(dissenting). I cannot agree with the majority of the court in the conclusions they arrive at in this case. There is no contention that the conveyance by the Kickapoo Indian, Cadue, was other than a fair transaction, for a full consideration ; indeed, by the recitals in the two deeds of conveyance, the deed made, *20to Martin and Cole was for a consideration of two hundred dollars more than the later deed. The provision' of the treaty is that the Indian shall apply to the President for a patent, but before making application to the President for his patent he shall appear before the United States District Court for the District of Kansas, and prove to the satisfaction of that court that he is a competent person — that he no longer requires the guardianship of the Government for his protection. Cadue had done this before he made the deed to Martin and Cole. That court, given special jurisdiction for that purpose, had adjudged him to be a competent citizen, a competent person, entitled to citizenship of the United States, and had administered the oath thereof to him.
The treaty conferred upon this Indian, and all of the Indians in like situation, as a right, an absolute and material right, the liberty of conveying his property as he saw fit. He had shown his capacity to become a citizen and had been adjudged to have the capacity to manage his own affairs. Conferring citizenship is a judicial act and not a ministerial one. The President could not confer citizenship. It will scarcely be contended that it was optional with the President to recognize the judgment of the court.
The language of the treaty is no stronger than the language of the homestead law — that land acquired under it shall be inalienable until the patent issues ; and the only question in this case is as to the competency of the Indian to make the deed. If he was competent, if he had a right to the title, if he had been adjudged to have the right, he was capable of making such a contract as would raise an estoppel against him. The treaty itself, and the action of the departments of the Government, treat him as a com*21petent citizen after tlie judicial determination. I say he had a right to have that patent, upon showing to the court his competency. It was not intended by Congress or by the Indians entering into this treaty, that the President should have power to annul the action of the court. The Indian had done everything that was necessary for him to do to establish that right. The decree of the court was the only evidence contemplated by the act of Congress or by the treaty, upon which the President should act. Being competent to make the deed, having acquired by his act a right to the patent, the title thereunder passed to his grantees, Martin and Cole, by way of relation and estoppel.
I am not unmindful of the fact that Judge Foster of the United States District Court, sitting upon the Circuit bench, decided to the contrary ; but while I have high regard for his ability, I do not think he gave to the case that careful consideration which is usual with him. The authorities cited at the conclusion of his opinion, and copied in the opinion of the majority of this court, when examined, are to the effect that an Indian, while under the inhibition of the Act of Congress or the treaty to alienate his land, cannot make a valid deed ; that any deed made by him is absolutely void and cannot be the foundation of an estoppel.
Mr. Justice Field, in the case of Gibson v. Chouteau, (13 Wall. 101), referring to this doctrine of relation and estoppel, in connection with the ruling of the Supreme Court of the State of Missouri in that case, says : “ The error of the learned court consisted in overlooking the fact that the doctrine of relation is a fiction of law adopted by the courts solely for the purposes of justice, and is only applied for the security and pro*22tection of persons who stand in some privity with the party that initiated proceedings for the land,- and acquired the equitable claim or right to the title.”
In the case at bar, Martin and Cole purchased this land and, under the evidence contained in the record, paid a full value therefor. Their deed was recorded. Cadue had initiated proceedings for the land — had acquired the equitable claim and a right to the title. They were in privity with him by reason of the deed, and justice demands the application of this rule of relation in this case, if in any case it were possible. This is not a controversy between the Indian allottee and his grantee before restriction of alienation had been removed. Nor can this allottee be in any manner benefited by holding that his first, deed waá invalid. A decision to that effect can only result in benefit to the subsequent purchasers, with notice of the rights of Martin and Cole, and to their grantees, and to the detriment of the plaintiff in error in this case, whose mortgage was recorded at the time they took the deed from Cadue.
The Supreme Court of this State, in Oliver v. Forbes (17 Kan. 130), says : “And it is a general rule of law, that when a patent is issued it relates back to the earliest moment when it ought to have been issued.” Now the earliest moment when this patent ought to have been issued was when the allottee complied with the provisions of the treaty and the Act of Congress of August 4, 1886 (24 U. S. Stat. at Large, 219), prior to the making of the deed to Martin and Cole. The case of Oliver v. Forbes arose under the provisions of the treaty between the Government and the Pottawatomie Indians, which is almost if not verbatim, the same as the treaty under consideration.
Counsel for defendants in error refer to the case of *23Jenkins v. Collard (145 U. S. 546) . This case grew out of a case of confiscation under the act of Congress of July 17, 1862 (12 U. S. Stat. at Large, 589). It was held that a person whose estate was confiscated under this act was without power of alienation of any interest in the land confiscated. The inhibition against alienation was just as binding in his case as in that of a Kickapoo or any other Indian. The person was an incompetent person by reason of haying taken part in the rebellion against the Government. The inhibition was for a different reason, only. The court held, however, that a deed made while Jenkins was laboring under this disability imposed by the Act of Congress, could, by covenants of seizin and title, estop him and his heirs from claiming or asserting any title to the confiscated estate.
Upon the question of the right of the Kickapoo Indian, Cadue, to this patent upon making this proof and taking the oath of allegiance, see Supervisors v. United States (4 Wall. 435). Under the rule laid down in this case, the President was by law absolutely required to issue this patent when Cadue appeared before the Judge of the United States District Court for the District of Kansas and made the proof provided for in article 3 of the treaty. It is evident, from this provision of the article, that it was intended that he should act, and act solely, upon the determination of the United States District Court. Newkirk v. Marshall, 35 Kan. 77.
It follows that the court erred in rejecting the deed of Cadue to Martin and Cole and the subsequent conveyances down to the mortgagor of the plaintiff in error, and erred in holding that the deed made by Cadue on October 20, 1886, passed no title and was a void deed.