ERROR TO THE SUPREME COURT OF THE STATE OF OKLAHOMA
White, McKenna, Holmes, Hughes, Van Devanter, Pitney; McReynolds took no part in the consideration and decision of this case.
MR. JUSTICE HUGHES delivered the opinion of the court.
Charles Coleman, the defendant in error, brought this suit to set aside a conveyance of an undivided interest in lands inherited from his Indian wife and child who were members of the Osage Tribe. Judgment was entered annulling the conveyance upon the ground that it was executed in violation of restrictions imposed by Congress. The judgment was affirmed by the Supreme Court of the State (43 Oklahoma, 13), and this writ of error has been sued out.
The case was decided upon a motion for judgment on the pleadings, and there were special findings of the facts which the pleadings disclosed. It appears that the plaintiff, Charles Coleman, was a white man, lawfully married to an Indian woman, Mary Chesewalla; that their child, Joseph Coleman, was born on February 27, 1906, and died on the same day, leaving his father and mother his sole heirs; that his mother died intestate on February 28, 1906, leaving as her sole heirs Charles Coleman, Herbert Chesewalla and Floyd Chesewalla; that both decedents were duly enrolled as members of the Osage Tribe and were entitled to allotments under the act of Congress of June 28, 1906, c. 3572, 34 Stat. 539; and that, after their death, allotments were made in their right to the heirs of each respectively, the allotment deeds being approved by the Secretary of the Interior and recorded in the year 1909. By the death of his wife and child the plaintiff took title as heir to an undivided one-half interest in the lands allotted in the right of the former, and to an undivided three-fourths interest in lands allotted in the right of the latter. These lands have not been partitioned. In February, 1909, Charles Coleman conveyed by warranty deed his undivided interest to the defendant (plaintiff in error) The Levindale Lead and Zinc Mining Company. It is further set forth that his wife had not received
a certificate of competency. There was no finding and no basis in the record for a finding that Charles Coleman was a member of the Osage Tribe by adoption, enrollment or otherwise.
The lands prior to the allotment were Indian lands (Act of June 5, 1872, c. 310, 17 Stat. 228) and there is no controversy as to the power of Congress in providing for allotments to impose restrictions upon alienation. The question is as to the construction of the provisions of the allotment act of June 28, 1906.
That act provided, 34 Stat. 539, 540, that the roll of the Osage Tribe as it existed on January 1, 1906, with the additions specified, should be the roll of the tribe and constitute its 'legal membership.' Children born between January 1, 1906, and July 1, 1907, to persons whose names were on the roll on the first mentioned date, "including the children of members of the tribe who have, or have had, white husbands," were to be recognized as members for the purposes of the division. (§ 1.) All lands were to be divided "among the members of said tribe, giving to each his or her fair share thereof in acres" as specifically set forth; that is, "each member" as shown by the roll was to be allowed to make three selections of 160 acres each in the manner described. (§ 2.) Restrictions were imposed as follows:
"Each member of said tribe shall be permitted to designate which of his three selections shall be a homestead, and his certificate of allotment and deed shall designate the same as a homestead, and the same shall be inalienable and nontaxable until otherwise provided by Act of Congress. The other two selections of each member, together with his share of the remaining lands allotted to the member, shall be known as surplus land, and shall be inalienable for twenty-five years, except as hereinafter provided." (§ 2, Fourth.)
After 'each member' had made the three selections, the
remaining lands of the tribe, except as stated, were to be divided "as equally as practicable among said members by a commission to be appointed." (§ 2, Fifth.) The Secretary of the Interior in his discretion, at the request of any "adult member of the tribe" was to issue "to such member a certificate of competency, authorizing him to sell and convey any of the lands deeded him by reason of this Act, except his homestead, which shall remain inalienable and nontaxable for a period of twenty-five years, or during the life of the homestead allottee," if upon investigation "he shall find any such member fully competent" to care for his affairs. It was provided that upon the issuance of such a certificate of competency the lands of such 'member,' except homestead lands should "become subject to taxation" and that "such member," except as provided, should have the right to "manage, control and dispose of his or her lands the same as any citizen of the United States." It was further provided that the surplus lands should be "nontaxable" for the period of three years from the approval of the act "except where certificates of competency are issued or in case of the death of the allottee, unless otherwise provided by Congress." (§ 2, Seventh.) Oil, gas, coal or other minerals "covered by the lands" were "reserved to the Osage tribe for a period of twenty-five years." (Id.; § 3.) All funds belonging to the tribe, and moneys accruing to it were to be "held in trust by the United States for the period of twenty-five years" from January 1, 1907, except as provided. The funds of the tribe, ...