In Eastern Oklahoma, there was the idea that Indian land would be subject to federal restrictions barring all land sales for twenty-five years or would eventually become private, at which time descend to the heirs, according to the laws of descent and distribution of the State of Oklahoma, free from all restrictions. This meant that a fee simple title would issue to the legal Indian heirs if they were below 1/2 Indian blood. This might have worked if it had been intended for good. "Recognized title" is what the federal government did when it issued the allotment patents in the name of specific Indians who are listed on the Dawes Roll. By federal statute, the land was to pass down in succession to the legal Indian heirs through these Estates. The most important federal statutes most on point about legal Indian heir succession are the Act of Congress Section 1 of June 14, 1918, 40 Stat. 606 (also known as "the Heirship Act") and to bind the restricted Indian Estates 25 U.S.C. Section 375 was referenced.
Oklahoma or the states never had direct authority over the Indian land set aside by the U.S. government. Misappropriation of Indian land was always by manipulation of the restricted Estate, and general use of sham state proceedings. This could have been anticipated.
Oklahoma district courts have authority to settle the Estates of restricted Indian allottees under the Act of 1918 and affirmed under Section 3 (a) Act of August 4, 1947. The U.S. conceded it was/is not a necessary party to proceedings to determine heirship under Section 1 of the Act of 1918 because, as alleged the restrictions on alienation that touches on the land and otherwise triggers exclusive U.S. oversight do not prevent inheritance, and then assumed there was/is no governmental interest at issue in a determination of heirship. See U.S. v Hellard, 322 U.S. 363, 64 S.Ct. 985 (1944). Partitionment action was also possible under Section 2 of the Act of 1918. Unless the time period was during the 25 year period (or before April 26, 1931) a partitionment under the Act of 1918, though possible wouldn't generally require notice to the U.S..
The problem lies in the language of the Act of April 12, 1926 that allows state court partitionment actions against Indian land if the U.S. government was provided notice to Superintendent of the Five Tribes (or respective field agent) was provided. From the language, the U.S. government could remove the action to federal court, or waive its authority to protect the Indian land. It is clear the U.S. government still had a legal obligation to protect the Indian (legal heir) that was exclusively under its jurisdiction whether the Act of 1918 or the Act of 1926 was relied in a state court proceeding. At the very least, the U.S. has an obligation to ensure the legal heir of an original allottee (or the heir-heir) as determined under Section 1 of the Act of 1918 receives the value and benefit of the award, any damages and recoupment of the loss of income. Succession ("heirs" and heirship) like in the Bible is mentioned in 25 U.S.C. Section 348. State courts in performance of their authority to settle the Estates act in part as the selected agency in giving effect to the will of Congress Parker v Richard, 250 U.S. 235, 39 S.Ct. 442, 63 L.Ed. 954; United States v Hellard, 10 Cir. 138 f.2d 985 (cited in Grisso). This lack of trusteeship has had devastating effect on the Indian economy and social life (used to justify Indian child removal from systemic policy failures). The amount of land in the Indian Estate, protected by and under federal authority fell from 138 million acres in 1887 to 52 million in 1934. By 1928, only approximately twelve thousand members of the Five Civilized Tribes were still protected by restrictions and they owned just 1,727,702 acres. Facts from Kent Carter, The Dawes Commission, page 226 (1999).
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