conveyance of any full-blood Indian heir in such lands shall be valid unless approved by the courts having jurisdiction of the settlement of the estate deceased allottee.

Mr. WHITE. Does that carry a provision that an Indian could be sued or his land taken away from him for delinquent taxes?

Mr. SEMPLE. Yes, sir; ever since the act of May 27, 1908, and prior thereto, the Choctaws and Chickasaws have been sui juris. They could sue and be sued with reference to their own restricted lands. Nobody questioned that proposition.

Mr. WHITE. To what law does this question apply?

Mr. SEMPLE. This is directed specifically to the act of July 18, 1918. Mr. WHITE. Briefly, what does that act do?

Mr. SEMPLE. The act of July 18, 1918, did just two things. The first thing it did was to confer jurisdiction on the courts of Oklahoma to determine heirs as to restricted Indians, and everybody; that is the first thing it did.

The second thing it did, it conferred jurisdiction on the courts of Oklahoma to partition lands, and it is under this partition section that this case has arisen.

Mr. WHITE. And the Supreme Court in its decision decided that the Government had to be a party.

Mr. SEMPLE. That is what the opinion simply says.

Now the fact is that section 2 of the act of 1918 confers jurisdiction upon the State courts, both district and county, to partition lands among the heirs, and the Government advanced the contention after the Minnesota decision came down about 3 years ago that that jurisdiction carried the implicit limitation that the Government must be in the case; and that was the contention that was finally sustained by the Supreme Court of the United States, which upsets some of these titles, and if you had been here yesterday you would have heard the statement I made that it upsets lots of titles that the Department itself had invested Indian money in on the theory that that was the law. The Department of the Interior never questioned that it was not the law.

Mr. WHITE. In carrying out Mr. Disney's simile, one of these Indian allotments could be turned into a flour mill or a factory could be established on it, and in turn they could secure a loan from the R. F. C., and the lawyers of the R. F. C. could have passed on it and said it was a good title, and then this decision would upset the whole thing.

Mr. SEMPLE. The Department of Agriculture is facing that exact situation at the present time. The Federal Government participated in condemnation proceedings in the Red River area and in other Indian areas and they are now faced with that very question. The Department is perplexed with the problem as to whether the lands are restricted or unrestricted.

Mr. DISNEY. I think that is all, Mr. Chairman.

Mr. FLANERY. There have been no decisions of the United States Supreme court that the land was not subject to restrictions for alienation. Now the allottee, under the language of the statute of 1908, could and did remove all restrictions with the proviso, however, that there was no conveyancing of any interest of full-blood heirs and that would not be valid except through the county courts. Now our Supreme Court has said the county court is acting in the capacity of

a Federal agent, just as the Secretary of the Interior did with allotted lands.

Mr. SEMPLE. Absolutely.

Mr. WHITE. What position did the Department of the Interior take on this bill, H. R. 1200?

Mr. STIGLER. We do not know yet.

Mr. WHITE. Haven't you received a report?

Mr. STIGLER. No, but I understand they do not object to the results sought.

Congressman Schwabe, you have had an extensive law practice at Tulsa. Do you care to make a statement at this time with reference to H. R. 1200?

Mr. SCHWABE. Mr. Chairman, I do not know that I can add anything to what has been so ably said. Perhaps I have been speaking out of turn here, but it was only for the purpose of facilitating and expediting and amplifying the presentation of this matter for the benefit of those members of the committee who have not had the experience that we have had practically in our relations in Oklahoma in dealing with these questions; and other members of the committee perhaps are not as familiar with these problems as the gentlemen who have made their statements here.

This is not legislation designed to destroy the Indians or take anything away from them whatever, but is merely treating the Indian as if he were a white man insofar as equal rights are concerned, and is merely seeking to enact here a curative statute or a statute that will clarify the title to millions of dollars of property of all claims, Indians, white men, farmers, oil men under their leases, and other people, whoever they are, who bought these lands in reliance upon the stability of the titles that we all considered sound until this decision of the Supreme Court, which has been referred to, and it was a shock to all of us when the decision was rendered. We simply want an act of Congress, or our conditions demand an act of Congress, that will clarify this situation and not deprive anybody of anything. They have already received their money; there is not any complaint about that. As far as any question of fraud is concerned, they may be fully protected about that and I know you did not have in mind. depriving anybody from proceeding where fraud might be the basis of procedure. It is simply a question of taking care of this technicality that the Supreme Court says has not been observed in some cases, and on account of the nonobservance they have seen fit to strike down the titles that have been relied upon before.

Mr. GALLAGHER. I would like to state clearly the way I look at it. You know, in Minnesota there has been a depletion of the natural resources. The Indians up there owned the most valuable timberlands in the State some years ago and they were allowed to sell their holdings and they did. The first thing they sold all of their holdings. and the majority of them became destitute. They were exploited by whites and the semi-Indians and corporations who got it all away from them. Then the Government passed a law giving them the right of heirship to file on, I believe, double what anybody else was permitted to file on, namely 320 acres of land. The Indians filed on that land generally and the Indians lost that land, too; and today in Minnesota you will find the majority of them poverty-stricken. They have been unjustly dealt with by the white man and we ought

to do something for them, and so I believe there is some reason for this decision of the Supreme Court rather than a cold technical decision. Land is different from other classes of property. The land is our mother. It is establishing a precedent. There is something back of this decision and we should know what it is.

Mr. SCHWABE. May I offer a comment, Mr. Chairman?

Mr. STIGLER. Yes, sir.

Mr. SCHWABE. In the event that this legislation is not enacted to effect substantially the purpose sought, it would result in upsetting titles of many more who are not of Indian blood than it would of those who are of Indian blood, because in these partition cases the Indian had in many instances sold his undivided interest in the inherited lands and that is gone. It has been approved by the county court having jurisdiction over the settlement of the estate of the deceased allottee, as provided in the act of May 27, 1908. Perhaps I have no way of knowing what an accurate proportionate basis would be, but in many instances the decided majority would be white people who would be injured rather than Indian heirs. I just want to suggest that.

Mr. ROBERTSON. Since the Supreme Court decision came down, what is the present status of affairs out in your State? Can leases be made? Are oil leases being made pending this legislation? What is going on out there as of today?

Mr. SEMPLE. I will be glad to try to answer your question. I think I may say safely, this that every major oil company, every minor oil operator in the Mid-Continental field, which includes Oklahoma, is standing by, marking time.

Mr. ROBERTSON. I would think so.

Mr. SEMPLE. I will tell you this: Our company operating in the Creek country brought in the first well in that field. We are not only producers but a pipe-line operator. Now as a result of that decision we are at a standstill and so they decided to ask Congress for this remedial legislation. If they do not get it, it will result in companies ceasing to operate in the territory of the Five Civilized Tribes. For instance, the company which cannot afford to take a chance incident to running into difficulties on one of these leases will say: "Here, we will take our leases over in Kansas or Texas."

Now our company does not operate in any Osage leases because the 6 percent royalty is considered too high.

Mr. WHITE. What benefit would your company receive in reference to the ownership of oil lands?

Mr. SEMPLE. None.

Mr. WHITE. What change in title would be made as to the ownership of the oil or piece of land? What effect has the decision on the title and what change in title does the decision make?

Mr. DISNEY. Suppose you bought a piece of land 20 years ago and this is partitioned land and this decision upset it. If this legislation passes, you would still retain it; otherwise you and your heirs would quit the land.

Mr. WHITE. It just goes back to the heirs, but the Government does not control all heirs.

Mr. DISNEY. In other words, the heirs would have the money and the land, too.

Mr. WHITE. But the Government does not get anything.
Mr. DISNEY. No.

Mr. FERNANDEZ. I believe I understand Mr. Gallagher's concern and I want to ask this question again. I asked it yesterday.

This bill, H. R. 1200, does not change the law as to the future?
Mr. STIGLER. Not one bit.

Mr. FERNANDEZ. As to the future the Government would still be in there any time they have the partition suits and the Government would have to be brought in.

Mr. STIGLER. Absolutely.

Mr. FERNANDEZ. And the Government would be fully protected.. Mr. STIGLER. Absolutely.

Mr. FERNANDEZ. And in those cases where everything was fair and aboveboard but the formality of bringing the Government as a party defendant was not complied with, it would remain as is; but if there was fraud in any proceedings, it would still be open.

Mr. STIGLER. Yes.

Mr. FERNANDEZ. Does the present bill make this provision? Mr. STIGLER. An amendment has been suggested to take care of cases where fraud was involved so that they would still be open.

Mr. GALLAGHER. I do not object to the Indians selling their lands, but as long as they are considered wards of the Government, I think there should be a restriction on their selling their heritage.

Mr. STIGLER. Does the Government care to make a statement, Mr. Flanery?

Mr. FLANERY. I am not in a position to express any opinion on the part of the Department, but I would be very glad to help in any way I can. I think it is entirely true that the Department does protect Indian titles and my own feeling is that there is nothing that can be done about it and I am not suggesting how it can be done.

I raised the question yesterday as to the constitutionality of this type of legislation. I raised the question without being able to answer it. I do not think it can be answered until it reaches the highest authority.

I would like to raise a question as to whether there is a need for this legislation.

In 1926 Congress passed an act which placed in force and made applicable the statute of limitations of the State of Oklahoma to all Indians of the Five Civilized Tribes, to whom they were not theretofore applicable, and also made the statutes applicable as against the United States

to the same extent and effect and in the same manner as in the case of any other citizen of the State of Oklahoma.

Even though the partition deeds are void under the Hellard decision, that constitutes the law.

Mr. ROCKWELL. HOW?

Mr. FLANERY. By virtue of the act of 1926 which was placed in force in the State of Oklahoma, which made the statute of limitations of the State of Oklahoma applicable to all the Indians of the Five. Civilized Tribes to whom they were not theretofore applicable, and also made the statutes applicable as against the United States

to the same extent and effect and in the same manner as in the case of any other citizen of the State of Oklahoma.

Mr. SCHWABE. If they qualified under the statutes.

Mr. FLANERY. Yes; and I would say that the statutory period has run in the case of many of the holders of title.

Mr. SCHWABE. That is right; but a multiplicity of suits by thousands or tens of thousands would be necessitated. We lawyers might appreciate that, but it isn't quite fair.

Mr. ROCKWELL. The way I understand it, if one man would transfer a piece of property to another man for a specific sum, the title would prove out in 15 years.

Mr. FLANERY. Yes, sir.

Mr. SCHWABE. Provided this adverse possession continues under the color of title.

Mr. FLANERY. That is right.

Mr. SCHWABE. But that requires proof in the court in this particular case.

Mr. FLANERY. An adverse possession requires the payment of taxes.

Mr. SCHWABE. Not necessarily; actual possession would satisfy the statutes. I might say that the taxes on this land would be paid.

But that still leaves the school fund of Oklahoma holding the bag, as well as the Federal land bank, because the statute does not run against and in favor of them.

Mr. FLANERY. But the State of Oklahoma has not consented to be sued. No Indian can maintain action against the State of Oklahoma unless the State legislature enacts legislation consenting to their suing, and I understand they have not done so. The United States could do so.

Mr. ROCKWELL. What would happen after the 15-year period?

Mr. FLANERY. Answering your question, sir: Since 1926 the interested parties in a partition suit can serve notice on the superintendent of the Five Civilized Tribes, and thereby the United States comes in the action and would be bound by the action, whether it comes in or not. Now where such a notice has been filed or served on the superintendent there is no question whatsoever as to the validity of the proceedings and the binding effect of the decision on the United States and the Indians.

Now, as a matter of fact, I do not think there have been more than a few cases since 1926 in which that procedure has not been followed. The Hellard case is one. Now there are about three or four other cases in which the circuit court of appeals has followed the Hellard decision and has reversed the lower courts, ruling that the partition proceedings are void.

I doubt it you gentlemen from Oklahoma know more about it than I do but I doubt if there are more than a very few cases, other than those, in which notice has not been served on the United States. since 1926. As a matter of fact, we have a record of some, not more than 400 cases, which were filed for partitions in which notice was not served in all cases. I think there cannot be any question about the title in those four-hundred-some cases.

Now, getting back to the constitutional questions in the Hellard case. The final decision has been entered. The findings are that those proceedings were void and title to those lands reinvests in the Indians.