(dissenting in part). The restrictions upon alienation of the oil and gas deposits in the homestead of Emma Derrisaw, a full-blood citizen of the Creek Nation, the allottee of the land in question, if removed at all, other than by her death, were removed by the approval of the oil and gas mining lease of October 3, 1912, by the Secretary of the Interior on November 9, 1912. Admitting for the present that the Secretary of the Interior, in view of section 6 of the act of Congress approved May 27, 1908 (35 Stat. c. 199, p. 315), was thereafter authorized to approve such leases to effect the removal of such restrictions, the question is: To what share, if any, of the royalties in the custody of the superintendent of the disbursing agency of the Five Civilized Tribes arising from the lease of such premises is the minor defendant Julia Willingham now entitled, she being the only child of Emma Derrisaw deceased intestate, bom since March 4, 1906, *52and restrictions upon the alienation of her homestead not having been removed prior to her death ?
It seems to he conceded that section 9 of the act of May 27, 1908, controls the determination of this question. That section in full reads in this way:
“Sec. 9. That the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allottee’s land: Provided, that no conveyance of any interest of any full-blood Indian lieir in such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee: Provided further, that if any member of the. Five Civilized Tribes of one-half or more Indian blood shall die leaving issue surviving, born since March fourth, nineteen hundred and six, th© homestead of such deceased allottee shall remain inalienable, unless restrictions against alienation are removed therefrom by the Secretary of the Interior in the manner provided in section one hereof, for the use and support of such issue,, during their life or lives, until April twenty-sixth, nineteen hundred and thirty-one; but if no such issue survive, then such allottee, if an adult, may dispose of his homestead by will free from all restrictions; if this be not done, or in the event the issue hereinbefore provided for die before April twenty-sixth, nineteen hundred and thirty-one, the land shall then descend to the heirs, according to the laws of descent and distribution of the state of Oklahoma, free from all restrictions: Provided further, that the provisions of section twenty-three of the act of April twenty-sixth, nineteen hundred and six, as amended by this act, are hereby made applicable to all wills executed under this section.”
Other provisions of the act of May 27, 1908, that may bear upon this question are:
Section 2 as set forth in the majority opinion further provides: “That the jurisdiction of the probate courts of the state of Oklahoma over lands of minors * * * shall he subject to the foregoing provisions. * * * ”
“Sec. 5. That any attempted alienation or incumbrance by deed, mortgage, contract to sell, power of attorney, or other instrument or method of incumbering real estate, made before or after the approval of this act, which affects the title of the land allotted to allottees of the Five Civilized Tribes prior to the removal of restrictions therefrom, and also any lease of such restricted land made by violation of law before or after the approval of this act shall be absolutely null and void.”
“See. 6. That the persons and property of minor allottees of the Five Civilized Tribes shall, except as otherwise specifically provided by law, be subject to tbe jurisdiction of the probate courts of the state of Oklahoma.”
And further provisions of this section empower the Secretary of the Interior, under rules and regulations prescribed by him, to exercise supervision and control over all guardians of minors, to the end that their estates in restricted and other lands shall be preserved and their property protected for the benefit of said minors, and the probate courts may in their discretion appoint any representative of the Secretary as guardian for such minors, without fee or charge.
Upon the death of Emma Derrisaw intestate (the restrictions against alienation of the homestead not having been previously removed, and issue born to her since March 4, 1906, surviving her), section 9 of the act conferred upon her minor child, Julia Willingham, who was born since March 4, 1906, the sole right to the use of the homestead for her support until April 26, 1931, unless she should die prior to that date, •when her right would cease and the land then descend to the heirs of her mother Emma Derrisaw Willingham. The minor Julia is still liv*53lug, or was at the time of the hearing in the court below, and that court held, as I read its opinion, that, upon the death of Julia’s mother intestate, this minor became entitled only to such use of the land as she might make of it, with the restrictions against its alienation still existing; that the use contemplated by the statute did not permit the lease of the laud for oil and gas mining purposes, because that would amount to a disposition of that part of the corpus of the property and prevent its going to the heirs of the allottee at tho expiration 'of the minor’s term as granted by section 9, and would in effect be a conversion for the benefit of the minor of that part of this homestead property; that the minor could not therefore rightly he allowed anything from the proceeds arising from the oil and gas mining lease for her support during the term granted by that section.
I am unable to concur in that part of the decree, for under section 9 upon the death of Emma Dorrisaw intestate all restrictions against the alienation of this homestead were removed and it then descended to her heirs under the statute of Oklahoma, subject to. tho right of her heirs born since March 4, 1906, the child Julia being the only heir so born. The restrictions against alienation it is true had not, previous to her death, been removed in the manner provided by section 1 of the act; but under section 9 all restrictions upon her laud, including this homestead, were removed by her death. The removal of the restrictions is, of course, for the purpose alone of permitting alienation of the land. United States v. Knight, 206 Fed. 145, 124 C. C. A. 211. And unless alienation is in fact made the rights of parties in the land, other than the right of alienation, it seems to me are not affected. But if it be conceded that the removal alone of the restrictions by the Secretary of the Interior can deprive the minor Julia of her right to the uso of this homestead for the purpose for which it was granted to her, clearly she could not he deprived of such right until the restrictions are so removed, which in this case was not until November 9, 1912, four-years after the death of her mother and after her right to the use thereof had fully vested in her. The clause of section 9 which reads, “unless restrictions against alienation are removed therefrom by the Secretary of the Interior in the manner provided in section one hereof,” has reference to and limits the word “alienation,” and does not affect the right in or to the land other than the right to alienate or incumber it. Emma Derrisaw died intestate in November, 1908, seised in fee of this homestead, the restrictions upon its alienation not having been previously removed, but were removed under section 9 of the act by her death. No alienation of the land, or of its oil and gas deposits, or will of Emma Derrisaw, having then been made, its descent was then cast upon her legal heirs, subject, however, to the rights of the child Julia under section 9, who was born since March 4, 1906, to its use for her support until April 26, 1931, or until her death should that occur before that date.
I am unable to bring myself to believe that the right of Julia to the use of this entire homestead property, if necessary for her support, which vested in her on the death of her mother in November, 1908, could be devested by the approval of the Secretary of the Interior four years later. Jones v. Meehan, 175 U. S. 1, 32, 20 Sup. Ct. 1, 44 L. Ed. *5449. Conceding, for the present, that under section 6 of the act of May 27, 1908, the Secretary of the Interior was authorized to approve the lease after the death of Emma Derrisaw (sections 11, 12, and 13 of article 7 of the Constitution of Oklahoma, and sections 3330, 3335, 6447, 6532, 6554, and 6569 of the Revised Laws of Oklahoma [1910], which confer upon the proper county court of the state of Oklahoma, jurisdiction of the persons and property of minors in that state), it seems clear that the right of the minor Julia to this entire homestead property, or the income from or proceeds of this homestead, for her support during the term granted by section 9, is not, and cannot rightly be, barred by the approval of the lease by the Secretary of the Interior in November, 1912. Jones v. Meehan, 175 U. S. 1, 32, 20 Sup. Ct. 1, 44 L. Ed. 49, above. If this be not true, then, if the homestead is not susceptible of use for agricultural or similar purposes, the minor would be deprived of all means of support from its use during the term for which it was granted to her. See Mallen v. Ruth Oil Company et al., 231 Fed. 845, 146 C. C. A. 41.
It also seems clear that the royalties received under this oil and gas mining lease, deposited with the disbursing agency of the Five Civilized Tribes, are rent and income from that part of this homestead, which may be rightly used for the support of this minor, and only such of the proceeds or income thereof as remains after a reasonable support has been furnished to the minor therefrom during the term of her right to the use thereof can rightly be distributed to the heirs, including' this minor, of Emma Derrisaw. The Congress, in enacting section 9 of this act, was not concerning itself with any technical definition or meaning of the estate or interest in the homestead right to' which the children of allottees of lands in the Creek Nation born since March 4, 1906, would be entitled under that section, for it grants to'such children the right to the use of such estate, whatever the legal definition of that right -may be, for their support during the term granted. In Jones v. Meehan, above, it is said, in construing any treaty between the United States and an Indian tribe, it must always be borne in mind that the treaty must be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians, citing Worcester v. Georgia, 6 Pet. 515, 582, 8 L. Ed. 483; Choctaw Nation v. United States, 119 U. S. 1, 27, 28, 7 Sup. Ct. 75, 30 L. Ed. 306; and the same rule should apply in construing the acts of Congress, since the government has adopted that method of dealing with Indians, instead of by treaty.
That the right granted is not a life estate may be admitted; but that it is a right to use it for a term of years, subject to the termination of that right by her own death, or the death testate of her mother, prior to the expiration of the term granted, cannot be doubted. The oil and gas deposits in this land are of a migratory character, and probably its principal value, and may be exhausted1 by the operation of oil and gas wells upon land adjacent or near thereto, or dissipated from other causes long before the year 1931, and thus the allottee, or upon her death her heirs, deprived of the principal value and source of revenue from this land. Mallen v. Ruth Oil Co. et al., 231 Fed. 845, 849, 146 C. *55C. A. 41, and Barnes v. Keys, 36 Okl. 6, 127 Pac. 261, 45 L. R. A. (N. S.) 178, Ann. Cas. 1915A, 515. See, also, as bearing upon this question: Raynolds v. Hanna (C. C.) 55 Fed. 783, 801, and cases there cited; Lacey v. Newcomb, 95 Iowa, 287, 294, 63 N. W. 704, and its citations; State v. Evans, 99 Minn. 220, 108 N. W. 958, 9 Ann. Cas. 520, and note; Appeal of Bedford, 126 Pa. 117, 17 Atl. 538. It was therefore to the interest of all the heirs of the allottee-, Emma Derrisaw, that the oil and gas deposits in this homestead should he disposed of at an opportune time, and the proceeds arising therefrom invested or otherwise conserved for the support of the minor Julia during the term for which she is entitled to the use thereof, and the remainder for the benefit of all the heirs after the expiration of such term.
The fact that the oil wells had not been drilled prior to the death of Emma Derrisaw is quite immaterial; for by the lease of the adult, and the minor heirs by their guardian, under authority of the probate court', it was intended that the oil and gas deposits should be removed from the land, and the lease authorized the sinking of requisite wells, in order that such deposits might be removed and the proceeds conserved, as before stated.
As to the minor defendant, Tootie Riley, and the defendant Doc Willingham, it appears that Tootie Riley was born prior to March 4, 1906, lnit whether before or after September 1, 1902, does not definitely appear; but, whether before or after that date, she was entitled to enrollment as a member of the Creek Nation, and to participate in the allotment and distribution of its lands and funds under the acts of April 26, 1906 (34 Slat. c. 1876, p. 148), and June 21, 1906 (34 Stat. c. 3504, pp. 325, 341), amending the act of 1902, as held in the case of Gritts v. Secretary of the Interior, 224 U. S. 640, 32 Sup. Ct. 580, 56 L. Ed. 928. Doc Willingham married Emma Derrisaw in July, 1905, and the minor Julia is the issue of that marriage, born February 11, 1907. Neither the minor Tootie Riley nor Doc Willingham is therefore entitled to anything under the act of May 27, 1908, except as they may inherit from the allottee Emma Derrisaw, and as such heirs their rights are subject to the right of the minor Julia Willingham in this homestead; and it seems to me that the purpose of section 9 of that act is to enable minor children born since March 4, 1906, to have the use of the homestead of their parents dying intestate for the term granted by that section, and it should be given a liberal construction to effectuate that purpose.
Whether or not the provisions of section 6 of the act of May 27, 1908, which confers upon the probate courts of Oklahoma jurisdiction of the persons and property of these minors, deprives the Secretary of the Interior of the right to remove restrictions against alienation of the property of such minors after their rights become vested, is a question not raised in the trial court, has not been discussed here, and need not be considered.
The record fails to show what amount of the royalties arising from the lease in question will be sufficient for the reasonable support of the minor Julia during the term for which she is entitled to such use; the cause should be remanded to the District Court, to ascertain the reason*56able value of such support, and to provide for its payment to her out of the royalties now in the custody of the superintendent or disbursing' agency of the Five Civilized Tribes, or that it may hereafter receive for such royalties, before the remainder of such fund is distributed to the legal heirs of Emma Derrisaw.