
    BROWN v. MINSHALL et. al.
    No. 11512
    Opinion Filed Sept. 13, 1921.
    (.Syllabus.)
    T. Indians — Conveyances — Restrictions on Alienation.
    . ■Section 9 of the act of May 27, 1908 (c. .199;. 35 'Stat.. 312), provided: “'That the • death of any allottee ■ of the ■ Eiye Civilized Tribes i shall operate, to remove all- restrictions upon the alienation of. said allottee’s land; Provided, that.no conveyance of any interest- of - any full-blood Indian heir ■ in such land shall be valid unless approved .by the court having jurisdiction ■ of the settlement of the estate of said deceased allottee.” Held, that the ■ restriction contained • in the proviso of -said section 9, supra, runs with' the land - so long . as such allotted lands are inheritable by ■ full-lood Indian heirs,' or until the restrictions, expire by operation of law on 'April .26, 1931.
    2. Same — After-Acquired Title.
    The -after-acquired title of a full-blood restricted 'Creek Indian cannot inure to the benefit -.of her grantee in a deed Or-, lease executed by her prior to the time that she was -vested with any title -in the lands, and such' a deed or lease cannot be successfully pleaded- as an estoppel.
    Error from District -Court, Tulsa County; Owen Owen, Judge.
    Action by Louisa Brown against E. R. Minshall and others to recover interest in land. Demurrer of the defendants to the ■plaintiffs’ petition sustained. Judgment entered dismissing the action of the plaintiff.
    ■ Plaintiff appeals. Reversed and remanded.
    . Ernest B. .Hughes, Earl Poster, and Cot-tingh-am, ' Hayes, Green .’& Mclnnis, for plaintiff in error.
    Randolph, Haver & ■ Shirk, H. M. Gray, and West, Sherman, Davidson & Moore, for defendants in error.
   KiBNNAMElR, J.

This action was commenced ■ by Louisa ■ Brown, as plaintiff, against E. R. Minshall, H. W. Phillips, J. P. -Sweeney, L. R. Lewis, and the Prairie Oil and Gas Company, defendants, in the district court of Tulsa county for possession of -an undivided one-fourth interest in the lands described in- the petition Of the plaintiff. This -cause 'was consolidated with- cause No. 11523, E. R. Minshall et al., Plaintiffs in Error, v. Willie Berryhill, Defendant in Error,’ this day decided [83 Okla. 100], The lands involved in this controversy are part of the same allotment as that involved in cause No. 11523, and the question of heirship as to the allotment of 'Susanna Berryhill having been determined .in .cause No. 11523, it will be unnecessary.. to. consider that question in this cause.

The defendants demurred t.o the petition filed ,'by the plaintiff,. Louisa Brown, in this cause, and the same was sustained by the court, - and the 'plaintiff electing to stand upon h'er’ petition as filed,' the court entered final ‘judgment’ deriving "the plain- tiff tllb relief prayed fór ’ in her petition and that' .the. plaintiff had no. causé of action. and that the defendants have judgment for.-their costs. Plaintiff appealed.

,The questions for determination .on this ■ appeal not involved in cause No. 11523 arise out of the following statement of' facts: ■

The lands ¡involved .in this controversy .consist of part of the allotment of, Susanna ■ Berryhill, a -duly enrolled citizen of the Creek- Tribe' of Indians - enrolled opposite roll No. 4777 as a full-blood' member of the tribe. The allottee, died about the 26th day of July, 1899, intestate. The deceased, -being a child -of about one year of age, was without issue and unmarried, and as determined' in cause No. '11623, she left as her heirs at law her mother, who inherited one-half of the allotment, the plaintiff in this cause, and a brother of the one-half blood- . and a brother of the , whole blood. Both •brothers, being enrolled on the approved rolls prepared by the -Commission to the Five 'Civilized Tribes' as full-blood Creek Indians, inherited the other one-half, of the allotment ’as the paternal heirs)

It appears that the defendant Minshall secured an oil and gas lease from the plaintiff.. Louisa Berryhill, now ,Grown, .on or. about 'December 23,, 1¡9^2, in jvhiqh, Lquiqa, Brown leased tbe entire, allotment to him. as tbe only beir of the -deceased. pllottee, ; such lease being approved :by, tbe county court ofi Tulsa county, the court .having jurisdiction of the settlepient, of the, estate, of Susanna ‘ Berrybill, . decease^, and by tbe Secretary of tbe Interior. Minshall as-, signed part of the lease to. Sweeney and. Lewis. , . ,; ,

The defendant Phillips on,the IItb 'day.of November,, 1-916, secured a warranty -deed from Louisa Brown, as the only heir at law of .the deceased allottee, wherein she at- ■ tempted, to convey, to-,the defendant Phillips the entire allotment, and the deed was duly. approved by the county court of Tulsa county as required toy law.

Charley, Berryhill, brother of the deceased allottee, died in the year 1918 unmarried, intestate, and without issue. The devolution of bis one-fourth interest inherited toy him from the estate of his deceased sister, Susapna Berryhill, as was held in cause No. 11523, is 'controlled by the applicable provisions of the, laws of descent and distribution of the state of Oklahoma and under the facts as pleaded toy ■ the plaintiff in this cause. The plaintiff, Louisa Brown, nee Berryhill, mother of Charley Berryhill, inherited the one-fourth, interest which Charley Berryhill had inherited from his deceased sister, Susanna Berryhill.,

The questions decisive of this appeal under the foregoing facts are:

First. Louisa - Bro-wn, nee Berryhill, being a full-blood Creek Indian, duly enrolled as such upon the approved rolls of the Creek Tribe, was the one-fourth interest in the lands, which she inherited from Charley Berryhill, restricted under section ;9 of the act of May 27, ,,1908 .CSS Stat. L.. 312, o. 199)? -Section 9 of said act reads as follows:

“That the death of any allottee of the Five Civilized Tribes shall operate to remove ‘ all restrictions upon the alienation of said" allottee’s land'; Provided, that no conveyance of any interest of .any full-blood Indian heir in such land shall b.e valid unless approved toy the court having jurisdiction of the settlement' of the estate of said deceased allottee.”

Counsel' for the defendants contend that under said section, supra, the restriction contained in section 9 is' personal to the heir of the allottee, and''has no' application to the lands after the samé have been once inherited by the heirs of the allottee or when ,such ;lands ,'are inherited toy' an' heir from, the heir of''the deceased- 'allottee.-1 It ds' their ■ contention •'that the restriction 1 ontained in the proviso in section. 9, supra,1 does not- run with- the- lafad. We cannot con-1 cur in,, this , contention made > by counsel for-the defendants., -We .believe that‘it was : fjie: 'intention- of • .the ' Congress, under the-' plain and umisitakable language .of thé pro- ; viso to-section'9, that the''lands of a 'de-' ceased allottee should toe -restriéted as long as the same1 are inheritable by full-blood > heirs, or until the ■ restrictions upon such ■ lands expire ,by operation' of law, which,- - under the- provisions- of the ■ act, would - be April 26, ' 1931.. : -

It is clear ' from'' the' language of.'the proviso to section 9, supra, that it was the purpose of the Congress to protect the, full-blood Indian heir'' from making an. improvident' disposition' of such lands' ánd to afford them' the protection of the probate courts 'of Oklahoma in making disposition of such estates. It is a fundamental rule uniformly adhered ito by' the courts in the construction of statutes' to give them a reasonable construction. There is no more reasón for the Congress protecting the full-blood child of the déceásed ’ allottee' than for affording the same protection to the Mil-blood grandchild. We believe that our conclusion is in harmony with the general policy of the Congress in protecting the full-blood members of the tribe in the disposition of valuable properties, and is sustained by the great weight of the authorities. Gannon v. Johnston. 40 Okla. 695. 140 Pac. 430, 243 U. S. 108, 61 L. Ed. 622; Tiger v. Western Investment Co., 221 U. S. 286, 55 L. Ed. 738; Parker v. Richard, 250 U. S. 235, 63 L. Ed. 954.

The trial court in sustaining the demurrer of the defendants tó the plaintiff’s ■ petition held that the plaintiff, in the execution of the oil and gas lease to the defendant. Minshall. which had in part been, assigned to the defendants Sweeney and. Lewis, and the warranty deed to (he defendant Phillips, was estopped from asserting title to the lands involved in this action. The effect of the holding of the trial court was _ that the title in the lands acquired by the plain,tiff subsequent to the execution of the lease, and deed inured to the benefit of her grantees. This holding, of the trial court would be correct but for the. fact that' the -lands in controversy consist of allotted restricted Indian lands. This court and the Supreme Court of the United States have in numerous decisions announced the rule that title to restricted Indian lands may be acquired only in the manner prescribed by law, and that means according to federal law, the Congress being vested with the exclusive authority to legislate with respect to restricted Indians and their estates. A title acquired to restricted Indian lands in any manner other than that authorized toy the Congress is absolutely void, and cannot be successfully pleaded as an estoppel in an action by such restricted Indian to recover the property attempted to be conveyed in violation of law, and the title to the same cannot be acquired on equitable grounds. Smith v. Williams et al., 78 Okla. 297, 190 Pac. 555; Patterson et al. v. Carter, 83 Okla. 70, 200 Pac. 855; Starr v. Long Jim. 227 U. S. 613, 57 L. Ed. 670; U. S. v. Hemmer (D. C.) 195 Fed. 790; Goodrum v. Buffalo, 162 Fed. 817.

The rule appears to toe well established that it is the governmental policy toward restricted Indians that they may sell their restricted lands only in the manner prescribed toy the Congress; that they are not permitted to sell mere expectancies, and that the doctrine of after-acquired title has no application to a restricted Indian who is non sui juris. Franklyn v. Lynch, 233 U. S. 269, 58 L. Ed. 954, affirming 37 Okla. 60; Mullen v. Pickens, 250 U. S. 590, 63 L. Ed. 1158; Whitmire v. Levine, 80 Okla. 21, 193 Pac. 884.

In the case Bank of America v. Banks, 101 U. S. 240, 25 L. Ed. 850, the 'Supreme Court of the United States said:

“In order to work an estoppel, the parties to a deed must toe sui juris competent to make it effectual as a contract. Hence, a married woman is not estopped by her covenants. Plainly, the wife was not competent to purchase supplies for the plantation elf the husband, and therefore, cannot; toe estopped toy these recitals. Bigelow, Estop. 276; Jackson v. Vanderheyden, 17 Johns. (N. Y.) 167.”

We conclude that on the dates of the execution of the lease and deed in question in the case at bar the only interest that the plaintiff, Louisa Brown, nee Berryhill, could convey was such interest as she was authorized by the Congress to convey, and in the manner as prescribed in the act of May 27, 1908, and such title as she was then vested with, and the title to that part of 'the allotment in controversy in this cause toeing vested on the date of the execution of the instruments in Charley Berryhill, and the plaintiff toeing a restricted full-blood Indian, her deed and lease had no legal effect except to convey such right and interest as the plaintiff was vested with at that time, and that the deed and lease can in no way operate so as to affect the after-acquired title of the plaintiff in her inheritance of the one-tfourth interest in question here from her deceased child, Charley Berryhill. The rule of estoppel and after-acquired title has no application to restricted Indian lands, which are not subject to the rules of trade as applied to lands purchasable in the ordinary every-day market.

In view of the conclusion reached herein it necessarily follows that the judgment of the trial court must toe reversed, and the cause remanded, with directions to the trial court to overrule the demurrer of the defendants and proceed with said cause in accordance with the views herein expressed.

HARRISON, C. J., and JOHNSON, MC-NEILL, and NICHOLSON, JJ„ concur.  