(dissenting).
Admittedly, there is no inhibition against the asserted power of the State of Oklahoma to tax the transmission of the Indian estates here involved, if the property passes under the laws of the State of Oklahoma, but the majority hold that the Indian estates here involved pass under Federal law and not under the laws of Oklahoma. This conclusion is reached by force of Childers v. Beaver, 270 U.S. 555, 46 S.Ct. 387, 70 L.Ed. 730, which considered the same question under an entirely different Federal statute relating to the disposition of Indian estates. The Act of June 25, 1910, 36 Stat. 855, as amended February 14, 1913, 37 Stat. 678, upon which Childers v. Beaver, supra, is predicated, relates to *639Indians other than members of the Five Civilized Tribes, and specifically exempts from its application members of those tribes.
Under the express provisions of this Act, supra, “it was the duty of the Secretary of the Interior to determine the heirs according to the state law of descent”, but Congress provided how the lands should descend and directed how the heirs should be ascertained. The law of descent in Oklahoma is applicable only insofar as it is made a criterion for the guidance of the Secretary of the Interior, whose administrative duty it is to approve the execution of a will by an Indian ward, or to disapprove the same without regard to the law of Oklahoma. It is only after the disapproval of the will that the Secretary of the Interior is directed to determine heirship in accordance with the laws of Oklahoma. In no event does the law of Oklahoma have any operation or effect upon the execution of the will or the validity thereof. Neither are the courts of Oklahoma utilized to determine heirship in the event its laws become relevant. But the determination of heirship is an administrative function entrusted to the Secretary of the Interior, guided by local law. The probate courts of Oklahoma have no jurisdiction over the will or the determination of the heirship. Blanset v. Cardin, 256 U.S. 319, 41 S.Ct. 519, 65 L.Ed. 950; Hanson v. Hoffman, 10 Cir., 113 F.2d 780.
But with respect to members of the Five Civilized Tribes, the Congressional policy as expressed by numerous statutes is entirely different. The history relating to the application of the laws of Oklahoma to the Five Civilized Tribes, including the law of descent, is well stated by the majority and need not be repeated here. It is sufficient to say that long prior to statehood, the prevailing law in the Indian Territory was applicable uniformly to the Indian as well as the white man. The Indian citizen was equally entitled to its protection and equally amenable to its processes.
With exceptions not material here, a member of the Five Civilized Tribes is authorized to dispose of his or her estate on the same footing as any other citizen. They are authorized to dispose of their estates by will in accordance with the laws of Oklahoma and not in derogation thereof. The law of Oklahoma is not merely a guide or criterion, but it creates the right and provides the means and manner of disposition. Jefferson v. Fink, 247 U.S. 288, 38 S.Ct. 516, 62 L.Ed. 1117; Blundell v. Wallace, 267 U.S. 373, 45 S.Ct. 247, 69 L. Ed. 664; see also Caesar v. Burgess, 10 Cir., 103 F.2d 503.
In my judgment, the valid distinction made clear by a comparison of Blanset v. Cardin, supra, and Blundell v. Wallace, supra, furnishes the basis for the denial of the taxing power of the state in Childers v. Beaver, supra, and the sanction of that power under the attendant circumstances. In Blanset v. Cardin, supra, the property was transmitted under and by virtue of an Act of Congress which provided the means and manner by which the property would pass, and its passing depended upon the administrative determination of the Secretary of the Interior, and not the courts of Oklahoma. The law of Oklahoma had relevancy only as a guiding principle which acted only by force of the administrative agency empowered to administer it. While in Blundell v. Wallace, supra, the laws of Oklahoma and the courts which interpreted them were made the arbiters of the right to direct the testamentary disposition, and the law of descent determined its disposition. As respects members of the Five Civilized Tribes, the right to dispose of their property by will is created by the law of Oklahoma. The executed will is valid according to Oklahoma law and it is enforceable only in the courts of that state. In the absence of a will, the right to inherit is created by Oklahoma law and is enforceable in its courts and not elsewhere or otherwise. Therein lies the incidence of the tax and the power to enforce it.
It is true that the laws of Oklahoma are made applicable and control the disposition of the property in virtue of a Congressional will, but I do not suppose that because the state law is made operative by will of Congress that the force of the law is any more impotent than if it had been derived from any other source from which the state exercises its sovereign powers.
Here the State of Oklahoma has by the force of its uniform laws as a sovereign state afforded a protection and conferred benefits for which it may exact a uniform tax. These estates are not tax-free in-strumentalities of the Federal government, and the Federal government may and has exacted a similar tax. Landman v. Commissioner, 10 Cir., 123 F.2d 787. The state act imposing the tax does not expressly or inferentially exempt from its scope the *640transmission of Indian estates. Neither has the Federal government expressly or inferentially exercised its indubitable power to exempt the transmission of the estates from the scope of the state taxing act. Nothing stands in the way of the exaction of the tax except the question of whether the property passes under the laws of the state. In my judgment, it does and the tax should be sustained.