strictions with which the Secretary is concerned. The exact language of Section 9 of the Act of 1908, supra, is:

"That the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon alienation of said allottee's lands: Provided, that no conveyance of any interest of any full-blood Indian heir in such lands shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee."

The foregoing language has been referred to in many decisions of the federal and state courts as indicating that inherited lands are not subject to the restrictions which are provided for in the Act of 1908, as to the individual allotments and the qualifications requiring the approval of the heirs' deed by the County Court is not termed in any of the decisions as a restriction in the sense in which that word is used in referring to the individual allotment of the members of the tribe. Judge R. L. WILLIAMS wrote the opinion in Rogers v. Rogers, 263 Fed. 160, while he was district judge of the Eastern District of Oklahoma. He is now, as the Court well knows, a distinguished member of the Circuit Court of Appeals of the Tenth Circuit and is universally regarded as one of the great judges of that court, widely versed in tribal matters, Indian treaties, and the Acts of Congress that relate to the Five Civilized Tribes. He has the background of long service on the Supreme Court of Oklahoma, Governor of the State of Oklahoma, United States District Judge for twenty years, and service upon the Tenth Circuit Court of Appeals. In speaking of "restricted lands," Judge WILLIAMS says at page 164 of the above opinion:

""Restricted lands,' as used in the first proviso of said Section 2, includes only-homesteads of said allottees enrolled as mixed-blood Indians having half or more than half Indian blood, including minors of such degrees of blood, and all allotted lands of enrolled full-bloods, and enrolled mixed-bloods of three-quarters or more Indian blood, including minors of such degrees of blood."

In the case of Parker v. Richard, this court said:

"In the absence of the proviso it would be very plain that, on the death of the allottee, all restrictions on the alienation of the land allotted to him were removed. But the proviso is there and cannot be disregarded. It obviously limits and restrains what precedes it. In exact words it puts full-blood Indian heirs in a distinct and excepted class and forbids any conveyance of any interest of such an heir in such land unless it be approved by the court named. In other words, as to that class of heirs the restrictions are not removed but merely relaxed or qualified to the extent of sanctioning such conveyances as receive the court's approval. Conveyances (239) without its approval fall within the ban of the restrictions."

In United States v. Gypsy Oil Company, 10 F. (2d), page 491, the Circuit Court of Appeals said:

"It is manifest that Congress looked upon the allotted lands in the hands of the original full-blood allottee in need of the greatest measure of protection. It restricted such lands from alienation, except with the consent of the Secretary of the Interior until 1931, and it provided that oil and gas leases on such lands could only be made with the consent of the Secretary of the Interior. On the other hand, it removed all restrictions on the sale of such lands in the hands of the heir of such allottee, except that it provided certain modified and limited restrictions as to minors and full-blood adults, clearly recognizing that as to such lands less restrictions on alienation were required."

In Chupco v. Chapman, 76 Okl. 201, 170 Pac. 259, Mr. Justice RAINEY (Oklahoma Supreme Court) wrote the opinion, and it seems to us to be a very able and clear analysis of the language in Section 9. We quote from page 264 as follows:

"This reasoning, we think, exactly fits the case at bar. By the very terms of Section 9 of the act, death operated to remove all restrictions on the alienation of said allottee's land. If the heirs, or any of them, are Indians of less than full blood they are authorized to sell or convey the land so inherited by them without any supervision. The heirs enrolled as full-blood Indians are also authorized to sell or convey their interest in such inherited lands, but the validity of any conveyance depends upon the approval of the conveyances by the court having jurisdiction of the settlement of the estate of the deceased allottee. Since restrictions are personal to the full-blood Indians and

do not run with the land, such inherited land in the hands of full-blood Indians is not restricted land within the meaning of the term as found in the proviso of Section 6. It necessarily follows that the jurisdiction of the probate court of Hughes County to order and confirm the guardian sales of the interests of the full-blood minor plaintiffs in the inherited allotments in controversy was not defeated by virtue of said proviso in Section 6."

In a later case styled King v. Mitchell, 69 Okl. 207, 171 Pac. 725, the Supreme Court of Oklahoma quoted the above language from the case of Chupco v. Chapman and used practically the same language in speaking of the effect of Section 9 of the Act of 1908.

In Terrell v. Scott, 129 Okl. 78, 262 Pac. 1072, the Oklahoma Supreme Court states the purpose of Section 9 as follows:

"This construction of the Act of Congress of May 27, 1908, in our opinion, is supported by many decisions both state and federal. The first part of Section 9 removes all restrictions on alienation, and, but for the proviso, the full-blood heir could convey, mortgage or dispose of his property as any other citizen. The restriction therefore becomes personal to the full-blood Indian heir, and is not a restriction upon the land.'

Again in the same case, the court said:

"The land being unrestricted, as the term is otherwise used in said act, he becomes the absolute owner except as to his personal restriction that ‘any conveyance must be approved"."

In State, ex rel. Miller, v. Huser, 76 Okl. 130, 184 Pac. 122, the Oklahoma Court reviewed the various Acts of Congress at considerable length and in speaking of Section 9, the court said:

"Under Section 9 of the Act of May 27, 1908, the death of an allottee of any of the Five Civilized Tribes operated to remove all restrictions from said allottee's land, and the land descended, free of retsrictions, to the said allottee's heirs according to the Oklahoma law of succession, except that as to full-blood Indian heirs the restrictions were only qualifiedly removed, and their conveyances were only effectual when approved by the County Court having jurisdiction of the settlement of the estate of the deceased allottee.” The proviso to which the court refers in Parker v. Richard is what is commonly termed by the bar in Oklahoma as "the second proviso of Section 9." It continues the restrictions against alienation of the homestead allotment in the hands of the child or children born since March 4, 1906, as to all allottees of one-half or more Indian blood.19

It is admitted, of course, that as to such lands the restrictions carry on after death. In other words, as to the homestead tract in the hands of such heirs, the lands are, notwithstanding the fact of death, impressed with the same restrictions against alienation as existed against the allottee himself. This provision of the law passed out on April 26, 1931. (See repealing clause in Section 2 of Act of May 10, 1928, 45 Stat. 495.) Aside from this one particular group of lands, and aside from the lands covered in Section 1 of the Act of January 27, 1933, 47 Stat. 777 (presently to be discussed), there are no inherited lands since the Act of May 27, 1908, that are restricted expect in the qualified sense that the deeds of the heirs must be approved by the proper County Court. Section 1 of the 1933 Act reads in part as follows:

"Provided, That where the entire interest in any tract of restricted and tax-exempt land belonging to members of the Five Civilized Tribes is acquired by inheritance, devise, gift, or purchase, with restricted funds, by or for restricted Indians, such lands shall remain restricted and tax-exempt during the life of and as long as held by such restricted Indians, but not longer than April 26, 1956, unless the restrictions are removed in the meantime in the manner provided by law:"

This Court has never interpreted this language, but Mr. Nathan Margold, Solicitor for the Department of the Interior, interpreted it in an opinion dated March 14, 1934 (M. 27554), and held that three things must exist before this section applies, namely: (a) Death must have occurred after the date of this act,

19 Martin v. United States, 45 F. (2d) 836; Holmes v. United States, 53 F. (2d) 960; Johnson v. United States, 64 F. (2d) 676.

(b) all heirs must be of the restricted class, and (c) the land must be the taxexempt lands mentioned in the Act of May 10, 1928. Glenn v. Lewis, 105 F. (2d) 398. See Solicitor Opinions, 54 Interior Decisions 382, 1934. It is our understanding that the Department of Justice did not appeal, but on the other hand (by interdepartmental communications) has accepted the ruling of Judge RICE of the Federal Court for the Eastern District of Oklahoma in the case of United States v. Easley, 33 F. Supp. 442, wherein the court held that even though lands were certified as tax exempt under the Act of January 27, 1933, they were nevertheless alienable by full-blood heirs upon approval by the County Court having jurisdiction of the administration of the estate. Judge RICE cites United States v. Bond, 108 F. (2d) 504, decided by the Circuit Court of Appeals wherein that court said:

"Thus the statute not only fails to indicate a purpose to impinge upon the jurisdiction of the County Court to order and direct partition and sale of restricted land in the course of administration and settlement of the estate of an allottee, with conveyance free of restrictions; but it points to congressional recognition of the existing jurisdiction to remove restrictions in that manner and a desire that it be continued without interference. * * *

"At least two separate and distinct methods existed at that time for the removal of restrictions against alienation. One was by the Secretary of the Interior, and the other was by partition and sale in the County Court in the course of the administration and settlement of the estate of a deceased fullblood Indian."

In the light of the foregoing decisions, we think it is quite clear that in applying the rule announced in Minnesota v. United States, a distinction should be drawn between the individual allotment of a Wild Tribes Indian over whom the Secretary exercises the power of supervision (and where the title is held in the United States) and the inherited lands of a full-blood Five Tribes Indian heir with reference to which the Secretary performs no functions whatsoever. Under Section 22 of the Act of April 26, 1906, 34 Stat. 137, the Secretary had the power to approve deeds to inherited lands but the law was amended by the Act of 1908, supra, and since the passage of the 1908 Act, the County Court alone has the power to approve. It has been designated by Act of Congress as a federal agency for that purpose, Parker v. Richard, 250 U. S. 235, 63 L. ed. 951. It is our understanding that there are no rules or regulations promulgated by the Secretary of the Interior pursuant to the Act of 1908, or any other act, that authorizes the agents of the Secretary of the Interior to perform any functions with reference to the control of inherited lands. The full-blood Indian heirs may lease these lands, mortgage them, authorize oil and gas development thereon and sell in the County Court under Section 9-all without intervention of the Secretary of the Interior. This is true as to all inherited lands except the lands involved in the second proviso of Section 9 of the Act of 1908 and except as to the small group of tracts that could come under Section 1 of the Act of January 27, 1983, 47 Stat. 777. We think, therefore, that it is incorrect to say that the government stands, with reference to ordinary inherited lands, in the relation of guardian and ward. That relationship was terminated on the happening of one event, to wit: Death of the allottee. The basic title passed from the government to this Indian allottee when patent was issued. Section 5, Act of April 26, 1906, 34 Stat. 137. Thereafter the disposition of such land was committed entirely to the County Courts of the State of Oklahoma. The Act of 1908, and other acts, have created agents and attorneys to safeguard and protect these heirs in the sale of inherited lands but there is no parallel between this situation and the relationship that exists between the federal government and the so-called Wild Tribes. In the case of the Wild Tribes the government retains title. The government there still functions, notwithstanding the death of the Indian for whom the selection was made. Patents and supplemental patents to the lands are issued to successive heirs as and when the Secretary sees fit. Under the terms of the Act of February 8, 1887 (24 Stat. 388), and the Amendatory Act of June 25, 1910 (36 Stat. 855), the Secretary of the Interior is clothed with the power to determine the facts as to heirship and partition the lands in kind (or sell the same if he sees fit) and his findings and conclusions are not subject to review by any judicial tribunal. Red Hawk v. Wilbur, Secy., 39 F. (2d) 293. As was said by this court in the Minnesota case, the United States is a necessary party in a suit involving lands of that group of Indians (title being in the government), whereas in the case of the Five

Civilized Tribes, the legal title passes with the issuance of the patent. In Cohen's Handbook of Federal Indian Laws, at page 380, it is said:

"As to the question of jurisdiction to determine heirs and effectuate a distribution or partition of allotted lands, a distinction must be noted as between lands held under a trust patent and lands held under a patent in fee. As to the latter it is sufficient to notice that after a fee patent has been issued all questions relating to the transfer of title to the allotted lands must be determined by the laws of the state where the land is located. The reason

for this is simply that the allottee holds the land in his individual capacity, and as to that land he has become emancipated, and since the land is located within the limits of the state, the tribal laws, as opposed to the state laws, cannot reach that land. * * *

"Yet after the issuance of a fee patent in the name of a deceased allottee under the General Allotment Act of February 8, 1887, 24 Stat. 388, as amended by the Act of March 8, 1906, 34 Stat. 182, all questions pertaining to the title to the allotted land are subject to examination and determination by the courts-appropriately those in the state where the land is situated."

The initial theory on which the lands constituting the domains of the Five Civilized Tribes were allotted in severalty was that these Indians, already far advanced in the ways of the white people, would gradually be prepared for the responsibilities of citizenship. A study of the Acts of 1906 and 1908, in the light of the various treaties that preceded these Acts of Congress, leads clearly to the conclusion that it was originally contemplated that within the period of twenty-five years these Indians of all groups, even the full-blood class, would be sufficiently prepared for the duties of citizenship and could be relieved of all federal restrictions upon alienation. Judge LEWIS of the Circuit Court of Appeals stated it in this language:

"The policy of the Indian allotment acts has been with the view of gradually bringing them to a state of competency in order that they might be capable of attending to their own affairs."-Board of County Commissioners of Tulsa County v. United States, 94 F. (2d) 452.

In the Five Civilized Tribes, only about one-fourth of the Indians are of the full-blood and it became necessary in the Act of 1908 to draw certain well-marked lines of distinction in the status of allotted lands. For instance, Indians of less than one-half-blood were free to alienate all allotted lands without reference to governmental control. The homestead of an Indian from one-half- to threefourths-blood was restricted but his surplus lands were alienable. Two types of allotments to each Indian were contemplated from the very inception of the program of allotting lands in severalty. The surplus in the over-all picture was hedged about with fewer restrictions than was the homestead, it being assumed that the Indian would probably want to sell a part of his lands in order to raise funds with which to improve other lands. In dealing with inherited lands of the Five Tribes throughout the entire history of the treaties and Acts of Congress, there has been a disposition to regard these as being alienable with only modified restrictions.

At the time of the passage of the Act of June 14, 1918 (40 Stat. 606), there were many situations in which there was no provision for determining who were the heirs of a deceased allottee of one of the Five Civilized Tribes of Indians, and, also, there was no provision for authorizing the partitioning of allotments which were inherited wholly or in part by full-blood members of any of said tribes. The Act was designed as a remedy for these deficiences. The first section of that Act provided for the determination of heirship "by the Probate Court of the State of Oklahoma having jurisdiction to settle the estate of said deceased, conducted in the manner provided by the laws of said state for the determination of heirship in closing up the estates of deceased persons." There is absolutly nothing in this section which in anywise indicates or suggests that the United States was to be made a party to the heirship proceedings provided for therein. In the opinion in this case, it is said: "Petitioner states that the United States is not a necessary party to the proceedings to determine heirship under Section 1 of the Act of June 14, 1918." Notwithstanding this admission to the contrary, there is just as much reason for the holding that the United States is an indispensable party to proceedings to determine heirship under said Section 1, as there is for the holding in this case that it is an indispensable party to partition proceedings provided for by Section 2 of said Act. Section 2 of said Act provides the lands of full-blood members of any of the Five Civilized Tribes "are hereby made subject to the laws of the State of Oklahoma, providing for the partition of real estate.' In no place in

said Section 2 is there the slightest indication or suggestion that the United States is required to be made a party to the partition proceedings provided for therein. Likewise, an examination of the partition laws of the State of Oklahoma will disclose that there is absolutely nothing in any part of saidlaws requiring the presence of the United States as a party.

We further submit that the Oklahoma partition laws, when applied to partitioning of inherited lands of full-blood Indians, afford such Indians much greater protection than is afforded to such Indians in the case of sales of their inherited lands by deeds in the county court. By virtue of Section 9 of the Act of May 27, 1908 (35 Stat. 312), and the amendments thereof, a full-blood Indian may sell his inherited interest in an allotment by merely obtaining the approval of the county court having jurisdiction of the settlement of the estate of the deceased Indian allottee. And it has never been claimed that (except as might be provided by any court rules governing the procedure of the probate courts of Oklahoma) the United States is required to be made a party in connection with the approval of a deed of a full-blood Indian covering his inherited lands. Under the partition laws of the State of Oklahoma, where lands are partitioned in kind, the partitioning is recommended by three commissioners appointed by the court and must be approved by the district court, which is a court with equitable jurisdiction and is of superior rank to the probate courts of Oklahoma. Under such laws, where partitioning in kind is impossible, and a sale is required, the property must be appraised by disinterested appraisers, and must bring at least two-thirds of the appraised value, and the sale must be approved by the district court. We, therefore, submit that where full-blood inherited lands are partitioned, the fullblood Indians are afforded greater protection against imposition than in the case of a sale by a full-blood heir, with the approval of the probate court.

The so-called Merriam Survey of Conditions in the Administration of Indian Affairs was directly sponsored by the Secretary of the Interior and was submitted to the Secretary under date of February 21, 1928, See "The Problems of Indian Administration," Institute for Government Research, published by the John Hopkins Press. At page 801 of this report reference is made to the subject of partitioning of Indian lands in Oklahoma under the Act of June 14, 1918, and the report says:

"By making the restricted lands of the Indians of the Five Civilized Tribes subject to partition proceedings in the State courts of Oklahoma another way has been opened for the Indian to lose title to his lands. In the case of the death of an allottee leaving several heirs, and the transfer by one of the heirs of his interest, the purchaser can have the land partitioned by the district court of Oklahoma. If the court finds that the land cannot be equitably partitioned, it may be sold and the proceeds derived therefrom divided among the respective owners. Any owner may buy the land at the price set by the commissioners of the court, but, as the Indian owner seldom has the funds with which to purchase, the almost uniform result is that the land passes from his hands. In several instances discovered by the attorneys of the office of the Superintendent of the Five Civilized Tribes it would appear that sales have been made when it was inconceivable that a partition in kind could not easily have been made.

* * If the latter method of partition is retained, steps should be taken at once to provide that in all cases where the restricted interests of Indians are affected the proper probate attorney be notified, and that he have full rights as an attorney of the court to represent the Indian interests in the litigation."

This report contains no suggestion that the Act conferring jurisdiction contemplated that the United States was to be brought in as a party defendant, but, on the contrary, the Merriam Report shows that the Act is not so interpreted and that by reason of the failure to place any limitations upon the court's jurisdiction the heirs could lose their interests in the land for nominal sums.

On September 15, 1934, the Solicitor for the Department of the Interior prepared a memorandum for the Commissioner of Indian Affairs relative to the effect of the Act of 1918, and in the course of that opinion the Soliticor said:

"The foregoing provision expressly subjects the lands of full-blood members of the Five Civilized Tribes to the laws of Oklahoma with respect to the partition of real estate. There is no express repeal of this provision in the Act of January 27, 1933, nor is there any indication in that act that Congress intended to repeal the prior law so as to withdraw these lands from the partition laws of Oklahoma and such repeal may not be presumed and ought not