Brader v. James , 49 Okla. 734 ( 1916 )

I dissent from that portion of the opinion holding that the conveyance of the homestead lands was void. It was necessary that the conveyance of the surplus lands be approved.Gannon v. Johnson, 40 Okla. 695, 140 P. 430, Ann. Cas. 1915D, 522. Cerena Wallace, the allottee, died October 21, 1905, after having selected the lands in controversy as her allotment. This was prior to the passage of the act of Congress approved April 26, 1906 (34 Stat. L. 137); therefore the homestead descended free from restrictions upon the alienation thereof. Mullen v.United States, 224 U.S. 448, 32 SUD. Ct. 494, 56 L. Ed. 834.

Upon reviewing the authorities cited by the court, it is seen that the holding of the court in United States v. Allen, 179 Fed. 13, 103 Cow. C. A. 1, is stated in the ninth paragraph of the syllabus as follows:

"It is within the power of Congress to enlarge the period within which an Indian allottee is prohibited from alienating his land beyond that imposed when the allotment was made, so long as the land is held by the allottee, although in the meantime he may have been made a citizen."

This case was reversed by the Supreme Court in so far as it held that the United States could maintain a suit to set aside conveyances to lands after restrictions thereon had expired.Mullen et al. v. United States, supra; Goat v. United States,224 U.S. 458, 32 Sup. Ct. 544, 56 L. Ed. 841; Deming Inv. Co. v.United States, 224 U.S. 471, 32 Sup. Ct. 549, 56 L. Ed. 847. InUnited States v. Shrock (C. C.), 187 Fed. 870, decided by the Circuit Court for the Eastern District of Oklahoma, the opinion was expressly placed upon the ground that the question of the authority of Congress to reimpose restrictions upon the alienation of lands of Indian allottees was settled in the affirmative so far as this jurisdiction was concerned by the doctrine announced in United States v. Allen, supra.

In United States v. Western Inv. Co. (C. C. A.), 226 Fed. 726, it was held that, according to the provisions of the act of April 26, 1906, restrictions had been reimposed upon the conveyance of inherited lands by the heirs of a deceased Indian to whom an allotment had been made in his lifetime. It will be noted that in this case the District Court for the Eastern District of Oklahoma, from which court the appeal was taken, had departed from its holding in the case ofUnited States v. Shrock, supra, and reached the conclusion that restrictions could not be reimposed, and the Circuit Court of Appeals, in reversing the case, reached the opposite result. The opinion cites no authorities in support of its conclusion other than the case of Tiger v. Western Inv. Co., 221 U.S. 286, 31 Sup. Ct. 578, 55 L. Ed. 738. I think I will be able to demonstrate that the case of Tiger v. Western Inv. Co., supra, is not authority for such conclusion.

In Stephens v. Smith, 10 Wall. 321, 19 L. Ed. 933, the lands involved were reserved for the use of Victoria Smith, a half-breed Indian, by the United States under the provisions of the treaty of June 3, 1825 (7 Stat. 244). By the eleventh article of that' treaty it was stipulated that the Nation should not sell the lands without permission of the government, and the court observed that it would assume the contracting parties intended this prohibition to apply to the individual members of the tribe. By act of May 26, 1860 (12 Stat. 21) the title of the United States to those lands, the use of which had been allotted to Victoria Smith, was conveyed to her, and this act declared void all prior contracts for the sale thereof and forbade any future disposition except by the Secretary of the Interior, on the request of the party interested. Only the use of the lands was allotted to Victoria Smith prior to the act of May 26, 1860, and by the very act of conveyance, and as one of the conditions thereof, the restrictions upon the alienation of said lands were imposed.

The case of Tiger v. Western Inv. Co., supra, involved the construction of the act of April 26, 1906, in so far as it affected the prohibition against alienation of allotted lands by the allottee or his heirs, created by the Supplemental Creek Agreement of June 30, 1902, which at the date of the act had not expired; and it was held that under these circumstances Congress had the power to extend the restrictions. In the opinion it is stated that the legislation proceeded "upon the theory that in the understanding of Congress at leastrestrictions still existed so far as inherited lands of full-blood Indians are concerned"; and, after a review of the policy of Congress in reference to legislation of this character, and referring to the fact that citizenship had been conferred upon Marchie Tiger, and that citizenship was not incompatible with restriction upon the alienation of said lands, it was said:

"In this state of affairs Congress, with plenary power over the subject, by a new act permitted alienation of such lands at any time subject only to the condition that the Secretary of the Interior should approve the conveyance."

And, after declaring the conclusion of the court to be that Congress had at all times the right to pass legislation in the interest of the Indians, it was further said:

"That in the present case, when the act of 1906 was passed, Congress had not released its control over the alienation of lands of full-blood Indians of the Creek Nation; that it was within the power of Congress to continue to restrict alienation by requiring, as to full-blood Indians, the consent of the Secretary of the Interior to a proposed alienation of lands such as are involved in this case; that it rests with Congress to determine when its guardianship shall cease, and, while it still continues, it hasthe right to vary its restrictions upon alienation of Indian lands in the promotion of what it deems the best interest of the Indians."

It is significant that throughout the entire discussion by the court the distinction is made clear that at the time the act was passed the restriction upon the lands involved had notexpired, and that the right of Congress to pass the act is placed upon the conditions existing, and this authority is stated to be that Congress may extend or vary existing restrictions, and nowhere in the opinion is it said that Congress may relmpose restrictions after they have once expired.

The italics throughout this opinion are mine.

Of the authorities cited by the court we find that the Allen Case was criticized by the same court that decided it. The opinion in the Shrock Case was expressly based upon the holding in the Allen Case, and was afterwards departed from by the court rendering the opinion therein. In United States v.Western Inv. Co., the conclusion reached was expressly based upon the holding in Tiger v. Western Inv. Co., and in Tiger v.Western Inv. Co. is found no expression by the Supreme Court to the effect that a right exists upon the part of Congress to reimpose restrictions when they have once expired, and inStevens v. Smith the restriction was a condition of the grant.

There is, and can be, no question at this time that when a restriction has expired by lapse of time, it has been removed the same as if done by an express act of Congress or by the Secretary of the Interior. United States v. Bartlett, 235 U.S. 72, 35 Sup., Ct. 14, 59 L. Ed. 137;Choate v. Trapp, 224 U.S. 665, 32 Sup. Ct. 565, 56 L. Ed. 941.

In Jones v. Meehan, 175 U.S. 1, 20 Sup. Ct. 1, 44 L. Ed. 49, an Indian chief owned in fee land which fronted on a stream. The chief died, and in 1891 his son and heir, during the continuance of the tribal organization, let the land to Meehan for ten years. In 1894 he again let the same land to Jones for 20 years. In that year the Secretary of the Interior was authorized by Congress to approve the lease to Jones if the latter would increase the rental. This he did, and with the consent of the Indian and the Secretary of the Interior, the lease was made to Jones. Litigation followed, in which Meehan relied upon the first contract and Jones relied upon that made under Congressional authority. Judgment was for Meehan; and, in reviewing the opinion in that case, the Supreme Court, inChoate v. Trapp, supra, said:

"The court held that the subsequent act could not relate backso as to interfere with the right of property which the Indian possessed and conveyed as an owner in fee; and, while Congress had power to make treaties, it could not affect titles alreadygranted by the treaty itself."

In Re Heff, 197 U.S. 488, 25 Sup. Ct. 506, 49 L. Ed. 848, the court had under consideration the authority of the United States to punish, under its police power, the sale of liquor within a state by a citizen thereof to an Indian who had selected an allotment under the act of February 8, 1887 (24 Stat. L. 388), by which it was provided that each allottee thereunder should have the benefits of and be subjected to the laws of the state where he might reside, and by the terms of which citizenship was conferred upon each such allottee. The contention was made that because the purchaser was an Indian, notwithstanding he had taken his allotment under the terms of the act and as a citizen of the United States and of the State of Kansas, the United States might punish the sale of liquor to such Indian. In denying this contention, the court, speaking through Mr. Justice Brewer, said:

"But the logic of this argument implies that the United States can never release itself from the obligation of guardianship; that so long as an individual is an Indian by descent, Congress, although it may have granted all the rights and privileges of national, and therefore state, citizenship, the benefits and burdens of the laws of the state, may, at any time, repudiate this action, and reassume its guardianship and prevent the Indian from enjoying the benefits of the laws of the state, and release him from obligations of obedience thereto. Can it be that because one has Indian, and only Indian, blood in his veins, he is to be forever one of a special class over whom the general government may, in its discretion, assume the rights of guardianship which it has once abandoned and this, whether the state or the individual himself consents? We think the reach to which this argument goes demonstrates that it is unsound."

And, after noticing the fact that the lands of the Indians were restricted from alienation, and declaring the rule that an allottee may enforce his right to any interest in the tribal or other property, and that Congress may enforce and protect any condition which it attaches to any of its grants, it was further said that the fact that the property was subject to a condition against alienation did not affect the civil or political status of the holder of the title. The extent of the power of Congress to legislate respecting the personal and political status of such Indians was expressed as follows:

"But it is unnecessary to pursue this discussion further. We are of the opinion that when the United States grants the privileges of citizenship to an Indian, gives to him the benefit of and requires him to be subject to the laws, both civil and criminal, of the state, it places him outside the reach of police regulations on the part of Congress; that the emancipation from federal control thus created cannot be set aside at the instance of the government without the consent of the individual Indian and the state; and that this emancipation from federal control is not affected by the fact that the lands it has granted to the Indian are granted subject to a condition against alienation and incumbrance, or the further fact that it guarantees to him an interest in tribal or other property."

The effect of the holding in the Heff Case is that when Congress has released its guardianship over the personal and political status of the individual Indian to the extent of conferring citizenship on him so that he becomes a citizen of the United States and of the state in which he resides, this grant cannot be retracted without the consent of the state of which he is a resident and the individual himself. This is true because he owes certain duties and is under certain obligations to the state of his residence, and has the rights therein of other citizens. If the theory of the court be true that, because Congress has made an improvident grant to the Indian of property rights, those rights may be taken away because he is still a citizen of the tribe, then by parity of reason a grant of citizenship may also be retracted because guardianship has not been fully and completely surrendered.

In Bartlett v. United States, 203 Fed. 410, 121 Cow. C. A. 520, the Circuit Court of Appeals for the Eighth Circuit, being the same court which rendered the opinion in the Allen Case and in the case of United States v. Western Inv. Co., in the course of its opinion said that Congress could not, by virtue of the guardianship of the United States, deprive an individual Indian of his full property rights in and to his lands and reimpose restrictions upon the alienation thereof, and the expression in the Allen Case to the contrary was referred to as "mereobiter."

In Hemmer v. United States, 204 Fed. 898, 123 Cow. C. A. 194, a Sioux Indian by the name of Taylor, under the act of March 3, 1875 (18 Stat. 420, c. 131) which gave the benefit of the homestead laws to Indians that might abandon their tribal relations and avail themselves of the homestead laws, but placing a restriction of five years upon the alienation of the lands so homesteaded, entered 160 acres of land in reliance upon said act, and on June 10, 1884, had resided thereon the required length of time to entitle him to make final proof and receive his patent. On July 4, 1884, less than a month thereafter, Congress passed an act enlarging the class of Indians who might avail themselves of the homestead act, and providing a 25-year restriction instead of five years. The court held that the act of 1884 did not apply to Taylor's homestead, he having entered his land under the act of 1875, and resided thereon the full time required before the passage of the act of 1884, and that the latter act did not have the effect of reimposing a restriction for 25 years upon the alienation thereof, although his conveyance was not executed until August 8, 1908.

The question here is whether the right to alienate his allotted or inherited lands is a property right which vests in the individual Indian upon the removal of restrictions. If it be such, it is protected from legislative impairment by the fifth amendment to the federal Constitution. I maintain that it is such a right, and therefore the right to reimpose restrictions thereon does not exist.

In Choate v. Trapp, supra, the court held the exemption from taxation to be a vested property right, which could not be impaired. In Mullen v. United States, supra, speaking of the interests of the heirs of an Indian who died before receiving his allotment, which was afterwards selected in his name, it was said:

"These Indian heirs were vested with an interest in the property which, in the absence of any provision to the contrary, was the subject of sale. The fact that they were 'full-blood' Indians makes no difference, for, at the time of the conveyances in question, heirs of the full blood, taking under the provisions of paragraph 22 of the Supplemental Agreement, had the same right of alienation as other heirs."

The right to inherit, purchase, lease, sell, hold, and convey real and personal property is guaranteed to every citizen of the United States, by section 1978, Rev. Stat. (U.S. Comp. St. 1913, sec. 3931), being the Civil Rights Act. In the CivilRights Cases, 109 U.S. 3, 3 Sup. Ct. 18, 27 L. Ed. 835, it was said that Congress by passing the act under consideration had undertaken —

"to secure to all citizens of every race and color, and without regard to previous servitude, those fundamental rights which are the essence of civil freedom, namely, the same right to make and enforce contracts, to sue, be parties, give evidence, and to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizens."

See, also, Allgeyer v. State of Louisiana, 165 U.S. 580, 17 Sup. Ct. 427, 41 L. Ed. 832; Lochner v. New York, 198 U.S. 45, 25 Sup. Ct. 539, 49 L. Ed. 937, 3 Ann. Cas. 1133; Powell v.Penn., 127 U.S. 678, 8 Sup. Ct. 992, 1257, 32 L. Ed. 253.

The term "property" has a most extensive signification, and, according to its legal definition, consists in the free use, possession, enjoyment, and disposition by a person of all his acquisitions, without any control or diminution save only by the laws of the land. The term not only includes the thing over which dominion may be exercised, but in its broader sense is that dominion or right of use and disposition which one may exercise over subjects or things, to the exclusion of others, and includes the right to possess, use, enjoy, and dispose of a thing; and it is hard to conceive of property without these rights and attributes therein. 1 Blackstone, Comm. 138; Black's Law Dictionary, title, Property; Anderson's Law Dictionary, title, Property. The authorities defining property are collected in Words and Phrases, title, Property (First and Second Series).

It is true that the right to use and dispose of such property may be regulated by the laws of the land, but this means "regulation" and does not include the right to take or destroy the same without due process of law, and without just compensation. The state may require that a deed of conveyance shall be in writing, and shall be acknowledged and recorded and may specify the manner of acknowledgment and the officer before whom it shall be executed. But when the right to convey, after it has once vested, and where the grantor is possessed of the full legal and equitable title in the thing conveyed, without condition or restriction, is made to depend upon the will of some third person with the power of veto, the right has been seriously impaired and in effect destroyed. As to a citizen of the United States not of Indian blood, it is conceded this could not be done. No distinction exists in this respect between a white person and an Indian. In Choate v.Trapp, supra, it was said:

"There has been comparatively few cases which discuss the legislative power over private property held by the Indians. But those few all recognize that he is not excepted from the protection guaranteed by the Constitution. His private rights are secured and enforced to the same extent and in the same way as other residents or citizens of the United States. In reHeff, 197 U.S. 504, 25 Sup. Ct. 506, 49 L. Ed. 855; CherokeeNation v. Hitchcock, 187 U.S. 307, 23 Sup. Ct. 115, 47 L. Ed. 190; Jackson ex dem. Smith v. Goodell, 20 Johns. (N.Y.) 188;Lowry v. Weaver, 4 McLean, 82, Fed. Cas. No. 8584; Whirlwind v.Von der Ahe, 67 Mo. App. 628; Taylor v. Drew,21 Ark. 487. His right of private property is not subject to impairment by legislative action, even while he is, as a member of a tribe, subject to the guardianship of the United States as to his political and personal status."

Referring to the right of Congress to remove restrictions upon the alienation of Indian lands, it was said the right was in pursuance of the power of Congress to lengthen or shorten the period of the Indian's disability, but it was further said that:

"No statute would have been valid which reduced his fee to a life estate, or attempted to take from him 10 acres or 50 acres, or the timber growing on the land."

It was conceded by eminent counsel therein that no right which was actually conferred could be arbitrarily abrogated by statute, and the court in the discussion of the case said:

"If there were any question as to whether this was a personal privilege and repealable, or an incident attached to the land itself for a limited period, that doubt, under this rule, must be resolved in favor of the patentee."

Determining the effect to be given to the decision inTiger v. Western Inv. Co., supra, which the court thinks justified its conclusion that restrictions may be reimposed on these homestead lands after the original restrictions have been removed, the Supreme Court said:

"Nothing that was said in Tiger v. Western Inv. Co. (citing it) is opposed to the same conclusion here, for that case did not involve property rights, but related solely to the power of Congress to extend the period of the Indian's disability. Thestatute did not attempt to take his land or any right, member,or appurtenance thereunto belonging. It left that as it was."

The court then gave the reason underlying the legislation by Congress which extended the time during which the allottee could not sell, and called attention to the fact that:

"Tiger was still a ward of the Nation so far as the alienation of his lands was concerned, and a member of the existing Creek Nation"

— and after stating the rule that citizenship was not incompatible with guardianship, the court continued:

"But there was no intimation that the power of wardshipconferred authority on Congress to lessen any of the rights ofproperty which had been vested in the individual Indian byprior laws or contracts. Such rights are protected from repealby the provisions of the fifth amendment. * * * We have seenthat it was a vested property right which could not beabrogated by statute."

And again in the opinion it was said, with reference to the power of Congress to legislate with respect to tribal property, that:

"There is a broad distinction between tribal property and private property, and between the power to abrogate a statute and the authority to destroy rights acquired under such law.Reichert v. Felps, 6 Wall. 160, 18 L. Ed. 849."

There it is shown that the right to alienate property is property itself, and it is conceded that if such right has vested in a white person, that right cannot be impaired even by Congress. So it is also seen that with reference to vested private rights there is no distinction between an Indian and any other citizen of the United States. This being true, legislation which would impair or lessen such right would be invalid. There is no question about the right of Congress to impose as a condition of its grant restrictions upon the alienation thereof, because the title vests subject thereto, and same operates as a condition annexed to the title; but, when full and complete title in fee simple without condition or restriction has vested, the right of disposition is a property right, and is protected by the fifth amendment.

In Chase v. United States, 222 Fed. 593, 138 Cow. C. A. 117, the United States as trustee and guardian of the Omaha Tribe of Indians and of Rose Wolf Setter, a member of said tribe, brought suit against Hiram Chase, the sole heir of the grantee of a tract of 40 acres of land under section 4 of the treaty of March 6, 1865, with the Omaha Tribe of Indians (14 Stat. 667, 668). The.question there was whether Hiram Chase, the sole heir of the grantee of said tract, or Rose Wolf Setter, the sole heir of the grantee of the same land under section 5 of the act for the sale of a part of the reservation of that tribe, of August 7, 1882 (22 Stat., c. 434, pp. 341, 342), had the title and right of possession of the tract; in other words, whether the treaty of 1865 granted to Clarissa Chase, the mother of defendant, a substantial title to or right in the land in question or a mere revocable license to the possession and use thereof. In reversing the case with instructions to render judgment on the merits in favor of Hiram Chase, the court said:

"If by the treaty of 1865, a substantial right in or title to the land in question was granted to or vested in Clarissa Chase and her heirs, the subsequent act of Congress of 1882 was ineffective to impair or destroy that right or title because:

"First. Indians as well as other residents and citizens of the United States, are protected by the fifth amendment to the Constitution against deprivation of property, life, or liberty without due process of law. No act of Congress or legislative fiat constitutes due process of law, whereby a vested right in or title to property may be either seriously impaired or destroyed. Choate v. Trapp, 224 U.S. 565, 670, 677, 32 Sup. Ct. 565, 56 L. Ed. 941; Jones v. Meehan, 175 U.S. 1, 20 Sup. Ct. 1, 44 L. Ed. 49; In re Heff, 197 U.S. 488, 504, 25 Sup. Ct. 506, 49 L. Ed. 848; Cherokee Nation v. Hitchcock, 187 U.S. 294, 307, 23 Sup. Ct. 115, 47 L. Ed. 183; Jackson v. Goodell, 20 Johns. (N.Y.) 188; Lowry v. Weaver, 4 McLean, 82, Fed. Cas. No. 8584; Whirlwind v. Von der Ahe, 67 Mo. App. 628; Taylor v.Drew, 21 Ark. 485.

"Second. Except in political cases — and this case is not a political case — Congress has no power, under the Constitution of the United States, to affect rights or titles granted by a treaty, or to determine what rights were granted thereby. Nor may the character of the right or interest granted to Clarissa Chase by the treaty of 1865 be determined by the opinion of Congress that that right or interest was revocable and negligible, though it be evidenced by its declaration in the act of 1882 that after the new allotments were made under that act the certificates of right and title issued by the Commissioner of Indian Affairs under the treaty of 1865 should be null and void. The construction of treaties and the determination of the character and extent of the rights and titles granted under them is a judicial, and not a legislative function, and by the Constitution the power is granted, and the duty, which may not be renounced, is imposed upon, the courts to form and enforce their independent judgments upon these questions, although these judgments may differ from the opinions of the Congress or its members. Jones v. Meehan,175 U.S. 1-32, 20 Sup. Ct. 1, 44 L. Ed. 49; Wilson v. Wall, 6 Wall. 83, 89, 18 L. Ed. 727; Reichert v. Felps, 6 Wall. 160, 162, 18 L. Ed. 849; Smith v. Stephens, 10 Wall. 321, 327, 19 L. Ed. 933;Holden v. Joy, 17 Wall. 211, 247, 21 L. Ed. 523."

If it be once established that Congress may reimpose restrictions upon lands from which same have been removed, it may impose restrictions where none existed. Then if such Indian received title to other lands by inheritance from a white ancestor, or purchased same from funds accumulated by his own toil and industry, the fact of guardianship by the United States over him would authorize Congress to impose restrictions upon the use, enjoyment, and disposition of such property, and also to withdraw the same from state or municipal taxation. It seems clear that such cannot be done, and if it cannot be done, upon what principle can it be said that Congress may draw to itself control over the alienation of other lands, the title of which, both legal and equitable, has been conveyed to the Indians, simply because such lands at one time comprised a part of the Indian domain. If this power may be exercised with reference to the lands, why may it not be exercised with reference to all kinds of property, even to the extent that if an Indian has a sum of money in the bank, legislation might be enacted placing restrictions upon the disposition and use of such property or money. This is not an illogical deduction from the opinion of the court, and demonstrates the consequences that might possibly follow if guardianship over the Indian be the sole test of the right of Congress to legislate in the respects mentioned. Mixed bloods of whatever degree of blood, together with intermarried citizens, are still wards of the nation in the sense that they are members of existing tribes, and that their tribal affairs have not been completely wound up and their tribal existence dissolved. In this sense they are as much wards of the government as the full-blood heirs of a deceased allottee, and if Congress possesses the power to reimpose a restriction upon the alienation of the lands of a deceased allottee by the heirs thereof in the case of full bloods, as in the case at bar, should Congress determine that previous legislation was unwise, it might reimpose restrictions upon the alienation of the lands of all allottees without regard to the quantum of blood, including intermarried citizens, and might re-enact any legislation regulating the property and affairs of the tribes. Some of the representatives of the state in the halls of the National Congress are members of the Indian tribes, and would be brought within the terms of such restrictive legislation. In short, the Congress could withdraw from the jurisdiction of the state and from the operation of its laws all of the lands in at least one-half of the state, the title to which is still in the hands of the members of Indian tribes. It seems to me clear that this cannot be done.

If Congress may reimpose restrictions upon lands which were selected in the lifetime of the allottee and afterwards descended to his heirs, it may also impose restrictions upon lands which were allotted in the names of Indians who died prior to selecting their allotment. In Skelton v. Dill,235 U.S. 206, 35 Sup. Ct. 60, 59 L. Ed. 198, and in Adkins v.Arnold, 235 U.S. 417, 35 Sup. Ct. 118, 59 L. Ed. 294, it was held that the restrictions imposed by section 16 of the Supplemental Creek Agreement of June 30, 1902, applied only to allotments made to living citizens in their own right, and not to allotments made on behalf of deceased persons under the authority of section 28 of the original agreement of March 1, 1901.

The fact that the legislation may not have been for the best interests of the Indian is not a sufficient reason for the court to depart from the terms of the act as written. As was said by the Supreme Court in United States v. First NationalBank of Detroit, 234 U.S. 245, 34 Sup. Ct. 846, 58 L. E. 1298:

"If the true construction has been followed with harsh consequences, it cannot influence the courts in administering the law. The responsibility for the justice or wisdom of legislation rests with Congress, and it is the province of the courts to enforce, not to make, the laws."

The policy of Congress with reference to the Indians is stated In re Heff, supra, where, after reviewing legislation upon similar questions, it was said:

"Of late years a new policy has found expression in the legislation of Congress — a policy which looks to the breaking up of tribal relations, the establishing of the separate Indians in individual homes, free from national guardianship, and charged with all the rights and obligations of citizens of the United States."

This being the policy of Congress, the statute should be so construed as to be in harmony therewith, and so as not tointerfere with existing rights which have been vested underprior laws. The rule as stated in 2 Sutherland Stat. Const., sec. 488, is as follows:

"In the construction of the provisions of any statute they ought to receive such a reasonable construction, if the words and subject-matter will admit of it, as that the existingrights of the public or of individuals be not infringed."

In order to ascertain the legislative intent, it is a familiar rule of construction that subsequent legislation upon the same subject may be referred to. Tiger v. Western Inv. Co.,supra. The act of May 27, 1908 (35 Stat. L. 312), was an act which extended or enlarged restrictions upon the alienation of all allotted lands of mixed bloods of three-fourths or more Indian blood. In that act it was provided:

"Nothing herein shall be construed to impose restrictions removed from lands by or under any law prior to the passage of this act."

Here was a declaration by Congress that legislation of the character involved was not intended to reimpose restrictions which had been removed. Taken in connection with the act of 1906, the conclusion seems to follow that no such effect was intended by that act. On February 27, 1907, Hon. Frank M. Campbell, Assistant Attorney General, in an opinion to the Secretary of the Interior, considering section 22, said:

"This section provides the manner in which sales may be made notwithstanding any restrictions upon alienation, and seems to apply to the heirs of all deceased allottees, without regard to quantum of Indian blood. It cannot, however, be held to apply to heirs who received their inheritance free from all restrictions. There would have been no occasion for this provision, or field for its operation, if the same provision which relates to homesteads had extended to the other or surplus allotted lands. The provision in the act of July 1, 1902, supra, is that they may be alienated, one-fourth in acreage in one year, one-fourth in two years, and the balance in five years from the date of the patent. There is no permissible construction of said section 22 except that it applies, so far as Choctaws and Chickasaws are concerned, to these surplus lands, which descend to the heirs burdened with restrictions upon the alienation, and not upon the homestead, which descends free of all restrictions." Bledsoe on Indian Land Law [1st Ed.], p. 303.

On August 17, 1909, the Attorney General construed the act of May 27, 1908, and held that conveyances made by full-blood heirs of lands inherited by them prior to the act of May 27, 1908, were not valid unless approved by the Secretary of the Interior, and held, further, that the provisions of section 9 of said act should not be held to operate retroactively and to remove absolutely all restrictions upon the alienation of lands of all allottees who died prior to the passage of that act. 27 Opinions Attorney General, p. 530. On June 7, 1911, that official rendered an opinion holding that lands allotted to the Choctaws and Chickasaws under the supplemental treaty (Act of July 1, 1902), could not be conveyed prior to act of April 26, 1906, by the full-blood heirs of such allottees within the period of inhibition named by the former act, as that section was not retroactive. 29 Opinions Attorney General, p. 131.

For the foregoing reasons, I think the deed to the homestead was valid without approval.