the issuance of a fee-simple patent, without having made a will disposing of said allotment as hereinafter provided, the Secretary of the Interior, upon notice and hearing, under such rules as he may prescribe, shall ascertain the legal heirs of such decedent, and his decision thereon shall be final and conclusive. If the Secretary of the Interior decides the heir or heirs of such decedent competent to manage their own affairs, he shall issue to such heir or heirs a patent in fee for the allotment of such decedent; if he shall decide one or more of the heirs to be incompetent, he may, in his discretion, cause such lands to be sold: Provided, That if the Secretary of the Interior shall find that the lands of the decedent are capable of partition to the advantage of the heirs, he may cause the shares of such as are competent, upon their petition, to be set aside and patents in fee to be issued to them therefor. All sales of lands allotted to Indians authorized by this or any other act shall be made under such rules and regulations and upon such terms as the Secretary of the Interior may prescribe, and he shall require a deposit of ten per centum of the purchase price at the time of the sale. Should the purchaser fail to comply with the terms of sale prescribed by the Secretary of the Interior, the amount so paid shall be forfeited; in case the balance of the purchase price is to be paid in deferred payments, a further amount, not exceeding fifteen per centum of the purchase price, may be so forfeited for failure to comply with the terms of the sale. All forfeitures shall inure to the benefit of the heirs. Upon payment of the purchase price in full, the Secretary of the Interior shall cause to he issued to the purchaser patent in fee for such land: Provided, That the proceeds of the sale of
inherited lands shall be paid to such heir or heirs as may be competent and held in trust subject to use and expenditure during the trust period for such heir or heirs as may be incompetent as their respective interests shall appear: Provided further, That the Secretary of the Interior is hereby authorized, in his discretion, to issue a certificate of competency, upon application therefor, to any Indian, or in case of his death to his heirs, to whom a patent in fee containing restrictions on alienation has been or may hereafter be issued, and such certificate shall have the effect of removing the restrictions on alienation contained in such patent. * * * (239 U. S. 506, 241 U . S. 201, 246 U. S. 227, 249 U. S. 308, 264 U. S. 446.)
The Act of February 14, 1913 (37 Stat., 678; 3 Kappler, 558), amended section 2 of the Act of June 25, 1910, relating to wills made by Indians, so as to read as follows:
SEC. 2. That any person of the age of twenty-one years having any right, title, or interest in any allotment held under trust or other patent containing restrictions on alienation or individual Indian moneys or other property held in trust by the United States shall have the right prior to the expiration of the trust or restrictive period, and before the issuance of a fee simple patent or the removal of restrictions, to dispose of such property by will, in accordance with regulations to be prescribed by the Secretary of the Interior: Provided, however, That no will so executed shall be valid or have any force or effect unless and until it shall have been approved by the Secretary of the Interior: Provided further, That the Secretary of the Interior may approve or disapprove the will either before or after the death of the testator, and in case where a will has been approved and it is subsequently discovered that there has been fraud in connection with the execution or procurement of the will the Secretary of the Interior is hereby authorized within one year after the death of the testator to cancel the approval of the will, and the property of the testator shall thereupon descend or be distributed in accordance with the laws of the State wherein the property is located: Provided further, That the approval of the will and the death of the testator shall not operate to terminate the trust or restrictive period, but the Secretary of the Interior may, in his discretion, cause the lands to be sold and the money derived therefrom, or so much thereof as may be necessary, used for the benefit of the heir or heirs entitled thereto, remove the restrictions, or cause patent in fee to be issued to the devisee or devisees, and pay the moneys to the legatee or legatees either in whole or in part from time to time as he may deem advisable, or use it for their benefit: Provided also, That sections one and two of this Act shall not apply to the Five Civilized Tribes or the Osage Indians. (254 U. S. 570; 256 U. S. 319; 261 Fed. 309.)
The Indian Appropriation Act approved May 18, 1916 (39 Stat. 127, ante, 57), provided for partition of inherited Indian lands as follows:
* * * Provided further, That if the Secretary of the Interior shall find that any inherited trust allotment or allotments are capable of partition to the advantage of the heirs, he may cause such lands to be partitioned among them, regardless of their competency, patents in fee to be issued to the competent heirs for their shares and trust patents to be issued to the incompetent heirs for the lands respectively or jointly set apart to them, the trust period to terminate in accordance with the terms of the original patent or order of extension of the trust period set out in said patent.
By the Act approved March 3, 1928 (45 Stat., 161), the Act of June 25, 1910, sec. 1, was further amended so as to read as follows:
That section 1 of the Act of June 25, 1910 (Thirty-sixth Statutes at Large, page 855), "An Act to provide for determining the heirs of deceased Indians, for the disposition and sale of allotments of deceased Indians, for the leasing of allotments, and for other purposes," be, and the same is, amended so as to read as follows:
"That when any Indian to whom an allotment of land has been made, or may hereafter be made, dies before the expiration of the trust period and before the issuance of a fee-simple patent, without having made a will disposing of said allotment as hereinafter provided, the Secretary of the Interior, upon notice and hearing, under such rules as he may prescribe, shall ascertain the legal heirs of such decedent, and his decision thereon shall be final and conclusive. If the Secretary of the Interior decides the heir or heirs of such decedent competent to manage their own affairs, lie shall issue to such heir or heirs a patent in fee for the allotment of such decedent.; if he shall decide one or more of the heirs to be incompetent, he may, in his discretion, cause such lands to be sold: Provided, That if the Secretary of the Interior shall find that the lands of the decedent are capable of partition to the advantage of the heirs, he may cause the shares of such as are competent, upon their petition, to be set aside and patents in fee to be issued to them therefor. All sales of lands allotted to Indians authorized by this or any other Act shall be made under such rules and regulations and upon such terms as the Secretary of the Interior may prescribe, and he shall require a deposit of 10 per centum of the purchase price at the time of the sale. Should the purchaser fail to comply with the terms of sale prescribed by the Secretary of the Interior, the amount so paid shall be forfeited; in case the balance of the purchase price is to be paid on such deferred payments, a further amount, not exceeding 15 per centum of the purchase price, together with all interest paid on such deferred installments, may be so forfeited for failure to comply with the terms of the sale.1 All forfeitures shall inure to the benefit of the heirs. Upon payment of the purchase price in full, the Secretary of the Interior shall cause to be issued to the purchaser patent in fee for such land: Provided, That the proceeds of the sale of inherited lands shall be paid to such heir or heirs as may be competent and held in trust subject to use and expenditure during the trust period for such heir
or heirs as may be incompetent as their respective interests shall appear: Provided further, That the Secretary of the Interior is hereby authorized, in his discretion, to issue a certificate of competency, upon application therefor, to any Indian, or in case of his death to his heirs, to whom a patent in fee containing restrictions on alienation has been or may hereafter be issued, and such certificate shall have the effect of removing the restrictions on alienation contained in such patent." * * *
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