I dissent. The affidavit requiring the deposit in the action at bar is, in my judgment, sufficient and in that particular I join in the dissent of Mr. Justice Angstman, but I am not in accord with the majority opinion in many essential particulars. Much that is said therein is immaterial and confuses rather than clarifies the real issues. The essential question for determination here is as to whether or not Florence Samples Hall, by her act in selling and conveying 80 acres of the land covered by the patent in fee issued to her, accepted the fee patent as a whole, or was her act in selling the 80 acres acceptance of the fee patent only as to such 80 acres. On this question it was said in In re Solomon, E.D. Pa. 1941, 40 F. Supp. 62, 63, quoting from 19 Am. Jur. 619, sec. 21: "A person cannot claim under an instrument without confirming it. He must found his claim on the whole, and cannot adopt that feature or operation which makes in his favor, and at the same time repudiate or contradict another which is counter or adverse to it." The patent in fee issued to Florence Samples Hall covered both the 80 acres she sold and conveyed to her stepfather, and the 160 acres for which Glacier county took tax title for failure to pay the taxes levied against it. The sale of the 80 acres was an acceptance of the fee-simple patent of all the land covered by that particular patent.
In the case of United States v. Nez Perce County, Idaho, 9 Cir., 95 F.2d 232, it was said, relative to the right of the state to tax Indian lands, that if the fee patent were issued to an Indian "without his application or consent" his land remained *Page 598 immune from taxation. On the question of consent it was said in In re Hudson County, 106 N.J.L. 62, 144 A. 169, 176: "Consent is manifested by action, or by inaction, or by silence, from which arises an inference that consent has been given." If Indians are to be bound by section 349 of Title 25 U.S.C.A., the defendant's rights were foreclosed when she sold the 80 acres of the land.
As to the status of Florence Samples Hall, as a citizen in so far as the particular land here involved is concerned, the wardship of the United States clearly ceased by virtue of section 349 of Title 25 U.S.C.A., which provides: "At the expiration of the trust period and when the lands have been conveyed to the Indians by patent in fee, as provided in section 348, then each and every allottee shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside; and no Territory shall pass or enforce any law denying any such Indian within its jurisdiction the equal protection of the law: Provided, that the Secretary of the Interior may, in his discretion, and he is authorized, whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs at any time to cause to be issued to such allottee a patent in fee simple, and thereafter all restrictions as to sale, incumbrance, or taxation of said land shall be removed and said land shall not be liable to the satisfaction of any debt contracted prior to the issuing of such patent: Provided further, That until the issuance of fee-simple patents all allottees to whom trust patents shall be issued shall be subject to the exclusive jurisdiction of the United States."
The authorities are uniform to the effect that on the issuance of a patent in fee upon the application of the allottee or by his or her consent, the title to the land passes from the United States, and the prior trust and the incidental restrictions against alienation are terminated; the allottee ceases to be a ward of the United States and the land becomes subject to the laws of the state in which it is located, and subject to taxation the same as lands of other citizens. Section 349, Title 25, supra; Larkin *Page 599 v. Paugh, 276 U.S. 431, 48 S.Ct. 366, 72 L.Ed. 640; Sweet v. Schock, 245 U.S. 192, 38 S.Ct. 101, 62 L.Ed. 237; Dickson v. Luck Land Company, 242 U.S. 371, 37 S.Ct. 167, 61 L.Ed. 371; Board of Commissioners of Jackson County v. United States, 308 U.S. 343,60 S.Ct. 285, 84 L.Ed. 313; United States ex rel. Marks v. Brooks, D.C., 32 F. Supp. 422; State v. Big Sheep, 75 Mont. 219,243 P. 1067; State v. Phelps, 93 Mont. 277, 19 P.2d 319; State ex rel. Williams v. Kamp, 106 Mont. 444, 78 P.2d 585.