(concurring in result reached by Justice POL-EEY.) Although of the view that those who are called the heirs of a deceased allottee do not take title as an inheritance, I am of the opinion that the judgment should be reversed. The heirs mentioned in the federal statute are merely grantees to whom the government will convey title in lieu and .in place of the deceased *344allottee. If it were not for the provisions of section 5 of the Act of February 8, 1887 (section 4201, U. S. 'Comp. Stat.), on the death of an allottee, the ¡United 'States would be under no obligation and could not-convey to heirs of a deceased allottee; -but by virtue of this statute the United States is authorized to grant the allotted land, that otherwise would have 'been granted to the original allottee had he not died, to certain persons denominated heirs. The -heirs are simply substituted by the statute as grantees in place of the original allottee when he dies. In the absence of a federal inheritance law, I am of the view that the heirs of an allott-ee take as grantees under a statute. This court in Aspey v. Barry, 13 S. D. 220, 83 N. W. 91, and again in Gould v. Tucker, 20 S. D. 226, 105 N. W. 624, held that an heir under the timber culture law took title as a direct grantee from the government and not by inheritance. To the same effect are the decisions in the following cases: Rogers v. Clemmans, 26 Kan. 522; Cooper v. Wilder, 111 Cal. 191, 43 Pac. 591, 52 Am. St. Rep. 163; Towner v. Rodegeb, 33 Wash. 153, 74 Pac. 50, 99 Am. St. Rep. 936; Gjerstadengen v. Van Duzen, 7 N. D. 612, 76 N. W. 233; 66 Am. St. Rep. 679; Hall v. Russell, 101 U. S. 503, 25 L. ed. 829; Hershberger v. Blewitt (C. C.) 55 Fed. 170. So far as the question of transmission of title to heirs is concerned there is no difference in principle between the provisions of the allotment law and the public land law relating to • timber culture, homestead, and-pre-emption laws which provide that upon the death of the entryman the government will convey by patent to his heirs. In Hall v. Russell and Hershberger v. Blewitt and exception is made as to grants .by the government which- take effect in praesenti.
I am of the view that the preliminary trust patent issued to an allottee conveys no title in praesenti. It is stated in the federal decisions that in determining whether a grant by the government takes effect in prsesenti or at some future time must be determined by the provisions of the law which authorized the grant, as such law is a conveyance as well as a law. The Allotment Act in substance provides that- upon the approval of the allottment a preliminary patent shall issue to the legal effect and declare that the United 'States will hold the allotted land in trust for 25 years for the sole use and benefit of the allottee, and in case of his death, for his heirs, ánd at the expiration of the 25 *345years it will convey the same in fee, discharged of the trust, to the allottee or his heirs. There is not a word in relation to the granting of title mentioned in the preliminary patent. The preliminary patent does not purport, either expressly or impliedly, to convey or grant anything at all to the allottee, 'but merely declares that the government will hold the allotted land in trust for the allottee’s use and benefit for 25 years, at the expiration of which time the government will convey the fee title, absolute and complete title, to him. In other words, the government in effect has reserved and held to itself absolute and complete fee title for the period of 25 years, giving to the allottee in the meantime only the right to use or receive the benefit from such allotted land. The allottee was required to wait 25 years, as a condition precedent, before-he became a qualified recipient of the grant of any kind of title. It was just as necessary for the allottee to wait 25 years to qualify himself to take title as it was for the tree claim entryman to plant and cultivate trees for 10 years. Under the decisions cited I am of the view that the allottee in question had no inheritable title at the time of his death. A preliminary trust patent does not convey to the allottee any title.
[ 11 ] Whether those who succeed to the rights of a deceased allottee take as heirs of an inheritance or as designated grantees under a statute is not decisive of the vital question involved on this appeal. The appellant in either case has á right to maintain this action. The statute gives her as much or more rights than she would have under an inheritance. She would be substituted under the statute to all the rights possessed by the deceased .allottee, had he been alive. Here in this case it appears that appellant was the only heir of the deceased allottee, and, without negligence, fault, or even knowledge on her part, another person, not an Indian, in no way related to deceased, and not an heir, wrongfully, fraudulently, and without right, made a deed of conveyance of the allotment and secured the approval of the Secretary of the Interior thereto, presumably pretending to act as an adult heir under the provisions of the Act of May 27, 1902. I am of the opinion that- such deed was absolutely void. It was secured by extrinsic fraud, and was a fraudulent imposition on appellant and on the Secretary of the Interior, and this whether or not the Secretary possessed power or quasi judicial authority, to deter*346mine the question of heirship. If the Secretary had been, clothed with full judicial authority to determine such questions of heir-ship, such extrinsic fraud, nevertheless, would have vitiated his act of approval. Paul v. Paul, 170 N. W. 658; Sohler v. Sohler, 135. Cal. 323, 67 Pac. 282, 87 Am. St. Rep. 98. This counterfeit and pretended heir, who so made and received said deed, acquired no title thereby and was powerless to transmit title to any one whomsoever. . The grantee under this void deed was as powerless to transmit title as would be the thief of stolen property. Said deed had no more force or effect than a forged deed, and, in principle, was legally analogous to a forged deed. The recording statutes furnish no protection to those who claim as innocent purchasers under a forged or otherwise void deed, where the true owner has been guilty of no negligence or acts sufficient to create an estoppel. Devlin on Deeds (3d Ed.) § 726; 8 R. C. L. 1029; Vesey v. Solberg, 27 S. D. 618, 132 N. W. 254; Pry v. Pry, 109 Ill. 466. The equity rule that fraud vitiates everything it touches applies to the circumstances of this case.
[12-15] It is contended that if the facts sustain extrinsic fraud, and that appellant still holds this land as an allottee, this action must be dismissed because of the decision in McKay v. Kalyton, 204 U. S. 456, 458, 27 Sup. Ct. 346, 51 L. Ed. 566, holding that under the Act of Congress of August 15, 1894, c. 290, 28 Stat. 286, the United States Circuit Courts were given exclusive jurisdiction over such actions. In McKay v. Kalyton and in Hy-yu v. Smith, 194 U. S. 408, 24 Sup. Ct. 676, 48 L. Ed. 1039, it was held that prior to said, act of 1894 the authority to determine such conflicting rights to Indian allotments Was in the Secretary of the Interior, but by the said act of 1894 such authority was placed exclusively in the federal circuit courts. By the same reasoning I am of the view that by the Act of Tune 25, 1910, such jurisdiction and authority was again placed in the hands of the Secretary of Interior, and taken out of the hands of the federal Circuit Courts. While such authority was in the Secretary of Interior, prior to 1894, it was generally held, under the provisions of section 6 of the Act of February 8, 1887 (U. S. Comp. 'St. §' 4203), the Dawes Act, that state courts had jurisdiction of such controversies. Felix v. Patrick, 145 U. S. 317, 12 Sup. Ct. 862, 36 L. ed. 719; In re Heff, 197 U. S. 488, *34725 Sup. Ct. 506, 49 L. ed. 848; Wa La v. Carter, 6 Idaho, 85 53 Pac. 106; Bird v. Winger, 24 Wash. 269, 64 Pac. 178. Now that such authority has again 'been replaced in the Secretary, it would seem reasonable that-the prior rule as to the jurisdiction of state courts should also again be in force, as under the authority of the McKay Case state courts were deprived of jurisdiction only because the Act of August 15, 1894, placed the exclusive jurisdiction of such controversies in the circuit courts. The Act of June 25, 1910, completely took away such jurisdiction and placed it in the Secretary of the Interior, where it was prior to 1894.
It seems to be conceded by Justice Gates that the Act of June 25, 1910, took the jurisdiction to determine conflicting heirship to allotments entirely out of the federal courts, where it had -been placed by the said act of 1894, and again reinvested the Secretary of State with such .jurisdiction. The reason for the rule established by the Kalyton Case then ceased to exist, and we are again back to where we were before the act of 1894. • The precise question involved is this: Has an Indian a right to maintain a suit as a plaintiff in the state courts to obtain remedial redress under the circumstances of this case? It is conceded that an imposter who was not an heir, by fraudulently claiming to be an adult heir, succeeded in having the Secretary of the Interior approve a deed made 'by him, the said imposter, to a third party without the knowledge or consent of Mary High-rock, the true heir. 'She is seeking redress in the state court against a conceded wrongdoer. It is purely and only a remedy that she is seeking in the courts of this state. 'Her substantive right under the federal law is admitted. It is true that her substantive right, which she claims has been invaded, and which is the basis of her right to remedy, is based solely on federal laws. That is the situation of any one relying on a patent from the government as the source of his title. As the heir of the deceased allottee she has an eqjuitable interest in the land in question sufficient to authorize her to maintain this suit. Section 2846, Code 1919; Bird v. Winyer, 24 Wash. 269, 64 Pac. 178. All the judgement, all the relief, she can obtain in this action, is a decree against the wrongdoer that she, as the admitted heir of the deceased allottee, is entitled to the possession, use, and benefits of said land. She may at some future time apply to the *348'Secretary of the Interior for a fee title final patent, and a decision of the state court in this case would in no way interfere with such application. She is within the rule that, unless there is some law prohibiting it, an Indian may maintain in the state courts an action for a wrong against the person or property of such Indian. Bam-Way, etc., v. Eshelby, 87 Minn. 108, 91 N. W. 291; Blackbody v. Maupin, 38 S. D. 621.
With it conceded that the Act of August 15, 1894, on.which the Kalyton decision was based, has been inherently repealed by the Act of June 25, 1910, there is no law prohibiting the maintenance of such a suit by an Indian. This view-, is fully sustained by the decision in Felix v. Patrick, 145 U. S. 317, 12 Sup. Ct. 862, 36 L. ed. 719. In that case, decided in 1891, an Indian was plaintiff, seeking to set aside title to land alleged to have been acquired by fraud, and the defendant alleged laches and delay on the part of the Indian plaintiff as a defense, and the Indian plaintiff replied that there was no court in which he could seek redress prior to the Act of February 8, 1887, the Dawes Act, permitting suits by Indians in the federal courts, and in rendering the decision the Supreme Court of the United States said:
“It is scarcely necessary to say in this connection that, while until this time [the passage of the Dawes Act] they were not citizens of the United States, capable of suing as such in the federal courts, the courts of Nebraska were open to them, as' they are to all persons, irrespective of race or color.”
This case cites with approval the decision of the state court of Kansas in Wiley v. Keokuk, 6 Kan. 94, which said that the Indian has a right to appeal to the laws of the state for redress. “It is not in the power of any tribunal to say: ‘You are an Indian, and your rights rest in the arbitrary decrees of executive officers, and not in the law.’ ” The decision in the Felix Case has never been overruled. It may not have been applicable while the Act of Congress of August 13, 1894, was in force.
The Nice Case, cited by Justice GATE'S, is not applicable to a case of this character. That was a criminal prosecution against an Indian defendant charged with the sale of intoxicating liquors. Whatever was said by the court in that case in relation to land titles of heirs of allottees was obliter. The court in that case did not purport, either expressly or impliedly, to pass upon and decide *349the question as to whether or not an Indian allottee under the circumstances of this- case may not maintain an action in the state courts. The state courts possess original, plenary, equity power or jurisdiction of suits by Indian plaintiffs in cases where their conceded rights under their Indian titles are interfered with. It may be true that if the Secretary of the Interior, under the provisions of the Act of June 25, I9'IO> had tried out and determined the merits of the heirship of Mary Highrock, such determination would be binding upon this court. But that is not this case. In this case it is conceded for the purposes of this suit that appellant is the only rightful heir of the deceased allottee.
[16] Again section 20, article 6, state 'Constitution, provides that all courts of this state shall be open to every man for injury to his person or property, for which he shall have a remedy by due course of law without denial. This brings the appellant squarely within the rule of the Felix -Case. Also see 22 Cyc. 116. But Justice GATES contends that section 4 of our Enabling Act shuts the appellant out of maintaining this suit. I am of the view that the “Indian title” mentioned in this section of the -Enabling Act has not the remotest relation to the “Indian title” involved in this suit. The “Indian titlé” mentioned in the Enabling Act was the aboriginal Indian title of the Great S-ioux Nation, a portion of which was then in process of 'being extinguished in favor of the 'United States, to the end that the same might become a part of the public domain, from which Indian allotments might thereafter be made. When the government grants an allotment to an Indian allottee, it does not extinguish any Indian title, but creates a new one, in partial consideration of the extinguishment of the aboriginal title, which theretofore had been extinguished by the United -States. The “Indian title” mentioned in the Enabling Act had to be extinguished before an allotment -could be made.
It is a well-known matter of history that, when some of the earlier states were admitted into the Union, with Indian reservations within their borders, the aboriginal Indian title was not extinguished and the Indians claimed the right to dispose of such aboriginal title direct to the state. 22 Cyc. 123. But when -South Dakota came into the Union the United States government required that she disclaim all right and-title to aboriginal Indian lands. Our Enabling Act was passed *350February 22, 1889. 25 U. S. Stat. at Large', p. 676, c. 180. At that time the United States government was in process of extinguishing the aboriginal title to a part of the lands within the Great .Sioux 'Nation. The method of extinguishing aboriginal title by the United States is either by treaties with the Indians or statutes in aid or having the nature of treaties. On April 30, 1888 (25 U. S. Stat. at Large, pp. 95, 206), an act was-passed for the purpose of extinguishing aboriginal titles in South Dakota, but which act contained a provision that, unless the Indians within one year in writing accepted the provisions thereof, the act itself would be void. That act was never accepted, but on the 2d day of March, 1889., 10 days after our Enabling Act another similar act for similar purposes was enacted (25 U. S. Stat. at Large, p. 888, c. 405), which act -was thereafter accepted by the Indians, and which act, by section 21 thereof, extinguished aboriginal titles, and restored to the public domain all those portions of the Great Sioux Nation, excepting Farm Island and other tracts of land specifically described.
In view of this situation, I am of the opinion that the Indian title mentioned in -Section 4, of the Enabling Act applied and only could apply, to the extinguishment of the aboriginal titles then being extinguished by the United States government. The Enabling Act saj's that until the said Indian titles shall have -been extinguished said Indian lands shall remain under the absolute jurisdiction and control of the United States. The land involved in this suit was land to which the aboriginal title had been extinguished prior to the allotment in question. Those particular portions of the Great Sioux Nation -which are particularly described in the Act of March 2, 1889, as not having been restored to the public domain, are all and the only lands that remain under the absolute jurisdiction of the United States within the meaning of section 4 of our Ena-bliñg Act. -Congress, in passing section 4 of the Enabling Act, only had in contemplation the extinguishment of aboriginal Indian titles.
The judgment should be reversed.
SMITH, J., concurs with the views expressd by Mc-COY, P. J- GATES, J.(dissenting). I greatly regret, that the other four .members of this court were apparently hypnotized into *351concurrence with the opinion in Daugherty v. McFarland, 40 S. D. 1, 166 N. W. 143. Every point that is now advanced in the separate opinions of Judges POLLEY and WHITING was advanced in the briefs in that case or in one or more of the following casesj viz.: Egan v. McDonald, 36 S. D. 92, 153 N. W. 915; Tripp v. Sieler, 38 S. D. 321, 161 N. W.337; Oldham v. Nelson, 38 S. D. 451, 161 N. W. 814; Carlow v. Jordan, 39 S. D. 28, 162 N. W. 749. Every federal statute and every federal case cited by them, unless it be Richardville v. Thorp (C. C.) 28 Fed. 52, was cited in the briefs in one or more of these cases. Every one of such points and all of such authorities were carefully and painstakingly considered by me, at least, in the preparation of the opinion in Daugherty v. McFarland.
Two principal questions are presented by this appeal. The first is whether the Congress had power to invest the 'Secretary of the Interior with authority to divest the governmental legal title and the equitable title or equitable interest of tribal Indians in lands allotted by government trust patents to the ancestor of such tribal Indians, 'pursuant to the General Allotment Act of February 8, 1887, c. 119, 24 Stat. 388, and the Special Allotment Act of March 2, 1889, 25 Stat. 888, c. 405. The second question is whether the Congress did so by the provisions of section 7 of the Act of May 27, 1902, 32 Stat. 275, c. 888 (U. S. Comp. St. § 4223.) Both questions are in effect answered in the negative by the opinion of Judge POLLEY and the concurring opinion of Judge WHITING. Judges McOOY and SMITH do not pass upon these questions. I think both questions should be answered in the affirmative.
Judge BOLEEY would affirm the conclusion in Daugherty v. McFarland, 40 S. D. 1, 166 N. W. 143, but would disapprove of much of the reasoning thereof, on the ground that he claims many statements in the opinion to be obiter. As the principal ground for so contending he says that the partition suit in the circuit court settled the rights of the heirs of Goodcloud and Iron Soldier, but some of the land involved in such partition suit was still held under trust patent. There is no pretense but that some of the land involved in that suit was still wholly under federal control. As to such land the state court clearly had no jurisdiction. McKay v. Kalyton, 204 U. S. 458, 27 Sup. Ct. 346, 51 L. ed. 566. *352How, then, could it apportion something over which it had no authority? The basis of a partition suit is mutuality of interest and jurisdiction in the court to dispose of the mutual interests. So it seems clear, to me that Judge P'O'LLEY errs in his view that the statements quoted by him from Daugherty v. McFarland were obiter. The gist of Judge FOLLBY’S opinion is that, while federal control over, and the legal title to, the land in question passed from the federal government by the approval of the deed, yet, the approval being erroneous and fraudulent, the grantee took, and his successor now holds, the legal title; in trust for the owner of the equitable estate. Under his view no question arises as to the correctness of the decisions above referred to, except in so far as he considers portions of Daugherty v. McFarland to be obiter.
Judge WOITINjG claims that the decision in Daugherty v. McFarland was wrong, and he would overrule it, and also the decision in Carlow v. Jordan, 39 S. D. 28, 162 N. W. 749. In fact it seems clear to me that the effect of his opinion would be to not only overrule these decisions, but also the decisions in Egan v. McDonald, 36 S. D. 92, 153 N. W. 915, Tripp v. Sieler, 38 S. D. 321, 161 N. W. 337, Id., 39 S. D. 221, 164 N. W. 67, and Oldham v. Nelson, 38 S. D. 451, 161 N. W. 814, as will hereinafter appear. To fortify his position Judge WHITING lays down some categorical assertions as to what any lawyer would believe to be the law. . I would add other paragraphs to those enumerated by him as to what a lawyer would conclude, etc., viz.:
“Any lawyer called upon to construe the Omaha treaty of March 6, 1865, would, if free from any impression as to how the courts had construed it, reach the conclusion that the act provided for vesting title in the allottees and therefore that the Circuit 'Court of Appeals had reached a correct determination in Chase v. U. S., 222 Fed. 593.”
But the Supreme Court of the United States reversed such decision in U. S. v. Chase, 245 U. S. 89, 38 Sup. Ct. 24, 62 L. Ed. 168.
Again:
“Any lawyer, called upon to construe section 17, c. 405, Act of March 2, 1889, would say that the Indians were the *353owners of the allotted personal property, subject only to the restriction as to disposal to others than Indians.”
But the Supreme Court of the United States has many times held that such property was “government property.” U. S. v. Rickert, 188 U. S. 432, 23 Sup. Ct. 478, 47 L. ed. 532; U. S. v. Pearson, 231 Fed. 270. The point I seek to make is that we cannot view these federal statutes simply from the standpoint of the language contained in them. They must be viewed from the standpoint of the general relation -between the Congress and Indian tribes, as disclosed, not only by those and a multitude of other acts, but also by the decisions of the Supreme Court and other federal courts construing them, and also by the attitude of the federal executive department towards tribal Indians. Lane v. Pueblo of Santa Rosa, 249 U. S. 110, 39 Sup. Ct. 185, 63 L. ed. 504.
In Daugherty v. McFarland, we said:
“From the various acts of Congress, and from the interpretations thereof by, the many decisions of the Supreme Court of the United States, we are of the opinion that the lands alloted under the Act of February 8, 1887, continued to be government property; that the government by its Congress had complete authority over tribal Indians and over the property, real or personal, committed to them, unaccountable to any other body or tribunal; that, while it held the property in trust for the Indians, such trust differed from the ordinary trust, in that Congress had full authority to make or unmake the rules governing the execution of the trust; that the federal government could dispose of such property through the agency of the • ¡Secretary of the Interior.”
Were we justified in making that statement? In Stephens v. Cherokee Nation, 174 U. S. 445, 483, 19 Sup. Ct. 722, 736 43 L. ed. 1041, a case involving the rights of Indians, the court quoted- with approval:
“It is well settled that an act of Congress m'ay supersede a prior treaty, and that any questions that may arise are beyond the sphere of judicial cognizance, and must be met by the- political department of the government” — citing Thomas v. Gay, 169 U. S. 264, 271, 18 Sup. Ct. 340, 42 L. ed. 740.
*354In U. S. v. Pelican, 232 U. S. 442, 447, 34 Sup. Ct. 396, 399 58 L. ed. 676, the court said:
“That the lands, being so held, continued to be under the jurisdiction and control of Congress for all governmental purposes, relating to the guardianship and protection of the Indians, is not open to controversy.”
In Williams v. Johnson, 239 U. S. 414, 36 Sup. Ct. 150, 60 L. ed. 358, the court said:
“It has often been decided that the Indians are wards of the nation and that Congress has plenary control over tribal relations and property and that this power continúes after the Indians are made citizens, and may be exercised as to restrictions upon alienation.”
In Brader v. James, 246 U. S. 88, 38 Sup. Ct. 285, 62 L. ed. 591, the court distinguished cases concerning the rights of Indians who “had been given full ownership with all the rights which inhere in ownership in persons of full legal capacity” from the rights of tribal Indians, saying:
“Those decisions do not place limitations upon the right of Congress to deal with a Tribal Indian whose relation of ward to the government still continues, and concerning whom Congress has not evidenced its intention to release its authority.”
In Nadeau v. Union Pac. R. Co., 253 U. S. 442, 40 Sup. Ct. 570, 64 L. ed. 1002, an opinion handed down June 7, 1920, the court said (the italics are ours) :
“It seems-plain that, at least until actually allotted in severalty -[1864,] the lands were but part of the domain held by the tribe under the ordinary Indian claim — the right of possession and occupancy — with fee in the United States. Beecher v. Wetherby, 95 U. S. 517, 5125, 24 L. ed. 440. The power of Congress, as guardian for the Indians, to legislate in respect of such lands is settled. Cherokee Nation v. Southern Kansas Railway Co., 135 U. S. 641, 653, 10 Sup. Ct. 965, 34 L. ed. 295; United States v. Rowell et al., 243 U. S. 464, 468, 37 Sup. Ct. 425, 61 L. ed. 848; United States v. Chase, 245 U. S. 89, 38 Sup. Ct. 24, 62 L. ed. 168.”
In U. S. v. Rowell, 343 U. S. 464, 37 Sup. Ct. 425, 61 L. ed. 848, the court said:
“Congress was here concerned with the affairs of Indians *355whose tribal relation had not been dissolved — -Indians who were still wards of the United States and entitled to look to it for protection. The plan of giving them individual allotments in the reservation theretofore established as a tribal home and of converting the surplus lands into interest-bearing funds was not theirs. But it was obligatory on them, because it was adopted by 'Congress in the exercise of its control over them. As in other instances, the wish of the ward had to yield to the will of the guardian. And 'Congress was free to exert this guardianship in any manner which it deemed appropriate, and to adjust its action to new or changing conditions, so long as no fundamental right was violated.”
It is the view of Judges PO'DDEY and WHITING that an estate in land was vested in the allottee by the so-called trust patent, and therefore (in the language of U. S. v. Rowell, supra) that “a fundamental right was violated” by the Secretary of the Interior, if our statement of the law in Daugherty v. McFarland is correct. In the first place, the so-called “trust patent” was not a patent at all, but was a mere declaration of trust. U. S. v. Rickert, 188 U. S. 432, 436, 23 Sup. Ct. 478, 47 L. ed. 532. It was merely an “allotment certificate.” Monson v. Simonson, 231 U. S. 341, 345, 34 Sup. Ct. 71, 58 L. ed. 260.
Judge WHITING contends that the allottee was vested with “an inheritable equitable fee estate,” and that “neither Congress nor -any one acting under any authority granted by Congress could divest such heir or -heirs of such estate.” Yet it is provided in the Act of June 25, 1910, c. 431, § 1 (section 4226, U. S. Comp. St.), that in case the Secretary of the Interior finds that one or more of the heirs of an allottee are incompetent he may sell the whole land, viz. the interest of the incompetent heir and the interest of the competent heir, and “upon payment of the purchase price in full the 'Secretary of the Interior shall cause to be issued to the purchaser a patent in fee of such land.” There is no provision for a deed by the heirs. The title passes by the patent. Such a provision is scarcely consistent with Judge WHITING’S denial of power in Congress, but we have discovered no decision of the 'Supreme -Court denying such congressional authority. Why, then, did not Congress have power to author*356íze the title to pass by mere approval of a deed under the provision of the Act of 'May 27, 1902?
Judges POLLEY and WHITING analyze the decision in U. S. v. Chase, 245 U. S. 89, 38 Sup. Ct. 24, 62 L. ed. 168, upon which we in part relied in Daugherty v. McFarland. They seek to show that a different interest in land was vested in the allot-tee under the Omaha treaty than w'as allotted under the General Allotment Act. For convenience of comparison we submit the pertinent paragraph's of each, the language in the latter being precisely the same as in the Sioux Allotment Act of March 2, 1889:
Omaha Treaty
“Said division and assignment of lands to the Omahas in severalty shall be made under the direction of the -Secretary of the Interior, and when approved by him, shall be final and conclusive. Certifi cates shall be issued by the Commissioner of Indian Affairs for the tracts so assigned, specifying the names of the individuals to whom they have been assigned respectively, and that they are for the exclusive use and benefit of themselves, their heirs, and descendants; and said tracts shall not be alienated in fee, leased, or otherwise disposed of except to the United States or to other members of the tribe, under such rules and regulations as may be prescribed by the 'Secretary of the Interior, and they shall be exempt from taxation, levy, sale, or forfeiture, until otherwise provided for by Congress.” 14 Stat. 668, art. 4.
General Allotment Act.
“That upon the approval of the allotments provided for in this act by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the allottees which patents shall be of the legal effect, and declare that the United States does and will hold the lands thus allotted for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs according to the laws of the state or territory where such land is located, and that at the expiration of said period the United ’States will convey the same by patent to said Indian, or his heirs, as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance, whatsoever.” 25 Stat. 891, c. 405. § ii-
*357Of the Omaha treaty provision Mr. Justice Van Devanter said that the allotment amounted only to “an apportionment of the tribal possessory right.” U. S. v. Chase, supra. Of the General Allotment Act Mr. Justice Harlan said:
“If, as is undoubtedly the case, these lands are held by the United States in execution of its plans relating to the Indians — ■ without any right in the Indians to make contracts in reference to them or to do more than to occupy and cultivate them — until a regular patent conveying the fee was issued to the several allottees, it would follow. * * * ” U. S. v. Rickert, supra.
See, also, Bond v. U. S. (C. C.) 181 Red. 613, an opinion cited with approval in Hallowed v. Commons, 239 U. S. 506, 36 Sup. Ct. 202, 60 L. ed. 409.
It therefore seems- to me that, so far as the interest of the allottee in the land is concerned each of such allotments was of the same force and effect. I have 'been unable to find anything in any decision of the Supreme 'Court which repudiates the above statement of Mr. Justice Harlan, except the obiter statement in McKay v. Kalyton, 204 U. S. 458, 27 Sup. Ct. 346, 51 L. ed. 566, adverted to in Daugherty v. McFarland and in the opinions of Judges PODDEY and WHITING herein. However, in Egan v. McDonald, 246 U. S. 227, 38 Sup. Ct. 223, 62 L. ed. 680, the court said of McKay v. Kalyton:
“It decides merely that the Act of August, 15, 1894, e. 290, 28 Stat. 286, which gave to Indians, who claimed to be 'entitled to an allotment, the right to litigate their claim in a federal court, did not confer the right to litigate in state courts.”
An apparent contradiction to the principle we declared in Daugherty v. McFarland, and which I am now contending for, may be found in Choate v. Trapp, 224 U. S. 665, 32 Sup. Ct. 565, 56 L. ed. 941, where it was held that the Congress could not repeal the exemption from taxation during the contracted period, viz. “while the title remains in the allottee;” but that case related to lands the whole title to which, both legal and equitable, had. been vested in the allottee subject only to the restriction against alienation. Judge WHITING urges that Jones v. Meehan, 175 U. S. 1, 20 Sup. Ct. 1, 44 L. ed. 49, sustains his position, but there the interest of the Indian in the land was the same' as in Choate v. Trapp. It therefore seems clear to me *358that while, as against everybody but the federal government, the interest of the allottee under the so-called trust patent had the attributes of an equitable estate, yet as between the federal government and the allottee it was only an eqiuitable interest; in fact, a mere right of possession, because the Congress in its wise discretion might lawfully deprive the Indian of that interest if it thought the best interests of the Indian or the tribe demanded it. 6 U. S. Ency. 920; Lone Wolf v. Hitchcock, 187 U. S. 553, 564, 23 Sup. Ct. 216, 47 L. ed. 299. I therefore conclude that the Congress had the power to authorize the (Secretary of the Interior to divest the governmental legal title and the equitable interest of the allottee here in question.
The next question is: Did the Congress so authorize the Secretary of the Interior by the Act of May 27, 1902, c. 888, § 7 (U. iS. Comp. St. § 4223). That section authorized a sale by the heirs of a deceased allottee and provided:
“But all such conveyances shall be subject to the approval of the Secretary of the Interior, and when so approved shall convey a full title to the purchaser, the same as if a final patent without restriction upon the alienation had been issued to the allottee.”
If a final patent without restriction had been issued to the allottee, there can be no doubt but that the whole title, legal and equitable, to the whole tract would have vested in the patentee. When the act of Congress makes a conveyance, when approved by the Secretary, of like effect as a final patent, the act of Congress evinces to my mind an intent to vest in the Secretary the power, by the approval, to divest the governmental legal title and the Indian equitable title or interest, and to invest the whole in the grantee of the approved deed. It is a necessarily implied power.
Judge WHITING holds that where, as in this case under the admitted facts, the grantor was not an heir of the allottee the approval of the deed by the Secretary of the Interior was of no effect whatever. In another part of the opinion he holds that a deed so approved would “(a) convey such, estate and only such estate as the grantor was possessed of, and (b) pass the legal title to such estate.” In other words, he would hold that if there are in fact three heirs of the deceased allottee, and *359one of them, purporting to be the sole heir, conveys the property, and the deed is approved by the Secretary, the only equitable estate which passed was one-third of the whole equitable estate, and the only legal estate that passed was one-third of the legal estate. .But in such case what would be the extent of federal control? Would the conveyed one-third interest cease to be under federal control, and would the unconveyed two-thirds interest still remain under federal control? The government would have received the money for the sale of the whole land, presumptively its full value. Was it the purpose and intent of Congress that in such case there should be a tenancy in common between the United States and the grantee? Was it the intent of Congress that the government should take the- whole proceeds of sale and still have control of the whole land (under the admitted facts of the present case), or still have control of the undivided two-thirds of the land in the case of the above illustration? How about the taxes upon this land that have been levied since T905? Have they been levied unlawfully.?
Judge WHITING’S' present position directly challenges the decision .of this court in Egan v. McDonald, and indirectly the decisions in Tripp v. Sieler and Oldham v. Nelson, because all those decisions assume, and the first one declares, that the whole legal title that was in the government passed to the grantee by the approval. If the whole legal title did not pass by the approval, then each of those three decisions is wrong, and in Egan v. McDonald the state court, in the action to quiet title begun after the approval, had no jurisdiction over such portion of -the land, if any, as was not conveyed by the approved deed, and no jurisdiction over omitted heirs, if any there were. It seems to me that it is entirely logical to say that, if the approval by the 'Secretary of the Interior removed the land from federal control, then the necessary effect of the approval was to pass full title. Conversely, if full title was not passed by the approval, then federal control would not cease. If such final patent had been issued to the allottee, governmental control of the land would have vanished, and the patent w¡oul'd have been impervious to collateral attack. King v. Andrews, so C. A. 29, 111 Fed. 860. The deed of the alleged heir and its approval by the Secretary being of like force and effect as such final patent, it must follow that govern*360mental control of the land ceased, and the deed and its approval are not open to collateral attack. The remedy of the present claimant is to the fund.
Judges POEEEY and WHITI'NlG rely on the decision of Judge Brewer in Richardville v Thorp, 28 Fed. 52, as denying the asserted authority of the Secretar)' of the Interior. The federal act referred to in that opinion is not cited, but it must have been an act passed prior to 1857, because the patentee died in that year. It does, however, clearly appear that the fee-simple title had vested in the patentee P’a-pee-ze-sa-wah. That decision is not persuasive as to the power of the Secretary of the Interior under the Act of May 27, 1902.
Again, it seems to me that by approving our decision in Egan v. McDonald the Supreme Court of the United States in Egan v. McDonald, 246 U. S. 227, 38 Sup. Ct. 223, 62 L. ed. 680, must be held to have approved the view of this court that by the approval of the deed federal control of the land ceased, even though in their opinion they say that we held that—
“the burden was upon the plaintiff to establish the fact, if it was such, that there were other heirs, and that the mere suggestion in argument that there may have been some additional heirs does not cast such a suspicion upon the title as to render it unmerchantable.”
Nothing of that kind can be found in our opinion in that case. That was the holding in Tripp v. Sieler. In Egan v. McDonald we held that the state court had jurisdiction of the action to quiet title, because the approval of the deed terminated fereral control, and by reason-of the judgment in such action the title was marketable. I therefore am of the opinion that the Congress did by the Act of May 27, 1902, authorize the Secretary of the Interior to divest the governmental legal title and the equitable interest of Paul Gondrow in the land in question.
Judges MoCOY and SMITH think that, because the approval was accomplished by extrinsic fraud, the approval was a nullity. They base their concurrence in reversal upon a ground not presented to the trial court, rior presented nor argued in the briefs. The effect of their holding is to reverse the decision in Daugherty v. McFarland in so far only as fraud appears in the securing of the approval, but the ultimate effect of their view is to unite *361them with the position of Judge 'WHITING; that is, that the approval 'in this case ¡was a nullity. That being the case, the majority of this court now hold that upon the facts as they now appear in this case there has never been any removal of federal control of this land, and the rights of the plaintiff are as they were before the deed was approved by the Secretary of the Interior. The land is still held in trust by the federal government. Under such a state of facts and under that view of the law, the trial court was without jurisdiction to entertain this action, and this cause should be remanded, with directions to dismiss the action, if the facts sustaining extrinsic fraud appear upon the trial. That must be the result, because by the decision in McKay v. Kalyton, 204 U. S. 456, 27 Sup. Ct. 346, 51 L. ed. 566, a state court has no jurisdiction of controversies involving a determination of title, and incidentally the right of possession of Indian allotments, where the same are held in trust by the United States.
It may be, as suggested by Judge McCOY, that since the Act of June 25, 1910, c. 431, § 1, the federal Circuit (now Disttrict) ’Court would have no jurisdiction of this action. If so-, under the theory of Judges McCOY, SMITH, and WHITING, that the approval was a nullity, the remedy of plaintiff will lie only before the Secretary of the Interior, unless some act of Congress can be found giving to state courts such jurisdiction. I am unable to find such act. Section 6 of the General Allotment Act, did, according to Mr. Justice Brewer’s interpretation of it in Re Heff, 197 U. S. 488, 25 >Sup. -Ct. 506, 49 L. ed. 848, give the state courts such jurisdiction; but that decision was squarely overruled in U. S. v. Nice, 241 U. S. 591, 36 Sup. Ct. 696, 60 L. ed. 1192. Moreover, in section 4 of the Enabling Act it was required that the -Constitution of South Dakota should contain the following provision, which should be irrevocable without the consent of the United 'States and the people of South Dakota:
“That the people inhabiting said proposed states do agree and declare that they forever disclaim all right and title * * * to all lands * * * owned or held by any Indian or Indian tribes, and that until the title thereto shall have been extinguished by the United States * * * said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States.”
*362The 'Constitution of South Dakota did make the above declaration in article 22 and in article 26, § r8. Therefore under the decisions in McKay v. Kalyton and U. S. v. Nice, and the above constitutional provision, the state courts do not have jurisdiction of actions involving a determination of title and the right of possession of Indian allotments, when the same are held in trust by the federal government.
In my opinion Judge MdCO'Y has given the clause “until the title thereto shall have been extinguished toy the United .States” entirely to narrow a meaning. In my opinion the title there referred to embraces as well the title by «which the United States holds allotted lands during the trust period. U. S. v. Ewing (D. C.) 47 Fed. 809; U. S. v. Rickert, 188 U. S. 432, 23 Sup. Ct. 478, 47 L. ed. 532; Williams v. Johnson, 239 U. S. 414, 36 Sup. Ct. 150, 60 L. ed. 358. The clause in said section of the Enabling Act, “held «by an Indian or Indian tribes,” alone prevents the interpretation given by Judge McCOY. The citizenship of Indian allottees conferred «by the act of Congress did not operate to withdraw them nor their property from the control and protection of the federal government. U. S. v. Pearson (D. C.) 231 Fed. 270. Nor do I discover in Felix v. Patrick, 145 U. S. 317, 12 Sup. Ct. 862, 36 L. ed. 719, any support for Judge McCOY’S position. The bill in that case, filed by the heirs of a 'Sioux Indian, to whom land scrip had been issued in 1857, sought to have defendants declared trustees of lands entered pursuant to such scrip. The court said of the Indian plaintiffs, in support of its holding of laches:
“It is scarcely necessary to say in this connection that, while until this time they were not citizens of the United States, capable of suing as such in the federal courts, the courts of Nebraska were open to them, as they are to all persons, irrespective of race or color.”
Of course the courts of 'South 'Dakota as Well as Nebraska, are open to all persons, irrespective of race or color; but such-courts are not necessarily open to all causes of action by ail persons. When the 'Congress, in it capacity as guardian of a race in a state of pupilage and dependency, retained jurisdiction in itself over the lands of Indian and Indian tribes during a specifiied period, and when the state of South Dakota by solemn *363compact assented thereto, it is, in my opinion, presumptuous to say that the courts of this state have jurisdiction of controversies concerning such lands during such period.
It is urged by appellant that equity demands the recognition of title in the present plaintiff, Mary Highrock. The land was sold for its full value, and if the funds were given to one not entitled to them, the 'Congress, in its capacity of guardian, is morally obligated to cause her to be reimbursed, and w'e must presume that the Congress will do so, if they find that she is the real heir. It seems to me that the equities are all with the defendant.
Upon a thorough review of the statutes and authorities bearing upon this case, and the briefs of counsel herein, I still adhere to the opinion in 'Daugherty v. McFarland. 'Nothing that is .urged to the contrary has shaken my view as to its correctness. I therefore think that the judgment and order -appealed from should be affirmed.