Highrock v. Gavin

¶1This action was brought for the purpose of determining adverse claims to 80 acres of land in Charles Mix county. Plaintiff in her complaint alleges that she is the owner of said land and asks that title thereto be quieted in her.

¶2Defendants, by way of defense and counterclaim to plaintiff’s complaint, allege that the land in question had been alloted to one Paul Gondrow, a member of the Yankton Band of .Sioux Indians, by a so-called trust patent issued by the government of the United States, pursuant to Act of Congress approved February 8, 1887, c. 119, 24 'Stat. 388, known as the General Allotment Ljaw, and which patent bears date November 24, 1894; that said allottee died within the trust period named in said trust patent, and that thereafter said land was sold to defendants’ grantors on the 23d *322day of November, 1904, by a person who was found by the Secretary of the Interior to toe the sole heir at law of said Paul Gondrow, and which sale was approved by the Secretary of the Interior on the nth day of February, 1905.

¶3[1] To this defense plaintiff interposed a reply, wherein she alleged that she is the mother, and the sole heir at law, of the said Paul Gondrow; that under the provisions of said allotment act, and the laws of this state, she inherited the said allotment upon the death of the said Paul Gondrow; that she • had never sold nor consented to the sale of the said land, but that she is now the owner thereof. When the case was called for trial, defendants moved for judgment on the pleadings. By this motion defendants concede the truth of the material allegations in the reply, to-wit: That plaintiff is the sole heir at law of the said allottee, that she inherited and 'became the owner of the said allotment upon the death of the said allottee, and that she had never sold nor in any manner. divested herself of the title to the said allotment. But, notwithstanding the admission of these facts, the trial court granted the motion, and entered judgment dismissing plaintiff’s complaint, and quieted title to said land in the defendant John P. Gavin. From this judgment plaintiff appeals.

¶4The conclusion reached toy the trial court is based wholly upon what was said by this court in Daugherty v. McFarland, 40 S. D. 1, 166 N. W. 143. In that case this court laid down the to road general proposition that, where an allottee under the General Allotment Act dies, and thereafter the Secretary of the Interior approves a deed made by a party or parties claiming to be the heir or heirs at law of the deceased allottee, which deed purports to convey the allotment, such deed does in fact convey title to such allotment to the grantee named in said deed, and thereby deprives such heir or heirs of all interest in and right to said allotment; and this, too, notwithstanding thé fact that said heirs of the allottee did not consent to such conveyance, have any knowledge thereof, or receive any part of the consideration therefor. This proposition of law appellant now contends is erroneous, and we are asked to overrule the same.

¶5[2] Whether said proposition of law is right or wrong, it was certainly unnecessary and immaterial to any of the issues involved in that case. It was therefore pure obliter dicta, and not *323controlling upon this or any other court. In the opinion in that case it is said:

“From the various acts of Congress, and from the interpretations thereof by the many decisions of the Supreme Court of the United States, we are of the opinion that the lands allotted under the act of February 8, 1887, continued to be government property; that the government, by its Congress, had complete authority over tribal Indians, and over the property, real or personal, committed to them, unaccountable to any other body or tribunal; that, while it held the property in trust for the Indians, such trust differed from' the ordinary trust, in that Congress had full authority to make or unmake the rules governing the execution of the trust; that the federal government could dispose of such property through the agency of the Secretary of the Interior; that by the approval of the deed in question it did- convey to August Lahr the fee-simple title to the whole of the tract involved, free and clear of the rights of any heirs of Goodcloud or of Iron Soldier; and that the rights, if any, of such omitted heirs, should not follow the land, but should follow the fund realized upon the sale. United States v. Thurston County, 74 C. C. A. 425, 143 Fed. 287; Nat. Bank of Commerce v. Anderson, 77 C. C. A. 259, 147 Fed. 87.”

¶6[3] And it is further said in that case that the allotment under the General Allotment Law “amounted only to an apportionment of the tribal possessory right,” and again, “such possessory right must be the only right given by the so-called trust patent.” 'These expressions are based largely, if not wholly, upon what was said by the Supreme Court in United States v. Chase, 245 U. S. 89, 38 Sup. Ct. 24, 62 L. ed. 168. But an examination of that case will show that the facts in that case were so different from the facts in the Daugherty Case that what was said in the former has no application to the facts in the latter. In United States v. Chase the controversy grew out of an assignment of a tract of land made under the treaty of 1865 by the United .States government and the Ornfaha Tribe of Indians. 14 Stat. 667. That treaty made provision for the assignment in severalty of specified and' limited tracts of land to the individual Indian. Article 4 of said treaty contains the following provision:

“Said division and assignment of lands to the Otttahas in severalty shall be made under the direction of the Secretary of the *324Interior, and, when approved by him- shall be final and conclusive. Certificates shall -be issued by the Commissioner of Indian Affairs for the tracts so assigned, specifying the names of the individuals to whom they have been assigned respectively, and that they are for the exclusive use and benefit of themselves, their heirs, and descendants; and said tracts shall not be alienated in fee, leased, or otherwise disposed of except to the United Spates or to other members of the tribe, under such rules and regulations as may be prescribed by the Secretary of the Interior, and they shall be exempt from taxation, levy, sale, or forfeiture, until otherwise provided by Congress.”

¶7Under this provision of the treaty, members of the tribe, including defendants’ predecessor in interest, received an assignment of r60 acres of land. The assignee went into possession of the land assigned, and afterwards died, and the defendant succeeded to her rights under the assignment. While defendant was in the occupation of the said tract of land, Congress passed a law (Act Cong. August 7, 1882, c. 434, 22 Stat. 341, which was accepted and adopted by a vote of the tribe) authorizing the members of the Omaha Tribe of Indians to take land in severalty by “allotment,” which allotments were to be taken in lieu of the assignments that had been made under the treaty of 1865. The sixth section of this act provided for the issuance of trust patents covering a period of 25 years, and for full patents conveying the fee at the end of that period. ¡Under this act an Indian, other than the defendant, received a trust patent to an allotment of a tract of land, which included 40 acres of the tract' of land that was occupied by the defendant under the assignment made under the treaty of 1865. The action was brought for the purpose of determining who was entitled to this 40 acres of land. The court held that the allotment under the act of 1882 took precedence over the assignment made under the treaty of 1865. This con elusion is based upon two separate grounds. The 'first of these grounds is:

That while the assignments under the treaty specified that “the tracts assigned are for the exclusive use and benefit of the assignees, Their heirs and descendants,’ and that the tracts shall not be alienated in fee, leased, or otherwise disposed of except to the United States or to other members of the tribe,” that “as applied to the situation then in hand these provisions are consistent *325with a purpose to apportion the Indian possessory- right, leaving-the fee in the United States as before.”

¶8The court further says:

“The assignments, when approved, could well operate as a final and conclusive apportionment of that right without affecting the fee; and the right of each assignee to occupy and use the tract assigned to him, to the exclusion of other members, could well pass to his heirs and descendants, upon his death, without his being invested with the fee. If not invested with it, he of course could not alienate it, and a cautious provision intended to prevent him from attempting to do so hardly would enlarge his right. True, the provision says, ‘except to the United States or to other members of the tribe;’ but, as the restriction is also directed against leasing or other disposal, it is not improbable that the real purpose of the excepting clause is to qualify this -part of the restriction. In any event, the implication attributed to the proviion is too uncertain to afford a substantial basis for thinking the assignee was to take the fee. Other provisions and considerations suggest that an apportionment of the tribal possessory right is all that was intended.”

¶9That it was understood that the assignees took only a possessory right under the assignments is further evidenced by the following provision contained in the assignments that were issued to the assignees:

“The said [assignee] is entitled to and may take immediate possession of said land and occupy the same, and the United States guarantees such possession, and will hold the title thereto in trust for the exclusive use and benefit of [the assignee], and … heirs so long as such occupancy shall continue.”

¶10This clause clearly indicates that a right of occupancy was all that was intended to be conveyed.

¶11The other ground upon which the decision is based is that the act of 1882 contemplated the abrogation of all rights acquired under the treaty of 1865, and that in lieu of the assignments made under that treaty the assignees were to have allotments evidenced by trust patents which provided for a patent in fee at the end of the trust period.

“All rights under the assignments, as such, were to be extinguished, and each assignee was to have the same right to take an allotment as was accorded to-other -members, -but with a *326preferred right to make his selection in.such a way that his allotment would include his improvements.”

¶12And in conclusion the court says:

“•Concluding, as we do, that the assignment to Clarissa Chase passed only the Indian or tribal right of occupancy, the remaining question is not difficult of solution. She took that right as it was held by the tribe, without enlargement or dimunition. It was merely individualized. Upon her death, in 1875, it passed to the defendant, he being her sole heir. The act of 1882, consented to by the tribe, put into effect a general plan of allotment, which completely displaced the Indian right of occupancy, and in that sense terminated all right under the assignment. Under that plan the assigned tract was available for allotments, and the defendant was entitled to an allotment. ‘He could select the assigned tract for his allotment indeed he had a preferred right to do so. He could exercise that right, or waive it and select other lands. But he could not. select other lands and also hold the assigned tract. He was entitled to one allotment, not two. If not selected by him', the tract in question would be open to selection by another. He does not assert that he selected it, or that he was denied the right to do so, or that he received less than a full allotment without this tract; but he claims that the assignment passed the title in fee, and in consequence was an insurmounable obstacle to the allotment of the tract under the Act of 1882. This claim, as has been shown, is untenable. All that passed by the assignment was a possessory right, and this was terminated by the act of 1882.”

¶13‘Conceding that the foregoing reasons support the conclusions reached by the court in that case, they have no application to the facts in Daugherty v. McFarland, because under the act of February 8, 1887, the parties were contracting for a fee-simple title in the first' instance. Parr v. United States (C. C.) 153 Fed. 462. Section 5, c. 119, 24 Stat. 389, Act Cong. Feb. 8, 1887, as amended by section 11, c. 405, 25 Stat. 891, Act Cong. March 2, 1889 (U. S. Comp. St. § 42011), being the act under which the allotment in that case was made, contains the following provisions:

“That upon the approval of the allotments provided for in this act by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect, and declare that the United States does and *327will hold the lands thus allotted for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs according to the laws of the state or territory where such land , is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs, as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever, and patents shall issue accordingly; … Provided, further, that the law of descent and partition in force in the state or territory where the lands may be situated shall apply thereto after patents therefor have been executed and delivered.”

¶14Pursuant to said section, the Secretary of the Interior issued to Indians, whose selections he had approved, trust patents which contained the following provisions:

“Now, know ye that the United States of Ajmerica, in consideration of the premises and in accordance with the provisions of the eleventh section of said act of Congress of the 2d March, 1889, hereby declares that it does and will hold the land thus allotted (subject to all the restrictions and conditions contained in said eleventh section) for the period of twenty-five years in trust, for the sole use and benefit of the said Indian, or, in case of his decease, for the sole use of his heirs according to laws of the state or territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian or his heirs, as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever: Provided that the President of the United States may, in his discretion, extend the said period by a term not exceeding ten years; and if any lease or conveyance shall be made of said lands, or contract made touching the same before the expiration of the time above mentioned, such lease or conveyance or contract shall be absolutely null and void.”

¶15[4] This is not a grant of a “tribal possessory right,” nor a mere right of occupancy. This is a grant of- the equitable title to the land described, with an unconditional agreement by the government of the United ¡States to convey the legal title at the expiration of the trust period. Hollowell v. Commons, 210 Fed. 793, 127 C. C. A. 341; McKay v. Kalyton, 204 U. S. 458, 27 Sup. Ct. 346, 51 L. ed. 566. By this instrument, no matter by *328what name it may be called, the government of the United States pledged itself in the most solemn manner to convey to the allot-tee a fee-simple title, free from all “charges or incumbrances of any kind whatsoever.” By the issuance of this so-called trust patent the tribal possessory right to the tract of land therein described became extinguished. The tribe, as such, had no further interest in or control over said tract. So far as the tribe is concerned, that particular tract is reduced to private ownership. Said tract of land is absolutely segregated from all other portions of the reservation and from the public domain. While the government retains the legal title and jurisdiction over the land during the trust period, the real ownership, together with the absolute right to a fee-simple title at the end of the trust period, has passed to the grantee. Except as to the restriction upon the alienation of the land during the trust period, the right of the allottee is absolutely unconditional. He may live upon the land or cultivate it, if he so desires; but he is not required to occupy it, nor to improve it, nor to inclose it with a fence. He need never set foot upon it, if he is not so disposed. He has only to wait until the expiration of the trust period, when he has an unqualified right to a fee-simple title, free from all restrictions of every kind or character.

¶16This right is a valuable property right, and a right that any court of equity would recognize and protect. While this is true of the allottee, his heirs, upon his death, take a still more valuable right, because, upon the death of the allottee, his heirs become substituted for the allottee, and have the same^rights in the allotment that were enjoyed by him, but with the restriction upon the alienation removed. They may at once sell the land, or they may wait until the expiration of the trust period, and the patent from the 'government will issue directly to them. It is held by the federal courts that the allottee takes an inheritable estate under his trust patent and that his heirs acquire their title by inheritance. In Parr v. U. S. supra, where the question was under consideration, it was held that the heirs take their title by inheritance, and that this was the understanding of Congress is made perfectly clear by the language used in sections I and 2 of the Act of Congress approved June 25, 19,10 (chapter 431, 36 Statutes at Earge, 855 [U. S. Comp. St. §§ 4226, 4228]). This act not only refers to allotments of deceased allottees as inherited lands, *329but authorizes allottees who are over 21 years of age to dispose of their allotments by will, clearly recognizing the .estate as inheritable. On the other hand, where homesteaders, pre-emptors, or timber culture entrymen have died before completing their required residence or improvements, and the heirs of such entry-men are allowed to complete such residence or improvements, the patent .then issues to such heirs. In such cases, it is held that the heirs acquire their title by direct grant from the government, and not by inheritance from the deceased entryman. Aspey v. Barry, 13 S. D. 221, 83 N. W. 91; Gould v. Tucker, 20 S. D 226, 105 N. W. 624; Rogers v. Clemens, 26 Kan. 522; Cooper v. Wilder, 111 Cal. 191, 43 Pac. 591, 52 Am. St. Rep. 163; Towner v. Rodegeb, 33 Wash. 153, 74 Pac. 50, 99 Am. St. Rep. 936; Gjerstadengen v. Van Duzen, 7 N. D. 612, 76 N. W. 233, 66 Am. St. Rep. 679; Hall v. Russel, 101 U. S. 503, L. ed. 829; Herschbergen v. Blewitt (C. C.) 53 Fed. 170.

¶17The effect, however, is the same, whether they take title by inheritance or by direct grant from the government, except that under the law the heirs take the allotment freed from restrictions upon alienation that had existed during the life of the allottee, and are authorized to sell the land prior to the expiration of the trust period and pass the title by deed. True, the deed cannot take effect until it is approved by the Secretary of *the Interior; but upon such approval title in fee vests in the grantee named in the deed. In McKay v. Kalyton, supra, the Supreme Court of the United States said:

“The suggestion made in the argument that the controversy here presented involved the mere possession, and not the title, … is without merit, since the right of possession asserted of necessity is dependent upon the existence of an equitable title in the claimant under the legislation of Congress to the ownership of the allotted lands.”

¶18The title to the property in controversy in that case was based upon a trust patent identical in language and meaning with the one involved in Daugherty v. McFarland and in the case at bar. The above expression clearly indicates the views of that court upon the force and effect of the' so-called trust patents. Neither was this expression retracted or in any wise modified by anything that was said in United States v. 'Chase, because in-the latter case *330the rights involved were based on a different contract under different provisions of law.

¶19[5] With the above principles in mind, let us review the facts relating to the land involved in Daugherty v. McFarland. Title to the land involved was derived from Iron Soldier, who at the time of his death, was seized, either as original allottee, or by inheritance from other allottees, of 480 acres of land which he was holding under so-called trust patents. When he died, he left surviving him his wife, Ptesanwin, and four children, as heirs at law. Shortly after his death, the county court of Charles Mix county undertook to administer the estate, and such proceedings were had that a decree of distribution was entered which awarded to the widow an undivided one-third of the estate and to the four children an undivided one-sixth each. These distributive shares were the equivalent of 1Ó0 acres of land to Ptesanwin and 80 acres each to the children. Further proceedings in the county court were had, to the end that a decree was entered, whereby the estate was partitioned among the heirs. The widow was given 160 acres of land in entirety, and each of the children 80 acres in entirety. A copy of this decree was filed in the Indian Office at Washington, and was adopted by the Secretary of the Interior as a proper and fair 'division of the estate; and the several tracts that were awarded to the ^individual heirs by this decree were treated by the Secretary of the Interior as the separate and individual property of the individual heirs.

¶20The county court was without jurisdiction of the estate, and of course the various decrees entered therein were without any legal effect; but the distribution and partition attempted to be made were acquiesced in by the heirs, respectively, and each of them accepted the land awarded to him by said decree as his full share of the estate. Of course, in accepting the quantity of land awarded to the individual heirs as their full share of the estate, they waived all rights to the shares that had been awarded to other heirs, and estopped themselves from maintaining any claim against those shares. The tract of land involved in the suit was awarded to Ptesanwin and accepted by her as a part of her share of the estate. While the above condition existed, Ptesanwin sold said land to McFarland’s grantor by a deed that was approved by the Secretary of the Interior. Two of the children sold their separate tracts by deeds; and these deeds were approved by the *331Secretary of the Interior. Whether the separate tracts awarded to the other two children were sold is left in doubt by the record; nor is it material. The first effect of the approval by the Secretary of the Interior of Ptesanwin’s deed to McFarland’s grantor was to terminate the jurisdiction of the United 'States over that particular tract of land. Egan v. McDonald, 36 S. D. 92, 153 N. W. 915. The second effect was to convey a prima facie title that was good until some one else showed that he had a better title. Tripp v. Sieler, 38 S. D. 321, 161 N. W. 337. As it was shown that there was no third party who had any outstanding interest in the land or could maintain a claim against the same, Ptesanwin’s deed vested an absolutely good title in her grantee. But this was not all. After Ptesanwin’s deed had been executed and approved by the Secretary of the Interior, a partition suit was brought in the circuit court of 'Charles Mix county for the purpose of partitioning 'Iron Soldier’s estate among his heirs. All the heirs were made parties to the suit and all entered an appearance, therein. Each consented to the division ,of the estate as it had been made by the county court, and a decree in partition was entered in the case, which awarded to Ptesanwin the land she had sold to McFarland’s pmnfor

¶21The court had jurisdiction over all the parties to .the action and of that portion of the subject-matter that had been sold with the approval of the Secretary of the Interior. This included the land in controversy. Therefore the judgment in that action was final as against the other heirs and their grantees, and extinguished any claim they might theretofore have asserted against that portion of the estate. In other words, that judgment cured any apparent defect that may have existed in the title up to that time. Because of the facts and circumstances that were shown to exist in that case, the conclusion reached by this court was right, and did full justice to all parties in interest. And it was wholly unnecessary to announce, as a general proposition of law, that the m'ere approval by the Secretary of the Interior of a deed executed by a party claiming to be sole heir of a deceased allottee, even though a stranger to the title, will convey the title to the allotment together with the equitable title of the lawful heir, to the grantee named in such deed, and thus deprive the lawful heirs of the allottee of their inheritance. 'Such is not the law.

¶22[6] In the case at bar, when plaintiff’s son died, she at once *332became vested with all the rights he had possessed. The government still held the legal title to the land, but in trust for her. As heir of the allottee she had a right to sell it at her pleasure. When the Secretary of the Interior approved the deed purporting to convey this land to defendant’s grantor, he did it under the mistaken belief that the deed had been executed by the rightful heir. The result of his approval was to extinguish the government’s title and the government’s jurisdiction over the land, and to vest the legal title in the grantee named in the deed, but subject to the equitable rights of plaintiff as heir of the original allottee. The grantee therefore became the trustee of an involuntary or constructive trust in favor of plaintiff as the equitable owner of the land.

¶23[7, 8] While the Secretary of the Interior may be authorized to “make or unmake” rules governing the disposition of allotted Indian lands, he has no authority to make or enforce any rule that would deprive any allottee, or the heirs of any deceased allottee, of land that had been allotted to him by trust patent, issued pursuant to the Allotment Law of 1887. He is not authorized to sell such land, nor to compel nor require the allottee or his heirs to sell it. The extent of his authority is to approve deeds that have already been executed by the owner of the land; but, as it was said Mr. Justice Brewer, in Richardville v. Thorp (C. C.) 28 Fed. ,52, and approved by the Supreme. Court of the United States in Jones v. Meehan, 175 U. S. 1, 20 Sup. Ct. 1, 44 L. ed. 49, the Secretary of the Interior “had no judicial power to adjudge a forfeiture, to decide questions of inheritance, or to divest the owner of his title without his knowledge or consent.” He is given power to supervise the sale, but this is solely for the purpose of looking after the interest of the Indian and seeing that the Indian receives a fair price for his land, and not for the purpose of seeing that the purchaser receives a good title for his money.

¶24As was said above, when Paul Gondrow died, plaintiff, as his sole heir at law, became the owner of the land under the law then in force. She had the right to sell it, if she so desired; but she also had the right to keep it. She chose to exercise the latter option, and as it is not shown nor claimed that she ever sold or otherwise alienated it, she is still the equitable owner thereof. Frequent reference is made in respondents’ brief to the provision *333of the Act of Congress approved June 25, 1910 (36 Stat. 855;) but as that act was not passed until after the jurisdiction of the United States over the land in question had terminated we are not concerned with its provisions.

¶25[9] Defendants are not in the position of innocent purchasers. They have been dealing with a tract of land that was allotted to Paul Gondrow. After his death, defendants’ grantors took a deed, purporting to convey title to said allotment, from one Mazar Gondrow; but there was nothing in the record to show that Mazar Gondrow ever purchased or otherwise acquired title to said tract of land or had any rights whatever therein. The defendants and their immediate grantors base all their rights on the one fact that the Secretary of the Interior approved the deed from Mazar Gondrow, who had never been adjudged to be the heir at law of Paul Gondrow, and it is admitted by the defendants that he was not such heir; therefore, by their own admission, they are claiming through a purported conveyance from a party who had no title to the land. Such conveyance conveyed nothing but the bare legal title, and plaintiff is entitled to judgment as prayed for in her complaint.

¶26The judgment appealed from is reversed.

¶27(concurring.) I concur in the conclusion reached by Judge FOLLjEY, and, in view of the importance of the questions involved and of the fact that we reversing a former holding of this court, I feel justified in discussing at some considerable length the reasons for my present conclusions. After a most careful study of many authorities, and, I think, a reading of practically every statute upon which the holdings therein are based, I have reached the conclusion that my former views, in ■harmony with former decisions of -this court, were, in some important particulars, erroneous. I am of the opinion that this court was absolutely in error when, in the Daugherty 'Case, we held that, by the approval of the Secretary of the Interior of a deed given by one of several heirs of an allottee, but purporting to convey the whole estate in the land, the fee-simple title to the whole of the tract involved was conveyed free and clear of the rights of any of the other heirs of such allottee.

¶28Ainy lawyer called upon to construe section 5 of the act of 1887 as well as the similar sections in the acts of 1882 and 1885. (Act Cong. March 3, 1885, c. 319, 23 Stat. 340), if free from any *334impression as to what constructions courts had given such sections, would declare that these sections authorize the allotment in severalty of lands to Indians, and that, ¡by such an allotment, the full equitable fee-simple estate, subject to restrictions as to alienation, would pass to the allottee. Likewise any lawyer called upon to construe Act May 27, 1902, c. 888, 32 ¡Stat. 245, if free from any impression as to how courts had construed it, would reach the conclusion that no act of the Secretary of the Interior could have any further effect than to approve of and thus validate the act of the grantor so that his deed would (a) convey such estate, and only such estate, as the grantor was possessed of, and, (b) pass the legal title to such estate.

¶29I concurred in the Daugherty Case because I was then of the opinion that the federal courts had construed the above statutes in line with the holding therein; but, after a more careful study of the authorities bearing upon the questions presented on this appeal, I feel no hesitancy in declaring that no authority can be found, outside of our own decisions, that places any other construction upon such statutes than I have noted above. There may be cases which, at first blush, seem' to hold otherwise; but I am convinced that a careful consideration of same, in the light of the particular statute under consideration, will sustain my conclusion.

¶30The act of 1887 does not contain any word or provision that can properly be construed as giving to the Secretary of the Interior any power whatsoever to determine who are any who are not heirs of a deceased allottee, and there never was any amendment, until the act of 1910, that gave any such power. I am convinced that this court has been in error in what it has held regarding: (a) The estate that vests in the allottee, (b) The estate that passes to the heir of the allottee, (c) The effect of the approval of a deed by the 'Secretary of the Interior, where the Indian grantor had neither no, or at most but a partial, interest or estate in the land described in the deed.

¶31While it is true that the. courts hold that the only right of which the allottee has the immediate benefit is that of use and occupancy, yet they recognize that such right rests upon an estáte which he has received through the so-called patent. In McKay v. Kalyton, 204 U. S. 458, 27 Sup. Ct. 346, 51 L. Ed. 566, it was directly held that the allottee .has an equitable estate upon which his right of possession rests. In Hallowell v. Commons, 210 Fed. 793, *335127 C. C. A. 343, it w'as held that under the act of 1882 (which was similar in wording to the act of 1887), the equitable interest, subject to restrictions contained in the statute, passed to the allottee, while the legal title was retained by the government. In the case of Jones v. Meehan, 175 U. S. 1, 20 Sup. Ct. 1, 44 L. Ed. 49, which contains an exhaustive discussion of what estate or title an allottee gets by virtue of a treaty wherein and whereunder there is segregated and set apart to the individual a separate tract of land, it was held that, while the lands are in possession of the tribes as tribes, the individual Indian has merely a right of occupancy — the right to use and enjoy the lands in common with the United States — until such time as there shall be a partition and segregation; but it was also held in that case that where, under the terms of a treaty, certain fixed amounts of land were selected by Indians as their individual property, the effect of such segregation was to vest in each allottee the fee-simple title to his particular tract of land, giving the allottee the full right of alienation, subject, of course, to such control over alienation as the government, through Congress, has over its Indian wards. After reviewing a vast number of authorities, the court finally says:

“The clear result of this series of decisions is that, when the United States, in a treaty with an Indian tribe and as a part of the consideration for the cession by the tribe of a tract of country to thei United 'States, makes a reservation to a chief or other member of a tribe of a specified number of sections of land, whether already identified, or to be surveyed and located in the future, the treaty itself converts the reserved sections into individual property; the reservation, unless accompanied by words limiting its effect, is equivalent to a present grant of a complete title in fee simple; and that title is alienable by the grantee at his pleasure, unless the United States, by a provision of the treaty, or of an act of 'Congress, have expressly or impliedly prohibited or restricted its alienation.”

¶32In Little Bill v. Swanson, 64 Wash. 650, 117 Pac. 481, it was held that the title of an Indian, under section 5 of the 1887 act, is an inheritable estate — a holding absolutely in conflict with our holding in Carlow v. Jordan, 39 S. D. 28, 162 N. W. 749. We held that the father of a deceased allottee had no interest in the allotted land until he received his patent therefor — that he did not take anything by inheritance from his son. In U. S. v. Park *336Land Co. (C. C.) 188 Fed. 383, it was held that the estate of the allottee is an inheritable estate passing, as provided by section 5, Act 1887, to those who, under the laws of the state, where 'the land is situate, are heirs of the deceased.

¶33In Parr v. U. S. (C. C.) 153 Fed. 462, there is a very full discussion as to the nature of the estate that is held by the allottee, and particularly as regards the inheritable quality of such estate. The court was considering a section of the act of ‘March 3, 1885, identical in its provisions with section 5, Act 1887, and in part said:

“What, then, is made descendable or inheritable? Is it the fee, or is it merely the right of occupancy, or has the government carved out of this Indian title a trust estate for them, whereby the Indians is accorded an equity only for the time being, and is that the estate which the law declares to be inheritable? Counsel for defendants insist that it is this latter equitable estate that is within the intendment of Congress; but with this contention I am unable to agree. As I have shown, Congress was dealing with the fee of those Indian Lands with a purpose of investing that title ultimately in the Indians in severalty for their sole and exclusive ownership and management, as a citizen of the United States might own and manage property for his exclusive benefit. The scheme was by allotment among the Indians of that to which they were entitled by treaty and by the long-continued policy of the general government. Hence the government adopted a procedure for setting aside or distributing to each Indian concerned that to which he was entitled. To accomplish that purpose in manner deemed by ‘Congress to be to the best interests of the Indians, it was considered wise to withhold the ultimate title from them for a while, but the scheme was for the allotment ultimately of that title; and so it was the fee with which .Congress was dealing, and it was the fee concerning which the allotments were to be' and were made. iSuch being the case, it is the fee that Congress has made inheritable according to the laws of the state of Oregon. The estate is therefore one of inheritance, and the right of curtesy attaches.”

¶34And the court further said:

“Nor am I, after a careful review of the entire subject, now of the opinion, as indicated by the case of Kalyton v. Kalyton, 45 Or. 116, 129, 74 Pac. 491, 78 Pac. 332, that the heirs of Indian *337allottees ‘take as donees of the United States and not by inheritance/

¶35See, also, Beam v. United States, 162 Fed. 260, 89 C. C. A. 240.

¶36We now come to a consideration of the case of U. S. v. Chase, 245 U. S. 89, 38 Sup. Ct. 24, 62 L. Ed. 168, a misconstruction of which seems to me to have been responsible for much of the error into which this court has fallen. Let us remember that it was held in Jones v. Meehan, supra, that the rights of the individual members of an Indian tribe, where the tribe as such holds land, is a mere right of occupancy. The Omaha Indians, as a tribe, had, under the treaty of March 6, 1865., been given certain land; under this treaty, a specified tract of this land had been assigned to Chase; and, under the act of 1882, an allotment of this same tract was made to Wolf. This gave rise to conflicting claims to this contract, and the court had occasion to consider what rights it was that passed to Chase under the treaty, and what rights passed to Wolf under the allotment. Just as was held in Jones v. Meehan, supra, and in the numerous decisions cited in that case, it was recognized, both by the the government and by the Indians, that under the treaty each Indian had a mere possessory right and no individual estate or interest in the particular land which he might occupy; and, as set forth in such decision, this tribe of Indians, fully realizing the fact that under the treaty they had no tfyle to the land occupied by them, presented a petition to Congress. In this petition they stated that they had taken out certificates of allotment within the limits of the reservation; that they had worked and farmed for years; that many of them had built houses and had endeavored to make permanent homes; and they petitioned:'

“We therefore petition your honorable body to grant to each one a clear and full title to the land on which he had worked. .We earnestly pray that this petition may receive your favorable consideration, for we now labor with discouragement of heart, knowing that our farms are not our own and that any day we may be forced to leave the land on which we have worked. We desire to live and work on these farms where we have made homes, that our children may advance in the life we have adopted. To this' end and that we may go forward with hope and confi*338dence in a 'better future for our tribe, we ask of yon titles to our lands“

¶37In answer to this petition, the act of 1882 was enacted. The provisions considered in the Chase Case are identical with the provisions of section 5, Act 1887. There can be no question but that the purpose and effect of this act of 1882 was to carry out just what the Indians prayed for, namely, to give to each a full estate in the lands that might thereunder be allotted to him; but, recognizing the mental incapacity of the Indians, Congress enacted that the government should hold the legal title to such estate in trust, and provided that the allottee could not alienate his equitable estate. The court, in discussing the rights of the Indians under the treaty, states that they have a m'ere right of occupancy thereunder; but there is not a syllable in the decision that holds that, under the act, the allottees did not get what they prayed for— titles to their lands; nor is there a word holding that they did not get just what the clear words of the act provided for, to wit, a full fee title held in trust for them for 25 years and without power of alienation. An examination of the decision of this case reported in 222 Fed. 593, 138 C. C. A. 117 — which decision was reversed in the decision I have been considering — reveals that the lower court wrongfully held that, under the treaty, Chase received an inheritable fee estate. The higher court reversed this holding but in effect 'held that Wolf acquired such an estate under his allotment. There were two holdings by the lower court that are fully supported by authority and which are very pertinent to the questions before us:

“No act of Congress or legislative fiat constitutes due process of law, whereby a vested right in or title to property may be either seriously impaired or destroyed.”

“An estate in fee simple is where one has an estate in lands ■or tenements to him and his heirs forever, and such an estate is not inconsistent with a restriction on alienation.”

¶38It was expressly held in Libby v. Clark, 118 U. S. 250, 6 Sup. Ct. 1045, 30 L. Ed. 133, that a limitation upon power of alienation is not inconsistent with the granting of a fee simple estate.

¶39[7] It would seem' to me, however, that the act of June 25, 1910, makes clear the fact that the allottee gets an estate in the land, which estate is inheritable. I am therefore of the opin*339ion that Paul Gondrow was, by his patent dated November 24, 1894, vested with an inheritable equitable fee estate in and to the lands in question without power of alienation of such estate; that this estate was, at the time of his death, held in trust by the federal government, in which was vested the legal title; that this estate was an inheritable estate, subject to be inherited in accordance with the laws of inheritance of the state where this land was situated; that such estate did immediately, upon the death of Gondrow, vest in his heir or heirs; that neither Congress nor any one acting under any authority granted by Congress could divest such heir or heirs of such estate; that the only effect of the act of May 27, 1902, was to confer upon the heir or heirs of Gondrow the power to alienate such estate; that such alienation was subject to the approval of the 'Secretary of the Interior; and that a conveyance by the heir or heirs, approved by such 'Secretary of the Interior, conveyed the legal title to such fee-simple estate.

¶40It is held by som'e of my colleagues that there is an analogy between an entry under the timber culture or homestead acts and the receipt of an allotment under the 1887 Indian Act, and that the authorities holding that an entryman has no inheritable estate before patent are applicable to the case before us. With this I cannot agree. The entryman acquires nothing but the preference right, entitling him, upon doing those things required by law, to, at some time in the future, acquire title to and ownership of the land in question. There is nothing of an inheritable nature in the right he has acquired, because the government has conveyed nothing. The law, however, provides that, in case of his death, his' heirs shall have a right to go on and complete those things left undone by him and then receive from the government, and not by descent, title to the land. In case of an allotment, the allottee gets, by conveyance, a full equitable fee estate in the land, the only restriction being that he cannot convey it for a term of years. The government merely holds the legal title in trust for him; the government retains no estate in the land. The grantee from the government, just as would be the case where the grant is from an individual with like restriction as to alienation, takes all the estate the grantor had and an estate which in its very nature is inheritable.

¶41[8,9] While Congress had no authority to divest the *340heir or heirs of Gondrow of the estate that vested in him or them upon his death, it did have the. power 'to designate the tribunal that should determine who his heirs were. The judgment of such tribunal, if rendered upon such a notice and hearing as would constitute due process of law, would be binding even though erroneous. Thompson v. Lake Madison Chautauqua Ass’n, 170 N. W. 578. The effect of an erroneous judgment might be to adjudge those to be heirs who in truth and fact were not heirs;'but if there were a valid judgment determining that Mazar Gondrow, through whom defendants claim, was the heir of Paul Gondrow, then defendant should prevail.

¶42There can be no doubt but that it is within the power of ' Congress to constitute the Secretary of the Interior ' a tribunal with authority to determine the heirs of allottees. Had Congress done this prior to the execution of the deed of Mazar Gondrow; and, if so, was there ever a valid judgment of the tribunal so constituted adjudging Mazar Gondrow to be the heir of Paul Gondrow? Upon the answers to these questions this cause must finally turn.

¶43Defendant’s demurrer herein admits the allegations of plaintiff’s reply, which are in part:

“That no notice of any kind whatever of any hearing upon petition or contemplated hearing by the Secretary of the Interior, … for the purpose- of finding and determining the heirs of said deceased allottee, was ever given to this plaintiff by the 'Secretary of the Interior, … and that if the Secretary of the Interior … did find or determine, … or undertake to find or determine the heirs of said allottee, such officer did so without notice to this plaintiff; … that neither the Secretary of the Interior nor any other officer of the Interior Department ever at any time appointed or fixed a time or place for hearing or investigating the question of heirship of the estate of said allottee, and never did in fact conduct any such hearing or receive or consider any evidence relating to the question of who was the heir of said allottee. … ”

¶44Under the facts so alleged, the Secretary of the Interior, even though there had been an act constituting -him a tribunal to determine heirship, never acq/uired jurisdiction to act in this matter. *341Defendant’s demurrer should have been overruled and the judgment of the trial court must be reversed.

¶45If it were not for the fact that, upon the further trial of this cause, it may b|a established that the Secretary of the Interior did give due notice of a hearing, and did take evidence upon the question of who was the lawful heir of Paul Gondrow, we would be justified in not now determining whether 'Congress ever constituted the .Secretary of the Interior a tribunal with authority to adjudge who are the heirs of allottees. But, in view of the fact that such question may come before the trial court and our former opinions might be misleading thereon, we should now determine this matter.

¶46[10] A reading of the act of 1887 discloses that there is nothing therein which, by the most elastic stretch of imagination, could be held to constitute the Secretary of the Interior a tribunal to determine any question of heirship. The allotments are to be made by the President through special agents by him appointed, and under rules and regulations prescribed by the Secretary of the Interior. To prescribe rules under which the President, through his agents, shall make allotments of lands, cannot be held to give the maker of such rules the power, in case of death of allottee, to determine his heirs; and yet, from statements contained in certain of the federal decisions, one might gather the impression that 'Congress had, by such act given such power to the 'Secretary of the Interior. Thus in Hallowell v. Commons, 239 U. S. 506, 36 Sup. Ct. 202, 60 L. Ed. 409, a case involving the 1882 act, we find'the court, in speaking of the act of June 25, 1910, which clearly makes the 'Secretary of the Interior a tribunal with authority to determine the heirs of an allottee, saying:

“This act restored to the Secretary the power that had been taken' from him 'by acts of 1894 and February 6, 1901,” and citing McKay v. Kalyton, supra.

¶47In Bond v. U. S. (C. C.) 181 Fed. 613, in considering the 1887 act, the court called attention to the fact that, in Hy-yu-tse-mil-kin v. Smith, 194 U. S. 401, 24 Sup. Ct. 676, 48 D. Ed. 1039, and in McKay v. Kalyton, supra, the court had held that—

“The sole authority for settling all controversies necessarily *342including the determination of the title … of the Indian allotments … resided, in the Secretary of the Interior.”

¶48Both the Smith and Kalyton Cases were cases where the court had under consideration the act of 1885. All the later decisions are based upon the following statement of the court in the Smith Case:

“By section 6 of the act the Secretary of the Interior had power to determine all disputes between Indians respecting the allotments.”

¶49An examination of said section 6, Act 1885, discloses that such section, in direct and specific language, grants such power, but such power is limited to cases arising under such act. No similar provision is to 'be found in the act of 1887, and there is no case that holds, as an original proposition, that the act of 1887 gave any pow'er to the Secretary- of the Interior to determine any question of heirship.

¶50But there is an authority in point — the decision in Richardville v. Thorpe (C. C.) 28 Fed. 52 — and this decision has never been reversed or in any manner questioned; neither can there be found in the books any statement inconsistent therewith, if we keep in view the fact that any holdings apparently inconsistent are traceable to section 6 of the act of 1885. In the Thorpe ■Case, as in the- case at bar the-’allottee had died and the parties on the one side were claiming. as his heirs. Upon the other side was an approved deed, executed by parties purporting to be the heirs of the allottee, which deed was accompanied by a certificate of two Indian chiefs, and such deed approved by the Secretary of the Interior. It was the contention in that case, as in this, that the effect of such- 'deed, approved as it was, was to carry the title to this land, regardless of the fact that the grantors therein named were in fact not heirs of the allottee. Referring to the act of Congress involved, the court says that the act provided “for the allotment and patenting of these lands to the Indians in severalty authorized their sale under such regulations and rules as should be prescribed by the Secretary of the Interior,” just as the 1887 act provides for allotments to be made by the President’s agents, “under such rules and regulations as the Secretary of the Interior may from time to time prescribe.” Acting under such act, the Secretary of th'e Interior had issued rules, one of *343which was to the effect that, where the patentee was dead, the deed should be accompanied .by a certificate of the head chiefs that the grantors were the sole heirs of the deceased. The question before the court was whether this deed, approved by the Secretary of the Interior and having such a certificate accompanying it was sufficient to divest the real- heirs of their title. The court says:

“Such action of the chiefs and the Secretary of the Interior would obviously not be sufficient, under the federal statute alone, because that gives no authority to the Secretary of the Interior to prescribe rules and regulations by which other persons than those who held the title could divest the real holder of such title. He can say what evidence shall be submitted as to the competency of the grantor, his ability to manage his affairs, the fact that the money was' paid, that he acknowledged the deed, and all kindred matters. But beyond that it gives him no power to act. He had no judicial power to adjudge a forfeiture, to decide questions of inheritance, or to divest the owner of his- title without his knowledge or consent.”

¶51Neither did the act of May 27, 1902, in any manner empower the Secretary of the Interior to adjudge who were heirs. It did two things: It removed the ban against alienation. In place of this ban, it sought to protect the heir against his own weaknesses by requiring that the sale be approved by the Secretary of the Interior. The approval of the Secretary of the Interior makes effective the act of the grantor, provided such grantor is the heir of the allottee; if the grantor is not such heir, the approval of the deed is of no effect whatsoever; in either case the estate that will pass by the grant is such and only such as the grantor possessed. When the Congress saw fit to give the .Secretary of the Interior the power to adjudicate as to who were heirs of a deceased allottee, it did so in language absolutely free of all doubt. lA,ct June 25, 1910.