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United States. Office of Indian Affairs / Annual report of the Commissioner of Indian Affairs, for the year 1905, Part I

Report of the Indian inspector for Indian territory,   pp. 705-792 PDF (36.9 MB)

Page 732

agent when not known to be- a person of established business capac- 
ity and capable to transact his own affairs, or before a representa- 
tive of the agent in the field. Mr. Charles 0. Shepard, formerly 
town-site commissioner, was appointed as special agent to make such 
investigations in the field for the agent, and entered on duty Janu- 
ary 1, 1905. 
The total number of applications presented up to June 30, 1905, 
as shown by the report of the United States Indian agent, was 
2,245. Of this number 388 were recommended for approval and 
982 for disapproval, the remainder being pending in the agent's 
office on June 30, 1905. 
The Indian agent forwards reports and recommendations to the 
Department on these applications through this office, -the inspector 
being required to make recommendation thereon. The law requiring 
that the findings of the United States Indian agent and the approval 
of the Secretary of the Interior removing restrictions shall be 
recorded, this matter was taken up by the Department'and instruc- 
tions given that certificates should be recorded by the Commission to 
the Five Civilized Tribes in the same manner that patents to allot- 
ments are recorded. 
The question also arose as to whether the restrictions could be 
removed and the Indian authorized to sell his land prior to the time 
patent to his allotment was issued. This matter was also presented 
to the Department, and it was held, in an opinion of the Assistant 
Attorney-General, dated April 25, 1905, approved by the Department 
April 26, 1905, that under the law restrictions could be removed 
prior to the date of the issuance of patent, but that the approval of 
the certificates removing the restrictions did not operate in any way 
to confirm the title. 
Under this provision of law the question also arose as to whether 
Choctaw and Chickasaw freedmen were authorized to dispose of 
their allotments, which consisted of only 40 acres. The agree- 
ments with these nations state that the allotments of such freedmen 
come within the same provisions of law as the homesteads of citizens 
by blood, which homesteads can not be alienated during the lifetime 
of the allottee not exceeding twenty-one years from the date of cer- 
tificate of allotment. The Indian appropriation act of April 21, 
1904, removed the restrictions.upon alienation from all allottees not 
of Indian blood and not minors except as to the homestead. Many 
inquiries were made as to the right of freedmen in these nations to 
sell their allotments, but no specific case was submitted for the con- 
sideration of the Department. The matter was presented, however, 
to the Department and it was held that this was a question to be 
determined by the United States courts. 
I am advised this question has been recently passed upon by the 
courts, it being held by Hon. W. H. H. Clayton, United States judge 
for the central district of Indian Territory, in an oral opinion that the
act of April 21, 1904 (33 Stat. L., 189), removing the restrictions 
from allottees not of Indian blood as to the homestead did not 
release this class of lands, but that the same were inalienable during 
the period fixed by the statute; that the original agreement with 
the Choctaw and Chickasaw nations provided that freedmen should 
be entitled to an alotm nt equal to 40 acres of the average value of 
the land, which by the terms of that act was made a homestead; that 

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