purchase as well as by inheritance, technically speaking. 12. Section 22 of said Act of Congress must be construed together with all other cognate acts, and there being no reason for any distinction or discrimination between heirs taking by purchase and heirs taking by descent, technically speaking, the said section applies to all allotments selected by or for deceased members of the tribe in the hands of their heirs, whether such deceased member died before or after receiving the allotment. C. L. Thomas and Edgar A. DeMules,

This is a suit in equity instituted by the complainant Albert W. Shulthis, against the defendants, asserting his right to the oil and natural gas in and under the N.E. 1-4 of the N.W. 1-4 of Section 18, Township 17, Range 12 East of the Indian Base and Meridian in Oklahoma, and praying that defendants be enjoined from interfering with his use and occupancy of said land; from going upon and operating or prospecting the same for oil and gas purposes; that the cloud cast upon his title by the adverse claims of defendants be removed; that an accounting be had, and that he recover damages for being kept out of the possession of said property by said defendants.

The land in controversy is a part of that body of land formerly comprising the Creek Nation in the Indian Territory. The complainant claims under a departmental oil and gas lease, executed to him by George Franklin Berryhill, a citizen of the Creek Nation, of less than fullblood, and Clementine Berryhill, his wife, a non-citizen, in March 1906, filed in the office of the United States Indian Agent, at Union Agency, Muskogee, Indian Territory, on April 21st, 1906, and in April, 1907, approved

by the Assistant Secretary of the Interior. On June 5th, 1906, George Franklin Berryhill and Clementine Berryhill, his wife, executed to the defendants, Edmond and Perry McKay, a warranty deed, conveying the land in controversy and other lands for a consideration of two thousand dollars. In October, 1906, the McKays, for a consideration of eight hundred dollars, executed an oil and gas mining lease to one Arthur B. Reese, covering the land in controversy. In the month of August, 1907, and subsequent to the 8th day thereof, the defendant, D. A. McDougal, secured deeds from the brothers and sisters. of George Franklin Berryhill, upon the theory that they had inherited the fee in these lands as the uncles and aunts of Andrew J. Berryhill, the deceased child of Geo. Franklin Berryhill, hereinafter referred to. Thereafter and prior to the final approval of complainant's oil and gas lease, the defendant, Kiefer Oil & gas Company secured a lease of the land for oil and gas purposes from McDougal, and also through a series of intermediate leases or assignments became the owners of the oil and gas lease executed by the McKays to Reese. In April, 1907, the Kiefer Oil & Gas Company entered upon said land and began developing the same, and at the time of the filing of this suit had made extensive developments thereon, and had taken and were taking large quantities of oil therefrom. A receiver has been appointed and is now in charge of the property pending this litigation.

Since the commencement of this suit, George Franklin Berryhill has filed his bill of intervention herein, asking that the defendants be decreed to have no interest in the lands and that he be decreed the owner in fee, subject only to complainant's oil and gas lease, and that he recover ten per cent. of the oil taken from the land by the defendant Keifer Oil & Gas Company, and that the deeds and leases under which the defendants claim be declared null and void and may be delivered up and cancelled as a cloud on his title.

In order to understand the contentions of the various parties, it is necessary to briefly review the history of the title to these Creek lands and the legislation affecting them.

Early in the last century, by a series of negotiations and treaties between the United States and the Creek tribe of Indians, then residing east of the Mississippi, it was provided that said tribe should remove to lands west of the Mississippi River. By a treaty entered into between the United States and the Creek Indians in 1833 (7 Stat. 417), relative to lands which they had previously selected west of the Mississippi, it was provided that a patent in fee simple to this Nation of Indians covering the lands assigned them west of the Mississippi should be granted them whenever the treaty should be ratified by the President and Senate of the United States, guaranteeing said lands to them, so long as they should exist as a nation and continue to occupy the country thereby assigned them. Shortly thereafter, patent was granted to the Creek Nation in accordance with the treaty, covering the lands which we now know as the lands of the Creek Nation, in what was formerly Indian Territory, and of which the land in controversy was a part. For more than a half a century the Creek Nation continued to occupy these lands without any change in their status. During all this time, they existed as a distinct community, with boundaries fixed, enjoying the right of local self-government, having their own legislature, their own laws, including laws governing the distribution of property of the deceased members of the tribe, having their own executive officers, and their own courts. The title to the lands remained in the nation, each individual enjoying only the possessory right to occupy à certain portion of the tribal domain.

But with the lapse of time and the development of the west, came the demand for statehood and the allotment of the tribal lands in the Indian Territory to the individuals of the various nations or tribes, and on March 3rd, 1903, Congress passed the Act providing for what has come to be commonly known as the Dawes Commission, or Commission to the Five Civilized Tribes. (27 Stat. at L., 645.) Under the authority of this and subsequent acts of Congress, the said Commission proceeded to enroll the members of the various tribes, for the purpose of

providing a complete and accurate list of the citizens of said Nation, as a basis of allotment. It was provided in the Act creating the Commission just referred to that agreements, looking to the allotment of the lands in severlty among the members of the various tribes, should be entered into with the tribes, and on March 1st, 1901, the Commission and the Creek Nation entered into their first agreement, providing in detail for the allotment in severalty of the Creek lands, commonly known as the Original Creek Agreement, (31 Stat. 863,) providing that all the lands of the tribe, except as therein provided, should be allotted among the citizens of the tribe by said Commission, so as to give each an equal share of the whole in value, as nearly as might be, and then providing in detail a scheme of allotment. By this agreement it was further provided:

"Sec. 28. 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 roll after the ratification of this agreement. All citizens who were living on the first day of April, 1899, entitled to be enrolled under Sec. 21 of the Act of Congress approved June 28, 1898, entitled An Act for the Protection of the People of the Indian Territory and Other Purposes, shall be placed upon the rolls to be made by said Commission, under said Act of Congress, and if any such citizen has died since that time, or may hereafter die, 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 to his heirs according to the laws of descent and distribution of the Creek Nation, and be allotted and distributed to them accordingly."

"All children born to citizens so entitled to enrollment up to and including the first day of July, 1900, and then living, shall be placed on the rolls made by said Commission; and if any such child die after said date, the lands and moneys to which it would be entitled, if living, shall descend to its heirs, according to the laws of descent and distribution of the Creek Nation, and

be allotted and distributed to them accordingly."

On June 30th, 1902, another agreement was entered into, which is known as the Supplemental Creek Agreement (32 Stat, 500.) This latter agreement was amendatory of the original agreement, and among others, contained the following provisions:

"Sec. 6. The provisions of the Act of Congress approved March 1st, 1901, (the Original Agreement) in so far as they provide for descent and distribution according to the laws of the Creek Nation, are hereby repealed, and the descent and distribution of land and money provided for by said act shall be in accordance with chapter 49 of Mansfield's Digest of the Statutes of Arkansas, now in force in the Indian Territory: Provided, That only citizens of the Creek Nation, male and female. and their Creek descendants shall inherit lands of the Creek Nation: And, provided, further, that if there be no person of Creek citizenship to take the descent and distribution of said estate, then the inheritance shall go to the noncitizen heirs in the order named in said section 49."

Sec. 7. All children born to those citizens who are entitled to enrollment as provided by the Act of Congress approved March 1st, 1901, (the Original Agreement) subsequent to July 1st, 1900, and up to and including May 25th, 1901, and living upon the latter date, shall be placed on the rolls made by said commission. And if any such child has died since May 25th, 1901, or may hereafter die before receiving his allotment of lands and distributive share of the funds of the tribe, the lands and moneys to which he would be entitled if living, shall descend to his heirs as herein provided and be allotted and distributed to them accordingly."

On the 6th day of May, 1901, there was born to George Franklin Berryhill and his wife, Clementine, a son who was named Andrew J. Berryhill. This child died the following November. It will be noted, therefore, that at the time of his birth, as well as at the time of his death, the Original Creek Agreement was in force, Section 28 of which provided that children born to Creek citizens up to and including the 1st day of July, 1900, might be