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these cases and in Higgins Oil & Fuel Co. v. Snow, 113 Fed. 433, 437, 439, 51 C. C. A. 267, 271, 273, and Raynolds v. Hanna (C. C.) 55 Fed. 783, have been examined and thoughtfully considered. They rest on the proposition that, although the owner of a life estate may not lawfully open mines and extract and appropriate to his own use minerals from unopened land, yet, where the owner of the life estate in mineral land and the remaindermen join in a mining lease for the purpose of opening and operating mines in the land, the life tenant is entitled to receive a part of the royalties proportionate to the value of his life estate.

The facts in these cases, however, differ so radically from those of the case at bar that the decisions in them, not only fail to rule this case, but they fail to persuade that the conclusion by the court below and now by this court is erroneous. For example, Barnes v. Keys, was a partition suit between the owners of the life estate in mineral land and the remaindermen. The life expectancy of the estate was 38 years. The trial court had heard, considered, and found the respective proportional values of the life estate and the estate of the remaindermen in the land which they had jointly leased for mining purposes. It had found that the value of the life estate was 80 per cent. of the entire value of the property and the value of the estate of the remaindermen only 20 per cent. of that value, and upon the basis of that finding the Supreme Court of Oklahoma held that the owners of the life estate were entitled to receive interest on the royalties at 6 per cent. per annum from the times when they were respectively produced until the expiration of the life estate. In the case at bar there is no life estate. Even if there was a defeasible estate for years in the part of the land leased, that was terminated by the removal of the restrictions on the alienation of that part when the lease was approved, and before the mine was opened or any of the royalties were collected. The court below did not find in this case that the homestead right of Julia Willingham in the part of the land leased, or in the whole body of the land, ever had any value, but it adjudged that she was entitled to no part of the royalties on account of her homestead right and that was in effect a finding that her homestead right in the part of the land leased was of no value, and there is no evidence in the record that it had any value. Because the legal proposition on which the cases cited by counsel for the appellants relative to this subject are founded is inapplicable to the facts of this case, and because the facts in those cases are not analogous to the facts in the case at bar, the opinions in those cases fail to satisfy that the conclusion of the court below that Julia Willingham was entitled to no part of, or interest in, the royalties under the lease, was not just and equitable.

[5] Finally, counsel for the appellants, after exhaustively discussing the rights and interests of the lessors on the theory that they are measured by the provisions of the act of May 27, 1908, propose near the end of their brief a new theory, which they concede that they did not present to the court below, to the effect that conceivable estates differing from those resulting from the act of 1908 were vested in Tootie Riley and Julia Willingham by section 7 of the Original Creek Agreement (Act March 1, 1901, c. 676, 31 Stat. 861) or by section 16 of the Supplemental Creek Agreement, which took the place of section 7 (Act June 30, 1902, c. 1323, 32 Stat. 500), which estaies could not constitutionally be and were not devested or modified by the act of 1908, by virtue of which conceivable estates Tootie Riley and Julia Willingham are each entitled to one-half of the royalties under the lease as joint owners of the fee to the land from which they are derived, or that they are entitled as joint life tenants to the interest on the royalties. Section 7 of the Original Creek Agreement provided that the homestead of each citizen should be inalienable for 21 years, and should remain after the death of the allottee for the use and support of children born to him after the ratification thereof, which was made on May 25, 1901, and Tootie Riley and Julia Willingham were born after that date. Section 16 of the Supplemental Creek Agreement (32 Stat. 500) declares that such homestead shall be and remain nontaxable, inalienable, and free from any incumbrance whatever for 21 years from the date of the deed therefor, and that it shall remain after the death of the allottee for the use and support of children born to him after May 25, 1901.

The arguments of counsel in support of their new theory have not proved convincing. They are ingenious and subtle. But they do not tend to lead to clarity and certainty, but to confusion and doubt. Suffice it to say upon this subject that, in view of the opinion of the Supreme Court in Tiger v. Western Development Company, 221 U. S. 286, 304, 306, 307, 308, 309, 311, 313 and 316, 31 Sup. Ct. 578, 55 L. Ed. 738, and of the later decisions which have quoted and followed that opinion, our conclusion is that the provisions of the act of May 27, 1908, relative to the rights and interests of these lessors so far as they are in any respect repugnant to and inconsistent with those of the original or the Supplemental Creek Agreement relative to the same subject, repealed to the extent of that repugnancy and became substitutes for those earlier provisions, that they did not deprive any of the parties in interest here of any of their vested estates or constitutional rights, and that the rights and interests of these parties are governed and measured by the provisions of the act of May 27, 1908.

Let the decree below be affirmed.

REED, District Judge (dissenting in part). The restrictions upon alienation of the oil and gas deposits in the homestead of Emma Derrisaw, a full-blood citizen of the Creek Nation, the allottee of the land in question, if removed at all, other than by her death, were removed by the approval of the oil and gas mining lease of October 3, 1912, by the Secretary of the Interior on November 9, 1912. Admitting for the present that the Secretary of the Interior, in view of section 6 of the act of Congress approved May 27, 1908 (35 Stat. c. 199, p. 315), was thereafter authorized to approve such leases to effect the removal of such restrictions, the question is: To what share, if any, of the royalties in the custody of the superintendent of the disbursing agency of the Five Civilized Tribes arising from the lease of such premises is the minor defendant Julia Willingham now entitled, she being the only child of Emnia Derrisaw deceased intestate, born since March 4, 1906,

and restrictions upon the alienation of her homestead not having been removed prior to her death?

It seems to be conceded that section 9 of the act of May 27, 1908, controls the determination of this question. That section in full reads in this way:

"Sec. 3. That the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allottee's land: Provided, that no conveyance of any interest of any full-blood Indian heir in such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee: Provided further, that if any member of the Five Civilized Tribes of one-half or more Indian blood shall die leaving issue surviving, born since March fourth, nineteen hundred and six, the homestead of such deceased allottee shall remain inalienable, unless restrictions against alienation are removed therefrom by the Secretary of the Interior in the manner provided in section one hereof, for the use and support of such issue, during their life or lives, until April twentysixth, nineteen hundred and thirty-one; but if no such issue survive, then such allottee, if an adult, may dispose of his homestead by will free from all restrictions; if this be not done, or in the event the issue hereinbefore provided for die before April twenty-sixth, nineteen hundred and thirty-one, the land shall then descend to the heirs, according to the laws of descent and distribution of the state of Oklahoma, free from all restrictions: Provided further, that the provisions of section twenty-three of the act of April twentysixth, nineteen hundred and six, as amended by this act, are hereby made applicable to all wills executed under this section."

Other provisions of the act of May 27, 1908, that may bear upon this question are:

Section 2 as set forth in the majority opinion further provides: "That the jurisdiction of the probate courts of the state of Oklahoma over lands of minors * * * shall be subject to the foregoing provisions. * * * "

"Sec. 5. That any attempted alienation or incuvibrance by deed, mortgage, contract to sell, power of attorney, or other instrument or method of incumbering real estate, made before or after the approval of this act, which affects the title of the land allotted to allottees of the Five Civilized Tribes prior to the removal of restrictions therefrom, and also any lease of such restricted land made by violation of law before or after the approval of this act shall be absolutely null and void."

"Sec. 6. That the persons and property of minor allottees of the Five Civilized Tribes shall, except as otherwise specifically provided by law, be subject to the jurisdiction of the probate courts of the state of Oklahoma.”

And further provisions of this section empower the Secretary of the Interior, under rules and regulations prescribed by him, to exercise supervision and control over all guardians of minors, to the end that their estates in restricted and other lands shall be preserved and their property protected for the benefit of said minors, and the probate courts may in their discretion appoint any representative of the Secretary as guardian for such minors, without fee or charge.

Upon the death of Emma Derrisaw intestate (the restrictions against alienation of the homestead not having been previously removed, and issue born to her since March 4, 1906, surviving her), section 9 of the act conferred upon her minor child, Julia Willingham, who was born since March 4, 1906, the sole right to the use of the homestead for her support until April 26, 1931, unless she should die prior to that date, when her right would cease and the land then descend to the heirs of her mother Emma Derrisaw Willingham. The minor Julia is still liv

ing, or was at the time of the hearing in the court below, and that court held, as I read its opinion, that, upon the death of Julia's mother intestate, this minor became entitled only to such use of the land as she might make of it, with the restrictions against its alienation still existing; that the use contemplated by the statute did not permit the lease of the land for oil and gas mining purposes, because that would amount to a disposition of that part of the corpus of the property and prevent its going to the heirs of the allottee at the expiration of the minor's term as granted by section 9, and would in effect be a conversion for the benefit of the minor of that part of this homestead property; that the minor could not therefore rightly be allowed anything from the proceeds arising from the oil and gas mining lease for her support during the term granted by that section.

I am unable to concur in that part of the decree, for under section 9 upon the death of Emma Derrisaw intestate all restrictions against the alienation of this homestead were removed and it then descended to her heirs under the statute of Oklahoma, subject to the right of her heirs born since March 4, 1906, the child Julia being the only heir so born. The restrictions against alienation it is true had not, previous to her death, been removed in the manner provided by section 1 of the act; but under section 9 all restrictions upon her land, including this homestead, were removed by her death. The removal of the restrictions is, of course, for the purpose alone of permitting alienation of the land. United States v. Knight, 206 Fed. 145, 124 C. C. 'A. 211.And unless alienation is in fact made the rights of parties in the land, other than the right of alienation, it seems to me are not affected. But if it be conceded that the removal alone of the restrictions by the Secretary of the Interior can deprive the minor Julia of her right to the uso of this homestead for the purpose for which it was granted to her, clearly she could not be deprived of such right until the restrictions are so removed, which in this case was not until November 9, 1912, four. years after the death of her mother and after her right to the use thereof had fully vested in her. The clause of section 9 which reads, "unless restrictions against alienation are removed therefrom by the Secretary of the Interior in the manner provided in section one hereof," has reference to and limits the word "alienation,” and does not affect the right in or to the land other than the right to alienate or incumber it. Emma Derrisaw died intestate in November, 1908, seised in fee of this homestead, the restrictions upon its alienation not having been previously removed, but were removed under section 9 of the act by her death. No alienation of the land, or of its oil and gas deposits, or will of Emma Derrisaw, having then been made, its descent was then cast upon her legal heirs, subject, however, to the rights of the child Julia under section 9, who was born since March 4, 1906, to its use for her support until April 26, 1931, or until her death should that occur before that date.

I am unable to bring myself to believe that the right of Julia to the use of this entire homestead property, if necessary for her support, which vested in her on the death of her mother in November, 1908, could be devested by the approval of the Secretary of the Interior four years later. Jones v. Meehan, 175 U. S. 1, 32, 20 Sup. Ct. 1, 44 L Ed. 49. Conceding, for the present, that under section 6 of the act of May 27, 1908, the Secretary of the Interior was authorized to approve the lease after the death of Emma Derrisaw (sections 11, 12, and 13 of article 7 of the Constitution of Oklahoma, and sections 3330, 3335, 6447, 6532, 6554, and 6569 of the Revised Laws of Oklahoma (1910), which confer upon the proper county court of the state of Oklahoma, jurisdiction of the persons and property of minors in that state), it seems clear that the right of the minor Julia to this entire homestead property, or the income from or proceeds of this homestead, for her support during the term granted by section 9, is not, and cannot rightly be, barred by the approval of the lease by the Secretary of the Interior in November, 1912. Jones v. Mechan, 175 U. S. 1, 32, 20 Sup. Ct. 1, 44 L. Ed. 49, above. If this be not true, then, if the homestead is not susceptible of use for agricultural or similar purposes, the minor would be deprived of all means of support from its use during the term for which it was granted to her. See Mallen v. Ruth Oil Company et al., 231 Fed. 845, 146 C. C. A. 41.

It also seems clear that the royalties received under this oil and gas mining lease, deposited with the disbursing agency of the Five Civilized Tribes, are rent and income from that part of this homestead, which may be rightly used for the support of this minor, and only such of the proceeds or income thereof as remains after a reasonable support has been furnished to the minor therefrom during the term of her right to the use thereof can rightly be distributed to the heirs, including this minor, of Emma Derrisaw. The Congress, in enacting section 9 of this act, was not concerning itself with any technical definition or meaning of the estate or interest in the homestead right to which the children of allottees of lands in the Creek Nation born since March 4, 1906, would be entitled under that section, for it grants to such children the right to the use of such estate, whatever the legal definition of that right may be, for their support during the term granted. In Jones v. Meehan, above, it is said, in construing any treaty between the United States and an Indian tribe, it must always be borne in mind that the treaty must be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians, citing Worcester v. Georgia, 6 Pet. 515, 582, 8 L. Ed. 483; Choctaw Nation v. United States, 119 U. S. 1, 27, 28, 7 Sup. Ct. 75, 30 L. Ed. 306; and the same rule should apply in construing the acts of Congress, since the government has adopted that method of dealing with Indians, instead of by treaty.

That the right granted is not a life estate may be admitted; but that it is a right to use it for a term of years, subject to the termination of that right by her own death, or the death testate of her mother, prior to the expiration of the term granted, cannot be doubted. The oil and gas deposits in this land are of a migratory character, and probably its principal value, and may be exhausted by the operation of oil and gas wells upon land adjacent or near thereto, or dissipated from other causes long before the year 1931, and thus the allottee, or upon her death her heirs, deprived of the principal value and source of revenue from this land. Mallen v. Ruth Oil Co. et al., 231 Fed. 845, 849, 146 C.

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