II

RESTRICTIONS ON ALLOTMENTS

TO THE FIVE CIVILIZED TRIBES

FROM ALLOTMENT THE ACT OF 1904 UNTIL THE ACT OF 1906


      Prior to the Act of 1904, the law pertaining to restraints on alienation among the Five Civilized Tribes were by separate agreements with the Seminoles, the Cherokees, the Choctaw- Chickasaws, and the Creeks. But with the Act of 1904, Congress adopted a policy of passing legislation that applied to all of the Five Tribes equally. But remember, that if one adds equals to unequals the results may not be equal.

      The provisions of the Act of 1904 are in note 3 on page 129. This Act removed all restrictions on adult allottees who were intermarried whites or freedmen as to surplus. Recall that Choctaw-Chickasaw freedmen had no surplus. The second part of that paragraph permits the Secretary of Interior to remove restrictions on each of the four classes of allottees of Indian blood, except as to homestead and minors.

      How do these changes in the Act of 1904 alter the charts?


Restrictions on the Seminoles 4-21-04 to 4-24-06

      First, in relation to the Seminole chart on page 109, notice that prior to the 1904 Act, no Seminole allottee could alienate, so both lines of the "By Allottee" section are new. Line 1 of that section reflects the removal of the Act of 1904 of restriction on adult intermarried white and freedmen allottees as to their surplus. Line 2 of that section reflects the ability created in the Act in the Secretary to remove the restrictions on the surplus allotments of adult Indians of any quantum of blood. In relation to the "By Heirs" section only the first line is new. It reads that heirs whether adults or minors, regardless of quantum of Indian blood, could alienate land allotted as surplus where the restrictions as to the land had been removed by the Secretary in relation to the allottee of such land under the Act of 1904. This is an application of the proposition stated before than alienability runs with the land. Where the land has been made alienable in the hands of an allottee, it remains alienable in the hands of his heirs, unless restrictions are expressly reimposed on the heirs. Note 4 on page 131 contains authority for the proposition that alienability runs with the land.

      Notice that lines 2 and 3 of the 1904-1906 "By Heirs" section on the Seminole chart are merely the two lines of the 1903-1904 "By Heirs" section carried forward.


Restrictions on Cherokees 4-21-04 to 4-26-06

      What we have said about changes made in the charts by the Act of 1904 in relation to the Seminoles could be repeated verbatim in relation to the Cherokees. Compare the Cherokee chart for this period with the Seminole chart for the same period.


Restrictions on Choctaws-Chickasaws 4-21-04 to 4-26-06

      However, as to the changes made by the Act of 1904 in relation to Choctaw-Chickasaw, we need to note some differences. By way of repetition, the freedmen had no surplus, so the restrictions were completely lifted in relation to surplus only as to intermarried white adults. See line 1, "By Allottee" section, 1904-1906 on the chart on page 113. But the authority of the Secretary to lift restrictions on all adult allottees of all quanta of Indian blood as to their surplus is set out on line 2 of the "By Allottees" section of the 1904 to 1906 period. It is, of course, identical to the comparable line on the Seminole and Cherokee charts. The third line of this section on the Choctaw-Chickasaw chart (the lines referring to one, three and five years from the date of patent) is merely the carry over from the 1902-1904 period.

      Look now at the "By Heirs" section of the 1904-1906 period on the Choctaw-Chickasaw chart, page 113. Only the first line of that section is new. Where restrictions were removed by or under the Act of 1904 as to allottees, the alienability continued in the allottee's heirs; again, alienability runs with the land. The remaining three lines of the "By Heirs" section are carry overs from the preceding time periods.


Restrictions on the Creeks 4-21-04 to 4-26-06

      Now please turn to the Creek chart on page 115.

      Before the Act of 1904, adult allottees of the Creek nation could alienate surplus only if the Secretary approved the deed, see very first line on page 115. After the Act of 1904, as was the case in the other four tribes, adult non-Indian allottees, who were either intermarried whites or freedmen, were completely relieved of restrictions as to surplus, see the first lines of "By Allottee" section of the 1904-1906 period. The second line of that section, provides that as to adult Indian Creek allottees of all four degrees, the Secretary could remove restrictions on surplus. These are the results of the provisions of the Act of 1904, see note 3, page 129. This same line, the second line of the "By Allottee" section, also indicates that the Secretary can approve the deed as provided by the Creek Allotment Agreement and the Supplemental Agreement, note 16, page 149. Thus this line combines the very first line on the Creek chart with the power of the Secretary under the Act of 1904.

      It should be noted that the authority of the Secretary to remove restrictions and his authority to approve deeds are two different matters. The power to remove restrictions is much broader. In removing restrictions, the Secretary authorizes the Indian to deal with the land as the Indian desires at any future time. The approval of the deed is limited to the specific transaction incorporated into the terms of a specific instrument then before the Secretary.

      The next section, the "By Will" section is merely a repetition of the corresponding section of the period 1901 to 1904.

      This concludes our examination of the effects of the Act of 1904 and we turn to the Act of 1906.