Sec. 4, Art. I, Constitution of the United States; U.S.C.A., Title 2, Sec. 2a (c); Sec. 45, Art. III, Constitution of Missouri, 1945; State ex rel. Carroll v. Becker, 329 Mo. 501, 45 S.W.2d 533; State ex rel. Davis v. Hildebrandt, 241 U.S. 565, 60 L.Ed. 1172, 36 S.Ct. 708; State ex rel. Davis v. Hildebrandt, 94 Ohio St. 154, 144 N.E. 55; State ex rel. Schrader v. Polley, 26 S.D. 5, 127 N.W. 848; In re Opinion of the Justices, 151 N.E. 680; Carson v. Sullivan, 284 Mo. 353, 223 S.W. 571. (13) The court erred in finding and holding that petitions to refer Senate Bill 267 filed May 29, 1952, might be filed as petitions supplemental to those filed prior to April 24, 1952, and considered an addition to those filed prior to April 24, 1952, if timely filed. State ex rel. Howell v. Superior Court, 166 P. 126; Sec. 126.050, R.S. 1949. Joseph K. Owens, amicus curiae.
Mullen v. U.S., 56 L.Ed. 834, 224 U.S. 448; Skelton v. Dill, 235 U.S. 206, 59 L.Ed. 198. By section 22 of the Act of 1906 restrictions were reimposed on the lands of full-blood heirs thus inherited (Brader v. James, 49 Okla. 734, 154 P. 560, 246 U.S. 88, 62 L.Ed. 591; Sampson v. Stapleton, 55 Okla. 547, 155 P. 213; McCosar v. Chapman, 59 Okla. 78, 157 P. 1059; Bruner v. Nordmeyer, 64 Okla. 163, 166 P. 126; Cravens v. Amos, 64 Okla. 71, 166 P. 140; Moffett v. Conley, 63 Okla. 3, 163 P. 118; Parks v. Roach, 88 Okla. 19, 210 P. 402), although restrictions were not thereby reimposed on the unrestricted inherited lands of heirs less than full-blood. Burtschi v. Wolfe, 82 Okla. 27, 198 P. 306; Patterson v. Carter, 83 Okla. 70, 200 P. 855.
" This construction has been followed and approved by this court in Sampson v. Stapleton, 55 Okla. 547, 155 P. 213; McCosar v. Chapman, 59 Okla. 78, 157 P. 1059; Bruner v. Nordmeyer et al., 64 Okla. 163, 166 P. 126; Cravens et al. v. Amos et al., 64 Okla. 71, 166 P. 140; Moffett et al. v. Conley et al., 63 Okla. 3, 163 P. 118. That Congress had power to reimpose restrictions on alienable inheritances by virtue of the government's guardianship over the Indians, and by reason of its plenary authority to legislate for their protection, has also been determined.
It is conceded by the defendants that the law of descent and distribution in force on the date that the allotment takes effect governs the devolution of the estate in controversy. Brady v. Sizemore et al., 33 Okla. 169, 124 P. 615; McKee v. Henry, 201 Fed. 74; Woodbury v. U.S., 170 Fed. 302; Bruner v. Nordmeyer, 64 Okla. 163, 166 P. 126; Hamilton v. Bahnsen, 75 Okla. 216, 183 P. 413; Ned et al. v. Countiss et al., 84 Okla. ___, 203 P. 168. We conclude that the devolution of the estate in question, having been selected subsequent to the approval of the Supplemental Creek Agreement, June 30, 1902 (32 Stat. L. 500, c. 1323), is governed by the applicable provisions found in chapter 49 of Mansfield's Digest of the Statutes of Arkansas, and under the numerous decisions of this court and the federal courts the estate is an ancestral estate, and the father and mother of the deceased allottee being both full-blood citizens of the Creek Tribe of Indians, one-half of the estate ascends to the mother and one-half to the paternal heirs, the father of the said deceased allottee being dead on the date of the selection of the allotment.
And the law of descent in force at the date the allotment takes effect, governs, and this law relates back to the death of the Indian entitled to take the allotment and identifies such heirs as of that date, and such law should be applied as if the deceased had received title to his allotment and died seized thereof. Brady v. Sizemore et al., 33 Okla. 169, 124 P. 615; Shellenbarger v. Fewel, 34 Okla. 79, 124 P. 617; McKee v. Henley, 201 Fed. 74; Bruner v. Nordmeyer, 64 Okla. 163, 166 P. 126; Hamilton v. Bahnsen, 75 Okla. 216, 183 P. 413. From the foregoing authorities, it must be held that the law in force at the date of the selection of the allotment, and not the law in force at the date of the patent, governs as to the descent of the land of a member of the Choctaw Tribe of Indians.
The allotment was made, for the purposes of this case, on June 30, 1902. Title passed to the heirs of the allottee by operation of law under the laws in force at that time. Bruner v. Normeyer, 64 Okla. 163, 166 P. 126; Brady v. Sizemore, 23 Okla. 169, 124 P. 615; Id., 235 U.S. 440, 35 Sup. Ct. 135, 59 L.Ed. 308; Woodward v. De Graffenried, supra. In the case of U.S. v. Bessie Wildcat et al., 244 U.S. 111, 37 Sup. Ct. 561, 61 L.Ed. 1024, the facts were identical with the facts here as to the selection of the allotment and issuance of certificate and patents.
hupeo in the allotment of Amos Chupco, and the deed executed on the 24th day of August, 1909, by James C. Chupco, purporting to convey to the defendant Chapman all his interest in both the Amos Chupco and Katie Chupco, allotments, and the deed executed on the 30th day of November, 1909, by Pollie Yargee and husband, purporting to convey to the defendant James C. Chapman her interest in both of the allotments. These conveyances were not approved by the Secretary of the Interior, nor by the county court having jurisdiction of the administration of the estate of the deceased allottees, and while it is the opinion of three of the members of this court, including the writer, that said conveyances were valid as to the allotment of Katie Chupeo, deceased, said conveyances are considered void by the majority of this court under the decisions of this court in the cases of Moffett v. Conley, 63 Oklahoma, 163 P. 118; Sampson v. Staples, 55 Okla. 547, 155 P. 213; Bruner v. Nordmeyer, 64 Oklahoma, 166 P. 126. But, as these same heirs later executed to the defendant Chapman deeds that were approved by the county court having jurisdiction of the settlement of the estate of the deceased allottees, no further attention need be accorded these unapproved deeds, except in so far as it is contended that the validity of the subsequent conveyances by these same heirs was affected by these prior conveyances.
" This court held, in Moffett v. Conley, 63 Okla. 3, 163 P. 118, in an opinion by Sharp, C. J., followed in Bruner v. Nordmeyer, 64 Okla. 163, 166 P. 126, in an opinion by. Owen, J., that the provisions of section 22 of the Act of April 26, 1906, in part as follows: "That the adult heirs of any deceased Indian of either of the Five Civilized Tribes, whose selection has been made, or to whom a deed or patent has been issued for his or her share of the land of the tribes to which he or she belongs or belonged, may sell and convey the lands inherited from such decedent," and also that "all conveyances made under this Provision by heirs who are full-blood Indians, are to be subject to the approval of the Secretary of the Interior, made under such rules and regulations as he may prescribe" — were broad enough to include the heirs of those who died before allotment, as well as those dying after, and that, after the passage of that act, a conveyance by a full-blood Indian heir, of a citizen who died before receiving his allotment, did not pass title to his interest in such allotment without the approval of the Secretary of the Interior. I co