Brown v. United States

delivered the opinion of the court:

By the special act set out in Finding X jurisdiction is conferred upon the court, with the right of appeal, “ to determine the validity of any acts of Congress passed ” since the act of July 1, 1902 (32 Stat. L., 716), “ in so far as said acts, or any of them, attempt to increase or extend the restrictions upon alienation, encumbrance, or the right to lease the allotments of lands of Cherokee citizens ” enrolled as of September 1,1902, in accordance with said act July 1, 1902.

The importance of the case can hardly be overstated. It involves the power of Congress, after allotments have been made in severalty under the provisions of said act, with certain restrictions against alienation, encumbrance, and leasing, to increase or enlarge such restrictions by subsequent legislation. The decision, the defendants assert, “ will affect not only the allotments of 8,689 Cherokee full bloods directly concerned in this case, but indirectly all of the Five Civilized Tribes of Oklahoma, numbering perhaps 30,000 persons.”

*298The character of the title to the lands held by the Cherokees was considered by the court in the recent case of Muskrat and Dick (ante, p. 166), holding, on the authorities there cited, that whatever of title was conveyed by the United States by the patent of December 31, 1838, “ was conveyed to the Cherokees as a nation,” no title being vested in severalty in any of them (Cherokee Trust Fund, 117 U. S., 288; Cherokee Nation v. Hitchcock, 187 U. S., 294, 307). The title so conveyed was subject to the conditions that the tribe should not become extinct or abandon possession of the lands, and as neither of the conditions named had happened when the allotment act of July 1, 1902, was passed, the title remained in the nation for the benefit of all its members, and will continue to be so held until divested by the United States.

The act of July 1,1902, ratified by the Cherokees by popular vote, imposed for their protection the restrictions set forth, as follows:

“ Seo. 13. Each member of said tribe shall, at the time of the selection of his allotment, designate as a homestead out of said allotment land equal in value to forty acres of the average allottable lands of the Cherokee Nation, as nearly as may be, which shall be inalienable during the lifetime of the allottee, not exceeding twenty-one years from the date of the certificate of allotment. Separate certificate shall issue for said homestead. During the time said homestead is held by the allottee the same shall be nontaxable and shall not be liable for any debt contracted by the owner thereof while so held by him.

“ Sec. 14. Lands allotted to citizens shall not in any manner whatever or at any time be encumbered, taken, or sold to secure or satisfy any debt or obligation, or be alienated by the allottee or his heirs, before the expiration of five years from the date of the ratification of this act.

“ Sec. 15. All lands allotted to the members of said tribe, except such land as is set aside to each for a homestead as herein provided, shall be alienable in five years after issuance of patent.

“ Sec. 16. If for any reason an allotment should not be selected or a homestead designated by or on behalf of any member of the tribe, it shall be the duty of said commission to make said selection and designation.

“ Sec. 20. If any person whose name appears upon the roll prepared as herein provided shall have died subsequent to *299the first day. of September, nineteen hundred and two, and before receiving his allotment, the lands to which such person would have been entitled if living shall be allotted in his name, and shall, with his proportionate share of other tribal property, descend to his heirs according to the laws of descent and distribution as provided'in chapter forty-nine of Mansfield’s Digest of the Statutes of Arkansas: Provided, That the allotment thus to be made shall be selected by a duly appointed administrator or executor. If, however, such administrator or executor be not duly and expeditiously appointed, or fails to act promptly -when appointed, or for any other cause such selection be not so made within a reasonable and proper time, the Dawes Commission shall designate the lands thus to be allotted.

“ Sec. 21. Allotment certificates issued by the Dawes Commission shall be conclusive evidence of the right of an allottee to the tract of land described therein, and the United States Indian agent for the Union Agency shall, under the direction of the Secretary of the Interior, upon the application of the allottee, place him in possession of his allotment, and shall remove therefrom all persons objectionable to him, and the acts of the Indian agent hereunder shall not be controlled by the writ or process of any court.

“ Sec. 72. Cherokee citizens may rent their allotments when selected for a term not to exceed one year for grazing purposes only and for a period not to exceed five years for agricultural purposes, but without any stipulation or obligation to renew the same; but leases for a period longer than one year for grazing purposes and for a period longer than five years for agricultural purposes, and for mineral purposes, may also be made with the approval of the Secretary of the Interior, and not otherwise. Any agreement or lease of any kind or character violative of this section shall be absolutely void and not susceptible of ratification in any manner, and no rule of estoppel shall ever prevent the assertion of its invalidity. Cattle grazed upon leased allotments shall not be liable to any tribal tax, but when cattle are introduced into the Cherokee Nation and grazed on lands not selected as allotments by citizens the Secretary of the Interior shall collect from the owners thereof a reasonable grazing tax for the benefit of the tribe, and section twenty-one hundred and seventeen of the Revised Statutes of the United States shall not hereafter apply to Cherokee lands.”

By the act of March 11, 1904 (38 Stat. L., pt. 1, p. 65), the Secretary of the Interior was “ authorized and empowered ” to grant a right of way for the construction of pipe lines for *300the conveyance of oil and gas through any lands held by an Indian tribe or nation in the Indian Territory, and through lands allotted in severalty to individual Indians, “ which have not been conveyed to the allottee with full power of alienation,” for a period not exceeding twenty years, with the right of renewal for a like period at the expiration thereof, upon such terms as the Secretary of the Interior may determine. As the lands allotted under the act of July 1,1902, have not “ been conveyed with full power of alienation,” as shown by the sections of the act quoted, the authority of the Secretary of the Interior to grant such rights of way extend and apply to the lands so allotted and conveyed.

While the act of March 11,1904, does not fall strictly within the letter of the jurisdictional act “ to increase or extend the restrictions upon alienation, incumbrance, or the right to lease the allotments of lands of Cherokee citizens,” imposed by the act of July 1, 1902, it was passed since that date; and if it does not “ attempt to increase or extend the restrictions ” so imposed, it will necessarily operate against alienation as well as against the freedom of the allottees to incumber or lease such allotments, and, therefore, we will consider it in connection with the subsequent acts to which objection is made.

Thereafter the act of April 26, 1906 (34 Stat. L., 137), sections 19, 20, and 22, provides:

“ Sec. 19. That no full-blood Indian of the Choctaw, Chickasaw, Cherokee', Creek, or Seminole tribes shall have power to alienate, sell, dispose of, or encumber in any manner any of the lands allotted to him for a period of twenty-five years from and after the passage and approval of this act, unless such restriction shall, prior to the expiration of said period, be removed by act of Congress; and for all purposes the quantum of Indian blood possessed by any member of said tribes shall be determined by the rolls of citizens of said tribes approved by the Secretary of the Interior: Provided, however, That such full-blood Indians of any of said tribes may lease any lands other than homesteads for more than one year, under such rules and regulations as may be prescribed by the Secretary of the Interior; and in case of the inability of any full-blood owner of a homestead, on account of infirmity or age, to work or farm his homestead, the Secretary of the Interior, upon proof of such inability, *301may authorize the leasing of such homestead under such rules and regulations: Provided further, That conveyances heretofore made by members of any of the Five Civilized Tribes subsequent to the selection of allotment and subsequent to removal of restriction, where patents thereafter issue, shall not be deemed or held invalid solely because said conveyances were made prior to issuance and recording or delivery of patent or deed; but this shall not be held or construed as affecting the validity or invalidity of any such conveyance, except as hereinabove provided; and every deed executed before, or for the making of which a contract or agreement was entered into before the removal of restrictions be, and the same is hereby, declared void: Provided further, That all lands upon which restrictions are removed shall be subject to taxation, and the other lands shall be exempt from taxation as long as the title remains in the original allottee.

“ Sec. 20. That after the approval of this act all leases and rental contracts, except leases and rental contracts for not exceeding one year for agricultural purposes for lands other than homesteads, of full-blood allottees of the Choctaw, Chickasaw, Cherokee, Creek, and Seminole tribes shall be in writing and subject to approval by the Secretary of the Interior and shall be absolutely void and of no effect without such approval: Provided, That allotments of minors and incompetents may be rented or leased under order of the proper court: Provided further, That all leases entered into for a period of more than onp year shall be recorded in conformity to the law applicable to recording instruments now in force in said Indian Territory.”

“ Sec. 22. That the adult heirs of any deceased Indian of either of the Five Civilized Tribes whose selection has been made, or to whom a deed or patent has been issued for his or her share of the land of the tribe to which he or she belongs or belonged, may sell and convey the lands inherited from such decedent; and if there be both adult and minor heirs of such decedent, then such minors may join in a sale of such lands by a guardian duly appointed by the proper United States court for the Indian Territory. And in case of the organization of a State or Territory, then by a proper court of the county in which said minor or minors may reside or in which said real estate is situated, upon an order of such court made upon petition filed, by guardian. All conveyances made under this provision by heirs who are full-blood Indians are to be subject to the approval of the Secretary of the Interior, under such rules and regulations as he may 'prescribe.”

For the purpose of carrying into effect the provisions of said sections the Secretary of the Interior, in July, 1906, and *302thereafter, prepared and promulgated necessary regulations whereby the sale and leasing of lands allotted to or inherited by full-blood Indians of the Five Civilized Tribes are to be governed.

By an amended petition filed March 26, 1908, long after the time fixed by the jurisdictional act for the commencement of suit, the claimants attack a provision in said jurisdictional act (March 1, 1907, p. 1025), charging the lands allotted to full-blood Cherokees with clerical expenses connected with the leasing of such allotments for mineral and other purposes; but as that provision clearly is not covered by the language of the jurisdictional act inspecting the extension of the restrictions upon alienation, incumbrance, or the right to lease allotments, we will not consider it further than to say that the money so used was reimbursed before the filing of the amended petition herein, and it has since been omitted in the appropriation act of April 30, 1908 (35 Stat. L., 70-90) ; and besides it can hardly be said that Congress intended the court to consider the validity of the provision in the same act that contained the jurisdictional clause.

The question as to the validity of the act of April 26,1906, as amended by the act of June 21, 1906 — to apply to the Cherokees — so far as said act attempts “ to increase the number of persons entitled to share ” in the common property beyond those enrolled for allotment as of September 1, 1902, under the act of July 1, 1902, was considered in the Muskrat case, sufra. The decision on the authorities there cited was based on the continued existence, by various acts of Congress, of the tribal government of the Cherokee Nation; and inasmuch as the act under which allotments were made in that case provided for the continued existence of the tribal government until March 4, 1906, the court held that Congress had the power to extend the time for the completion of the roll so as to embrace all Cherokee citizens living on that date.

As the common property was held by the nation for the mutual benefit of the communal owners, their rights in the common property continued so long as the tribal government existed. The tribal government having been continued beyond the time fixed in the act of July 1, 1902, for allotment, *303those born after September 1, 1902, were denied the right to share in the allotments under that act, though living on March 4, 1906. But the moment they were born their communal rights attached to the unallotted lands. True, those to whom allotments had been made continued communal owners in the same lands, their rights thereto not having been relinquished under the act of July 1, 1902. But Congress having seen fit to continue the tribal government to March 4, 1906, by the same act which .authorized the allotments, the allot-tees were bound to take notice thereof; and they, having-under that act acquired their rights to the exclusion of those born after September 1, 1902, are in no condition to complain if their communal interest in such unallotted lands and undistributed funds be taken to equalize the allotments to all those so born who were living on March 4, 1906. Only by this method could Congress have provided for the equalization of allotments to March 4, 1906, and we held that the power was lodged in Congress to make it.

In the present case the question is somewhat different from that, as it involves the power of Congress, after imposing restrictions against alienation and leasing of allotments to all alike for a fixed time, to extend such restrictions as against the lands allotted to a segregated class designated as “ full-blood Indians ” of the Cherokee and other civilized tribes.

In the act of July 1, 1902, section 13, the allottee is prohibited from alienating his homestead, taken as part of his allotment, during his lifetime, not exceeding twenty-one years, during which time the allotment is nontaxable and free from debts contracted while so held by the owner.

By section 14 it is provided that the lands allotted to citizens shall not be incumbered or sold to satisfy any debt or obligation, or be alienated by the allottee or his heirs, before the expiration of five years from the date of the ratification of the act. And by section 15 it is provided that all lands allotted to members of the tribe, except the lands selected for homesteads, “ shall be alienable in five years after issuance of patent.” Section 16 gives the commission authority to select allotments and designate homesteads for those who for any reason fail to do so.

*304By the act of April 26, 1906, sections 19 and 20, it is provided, in substance, that no full-blood Indian of the Five Civilized Tribes “ shall have power to alienate, sell, dispose of, or incumber in any manner any of the lands allotted to him for a period of twenty-five years ” from and after the passage of the act, unless such restrictions be removed by Congress prior to the expiration of such period. And section 19 declares that “ for all purposes the quantum of Indian blood possessed by any member of said tribes shall be determined by the rolls of citizens of said tribes approved by the Secretary of the Interior.”

Bight is given by section 20 to full-blood Indians to lease, in writing, with the approval of the Secretary of the Interior, their allotments, other than their homesteads, for one year; and if for a longer period, the lease to be recorded in conformity with the laws of the Indian Territory.

Provision is made in section 22 for the sale by adult heirs and guardians of minors of deceased allottees who have received patents.

However, it is unnecessary here to notice other provisions of the sections of the act further than to say that the provisions look to the protection of the Indians, especially the full-bloods, who are less civilized and therefore less able to protect and care for themselves.

Furthermore, if the act extending restrictions against alienation and incumbrance of allotments by full-blood Indians for the period of twenty-five years he held valid, then the validity of the other minor provisions of the act will follow.

The contention of the claimants is that as Congress, by the act of March 3, 1901 (31 Stat. L., 1447), declared Cherokee citizens to be citizens of the United States, they thereby severed the relation of guardian and ward; and having severed that relation, it is not. within the power of Congress to reestablish it; and having by the act of July 1, 1902, acquired-subject to certain restrictions — vested rights in the lands set apart to them, Congress thereby emancipated such allot-tees and their private property from congressional control.

If that contention be true and the claimants and those they represent are sui juris, the invalidity of the acts extend*305ing restrictions must be conceded, as the general theory of the law is that every citizen of the'United States, not under some disability imposed, by law, is invested with authority to manage and dispose of his own property, to enter into contracts, and to do and perform such acts as pertain to his personal rights, obligations, interests,- and duties.

Another principle of law equally well established is that every one who is competent and sui juris to act for himself may employ another to act for him; and if not competent and sui juris to act for himself, the Government-, through its proper channel, may act for him to the end that he be protected in his rights of person and property.

“ Plenary authority over the tribal relations of the Indians Has been exercised by Congress from' the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the Government.” (Lone Wolf v. Hitchcock, 187 U. S., 553, 565, quoted in the case of Matter of Heff, 197 U. S., 488, 498.)

But the question is too well established to require further comment.

Referring to the acts of Congress continuing the tribal government, and the effect of those acts, the court, in the case of Muskrat et al v. United States (ante, p. 166), said:

“ Section 63 of the act of July 1, 1902, provides that ‘ the tribal government of the Cherokee Nation shall not continue longer than March 4, 1906; ’ but by joint resolution of Congress, March 2, 1906 (34 Stat. L., 822), the tribal existence and present tribal governments of the Cherokee Nation and other civilized tribes in the Indian Territory were ‘ continued in full force and effect for all purposes under existing laws until all property of such tribes, or the proceeds thereof, shall be distributed among the individual members of said tribes, unless hereafter otherwise provided by law.’ And thereafter, by section 28 of the act of April 26, 1906, the tribal existence and present tribal government of said nation ivas, with certain restrictions therein specified, ‘ continued in full force and effect for all purposes authorized by law until otherwise provided by law.’

“ Therefore, in considering the questions involved, we shall assume the validity of those provisions continuing the tribal existence and tribal government of the Cherokee Nation in force and effect until all property of said nation *306shall have been distributed among the individual members thereof.”

On the authority of those acts the court must assume the continued existence of the tribal government of the Cherokees. Nor will we analyze the acts to ascertain of how much authority the tribal government has been shorn. We are aware of no authority which makes power in the tribe to act essential to constitute tribal relations, though some power may be presumed.

As the United States is the self-constituted guardian of the Indians, with plenary authority over their tribal relation, it is for Congress and Congress alone to determine when that relation shall cease. In other words, when Congress by their legislation have declared that the tribal government of the Cherokees shall “ continue in full force and effect for all purposes authorized by law until otherwise provided by law,” the courts can not enter into the quantum of authority remaining in th.e tribe, and by construction defeat the will and purpose of Congress.

In the case of Matter of Heff, supra (p. 499), the court 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. Of the power of the Government to carry out this policy there can be no doubt. It is under no constitutional obligation to perpetually continue the relationship of guardian and ward. It may at any time abandon its guardianship and leave the ward to assume and be subject to all the privileges and burdens of one sui juris. And it is for Congress to determine when and how that relationship of guardianship shall be abandoned. It is not within the power of the courts to overrule the judgment of Congress. It is true there may be a presumption that no radical departure is intended, and courts may wisely insist that the purpose of Congress be made clear by its legislation, but when that purpose is made clear the question is at an end.”

On the authority of that case the claimants contend that by virtue of the act of March 3, 1901, declaring Cherokee *307citizens to be citizens of the United States, Congress terminated the relation of guardian and ward, thereby investing them with full power and authority as other citizens of the United States over the control of their property.

In the case of Cherokee Nation v. Hitchcock, supra (at p. 309), being an action to enjoin the Secretary of the Interior, under section 13 of the act of June 28, 1898 (30 Stat. L., 495), from leasing oil lands held for the benefit of said nation, the court said:

“ There is no question involved in this case as to the taking of property; the authority which it proposes to exercise by virtue of the act of 1898 has relation merely to the control and development of tribal property, which still remains subject to the administrative control of the Government, even though the members of the tribe have been invested with the status of citizenship under recent legislation.”

If citizenship may be Conferred upon Indians while in tribal relations without affecting the administrative control of their tribal property, it follows that their communal rights in such property are not thereby removed from the control of Congress.

In the case of National Bank of Commerce v. Anderson (147 Fed. Rep., 87, 90), respecting the sale of allotted lands upon which there was a restriction against alienation for twenty-five years, the court said: “ The granting of citizenship does not affect the character of the title to land allotted to the Indian, nor is the restriction against alienation inconsistent with citizenship;" citing, among others, United States v. Rickert (188 U. S., 432) and United States v. Thurston County (143 Fed. Rep., 287).

The purpose of Congress to retain control of the property and lands of the Cherokee Indians is shown by the enabling act of June 16, 1906 (34 Stat. L., 267), admitting Oklahoma into the Union as a State, section 1 of which provides:

“ That nothing contained in said constitution shall be construed to limit or impair the rights of person or property pertaining to the Indians of said Territories (so long as such rights shall remain unextinguished) or to limit or affect the authority of the Government of the United States to make any law or regulation respecting such Indians, their *308lands, property, or other rights by treaties, agreement, law, or otherwise, which it would have been competent to make ' if this act had never been passed.”

Clause 3 of section 3 provides:

“ That the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title in or to any unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian, tribe, or nation; and that until the title to any such public land shall have been extinguished by the United States, the same shall be and remain subject to the jurisdiction, disposal, and control of the United States. That land belonging to citizens of the United States residing without the limits of said State shall never be taxed at a higher rate than the land belonging to residents thereof; that no taxes shall be imposed by the State on lands or property belonging to or which may hereafter be purchased by the United States or reserved for its use.”

Under that act Oklahoma was admitted into the Union, November 16, 1907.

It has been held that “ the authority of the State can not be so exerted as to impair the power of Congress to regulate commerce with the Indian tribes ” (Dick v. United States, 208 U. S., 340, 353). It has also been held that the United States, in conformity with treaty provisions, may for police purposes retain control over lands in a State the Indian title to which has been extinguished and the lands allotted in severalty, notwithstanding the citizenship of the allottees, and that twenty-five years was not an unreasonable period. (Dick v. United States, supra.)

Though the enabling act was passed June 16, 1906, Oklahoma was not admitted into the Union as a State until after the acts of 1904 and 1906 were in force. Besides, the right of the Government respecting the person and property of the Indians was reserved in the enabling act “ to make any law or regulation respecting such Indians, their lands, property, or other rights by treaties, agreement, law, or otherwise, which it would have been competent to make if this act had-never been passed.” ITence, no question of conflict between national and state authorities is involved.

*309Does this authority of the United States extend to lands allotted in severalty to Indians declared to be citizens of the United States while tribal relations continue ?

The full-blood Indians to whom allotments have been made are in the main in favor of the restrictions placed upon their lands by the acts in question, and are in favor of the supervision of the Secretary of the Interior over the leasing and sale of their lands, as set forth in Finding XIY. And this, doubtless, for the reason, as set forth in Finding XYI, that prior to the passage of the act of April 26, 1906, many of the full-blood Indians had been induced by designing persons to sell and convey their lands, or contract to sell or to otherwise incumber the same, at grossly inadequate com-jiensation and in violation of the act of July 1,1902.

The same finding also recites that since the passage of the act of April 26, 1906, large numbers of such deeds, mortgages, and contracts to sell and incumber their respective allotments are being filed daily in the office of the recorder of deeds in the counties where such lands are situate, all in violation of said act of 1906. In other words, these were the conditions respecting the lands allotted to the full-blood Indians when the act of 1906 was passed for their protection.

But, independent of the findings, the court will take judicial notice of the Indians as wards of the nation and their consequent dependence upon the Government as their guardian. The native Cherokees were even opposed to the allotment act of 1902, preferring to continue their tribal relations and the communal ownership of the lands. This is shown in the Cherokee Intermarried Whites Case (203 U. S., 76, 93), where the court, after designating said allotment act as an act of Congress and not a treaty, said:

“ It is a singular commentary on the situation that the majority of the native Cherokees voted against its acceptance, which was carried by the vote of the whites.”

The full-bloods or native Cherokees are uneducated and unable to speak the English language, and without the protection of the Government it is manifest that they are liable to lose the lands allotted to them. The restrictions placed upon their lands against alienation, incumbrance, and leasing will be removed when the Government is satisfied that it can *310withdraw its protection without detriment to the interests of the owners. This is evidenced by the act of May 27, 1908 (35 Stat. L., 312), whereby the acts of 1902 and 1906 have been materially changed and modified, as therein shown.

By section 19 of the act of 1906 the lands upon which the restrictions were imposed are free from taxation so long as held by the original allottees, and this is a benefit and protection and not a detriment to the owner.

As was said by the court in the case of Lone Wolf v. Hitchcock (187 U. S., 553, 567), quoting from the case of United States v. Kagama (118 U. S., 375, 383):

“ The power of the General Government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety or those among whom "they dwell. It must exist in that Government, because it never has existed anywhere else, because the theater of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes.”

So here the exercise of the power of government is necessary to the protection of the less civilized, the weak and the unlettered full-blood Indians, against designing men, as well as for the safety of those with whom they dwell. This does not involve a taking of the property of the full bloods, as the acts in controversy simply subject their allotments to administrative control for their sole benefit until they are sui juris and competent to protect themselves.

It would be strange indeed if the Government in dealing with its wards, desiring to aid them in taking an advance step in civilization by conferring upon them citizenship and the right to hold real estate in severalty, could not invoke its own power while tribal relation exists to protect them in the rights thus conferred. We think the power to do so rests in Congress, notwithstanding the citizenship conferred upon the Indians and the allotment of their lands in severalty.

The acts in question seek the protection of those most in need thereof, and they wisely consent to the administrative shield. If they consent, though by the jurisdictional act some of their number are designated to maintain this action, who will be harmed or what principle of law will be violated *311in bolding the acts valid while tribal relations are recognized by Congress ?

In respect to the act of March 11, 1904, supra, giving the Secretary of the Interior authority to grant, for a period of twenty years, with' the right of renewal, rights of way for the construction of pipe lines through lands allotted in sev-eralty to individual Indians “ which have not been conveyed to the allottee with full power of .alienation,” we must hold, so far as we are authorized to consider this act, that in view .of the recognized and continued existence of the tribal government the authority therefor, as an administrative act, rests with Congress. ' Whether, if tribal relations should cease, the act would operate to limit the power of the -Secretary within the period of disability imposed by the allotment act of July 1,1902, or whether the authority of the Secretary to grant such rights of way through lands of individual allottees when such allottees shall have acquired full power of alienation, -we deem it unnecessary now to decide. So far as the authority of the Secretary to grant such rights of way through tribal lands, we think there can be no question in view of the authority of Congress to control tribal property.

These acts of 1904 and 1906, and any other acts looking to the protection of the title of these full-blood Indians to the lands allotted to them, are analogous to the protection afforded by the States to the property of infants and others incompetent from any cause to manage their own affairs, though they be citizens of the United States.

It is a just and wise exercise of power, and rises above technicalities. The protection of property against alienation and incumbrance by those incompetent to appreciate the responsibilities of ownership, and, therefore, unable to resist designing men, is essential to the welfare of society, and, therefore, not subversive of the Constitution, but is in furtherance of its purpose to establish justice, insure domestic tranquillity, and to promote the general welfare. Therefore we may concede that if the claimants were separated from their tribe and were sui juris and competent to manage their own affairs the acts extending the restrictions upon the lands of the full-blood Indians might well be held a discrimination among the members of the tribe and an interference with the *312property rights of citizens of the United States, and, therefore, obnoxious to the Constitution in the sense that the right ■ of alienation, incumbrance, and leasing of their lands was interrupted and delayed; nevertheless, as the restrictions were imposed for their manifest benefit, i. e., that they might have the continued possession, ownership, and consequent enjoyment of their lands until such time as the Government was satisfied they were copipetent to repel designing men and manage their own affairs, we must hold the several acts valid and effective to accomplish the purpose for which they were enacted.

The petition is dismissed.

delivered the following dissenting opinion:

The grave constitutional questions presented relate to the right of Congress to increase and extend the restrictions originally placed upon the alienation, encumbrance, and the right to lease certain lands of Cherokee citizens of the United States beyond the terms of an act approved July 1, 1902 (32 Stat., 716), under which allotments were made to individual Cherokees and for which separate certificates were issued for nontaxable homesteads made inalienable during the lifetime of the allottee not exceeding twenty-one years, but not liable in debt contracted by the owner while so held by him; and as to other lands allotted such lands were made inalienable for five years after issuance of the patents. The act of allotment provided that if any person whose name appeared upon the roll should die subsequent to September 1, 1902, and before receiving his allotment, the lands to which such person would have been entitled if living should be allotted in his name and (with his proportionate share of other tribal property) descend to his heirs according to the laws of -Arkansas. These provisions were submitted by the terms of the allotment act to the Cherokee people, who by popular vote ratified and agreed to the same. The United States closed the transaction by the issuance of patents, and the several parties took possession of their property under certificates which vested the absolute title in the petitioners and those who with them, became the owners in severalty of the land.

*313Furthermore, the act under which the conveyances were made provided that such conveyances when approved by the Secretary of the Interior should serve as a relinquishment to the grantee of all the right, title, and interest of the United States in and to the lands embraced in the patent. It appears that the conveyances were approved according to law (sec. 59). By the acceptance of'the patent every individual allottee was “ deemed to assent to the allotment and conveyance of all the lands of the tribe as provided in the allotment act and to relinquish all his right, title, and interest to the same, except in the proceeds of lands preserved from allotment.” (Sec. 60.)

At the time of the. passage of the allotment act every Cherokee had been made a citizen entitled to all such rights, privileges, and immunities, as other citizens of the United States.

By an act approved March 11, 1904 (33 -Stat., 65), the Secretary of the.Interior was authorized to grant rights of way for the operation and maintenance of pipe lines for oil and gas through the allotted lands of the petitioners for twenty years, and at the end of that period to extend the right to maintain such pipe lines for another period of twenty years. .By another act, approved April 26, 1906 (34 Stat., 137), Congress attempted to impose further restrictions by Forbidding any full-blood Cherokee to alienate, sell, or-encumber any of the lands allotted to him for a period of twenty-five years from that date. Full bloods were given the privilege of leasing lands other than homesteads for inore than one year, but only under government rules and regulations. 'Leases and rental contracts (except for agricultural purposes) of lands other than homesteads were to be ineffective without the approval of the Secretary of the Interior; and adult heirs of any deceased Cherokee whose selection has been made could convey lands inherited only when approved by the Secretary.

There is really nothing new to be said outside of the adjudicated cases and their proper relation to and bearing upon the issues. But with fixed ideas as to the meaning of a grant, and because no case (out of at least 100 discussed) has been cited which sustains the proposition that land once *314granted can be seized and controlled by the Government except in the exercise of the right of eminent domain, I am unable to accept the Government’s contention that the acts of Congress which, attempt to do so are valid.

It is not meant to say that the act conferring citizenship upon the complainants either altered or affected the conditions which accompanied the original grant. But when the land was granted the character of the title, allotted to the complainants and other full bloods was the same as if allotted to other citizens. The title of the one became as unqualified as the title of the other, and any attempt to differentiate between the fee so held can only be sustained upon the theory that the Indian can never acquire such a right to land as the Government is bound to respect.

Nor am I alone in this view, inasmuch as some of the ablest members of the United States Senate officially declared to Congress that the legislation known as the McCumber amendment was not valid, and a report to that effect was promptly acted upon by the same Congress that enacted a part of the legislation (which forms the subject-matter of the complaint here) by the passage of the act of our jurisdiction.

Preliminary to any discussion of the. merits, the majority of the court seem to have made objectionable findings, as I view them; and, though probably not intended to «prejudice petitioners, some of them are calculated to mislead.

None of them are necessary, because the courts must take judicial notice of the only essential fact necessary to be considered — that allotments to land and other valuable rights were conferred by a law specifically enacted to carry out the treaties of the United States with the Cherokees, which those people accepted by complying with the conditions fixed for title to vest and which, the United States ratified by putting the parties in possession under the patents of the Government. The attempt to set aside settled titles thus acquired is in violation of what the Supreme Court declared in Choctaw Nation (119 U. S., 29) and again in U. S. v. Old Settlers (148 U. S., 473), that—

“ Where, in professed pursuance of treaties, statutes have conferred valuable benefits upon Indians, which the latter *315have accepted, they partake of the nature of agreements— the acceptance of the benefit, coupled with the condition, implying an assent on the part of the recipient to the condition.”

The fourteenth finding of the court alleges that the full bloods “ in the main ” are in favor of the extension of the period of restriction upon alienation or incumbrance of the lands and the supervision of governmental authority over leasing as well as supervision of the sale of the inherited lands. Apparently, then, this litigation is a continuation of the local controversy existing between the headmen of the Cherokees and other allottees, who, having possessed themselves of their property, naturally want to make use of it.

But these differences were concluded by the allotment act when ratified, and the Supreme Court recognized the force of the popular approval given to the act of July 1, 1902 (which made the allotments), by saying through Mr. Chief Justice Fuller in the Cherokee Intermarriage Cases (203 U. S., 93), that the majority of the natives voted against the acceptance. Nevertheless, the court affirmed the cases and closed the controversy with the statement that the allotments then being apportioned were according to the terms of the act which provided for them.

This disposes of the mere matter of what some of the full bloods want, as the allotment scheme has accomplished by law that which the wishes of some of the individuals to the agreement can not now influence. The partisan statements of the few individuals who have undertaken to testify should no more influence the action of the court on the constitutional question than the report of the Senate committee on the same subject (predicated upon two volumes of printed testimony) to the effect that the later legislation was unwise and injurious to the Cherokees.

“ While it is ordinarily true,” said the Supreme Court, “ that this court takes notice of only such facts as are found by the court below, it may take notice of matters of common observation, of statutes, records or public documents, or other similar matters of judicial cognizance.” (170 U. S., 32.) As the judicial power is strictly limited to the determination of the power of Congress to interfere, no testimony should or can be considered.

*316The lands in controversy, like the neutral lands in Holden v. Joy (17 Wall., 211), were lands conveyed immediately and directly from the United States to the Cherokee Nation under the treaty of 1835. (7 Stat., 479.) Assurances were given to the Cherokee Nation that such lands would be conveyed to them “ in fee simple.” When the Cherokee constitution was adopted, the title to the common property, passed from the communal owners and became vested in the nation. (Whitmire's case, 30 C. Cls., 154; Eastern Cherokees v. United States, 40 ibid., 252; 202 U. S., 101.) All these lands were conveyed by patent in execution of the stipulations contained in several treaties — those of May 6, 1828, February 14, 1833, and December 29, 1835 — which granted the lands unto the Cherokee Nation, “ to have and to hold the same, together with all the rights, privileges, and appurtenances belonging unto the said Cherokee Nation, forever.” By article 4 of the treaty of 1846 it was agreed oh the part of the United States that all these lands “ shall be and remain the common property of the whole Cherokee people; ” and the Cherokee constitution (1839) provided that “ the lands of the Cherokee Nation shall remain common property.” Another treaty in 1866 resulted. Article 1, amending that treaty, repeated the declarations of previous treaties that the lands of the Cherokee Nation should remain common property, but also carried a provision that such lands should remain common property “ until the national council shall request a survey and allotment of the same in accordance with the provisions of article 20 of the treaty of July 19, 1866.” In Red Bird et al., Citizens of the Cherokee Nation by Blood, v. United States (203 U. S., 81) the Supreme Court recognized the completeness of the agreement in redemption of treaty promises, and with the issuance of the patents the scheme was carried out according to that decision.

Especially does it seem unnecessary to attempt to arraign the motives and conduct of a whole people, whose efforts to develop a new country have led to criticism of purchasers and lessees as designing men. If it be true that many of the full-bloods were induced to make contracts to sell or encumber their allottments, in violation of the terms of the *317act of July 1, 1902, contingent upon the delivery of valid titles, those transactions do not concern this controversy, and the courts of Oklahoma are open to the grantors to set aside such contracts.

Many o.f the suits relate to the purchase of fractions of land reserved for town sites. Finding sixteen relates in part to these, and to transactions involving personal transfers under the act of 1902 for considerations not the subject of complaint and proper considerations which the grantors as well as the grantees supposed they had a right to give and receive. This right to buy and sell despite the act of 1906 — which is the subject of the complaint — is the thing in issue; not that the Indian is yet a child unable to help himself, needing forty more years of segregation from his white brother, to be left standing in the path of progress, and unfit to be absorbed into the habits and industrial life of the people among whom his lot is cast as a citizen.

Passing to the consideration of the real issue which according to the requirements of the jurisdictional act the court must consider, the Government’s contention is: (1) That the acts of the Government authorized to be exercised by the subsequent legislation of April 26, 1906, do not amount to a taking of the property. The court adopts this contention, but it seems to me to beg the question.

Any interference which destroys the market value of an owner’s individual property is the equivalent of a taking.

The inheritances provided for in the allotment act of July 1, 1902, had taken effect and fixed rights not only for those authorized to inherit, but also accomplished results for those intervening as purchasers or lessees within the limitations of the act which gave the allotments. The efforts of the Government now to control the land beyond the terms first fixed constitute the imposition of such penalties upon the present allottees in the use of their property as practically to, convert the fee derived by them under the terms of the grant into a life estate — with limitations upon the use so serious in character as to even lessen the value of the life estate itself. These efforts attempt to surrender to the lawmaking power the right of continued interference not only as such interposition may affect the living generation, but future generations of Indians as well, in the control and *318enjoyment of private property held by as good a title as can be conferred by law.

“ Some things lie too deep in the common sense and common honesty of mankind to require argument or authority to support them.”

So said the Supreme Court. Fixed rules which obtain everywhere for the protection of private property are in this class and apply to Indians in possession under a lawful grant as much as to others holding by a patent from the Government, regardless of citizenship.

The right claimed for the Government to grant rights of way for the operation and maintenance of pipe lines, oil and gas, through the allotted lands for twenty years and at the end of that period to extend the right to maintain such pipe lines for another period of twenty years would seem to any holder of land to be a taking of his property. The right to lease lands held in fee simple without governmental supervision and to grant rights of way for pipe lines to public-service corporations and others and directly receive the revenues arising therefrom is as much the individual right of the Indian as the right of any other citizen of the United States. If Congress can constitutionally provide for the interference indicated by its later legislation, they may equally provide other and different methods for the disposition of the interests involved, and especially of those parties holding lands by inheritance. The compensation to be paid the al-lottees whose lands are attempted to be made subject to the easement indicated and provided to be fixed and collected by the Secretary of the Interior is a direct taking, even though the legislation is assumed to be for the benefit of those possessed of the allotments.

The grant of rights of way over the allotted lands is a violation of constitutional provisions.

Whether the pipe-line companies to which the Secretary of the Interior is attempting to grant rights of way under the later legislation are public corporations need not be considered. But independent of the character of these corporations to whom rights of way are proposed to be granted, it does not seem proper for any government officer to fix the compensation. Inasmuch as the Secretary of the Interior is *319given that right by the legislation which forms the subject-matter of the complaint, it will be noted that the privilege of a trial by jury is denied, thereby burdening, the owner of the estate with an improper easement and consequently infringing the prohibition against the taking of private property without due process of law. The exercise of governmental authority under the circumstances also means the taking for public use of property without adequate compensation. In its last analysis the exercise of such governmental authority means that private property is authorized to be taken for private use.

Again, section 19 of the act of April 26, 1906, makes all lands upon which restrictions are removed subject to taxation. This is in violation of the special privilege conferred by section 13 of the allotment act of July 1, 1902, exempting homestead allotments from taxation so long as such homesteads should be held by-the allottees. This exemption from taxation was and is a valuable property right which legislation can not destroy; and the attempt to destroy this right is a taking of property in the constitutional sense. For the reasons stated and because property once lawfully acquired by anyone can not be so interfered with as to destroy or lessen any of the rights of that property in the hands of the owner, there was such a taking as the Constitution forbids.

It is next contended by the Government (2) that the legislation subsequent to the act of July 1, 1902, operated to continue the tribal government of the Cherokee Nation and the control by Congress of the property of the individual Cherokee, despite the allotment act which surrendered control of such land as was conveyed in fee simple to the individual members of the tribe. But the conclusion of the court— that the issuance of allotment certificates and conveyances to petitioners and other individual Cherokees vested in them the fee-simple title to the lands respectively — though correct, is inconsistent with the theory that the Government may destroy its patents because the owners are Indians.

The rights involved in the defense of the exclusive use and control of land by persons properly in possession as owners under the Government’s patents are not such rights as come within the category of “ technicalities,” but are vested rights, *320“The enjoyment, present.or prospective, by some particular person or persons in property as of present interest.” (Pearsall v. R. R. Co., 161 U. S., 646; Cooley’s Constitutional Lim., 332.)

It was the early English law that a vested right was “ an immediate right of present or future enjoyment.” (Fearne’s Contingent Rem.) The right of property consists in the free use, enjoyment, and disposal of all the acquisition without any control of diminution save only by the laws of the land. (1 Blacks., 138.)

Where land is granted the legislative power is incompetent to annul the grant and give the land to another. Such a law is void. (Fletcher v. Peck, 6 Cr., 87.) A government is never presumed to grant the same land twice. (7 J. R., 8.) A grant by act of Parliament which conveys a title good against the King takes away no right of property from any other; though it contains no saving clause, it passes no other right than that of the public although the grant is general of the land. (1 C. O., 274, b; 1 Bent., 176; 5 J. R., 263.) In Arredondo’s case (6 Pet., 609) the principle is reaffirmed that where land is once granted the legislative power is incompetent-to annul the grant. A State can not impose a tax on land granted with an exemption from taxation (New Jersey v. Wilson, 7 Cr., 164), nor take away a corporate franchise (Dartmouth College v. Woodward, 4 Wheat., 518). Where a second patent has issued to land such second patent would be void because of the previous grant. (See Easton v. Salisbury, 21 How., 428.) Where a certificate shows reservation under a treaty and the action of the Indian in settling upon it the production of a certificate to that effect from the proper officer makes the land reserved and any subsequent patent becomes void. (Polk’s Lessee v. Wendell, 9 Cr., 87; Bagnell v. Broderick, 13 Pet., 436.) Allotment certificates, like certification of lists of land under special acts, convey a title as complete as patents. (Barney v. Dolph, 97 U. S., 652; Frasher v. O’Connor, 115 U. S., 102; Noble v. Union River, 147 U. S., 165.)

The inheritances provided for by this allotment act had taken effect, and, becoming effective, accomplished precisely that which any settlement could effect under any other kind *321of lawful agreement. Accordingly the right conferred by means of the inheritance of the .lands actually allotted became as much a vested right in the person of the heir as the patent of the Government carried the vested right to the original allottee, unless the Government could confer the fee and take it away because the beneficiaries were Indians.

But, said Chief Justice Marshall, this is a government of laws and not of men; and when the title vested in the Indian, either by direct allotment or by succession, the recipients were supposed to be as much’•within the protection of the law as others. The title could not vest and yet be subject to the control of the grantor. If it could, there was no investiture. This court is in entire harmony, however, that the title did vest. When it did, there was nothing left for new legislation to operate upon as to the lands which had passed out of the control of the Government. As well might it be said if money had been distributed and annuities had been paid that subsequent legislation might provide for recovery as to say that a supplemental enactment could operate upon the title of land given absolutely to the individual.

Words of present grant excepted, the Supreme Court has been uniform in the holding that every patent passed a perfect and consummate title. (Wilcox v. Jackson, 13 Pet., 498.)

The whole question comes back to the proposition whether the United States, never having had a title of their own and having lost administrative control by carrying out its several treaty obligations, can now reestablish the relation of guardian and ward formerly existing between the Government and those receiving the allotments after the relation had been severed as to the property conveyed.

If “ unlettered people ” understood that their treaties meant what all others knew they meant, the relation of guardian and ward ceased when the treaties were executed; and under the rule declared in Worcester v. Georgia (6 Pet., 582) the treaties accomplished under the law with the consent of the tribe as well as the Government what both parties intended.

The theory of the majority is, citing Lone Wolf v. Hitchcock (187 U. S., 553), and the Matter of Heff (197 U. S., 488), that plenary authority over the subject-matter con*322tinues political, not subject to be controlled by judicial determination. The difficulty with the application of this proposition is the difference between the titles and the relations of the parties with respect to the tenures of the lands. The allottees here are neither communal owners nor is the property any longer common. Congress can by no apt re-assume control upon the theory, that the property is of a community character, or that the tribe has any ownership in common of the allotted property. In Lone Wolf v. Hitchcock, ante, the Supreme Court planted further political authority squarely upon the proposition that the Indians there had not been emancipated from the control and protection of the Government in so far as that control and protection related to the tribal lands of the parties concerned, citing Choctaw Nation v. United States (119 U. S., 1), and Stephens v. Cherokee Nation (174 Ibid., 445). Mr. Justice White expressly put the decision upon Cherokee Nation v. Hitchcock (187 U. S., 294), “ where it was held that full administrative power was possessed by Congress over Indian tribal property.” The court presumed for all four cases that Congress acted in good faith because the property remained communal and common, which meant unallotted lands. No such presumption can be applied in the case at bar because no refinement of language can make any property, where the title has been received as a matter of individual right, a tribal interest in that property. It became individual and ceased to be tribal for any purpose.

Possibly treaties may properly be broken and new laws unsettling fixed rights may be desirable for the full bloods indefinitely, if each and all of them individually indicated consent.

But no request of the Cherokee government could be the basis of further legislative control, because the tribal government had only been retained for the purpose of distributing lands not allotted in severalty to those designated to receive the same. The proposition that governments of any kind can interfere here means for people supposed to be more civilized than any other class of Indians a kind of guardianship more arbitrary than anything ever yet declared.

*323The Supreme Court has never acquiesced in any such proposition. In New York Indians v. United States (170 U. S., 23) the court rejected a proviso by saying: “ There is something, too, which shocks the Conscience in the idea that a treaty can be put forth as embodying the terms of arrangement with * * * an Indian tribe ” by the assertion of a material provision unknown to one of the contracting parties and kept in the background to be used by the other only when exigencies demanded.

In Jones v. Meehan (175 U. S., 1) an allotment had been made not to a citizen of the United States, but to an Indian. It was held that the title to the property could not be interfered with by any subsequent act of Congress or by the executive departments. The series of decisions reviewed by the court discloses that as the reserve sections became individual property the reservation became the “ equivalent to a present grant of a complete title in fee simple;” alienable by the grantee at pleasure unless by treaty or contemporaneous act Congress restricted alienation.

In Garfield v. United States ex rel. Goldsby (211 U. S., 249) the court said that “ it has always been recognized that one who has acquired rights by an administrative or judicial proceeding can not be deprived of them without notice and an opportunity to be heard ” — thus defining the meaning and extent of constitutional practice against action without due process of law.

In Wallace v. Adams (204 U. S., 415) the principle was affirmed that an allotment certificate when issued like a patent to land was dual in its effect because it was an adjudication of the special tribunal empowered to decide that the party to whom it was issued became entitled to the land and was a conveyance of the right.

In Wiggan v. Connolly (163 U. S., 56) the court dealt with a contingent estate; the property was plainly tribal and not held in fee simple by the individual.

Preceding the act conferring citizenship upon the Cherokees (31 Stat., 1447), doubts were stated by a committee report to Congress as to whether the parties could perform any of the usual personal business engagements' daily taking-place on .a vast scale where they lived without a technical *324violation of the laws requiring supervision of the Cherokees. A reason thus appeared for making these people citizens. It was one of the steps taken to discharge the recipients from the supervision of the agencies of the General Government. In the Matter of IIeff (197 U. S., 508) the Supreme Court held that Indians receiving the privileges of citizenship were outside of all police regulations on the part of the Congress without the consent of the individual Indian and the State. The court said that the logic of the argument to the contrary implied that the United States could never release itself from the obligation of guardianship; that the reach to which the argument went for the assumption of the rights of guardianship which it has once abandoned demonstrated its unsoundness.

For the reason that political rights (protected so carefully for the Indian-made citizen in Heff’s case) are of no greater importance and rise no higher than the. property rights of the Indian citizen where, when the grant of the property right took effect, the Government abandoned its guardianship over the Indian — certainly to the extent of the land granted and put in his possession by the Government — the legislation which forms the subject-matter of this complaint does not seem to me to be a valid exercise of the legislative power. If it be valid legislation, there is no limit to the exercise of political authority over an Indian grant no matter how ancient or how long held by the Indian beneficiary. And certainly there is a time when political control ceases to be plenary and lawful and can become arbitrary and unconstitutional.