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to be implied unless there is such repugnancy that the two days may not operate harmoniously. I find no such repugnancy.

66* * * In order that these Indians may be assured of the protection Congress intended that they should have, I suggest that all cases, involving partition of restricted lands inherited by heirs of one-half or more Indian blood in which notice is served on the Superintendent of the Five Civilized Tribes under the Act of April 12, 1926 (44 Stat. 239), be transferred to the Department of Justice with recommendation that the cases be removed to the Federal Court. Where partition actions have been filed and notice has not been served on the Superintendent under the Act of 1926, the probate attorneys should be instructed to bring the cases to the attention of your office so that appropriate action looking to their removal to the Federal court may be taken.'

See file No. 1568 by Solicitor for Interior Department.

Again in the Solicitor's opinion dated September 21, 1935 (and to the same effect), the Solicitor advised the Commissioner of Indian Affairs:

"The foregoing provision applies to lands inherited by full-blood heirs and expressly subjects such lands 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 a repeal may not be presumed and ought not to be implied unless there is such repugnancy that the two laws may not operate harmoniously. I find no such repugnancy."

In Cohen's Handbook of Federal Indian Law at page 446 the author says, in speaking of partition proceedings:

"Section 2 of this act also made the lands of full-blood members of any of the Five Civilized Tribes subject to the laws of the State of Oklahoma providing for the partition of real estate."

Nothing is said by Cohen that raises the inference that the Department of the Interior interpreted the Act of 1918 as requiring notice of some type to be served upon the government. Mr. Cohen occupied the position of Chairman of the Board of Appeals of the Department of the Interior and his work shows that he was very familiar with the rules, regulations and general statutes, as well as the case under which the Interior Department functions.

Prior to the decision in the Minnesota case the idea was never advanced that the United States was an indispensable party. On the contrary, the trial courts and the bar in Oklahoma and the Department of the Interior itself proceeded upon the theory that the Act of 1918 conferred unlimited jurisdiction upon the state courts to partition lands. The suggestion that the United States was an indispensable party came from the Department of Justice as an afterthought following (by about two years) the decision in the Minnesota case and in our opinion the government's position is fundamentally unsound and untenable.

It is interesting to note that the decision of the United States Circuit Court of Appeals for the Tenth Circuit in the case of United States v. Bond, 108 F. (2d) 504, was rendered about a year after the decision of this court in the Minnesota case. The question involved in the Bond case was whether land which was allotted to an enrolled full-blood Creek Indian, which was subsequently designated as tax exempt, which was devised by will of the allottee, and which passed at her death was subject to partition sale by the county court in the course of administration and settlement of her estate. The will of the allottee was probated in the County Court of Creek County. During the process of administration of the estate the county court directed that the land be partitioned by sale and distribution of the proceeds of the sale. It was sold and the sale to the purchasers was confirmed and the deed delivered. No notice of that proceeding was served upon the Superintendent for the Five Civilized Tribes pursuant to Section 3 of the Act of April 12, 1926. Subsequently the purchasers of the land at that partition sale in the county court filed suit in the district court to quiet their title. Notice of the pendency of this suit was served upon the Superintendent under the provisions of the Act of April 12, 1926, and the United States intervened and removed the case to the United States District Court for the Northern District of Oklahoma, and thereafter challenged the validity of the sale at which the plaintiffs purchased on the ground that restricted and tax exempt land passing by will to full-blood Indian heirs was not partitionable in the county court.

In

the brief filed in this case before the Circuit Court by the government at page 11 it is stated:

"Plainly, therefore, the history of the 1918 Act shows that it was not enacted for the purpose of placing restricted lands belonging to estates of deceased allottees under the probate partition jurisdiction of the County Courts. On the contrary, it affirmatively appears that the sole purpose of the Act was to remove the limitation in Section 9 of the Act of May 27, 1908, c. 199, 35 Stat. 312, 315, so that the state District Courts might partition the restricted lands of full-blood Indian heirs." (Italics ours.)

In the Bond case the government contended that the 1918 Act authorized the partition of restricted lands only by the Oklahoma District Courts, clearly recognizing and conceding that the District Courts in Oklahoma were clothed with jurisdiction to partition inherited lands by full-blood Indians. At page 13 of the government's brief filed in the Bond case it is stated:

"By Section 2 of the 1918 Act, as shown earlier, supra, pp. 8-12, Congress further relaxed and qualified the restrictions so as to permit alienation by partition of this class of restricted lands in the state district courts."

Again at page 20 of the brief filed by the government in the Bond case it is stated:

"The 1918 Act has application only in the case of lands of full-blood Indian heirs or devisees, but has no application at all to lands of heirs or devisees of one-half to less than full Indian blood."

The circuit court in the Bond case decided against the contention of the government and, as stated above, the decision of the circuit court was rendered approximately one year after the decision of this court in the Minnesota case. The government in the Bond case did not raise the question as to whether the United States was an indispensable party (for what reason we do not know) and the decision of the circuit court in the Bond case became final. Yet in the case at bar, if the decision of this court is correct, that the government is an indispensable party in such cases, then the United States was undoubtedly an indispensable party in the partition proceedings in the county court in the Bond case.

As further recognition by the government and the Department of the Interior, as well as by the Department of Justice, that the 1918 Act vested the state courts in Oklahoma with jurisdiction to partition restricted inherited lands by full-blood Indian heirs, we direct the court's attention to a letter dated January 8, 1936, written to Senator Thomas of Oklahoma by William Zimmerman, Assistant Commissioner of Indian Affairs, and approved by the First Assistant Secretary of the Interior, which letter appears in the appendix of the government's brief in the Bond case, pp. 30 to 31. In this letter it is stated in substance (1) that restricted and tax-exempt lands inherited subject to the restrictions of the first proviso of the 1933 Act are partitionable under the 1918 Act because nothing in the 1933 Act indicates a repeal of the 1918 Act; and (2) that restricted and taxexempt lands inherited subject to the restrictions of the first proviso of the 1933 Act by Indians of one-half or more but less than full degree of Indian blood are not partitionable because there is no authority for the partition of such lands contained in the 1918 Act.

The Department of Justice contended that the views expressed in the above letter wherein the Department of the Interior proceeded on the assumption that Congress intended to make a distinction as to the restrictions which would be applicable to restricted and tax-exempt lands under the first provision of the 1933 Act dependent upon the degree of Indian blood of the owners was purely arbitrary. Thereafter, and while the Bond case was pending, the Department of the Interior adopted a new interpretation which appears in a letter dated May 25, 1939, addressed to the Attorney General by the Assistant Secretary of the Interior. This letter appears in the appendix of the government's brief in the Bond case at pp. 32-34. In this letter the Department of the Interior again recognizes and concedes jurisdiction of the State District Courts in Oklahoma to partition lands inherited by full bloods. We quote from that letter:

"The Act of 1918 confined as it is to the partition of lands inherited by full bloods is without application, of course, to the lands inherited by these restricted mixed bloods. ** * The latter act (Act of June 14, 1918) subjects the lands of full-blood Indians to the laws of the State of Oklahoma with respect to partition of real estate. * * * Bearing in mind

the rule requiring that statutes dealing with the same subject matter be harmonized in order to avoid repeals by implication, it seemed entirely reasonable to hold that lands inherited by full-blood heirs continued to be subject to partition under the Act of 1918, notwithstanding the fact that the Act of 1933 preserved in full force and effect the restrictions which bound the land during the allottee's lifetime, inasmuch as those restrictions would in no way be impaired by partition in kind under the Act of 1918."

In the case of United States v. Watashe et al., 117 F. (2d) 947, decided by the United States Circuit Court of Appeals for the Tenth Circuit February 24, 1941, that court held:

"By the provisions of Section 2 of the Act of June 14, 1918, 40 Stat. 606, 25 U. S. C. A., Sec. 355, the lands of full-blood members of the Five Civilized Tribes are made subject to the laws of the State of Oklahoma providing for the partition of real estate, and a sale under partition operates to 'relieve the land * * * of all restrictions of every character.' We held in United States v. Bond, 10 Cir., 108 F. (2d) 504, that the provisions of the Act of January 27, 1933, did not take away from the Oklahoma courts, jurisdiction to partition restricted and tax-exempt land in the hands of full-blood Indian devisees, and that the provision in Section 1 thereof, 'unless the restrictions are removed in the meantime in the manner provided by law,' embraces removal of restrictions by partition.”

In the Watashe case a full-blood Creek allottee died intestate in 1937 seized of 80 acres of restricted tax-exempt land. He left surviving six children, all of whom were full-blood Creek Indians, and four grandchildren, all of whom were one-half blood Creek Indians. The full-blood heirs instituted a suit in partition against the half-blood heirs in Creek County, Oklahoma. Notice of pendency of the suit was served upon the Superintendent under provisons of the Act of April 12, 1926, and thereafter the United States intervened and removed the case to the United States District Court for the Northern District of Oklahoma. The United States filed motion to dismiss the complaint in partition upon the ground that neither the state nor the federal court had jusridiction to partition the land. The government's motion was denied. The court entered an order appointing commissioners to partition, the commissioners reported that the land could not be partitioned in kind and from a judgment appointing a special master and directing him to make sale of the land the United States appealed to the Circuit Court. The Circuit Court affirmed the decision of the District Court and the government did not attempt to review that decision. Here, again, the government recognized and conceded the jurisdiction vested in the District Courts of Oklahoma to partition inherited lands by full-blood Indians, although in this case it again, for some reason unknown, did not raise the question as to whether the United States was an indispensable party, and yet the decision of the Circuit Court was rendered in the Watashe case more than two years after the decision by this court in the Minnesota case.

Again we respectfully direct the court's attention to the fact that the Circuit Court of Appeals in Hester v. United States, 137 F. (2d) 145, upheld a sale of inherited lands acquired by full-blood heirs where the county authorities had assessed the same and later issued tax deeds. In conferring authority upon the state authorities to tax the lands in excess of the non-taxable tracts, Congress did not provide that notice should be given to the Secretary before the county authorities had authority to sell the same for delinquent taxes. The act simply subjected the lands to the laws of Oklahoma with reference to taxation. Act of May 10, 1928.

If the contention now advanced by the Government be sound the Government's position would be in all respects identical with reference to the excess taxable lands held by full-blood Indian heirs and no sales could be completed under the machinery made applicable by the State of Oklahoma until notice was had on the Federal Government.

We do not feel that we could improve upon the clear distinction drawn by the Circuit Court of Appeals between this case and the case of Minnesota v. United States. In the concluding paragraphs of the opinion by the Circuit Court of Appeals the court points out the grounds of distinction and we earnestly invite a reconsideration by this court of the well-considered opinion by the Circuit Court of Appeals.

The opinion in this case stresses the point that the lands here involved are "restricted lands," whereas, as a matter of fact, the lands here involved are simply inherited lands against which a tax exemption certificate was issued pursuant to

the Act of May 10, 1928. The fact of the issuance of the tax exemption certificate is of itself no criterion by which to reach the conclusion that the lands are restricted. Whether the lands are both tax exempt and restricted as provided in Section 1 of the Act of January 27, 1933, depends upon several varying factors, all of which are set out in the Margold opinion, supra. Subsequent to the passage of the Act of May 27, 1908, and prior to the Act of April 12, 1926, lands acquired by devise by a full-blood Indian were wholly unrestricted. As to such lands not even the County Court had to approve deeds by the devisees. Under the Margold opinion construing Section 1 of the Act of 1933, pointing out the conditions under which said lands would be restricted, the fact that the death occurred prior to the passage of the act makes the land wholly unrestricted. In other words, the Department itself has given effect to the Margold opinion by direct regulations under which it operates. Section 183.45 of the regulations dealing with leasing of restricted lands of members of the Five Civilized Tribes, reads as follows:

"Lands inherited by or devised to full-blood Indians prior to the Act of January 27, 1933, are not affected as to restrictions by the provisions of said act and may continue to be leased with the approval of the County Court having jurisdiction of the estate of the deceased allottee and without approval of the Secretary of the Interior (54 L. D. 382, 10 F. (2) 487). Lands acquired prior to the passage of the Act of January 27, 1933, by Indians of less than full-blood, whether such lands were restricted and tax exempt or restricted and taxable, passed to such persons free of all restrictions." (See Code of Federal Regulations, Department of the Interior, Title 25 Indians, Section 183.45.)

From the foregoing quoted regulation it is perfectly obvious that the lands over which the Secretary of the Interior would have jurisdiction are limited expressly by departmental regulations to such lands as may have been acquired by the heirs or devisees subsequent to the passage of the Act of January 27, 1933. Section 1 of the Act of 1933 has no retroactive effect. Glenn v. Lewis, supra. But in addition to this one fact as to date of death there are other facts that could enter into the picture as to whether or not the lands are restricted in the sense that the Federal Government has to perform any functions with reference thereto.

To further show that the Department of the Interior itself has, by its actual operations over a long period of years, treated the Act of 1918 as not requiring any notice to the Secretary, we call attention to information developed in a search through the files of the office of the Superintendent of the Five Civilized Tribes. In file No. 444 the chief counsel for the Superintendent in an opinion dated November 22, 1919, dealing with the purchase of a tract of land described as the N2 of SE4 of NW4 of Section 12, Township 9 North, Range 22 East, Haskell County, from Wicey Willis, nee Perry, expressly held that the court had jurisdiction to partition the lands under the Act of 1918. After the effective date of the Act of 1918 partition proceedings were commenced in Case No. 1895 on the docket of the District Court of Haskell County in a case styled Willis v. Perry et al., wherein these lands were partitioned. The Muskogee office held that the court was vested with jurisdiction to partition the lands and approved the purchase with restricted departmental funds, thereby giving full recognition to the proposition that the Department itself never at any time entertained the view that the courts were without jurisdiction except where some type of notice had been served upon the Government.

We call attention to file No. 573 of the Muskogee office involving the NE4 of the NE4 of Section 35, Township 16, Range 24, Adair County. These lands were the subject of partition in a case filed in the District Court of Adair County in Cause No. 1232 of the docket of that court. The lands in this case could not be partitioned in kind and one Charlotte Johnson filed an election to take and the lands were purchased by the Government in its capacity as guardian for the Indian and the usual Carney-Lacher form of deed was issued by the Department in acquiring title for this Indian ward of the Government. The judgment in this case would strike down the title to this land, notwithstanding the fact that the Government itself functioned in every particular in acquiring the title for this restricted Indian.

In file No. 1018 of the Muskogee office we have another case where the District Court of McIntosh County was called upon to partition the lands. This case is commonly known in the Muskogee files as the Sandy Fox case and involves the E2 of NW4 of Section 22 and the SW4 of NE4 of Section 12, Township 10 North, Range 14 East in McIntosh County. Addie Fox as guardian of Kelsey Fox filed an election to purchase at the appraised value. The purchase of these lands was

conducted entirely by the agents of the Government and the usual Carney Lacher form of deed was employed in passing title to the Indian ward of the Government. If this opinion stands unqualified, we find that the Government itself has been a poor lawyer for its Indian wards, wholly disregarding the requirements of the law with reference to partition.

We understand that permission was given to Mr. George Jennings, counsel for respondent in this case, to file with the clerk of this court memoranda with reference to these cases and we refer to these separate transactions as unerring indications of the settled departmental construction placed upon the act here under consideration. A departmental construction is always entitled to great weight. Taylor v. Tayrien, 51 F. (2d), page 884. We could cite many other cases in which the Government itself in its capacity as guardian approved purchases of lands with restricted funds, using what is commonly called the Carney-Lacher form of deed. It might be thought that what we have referred to are simply transactions of subordinate officers of the Department of the Interior, but this is not true. The acts of the Superintendent in purchasing lands for restricted Indians bear the ultimate approval of the Secretary. He is the highest administrative officer of the Federal Government in these matters and what he does through his agents (the Superintendent of the Five Civilized Tribes and others) are directly and unquestionably the acts of the Government itself. Candelaria v. United States, supra.

We think Circuit Judge PHILLIPS well said in the Gypsy Oil case, supra, that the Congress looked upon the allotted lands in the hands of the original allottee as in need of the greatest measure or protection, while, on the contrary, it removed all restrictions on the sale of such lands in the hands of the heir of the allottee except that it provided certain modified and limited restrictions as to minors and full-blooded adults. We think we are justified in saying that it was never the intention of Congress to require that the United States be brought in as an indispensable party defendant in a partition proceeding. Obviously partition proceedings could only involve inherited lands and inhertied lands came within the category of lands from which restrictions had been removed. The whole policy has been to gradually relinquish restrictions to the end that citizens of these tribes might be amalgamated into the citizenship of the State of Oklahoma and that all restrictions upon alienation would finally be washed out. To say that the United States is an indispensable party to a proceeding in partition would, in our judgment, be equivalent to saying that all titles, wherein partition judgments have been rendered without bringing the United States in as a party defendant, are wholly void. The Act of May 10, 1928, wherein provision is made to earmark certain allotted lands as tax exempt lands shows on its very face that it was not the purpose of the act to continue, add to, or increase the then existing restrictions against such lands. Section 5 of that act reads as follows:

"Sec. 5. That this act shall not be construed to reimpose restrictions heretofore or hereafter removed by the Secretary of the Interior or by operation of law, nor to exempt from taxation any lands which are subject to taxation under existing law.'

We think that the foregoing statutory declaration of policy indicates that by providing for the tax exemptions, the Congress was not adding restrictions to these lands. They are still inherited lands, alienable without the consent or approval of the Secretary of the Interior in the case of full-bloods. United States v. Easley, supra.

Proposition No. 5

THERE IS NO DIFFERENCE BETWEEN THE GRANT OF AUTHORITY CONFERRED UPON THE STATE COURTS BY THE ACT OF 1918 AND THE GRANT OF AUTHORITY FOUND IN THE ACT OF 1909, CONFERRING JURISDICTION UPON THE STATE COURTS IN PROBATE MATTERS

There is no difference between the grant of authority conferred upon the State Courts by the Act of 1918 and the grant of authority to the County Courts in probate matters found in the Act of 1908. Section 6 of the Act of 1908, by which the county courts of Oklahoma acquired jurisdiction, authorizing a sale of the lands of full-blood minors, reads as follows:

"That the persons and property of minor allottees of the Five Civilized Tribes shall, except as otherwise specifically provided by law, be subject to the jurisdiction of the probate courts of the State of Oklahoma."

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