The conveyances which this suit was brought to cancel were executed by members of the Cherokee tribe of Indians, of the full-blood, of lands allotted to them in severalty. The statute under which the allotments were made (act of July 1, 1902, chap. 1375, 32 Stat. at L. 716, accepted by the Cherokee nation on August 7, 1902), provided that the lands should be inalienable for a period specified. Secs. 11-15 (id. p. 717). The lands in question were 'surplus' lands; that is, those other than homesteads. While the restrictions applicable to lands of this character were still in force, Congress extended the period of inalienability by the act of April 26, 1906. 34 Stat. at L. 137, chap. 1876. Section 19 of this act (id. p. 144) is as follows:
'Sec. 19. That no full-blood Indian of the Choctaw, Chickasaw, Cherokee, Creek, or Seminole tribes shall have power to alienate, sell, dispose of, or encumber in any manner any of the lands allotted to him for a period of twenty-five years from and after the passage and approval of this act, unless such restriction shall, prior to the expiration of said period, be removed by act of Congress; and for all purposes the quantum of Indian blood possessed by any member of said tribes shall be determined by the rolls of citizens of said tribes approved by the Secretary of the Interior: Provided, however, That such full-blood Indians of any of said tribes may lease any lands other than homesteads for more than one year under such rules and regulations as may be prescribed by the Secretary of the Interior; and in case of the inability of any full-blood owner of a homestead, on account of infirmity or age, to work or farm his homestead, the Secretary of the Interior, upon proof of such inability, may authorize the leasing of such homestead under such rules and regulations: Provided further, That conveyances heretofore made by members of any of the Five Civilized Tribes subsequent to the selection of allotment, and subsequent to removal of restriction, where patents thereafter issue, shall not be deemed or held invalid solely because said conveyances were made prior to issuance and recording or delivery of patent or deed; but this shall not be held or construed as affecting the validity or invalidity of any such conveyance, except as hereinabove provided; and every deed executed before, or for the making of which a contract or agreement was entered into before, the removal of restrictions, be and the same is hereby declared void: Provided further, That all lands upon which restrictions are removed shall be subject to taxation, and the other lands shall be exempt from taxation as long as the title remains in the original allottee.'
The power of Congress thus to extend the restriction upon alienation was sustained by this court in Tiger v. Western Invest. Co. 221 U.S. 286, 55 L. ed. 738, 31 Sup. Ct. Rep. 578. There the question related to a conveyance of inherited lands, made by a Creek Indian of the full blood, without the approval of the Secretary of the Interior, as required by § 22 of the act of 1906. The conveyance had been executed after the expiration of the five-year limitation upon alienation, prescribed by the supplemental agreement with the Creek Nation (act of June 30, 1902, chap. 1323, § 16, 32 Stat. at L. 503); but meanwhile, and during the continuance of the original restriction, the act of 1906 had been enacted. It was held that the restriction of the later statute was valid.
The reasoning of this decision is conclusive as to the validity of the extension by § 19 of the act of 1906 of the period of inalienability of lands allotted, as in this case, to full-blood Cherokees. And the same principle governs the restrictions provided by the act of May 27, 1908, chap. 199, 35 Stat. at L. 312.
It is not open to dispute that, upon the facts alleged, all the conveyances specified in the bill in this suit were executed in violation of restrictions lawfully imposed.
The principal question now presented is with respect to the capacity of the United States to sue in its own courts to enforce these restrictions.