V

RESTRICTIONS ON ALLOTMENTS

TO THE FIVE CIVILIZED TRIBES

FROM THE ACT OF 1926 UNTIL THE ACT OF 1931,

EXCEPT AS AFFECTED BY THE ACT OF 1928


By Allottees

      First notice that the section on allottees is identical to the same section on the previous chart except where on the 1908 chart in line 5, the last line in the section note 2 is cited and on the 1926 chart note 10 takes note 2's place. But this is of little consequence; note 10 says, in effect, that the Act of 1926 did not change the rule laid down in note 2.


By Heirs

      The second section, the "By Heirs" section, on the 1926 chart has much in common with the second section of the chart for the Act of 1908. In fact the only differences are in the left hand column of the sections and the note citations. The verbiage of each of the eight lines and the dot patterns are identical.

      The differences in the citations is not great except that note 11 which replaces note 3 contains the 1926 amendment upon which I will comment soon. Note 12 replaces note 4. Both notes deal with the problem of the proper county court. Note 13 replaces note 5 and 13 says little more than that the law expressed in note 5 continues. Note 11a. which replaces note 3b. also provides little more than a confirmation that the principle stated in 3b. continues to be true.

      But the changes in that far left hand column are troublesome. First notice that on the 1908 chart there was a separate section for "By Devisees". That has disappeared on the 1926 chart and it is combined with the "By Heirs" section. This resulted from the amendment of the Act of 1908 by the 1926 Act as reflected in note 11, page 239. In the sixth and seventh lines of the quotation from Section 9 of the Act of 1926 the words "or devise from an allottee" are new; they were not in the Act of 1908. The provision requiring full-bloods to have conveyances approved by the county court had previously applied only to full-blood heirs. This change requires full-blood devisees of allottees as well as full-blooded heirs of allottees to get conveyances approved by the county court. This addition is troublesome. What had been previously held under the Act of 1908, see note 3a. on page 230, was that the heirs restricted under the 1908 Act included both immediate and remote heirs. The language in the 1926 Act was "by inheritance or devise from an allottee". It was contended that henceforth only the immediate heirs of allottees and not the heirs of heirs of allottees were restricted. But it was held by the Tenth Circuit Court, in Grisso v. United States, see note 16 on page 242-243 that the words "of an allottee" modified only the word "devise" and not "inheritance". It is clear therefore that heirs of allottees continues to mean heirs immediate or remote. Before we conclude that only immediate devisees from a testator allottee are therefore restricted, we need to read through the last line of the provision. The provision continues that conveyances by those thus restricted are not valid and now IL quote "unless approved by the county court having jurisdiction over the settlement of the estates of the deceased allottee or testator". This "allottee or testator" might seem to signal that a devisee of a testator who was not also an allottee was also restricted. Such construction in restricting a remote devisee would render the words "of an allottee" meaningless. Further the first sentence of S9 of the Act of 1926 reads: "The death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon alienation of said allottee:". This clearly indicates an intention to limit restrictions. Therefore an expansive construction of "or devise from an allottee" does not seem to be indicated.

      Because the courts have equated grantees under Carney-Lacher Lacher deeds and their heirs with allottees and their heirs, it would seem that remote heirs of such grantees would be restricted also. Immediate devisees of such grantees would be restricted but remote devisees would not be.


By Will

      The first change to be noted is that devisees have been added to the section "By Will" and the section "By Devisees" on the 1908 chart has been dropped from the 1926 chart. This is because, as detailed before, the Act of 1926 added that full-blood devisees as well as full-blood heirs had to have their conveyances approved by the appropriate county court. A will is a conveyance and therefore this section covers the wills of devisees, at least the will of a devisee of an allottee. This accounts for devisees being added to this section and dropped as a separate section.

      In this same box there is the notation "effective until April 26, 1931 except as to provision permitting county court to approve wills of full-bloods which was reestablished May 10, 1928, see note 19". That note explains using other words that the Act of 1906 provided that if the wills of full-bloods disinherited a spouse, child or parent, the will had to be acknowledged before and approved by a Federal Judge for the Indian Territory or a U.S. Commissioner. Statehood for Oklahoma came in 1907 so the Act of 1908 carried this provision forward as the last provision of Section 9, after having amended the section of the 1906 Act to permit full-blood's wills disinheriting a spouse, child or parent to be acknowledged before and approved by the Federal Judge, a U.S. Commissioner or a County Judge of the state of Oklahoma.

      But when the 1926 Act was passed it carried forward the provisions of the 1906 Act relating to wills as amended by the Act of 1926. That left out the 1908 amendment permitting county courts to approve wills of full-bloods which disinherited a spouse, child or parent. So if you will check lines 5 and 7 of the "By Will" section on the chart for the Act of 1926, you will see that the county courts of Oklahoma as an approving agency is omitted. But as indicated in the box to the left of this section and alluded to in the heading of the chart after the Act of 1928 (whose main function was to extend restrictions from 1931 to 1956) the county court is restored as an approving agency for full-blood's wills which disinherit a spouse, child or parent.

      Other than these changes, the effect of the section is the same as the same section on the 1908 chart.

      The "By Will" section of the 1926 chart also differs from the "By Will" section of the 1908 chart in that the 1926 chart does not have the last line of the 1908 chart, line 10. But we've said that this line was surplus anyway because line 2 says that all three-quarter-bloods or more but less that full, may freely devise surplus. In omitting line 10 only repetition is removed.