Argument for Plaintiff in Error.

221 U.S.

abandoned or intended by either party to the agreements so to be abandoned. But, on the contrary, further restrictions were imposed upon the alienation of the allotments for a given period.

By reason of this reservation of authority, the jurisdiction or power of Congress was continued and maintained over the subject; and this power, limited though it may be, can be exercised whenever in the judgment of Congress its exercise is necessary to protect the subject, that is, the property of the Indian, and to maintain, likewise, the policy of the Government. The restriction. is an agency through which a governmental power may be exercised.

The breaking up of tribal interests in the lands and their allotment in severalty ushered in a new policy in dealing with the Indian. This new policy sought to localize and individualize the Indian. And the Government undertook to protect him in an individual property right as it had previously done in a tribal property right.

Congress, having retained authority over the subject by agreement and, acting within the life of the agreement and while the tribal government still exists, may conclude that a longer period of care and supervision is necessary to its policy and in the best interests of both the Goverment and the Indian and, thereupon, extend the period of restrictions by appropriate legislation. This, of course, comes within the rightful exercise of power reserved over the subject and the act in controversy and all its provisions are, therefore, valid.

This relation of the Government and the Indian is not affected by his citizenship, or by any other rights which he may possess, or by the police power of the State over him, or by any rights which the State of Oklahoma has in the premises; but, on the contrary, it is entirely compatible with all these. Smith v. Stevens, 10 Wall. 321; Wiggan v. Connolly, 163 U. S. 60; In re Heff, 197 U. S. 488;

221 U.S.

Argument for Defendants in Error.

Goodrum v. Buffalo, 162 Fed. Rep. 817; United States v. Rickert, 188 U. S. 432; United States v. Hall, 171 Fed. Rep. 218; Rainbow v. Young, 161 Fed. Rep. 836; National Bank of Commerce v. Anderson, 147 Fed. Rep. 87; United States v. Thurston County, 143 Fed. Rep. 287; Lone Wolf v. Hitchcock, 187 U. S. 553; McKay v. Kalyton, 204 U. S. 458; Conley v. Ballinger, 216 U. S. 84; §§ 1, 3 (cl. 3), 22, Enabling Act; 34 Stat. 267; § 497, Constitution Oklahoma.

Powers, rights and interests of sovereignty are never relinquished by lapse or implication. Once established and asserted, they are presumed to exist and to continue to exist until abandoned by express terms. This principle applies, alike, to prerogatives of the executive, powers of the legislature and the jurisdiction of courts. All acts derogatory thereof are strictly construed and every doubt resolved in favor of their perpetuity. United States v. Herron, 20 Wall. 251; National Bank v. Anderson, 147 Fed. Rep. 90; Hamilton v. Reynolds, 88 Indiana, 193; State v. Polacheck, 101 Wisconsin, 430; Pooler v. United States, 127 Fed. Rep. 519; United States v. Knight, 14 Pet. 301; Wheeling & B. Bridge Co. v. Wheeling Bridge Co., 138 U. S. 287; United States v. Shaw, 39 Fed. Rep. 39; Mosle v. Bidwell, 130 Fed. Rep. 335.

Mr. George S. Ramsey and Mr. S. T. Bledsoe, with whom Mr. C. L. Thomas, Mr. L. J. Roach, Mr. Chris. M. Bradley and Mr. R. C. Allen were on the brief, for defendants in error:

The act of Congress, approved April 26, 1906, did not in the Creek Nation operate to extend beyond August 8, 1907, restrictions against alienation by full-blood Indians of lands inherited by them.

The restrictions against the alienation by the allottee are personal to the allottee and do not run with the land. The restrictions against the alienation by the heirs are personal to the heirs and do not pass with the land to a

Argument for Defendants in Error.

221 U.S.

vendee of the heirs. Oliver v. Forbes, 17 Kansas, 128; Clark v. Lord, 20 Kansas, 393, 396; McMahon v. Welch, 11 Kansas, 290.

The restrictions against alienation imposed by § 7 of the Original Agreement, and § 16 of the Supplemental Agreement were personal to the allottee and his heirs. Libby v. Clark, 118 U. S. 250; United States v. Payne Lumber Co., 206 U. S. 467.

The only restrictions on heirs expired five years from the date of the approval of the Supplemental Agreement, which was on August 8, 1907. The last sentence in § 22 does not extend the restrictions against alienation by heirs who are full-bloods, but simply left such full-bloods under the restrictions already existing, which expired five years from the date of the ratification of the Supplemental Agreement. This last sentence is a proviso or exception. A proviso is a clause added to a statute, or to a section or part thereof, which introduces a condition or limitation upon the operation of the enactment, or makes special provision for cases excepted from the general provisions of the law, or qualifies or restrains its generality, or excludes some possible ground of misinterpretation of its extent. Black on Interpretation of Laws, 270, 273; 2 Sutherland on Stat. Const., § 352; United States v. Dickson, 15 Pet. 141, 165.

A proviso should be construed strictly and takes no case out of the enacting clause which does not clearly fall within its terms. Ryan v. Carter, 93 U. S. 78, 85; United States v. Alston, Newhall & Co., 91 Fed. Rep. 529; Carter v. Hobbs, 92 Fed. Rep. 599; Wall v. Cox, 101 Fed. Rep. 409; In re Matthews, 109 Fed. Rep. 614; Boston Safe Deposit Co. v. Hudson, 68 Fed. Rep. 760; United States v. Schilerholz, 137 Fed. Rep. 618; Gould v. New York Life Ins. Co., 132 Fed. Rep. 929; Murray v. Beal, 97 Fed. Rep. 569; Paxton Lumber Co. v. Farmers' Lumber Co., 50 Am. St. Rep. 596.

221 U. S.

Argument for Defendants in Error.

A proviso should be strictly construed and must be construed with reference to the subject-matter of the section of which it forms a part, unless there is a manifest legislative intention that it should limit the operation of other sections of the act. United States v. 132 Packages of Spirituous Liquors, 65 Fed. Rep. 983; Chattanooga R. & C. R. Co. v. Evans, 66 Fed. Rep. 814; In re Matthews, 109 Fed. Rep. 614; McRae v. Holcomb, 46 Arkansas, 306; Bragg v. Clark, 50 Alabama, 363.

The act of Congress approved April 26, 1906, in so far as it undertook to place additional restrictions on the alienation of allotted lands to which the allottee held a patent is unconstitutional and void.

On August 8 and 13, 1907, Marchie Tiger had full power to convey, without supervision or restriction of any kind whatever, the lands inherited by him from his deceased ancestors, and his warranty deeds of those dates to the defendants in error were valid conveyances of his inherited lands, because Marchie Tiger and Marchie Tiger's ancestors were citizens of the United States. Act of March 3, 1901, 24 Stat. 390; Ross v. Ellis, 56 Fed. Rep. 855; United States v. Hall, 171 Fed. Rep. 214; United States v. Boss, 160 Fed. Rep. 132; Dick v. United States, 208 U. S. 352; Rep. Senate Select Committee, Vol. 1, p. v. (1906); In re Heff, 197 U. S. 488; Ex parte Savage, 158 Fed. Rep. 205; United States v. Saunders, 96 Fed. Rep. 268; United States v. Kopp, 110 Fed. Rep. 160; Ex parte Viles, 139 Fed. Rep. 68; United States v. Dooby, 151 Fed. Rep. 697; United States v. Augur, 153 Fed. Rep. 671; United States v. Allen et al., 171 Fed. Rep. 907.

Marchie Tiger's ancestors owned these lands in fee simple absolute, subject only to the condition or limitation, contained in the grant, that the lands should not be alienated by them or their heirs before the expiration of five years from August 8, 1902. Taylor v. Brown, 147 U. S. 640; Report of Senate Select Committee, Vol. 1,

Argument for the United States.

221 U.S.

p. v (1906); Act-of March 1, 1901, 31 Stat. 861, § 7; Act of June 30, 1902, 32 Stat. 500, §§ 6, 16.

It is not within the power of Congress to create a condition or limitation, or extend a condition or limitation affecting these lands, after conveyance to the allottees and the acceptance of the conveyance by the allottees, in fee simple, subject only to the definite condition or limitation expressed in the grant. Jones v. Meehan, 175 U. S. 1; In re Heff, 197 U. S. 488; Report of Select Senate Committee, Vol. 1, p. v (1906).

All other cases adjudicated by this court, bearing upon titles to Indian lands and rights therein, are to be distinguished from the case at bar, for the reason that the status of full citizenship and full ownership of property does not occur in any case heretofore presented. United States v. Rickert, 188 U. S. 433; Cherokee Nation v. Hitchcock, 187 U. S. 294; Lone Wolf v. Hitchcock, 187 U. S. 553; Choctaw Nation v. United States, 119 U. S. 1; Stephens v. Cherokee Nation, 174 U. S. 445; Taylor v. Brown, 147 U. S. 640; Ex parte Savage, 158 Fed. Rep. 205; Wiggan v. Connolly, 163 U. S. 56.

Mr. Wade H. Ellis for the United States, by leave of the court:

The United States asks to be heard for the reason that the interests of all Indians of the Five Civilized Tribes, whose welfare the Government is bound to guard, are here involved.

The questions involved in the present case are, Did the act of April 26, 1906, forbid the alienation of inherited lands by full-blood Creek Indians without the approval of the Secretary of the Interior, subsequent to August 8, 1907? and, If the act did forbid such alienation was it constitutional?

The act of April 26, 1906, constitutes a comprehensive and uniform system regulating the alienation of lands by