On Motion for Rehearing.
Mr. Chief Justice Mooredelivered the opinion.
3. A petition for a rehearing having been filed, it is contended that this suit was instituted to determine, in effect, the title and right to the possession of public land, thereby necessarily rendering the United States a party; but that this cannot be done by a state court, and hence the decree rendered herein is coram non judice and void. *128The legal principle now insisted upon was not discussed by counsel at the trial in this court, but, as jurisdiction of subject-matter cannot be conferred by consent, is never waived (B. & C. Comp. § 72), and may be invoked for the firsttime on appeal (Evarts v. Steger, 5 Or. 147), it becomes necessary to consider the question presented. -
4. The act of Congress approved March 3, 1885 (23 Stat. U. S. 340, c. 319, § 1), providing for the allotment of lands in severalty to the Indians residing upon the Umatilla Reservation, in this State, and prescribing the quantity to be distributed to each person of the various classes, contains the following clause : “ The President shall cause patents to issue to all persons to whom allotments of lands shall be made under the provisions of this act, which shall be of the legal effect, and declare that the United States does and will hold the land 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 of Oregon, 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; provided, that the law of alienation and descent in force in the State of Orégon shall apply thereto after patents have been executed, except as herein otherwise provided.” An examination of the language quoted will show that, though the issuance of two patents is contemplated, it is evident that the first specified in the act was intended to be nothing more than a certificate or written memorandum to evidence the selection of the land allotted-and to declare the trust reserved : United States v. Rickert, 188 U. S. 432 (23 Sup. Ct. 478).
5. In our opinion, the word “descent” in the clause stipulating “ that the law of alienation and descent in force *129in the State of Oregon shall apply thereto after patents have been executed,” etc., was intended to render the transmission of an estate by inheritance applicable to the land allotted to an Indian from the time such certificate was issued. The word “ alienation ” usually means the act by which the title to real property is voluntarily transferred by one person to and accepted by another, and such act is generally accomplished by the execution of a deed or of á will: Burbank v. Rockingham, etc. Ins. Co. 24 N. H. 550 (57 Am. Dec. 300). As an Indian cannot voluntarily transfer the title to the land allotted to him until the final patent is issued, it is evident that the word “alienation” was not used in the-act under consideration in its technical sense.
6. It is quite probable, however, that until the title is transferred an Indian allottee has no estate in the premises, and that his heirs take as donees of the United States, and not by inheritance from him. The act having provided that after the expiration of twenty-five years from the time of the allotment “the United States will convey the premises by patent” to the allottee or his heirs “in fee,” etc., the final patent, when issued, will invest the allottee with an estate in the land that he can “ alienate” or “ devise,” and, as these quoted words were not necessary in the grant of a fee, they, in our opinion, are limited to the first-patent issued.
7. The law of descent of this State being applicable on the death of an Indian allottee after the primary patent or certificate is issued, has a state court jurisdiction of the subject-matter, and is its decree determining the heirs in such cases valid ? So long as the United States holds the lands in trust for Indian allottees, the title thereto remains in the general government (United States v. Rickert, 188 U. S. 432, 23 Sup. Ct. 478), and the question as to whether *130or not a final patent therefor shall issue is to be determined by the Secretary of the Interior, thereby depriving state courts of all jurisdiction of the subject-matter : Mosgrove v. Harper, 33 Or. 252 (54 Pac. 187); Moore v. Robbins, 96 U. S. 530; United States v. Schurz, 102 U. S. 378. If this were a suit to enforce the trust reserved, the United States would be an indispensable party (Act Cong. Feb. 6, 1901, 31 Stat. U. S. 760, c. 217; 3 Fed. Stat. Ann. 503, 504, §§1,2); Pomeroy, Remedies, § 356; Tucker v. Silver, 9 Iowa, 261; Hy-yu-tse-mil-kin v. Smith, 194 U. S. 401, 24 Sup. Ct. 676), and as this cannot be done by a state court the decree rendered herein would be void. The determination by a state court of the heirs of a deceased Indian allottee is not, in our opinion, an execution of the trust: Bird v. Wimyer, 24 Wash. 269 (64 Pac. 178); Bird v. Terry (C. C.) 129 Fed. 472. The finding of such fact is not an interference with the primary disposal of the soil, but is in aid of the general government in protecting the rights of its cestui que trust. Thus in Kitcherside v. Myers, 10 Or. 21, it was held that where a person had taken the initiatory steps to secure the title to public land, and received from the proper officers the necessary evidence thereof, he was entitled to the possession of the premises selected, and for any interference therewith by another without legal title or equal equitable claim a state court, upon application of the entryman, would put him in possession of his rights. The rule is settled in this State that a person entitled to the possession of land the title to which is in the United States will be protected in his right by our courts, when his possession has been unlawfully disturbed by another : Jackson v. Jackson, 17 Or. 110 (19 Pac. 847); Hindman v. Rizor, 21 Or. 112 (27 Pac. 13); Allen v. Dunlap, 24 Or. 229 (33 Pac. 675); Bishop v. Baisley, 28 Or. 119 (41 Pac. 936) ; Pacific Live Stock Co. v. Gentry, 38 Or. 275 (61 Pac. 422, 65 Pac. 597); Browning v. Lewis, 39 *131Or. 11 (64 Pac. 304); Moore v. Halliday, 43 Or. 243 (72 Pac. 801, 99 Am. St. Rep. 724, and note). In the case at bar Joe Kalyton was entitled, during his lifetime, to the possession of the land allotted to him, and upon his death his heirs, under the law of descent in this State, succeeded to his right in the premises. This possession having been disturbed by one who is not his successor in interest or estate, according to such law, the rule established in this State makes it encumbent upon our courts, in aid of the beneficent policy adopted and pursued by the general government in caring for the Indians and in trying to promote their civilization, to declare by solemn degree who is his legal heir.
It is argued, however, that, unless the Indian agent in charge of the Umatilla Reservation voluntarily surrenders to the plaintiff the possession of the premises allotted to the deceased, it will be impossible to enforce the decree herein. It is the duty of the court to declare the law involved in causes submitted, irrespective of the consequences that may result therefrom, and, having faithfully discharged that obligation according to law, as we understand it, we are compelled to adhere to the opinion heretofore announced, leaving the enforcement of the decree to the person in whose favor it was rendered. It follows that the petition should be denied, and it is so ordered.
Rehearing Denied.