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234 U.S.

Opinion of the Court.

the said territory," thus obviously excluding the right to review in a case like this where although "begun prior to admission," the case was tried after the conferring of statehood and judgment rendered in a state court. It may indeed be, as suggested in the argument, that to thus construe the provision renders superfluous the phrase "in any cause begun prior to admission," since in the nature of things no judgment could be rendered by a territorial court unless the action had been brought prior to the admission of Arizona as a State. But we may not in order to give effect to those words virtually destroy the meaning of the entire context, that is, give them a significance which would be clearly repugnant to the statute looked at as a whole and destructive of its obvious intent. The statute was enacted for a two-fold purpose, first, to save the right of appeal which had arisen and was in existence in cases decided prior to statehood in the methods contemplated by existing laws, and second, to appropriately distribute and provide for the transfer of untried and pending causes to the new courts which would come into existence under the new system. Passing the question of power to so do, it could not be assumed except as the result of the most unequivocal direction to that end that the statute was intended to create a new and strange method of procedure unknown to our constitutional system of government by which the judgments to be rendered by state courts in cases which the statute contemplated should be transferred to such courts for trial, should be reviewed, not according to the methods provided by the state law for such judgments, but by the Federal courts, although no Federal question of any kind was present to give such courts jurisdiction. That no such anomaly could possibly have been contemplated is shown by the proviso of § 33 of the act making cases in the Supreme Court of the Territory which were pending at the time of Statehood and which were transferred to the highest

Statement of the Case.

court of the State reviewable by this court not as judgments of territorial courts, but on the contrary as judgments of state courts; in other words, making it plain that it was not contemplated that after a case had been transferred to and decided by a state court it would be subject to a review in this court, simply because it was pending in the territorial court at the time of the Enabling Act, as if it were a judgment of a territorial court. Dismissed for want of jurisdiction.

234 U. S.





No. 263. Submitted May 11, 1914.-Decided June 8, 1914.

The policy of Congress in regard to restrictions upon alienation of allotments has been to protect Indians against their own improvidence, whether shown by acts of commission or omission, contracts or torts. The prohibition, contained in § 15 of the act of July 1, 1902, as to affecting or encumbering allotments made under the act by deeds, debts or obligations contracted prior to the termination of period of restriction on alienation, applies to a judgment entered against an allottee, whether based on a tort or on a contract.

A tort may be a breach of a mere legal duty or a consequence of negligent conduct, and a confessed judgment based on a prearranged tort might become an easy means of circumventing the policy of the statutes restricting alienation of Indian allotments if alienation could be effected by levy and sale under such a judgment. 33 Oklahoma, 184, reversed.

THE facts, which involve the construction of the provisions of the act of July 1, 1902, affecting alienation of

234 U. S.

Argument for Defendants in Error.

allottee lands, and the effect of judgments against the allottee, are stated in the opinion.

Mr. S. T. Bledsoe and Mr. J. R. Cottingham for plaintiff in error:

The lands involved were not subject to seizure and sale on execution. Hamilton v. Brown, 31 Oklahoma, 213; S. C., 120 Pac. Rep. 950; Holden v. Garrett, 23 Kansas, 98; Koheler v. Ball, 2 Kansas, 160; Mullen v. United States, 224 U. S. 448.

It was not the purpose of Congress to permit a lien to attach to lands as to which alienation is prohibited, to become effective when the lands are alienable and operate to deprive the allottee of any of the benefit of receiving the lands in allotment. Choate v. Trapp, 224 U. S. 665; Goat v. United States, 224 U. S. 458; Keel v. Ingersoll, 27 Oklahoma, 117; S. C., 111 Paq. Rep. 214; Krause v. Means, 12 Kansas, 335; Maynes v. Veale, 20 Kansas, 374; Farrington v. Wilson, 29 Wisconsin, 383; Landrum v. Graham, 22 Oklahoma, 458; S. C., 98 Pac. Rep. 432.

Nor was it the purpose in the extension of the Oklahoma statutes over that part of Oklahoma which formerly constituted the Indian Territory to reinstate dormant judgment liens. Chapter 199, 35 Stat. 312; Bledsoe's Indian Land Laws, c. 53.

The effect of a statute purporting to fix a lien upon lands held subject to restrictions on alienation under the laws of the United States undoubtedly presents a Federal question.

If a lien existed by virtue of a judgment, but subject to existing restrictions upon alienation, Congress clearly had authority to extend or enlarge such restrictions as against such character of lien. Tiger v. Western Investment Co., 221 U. S. 286.

Mr. John E. Dolman and Mr. L. S. Dolman for defendants in error:


Argument for Defendants in Error.

234 U.S.

The Oklahoma courts gave full effect to the words in § 15 of the act of 1902 providing that the lands should not be sold except as therein provided. That entire section refers exclusively to voluntary deeds, debts and contractual obligations, and has no reference whatever to a judgment for damages for a tort. Brun v. Mann, 151 Fed. Rep. 145.

It is the intention expressed in the statute and that alone to which the courts may lawfully give effect; the act must be held to mean what it clearly expresses. Wabash v. United States, 178 Fed. Rep. 5, 12; United States v. NinetyNine Diamonds, 139 Fed. Rep. 961; United States v. Alamogordo Co., 202 Fed. Rep. 700, 706. Mullen v. United States, 224 U. S. 448, does not apply.

Under § 15 of the act of 1902, and under the laws of Oklahoma as construed by the highest court of that State in its decision in this case, the judgment of the interpleader became a lien on the allotment when the allottee acquired the same, and this court is bound by the decision of the state court as to the validity and construction of its lien statute under the pleadings in this case. United States v. Morrison, 4 Pet. 124; Massingill v. Downs, 7 How. 760; Taylor v. Thomson, 5 Pet. 358; Bank v. Longworth, Fed. Cas. No. 923; United States v. Eisenbeis, 88 Fed. Rep. 4; Fidelity Ins. Co. v. Shenandoah Iron Co., 42 Fed. Rep. 372; Re Grissler, 136 Fed. Rep. 754; The Winnebago, 141 Fed. Rep. 945; S. C., 200 U. S. 616; Morgan v. First National Bank, 145 Fed. Rep. 466; Geo. A. Shaw & Co. v. Cleveland Ry. Co., 173 Fed. Rep. 746; Livingston v. Moore, 7 Pet. 469; Galpin v. Page, 18 Wall. 350.

The lien of the interpleader's judgment having legally attached to the allotment, it became a vested right of property of which the interpleader could not be deprived by any subsequent act of Congress, without violating the Fifth Amendment. Mullen v. United States, 224 U. S. 448, 457.

234 U. S.

Opinion of the Court.

MR. JUSTICE MCKENNA delivered the opinion of the


Plaintiff in error brought suit in the District Court in and for the Seventh Judicial District, Johnston County, State of Oklahoma, to restrain defendant in error, who was defendant in the trial court, from selling under execution issued upon a judgment obtained against one F. A. Bonner certain lands, which are described, belonging to plaintiff in error. He was plaintiff in the action, and we will so refer to him. Plaintiff, it is alleged, derived his title from F. A. Bonner by warranty deed dated October 17, 1908, Bonner then having unrestricted right to sell.. Bonner is a member and citizen of the Choctaw Tribe of Indians, of one-sixteenth degree of Indian blood, and that the lands described constitute his allotment as a member and citizen of such tribe; that the judgment upon which the execution was issued was rendered and the debt evidenced by it contracted more than five years prior to the issuance of the execution and at a time when the lands were inalienable, and that under the laws of the United States and the treaties between the Chickasaw and Choctaw Nations and the United States the lands were exempt from the operation of the judgment. That defendant threatens to sell the lands and that a sale thereof and the deed which may be executed will cast a cloud upon plaintiff's title. A restraining order was issued. Defendant in his answer alleged that when the restraining order was served upon him he was in possession of the lands under the execution which he set up as a defense. He admitted the other allegations of the plaintiff and alleged that E. F. Ham et al., plaintiffs in the judgment, were necessary parties. He prayed a dissolution of the restraining order and that the suit be dismissed.

Subsequently Millord F. Ham and others filed "their interplea in said cause" and asked to be made defendants.

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