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CONCERNING LAND TITLES OF THE FIVE CIVILIZED

TRIBES OF OKLAHOMA

FRIDAY, MARCH 2, 1945

HOUSE OF REPRESENTATIVES,
COMMITTEE ON INDIAN AFFAIRS,

Washington, D. C.

The Committee on Indian Affairs met in the committee room, 246 Old House Office Building, at 10 a. m., Hon. William G. Stigler (acting chairman) presiding.

Other members present were: Hon. John R. Murdock, Hon. Compton I. White, Hon. Antonio M. Fernandez, Hon. Mike Mansfield, Hon. Cleveland M. Bailey, Hon. William J. Gallagher, Hon. Berkeley L. Bunker, Hon. Robert F. Rockwell, Hon. Hal Holmes, Hon. Wat Arnold, Hon. Charles R. Robertson, and Hon. George B. Schwabe: Mr. STIGLER. The meeting will please come to order and we will resume our hearing on H. R. 1200.

At this time we will hear former Congressman Disney of Oklahoma.

STATEMENT OF HON. WESLEY ERNEST DISNEY

Mr. DISNEY. Mr. Chairman, I do not know that I can be of any real help in this matter. I might say that we wrestled with this matter last fall, as the chairman will remember. This has brought about a most unusual situation in legal activities. The practical system for 26 years, after 1918, every lawyer in Oklahoma considered that there was no question but that the United States was a party to these proceedings and that was relied on by the legal fraternity and their clients for 26 years; so that now this decision having been rendered in the Hellard case, there is a real necessity for clearing this up. It appears to me that this matter is extremely important.

Now Mr. Semple outlined yesterday the situation as clearly as it can be done. Anything else would simply be adding to what he said, but it does appear to me that these comments might be made:

This decision upsets titles of not only land allotted to Indians, but it also upsets the title of land that Indians bought with money unrestricted or that was bought with restricted money, so that it does not stop at the Indian allotted lands, but it goes clear to the extent of the so-called Indian independent lands, purchased from restricted funds or nonrestricted funds.

Now oil companies do not generally buy land. Once in a while they buy royalties. They buy leases upon lands that are owned by real-estate men and lawyers, but generally leases are made upon land owned by farmers.

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As I understand it, in the Hellard case this land was purchased by an old Baptist preacher for a few hundred dollars. This decision not only upsets his title but he does not get his money back.

While I was a Member of the House I had a good many letters on the subject. I remember distinctly getting one letter from a school teacher who had bought some land in one of these types of cases. She had had the land about 20 years and had supposed the land was hers, but this decision upsets her title.

So, to repeat, the oil companies seldom buy a piece of land in fee. They buy a lease from the farmer. In, I would say, 99 instances out of 100, the oil company has no interest in the fee-simple title in the real estate. The farmer himself owns that. It upsets the farmer's interest if the land produces oil. It destroys his title to the oneeighth royalty, so that the whole matter has become a matter of extraordinary public interest in the State of Oklahoma.

Mr. FERNANDEZ. It also upsets the leases of the oil companies. Mr. DISNEY. Yes, sir; it upsets everything, but it is not simply an oil-company matter.

Mr. FERNANDEZ. It is only incidentally an oil-company matter. Mr. DISNEY. It upsets the oil company to a very material degree. Mr. BAILEY. In one of these properties, the title of which was nullified and there was an operating company producing oil and gas, what would be done with the revenues from that source until this matter is straightened out?

Mr. DISNEY. Well, I think generally the court allows the operating person or company his expense of operation, but Mr. Semple would be better qualified to answer that question than I; but the income from the property goes to the heirs who sold their land originally in the partition suit. Isn't that a correct statement?

Mr. SEMPLE. Yes.

Mr. DISNEY. I would just like to say a few words on the matter of appreciation of values which was brought up yesterday. In the county court of Nowata County in 1910 I personally saw an allotment of an Indian, named Freedman, offered for sale at $2 an acre. It was nothing but a lot of rocks and hills up next to the Cimarron River in Creek County. Now it was not worth $2 an acre. It would not have produced interest at $2 an acre and nobody bid on it. If anybody had bid on it, it would have been bid at the then-going price of real estate in that area. Someone might buy it for pasture but it was not even good pasture. Within 3 years oil was struck and the Indian woman took just about $2,000,000 out of that land as her oneeithth royalty. So you just cannot tell when land is going to appreciate.

I personally bought a little piece of land from an allottee in Creek County in the hope it would sometime be worth something for oil. I paid what was a fair price or what the allottee thought was a fair price and, although they drilled on it and got a little oil, it pays $2 to $3 a month, but I paid about $30 an acre for it; so you cannot tell when these lands appreciate in value from oil.

Oil is a symbol, and there has been more money spent for drilling wells than was ever taken out in oil, in my judgment.

Mr. FERNANDEZ. A great deal of money is sunk in drilling wells from which no returns are ever made.

Mr. DISNEY. Yes, sir; vast quantities of money have been spent. May I go back to the matter of procedure for just a minute, and then I will quit?

In these partition cases, if there are heirs and one of the heirs wants this land, he will divide it in kind or will sell it and the money will be divided. The procedure is that he files his suit against all his relatives who are also heirs in the suit in the district court. If they are residents of that county, they have 30 days in which to answer. If they are nonresident, in the ordinary procedure I understand they are allowed 60 days within which to answer. The court cannot render a judgment unless these heirs are either in court constructively or actually. The probate attorney appears. He is an arm of the Government. The land is appraised after the determination of the heirs is made. The land is appraised by disinterested appraisers.

Mr. SCHWABE. Disinterested appraisers are appointed by the district court.

Mr. DISNEY. Yes, sir; they are appointed by order of the judge of the district court, and then after that appraisal is presented, the district judge makes an order dividing the real estate in kind, or if it has been sold, he divides the money.

Any one of the parties to the partition action may take the land at its appraised value if he desires to have the land. If it is practical, it is divided in kind, parceled between the various heirs. As I said, the probate attorney is there. He has a chance to see and view the appraisal and it is his duty to do so, and I think it is done in every instance with most meticulous care, so that in nearly every instance there is a fair appraisal and a fair sale and a fair division of the money; so that the mere technicality that the United States is not made a party was never dreamed of by any lawyer down there in those 26 years. Never has that been given a thought as to partition sales. Mr. GALLAGHER. I am interested in having the interests of the Indians protected and not having them defrauded as has been the case in Minnesota.

Mr. DISNEY. The procedure in regard to these partition sales was very meticulously carried out. As I said, the probate attorney appeared, there was an appraisal of the land by disinterested appraisers, and the sales were scrutinized carefully by the judge before they were carried out. When a party buys land, they do not take it on any one's opinion by any manner or means.

Now let us suppose that in 1920 you wanted to buy a piece of partitioned land. You came to me as a lawyer to have me ascertain whether the title was good. You had the abstract of title, which is the complete record from the United States Government clear through. That was brought to me and you asked me if you are getting a good title. The custom is to give you a written opinion setting out the whole facts and lawyers, out of pride and duty to their clients, are required to know whether it is a good title. I or any other lawyer in Oklaoma, if you had come to us in those days, would have followed through the same procedure and taken it through court. The probate attorney would have appeared. I would have told you that the appraisal seemed to be correct and regular and in my judgment you are getting a good title. That is the position that would have been taken by the courts.

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Then in a year or two you sell the land to Mr. Schwabe. He takes it to some other lawyer, we will say, and he gets an opinion; and that lawyer writes a written opinion on the subject and gives his opinion that it is a good title. So Mr. Schwabe buys. After a few years, he wants to sell it to Mr. Stigler and Mr. Stigler goes through the same procedure. Now there has been a great deal of activity in the State of Oklahoma and there have been lots of land sales. People have disposed of their land and they have not held their land like they do in the older States, and so it would not be unreasonable to say that in many cases there have been as many as 25 or 30 sales; and likewise when you had the land you may have leased it to an oil company on a 5-year lease and each year the oil company would have paid you rent to keep the lease alive, and in 5 years time your lease expired and you were clear of the lease. Meanwhile you sold it to Mr. Schwabe and he had a chance to lease, and maybe they drilled or paid the rent to keep the lease alive. So it has been the custom to accept these titles as valid because the lawyers of the State in considering these sales did not understand that the statute requires the Government to be a party to the suit, because of the fact that the probate attorney of the United States Government was there at every sale.

Mr. GALLAGHER. If these restrictions are taken off the Indian lands and they are permitted to sell their lands the same as you and I could, how long do you think it would be before the Indians as a class in Oklahoma would be as poverty-stricken as the Chippewas in the State of Minnesota, where the same thing happened?

Mr. DISNEY. The restrictions have been removed by the death of the allottee. That removes the restriction and the rest is procedual. Now with reference to the economic condition of the Indians living in the district which I formerly represented and which Mr. Schwabe now represents, and the district, for example, which Mr. Stigler represents, why we have rich Indians and poor Indians. We have Indians of average income and wealth. We are proud of them and like them and we treat them like we do each other.

In every courthouse in what I call my district there are at least three Indian county officials elected by the vote of the people. The whole theory of government has been in that respect to consider the Indians the same as the whites and that is the reason why the land in Oklahoma has been allotted in severalty, and the Indians of part blood are given the right to sell the land without any restrictions whatever and they act and operate as the ordinary whites.

Now they have been doing that and they have been doing a good job. I am proud of them, and I think they have done a fine job. Mr. SCHWABE. May I suggest, in supplementing what you have said, that the lands in question were relieved of restrictions and were not restricted and each one of these heirs could, and in many instances did, sell their own undivided interest.

Mr. STIGLER. That is right.

Mr. DISNEY. Before the partition sales were had.

Mr. STIGLER. Yes.

Mr. SCHWABE. And in most instances, I dare say, the heir had already sold his interest and it was simply a question of getting the title clear. The property may have been divided in kind among the heirs and this was to bring it in one ownership.

Mr. GALLAGHER. What I am disturbed about is the reason for that decision of the Supreme Court. I believe the reason for it was that the Supreme Court considered that the Indian was a ward of the Government and the Government was not there to protect him.

Mr. DISNEY. Yes, that is true. But, Mr. Gallagher, in 1910, I believe it was, the Government filed what was called the 30,000 land suits; and in that case, 8 years before the statute in question (1918) the court held that the Government was the guardian of the Indian and the Indian was the ward of the Government. Then 8 years after that decision the Congress itself, with that in mind, passed this statute, the act of June 14, 1918, and it never rejected the theory that the Government is the guardian of the Indian. That has always been the theory and is now and is the proper one; but this is procedure.

Mr. WHITE. The act of June 14, 1918, removed the restrictions on the land and permitted them to sell the land.

Mr. DISNEY. Substantially where a restricted Indian dies, the restrictions go off.

Mr. WHITE. The provisions of that statute of 1918, to which you referred, permitted the removal of the restrictions from the sale of Indian lands.

Mr. DISNEY. Yes, sir.

Mr. WHITE. There was a change of policy of the Government, as I understand, back about that time, that decided that the Indians were citizens and gave them the rights of citizens and the right to buy and sell their land; and there was a statute passed then and following that the Indians began to sell their lands and became impoverished, and then they passed another law putting on restrictions.

Mr. DISNEY. That is not quite correct.

Mr. WHITE. Correct me if I am wrong.

Mr. DISNEY. The original statute removed restrictions from allotments.

Mr. WHITE. What year was that?

Mr. STIGLER. That was the act of May 27, 1908.

Mr. WHITE. It was in 1918 that the law was passed removing the restrictions of the Government control over Indian lands.

Mr. DISNEY. Not all Indians.

Mr. STIGLER. It removed the restrictions on Indians up to halfbloods.

Mr. WHITE. Just up to half-bloods? I want to get that clear in my mind.

Mr. DISNEY. That act provided that the death of an Indian operated to remove the restrictions from his allotments, with the condition that it be approved by the courts.

Mr. WHITE. Did it apply to his heirs, where the heirs were fullblood? Did it provide that full-blood heirs could sell the land?

Mr. SEMPLE. No; not heirs of full-blood. All power to remove the qualified restrictions, as they are termed in some of the cases, was vested in the county courts alone. Such a full-blood Indian heir, under section 9 of the act of 1908, could not convey his inherited lands without the approval of the county court in the State. The exact language of section 9 of the act of 1908 is as follows:

That the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon alienation of said allottee's land: Provided, That no

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