As a result of the testimony heard on the above three named bills the author of the bills, Congressman Stigler of Oklahoma, reintroduced the bills in one bill, which bill, while embodying the objectives of those bills, nevertheless, conforms to the safeguards and suggestions which both the Department of the Interior and your committee felt were necessary and advisable to the best interests of all concerned. The following communication from the Secretary of the Interior on H. R. 1197 and H. R. 1199 is herewith made a part of this report. No communication was received on H. R. 1200, a bill to validate State court judgments in Oklahoma and judgments of the United States District Courts of the State of Oklahoma. THE SECRETARY OF THE INTERIOR, Hon. HENRY M. JACKSON, House of Representatives, Washington, D. C. Washington, March 1, 1945. MY DEAR MR. JACKSON: Reference is made to the request for a report on H. R. 1197, a bill to validate titles to certain lands conveyed by Indians of the Five Civilized Tribes, and on H. R. 1199, a bill to amend the act of January 27, 1933 (47 Stat. 777). A request has also been received from the chairman of the Senate Committee on Indian Affairs on S. 54, a bill to validate titles to certain lands conveyed by Indians of the Five Civilized Tribes. While I do not object to the results sought by these bills, I favor the enactment of the substitute legislation in the form hereinafter suggested. The provisions of S. 54 are, with one minor exception, identical with the provisions of the two House bills. Section 1 of S. 54 and H. R. 1197 would, if enacted, overcome the effect of the decision of the United States Circuit Court of Appeals for the Tenth Circuit in United States v. Williams (139 F. (2d) 83, certiorari denied, 322 U. S. 727, rehearing denied, 322 U. S. 770). The Williams case presented the question of title to land which had been purchased with restricted moneys of a full-blood Cherokee Indian and conveyed to him by deed prohibiting alienation without the approval of the Secretary of the Interior at any time prior to April 26, 1931. The Indian grantee conveyed the land without secretarial approval in the year 1934. The court held that the restrictions otherwise expiring on April 26, 1931, were extended until 1956 by the act of May 10, 1928 (45 Stat. 495). Lacking the required approval, the deed by which the Indian attempted to convey the land was ineffective. The decision invalidates, of course, all titles conveyed under like circumstances subsequent to April 26, 1931. All such titles acquired prior to the date of enactment of H. R. 1197 would by the passage of that bill be made good and the lack of secretarial approval would be immaterial. Conveyances made after the date of the enactment would, however, require the approval of the Secretary of the Interior to be valid. This Department has heretofore taken the position that legislation such as contained in section 1 of S. 54 and H. R. 1197 was not necessary for the reason that all titles acquired during the period in question could be validated by the simple expedient of submitting the deeds of conveyance to the Secretary of the Interior for approval. We have expressed willingness to approve such conveyances where the transaction was entered into in good faith and unattended by fraud, duress, or other vitiating circumstances. Inasmuch, however, as purchasers were undoubtedly misled by the recitation in the original deeds that the restrictions against alienation would terminate on April 26, 1931, and by advice from the officials of the Five Civilized Tribes Agency that the restrictions would terminate upon that date and that conveyances thereafter would not require secretarial approval to be valid, this Department is not disposed to object to the enactment of legislation that would validate titles so acquired in all cases where nonapproval is the only objection to the conveyance. Such, as we understand it, is the scope of section 1 of S. 54 and H. R. 1197. With one minor exception section 2 of S. 54 is identical with the provisions of H. R. 1199. These measures would add to the act of January 27, 1933 (47 Stat. 777), three sections-sections 9, 10, and 11. This Department has no objection to the results contemplated by the addition of sections 9 and 11 to the act of 1933; namely, that certain language in section 8 of the act of January 27, 1933 (47 Stat. 777), shall not be regarded as imposing restrictions against alienation on lands inherited by full-blood Indian heirs where the lands were unrestricted in the hands of the person from whom the heir inherited. Such legislation, if enacted, would remove the necessity of county court approval regarded as a legal requirement by the Circuit Court of Appeals for the Tenth Circuit in the case of Murray v. Ned (135 F. (2d) 407, certiorari denied, 320 U. S. 781). The addition of section 10 to the act of 1933 would accomplish no useful purpose. That section as set forth in H. R. 1199 would declare to be unrestricted lands purchased with restricted funds after the date of enactment in all cases in which the deed of conveyance failed to show upon its face that the purchase was made with restricted funds. The section as incorporated in S. 54 would accomplish a like result unless the deed "contains express restrictions against alienation or shows upon its face that such purchase was made with restricted funds." All deeds conveying lands purchased for individual Indians with restricted funds now include this information or show that the land are being conveyed to the United States in trust for the individual Indian owner under the act of June 26, 1936 (49 Stat. 1967). Where the deed itself contains express restrictions against alienation or a recitation that the title is held in trust by the United States for the individual Indian this is sufficient to put all persons dealing with the title on notice of the fact that the lands are not subject to alienation without the required approval. S. 54 and H. R. 1197 and H. R. 1199 are not in the opinion of the Department appropriately worded to accomplish the desired result. It is also our judgment that the desired results may better be accomplished by the enactment of a single measure. It is accordingly suggested that the following be adopted as a substitute for H. R. 1197 and H. R. 1199: "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. "SEC. 2. That nothing contained in the act of January 27, 1933 (47 Stat. 777), shall be construed to impose restrictions on the alienation of lands or interests in lands acquired by inheritance, devise, or in any other manner, by Indians of the Five Civilized Tribes, where such lands, or interests therein, were not restricted against alienation at the time of acquisition, and all conveyances executed by Indians of the Five Civilized Tribes after January 27, 1933, and before the date of approval of this section, of lands, or interests in lands, which, at the time of acquisition by them, were free from restrictions, are hereby confirmed and declared to be valid, irrespective of whether such conveyances were or were not approved by the Secretary of the Interior, or by any county court of the State of Oklahoma: Provided, That if any such conveyances are subject to attack upon grounds other than the insufficiency of approval or lack of approval such conveyances shall not be affected by this section: Provided further, That the provisions of this section shall not be construed to validate or confirm any conveyance made in violation of restrictions recited in any deed to lands purchased with the restricted or trust funds belonging to any Indian of the Five Civilized Tribes." Since your committee has set H. R. 1197 and H. R. 1199 for hearings commencing Thursday, March 1, this report has not been submitted to the Bureau of the Budget and, therefore, no commitment can be made concerning its relationship to the program of the President. Sincerely yours, ABE FORTAS, Also, since the hearings on the bill and the above spoken of action, a report has been received from the Secretary of the Interior on H. R. 1200, which bill is incorporated in H. R. 2754 as section 3. (The communication of the Secretary of the Interior on H. R. 1200 follows:) Hon. HENRY M. JACKSON, THE SECRETARY OF THE INTERIOR, Chairman, Committee on Indian Affairs, House of Representatives. MY DEAR MR. JACKSON: Reference is made to the request for a report on H. R. 1200, a bill: "To validate State court judgments in Oklahoma and judgments of the United States district courts of the State of Oklahoma and conveyances in the State of Oklahoma where Indian lands of the Five Civilized Tribes of Indians are involved." For the reasons hereinafter set forth, I recommend that this legislation be not enacted. H. R. 1200 has been introduced for the purpose of overcoming the decision rendered by the United States Supreme Court in United States v. Hellard, 322 U. S. 363. In that case the Supreme Court ruled that the United States had an interest in restricted Indian property and that in view of that interest the Government was an indispensable party to any proceeding by which the Indian title was alienated. The suit involved partition proceedings instituted under the act of June 14, 1918 (40 Stat. 606, 25 U. S. C. 355), and the effect of the decision is that full-blood Indians of the Five Civilized Tribes may not be divested of title to restricted land by sale pursuant to the judgment of a State court in a partition proceeding to which the United States is not a party. In attempting to overcome this decision, H. R. 1200 declares that no decree in partition rendered between the date of the act of June 14, 1918, supra, and the date of enactment shall be held to be void nor shall any conveyance made pursuant to such decree be declared to be void because the United States was not a party to the proceeding, or because notice was not served upon the United States, its officers or agents. The bill would also validate and confirm all such decrees and conveyances. The bill, as we understand it, would not validate any decree or conveyance in partition which might be ineffective or invalid for reasons other than the failure to serve notice or make the United States a party to the proceedings. The purpose of the bill thus appears to be the validation of titles acquired in good faith without the presence of fraud or any other vitiating circumstance. While I am in full sympathy with this purpose, I do not believe that H. R. 1200 will accomplish it nor am I able upon mature consideration to suggest a substitute. The difficulty with legislation such as H. R. 1200 is that it purports to divest titles judicially determined to rest in the restricted Inaian heirs and to pass that title to the purchasers at the original partition sale or to their successors in interest. Decrees declaring void partition proceedings had without the presence of the United States in the litigation already have been entered in several cases. Thus in Campbell v. Town of Comanche, Oklahoma, the United States of America, Intervener, Civil No. 732, the United States District Court for the Eastern District of Oklahoma, on January 16, 1945, reversed its prior judgment and, upon authority of the decision in the Hellard case, supra, decreed that partition proceedings and deeds based thereon were void and that the restricted Indian heirs had not been divested of any estate or interest in the lands there involved. Since partition proceedings to which the United States was not a party are void, the title to the lands remained in the Indians and the effect of H. R. 1200 may be to deprive them of this title without due process of law. A serious question as to the constitutionality of such legislation is thus presented. See Choate v. Trapp, 224 U. S. 665-677-678 (1911); United States v. Mille Lac Band of Chippewa Indians, 229 U. S. 498, 509-510 (1912); Lane v. Pueblo of Santa Rosa, 249 U. S. 110, 113 (1918); Forbes Pioneer Boal Line v. Board of Commissioners, 258 U. S. 338 (1921); Hodges v. Snyder, 261 U. S. 600, 603 (1922); United States v. Creek Nation, 295 U. S. 103, 110 (1934); Stewart v. Keyes, 295 U. S. 403, 417 (1934). See also Cooley's Constitutional Limitations, 8th ed., p. 205 et seq. The enactment of H. R. 1200 would accordingly invite further litigation and the real object of the bill, which is to quiet titles and prevent further litigation, would be defeated. Aside from the constitutional difficulty it is doubtful whether any real need exists for the proposed litigation. No wholesale litigation by the United States is contemplated as a result of the Hellard decision. In fact I can conceive of no such suit being instituted by the Government in any case not involving fraud, overreaching or bad faith. Defects in titles occasioned by partition proceedings had without the presence of the United States between 1918 and 1926 doubtless have been cured by the operation of the statute of limitations set up in the act of April 12, 1926 (44 Stat. 239). The partition deed, though void, would nevertheless constitute color of title under Oklahoma law which would ripen into perfect title after open, notorious, and continuous possession for the statutory period of 15 years. The act of April 12, 1926, supra, moreover contains provisions by which the United States may be effectively bound by any judgment in partition proceedings. These provisions provide for notice to be served on the Superintendent for the Five Civilized Tribes with the privilege in the United States of intervening and removing the proceedings to the Federal court. In case of intervention or nonintervention after such notice, the United States becomes bound by the proceedings. Information received from our field officials shows that as of March 27, 1944, notices under the 1926 act had been served in 496 cases. Titles acquired in such proceedings are, of course, perfectly good. It is no doubt true that since 1926 there were instituted partition proceedings affecting restricted Indian land n which no notices were served on the Superintendent. There is no practical way of determining the number of such instances. Doubtless some titles will be affected in those remaining instances where notice under the 1926 act was not served or where the statute of limitations has not operated, but there is no reason to believe that that number will be substantial. Since H. R. 1200 is now being actively considered by your committee, this report has not been submitted to the Bureau of the Budget and, therefore, no commitment can be made concerning its relationship to the program of the President. |