The Guthrie daily leader. [volume] (Guthrie, Okla.) 1893-1996, 1908-05-18

tAi-t VtNA4AAsf ~ ~ ~ tf-t -
the toll Wing clause IN said treaty
agreement to.wlt
twAll contracts for sale. disposition
or cte,lnnbrance Of any part Of any
allotmOnt made prior to the date OF
patent shall be void
lns hne. 1t is provided that durlns
the existence of the tribal govern.
ment that each allouee shall have the
sole right OF occupancy OF his allot-
ment and until the members Of the
tribe shall become citizens OF the Uni
ted States Then follows the restric-
tluns OF the alienation Until the patent
shall be issued. When an such reg
strictlcns on alienation were removed
what prevented the allottee herein
from executing a valid conveyance.
Further congress in section i6,
chapter 1875, entitled An act TO pro
vide Tor the final disposition OF the
five civilized tribes in Indian Terri
tory. and for Other purposes approv-
ed April %, 1906. provides that Con.
vcyances heretofore made by members
OF any Of the FIVE civilized tribes sub
sequeht to the sslcciion of allotment
and subsequent to the removal ~ re-
striciions where patents thereafter
issue. shal not be deemed or held IN
valid solely because said conveyances
were made prior to the issuance and
recording and delivery of patent or
deed: but this shall not be held or
construed "a AFFECT the validity or i'm.
validity OF such conveyance except as
hereinbefore provided; "s.........,.ss
When we c0nsidei this provision ~
connection with the ACT Of April u,
/ 1901 removing all restrictions upon
the alienation of lands OF an allottees
of either of The iive civilized tribes OF
( Indians. who are NOT OF Indian blood
except minors, and except as to home
steads, In ihe light OF Barney v Aolph
supra, and the other authorities here
ltofofe cited. unqGestionably the allot
tee herein could convey all Of his al
/ lotment except that portion designated
by him as hls homestead
In the case OF Pickering v. Lomax
+ las IT, S Sl0 36 L. ed 7i6, ii was
held that the consent Of the secretary
lof the interior was effective, though
eiTen after the execution OF the deed
In that case the patent of the Indian
contained a stipulation authorized by
treaty that the land should not be
conveyed 10 any person whatever
with ut permission Of the President
of the United States a deed wa.
made 10 the Indian, however. Angus
2. 1855 which was approved by the
President January a, 1871, nearly
thirteen years thereafter and Il wai
held that the approval related bacl
OF the time ~ the execution OF IN,
deed and made 1t valid as TO tha
deed, regardless OF the claim Of an
intervening parties.
In the case OF Lykins v. McGrath
1884 e. S. l1G 4C l.. ed. 4s5, It Is hell
that the colRent OF the secretary 8
the interior 70 a conveyance by on
holding under patent. containing
restriction stipulation may be givei
after the execution OF the deed. am
when given is retroactive in its effec
and relates back to the date Of tn
conveyance regardless uf the claim o
intervening parties whose allege
rights accrued subseuuent to the dat
of the conveyance.
What was the intention OF congress
when it removed restrictions fr9r
alienation of allottees not Of India
blood as to their surplus allotment /
the Seminole country? II the cor
struction contended for by the defer
dant In error Is correct, that act &
congress removing restrictions as t
allottees in the Seminole nation wa
without enfcct Whatever, because q
that time the tribal government ha
not terminated. nor has it yet.
We accordingly conclude that IA
herein allottee, Robert James, men
+ Der Of the Seminole tribe. but nor
{ Indian blood. after selecting his allo
men aud designating bis homestea
. and rece ing his certificate OF sue
E lallotment from he chairman OF m
commission r. the five civilized tribe
! as provided iog In the agreement
: December lG S97. became the equi
e able owner of the sane vested wit
/ an indeftasible title therein. and ihi
1 the duty or obligation to issue pa
e cnt therefor was imperative. aud M
2 discretionary with the tribe or 50
s ernment and could make a bindir
j. saio. deed or conveyance on that pa
p OF his allotment not selected as
{ homestead after the removal OF n
Z restrictions OF alienation by The Il
+ dian Appropriation Act. approve
D April 21 1904. although no patent ha
+ been issued or delivered TO said allo
s tee before he undertook 10 aliensl
Z tho same.
I The other question raised IN tn
y record is whether OF ot an iugtumel
: Appearing on its face as a deed IN II
, form OF a warranty, which Is confe
4 sea by the demurrer 10 nave been q
( ltendfd aa a motigage whether OF ~
= The owner Of the land subject to II
} linoTfeRre, mav IN equity have said i
strumest declared 10 be mortga,
E aad nndpr sncn have tue right 10 o.
I lasem the property This IS well Sc