is wholly untenable. There can be no more complete representation than that on the part of the United States in acting on behalf of these dependents-whom Congress, with respect to the restricted lands, has not yet released from tutelage. Its efficacy does not depend upon the Indian's acquiescence. It does not rest upon convention, nor is it circumscribed by rules which govern private relations. It is a representation which traces its source to the plenary control of Congress in legislating for the protection of the Indians under its care, and it recognizes no limitations that are inconsistent with the discharge of the national duty. "When the United States instituted this suit it undertook to represent, and did represent, the Indian grantors whose conveyances it sought to cancel. It was not necessary to make these grantors parties, for the government was in court on their behalf. Their presence as parties could not add to, or detract from, the effect of the proceedings to determine the violation of the restrictions and the consequent invalidity of the conveyances. As by the act of Congress they were precluded from alienating their lands, they were likewise precluded from taking any position in the legal proceedings instituted by the government to enforce the restrictions which would render such proceedings ineffectual or give support to the prohibited acts. The cause could not be dismissed upon their consent; they could not compromise it; nor could they assume any attitude with respect to their interest which would derogate from its complete representation by the United States. This is involved necessarily in the conclusion that the United States is entitled to sue, and in the nature and purpose of the suit. "These considerations also dispose of the contention that by reason of the absence of the grantors as parties, the grantees are placed in danger of double litigation; so that if they should succeed here they would still be exposed to suit by the allottees. It is not pertinent to comment upon the improbability of the contingency, if it exists in legal BLED.IND. (2d Ed.)—23 contemplation. But if the United States, representing the owners of restricted lands, is entitled to bring a suit of this character, it must follow that the decree will bind not only the United States, but the Indians whom it represents in the litigation. This consequence is involved in the representation." The court had said in a previous case: "That Congress may enforce and protect any condition which it attaches to any of its grants. This it may do by appropriate proceedings in either a national or a state court." 2 Suits for the protection of Indian allottees have been uniformly brought by the United States in its own courts, but as a matter of preference, and not because it has not the right to invoke the jurisdiction of the state courts. § 327. Actions for the recovery of allotted Indian lands. -Not only may an allottee to whom a patent in fee has issued maintain an action for the recovery of the lands patented, but he may do so prior to the issuance of the patent, and prior even to the issuance of an allotment certificate. The selection of the land in allotment and the acceptance of such selection by the Department operates to segregate the land from the tribal domain, converts it into individual ownership and vests in the allottee a full equitable title. Such title may be the basis of an action in ejectment for the recovery of the property or an action to quiet title thereto or to remove a cloud from title. The equitable title thus acquired is as effective as a cause of action or defense against others than the government of the United States as is the full legal title.3 § 328. Suits to establish trusts as applied to Indian lands. The Secretary of the Interior, in his own proper 2 In re Heff, 197 U. S. 488-509, 25 Sup. Ct. 506, 512, 49 L. Ed. 848. 8 Wallace v. Adams, 143 Fed. 716, 74 C. C. A. 540; Godfrey v. Iowa Land & Trust Co., 21 Okl. 293, 95 Pac. 792; Sorrells v. Jones, 26 Okl. 569, 110 Pac. 743; Ballinger v. United States ex rel. Frost, 216 U. S. 240, 30 Sup. Ct. 338, 54 L. Ed. 464. person, and acting through his subordinate departmental officials, has exclusive authority to adjudge as between different contestants asserting the right to take lands in allotment to whom such lands shall be allotted. He had a similar jurisdiction under the townsite acts contained in the various agreements to determine which of the contestants should be awarded the preference right to purchase such lands. Suits may be maintained in the courts by a member of the tribe entitled to take land in allotment against the allottee to whom the same has been patented to have the allottee adjudged to hold the patented land in trust for his use and benefit. The departmental decision can be avoided and the land charged with the trust in his favor, only when upon the facts found, conceded, or established at the hearing before the department, its officers fell into an error in the construction of the law which caused them to refuse to issue the patent to him and give it to another, or that through fraud or gross mistake they fell into a misapprehension of the facts proven. If fraud or gross mistake is relied upon, he must plead and prove, not only that there was a mistake, but the facts before the department from which the mistake resulted, the particular mistake that was made, the way in which it occurred, and the fraud, if any, which induced such action, before the court can charge lands with a trust in his favor.* § 329. Limitation of actions to recover allotted Indian lands. Not only is every Indian in Oklahoma a citizen of the United States and of the state and subject to its laws, both civil and criminal, except in certain particular cases where the laws of the United States are supreme and prevail, but such is the case generally. Wherever an Indian who is a citizen of the state and of the United States holds lands free from restrictions on alienation, he is amenable 4 Wallace v. Adams, 143 Fed. 716, 74 C. C. A. 540; Garrett v. Walcott, 25 Okl. 574, 105 Pac. 648; Bartlesville Vitrified Brick Co. v. Barker, 26 Okl. 144, 109 Pac. 72; Robinson v. Owen, 30 Okl. 484, 119 Pac. 995; Summers v. Barks (Okl.) 127 Pac. 402. to the statute of limitations so far as his allotted and inherited lands are concerned as any other landowner in the state. Wherever the title to allotted lands is held in the United States for the use and benefit of the allottee, the statute of limitations of the state in which the lands are located does not begin to run until the conveyance of the land in fee or the removal of restrictions on alienation. Where allotted lands, however, are conveyed in fee to the allottee, subject to restrictions on alienation, a more difficult question is presented. It not infrequently happens that the right of alienation is dependent upon some matter of fact and not upon a question of law. When does the statute of limitations begin to run as against the conveyance of allotted or inherited Indian lands held subject to restrictions on alienation? The allottees of the Five Civilized Tribes present an example of this condition, not only in Oklahoma, but for the entire United States. The question has been directly presented to the Supreme Court of the United States in two cases. In both of these cases the lands when conveyed were subject to restrictions on alienation. In both cases the trial court had sustained a plea of the statute of limitations, in the first case upon demurrer, and in the last case upon the trial of the cause, and the judgments of the trial court were affirmed in both cases, but without definitely settling whether the statute of limitations ran during the restricted period. In addition to a denial of the application of the statute of limitations by the plaintiff, it was insisted that a conveyance in violation of restrictions on alienation did not constitute color of title upon which to base a claim of adverse possession. The court said that the plaintiffs and their grantors acted in good faith in making the purchase, taking the deed, and in paying the consideration, and had no actual notice of the defect in the title of the grantor. The court Felix v. Patrick, 145 U. S. 317, 12 Sup. Ct. 862, 36 L. Ed. 719; Schrimpscher v. Stockton, 183 U. S. 290, 22 Sup. Ct. 107, 46 L. Ed. 203. further said: "It is true, if the grantees had examined the Rogers patent, they would have discovered the restraint upon his alienation of the land; but it is too much to say that a deed, valid upon its face, and taken in good faith, for a valuable consideration, without actual notice of the facts, does not give color of title." It has been held by other courts of high authority that the statute of limitations does not begin to run until the expiration of restrictions on alienation. There are other cases dealing with this subject, too numerous to discuss in detail, but to which reference is made. It is difficult to deduce any fixed rule from the conflicting decisions. The courts have sometimes applied the doctrine of laches when there has been a substantial change in conditions, notwithstanding the full period of the statute has not run since the expiration of restrictions on alienation. § 330. Actions to foreclose mortgages, liens, etc.Suits to foreclose mortgages, liens, etc., on allotted or inherited Indian lands may be maintained when the lands are alienable, but cannot be maintained to secure a foreclosure, establish a lien, or otherwise encumber the title of lands held subject to restrictions on alienation." A me 6 Goodrum v. Buffalo, 162 Fed. 817, 89 C. C. A. 525; United States v. Bellm (C. C.) 182 Fed. 161; Laughton v. Nadeau (C. C.) 75 Fed. 789. 7 Krause v. Means, 12 Kan. 335; Lemert v. Barnes, 18 Kan. 9; Maynes v. Veale, 20 Kan. 374; Forbes v. Higginbotham, 44 Kan. 94, 24 Pac. 348; Schrimpscher v. Stockton, 58 Kan. 758, 51 Pac. 276; New Orleans, J. & G. N. Ry. Co. v. Moye, 39 Miss. 374; Taylor v. Brown, 5 Dak. 335, 40 N. W. 525; Kreuger v. Schultz, 6 N. D. 310, 70 N. W. 269; Murphy v. Pierce, 17 S. D. 207, 95 N. W. 925; Murphy v. Nelson, 19 S. D. 197, 102 N. W. 691; Shepard v. Northwestern Life Ins. Co. (C. C.) 40 Fed. 346; Smythe v. Henry (C. C.) 41 Fed. 705; Sheldon v. Donohoe, 40 Kan. 346, 19 Pac. 901. 8 Goat v. United States, 224 U. S. 458, 32 Sup. Ct. 544, 56 L. Ed. 841; Landrum v. Graham, 22 Okl. 458, 98 Pac. 432; Frame v. Bivens (C. C.) 189 Fed. 785. 9 Krause v. Means, 12 Kan. 335; Farrington v. Wilson, 29 Wis. 383; 458, 98 Pac. 432. Maynes v. Veale, 20 Kan. 374; |