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

Judge Savage and they had the Meadors case before Judge Rice. Of course, both cases were being held under the general conditions by the Department of Justice. Well, the Department of Justice interposed the contention in both cases that the United States was a necessary party in partition proceedings, saying that that rule was enunciated in a recent Minnesota case where a Minnesota Indian was involved; and when they interposed that defense and it went to trial before Judge Rice in the case which Judge Rice had before him, which was what we call the Meadors case, which I will quote in a moment-United States of America v. Meadors, in the United States Court for the Civil District of Oklahoma, Civil Action No. 872-the lawyers took the testimony of Indian lawyers, trial judges, and Supreme Court judges to the effect that nobody had ever placed such an interpretation on the law. But over in the case before Judge Savage the lawyers handling that case were probably not as diligent in pressing their case so they did not press it; so that when the Government had the responsibility of perfecting their appeal, they appealed from the Hellard case in Judge Savage's court and they postponed the matter of perfecting the appeal in Judge Rice's case and took it in the Hellard case. When they came up to the Court of Appeals in the Hellard case, the matter was argued and counsel representing the Government presented his contention; and, of course, the courts there disagreed with them and said nobody ever heard of such a contention, that the Government was a necessary party in the case involving the Five Civilized Indian Tribes; that it was unheard of. The court took the case under advisement and in its opinion denied the Government's contention.

The Government appealed the case to the Supreme Court of the United States and their opinion was written sustaining the Government's contention, basing it largely on the Minnesota case.

Now here is one basic discussion which ought to be borne in mind in considering the controlling effects of the Minnesota case as it relates to the set-up in the Hellard case.

The court could properly say, and did properly say in the Minnesota case, that title to this land was in the Government and the Government had a direct and valid interest in it; because, if you are familiar with those matters, the patent to the Five Civilized Tribes has never passed. That constitutes the basic difference between Five Civilized Tribes allotments and other allotments.

In the Five Civilized Tribes allotments title passed by the patent in fee. The Government lost nothing in there save and except as the Government had a right to supervise conveyances under the General Restriction Act. That has been fundamentally passed on by the Supreme Court and decided; but now the Supreme Court has taken the position and enunciates the principle that the United States is a necessary and indispensable party in regard to the partitioning of these restricted Indians' lands.

Mr. HOLMES. Does the Supreme Court recognize the fact that these allotments have passed on to the Five Civilized Tribes?

Mr. SEMPLE. No, Congressman; they did not discuss that question. They simply did this, which is the point toward which we have been tending for a long time in their decision: The Department of Justice. and the Bureau of Indian Affairs-that is particularly true in this administration-have apparently proceeded upon the general theory

that there is no fundamental distinction to be drawn between a restricted Five Civilized Tribe Indian and a wild tribe Indian. They have that idea.

If you take the status of a wild tribe Indian and inquire into it, you find you have this situation: All the wild tribes-so-called-are Indians who have obtained allotments of land in severalty in trust. The Government retains the title and can reissue the patents to heirs and succeeding heirs, as long as they continue to be restricted.

Now in the case of the Five Civilized Tribes, the situation is entirely different. The patent passes, the title vests. The heirs take a vested, definite interest when the patent is issued.

The Supreme Court of the United States has said time and time again that inception of the title in the Five Civilized Tribes of Indians was the issuance of a certificate of allotment and the patent came along and merely confirmed their title. That is a situation which is entirely unlike what we have in the case of the wild Indians.

Now practically, as far as the Supreme Court of the United States is concerned; and as you gentlemen well know, it is a very busy court and very seldom takes jurisdictional cases which are in the category of private lands. Now, if you will pardon me a minute, I just want to give you a hint of what Judge Rice said in the companion cases; that is, in the Meadors case, in his findings. That was inserted in the record in the Meadors case. The findings of Justice Rice, which were submitted for the information of the court, said among other things:

The court further finds, from the testimony introduced, that attorneys practicing in the eastern half of Oklahoma uniformly passed and approved titles based upon partition proceedings had under said act of Congress of 1918, wherein the United States was not a party thereto.

The court further finds from the testimony introduced that it was the policy and practice of the Office of the Superintendent for the Five Civilized Tribes to pass and approve titles wherein a partition action had been filed involving restricted Indian lands and in which the United States was not made a party thereto. The court further finds from the testimony introduced that large sums of money belonging to restricted Indians and held in trust by the Secretary of the Interior had been expended by authority of the Secretary of the Interior for the purchase of land at partition sales under said act for the use and benefit of restricted Indians.

Now in that last finding Judge Rice is simply saying this, that notwithstanding the Government's attitude as reflected by the Department of Justice, the Interior Department, functioning through the superintendent of the Five Civilized Tribes, has permitted the investment of literally thousands of dollars of restricted Indians' money in the various types of title which has been stricken down in the earlier case. So you have this anomolous situation: The Government through its attorneys has obtained a judgment which is absolutely contrary to the views of the functioning department of the Government that has immediate control of these Indians in Oklahoma, because it, itself, through all the years since 1918 has consistently adhered to the view that the courts had jurisdiction, and unlimited jurisdiction.

Mr. GALLAGHER. Coming now from the legal aspects, tell us about the practical effect, which is of more interest.

Mr. SEMPLE. Yes, Congressman.

Mr. GALLAGHER. According to what you desire and these bills provide, you want it so that the Indians, or certain Indians, can have a greater right to sell or convey any part of their heritage than they have at the present time.

Mr. SEMPLE. No, Mr. Congressman, we do not ask that. We are simply saying this, that under the several constructions of the present acts of Congress dealing with the status of these Indians, our titles have been vested and have been acquired on the basis of the existing laws as we understood them to be; whereas now the Supreme Court of the United States in this decision, just as it has in numerous cases with which you probably may be familiar, they have announced a rule which is a departure from the rule which they have heretofore enunciated in construing a similar statute. In other words, as you probably know, the Supreme Court's decision in the Insurance case holding insurance is a matter of interstate commerce resulted in every State attorney general in the United States filing a petition of intervention in that case and trying to get a reformation of the opinion but did not get it.

What I am saying here is that this decision sets aside the decision of the Circuit Court of Appeals. It departs from the rules of the Supreme Court of the United States, the rules which it itself has enunciated in construing a similar statute.

Now I do not say you ought by any sort of means permit private investors to take advantage of the Indians; nobody wants that. Mr. FERNANDEZ. May I ask a question?

Mr. SEMPLE. Yes, sir.

Mr. FERNANDEZ. This bill, H. R. 1200, does not affect the future. In other words, in the future they will have to join.

Mr. SEMPLE. Absolutely, Congressman. Now, of course, it is quite obvious, as you will see when you think a moment: Here is a decision by the Supreme Court of the United States. Everybody takes notice. We have the pattern of the Hellard case and we now have this decision by the Supreme Court. We are not trying to change the law. We will accept it as it is interpreted.

Mr. FERNANDEZ. But where partitions have been held, you could approve the title; but in the future they would have to bring in the Government.

Mr. SEMPLE. That is right. Since this ruling by the Supreme Court, it will be necessary to bring in the Government.

A farmer, for instance, will get a tract of land containing 160 acres. He will buy it now and later his son will take title to the land and have it examined and find the title is in the Cherokee Nation. The lawyer will bring in the record and if it shows that it is restricted, then he will tell the son that he must get the approval of the Secretary of the Interior.

Mr. FERNANDEZ. But in this case there had been a partition already made through the court?

Mr. SEMPLE. Yes, sir.

Mr. FERNANDEZ. Because the question was not important.

Mr. SEMPLE. That is right.

Mr. FERNANDEZ. And in this case that partition was effected so that this law would not affect that particular title?

Mr. SEMPLE. Not as to the facts in the adjudicated case, with which you are familiar.

Mr. FERNANDEZ. Then H. R. 1200 will not validate the title of either case which the Supreme Court has held invalid?

Mr. SEMPLE. No, sir; and in this case of the old Baptist preacher who paid $1,800 for a rough hillside tract of land, he would have been

willing to submit it to the Interior Department for approval, but as it was he lost his money and the land.

Mr. FERNANDEZ. But H. R. 1200 will validate all titles of partition? Mr. SEMPLE. That come within the scope of this partitioning; yes, sir.

Mr. FLANERY. Mr. Chairman, is it permissible to ask a question? Mr. STIGLER. Yes, but state your name for the record.

Mr. FLANERY. I am William H. Flanery, of the Office of the Solicitor, Interior Department, chief of the Indian Division.

I wonder, Mr. Chairman, if you have considered the constitutionality of this type of legislation. This is in effect a bill framed prohibiting the courts from making any order declaring an order, judgment, or decree in partition made, entered, or rendered subsequent to the effective date of the act of June 14, 1918, and prior to the effective date of this act, and so forth.

I

Now, as a matter of fact the decision has already been entered in perhaps four or five cases and other decisions perhaps will be entered in the future; no doubt they are also in a number of other cases. do not think they will be where they are subject to attack. In other words, under that decision, as I see it, the title of the Indian heirs never passed and the proceedings are absolutely void.

Mr. SEMPLE. That is right.

Mr. FLANERY. Isn't it possible that it would operate to transfer the Indian titles from the heirs to a non-Indian?

Mr. SEMPLE. Mr. Flanery, in answer to that inquiry I would say that in 1922 the Congress passed an act which was designed to do and did do just what you are asking to be done here. In other words, the act of 1922, with which you are, of course, very familiar, simply said that the titles that were shown to lack the Secretary's approval were nevertheless valid, notwithstanding the absence of approval, so that the statute is not essentially different from this one.

Mr. FLANERY. Was that through the Supreme Court of the United States?

Mr. SEMPLE. No; the supreme court of the State passed on it within 2 years of its enactment and it has been repeatedly passed upon and those decisions have been decided by the Supreme Court of the United States, so that we have about five decisions.

Mr. FLANERY. Isn't there a distinction between that situation and here? In that case the Indian had approval and that approval could be given by the Secretary of the Interior and by Congress.

Here you have a transfer of title by judicial process.

Mr. SEMPLE. Yes, sir.

Mr. FLANERY. And we think the judicial proceedings are binding and there is a distinction between the two situations.

Mr. SEMPLE. I realize that an argument could be made along that line, but I think the authorities are overwhelmingly in favor of the view that these transfers of title can be validated by the Congress. Mr. FERNANDEZ. The Indians were parties to all these proceedings. Mr. SEMPLE. Yes, sir; they were in court and the court had jurisdiction over it. The machinery of the courts functioned. The money was paid to the court just as if it had been paid to a private individual. It was paid to the court and then paid over to the Indians and the only argument now is that it was found that the United States was not brought in that case, because of its supervisory guardianship