VI

RESTRICTIONS ON ALLOTMENTS

TO THE FIVE CIVILIZED TRIBES

FROM THE ACT OF 1928 UNTIL THE ACT OF 1933



      The periods we have touched upon before were, it seems to me, to be dominated by legislation. In this next period, the courts play a very prominent role with some decision that can be described as wild at best. A goodly part of the story is the case law and the congressional reaction thereto.

      Notice the top of the chart on page 219. The Act is applicable after April 26, 1931 except that county courts could approve full-blood's wills effective May 10, 1928, see note 19 on page 245.

      But let us move to specifics. The Act of 1928, chart on page 219, extended those restrictions which would have expired in 1931 until 1956, see note 1 on page 227.


By Allottees

      So it is not surprising that the "By Allottees" section is again a repetition of the first chart of the Rarick-Gohlston extension except the last line of the section. In respect to this last line, the note reference is 17, that note refers to section 5 of the Act of 1928 which provides:
      That this act shall not be construed to impose restrictions heretofore or hereafter removed by the Secretary of the Interior or by operation of law.
      Actually, then line 5 of the "By Allottee" section is a combination of the note 2 factor, that is the three fourths or more but less than whole-blood Creeks as to their surplus, the one, two and five year provisions as to the Choctaw-Chickasaw surplus and all the land from which restrictions had been removed by the Secretary.


By Heirs and Devisees

      Now as to the section on heirs direct or remote, and devisees of an allottee, the situation is greatly simplified as compared to the same section of the 1926 chart on page 217. This simplification is primarily the result of the termination of the provision creating the special estate for the "too lates" of allottees of one-half or more Indian blood. When adopted this provision was limited in duration and was to have run out automatically on April 26, 1931. To make doubly certain that this would be so, a reminder in the Act of 1928 expressly repealed the provision, see note 18 on page 244. Aside from this provision, the only restriction on heirs direct or remote or devisee of an allottee had been on full-bloods under the Act of 1908 S 9, see note 3 on page 229. Under that section the appropriate county court the court having jurisdiction over the administration of the deceased estate could approve the deed of full-blood heirs. That is reflected in line 2 and note 12 on page 240 and note 18 on page 244. The third line of this section states again the proposition noted before that where the land was unrestricted in the hands of the ancestor, it remained unrestricted in the hands of the heir even though the heir was a full-blood. See note 6, page 232 and the Pittman case discussed in that note. In Pittman the ancestor was a half-blood and his mother and heir, a full-blood. Yet she took unrestricted as to her son's surplus because her son was unrestricted. Referring back to the material in the box of the "By Heirs and Devisees" section, notice that heirs of grantees under Carney-Lacher deeds are also included with a reference to note 15, page 241. Notice that this is again a repetition from the prior two charts.


By Will, Lines 1 and 2

      Now we move to the section on wills. Notice that this is also considerably less complicated than the corresponding section on the previous chart. This is also in part true because the provision for the "after borns" had run out. Thereafter only full-bloods were restricted in making wills and as indicated by line 2 of that section, they are restricted only where they disinherited a parent, spouse or child. For the meaning of "disinherited," see note 8, page 236. Until recently "disinherited" had a well fixed meaning; it meant to take less by will than one would take in inheritance. Therefore one was disinherited even when given a legacy of $500 but the Brown case, also discussed in note 8, seems to adopt the meaning "to cut off without a cent".


By Will, Lines 3 and 4

      Line 3 then reiterates the proposition that where there is disinheritance of a parent, spouse or child the will is valid if acknowledged before and approved by the county court after May 10, 1928 or U.S. Judge or Commissioner. Line 4 reminds us that this limitation or the power of a full-blood to devise is not applicable if the Secretary of Interior removes restrictions as provided in the Act of 1908.


By Grantees Under Carney-Lacher Deeds

      In the last section we are again considering the grantees under Carney-Lacher deeds. You will recall that these are deeds to land purchased for Indians with restricted funds. Those deeds contained language restricting them against alienation until April 26, 1931. We have previously noted that until the date recited in the deed, April 26, 1931, heirs of and devisees of grantees under Carney-Lacher deeds were said to be the equivalent of heirs or devisees of allottees, see note 15 page 242, particularly the Ward case cited therein.

      But here we are dealing with a period of time beyond the date stated in the Carney-Lacher deeds for the expiration of the restrictions in those deeds.

      The Act of 1928 which extended restrictions on allottees for an additional 25 years beyond the 1931 date was silent as to those holding under Carney-Lacher deeds. Those in the practice of law at the time were apparently surprised at the Tenth Circuit decision in United States v. Williams. That case held that, in spite of the recitation in the deeds that land held thereunder was restricted until 1931, the 1928 Act nevertheless extended the restrictions in the Carney-Lacher deeds for another 25 years, until 1956, just as restrictions on allotments had been extended, see note 20 on page 245 and particular the Williams case cited therein. The consequence of this case was the passage of the Curative Act of 1945. This Act is set out at length on page 296 and is discussed in some detail along with other Curative Acts relating to lands of the Five Civilized Tribes beginning on page 332. This Curative Act provided that land conveyed by the grantee in a Carney-Lacher deed after the 1931 date set for the duration of restrictions but before the effective date of the Curative Act, July 2, 1945, should NOT BE invalid because the conveyance was made without the approval of the Secretary of Interior as required by the restriction in the deed. But Nota Bene!!! Conveyances made by grantees in Carney-Lacher deeds after July 2, 1945 to be valid must be approved by the Secretary!!


Caveat

      It has apparently been assumed by the chart makers that because the Act of 1908, which governs allottees removed restrictions on less than one-half-blood allottees, that less than one-half-blood grantees are not restricted by the restrictions in Carney-Lacher deeds. I agree with this assumption. In deed, I doubt that a Carney-Lacher deed was ever issued to a less than one-half-blood because the source of the Carney-Lacher Deeds was land purchased with restricted funds and restricted funds were funds held for Indians of one-half or more Indian blood.