Mahlon Pitney

“ In our opinion the equitable title to the Agnes Hawes allotment was vested in her heirs according to Creek law by the clear meaning of § 28, which says: 'All citizens who were living on the first day of April, eighteen hundred and ninety-nine, entitled to be enrolled . . . shall be placed upon the rolls . . . and if any such citizen has died since that time . . . before receiving his allotment of lands and distributive share of all the funds of the tribe, the lands and money to which he would be entitled if living shall descend,' etc. ”

“ Each of the proposed agreements contains provisions for the allotment of lands to the members of the tribes, to be followed by the delivery of a patent conveying all the right, title, and interest of the tribe, excepting, in the case of the Atoka Agreement, the coal and asphalt under the land. ”

“ There were over 3,000,000 acres of land in the domain of the Creek Nation, and approximately 16,000 Creek Indians and freedmen. It was easily to be seen that the tribe possessed sufficient allottable land to permit each citizen to take 160 acres, assuming the land values were approximately uniform. There were many reasons of convenience and of sentiment indicating the quarter section as a proper provisional allotment. ”

“ For instance, the Creek citizenship rolls had not been completed at the time of the making of the Agnes Hawes allotment, nor were they, indeed, until some time in the year 1902. It is also to be noted that § 11 of the Curtis act does not authorize allotments of 160 acres or any other specified area, but contemplates a valuation of the allottable lands so as to give to each citizen his fair and equal share in value. ”

“ The 1st Report contains a general explanation of conditions in the Territory, indicating (p. lxviii.) the complete failure of the tribal governments, and showing that the principle of the treaties, which was that the lands of the several nations should be held in common for the equal benefit of the citizens, was so far departed from in practice that a few energetic men had been enabled to appropriate to their exclusive use almost the entire property of the territory that could be rendered profitable and available. ”

“ The further point is raised that defendant in error (plaintiff below) was barred from maintaining his present action by a decree dismissing a previous suit, brought by him prior to statehood in the United States court for the western district of the Indian Territory, against Louis and Peggie Woodward, for a partition of the same land. ”

“ In another of these tribes, under similar legislation, vast and rich deposits of coal of incalculable value have been appropriated by the few, to the exclusion of the rest of the tribe and to the great profit of those who operate them and appropriate their products to their individual use.' It was further pointed out that towns of considerable importance, with permanent improvements of great value, had been built upon lands which could not be granted in severalty to the inhabitants. ”

“ The tract was allotted to Agnes Hawes, a Creek freedwoman, who, after receiving the allotment, died without issue, leaving surviving her husband, Ratus Hawes (under whom defendant in error claims) , her mother, Peggie Woodward, one of the plaintiffs in error, and her father, Louis Woodward, since deceased, to whose rights the remaining plaintiffs in error have succeeded. ”

“ Lands allotted to citizens hereunder shall not in any manner whatsoever, or at any time, be encumbered, taken, or sold to secure or satisfy any debt or obligation contracted or incurred prior to the date of the deed to the allottee therefor and such lands shall not be alienable by the allottee or his heirs at any time before the expiration of five years from the ratification of this agreement, except with the approval of the Secretary of the Interior. ”

“ It provided that every Creek citizen should have an allotment of 160 acres of the tribal lands, for which he should receive a patent conveying to him the tribal title; that land should be set apart for religious and educational institutions, for public buildings, and for cemetery purposes ”

“ Still another agreement was negotiated under date of April 8, 1900 (7th Report, pp. 13, 47) , which, with some amendments, was ratified by Congress in behalf of the United States by the act of March 1, 1901 (31 Stat. at L. 861, chap. 676) . It was subsequently ratified by the Creek Nation on May 25, 1901 (8th Report, pp. 11, 47; 32 Stat. at L. 1971) , and is known as the Original Creek Agreement. It provided for a general allotment of all the tribal lands, except town sites, etc., 160 acres being allotted to each citizen; town lots to be sold ”

“ As a result the act of June 28, 1898, known as the Curtis act, became effective in that nation.'
The same report shows (p. 18) that the Commission found it impracticable to establish allotment offices in all five of the tribes, pursuant to the departmental regulations of October 7, 1898 (set forth below, in the margin) , until a proper system and method of procedure should have been devised, established in one tribe, and demonstrated by experience as satisfactory. ”

“ No person, except as herein provided, shall be added to the rolls of citizenship of said tribe after the date of this agreement, and no person whomsoever shall be added to said rolls after the ratification of this agreement. ”

“ Rep. 541. Pursuant to treaty provisions (treaty of 1826, art. 6, 7 Stat. at L. 286; treaty of 1832, arts. 12 and 14, 7 Stat. at L. 366; treaty of 1833, art. 3, 7 Stat. at L. 417) , the Creeks held their lands under letters patent issued by the President of the United States, dated August 11, 1852, vesting title in them as a tribe, to continue so long as they should exist as a nation and continue to occupy the country thereby assigned to them. McKellop's Comp. 1893, p. 9. These treaties and the treaty of 1856, 11 Stat. ”