concurring in part and dissenting in part
I concur in vacating the summary judgment in favor of defendant Gaddy. Neither the provisions of the Indian General Allotment Act nor the subsequent acts amending and redefining it permit removal of restrictions on alienation of trust lands by implication. And even if approval of a transfer of an Indian allotment during the statutory trust period is given by an agent of the Bureau of Indian Affairs, the sale is void if the agent had no approval power. Bacher v. Patencio, 232 F.Supp. 939, 941 (S.D.Cal.1964), aff'd 368 F.2d 1010 (9th Cir. 1966). There is no evidence that anyone at the Shawnee Indian Agency with approval power approved the lease. Charles Dush-ane, a lease clerk who appraised the property, is not shown to have been acting in other than an individual capacity when he witnessed the thumbprint of Kah-Kah-to-the-Quah on October 20, 1927. As a result, Gaddy’s approval-by-implication theory must fail.7
*134I dissent, however, from directing summary judgment for the plaintiffs. The record before us is not sufficient for this court to direct summary judgment as a matter of law. Gaddy’s lease is void because the underlying conveyance was made during the trust period and there is no evidence the restrictions were ever removed from the trust lands by the secretary of the interior. Restrictions on alienation of trust lands are not personal to the original allottee, but run with the land. United States v. Reily, 290 U.S. 33, 54 S.Ct. 41, 78 L.Ed. 154 (1933); Couch v. Udall, 404 F.2d 97 (10th Cir.1968); United States v. Kilgore, 111 F.2d 665 (10th Cir. 1940); 25 U.S.C.A. § 348. Although restrictions on alienation by absentee heirs of original Mexican Kickapoo allottees were removed by the Act of June 21, 1906, 34 Stat. 325, 362-363, they were reimposed by the Act of February 17, 1933, 47 Stat. 819. The record before us contains no proof they have since been removed. The result is that the plaintiffs’ lessors may be without authority to encumber the mineral estate and we may be dealing with not one, but two void transactions. This presents a question of fact precluding summary judgment for the plaintiffs.
Moreover, the plaintiffs fail to trace their purported chain of title, and present no evidence that their lessors are in fact the heirs of the original allottee, or that they represent all the heirs of Kah-Kah-to-the-Quah having a legal interest in the land. Wien an allottee dies without a will, during the trust period and before issuance of fee simple patent, “the Secretary of the Interi- or, upon notice and hearing ... shall ascertain the legal heirs of such decedent, and his decision thereon shall be final and conclusive.” 25 U.S.C.A. § 372. Without such a determination of heirship, the plaintiffs are “without right to maintain this [quiet title] suit.” Bertrand v. Doyle, 36 F.2d 351 (10th Cir.1929). As a result, it is my opinion that this court is without authority as a matter of law to quiet title in the plaintiffs.
I also dissent from the discussion in Part III of the majority opinion. Gaddy does not claim the railroad acquired fee simple title under the Enid-Anadarko Act. It is not disputed that the Act prohibits railroads from acquiring fee simple title under the Act to land taken for right-of-way purposes. Nothing in the Act, however, prohibits a railroad from acquiring fee simple title to restricted Indian lands by other means, provided the requisite approval is obtained from the secretary of the interior. Bailey v. Banister, 200 F.2d 683 (10th Cir. 1952). Here it is merely coincidental that the land covered by the void warranty deed was earlier committed to right-of-way use. Title is claimed under the warranty deed, not the Act. As a result, I do not consider the discussion in Part III to be relevant to the issue before us, and dissent from the blanket statement that the “railroad was not entitled to acquire fee simple title to restricted land.”
It is my opinion that the record before us is inadequate to quiet title, and presents unresolved questions of fact precluding this court from directing summary judgment on remand. I would vacate the judgment appealed and remand for further proceedings.
. I wish to point out, however, that the reliance of the majority on Rogers v. Noel is misplaced since that case involved a member of the five civilized tribes whose lands were not governed by the General Allotment Act of February 8, 1887, as was the Kickapoo land in question.