The Oklahoma Bar Journal May 2023

later applied the allotment policy to their lands. 19 Each tribe negoti ated an allotment agreement with the Dawes Commission, which created rolls of tribal citizens 20 and gave each citizen an allotment of tribal lands pursuant to the terms of each tribe’s allotment agree ment. 21 Since the tribes possessed a fee patent to the underlying res ervations, the allotments to tribal members were also in fee, subject to a restriction on alienation for a period of years. 22 These are known as “restricted allotments.” 23 In 1906, Congress enacted the Five Tribes Act “[t]o provide for the final disposition of the affairs of the Five Civilized Tribes in the Indian Territory.” 24 Although the act contemplated the “dissolution of the tribal governments” upon the completion of the allotment process, 25 it nevertheless provided that “the tribal existence and present tribal governments of [the Five Tribes] are hereby contin ued in full force and effect for all purposes authorized by law[.]” 26 That same year, Congress also passed the Oklahoma Enabling Act providing for the admis sion of the state of Oklahoma. 27 “In passing the enabling act for the admission of the state of Oklahoma ... Congress was careful to preserve the authority of the government of the United States over the Indians, their lands and property, which it had prior to the passage of the act.” 28 Specifically, the Enabling Act required the state to disclaim “all right and title” to Indians and their lands 29 and pro vided that nothing in Oklahoma’s Constitution would be construed to “limit or impair the rights of person or property pertaining to the Indians ... or to limit or affect the authority of the Government

Members of the Dawes Commission in 1902. The commission was charged with dividing tribal land into plots that were then divided among tribal members. Courtesy Oklahoma Historical Society.

alienation by the federal govern ment. These lands are sometimes referred to as “restricted fee” lands. In Oklahoma Territory, however, reservation lands were held in trust by the federal govern ment for the benefit of the tribes. These lands are commonly known as “trust lands” and are represen tative of most Indian country in the United States. Although today there is no material difference between restricted and trust lands for most purposes, 13 at one time, both federal and state courts relied on this difference in the land ten ure of reservations in the Indian and Oklahoma territories to conclude that the lands of the Five Tribes and their members were no longer Indian country. In the 1880s, the federal govern ment began a policy of breaking up tribal reservations by allotting parcels of land to individual tribal members. 14 The General Allotment

Act (also known as the Dawes Act), the first comprehensive allotment legislation, gave tribal members allotments of either 80 or 160 acres. 15 The law authorized the United States to dispose of any unallotted or “surplus” lands to non-Indian settlers, paving the way for non-Indian ownership of reservation lands. The allotments were held in trust by the federal government for the allottee and their heirs for a period of time (originally 25 years), during which the allottee could not alienate or encumber the land without federal approval. 16 These allotments are commonly referred to as “trust allotments.” Upon expiration of the trust period, federal supervi sion ceased, and the Indian own ers became subject to the civil and criminal laws of the state. 17 The General Allotment Act expressly did not apply to the Five Tribes. 18 However, Congress

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL