probate courts had jurisdiction over the estates of restricted and incompetent persons and minors; but there was a question raised immediately as to this general restriction act after it was passed, as to whether or not the State courts had jurisdiction in partition proceedings, as a means of distributing an estate that was in process of probate, or partitioning a man's estate in district court proceedings.

The Supreme Court of the United States found, in the case of Coleman v. Battiest I can supply the citation for you-Mr. Justice Rainey, former chief justice of the State, took that case to the Supreme Court. That was the first case where they held that the State courts did not have jurisdiction to partition lands among restricted heirs of members of the Five Civilized Tribes. Up to that time the lawyers and the courts generally in Oklahoma were in doubt as to whether or not the district courts, under the general grant of jurisdiction to the State courts by the act of 1908, had the power to partition lands among full-blood Indian heirs; so that after this decision was rendered in the Coleman v. Battiest case, the matter was brought to the attention of Congress. As I say, lawyers and the courts had been in doubt about the matter prior to the decision, many taking the view that the State courts had that right under the enabling act and the act of 1908.

Subsequently the Federal land bank at Wichita, Kans., and the State-school land department both declined to make loans on lands where the title was based on partition proceedings, and it was apparent that many titles were affected by that decision.

In fact the bill that has been so interpreted by the Supreme Court of the United States was drafted by the general counsel of the Skelly Oil Co., who was Mr. W. P. Z. German. He drafted this bill and sent it to the House Committee on Indian Affairs. Mr. Carter of Oklahoma was then chairman of the committee and he introduced that bill in Congress and it was passed. It contained basically just two provisions:

It, first, gave the State courts jurisdiction to determine heirs. That was contained in the first section; and

In the second section it gave the courts of Oklahoma, both county and district, jurisdiction to partition lands among the Indians of full blood.

Nobody ever entertained the slightest doubt but that under that grant of jurisdiction in 1918-no one had any doubt but that the State courts had jurisdiction to partition land among full-blood Indians; that is, until the Supreme Court decided this case of Hellard v. United States, in which they held State courts were without jurisdiction if the United States Government is not a party to the proceedings. decision of the United States Supreme Court in the Hellard case practically nullifies the statutes that were passed in 1918.

The

There is no difference between the grant of authority conferred upon the State courts by the act of 1918 and the grant of authority to the county courts in probate matters found in the act of 1908. Section 6 of the act of 1908, by which the county courts of Oklahoma acquired jurisdiction, authorized a sale of lands of full-blood minors, and reads like this:

That the persons and property of minors or allottees of the Five Civilized Tribes shall, except as otherwise specifically provided by law, be subject to the jurisdiction of the probate courts of the State of Oklahoma.

Now the act of 1918, to which I have referred, and which is the Partition Act, I think it is modeled exactly after the language that was in the 1908 act, reads as follows:

That the lands of full-blood members of any of the Five Civilized Tribes are hereby made subject to the laws in the State of Oklahoma providing for the partition of real estate.

Now no lawyer in Oklahoma, no judge that I ever heard of, no courts, questioned the grant of such authority contained in that act until it was questioned in the Hellard case. The Supreme Court of the United States in the Harris v. Bell case construed the language in the manner that I have read here in question and held specifically and emphatically that the grant of jurisdiction was complete; but in construing the second act, the act of 1910, the Supreme Court of the United States placed this interpretation upon the act. They said while this act was a grant of jurisdiction to the State courts, yet it was predicated upon the limitation that the United States had to be a party in the proceedings; and that is what has brought about the status that we are confronted with in Oklahoma, and insofar as we are permitted on Indian lands to pass title.

Of course, the oil companies cannot function in the Indian country where this question would likely arise. It is a pressing thing. It is affecting the investment not only of the oil companies, but of others who are confronted with the question as to whether or not they have titles as a result of this Supreme Court decision.

Mr. MUNDT. Mr. Chairman, I would like to ask the witness whether in any of these cases that we are considering the Indian has been defrauded by the white man out of some of his rich oil lands; and if there have been such cases of defrauding the Indian by the white. man, would that involve titles which would be covered in H. R. 1200. Mr. SEMPLE. Congressman, I do not think there are. Of course, you would have this situation in any event: If fraud or lack of consideration enters into the case, that would constitute a step toward something which ought to be corrected; but, of course, that would not affect the situation to which I am directing your attention.

Mr. MUNDT. I remember when we had this same legislation before. the committee in the last Congress a considerable amount of time was spent in conference with Members of the Senate and Members of the House, trying to agree upon language which would protect the Indian in case there was such fraud.

Mr. SEMPLE. Yes, sir.

Mr. MUNDT. And any language which was satisfactory to the committee was unsatisfactory to the people representing the Oklahoma citizens down there.

Mr. SEMPLE. Yes, sir.

Mr. MUNDT. And no language that was satisfactory was developed, not because they wanted to defraud the Indians but because they considered it would open it up to endless litigation. I notice that in the discussion this morning there had been nothing whatsoever said in regard to safeguarding the Indians after some of these titles have been transferred, with inadequate or inequitable compensation for the titles. Mr. SEMPLE. Yes, sir.

Mr. MUNDT. I feel there should be something inserted in the bill to protect the Indians in those cases that we have heard about so many times where the white man has beat the Indian out of his equity.

Mr. SEMPLE. Yes, sir.

Mr. MUNDT. And I would hate to be a party to validating by act of Congress such improper acts.

Mr. SEMPLE. Yes, sir; I appreciate your position, Congressman; and, as far as I am concerned, I would be willing to insert in this bill the plain saving clause which has been inserted in the other bill. In other words, there could be inserted in this bill a provision which would say in substance that the question of the adequacy of consideration on contracts or frauds and related matters are still left open and are untouched by this legislation. That could be drafted and inserted in the bill.

Mr. MUNDT. I have in mind inserting in the law something like that.

Mr. SEMPLE. The oil companies and the State land department, make loans and they want a title that is merchantable. They want a title that is good. If the Indian is defrauded, of course, that should be a basis for setting aside the title, and it is a basis for setting aside title.

The only thing I am attempting to direct my remarks to today is that the Supreme Court of the United States, the court of last resort in these matters, in interpreting an act of Congress has now given it an interpretation that nobody in the country, not the court of appeals or the district court, have ever given a like interpretation to it.

Mr. ROBERTSON. When did the United States Supreme Court render that decision.

Mr. SEMPLE. The decision in the case of Hellard v. United States was rendered in May of 1944. I think it is found in 88 Law Edition at page 1155.

Mr. ROBERTSON. The purpose of this legislation, then, is to cure that situation before the courts.

Mr. SEMPLE. All this is saying is that notwithstanding the restrictions that have been found by the Supreme Court, that no order, judgment, or decree in partition made, entered, or rendered subsequent to the effective date of June 14, 1918, and prior to the effective date of this act, and involving inherited lands of enrolled and unenrolled members of the Five Civilized Tribes, shall be held null, void, invalid, or inoperative, nor shall any conveyance of any land pursuant to such order, judgment, or decree be held null, void, invalid, or inoperative because the United States was not a party to such order, judgment, or decree, and so forth. In other words, this law is validating State court judgments and district court judgments and conveyances involving Indian lands of the Five Civilized Tribes in the State of Oklahoma.

Mr. ROBERTSON. Where does the difficulty arise in your State following this Supreme Court decision? You have remarked to the effect that no one knows where they are. Are people reluctant to take the decision of the court?

Mr. SEMPLE. Congressman, here is judicial history of this partition statute. It reached the circuit court of appeals in the case of BondToms.

It was decided about 5 years ago by the circuit court of appeals and the same question was raised in that case and Mr. Justice Bratton rendered the opinion and said in regard to the grant of jurisdiction in the 1918 act that the courts had unlimited power to partition the

lands. That stood for 5 years, when the Supreme Court decision nullified it.

Mr. ROBERTSON. Was the Supreme Court decision in 1944? Mr. SEMPLE. Yes. The United States Circuit Court of Appeals for the Tenth Circuit. On Federal questions we have to seek the decisions of the Federal court as being more controlling than a decision by the State court because that involves Federal statutes. You are familiar with that.

Mr. ROBERTSON. Yes.

Mr. SEMPLE. Now, Mr. Congressman, to give you an idea as to how the courts in Oklahoma have viewed this question, I will restate again that Judge Bratton, he wrote the opinion in the Bond-Toms case (108 Fed. 2d 504), which came down about 5 years ago, and he construed this very act and he said there was no difference in the grant of jurisdiction in the 1918 Partition Act than there was in the original 1908 Probate Act, which the Supreme Court had upheld without any further limitations; as far as the Federal Government was concerned, that was the law for 5 years. In other words, it was the law and the circuit court of appeals claimed that Federal statute gave complete jurisdiction; and when this case came up, the Supreme Court affirmed the circuit court of appeals, and said there was no difference in the grant of jurisdiction; but the Government appealed the case to the Supreme Court of the United States, which then reversed the circuit court of appeals and said, as I stated a while ago, it was invalid unless the United States be in the proceedings.

Mr. HOLMES. Is it retroactive?

Mr. SEMPLE. I understand the Supreme Court in rendering decisions, that the decision is prospective only. The Supreme Court said that in a case a few days ago. Most decisions are prospective or retroactive. Of course, under the rule applied in the case every partition title in the Five Civilized Tribes where the Government was not brought in was striken down.

Mr. HOLMES. That is the point.

Mr. SEMPLE. It is stricken down regardless of whether or not the Indian to whom the land was originally allotted sold it, and regardless of the fact that the courts and the Federal Government and the Federal probate attorneys and court agencies functioned and said: "Here is $5,000 that was paid and it is the value of the land." The court now cannot even take into consideration the return of the money and does not.

Judge Rice, for instance, tried a companion case to the Hellard case. Here is the way the Government proceeded in that litigation. Of course, I am not blaming the Government. They always try cases just like private lawyers try their cases and they want to win them and it is commendable; but here is the Government's status, as I get it from the record in the two cases:

They had two cases, one in the eastern district before Judge Rice. He is the judge in the eastern district, which comprises the whole Cherokee and Choctaw country principally.

Mr. STIGLER. He is a Federal judge.

Mr. SEMPLE. Yes; he was appointed by President Roosevelt. Now the Government also had another case on the docket before Judge Savage, another Federal judge, for the northern district, who was also appointed by President Roosevelt. They had the Hellard case before

Mr. SEMPLE. Yes, sir.

Mr. MUNDT. And I would hate to be a party to validating by act of Congress such improper acts.

Mr. SEMPLE. Yes, sir; I appreciate your position, Congressman; and, as far as I am concerned, I would be willing to insert in this bill the plain saving clause which has been inserted in the other bill. In other words, there could be inserted in this bill a provision which would say in substance that the question of the adequacy of consideration on contracts or frauds and related matters are still left open and are untouched by this legislation. That could be drafted and inserted in the bill.

Mr. MUNDT. I have in mind inserting in the law something like that.

Mr. SEMPLE. The oil companies and the State land department, make loans and they want a title that is merchantable. They want a title that is good. If the Indian is defrauded, of course, that should be a basis for setting aside the title, and it is a basis for setting aside title.

The only thing I am attempting to direct my remarks to today is that the Supreme Court of the United States, the court of last resort in these matters, in interpreting an act of Congress has now given it an interpretation that nobody in the country, not the court of appeals or the district court, have ever given a like interpretation to it.

Mr. ROBERTSON. When did the United States Supreme Court render that decision.

Mr. SEMPLE. The decision in the case of Hellard v. United States was rendered in May of 1944. I think it is found in 88 Law Edition at page 1155.

Mr. ROBERTSON. The purpose of this legislation, then, is to cure that situation before the courts.

Mr. SEMPLE. All this is saying is that notwithstanding the restrictions that have been found by the Supreme Court, that no order, judgment, or decree in partition made, entered, or rendered subsequent to the effective date of June 14, 1918, and prior to the effective date of this act, and involving inherited lands of enrolled and unenrolled members of the Five Civilized Tribes, shall be held null, void, invalid, or inoperative, nor shall any conveyance of any land pursuant to such order, judgment, or decree be held null, void, invalid, or inoperative because the United States was not a party to such order, judgment, or decree, and so forth. In other words, this law is validating State court judgments and district court judgments and conveyances involving Indian lands of the Five Civilized Tribes in the State of Oklahoma.

Mr. ROBERTSON. Where does the difficulty arise in your State following this Supreme Court decision? You have remarked to the effect that no one knows where they are. Are people reluctant to take the decision of the court?

Mr. SEMPLE. Congressman, here is judicial history of this partition statute. It reached the circuit court of appeals in the case of BondToms.

It was decided about 5 years ago by the circuit court of appeals and the same question was raised in that case and Mr. Justice Bratton rendered the opinion and said in regard to the grant of jurisdiction in the 1918 act that the courts had unlimited power to partition the