CURRENT DECISIONS OF THE SUPREME COURT OF OKLAHOMA. FRANCIS HANCOCK AND BERTIE VS. THE MUTUAL TRUST COMPANY No. 631 Affirmed. Lands allotted (homestead and surplus) under the provisions of Section 22, chap. 1362, 32 Statutes at Large, p. 641, approved July 1st, 1902, in the name of a deceased member of the Choctaw tribe of Indians, are alienable by his heirs after lawful selection, prior to the lapse of one, three, or five years, and prior to the issuance of certificate or patent. (Syllabus by the Court.) Thomas Norman and Redwine, for plaintiff in error. W. D. Gibbs, and Ledbetter & Bledsoe, for defendants in error. Opinion of the Court by DUNN, J.: October 1st, 1905, Simon Ebonowatubbee, a full-blood Choctaw Indian, died. He was duly enrolled as a member of that tribe of Indians at the time of his death, and entitled to an allotment in accordance with the provisions relative thereto contained in what is commonly known as the Supplemental Treaty, chapter 1362, 32 Statutes at Large, p. 641, approved July 1st, 1902. At the time of his death he had not selected his allotment, and hence there had not been issued to him either a certificate or patent therefor. A few days after his death an administrator was appointed over his estate, who in due coursee, selected, filed upon, and had allotted to the said decedent in his name, a tract of land as and for his allotment. He left surviving him Bertie Ebnowatubbee, his wife, and Francis Hancock, the plaintiffs in the court below, and also one John King, who inherited his property under the terms of section 22 of the treaty aforesaid King promptly sold his interest in the land and Bertie Ebonowatubbee and Francis Hancock, parties hereto, also in the latter part of October, 1905, made, executed, and delivered a deed to the land but on the 22d, day of November, 1906, filed their complaint in equity to have the same set aside, alleging among other grounds that the said land was not alienable by them at the time the deed was executed, there being at that time neither certificate or patent issued for said allotment. To this part of the complaint the defendants filed a demurrer which was on the 22d, day of June, 1908, by the court sustained, holding "that the demurrer should be sustained as to all that part of the plaintiffs amended complaint which alleges that the lands in controversy were inalienable at the time of the execution of the deed which deed was executed before the issuance of the allotment certificate and patent to said lands, but subsequent to the selection of same as the allotment of Simon Ebonowatubbee." Whereupon, complainants electing to stand upon the allegations of their complaint, and refusing to plead further gave notice of appeal to the Supreme Court, which in due course was had, and the case is now before us on petition in error and case-made. Two questions are raised by counsel for plaintff in error; first, did the lower court err in holding that the land allotted in the name of a deceased allottee of the Choctaw nation, was alienable by the heirs of such allottee after lawful selection but prior to the issuance of a certificate of allotment or of patent to the land. Second, did the lower court err in holding that the surplus land lawfully allotted a member of the Choctaw Nation was alienable immediately on the death of the allottee and before the expiration of one, three, and five years, and without reference to whether a certificate or patent had theretofore been issued These questions require consideration at our hands of the following sections of the treaty referred to: "11. There shall be allotted to each member of the Choctaw and Chickasaw tribes, as soon as practicable after the approval by the Secretary of the Interior of his enrollment as herein provided, land equal in value to three hundred and twenty acres of the average allottable land of the Choctaw and Chickasaw nations, and to each Choctaw and Chickasaw freedman, as soon as practicable after the approval by the Secretary of the Interior of his enrollment, land equal in value to forth acres of the average allottable land of the Choctaw and Chickasaw nations; to conform, as nearly as may be, to the areas and boundaries established by the Government survey, which land may be selected by each allottee so as to include his improvements. For the purpose of making allotments and designating homesteads hereunder, the forty-acre or quarter-quarter subdivisions established (Continued on page 33.) (*) WESTERN INVESTMENT COMPANY, et al., Plaintiff in Error VS: MARCHIE TIGER, Defendant in Error. Error from Western District of the Indian Territory. W. R. Lawrence, Trial Judge. Reversed 1. An adult full-blood Creek Indian who, after five years after the approval of the Supplemental Creek Agreement executed deeds without the approval of the Secretary of the Interior, conveying lands which had been allotted to (*) This opinion was first published in The Oklahoma Law Journal a year ago (See July No. 1908). Since that time there has been added to the list of subscribers several hundred lawyers in Oklahoma many who by their own statement have not read this important opinion, besides, we have since secured a little over two hundred attorneys to our list from the border counties of Arkansas and Texas, who are interested in our decisions and have not had access to it; although since published in the Pacific Reporter, but that reporter not covering their states. So we have reproduced the Tiger case at their request and trust that the old Oklahoma subscribers will excuse the repetition. certain of his relatives who were full-blood Creek Indians, and which had been inherited by him upon the death of such relatives, thereby conveyed a good title to his grantees. 2. Sec. 22 of Act Congress, approved April 26, 1906, entitled "an Act to provide for the final disposition of the affairs of the Five Civilized Tribes in the Indian Territory, and for other purposes," does not extend beyond the time provided by section 16 of the Supplemental Creek Agreement, the restrictions upon the power of heirs who are full-blood Creek Indians to alienate their inherited lands. (Syllabus by the Court.) Gibson & Ramsey, and Roach & Bradley, and Allen & Penson, for plaintiff in error. Judson J. Hughes, for defendant in error. Opinion of the Court by HAYES, J. : This action was brought in the United. States Court for the Western District of the Indian Territory at Muskogee, and trial had in that court shortly before the admission of the State into the Union, which resulted in a judgment. Appeal from that to this court has been perfected since the admission of the State Marchie Tiger, defendant in error (plaintiff below), is an enrolled full-blood Creek Indian, and is the sole heir at law of his deceased relatives, Sam Tiger, Martha Tiger, Lydia Tiger and Lousia Tiger, all of whom were enrolled as full-blood Creek Indians, and who died intestate during the year 1903, without issue, after having had allotted to them their respective allotments of land in the Creek Nation, consisting of 160 acres each, which allotments of land they owned at the time of their death and were inherited by Marchie Tiger. Marchie Tiger on the eight day of August, 1907, conveyed the land so inherited by him from Sam Tiger and Martha Tiger to the plaintiff in error, the Western Investment Company, and by a series of deeds on, respectively, July 1, 1907, July 26, 1907, August 8, 1907, and Aug ust 13, 1907, he conveyed the land inherited by him from Lydia and Louisa Tiger to the plaintiff in error, The Coweta Realty Company. He seeks by this action to have said deeds cancelled and the sales so made by him set aside, and the cloud formed upon his title by said conveyances removed. Plaintiffs in error (defendants below) filed their separate answers, and the court referred the case to the Master in Chancery to take evidence and report his findindgs of fact and conclusions of law The Master, after taking the evidence, filed his report of findings of fact and conclusions of law, and recommended that the suit be dismissed for want of equity. The court set aside the Master's findings, both of law and fact, and entered a decree in accordance with the prayer of plaintiffs petition. There is but little controversy if any at all, about the facts. The findings of the Master and of the court as to the facts are, for the purposes of the questions of law involved in this case, the same, and are substantially as above stated. The only proposition presented for our consideration by this appeal is whether a full-blood Creek Indian could, on the 8th day of August, 1907, convey lands inherited by him from his relatives who were full-blood Creek Indians, which lands had been allotted to his relatives as the portion of lands to which they were entitled as members of the Creek Tribe of Indians. In considering this proposition, it will be necessary for us to briefly review the treaties of the United States with the Creek Tribe of Indians and the laws of Congress leading up to and under which allotments of the lands of the Creek Nation have been made to the individual members of the Creek Tribe of Indians. The lands embraced within the Creek Nation were acquired by the United States by the Louisiana purchase, and at one time were a part of the public domain of the United States. On the 13th day of February, 1833, a treaty was concluded between the United States and the Creek Tribe of Indians by which the United States, in consideration of the Creek Tribe of Indians' relinquishing their claims |