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Under the acts of June 28, 1898 (30 Stat. 495, 505–507), and July 1, 1902 (32 Stat. 641), providing for the allotment of their lands to the citizens of the Choctaw and Chickasaw Nations individually, the allottees received titles in fee, with certain restraints upon alienation. Sections 12, 15, and 16 of the act of July 1, 1902, which is an act to ratify and confirm an agreement made by the Commission to the Five Civilized Tribes with a commission representing the Choctaw and Chickasaw Tribes, on March 21, 1902, are as follows:
“Sec. 12. Each member of said tribes shall, at the time of the selection of his allotment, designate as a homestead out of said allotment land equal in value to one hundred and sixty acres of the average allottable land of the Choctaw and Chickasaw Nations, as nearly as may be, which shall be inalienable during the lifetime of the allottee, not exceeding twenty-one years from the date of certificate of allotment, and separate certificate and patent shall issue for said homestead.
“ SEC. 15. Lands allotted to members and freedmen shall not be affected or encumbered by any deed, debt, or obligation of any character contracted prior to the time at which said land may be alienated under this act, nor shall said lands be sold except as herein provided.
“SEC. 16. All lands allotted to the members of said tribes, except such land as is set aside to each for a homestead as herein provided, shall be alienable after issuance of patent as follows: One-fourth in acreage in one year, one-fourth in acreage in three years, and the balance in five years; in each case from date of patent: Provided, That such land shall not be alienable by the allottee or his heirs at any time before the expiration of the Choctaw and Chickasaw tribal governments for less than its appraised value.” As provided by section 15, none of the lands could be sold except as provided by the act. There is no provision in the act for the sale of any of these lands by the allottees or their heirs within a year from the date of patent. The restraints upon
upon alienation are not personal to the allottees, but run with the land. Goodrum v. Buffalo, 162 Fed. 817;
Ewers v. Buffalo, 162 Fed. 828. The act of April 21, 1904 (33 Stat. 189, 204), provides that,
“All the restrictions upon the alienation of lands of all allottees of either of the Five Civilized Tribes of Indians who are not of Indian blood, except minors, are, except as to homesteads, hereby removed, and all restrictions upon the alienation of all other allottees of said tribes, except minors, and except as to homesteads, may, with the approval of the Secretary of the Interior, be removed under such rules and regulations as the Secretary of the Interior may prescribe, upon application to the United States Indian agent at the Union Agency in charge of the Five Civilized Tribes, if said agent is satisfied upon a full investigation of each individual case that such removal of restrictions is for the best interest of said allottee. The finding of the United States Indian agent and the approval of the Secretary of the Interior shall be in writing and shall be recorded in the same manner as patents for land are recorded." The supreme court of Oklahoma, in the case of Parkinson v. Skelton, not yet published, holds that these provisions do not apply to inherited lands. However, there is nothing in the papers submitted by you which indicates that any attempt was made to secure the removal of the restraint on alienation from the allotment of Lucy Cole under the provisions of this act. There was no further legislation relating to the lands allotted to full-blood Choctaws or Chickasaws until the act of April 26, 1906. The allotment to Lucy Cole was made under the provisions of the act of July 1, 1902. As the deed purporting to convey the lands inherited from her was made within a year after the patent was issued, it follows that it was a void instrument and that this was its condition when the act of April 26, 1906, became a law.
Section 22 of the act of April 26, 1906 (34 Stat. 137, 145), which you desire to have construed, is as follows:
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.”
If this section is not retroactive, sales attempted to be made by the full-blood heirs of deceased allottees prior to April 26, 1906, can not be given any effect whatever by your approval of them. If it is retroactive, such sales are not valid without your approval.
There is nothing in the language which indicates an intention to make it retroactive. In the phrases “ and convey the lands” and “ may join in a sale of such lands,” the verbs are in the present tense and indicate simply that the power to sell shall become operative when the act becomes effective. The language used is permissive, and this use of the potential “may” always refers to time subsequent to the moment of the permission or grant of power unless otherwise clearly stated in modifying words or phrases; Greene v. Robinson, 41 Conn. 470, 471; Words and Phrases Judicially Defined, vol. 5, p. 4419. That part of the section defining the action of the Secretary of the Interior, viz:
“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,” does not modify the previous part as to the time when it shall become effective nor as to the character or dates of the conveyances to be made under its provisions. Nor is
there anything in the other sections of the act which lends any color to the view that the section was to have a retroactive effect.
Under the general rule of construction a statute is not retroactive unless its language clearly so indicates:
The general rule of construction is that statutes construed as operating only on cases or facts which come into existence after they are passed, unless a retrospective effect be clearly intended.” (Endlich on Interpretation of Statutes, sec. 271.) 66. It is in the general true
that no statute is to have a retrospect beyond the time of its commencement.'
A retroactive statute would partake in its character of the mischiefs of an ex post facto law, as to all cases of crimes and penalties; and in matters relating to contracts or property, would violate every sound principle.” (Potter's Dwarris, p. 162.)
“ It is a well-settled rule that laws are not to be construed retrospectively, or to have a retrospective effect, unless it shall clearly appear that it was so intended by the enacting body, and unless such construction is absolutely necessary to give meaning to the language used.” (Brown v. Hughes, 89 Minn. 150, 153).
Mr. Justice Alvey, speaking for the court of appeals of Maryland in the case of Baltimore City Appeal Tax Court v. The Western Maryland Railroad Company (50 Md. 274, 293–294), said:
“ Before a statute can be allowed to have such operation, the court must see that the words are so clear, strong and imperative in their retrospective expression, that no other meaning can be attached to them, or that the plain intention of the legislature could not be otherwise gratified.”
The United States Supreme Court said in Harvey v. Tyler (2 Wall. 328, 347):
6 It is a rule of construction, that all statutes are to be considered prospective, unless the language is express to the contrary, or there is a necessary implication to that effect.”
In the Twenty Per Cent Cases (20 Wall. 179, 187):
“ Courts of justice agree that no statute, however positive in its terms, is to be construed as designed to interfere with existing contracts, rights of actions, or with vested rights, unless the intention that it shall so operate is expressly declared or is to be necessarily implied, and pursuant to that rule courts will apply new statutes only to future cases, unless there is something in the nature of the case or in the language of the new provision which shows that they were intended to have a retroactive operation. Even though the words of a statute are broad enough in their literal extent to comprehend existing cases, they must yet be construed as applicable only to cases that may hereafter arise, unless the language employed expresses a contrary intention in unequivocal terms." And in Southwestern Coal Co. v. McBride (185 U. S. 499, 503):
The function of the legislature is to prescribe rules to operate upon the actions and rights of citizens in the future. While, in the absence of a constitutional inhibition, the legislature may give to some of its acts a retrospective operation, the intention to do so must be clearly expressed, or necessarily implied from what is expressed.”
Section 15 of the act of July 1, 1902, supra, provides that these lands shall not be encumbered by any deed, debt, or obligation of any character contracted prior to the time at which the land may be alienated under the act of which it is a part, nor sold except as therein provided. The deed executed by the heirs of Lucy Cole and the attempted sale it was designed to effect were made in direct violation of this section. If the rule is against a retroactive operation unless such construction is absolutely necessary to give meaning to the language used (Brown v. Hughes, supra) and such construction in matters relating to contracts or property would violate every sound principle (Potter's Dwarris, supra), it would seem that such construction should be avoided when it would authorize the validation