concurs in the judgment of the court.in reversing the lower court, but does not assent to either the reasons assigned in the opinion for the reversal, nor certain conclusions reached therein by the court, and assigns his reasons as follows:
A complete statement of the case is found in the opinion of the court preceding, and I will but summarize. Appellees are *676named plaintiffs in the complaint as W. G. Weimer, S. G. Holmes, Townsend Wholesale Grocery Company, a corporation, Arcade Dry Goods Company, a corporation, Herman Levin, Stewart & Nichols, a partnership, the P. A. Vance Grocery Company, a corporation, the Chaney-Becker Trading Company, a corporation, Ben Durfee & Co., a partnership, Star Grocery Company, a partnership, Armour Packing Company, a corporation, Cudahy Packing Company, a corporation, Swift & Co., a corporation, Hammond Packing Company, a corporation,1"[who bring this suit on behalf of themselves, and other citizens similarly situated, who are very numerous, and complain against defendants appellants, J. W. Zevely, Acting United States Indian inspector, J. Blair Shoenfelt, United States Indian agent, Union Agency, I. S. Lowry, Alf. McKay, J. F. Wisdom, D. F. Kelsey, and John West.
Plaintiffs allege that they are citizens of the United States residing and carrying on business in the city of South McAlester; that said city is duly incorporated as permitted by law; that plaintiffs, and each of them, are engaged in mercantile business in said city of different kinds, carrying stocks of merchandise ranging in value from $500 to $75,000; that a number of plaintiffs are the owners in fee of the lots of ground on which their business houses are located within said city, and own the buildings in which they are doing business, and that all of plaintiffs are in lawful possession of the lots upon which they are doing business; that they have made all payments thereon required by law, and are not in default of anything by law required of -them, but are ready and willing and intend to pay the amounts which shall become due under the Atoka agreement; that on April 23, 1897, the Atoka agreement was entered into between the Choctaw and Chickasaw Nations and the United States, by the provisions of which lands within said city were segregated from the public domain of the Choctaw Nation and set apart as a town site; that *677the same has been platted, surveyed, appraised, and sold under the direction of the United States and Choctaw Nation according to the terms of said Atoka agreement; that all of the land within the said town site has been sold and disposed of according to the terms of said Atoka agreement, which provides that the owners of improvements upon lots shall have the right to buy one residence lot and one business lot in said town site and in other towns in Choctaw Nation at 60 per cent, of the appraised value of such improvements, and the remainder of improved property at 62^ per cent, of the appraised value of the same, within 60 days from the date of notice served upon him that such lot is for sale, and, if he purchases the same, he shall within 10 days of such purchase pay into the treasury of the United States one-fourth of the purchase price, and the balance in three equal annual installments, and when the entire sum shall be paid he shall be entitled to a patent for the same; that in April, 1903, J. Blair Shoenfelt, as Indian agent, did notify plaintiffs that unless they paid the amount of money demanded by the Choctaw Nation by April 30, 1903, he, the said Indian agent, would forthwith close their places of business, and prevent them from carrying on their said business in said city until they should pay the sum demanded; that said sum demanded by said nation of plaintiffs is per cent, on all goods shipped into said city by plaintiffs, and is claimed to be due said nation from plaintiffs for the privilege of doing business in the Choctaw Nation; that defendants are acting together, and are threatening to and about to close the several houses of plaintiffs and prevent them from carrying on their business unless said sums of money demanded shall be paid; that said sums, if paid by plaintiffs, will amount practically to confiscation; and that plaintiffs will be unable to pay said sums and continue their business. Plaintiffs state that they are not indebted to the Choctaw Nation in any sum of money, by way of debt or taxes or permit or license fees; that defendants have no right or authority to collect or demand said sums from plaintiffs; that the damage to plaintiffs *678will be irreparable, if their places of business shall be closed, and plaintiffs are without adequate legal remedy; that defendants are not worth sufficient property out of which plaintiffs can recover the damages resulting to them from the acts of defendants in closing their houses and interfering with their business- — and praying for a temporary restraining order against defendants. Defendant Lowry answered, and bill dismissed as to him. All other defendants demur to bill of complaint generally and specially. Demurrer overruled. Exception taken. Defendants stand on demurrer, refuse to plead further, and injunction ordered. Defendants except, and pray and are allowed an appeal.
Appellants make the following assignments of error:
“(1) The court erred in overruling the demurrer filed by appellants. (2) The court erred in rendering judgment against appellants perpetually enjoining them from carrying out the orders of the Secretary of the Interior to close the stores of the appellees in the city of South McAlester because of their failure to secure the legislative permit of the nation to expose goods, wares, and merchandise for sale.”
Appellants, in the first assignment of error, say the court erred in overruling the demurrer to the complaint. The demurrer is as follows:
“Come now the defendants, J. W. Zevely, Acting United '• States Indian inspector, J. Blair Shoenfelt, United States Indian agent, Union Agency, John West, Alf McKay, J. F. Wisdom, and demur to the complaint of the plaintiffs, and for ground therefor state:
“First. Because the bill in equity of the plaintiffs filed in this case does not state facts sufficient to entitle them to the *679relief prayed for, and because the same states no_ cause of action.
“Second. Because the defendants committed the acts complained of in their capacities as officials, as.stated in said bill, acting under the authority conferred upon them by law as such officials, and the direct orders of their superiors in office, whom they are bound to obey. That the defendants, in all of the acts complained of, were lawfully acting within the scope of the authority conferred upon them by law, and m the exercise of the discretion vested in them by their superiors in office, as a coordinate branch of the government, acting within the legitimate scope of its authority. That said action is in conformity with the long-established construction of the laws of the United States relating to Indian affairs, and the treaties entered into between the Ünited States and the Choctaw or Chickasaw Nations or tribes of Indians. That, in order that the authority under which defendants have acted may fully appear, the following letters and communications are hereto attached as exhibits, to wit:
“Marked ‘A.’ A letter from the office of the United States Indian inspector to the United States Indian agent, dated April 18, 1903, advising him of the ruling of the honorable Secretary of the Interior that stores should be closed for noncompliance with the tribal laws.
“Marked ‘B.’ A letter from the United States Indian-inspector to the United States Indian agent dated April 20, 1903, instructing hilm to personally notify certain persons and firms reported by the Principal Chief as having failed to pay the tribal tax.
“Marked ‘C.’ A letter from the United States Indian inspector to the United States Indian agent dated May 4, 1903, transmitting report of the principal Chief of the Choctaw Nation *680that certain persons and firms named still refused to pay the tax demanded, and instructing him to close the places of business of such persons and companies unless such tax was paid.
■ “Marked ‘D.' A copy of an order of the United States Indian agent dated May 5, 1903, to the captain of the Indian police, directing him to close the places named.
“Marked ‘E.’ A copy of the notice served by the United States Indian agent upon all persons named.
“Third. Because the court has no jurisdiction over the parties and subject-matter of this action.
“Fourth. Because, the premises considered, the court has no jurisdiction of power to control by injunction or otherwise the discretion vested by law in the defendants as a part of a coordinate branch of the government, acting within the scope of its authority.”
If, for any of the four reasons assigned as grounds for demurrer, the court erred in overruling it, the case must be reversed for such error. |(
Section 5028, Mansf. Dig. (Ind. Ter. St. 1899, § 3233), defines a demurrer: “Sec. 5028. The defendant may demur to the complaint where it appears on its face, either, first, that the court has no jurisdiction of the person of the defendant orthe subject-matter of the action; or, second, that the plaintiff has not legal authority to sue; or, third, that there is another action pending between the same parties for the same cause; or fourth, that there is a defect of parties plaintiff or defendant; or, fifth, that the complaint does not state facts sufficient to constitute a cause of action.”
*681“Sec. 5031. When any of the matters enumerated in Sec. 5028 do not appear on the face of the complaint the objection may be taken by answer.” Ind. Ter. St. 1899, § 3236.
An examination of the second and fourth grounds of demurrer in this ease shows that they do not come within the office of a demurrer at all, but the facts stated therein and the exhibits referred to therein might properly be matters of defense if stated in an answer.
By this demurrer we are driven only to examine the face of the complaint in two respects: First, does it state a cause of action? And, second, did the court have jurisdiction over the parties and subject-matter of the action? These are the only matters properly before this court for consideration.
The demurrer admits all the facts well pleaded in the complaint as true, and on its face I must say that under the law the court has jurisdiction of both subject-matter and parties. But does this complaint state facts sufficient to constitute a cause for action?
That part of the Atoka agreement referred to in the com-plaintand pertinentis asfollows: “Itisfurther agreed that there. shall be appointed a commission for each of the two nations,” who “shall lay out town sites,” who “shall have prepared plats” to be “filed” and “approved” before same ‘-shall take effect.” “When said towns are so laid out, each lot on which permanent, substantial and valuable improvements, other than fences, tillage, and temporary houses, have been made, shall be valued by the commission, provided for the nation in which the town is located at the price a fee-simple title to the same would bring in the 'market at the time the valuation is made, ‘but not to include in such value the improvements thereon. The owner of the improvements on each lot shall have the right to buy one residence *682and one business lot at fifty per centum of the appraised value of such improved property, and the remainder of such improved property at sixty-two and one-half per centum of the said market value within sixty days from date of notice served on him that such lot is for sale, and if he purchases the same he shall, within ten days from his purchase, pay into the treasury of the United States one-fourth of the purchase price, and the balance in three equal annual installments, and when the entire sum is paid, shall be entitled to a patent for the same. If such owner of the improvements on any lot fails within sixty days to purchase and make the first payment on same, such lot, with the improvements thereon, shall be sold at public auction to the highest bidder, under the direction of the aforesaid commission, and the purchaser at such sale shall paj' to the owner of the improvements the price for which said lot shall be sold, less sixty-two and one-half per cent/ of said appraised value of the lot, and shall pay the sixty-two and one-half per cent, of said appraised value into the United States 'treasury, under regulations to be established by the Secretary of the Interior, in four installments, as hereinbefore provided. All lots not so appraised shall be sold from time to time at public auction (after proper advertisement) by the commission for the nation in which the town is located, as may seem for the best interest of the nations and the proper development of each town, the purchase price to be paid in four installments as hereinbefore provided for improved lots. The commission shall have the right to reject any bid for such lots which they consider below its value. . All the jiayments herein provided for shall be made under the direction of the Secretary of the Interior into the United States treasury, a failure of sixty days to make any one payment to be a forfeiture of all payments made and all rights under the contract: provided, that the purchaser of any lot shall have the option of paying the entire price of the lot before the same is due. No tax shall be assessed by any town government against any town lot unsold by the commission, and no tax *683levied against a lot sold, as hei'ein provided, shall constitute a lien on same till the purchase price thereof has been fully paid to the nation. The money paid into the United States treasury for the sale of all town lots shall be for the benefit of the members of the Choctaw and Chickasaw Tribes (freedmen excepted) and at the end of one year from the ratification of this agreement, and at the end of each year thereafter, the funds so accumulated shall be divided and paid to the Choctaws and Chickasaws (freedmen excepted) each member of the two tribes to receive an equal portion thereof.”
There is no doubt in my mind, that so long as the Choctaw Nation retains the title to the land in the nation, whether situated within incorporated towns or otherwise, such nation has the right, under the laws of and the ti’eaties with the United States— particularly article 39 of the treaty of 1866 — to require that “no person shall expose goods or other articles as a trader without a permit of the legislative authorities of the nation he may propose to trade in,” 'but Choctaw citizens are not required to have such permit. Nor is there any doubt in my mind that until patent shall issue from the Choctaw Nation, conveying the title to lots in the incorporated town site of South McAlester to purchasers thereof under the Atoka agreement, the nation still retains the title therein, unless full payment therefor as provided in said agreement shall have been made. Mere delay in the issue of the patent by the nation would not suffice to continue the title in it, provided all the conditions required of the purchaser under the agreement had been met. But the allegations in the complaint do not show that one single plaintiff named therein either had a patent for his lot in said town site, or was at the date of filing the complaint entitled to a patent, but shows to the contrary. It follows, then, as a matter of course, if my premises are correct, that until patent from the Choctaw Nation has issued, or is at least due by reason of the fulfillment of all conditions re*684quired on the part of the purchaser, that the nation retains the title in these lots, and same are subject to its control, as the other real estate in the nation, and the complaint, on its face, showing that none of plaintiffs have complied with the conditions in the Atoka agreement necessary to invest them with ownership in these lots, and that they are doing business in said Choctaw Nation without having the legislative permit required by article 39, such complaint is vulnerable to demurrer, and the trial court erred in not sustaining the demurrer that said complaint failed to state facts sufficient to constitute a cause of action; and it is for this reason alone that I concur in the judgment of this court in reversing this case.
It ordinarily would be sufficient for one assenting to a judgment to stop after having given the reasons for such assent. But this case is of vast importance, and, as I view the law, the opinion of the court is based not only on a misconstruction of the issues raised by the demurrer, but the reasons assigned in the opinion, if the issues of fact were properly before the court, are insufficient, in my opinion, as a base for the conclusions reached.
If the complaint, in addition to other matters complained of, showed by its allegations that the title to the town site of South McAlester had actually passed from the Choctaw and Chickasaw Nations by unconditional conveyance, or that plaintiffs, as lot holders, had performed all conditions precedent required by the Atoka agreement to entitle them to patent for such lots — a condition which is assumed as a fact in the opinion of the court — I would be compelled to dissent from the conclusions arrived at in such opinion, as the questions to be decided would be altogether different from those properly raised by the demurrer to the complaint. I would then have to decide: First. Whether article 39 of the treaty of 1866 between the United States and the Choctaw Nation had been repealed in so far as related to *685incorporated town sites, such as South McAlester. Second. Is South McAlester, under such circumstances, to be considered Indian country, and held to be under the control of the Interior Department, as such? If not to be considered as Indian country, what law would the subagents of the Interior Department have authority to interfere with the business or houses of plaintiffs? Third. Do plaintiffs come within the terms of article 39 of the treaty of 1866 between the United States and Chickasaw Nation as traders? If so: First. Are defendants, as agents of the Interior Department, under article 39 of said treaty, authorized, on failure of plaintiffs to pay the nations such sums as are demanded by it, to close the stores of plaintiffs until such demands are paid? If not: Second. Under what law are defendants assuming to act in attempting to require plaintiffs to pay the demands of the nation against plaintiffs, whether South Mc-Alester comes under the laws prescribed for Indian country or not?
Has article 39 of the treaty of 1866 been repealed, so far as incorporated town sites are concerned? The article is as follows: “Art. 39. No person shall expose goods or other articles for sale as a trader without a permit of the legislative authorities of the nation he may propose to trade in.” But Choctaw citizens within the nation are not required to have a permit. Article 39 forbids every person, except Choctawr citizens, from “exposing goods or other articles for sale as a trader in the Choctaw Nation except such person has a permit from the legislative authorities of the nation.” Nothing is said in the article which authorizes the nation to make a money charge, in any way, shape, or form, for the privilege of exposing goods for sale in such nation as a trader." The permit evidently contemplated it to be given by the Legislature — that each proposed trader first have a grant from the legislative authorities of the nation before he was authorized to expose goods and other articles for sale therein as a trader, There *686is no law of the Choctaw Nation pleaded, and we cannot take judicial notice that there is any law of the Choctaw Nation Requiring payment of any sum as a condition precedent to exposing goods for sale in said nation as a trader. Sass vs Thomas, 4 Ind. Ter. Rep. 331 (69 S. W. 893); Hockett vs Alston, 3 Ind. Ter. Rep. 432 (58 S. W. 675; Id., 49 C. C. A. 182, 110 Fed. 910); Wilson vs Owens, 1 Ind. Ter. Rep. 163, (38 S. W. 976); Id., 30 C. C. A. 257, 259, 86 Fed. 571.
Where, then, do defendants obtain their authority to demand of the plaintiffs the payment by plaintiffs to the nation of any sum of money for the privilege of exposing goods and other articles for sale in the Choctaw Nation? It does not appear in the case at bar, but, should we waive the consideration of this very vital question, has not article 39 been repealed, so far as town sites duly incorporated under United States laws are concerned?
Perhaps a review of some of the legislation leading up to the present conditions in this section will be appropriate. Slowly at first, but more and more rapidly later on, all of the Five Civilized Tribes permitted the ever encroaching whites to occupy portions of their several nations, thus allowing the barriers of the law isolating each nation to be broken down. The strict rules of an earlier date under the treaties were relaxed, and more and more relaxed by the Indians themselves, until in 1889 Congress found such conditions existing in the Indian Nations composing the Five Civilized Tribes that it was compelled to the act of March 1st of that year, c. 333, 25 Stat. 783, providing for the establishment of a United States Court in Indian Territory, and the enactment of certain general laws for it; in this way dealing with the whole of these tribes as a unit, whereas before they had been dealt with separately by treaty. This was followed by the act of May 2, 1890, c. 182, 26 Stat. 81, enlarging the jurisdiction *687of the United States Courts, erecting the territory into judicial divisions without reference to tribes, providing for a complete code of laws for the whole, and enacting that the Constitution of the United States and all general criminal laws of the United States should be in force in the territory. And section 16 of the act of March 3, 1893, c. 209, 27 Stat. 645, provided for the appointment of a commission (commonly known as the “Dawes Commission”) to the Five Civilized Tribes to enter into negotiations with each of them “for the purpose of the extinguishment of the national or tribal title to any lands * * * now held by any and all of such nations or tribes, either, by cession of the same, or some part thereof to the United States, or by allotment or division of the same in severalty among the Indians of such nations * * * with a view to such an adjustment * * * to enable the ultimate creation of a state * * * within said Indian Territory.” On March 1, 1895, Congress again passed a general act providing for additional judges in the territory, made the crime of the introduction of intoxicants committed by Indians punishable in United States Courts, provided for court houses and jails, and a Court of Appeals for Indian Territory, without reference to tribes or tribal lands, dealing with the five nations as a unit; and in the act of Juné 7, 1897, c. 3, 30 Stat. 85, Congress again enlarged the jurisdiction of the courts, and therein made the Indian who could speak our language liable to service as a juror. In the act of June 10, 1896, c. 398, 29 Stat. 340, Congress made the following declaration in reference to Indian Territory: “It is hereby declared to be the duty of the United States to establish a government in the Indian Territory which shall rectify the many inequalities and discriminations now existing in said territory, and afford needful protection to the lives and property of all citizens and residents thereof.” On June 28, 1898, pursuing this declaration of the act of June 10, 1896, Congress provided a scheme for the government of the territory in the bill commonly known as the “Curtis Bill,” and therein provided for the *688creation of municipal corporations, and their government, and for taxation to sustain such governments, and further provided in the Atoka agreement with the Choctaw Nation that said nation should have a commission who should lay out town sites in said nation; that said commission should have prepared correct and proper plats of each town, and file one in the clerk's office of the United States District Court for the district in which the town is located, and one with the Principal Chief or Governor of the nation in which the town is located, and one with the Secretary of the Interior, to be approved by him before the same should take effect, and that said nation could sell and part with the nation’s title to property in such town sites, and that, upon full payment of the purchase price by the purchaser of said property, the nation’s patent therefor should issue — and in this agreement further provided for the allotment of the lands, and the early extinguishment of the tribal relations and interests, and therein further defined the jurisdiction of the United States Courts. Later, in the act of February 18, 1901, c. 379, 31 Stat. 794, Congress provided for general corporations, and granting corporate charters in Indian Territory. Later, in the act of March 3, 1901, c. 868, 31 Stat. 1447,-Congress declared each and every Indian in the Five Civilized Tribes a United States citizen, and in the act of May 19, 1902, c. 716, 32 Stat. 200, made provisions for the creation and payment of municipal bonded indebtedness.
When Congress by the act of May 2, 1890, c. 182, 26 Stat. 81, provided that Mansfield’s Digest of the Laws of Arkansas in reference to municipal corporations should obtain in Indian Territory, it made its first attack upon the Choctaw Nation as Indian country, and recognized that white men were here, and legally so, and had gathered themselves into communities sufficient in number to entitle them to be incorporated as towns, and to be in need of a system of municipal government, and entitled to protection in their rights/and made the contracts between the *689whites and Indians enforceable in United States Courts. By the adoption of the Curtis bill, entitled “An act for the protection of the people,” Congress dealt with the entire population — Indians and noncitizens — of Indian Territory. By its adoption of section 14 of that act, it provided expressly for the legal incorporation of towns in Indian Territory, and provided that any person having resided six months in such town site should be considered a citizen thereof, and entitled to vote for the establishment of such town as a municipal corporation, whether such person was an Indian or a noncitizen, and enacted that all citizens owning personal property therein, whether Indian or noncitizen of the tribe in which the town was located, should be liable to taxation to maintain such municipal government, and provided that “the councils of such cities and towns for the'support of the same and for schools and other public purposes may provide by ordinance for the assessment, levy and collection annually of a tax upon such property * * * and for such purposes may also impose a tax upon occupation and privileges.”
Here we have a peculiar situation, indeed, if article 39, as to South McAlester is still in force. A Choctaw citizen is to be regarded and taxed on his property in the town as any other citizen — he may be required to pay an occupation tax or pay for public privileges in the town — yet article 39 specially excepts him from so doing in the Choctaw Nation. Again, a citizen of the United States pays his taxes to South McAlester for occupation tax or otherwise and yet defendants claim the right to close his store and prevent his pursuing his business or occupation without other authority than a rule of the Secretary of the Interior promulgated primarily to aid in the execution of a penalty, authority for which is abrogated by statute. And this in view, of the fact that in section 29 of the act for the protection of the people of June 28, 1898, c. 517, 30 Stat. 505, it is provided: *690“But the provisions of said agreement (the Atoka agreement), if so ratified (by the Choctaw Nation), shall not in any manner affect the provisions of section 14 of this act.” That is to say, that said section 14 establishes a new order of things in the town sites in Indian Territory, and the same shall stand, and be given full force and effect in every particular, notwithstanding Congress has made provision for the continuance of the Choctaw government until 1906. All the other provisions of the act only apply to the Choctaws where the same do not conflict with the Atoka agreement. Under the Atoka agreement, when the town commission had prepared the plat of South McAlester, and had filed one in the clerk’s office of the United States Court for the Central District, and one with the Principal Chief or Governor of the Choctaw Nation, and one with the Secretary of the Interior, and such town plat was approved by the Secretary of the Interior, the Choctaw Nation by such acts dedicated that portion of said town site designated on such plats as streets, alleys, and parks to the municipal authorities of South McAlester, and relinquished by such dedication all their right, title, and interest in such streets, alleys, and parks to such municipality irrevocably, forever. Davenport vs Buffington, 1 Ind. Ter. 424, 45 S. W. 128; Id., 38 C. C. A. 453, 97 Fed. 234, 46 L. R. A. 377. All jurisdiction of any and every kind whatsoever passed thereby from the Choctaw Nation to the municipal authorities of the town of South McAlester, so far as streets, alleys, and parks were concerned; and such nations and the United States, by such dedication under the Atoka agreement as to such streets, alleys, and parks, have as absolutely repealed article 39 as though they had said so in express terms.
We may say truthfully that although the reason of a law has failed, from changed conditions of society or otherwise, nevertheless the law itself may still be enforced, unless it has in, some way been repealed. True it is again that repeals by impli*691cation should not be favored, but when subsequent acts of legislation affecting the same subject-matter, intended to meet and satisfy new conditions and needs, are incompatible with the enforcement of the original law, then does not only the failure of the reason .for such law, but, also, the carrying into effect the provisions of the later laws, demand that such original law be held to be inoperative and ineffective; and the fact that this nation and the United States, in the Atoka agreement, consented to the segregation of the town' site of South MeAlester from the nation, and its erection into a municipal government under United States laws, and its dedication of the streets, alleys, and parks in said town site as platted to said municipality, and the approval thereof by the honorable Secretary of the Interior, and the further fact, if it be such, that these nations have voluntarily parted with their title in and to the town site of South MeAlester to plaintiffs and others, show that they have abandoned their claim to it as Indian country. Here the reason for the old law was to protect the Indian on his government reservation from intrusion on the part of the noncitizen, and to regulate methods of trading, and to protect the Indian from unscrupulous non-citizen traders. It was not a question of raising revenue for the support of the tribal government at all. It is questionable whether the country of the Choctaw and Chickasaw Nations w^as ever a government Indian reservation, in the true sense of the term. The tribes held these lands by virtue of a United States patent, and had their governments. The law of the United States was over the nations by virtue of treaties, and, so far as noncitizens were concerned, the United States government was bound to protect these nations from intrusion by them, or at least to see that non-citizens coming into the nations came there in accordance with the laws of -the United States and the treaties; and thus the law requiring the honorable Commissioner of Indian affairs to remove intruders from Indian reservations, not being, duly licensed, was held to apply to these nations. By the Atoka *692agreement the Choctaw Nation not only recognized the right of noncitizens to be in the Choctaw Nation, but recognized how such noncitizens might become property holders of the tribal lands situated within town sites of the nation, and in the most solemn manner voluntarily consented that portions of their territory should be detached from the remainder, and should be treated distinctly and separately from such remainder as town sites; and not only did they part with their rights in and to such segregation, but sold and transferred the very thing itself to non-citizens and others without condition. Besides, it must be taken into consideration that the act of Congress forbids the removal of persons lawfully in possession of these lots, which had been the only statutory remedy provided by Congress to prevent non-citizens from exposing goods or other articles for sale in the .Choctaw Nation since 1882; and it must be considered, also, that the United States have acquired by condemnation and payment certain lots in said town for a jail site, as the owners in fee. When Congress by treaty in 1889 obtained the Cherokee Outlet from the Cherokee Nation, there was no direct repeal of the authority of the Cherokee Nation over this vast country, and neirer has been; nor in the treaty of that year with the Creek and Seminole Nations for cession of their holdings in Oklahoma was there any direct repeal of the laws, nor has there ever been, but the treaties and the acts of Congress thereafter are inconsistent with the previous treaties; and, when these nations parted with the title to these portions of their vast domains, they lost all control over them, and the previous treaties and laws became inoperative in them; and there is no difference, in principle, where a town site incorporated under United States law in the Choctaw Nation is concerned, when the nation has parted with its title therein.
The leading case in the United States Supreme Court upon this subject is that of the United States vs Tynen, 11 Wall. 88, *69320 L. Ed. 153, in which the court says: “When there are two acts on the same subject, the rule is to give effect to both, if possible; but, if the two are repugnant in any of their provisions, the latter act, without any repealing clause, operates, to the extent of the repugnancy, as a repeal of the first.” U. S. vs Tynen, 11 Wall. 88, 20 L. Ed. 153. The inconsistency and repugnancy between article 39 and the Atoka agreement, and which renders the former inoperative under the latter, arises from the fact that under the former the- nation owned and controlled, by government, all lands within its geographical limits, and after its adoption of the latter, as to town sites, the nation no longer owned the lands therein, and had agreed that United States laws controlling municipal corporations should prevail therein, and that Choctaw citizens resident and owning personal property therein should be taxed to maintain government in such United States town sites, and the repeal of the penalty for being in such town sites, and the making of Choctaw citizens United States citizens, made the enforcement of article 39, as to residents of such town sites, absolutely inoperative. The enforcement of article 39 is wholly incompatible with and repugnant to the laws and conditions prevailing in such town sites.
I am constrained to hold that the adoptiop of the Atoka agreement by the United States and the Choctaw Nation, relating to town sites, and the adoption of sections 14 and 29 of the Curtis bill (chapter 517, 30 Stat. 499, 505), and the carrying into effect of the provisions of said section 14 and of said agreement by sale of the town site to plaintiffs and others, and the repeal of the only statutory penalty for violation of such article 39, as to town sites, are so repugnant and incompatible to the enforcement of article 39 of the treaty of 1866 as to be equivalent to the repeal thereof, so far as the town site of South McAlester and other-towns similarly situated are concerned, if we take the fact to be, as to said town- sites, that the Choctaw Nation no longer has *694title. Black on Interpretation of Laws, 114; Bates vs Clark, 96 U. S. 206, 24 L. Ed. 471; Sutherland on Statutory Construction, §§ 138, 146, 146.
Is South McAlester longer to be considered as Indian country, the Choctaw Nation having parted with its title therein? Under the Atoka agreement, it is questionable, at least, whether the Choctaw Nation has not absolutely and in terms surrendered its jurisdiction and control over South McAlester, and towns in its nation similarly situated, after segregation, platting, appraising, filing its plat, and approval thereof, by the honorable Secretary of the Interior, and sale of the lots in the town site, whether the purchase price has been paid in full or not. All that remains for the Choctaw Nation to do in the matter is to issue its patents and receive its pay from the United States. The nation can by no process of law recover the segregated lands. If the first purchasers default in payment, the lots are to be resold.
It is a matter of notoriety that, at the time of the filing of this complaint, South McAlester was a city of four or five thous- and inhabitants, situated in a populous region, surrounded on all sides by mining and manufacturing industries, with two great railway systems centering the town, with graded streets and sidewalks, and hundreds of business houses and residences — some of the business houses, of large dimensions, and carrying immense stocks of goods, valued at many thousands of dollars, with electric lights, telephone systems, and motor car systems, with great educational institutions maintained from the municipal taxes, with many churches, hospitals, and with all the modern civilized appliances, necessities, and comforts pertaining to the most progressive, cultured, and refined communities in the United States. Its population and the population surrounding it were mostly white, and, with its population in this condition, and with the Indian Nation and the United States by treaty hav*695ing invited noncitizens there, and having voluntarily sold and conveyed tbe fee of its lands in such town site, can Tt be said that the territory embraced in the boundaries of this municipal corporation and the lands and parcels of land incorporated into such town site under the United States law was Indian country?
In Maxey vs Wright, 3 Ind. Ter. Rep. 243, (54 S. W. 807), decided January, 1900, this court recognized the probability in the future of the very condition we are now considering, and decided that case with the understanding that the Creek Nation had not parted with its title to the lands embraced in town sites, and reserved the right to decide what the effect would be when the Indian title to lands in incorporated towns was determined, as follows: “Nor does the fact that Congress, by the provision of the Curtis bijl, has provided for the creation of cities and towns in this nation, and the extinguishment of the Indian title to the lands embraced within the limits of such municipal corporations, alter the case, because this provision of that act has not yet been carried into effect. The Indian title to such lands still remains in them, and it is their country. What effect the provision of this stated rule to cities and towns, when fully consummated, ma^have, we do not now decide.”
I cannot conceive that a statute or a rule enacted or promulgated primarily to protect Indians upon Indian reservations can be held to apply to the above situation. On the contrary, the United States citizen, owning the fee in lots in the town of South MeAlester, acquired legally from the Indian nation, without conditions in his deed of conveyance, or without a condition in the treaty authorizing the conveyance, must be held to have every constitutional right under United States law, and to be entitled to protection in his life, liberty, and property. Nor can he be divested thereof, or injured therein, except by due process *696of law. Can it be said that because the Choctaw and Chickasaw Nations once owned this town site, and the honorable secretary and his subofficers then had authority for the nations to exact payment of a permit fee from noncitizens doing business in such nations, such authority shall be continued and such exaction required after the nations have voluntarily thrown down the bars of their country, segregated portions thereof for town sites, and invited non-citizens to buy and pay for their lands? I think not. Bates vs Clark, 95 U. S. 206, 24 L. Ed. 471.
If South McAlester is no longer Indian country, and article 39 of the treaty of 1866, supra, has become inoperative as to it and town sites in the Choctaw Nation similarly situated, under what law are the defendants presuming to act, in threatening to close the stores of plaintiffs if they do not pay the demands of the Choctaw nation? Under said article 39, as we have seen, the law requiring the Commissioner of Indian Affairs, with the approval of Secretary of the Interior (section 2149, Rev. St.), to remove persons detrimental to the peace and welfare of the Indians was held to apply to the Choctaw Nation, [and after the act of July 31,1882 (1 Supp. Rev. St. (2d Ed.) 362), this was the only statutory remedy for violation of said article 39. But in the act of May 27, 1902, 32 Stat. 259, this remedy was taken away as to citizens of town sites in lawful possession of any lots or parcels of land, and plaintiffs bring themselves within the protecting folds of this statute.
Whence, then, comes the authority of defendants to require plaintiffs to pay any sum to the Choctaw Nation for any purpose, or where the authority of defendants to close the stores of plaintiffs until the demands of the nation are met? Clause 2 of defendants' demurrer says that the authority under which defendants have acted in doing the things complained of comes from, certain "letters” and “communications” attached as ex*697hibits. . These letters and communications have been herein before fully set out — and I will but refer to them. Certainly defendants cannot act legally in closing the stores of plaintiffs unless there is some law authorizing them to act. Merely because the United States Indian inspector wrote a letter to the United States Indian agent, advising him of the ruling of the honorable Secretary of the Interior that stores should be closed for noncompliance with tribal laws, and that the United States Indian agent wrote to the United States Indian inspector, instructing him to personally notify plaintiffs that the Principal Chief of the Choctaw Nation had reported plaintiffs as having failed to pay the tribal tax, and a further letter from said inspector to said agent, transmitting a report of the Principal Chief that plaintiffs still refused to pay the tax demanded, and instructing said agent to close the places of business of plaintiffs unless said tax was paid, and a copy of the order of said agent to the captain of Indian police, directing him to close plaintiffs' places of business, with a copy of the notice served by the agent on plaintiffs, does not make a law, nor can such action be taken unless behind the rule of the honorable Secretary, referred to, there is some law of the United States authorizing such rule.
The penalty for coming into the nation and doing business therein without paying the permit tax or fee was removal of the person from the nation, as objectionable, until the act of Congress approved on May 27, 1902, in which the Secretary of the Interior is forbidden to remove any person from the Indian Territory, who is in lawful possession of- any lot or parcel of. land in any town or city of the Indian Territory which has been designated as a town site under existing laws and treaties; and, except as the closing of a store is but the method under a rule promulgated by the honorable Secretary for preventing a violation of the treaty— that is, stopping the unlawful act of trading without complying with the terms of the treaty — there is now no specific provision *698of law providing what penalty shall be visited upon the unlicensed trader in the town sites in the Choctaw or Chickasaw Nations, and the defendants, acting as subofficers, have followed the rules prescribed by the honorable Secretary.
I think that the honorable Secretary has fairly stated the meaning of the law in this rule, provided he has the power to act at all; but, before he can act, the conditions must be such as are covered by the law under which this rule -was promulgated. The honorable Secretary’s rules providing for the closing of stores must not only be based upon the law, but can only be exercised in Indian country. His rules must be such as conform to the penalties prescribed by the law itself. Here the penalties prescribed by the law are repealed as to noncitizens lawfully in possession of town lots in the town sites in the Choctaw Nation. If the penalty of the law is repealed, then, as the greater includes the less, the rule promulgated to enforce the penalty must fall, and be nugatory and of no effect. Complainants bring themselves clearly within the class of persons against whom the honorable Secretary is prohibited from removing from the territory, and he cannot prescribe some other method, and dp indirectly that which the law says he must not do directly. Where the Choctaw Nation, by treaty, has solemn^ agreed to the segregation of town sites within their nation, and by deed of conveyance have sold and conveyed such segregations to noncitizens and others, without conditions, such town site segregation, in my judgment, cannot be longer considered as Indian country; and the treaty and acts of Congress providing for such segregations, and the erection of town sites and municipal incorporations, and the sale of town lots therein to noncitizens, make article 39 of the treaty of 1866 as ineffective and inoperative as though the same had been repealed in express terms, so far as town sites are concerned .
*699But do plaintiffs come within the provisions of said article 39, as traders? Article 39 forbids every person, except Choctaw and Chickasaw citizens, from exposing goods or other articles for sale as a trader in the Choctaw and Chickasaw Nations, except such person has a permit from the legislative authorities of the nation. Let us see what was meant by the expression, “No person shall expose goods or other articles for sale as a trader.” In their primitive state, and for many years later, it was the custom of the whites to take a pack or load, a wagon or a wagon train, of goods or other articles, into the Indian country, and trade such goods and articles, not for money, for the Indian had none at first, but for hides, horses, and the peculiar possession of the Indians, and such persons were designated “Indian traders;” and the term survived even after the advent of railroads, and the establishment of permanent posts for trading, and the term “traders' posts” is not infrequent in our legislation. The Choctaw and Chickasaw Indians, sadly imposed upon by these traders, found it necessary to ask the protection of the government, and so we have the article 39, above.
Can it be said that persons living in the towns authorized by the laws of the United States, owning the lands on which their places for business stands — permanent places for handling their merchandise — are traders, in the sense of this article 39? Common sense would at once say, “No!” Do these merchants, some of whom, from their names, are great wholesale corporations,. whose operations are probably not confined to the Indian Territory, but reach out into adjoining states and territories, come under the appellation of traders contemplated in article 39? Most assuredly no! But the government of the United States, in superintending the operations of noncitizen merchants within the Five Civilized Nations, has treated this law as including them within its terms, so long as they were doing business in the Indian country; and, where such merchants have sought to do business *700without complying with the conditions imposed by the Indians themselves, the United States authorities have removed such merchants from the Indian country. By the act of June 7, 1897, as well as the acts of March 1, 1889, and May 2, 1890, the Constitution of the .United States, and laws thereunder, are put absolutely in force in Indian Territory without reference to the Indians. By the Atoka agreement (Act June 28, 1898) it is provided, as to town sites, that the nations may part with title to town lots, and that the owners of the improvements, without reference to whether they be United States citizens or Choctaw or Chickasaw citizens, shall, under certain conditions, have the right to purchase and acquire the title to such lot or lots, and that lots may be sold at public auction to any one, without reference to whether they are Choctaw or Chickasaw Indians, or otherwise, and that the money obtained for sale of town lots shall be for the benefit of the members of Choctaw and Chickasaw tribes, excepting the freedmen. Article 5 of the amendment to the Constitution of the United States provides, among other things: “No person shall be * * * deprived of life, liberty or property without due process of law.” Has the Choctaw Nation jurisdiction to enact laws for United States citizens within town sites incorporated under United States laws and treaties of the nation, in reference to how they shall use real estate sold by such nation to such citizens? Or to impose other conditions than those named in the treaty, upon which such United States citizens may or may not be permitted to use lands which such United States citizens hold in fee ? I think that both of these questions, under the law, and under the constitutional provision above mentioned, have to be answered in the negative. If the Choctaw Nation and the United States had intended to reserve to said nation its jurisdiction over South McAlester, and other towns in its nation similarly situated, they could easily have' so stated therein; but, instead of doing so, they agreed to change, and did change, the nation's entire interest, management, and control of *701sucb town sites; and the nation must accept the consequences of such change, and can no longer exact as their due what they have voluntarily yielded.
But it is urged at this point that in the Atoka agreement was reserved the right still to say to noncitizens coming within the boundaries of the nation, even though such noncitizens lived in the town sites under the laws of the United States, and were allowed, as citizens thereof, to participate in municipal government and tax themselves therefor, and although such citizens should acquire and pay for the fee of the lots on which they lived, and on which they might erect business houses, that the nation still claimed the right to require such citizens, before transacting business therein, to pay a license or permit fee for the transaction of such business. If we analyze the sections of the Atoka agreement referred to by appellant, we will find that no such reservation is intended. Let us see. Atoka Agreement, § 57x35' (Ind. Ter. St. 1899, p. 41): “That no law or ordinance shall be passed by any town which interferes with the enforcement of, or is in conflict with the laws of the United States, in force in said territory, and all persons in such towns shall be subject to said laws.” In my judgment, the construction to be given to this section must be that “all persons in such towns shall be subject to said laws” refers to the laws and ordinances of the towns, which laws and ordinances must not interfere with the laws of the United States; and certainly, as heretofore shown, the provisions of section 14 of the Curtis bill are expressly excepted from any reservations whatever in the provisions of said Atoka agreement; See last clause of section 29 of the Curtis bill (Ind. Ter. St. 1899, 57x19). While there has never been any express repeal of article 39 of the treaty of 1866, the acts of Congress and the Atoka agreement have been inimical to and incompatible with the enforcement of article 39 in incorporated towns in the Choctaw Nation, and the fact that the nation consented to the segregation of, and *702has voluntarily parted with the title in and to, the town site of South McAlester, shows that said nation has abandoned claim to it as Indian country; and the Constitution and laws of the United States, having attached thereto, no longer can the nation impose conditions for its occupation and use, because it. voluntarily and in the most solemn manner (that is, by treaty and deed, and for valuable consideration) has yielded possession thereto without conditions.
Congress and the Choctaw Nation itself provided for the extinguishment of the Indian title in incorporated towns in the Choctaw Nation. Congress threw over every citizen in such nation the protecting folds of the Constitution of the United States. It provided for the forum in which all rights of United States citizens legally within the Choctaw Nation should be tested. Any other way of divesting the right of United States citizens legally within the Choctaw Nation, than as provided by law in the forum established by law, is without due process of law, and cannot be upheld. I am of opinion, if the premises of the opinion of the majority of the court be accepted, that, as to United States citizens legally within the incorporated town of South McAlester, and transacting business there, the Choctaw Nation having parted with its title thereto, such nation has voluntarily parted with the right to further continue exaction from such citizens in the way of a permit tax or license fee, and that, the nation no longer having this power or right, the honorable Secretary and his subofficers, in threatening to close the stores of such merchants, are not acting under due process of law, and should be restrained, and the decision of the lower court restraining such officers should be affirmed.