The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919. Page: 12
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256 FEDERAL REPORTER
county court is of no consequence because the statute specifically re-
quires the protection afforded by the approval of the Secretary. The
above application applies to all of such sets of facts except those of a
lease by a competent allottee of his surplus lands or homestead and of
leases by competents or nonmembers of the tribe who were tenants in
common with noncompetents. As to the former the statute provides
that the homestead cannot be alienated, but it seems clear that such
competent Indian, through the "right to manage, control and dispose
of his or her lands the same as any citizen of the United States," ex-
pressly given by the statute, can make such leases without the approval
of the Secretary.
 As to instances where the land is held by tenants in common,
part of whom are noncompetent and part competent or nonmembers
of the tribe, a more perplexing situation is presented. Each of such
tenants is, under the ordinary rules of tenancy in common, entitled
to ingress, egress, and possession of the land and to a proper share of
the benefits from the usage of the land. Such rights may be trans-
ferred by those legally capable of acting for themselves in such mat-
ters. But these considerations must bow to the requirements of the
statute. Tenancy in common does not change a noncompetent into
a competent Indian nor in any wise increase the power of such to deal
with his interest in land so held. On the other hand, to permit the
competent tenant to lease or use the entire tract or any undivided por-
tion thereof, even though he accounted to the noncompetent tenant for
his just portion, would completely obliterate that protection of super-
vision and approval which the statute carefully lodges in the Secretary
alone. Therefore, the conclusion seems necessary that no lease of any
part or interest in Osage Indian land held in common where one or
more of such tenants in common are noncompetents can be made with-
out the approval of the Secretary. Only through such a conclusion
can the protection required by the statute be preserved. Apparent in-
justice to the competent or nonmember tenant cannot prevail against
the statute, and such result is easily avoidable through the definite sep-
aration of land among the tenants through partition in accordance with
the provisions of section 6 of the act of 1912 (37 Stat. 86).
 Another situation is presented by some of the above sets of facts
and requires notice. That is where allotted lands have come through
descent, devise or purchase to noncompetents from or through com-
petents or nonmembers of the tribe. The provisions of section 2, par. 7,
give full power of alienation of surplus lands to competents and make
such subject to taxation. The homestead of such is made inalienable
and nontaxable for 25 years "or during the life of the homestead al-
lottee." These provisions show the legislative intention that all re-
strictions'are removed from the surplus lands and, after 25 years or
the death of the allottee, from the homestead. In short, that such re-
strictions do not follow the land into whosesoever hands it may pass.
But this determination is not conclusive of the right of alienation or
leasing by a noncompetent Osage Indian who may succeed to or ac-
quire the title to such land. As stated earlier in this opinion the gov-
ernment, through its powers and duty of wardship over a. people in
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The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919., legislative document, 1919; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38827/m1/26/: accessed February 26, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.