(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.
Ainy 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.
I 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.
The 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.
While 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.”
In 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.
In 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.”
And 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/
See, also, Beam v. United States, 162 Fed. 260, 89 C. C. A. 240.
We 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“
In 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.”
It 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.
[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.
It 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.
[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.
There 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.
Defendant’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. * * * ”
Under 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.
If 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.
[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.
In 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.”
Both 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.”
An 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.
But 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.”
Neither 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.