Assistant Attorney General Knaebel and Mr. S. W. Williams for appellant.
[235 U.S. 72, 75] Messrs. George S. Ramsey and Edgar A. De Meules for appellees.
Mr. Justice Van Devanter delivered the opinion of the court:
This is a suit to cancel two deeds of land allotted to an enrolled citizen of the Creek tribe of Indians. The land is what is known as surplus, as distinguished from homestead, land, and the allottee is of three fourths Indian blood. The allotment was made under the act of June 30, 1902 (32 Stat. at L. 500, chap. 1323), known as the Supplemental Creek Agreement, which provided in 16 that the land should be inalienable by the allottee or his heirs for a period of five years, expiring, as it is said in the briefs, August 8, 1907. In 1912 the allottee deeded the land to Bartlett, one of the appellees, and shortly thereafter Bartlett deeded it to Lashley, the other appellee. These are the deeds sought to be canceled, and the right to that relief is rested upon a provision in 1 of the act of May 27, 1908 (35 Stat. at L. 312, chap. 199), declaring that 'all allotted lands of . . . enrolled mixed-bloods of three quarters or more Indian blood . . . shall not be subject to alienation, contract to sell, power of attorney, or any other encumbrance prior to April twenty- sixth, nineteen hundred and thirty-one,' etc. As the original restriction upon alienation expired several months before the passage of the act of 1908, and also long before the deed from the allottee to Bartlett, the important question in the case is whether Congress intended by the act of 1908 to re- [235 U.S. 72, 79] impose and extend that restriction in respect of allotments which theretofore had been entirely freed from it through the expiration of the period prescribed for its existence. The district court, adhering to an opinion given in another case (United States v. Shock, 187 Fed. 870, 873), answered the question in the affirmative, and the circuit court of appeals, concluding that the answer should be the other way, directed that the bill be dismissed. 121 C. C. A. 520, 203 Fed. 410.
If taken literally, the language which we have quoted from the act of 1908 is doubtless broad enough to embrace all allotments of the class described, whether then subject to the original restriction or theretofore freed from it. But that language is not to be taken literally, for it is followed by a declaration that 'nothing herein shall be construed to impose restrictions removed from land by or under any law prior to the passage of this act.' That this declaration is intended to qualify or restrain what precedes it is conceded, but to what extent is the subject of opposing contentions.
Under prior legislation the lands of the Five Civilized Tribes, including those of the Creeks, had been allotted in severalty, all subject to restrictions upon alienation which were to be terminated by the lapse of varying periods of time. As to some of the lands these periods had expired, thereby lifting the restrictions. In some instances Congress had abrogated the restrictions in advance of the time fixed for their termination, and in still other instances they had been canceled by the Secretary of the Interior in the exercise of authority conferred by law. But as to most of the lands the restrictions were still in force. It was in this situation that Congress, by the act of 1908, extended or enlarged the period of restriction in respect of 'all allotted lands of . . . enrolled mixed-bloods of three quarters or more Indian blood,' and accompanied its action with an explanation that it was not intended to [235 U.S. 72, 80] impose restrictions theretofore 'removed from any land by or under any law.'
The real controversy is over the meaning of the word 'removed.' It is not questioned that it embraces the action of Congress and of the Secretary of the Interior in abrogating or canceling restrictions in advance of the time fixed for their expiration, but it is insisted that it does not embrace their termination by the lapse of time. In short, the contention is that the word is used in a sense which comprehends only an affirmative act, such as a rescission or revocation while the statutory period was still running. Although having support in some definitions of the word, the contention is, in our opinion, untenable, for other parts of the same act, as also other acts dealing with the same subject, show that the word is employed in this legislation in a broad sense plainly including a termination of the restrictions through the expiration of the prescribed period. This is illustrated in 4 and 5 of the act of 1908, and 19 of the act of April 26, 1906 (34 Stat. at L. 137, chap. 1876), and is recognized in Choate v. Trappe 224 U.S. 665, 673 , 56 S. L. ed. 941, 945, 32 Sup. Ct. Rep. 565, where, in dealing with some of these allotments, it was said that 'restrictions on alienation were removed by lapse of time.'
Mr. Justice McReynolds took no part in the consideration and decision of this case.