Now, Mr. Flanery, there was no lack of notice by statute until the act of 1926 was passed, was there?

Mr. FLANERY. That is quite true, Mr. Chairman. However, the United States Supreme Court in its opinion pointed out that full conformity in the Hellard case could have been had prior to 1926. Mr. STIGLER. That was based on the Minnesota case.

Mr. FLANERY. And the court served constructive notice.

Mr. STIGLER. Under the act of Congress of 1918 the probate attorney was always present or given notice in these partition cases down there, so that the Government, therefore, was represented.

Mr. FLANERY. I do not know whether that is so or not, Mr. Chair

man.

Mr. STIGLER. That was the actual practice down in Oklahoma. Mr. FLANERY. You recall section 8 of the act of 1933?

Mr. STIGLER. That is true; but, as a matter of practice, they were given notice in partition suits prior to 1926.

Mr. FLANERY. You may be entirely correct; I do not know.

Mr. STIGLER. I know it was the practice because I followed it. Mr. FERNANDEZ. In those days when this practice was going on, could the Government have sued for the Indians and set aside any of those proceedings?

Mr. STIGLER, Yes.

Mr. SCHWABE. Yes.

Mr. FERNANDEZ. And the Government did not do it? Why? Mr. FLANERY. Well, as I understand it, Congressman, it was not though that the presence of the United States was necessary.

Mr. FERNANDEZ. In other words, the Government itself understood it was not required at that time.

Mr. FLANERY. I think that is quite true.

Mr. FERNANDEZ. And what you are trying to do is correct something which was wrong but which everybody, including the Government, though was all right; that is, you failed to make the Government a party defendant because you did not think it was necessary at that time.

Mr. STIGLER. Yes, sir.

Mr. FLANERY. That was, you might say, the general understanding of the attorneys in Oklahoma, and probably the courts as well.

Mr. FERNANDEZ. It was assumed that the appearance of the probate attorney was sufficient for the United States to be a party in those proceedings.

Mr. STIGLER. We will hear from Mr. Semple, now.

Mr. SEMPLE. I would like to make this clarifying statement, which I think is very important, in the light of what Mr. Flanery has said. In 1926 the Congress passed an act which permitted the Indian citizen of the State or anybody to plead the statutes of limitations of the State of Oklahoma. That act was introduced by Congressman Hastings in the House and Senator Harrell in the Senate. It was designed to put at rest all these aggravating problems in regard to Indian titles, but the Department of the Interior refused to agree to the bill until one provision was put in it. The Department of Interior insisted that you must put a provision in there that would say that you could serve notice upon the superintendent of the Five Civilized Tribes and thereby bind the United States.

In other words, in the act of 1926 it simply put in force the statutes of limitations of the State of Oklahoma and then said:

Provided, That any litigants may serve upon the superintendent of the Five Civilized Tribes notice of pendency of such suits and upon the service of such notice the Government shall be bound thereby.

Now that statute went to the circuit court of appeals quite early after its enactment. The first case, as I recall, that reached the circuit court of appeals for decision was the case of Fish v. Kennamer (37 Fed. 2d 243). In that case Judge Lewis wrote the opinion and he said definitely, and you can refer to it, that the giving of notice was optional; it was not procedural, but if you wanted to bind the United States and close its mouth forever, you could serve that notice. Practically, gentlemen, there was not 1 lawyer in 10 who served that notice or thought any purpose was accomplished by serving it, although they knew that the Government could come in and relitigate the title. Nobody cared about it. If a person paid good money and everything was regular, there was nothing that needed to be relitigated. Mr. WHITE. Did the statute of limitations run as between the owner and against the State of Oklahoma and against the United States Government?

Mr. SEMPLE. As has been pointed out here, they claim that the circuit court of appeals in the case of United States v. Houston (143 Fed. 2d 76) held that the State could not avail itself of the appeal from the statute of limitations, because it was a sovereign and had not waived its right to sue.

Mr. WHITE. The statute of limitations is in all cases against the United States Government.

Mr. SEMPLE. There has been no decision on that question. A rather chaotic condition exists as to that and Mr. Flanery said you can plead it. There is one case that came up quite recently where the Attorney General's office filed a brief in which they said that the statute of limitations was available under certain conditions, meaning you could prove, of course, all the fundamental facts-plead the statute of limitations.

Mr. WHITE. In the State of Idaho the statute of limitations runs against an individual 5 years, against the State 35 years, and against the United States Government never.

Mr. SEMPLE. Of course, that is on the theory that the Government is a sovereign and the statute does not run against a sovereign. That is true in our State.

Mr. WHITE. You mentioned the statute of limitations all the time. Are you talking about the United States Government?

Mr. SEMPLE. Yes, sir; the act of 1936 of Congress; that the statute of limitations may be pled against both an Indian or the Government. Mr. WHITE. The United States Government?

Mr. SEMPLE. Yes, sir; it specifically says there, "the Government." Mr. WHITE. What is the term, 35 years?

Mr. SEMPLE. No; 15 years.

Mr. BAILEY. May I ask a question? What would be the situation of someone who got a title between 1918 and 1926?

Mr. SEMPLE. If you got a title earlier, say between 1918 and 1926, why you could prove all the basic facts and that would permit you to plead limitations. There are a large group of people who could avail themselves of the plea of statute of limitations.

Mr. SCHWABE. But it takes a suit in each case and the Department files an answer and they require you to prove all the basic facts. If you cannot prove the facts, you are washed out, even if you are from 1918 to 1926. From 1926 on the statute of limitations would not help you because the statute had not run.

Mr. STIGLER. Senator Gore, do you desire to make a statement? STATEMENT OF HON. THOMAS C. GORE, FORMER UNITED STATES SENATOR FROM THE STATE OF OKLAHOMA

Senator GORE. I do not really care to make a formal statement, Mr. Chairman, because I could only reinforce what these other gentlemen have said better than I can say it because they are more familiar with the decisions.

I will say a word to reinforce what they have said, although it is not necessary; because the gentlemen can imagine as well as they can describe the situation which has resulted from these court decisions.

It is a sort of stroke of paralysis, tying up oil lands in the State of Oklahoma at the very moment when oil is more urgent and more necessary than it ever was in our history. That is incidental and it does not bear on the merits of the case, but it does bear on the merits of doing something in the premises if the committee decides it can be effective in remedial legislation, and I think it can.

Now there is one point in the bill H. R. 1197, which is not pending at this time, but I want to make a point about it. It might be a point with reference to the bill H. R. 1200, which you are now considering. I think it is on page 1, where the expression is used, "shall (not) be invalid." You see, it is a negative remedy.

The amendment offered yesterday by Mr. Flanery to section 2 is affirmative and clarifies that point, although I do not think it is necessary because, as you notice, it says: "These titles shall not be invalid," on account of the evidence of notice, which limits it to that one point; while there are other defenses, such as fraud or any other defect, for that matter. It would not be affected by this legislation if enacted.

Now there is one other point in that bill to which I direct your attention, and it is in the provision on the second page. Mr. Chairman, I would suggest that the word "such" should precede conveyances" so that it would read:

That all such conveyances made after the date of the enactment of this Act must have the consent and approval of the Secretary of the Interior.

That language is universal and I think it was intended to limit it. to such conveyances as are described in the preceding part of this section. I would like to have you consider that.

Mr. FLANERY. I am sure the Department would not object to that suggestion.

Senator GORE. Now take the case where an Indian has sold acres of land and there has been a partition and he got $5,000 for it, got every dollar's worth. I make this point because morality is a twoway track; it is reciprocal in its relationships and the Indians owe some obligation to their friends, customers, and vendees, where an Indian sells a piece of land for $5,000 and gets the money and then as a result of a defective title he has both the land and the money. Now there is the question of morality involved.

I understand that Mr. Gallagher wants to protect the Indians. That point is not involved in this situation. Mr. Flanery's point is well taken as to the decisions, that title never passed out of the Indians and they could not, of course, take it out by legislation, and I do not know whether you could meet that situation in this way by giving the statute something like a statute of redemptions. Within a year the Indian could return the money and recover title. You have not reached that point and you probably never will, but something ought to be done to iron out this situation because, as a matter of public necessity, property ought to transfer to those who want to buy it from those who want to sell, and a certain owner ought to be allowed to sell his land because that is the way business goes on and we develop.

This paralysis as a result of which nothing can be done pending legislation is a strong argument in favor of early legislation, if you can find time to work it out. The whole thing has brought about paralysis at a most inopportune time, from the standpoint of the Government and the people of Oklahoma.

I thank you.

Mr. STIGLER. Thank you.

H. R. 1197

We will now pass on to H. R. 1197 and H. R. 1199.

We will now take up for consideration H. R. 1197 and H. R. 1199, which are bills to validate titles to certain lands conveyed by Indians of the Five Civilized Tribes and to amend the act entitled "An Act relative to restrictions applicable to Indians of the Five Civilized Tribes in Oklahoma," approved January 27, 1933.

Without objection copies of the bills will be inserted in the record at this point.

(H. R. 1197 and H. R. 1199 are as follows:)

[H. R. 1197, 79th Cong., 1st sess.]

A BILL To validate titles to certain lands conveyed by Indians of the Five Civilized Tribes Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That no conveyance made by an Indian of the Five Civilized Tribes on or after April 26, 1931, and prior to the date of enactment of this Act, of lands purchased, prior to April 26, 1931, for the use and benefit of such Indian with funds derived from the sale of, or as income from, restricted allotted lands and conveyed to him by deed containing restrictions on alienation without the consent and approval of the Secretary of the Interior prior to April 26, 1931, shall be invalid because such conveyance was made without the consent and approval of the Secretary of the Interior: Provided, That all conveyances made after the date of the enactment of this Act must have the consent and approval of the Secretary of the Interior.

[H. R. 1199, 79th Cong., 1st sess.]

A BILL To amend the Act entitled "An Act relative to restrictions applicable to Indians of the Five Civilized Tribes in Oklahoma", approved January 27, 1933

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Act entitled "An Act relative to restrictions applicable to Indians of the Five Civilized Tribes in Oklahoma", approved January 27, 1933 (47 Stat. 777), is amended by adding at the end thereof new sections 9, 10, and 11, as follows:

"SEC. 9. That the following words in section 8 of this Act: 'any interest in land of any full-blood Indian heir' shall not be construed to include any interest in

land which was not restricted in the person from whom such full-blood Indian heir inherited the same.

"SEC. 10. In the case of any interest in land acquired by purchase with restricted funds after the date of enactment of this section, such interest shall not be deemed a restricted interest unless the deed conveying such interest shows upon its face that such purchase was made with restricted funds.

"SEC. 11. No conveyance, subsequent to January 27, 1933, and prior to the date of enactment of this Act, of any interest in land of any full-blood Indian heir, which was not restricted in the person from whom such full-blood Indian heir inherited the same, shall be invalid because such conveyance was not presented for approval in open court as provided in section 8 of this Act."

Mr. STIGLER. H. R. 1197 was introduced as the result of a court decision handed down by the Tenth Circuit Court of Appeals, known as the Williams case.

Congressman Disney, do you care to make a statement on this case? Mr. DISNEY. I think Mr. Semple will make the statement.

STATEMENT OF W. F. SEMPLE, TULSA, OKLA., GENERAL COUNSEL, DEEP ROCK OIL CORPORATION

Mr. SEMPLE. With the permission of the committee, I will make just a very brief statement, because I think the Department of the Interior are in harmony with us, and their suggested amendment, I think, is perfectly satisfactory to everybody that is concerned with this case; and, as I see it, their draft of the bill should be substituted for the one that Congressman Stigler has introduced.

The necessity for this legislation, Mr. Chairman, comes about by reason of the fact that the Circuit Court of Appeals of the Tenth Circuit in the case styled United States v. Williams (139 Fed. (2d) 83), has rendered a decision which to some extent upsets a considerable number of titles. It does not involve anything like as many titles as are involved in the Hellard case, about which we have had a discussion today and yesterday, but the Williams case does involve quite a number of titles.

Here is what was at the basis of the decision in the Williams case: For many years after the act of May 27, 1908, the Secretary of the Interior had used funds of these Indians that came into his hands from any source and bought tracts of land here and there for some restricted Indians. He inserted in the deeds that he used when he bought land under these provisions, commonly called in Oklahoma the CarneyLacher form of deed, restrictions. It simply said that the land here involved shall remain restricted against alienation for a period of 15 years, not past April 26, 1931, unless restrictions thereupon are removed by the Secretary of the Interior.

Now everybody thought that that simply meant this-that if an Indian held his land until that date, it would then be free of all restrictions to his heirs, because it was not his allotment. That is the theory that everybody felt was the case that the land passed unrestricted to their heirs, when 1930 came along and he still owned the land, and that he was free to convey it by his own deeds. Nobody had any doubt about it, not even the Department of the Interior. Now here are the actual facts in the Williams case. Mrs. Williams, up in Missouri, wanted to purchase a tract of land known as the Bushyhead tract, and she went to a lawyer by the name of Dan Stratton and told him she had made arrangements to buy this tract of land but did not