Appeal from the District Court of the United States for the Northern District of Oklahoma; Royce H. Savage, Judge.
Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.
Williams brought this section against Callie Bushyhead, Butler Bushyhead, Liddie Bushyhead, Joe Bushyhead, Ross Bushyhead, Robert Lee Bushyhead, the unknown heirs of William Bushyhead, and the unknown heirs of Dennis Bushyhead, to quiet the title to a tract of land situate in Delaware County, Oklahoma.
On July 16, 1919, the land involved herein was purchased by William Bushyhead, a full-blood Cherokee Indian, with funds derived from oil royalties reserved under an oil and gas lease of his restricted allotment. Such funds were held by the Secretary of the Interior in trust for his benefit. The land was conveyed to William Bushyhead by Lon T. Hampton and Lulu R. Hampton by a Carney-Lacher form of deed, which provided:
" * * * that no lease, deed, mortgage, power of attorney, contract sell, or other instrument affecting the land herein described or the title thereto executed during the lifetime of said grantee at any time prior to April 26, 1931, shall be of any force and effect or capable of confirmation or ratification unless made with the consent of and approved by the Secretary of the Interior."
On March 21, 1934, William Bushyhead and Callie Bushyhead, his wife, executed a warranty deed purporting to convey the land to F. M. Hartley. The deed was not approved by the Secretary of the Interior. Thereafter, the interest, if any, acquired by Hartley passed by mesne conveyances to Williams. William Bushyhead died October 16, 1935, leaving as hs sole heirs-at-law his widow, Callie Bushyhead, and five sons, all of whom are full-blood Cherokee Indians.
Notice of the pendency of the instant suit was served on the Superintendent of the Five Civilized Tribes pursuant to the provisions of § 3 of the Act of April 12, 1926, 44 Stat. 240. The United States caused the suit to be removed to the District Court of the United States for the Northern District of Oklahoma where it filed Court ofthe United States for the it alleged that the Act of Congress of May 10, 1928, 45 Stat. 495, extended the restrictions against alienation of the land while it was held by William Bushyhead for a period of 25 years from April 26, 1931, and that the conveyance from William Bushyhead and Callie Bushyhead, not having the requisite approval, was void. The trial court held that the restrictions were not extended and entered its decree quieting the title in Williams. The United States has appealed.
Section 1 of the Act of May 27, 1908, 35 Stat. 312, provided that lands theretofore or thereafter allotted to enrolled full-bloods should not be subject to alienation, contract to sell, power of attorney, or any other incumbrance prior to April 26, 1931 "except that the Secretary of the Interior" might "remove such restrictions, wholly or in part, under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he" might "prescribe."
Pursuant to such statutory authority, the Secretary of the Interior presctibed a rule reading, in part, as follows:
"Where lands are purchased for the use and benefit of any citizen of the Five Civilized Tribes, of the restricted class, payment for which is made from proceeds arising from the sale of restricted allotted lands * * * the superintendent * * * shall cause a conveyance of such lands to be made on a form of conveyance containing an habendum clause against alienation or encumbrance until April 26, 1931."
Section 1 of the Act of May 10, 1928, 45 Stat. 495, extended the restrictions against alienation of "the lands allotted to members of the Five Civilized Tribes" of onehalf or more Indian blood for an additional period of 25 years from April 26, 1931. Section 2 of such Act extended the provisions of § 9 of the Act of May 27, 1908, 35 Stat. 315, as amended by the Act of April 12, 1926, 44 Stat. 239, except the second proviso thereof for a period of 25 years from April 26, 1931.
The royalties derved from the restricted allotment were held in trust by the Secretary of the Interior for the benefit of William Bushyhead and continued to be restricted while so held. The land purchased by such funds contnued to be restricted until April 26, 1931, by ...