Kelly v. Harper

Clayton, J. (after stating, the facts as above). The demurrer to the complaint should bave been sustained. The complaint and the contract sued on show that the land, which is in the Chickasaw Nation, had not yet been allotted at the time the contract was made. Act Cong. June 28, 1898, c. 517, § 29, 30 Stat. 507, provides: “That all contracts looking to the sale or incumbrance of any of the land of an allottee, except the sale heretofore provided, shall be null and void.” Act July 1, 1902, c. 1362, 32 Stat. 642, provides as follows: “Lands allotted to members and freedmen shall not be affected or encumbered bj^ any deed, debt or obligation of any character, contracted prior to the time at which said land may be alienated under this act; nor shall said land be sold except as herein provided.” There is no provision for any such sale as called for by the contract in this case, and therefore the contract sued on was void. Until the land wras allotted, and the period of restrictions upon alienation of one, three, and five years had expired, a person who is not a citizen of an Indian tribe has no authority to purchase or sell Indian lands. Hubbard vs Chism (Ind. Ter.) [543] 82 S. W. 687; Rogers vs Hill, 3 Ind. Ter. 562, 64 S. W. 536; Casteel vs McNeeley, 4 Ind. Ter. 1, 64 S. W. 594. Inasmuch as the contract sued on was void, the complaint did not state a cause of action, and the demurrer should have been sustained. Reversed and remanded. Gill, C. J., and Townsend and Lawrence, JJ.', concur.