Only two errors in the judgment of the court below are pointed out in the brief: First, that the power of attorney, the substance of which is above set out, was sufficient to defeat the action to quiet title by the plaintiff; second, that the act of Congress approved May 27, 1908 (35 Stat. L. 312, c. 199), removing the restrictions from the sale of inherited Indian lands, was unconstitutional and void.
On the first assignment of error in their brief plaintiffs say:
"The adverse title of W.D. Oliver, defendant in error, to the lands herein, is rested on the three deeds of Julius Shoat set out in the agreed statement of facts herein. The dates and grantees in said deeds are as follows: October 7, 1905, to A.M. Funkhouser; February 9, 1906, to L.W. Cruce and C.M. Joiner; July 31, 1908, to C.B. Campbell. The first two deeds were not approved by the Secretary of the Interior, and the restrictions had not been removed upon the alienation of said lands, and the land is and was the surplus allotment of Lucy Shoat, and at her death descended to her heirs, with all the restrictions against the alienations thereon."
We do not think it necessary to decide whether this was restricted land or not, because, if it was restricted land, the power of attorney required approval as much as the deed, and, not having been approved, if it was restricted land, is void. If the land was not restricted, then the Funkhouser deed, under which the plaintiff in error admits in his brief the defendant in error claims, *Page 688 preceded in date the power of attorney. So, whichever position the plaintiff in error takes, he must fail. If the land was restricted land, his power of attorney was clearly such an instrument as required approval. The power of attorney, the substance of which is about set out, was much more than one of agency. Until December 31, 1939, it practically took this land away from the Indian. The agents had the power to rent it; they had the right to possession of it; they were given the power to sell it at their own price and on their own terms; and the power of attorney was a conveyance if the Indian had the right to do so. In Mullen v. Simmons, 234 U.S. 192, 34 Sup. Ct. 857, 58 L.Ed. 1274, in speaking of the act of Congress in imposing restrictions upon Indian lands, the court say:
"'Lands allotted * * * shall not be affected or incumbered by any deed, debt, or obligation of any character contracted prior to the time at which the land may be alienated."
In Starr v. Long Jim, 227 U.S. 613, 33 Sup. Ct. 358, 57 L.Ed. 670, the court holds that the title to Indian lands was retained by the government for reasons of public policy and in order to protect the Indian against his own improvidence. It was accordingly held in that case that, where a warranty deed was made by Long Jim at a time when he did not have power of alienation, it was against the policy of the law, and could not operate as a conveyance, either by its own force, or by way of estoppel after he had received patent to the land. These cases are directly in point. If this was restricted land, and such a paper as the power of attorney above set out could be sustained without approval by the government, the policy of the government would be undone, because the power of attorney practically takes the land away from the Indian, and gives it to his agents to rent, sell, possess, and to do whatever they please with. We do not decide in this case whether this inherited land was restricted land or not, as we do not think the point necessary to a decision to this question, for in either event the plaintiffs in error must fail, for, as above stated, if it was *Page 689 restricted land, the power of attorney is void; if it is not restricted land, then the Funkhouser deed is prior in time, and they took with notice of it.
The second point raised by the brief of the plaintiff in error, to use his words, is as follows:
"The Choctaw and Chickasaw Nations were the grantors in the patent to Lucy Shoat, and said patent contained certain restrictions against the alienation of said land, and the patent was approved by the United States, with the restrictions therein, and upon the acceptance of said patent by Lucy Shoat the restrictions became binding upon her and her heirs. The Choctaw and Chickasaw Nations, the grantors in said patent and the owners of said land in fee simple, have never consented to the removal of restrictions contained in said patent against the sale of said land."
This assignment challenges the power of Congress to enact a law removing the restrictions from inherited lands, or from any lands patented by Congress containing the restrictions against the alienations provided by the act of Congress of July 1, 1902 (32 Stat. L. 641). This court has practically passed upon this question in the case of Williams v. Johnson, 32 Okla. 247,122 P. 485. The first paragraph of the syllabus is as follows:
"When Congress determines that the best interests of the Indian will be subserved by the abrogation, annulment, amendment, or repeal of a treaty agreement made with a tribe of Indians, it may, by subsequent act, make the necessary modification or amendment, and of the advisability, or expediency, of such change or alteration, Congress is the sole and exclusive judge. The question, being political, and not judicial, is therefore not a proper subject for consideration by the courts."
The converse of this proposition was decided by the Supreme Court of the United States in Tryer v. Western Investment Co.,221 U.S. 286, 31 Sup. Ct. 578, 55 L.Ed. 738, in which it was held that Congress had power to continue supervision over the *Page 690 rights of full-blood Indians and dispose of their land after the time provided in the original act has expired.
We therefore recommend that the judgment below be affirmed.
By the Court: It is so ordered.