The original transaction being void, the lands remained restricted, and no statute of limitation or doctrine of laches is applicable thereto.

Bell v. Fitzpatrick, 53 Okla. 574, 157 Pac. 334; Brink v. Canfield, 78 Okla. 189, 187 Pac. 223; Brown v. Anderson, 61 Okla. 136, 160 Pac. 724; Jefferson v. Gallagher, 56 Okla. 405, 150 Pac. 1071; Crow v. Hartridge, Okla. 175 Pac. 115; Sheldon v. Donohoe, 40 Kan. 346, 19 Pac. 901; Goodrum v. Buffalo, 89 C. C. A. 525, 162 Fed. 827; Wrigley v. McCoy, Okla. 175 Pac. 259; Gibson v. Chouteau, 13 Wall. 92, 20 L. ed. 534; Miller v. Fryer, 35 Okla. 145, 128 Pac. 713; Northern P. R. Co. v. Boyd, 228 U. S. 482, 509, 57 L. ed. 931, 943, 33 Sup. Ct. Rep. 554; Halstead v. Grinnan, 152 U. S. 412, 417, 38 L. ed. 495, 497, 14 Sup. Ct. Rep. 641; Galliher v. Cadwell, 145 U. S. 368, 372, 36 L. ed. 738, 740, 12 Sup. Ct. Rep. 873; Penn Mut. L. Ins. Co. v. Austin, 168 U. S. 685, 698, 42 L. ed. 626, 631, 18 Sup. Ct. Rep. 223; O'Brien v. Wheelock, 184 U. S. 450, 493, 46 L. ed. 636, 655, 22 Sup. Ct. Rep. 354; Patterson v. Carter, Okla. 200 Pac. 855; Murrow Indian Orphans' Home v. MeClendon, 64 Okla. 205, 166 Pac. 1101: Thompson v. Riddle, Okla., 171 Pac 331; Parks v. Berry, Okla. 169 Pac. 884; F. B. Collins Inv. Co. v. Beard, 46 Okla. 310, 148 Pac. 846; Barbee v. Hood, 143 C. C. A. 180, 228 Fed. 658.

Mr. Justice Clarke delivered the opin

ion of the court:

We have here cross appeals in a suit to have declared invalid a deed to Paul A. Ewert for restricted lands inherited by the widow and adult and minor heirs of Charles Bluejacket, a full-blood Quapaw Indian, and for an accounting for rents and royalties derived from such

lands.

On October 23, 1908, Ewert was appointed a Special Assistant to the Attorney General of the United States to [134] "assist in the institution and prose

cution of suits to set aside deeds to cer

tain allotments in the Quapaw Indian Agency," and by the terms of his appointment his official residence was fixed at Miami, Oklahoma. He testifies that he took the oath of office on the 10th of

November, 1908, and about December 1st opened an office at Miami. In his answer he alleges that he made his first bid for the land involved on December 21, 1908, within a month after his arrival

by him on January 25, 1909, and a third on February 22, 1909, all of which were rejected because less than the appraisement. On March 29, 1909, he made a bid of $5,000 for the land, which was accepted. The deed he received was dated April 8, 1909, and was approved by the Secretary of the Interior on July 26th following.

Charles Bluejacket, the ancestor of the vendors, was a full-blood Quapaw Indian, and as such received a patent for the lands involved, dated September 26, 1896, which provided-pursuant to [March 2, 1895] 28 Stat. at L. 907, chap. 188-that the land should be "inalienable for the period of twenty-five years" from and after the date of the patent. Thus the restraint on alienation did not expire until September 26, 1921, and it ran with the land, binding the heirs precisely as it bound the ancestor. United States v. Noble, 237 U. S. 74, 80, 59 L. ed. 844, 847, 35 Sup. Ct. Rep. 532.

Congress provided, in May 27, 1902 (32 Stat. at L. 245, 275, chap. 888, Comp. Stat. § 4223, 3 Fed. Stat. Anno. 2d ed. p. 846), that adult heirs of a deceased Indian might sell and convey full title to inherited lands, free from restrictions, but only by conveyances approved by the Secretary of the Interior; and that the interests of minor heirs might also be so sold and conveyed upon petition of a guardian, on order of a proper court, and when the sale was approved by the Secretary of the Interior. Under this statute the lands in controversy were sold in the public manner required by the rules of the Department of the Interior, and, for the [135] purposes of this decision, all required action is assumed to have been, in form, properly

taken.

The ground upon which the validity of the conveyance to Ewert is assailed is that Rev. Stat. § 2078, Comp. Stat. § 4026, 3 Fed. Stat. Anno. 2d ed. p. 760, rendered it unlawful for him to become a purchaser of Indian lands while holding the position which he did as a Special Assistant to the Attorney General, tion of suits to set aside deeds to cer"to assist in the institution and prosecutain allotments in the Quapaw Indian Agency," and that, therefore, the deed to him was void.

Rev. Stat. § 2078 reads: "No person employed in Indian affairs shall have any interest or concern in any trade with the Indians, except for, and on account of, the United States; and any person offending herein, shall be liable

The district court held that Ewert was not so employed in Indian affairs as to come within the scope and condemnation of the statute, and dismissed the bill. On appeal, the circuit court of appeals held that he came within the statute, and reversed the decree of the district court as to the minor heirs, but affirmed it as to the adult heirs, on the ground that they were guilty of such laches in delaying bringing suit from the date of the deed in 1909 to 1916 that their cause of action was barred. The case is here for construction of this act of Congress.

It is argued that when the land was purchased by Ewert he was not "employed in Indian affairs" within the meaning of Rev. Stat. § 2078, which, it is contended, includes only "officers of Indian affairs," provided for in Rev. Stat. title 28, and its amendment.

The section is derived from the Act of June 30, 1834, chap. 162, § 14 (4 Stat. at L. 738), which declared that "no person employed in the Indian Department shall have any interest or concern in any trade with the Indians," etc. The substitution of "employed in Indian affairs," used in the [136] section of the Revised Statutes, for "employed in the Indian Department," used in the prior act, was plainly intended to enlarge the scope of the provision so that it should include all persons employed in Indian affairs, even though they might not be on the roll of the Indian Department, which is really only a bureau of the Interior Department.

The purpose of the section clearly is to protect the inexperienced, dependent, and improvident Indians from the avarice and cunning of unscrupulous men in official position, and at the same time to prevent officials from being tempted, as they otherwise might be, to speculate on that inexperience or upon the necessities and weaknesses of these "wards of the nation." United States v. Hutto, 256 U. S. 524, 528, 65 L. ed. 1073, 1075, 41 Sup. Ct. Rep. 541.

Since the Act of June 22, 1870 (16 Stat. at L. 164, chap. 150, Comp. Stat. § 271, 3 Fed. Stat. Anno. 2d ed. p. 258, carried into Rev. Stat. § 189), no head of any department of the government has been permitted to employ legal counsel at the expense of the United States, but whenever such counsel is desired a call must be made upon the Department of Justice, by which it is furnished. In this case, as we have seen, Ewert

was specially employed and detailed by the Attorney General, not only to devote himself to Indian affairs, but specifically to institute and prosecute suits relating to lands of the Quapaw Indians, with which we are here concerned, and he himself testifies that during his employment he devoted all of his time to such official duties. He was thus employed to give, and he testifies that at the time of this purchase he was giving, all of his time to the affairs, not of the Indians in general, but to matters relating specifically to the titles of the lands of the Quapaw allottees. If he had been employed by the Secretary of the Interior or by the Commissioner of Indian Affairs to perform the same service, no refinement could have suggested the inapplicability to him of the statute; and the fact that under the form of departmental organization [137] of the government, provided for by statute, he was under the general direction of the Department of Justice at the time, can make no difference.

We fully agree with the circuit court of appeals that Ewert was employed in Indian affairs within the meaning and intendment of the act when he purchased the land.

conven

It is next contended that the "trade with the Indians," in which persons employed in Indian affairs were prohibited by the section from engaging, must be confined to trade with them when conducted as a business or occupation,-to merchants or dealers supplying the Indians with the necessities or iences of life. Having regard to the purpose of the statute, as we have stated it, we think that no such narrow interpretation can be given to the section. Congress cannot have intended to prohibit the use of official position and influence for the purpose of overreaching the Indians in the selling to them of clothing or groceries, and to permit their use in stripping them of their homes and lands. In United States v. Douglas, 36 L.R.A.(N.S.) 1075, 111 C. C. A. 314, 190 Fed. 482, the circuit court of appeals for the eighth circuit declined to allow precisely such a construction as it is contended should be here given to the section, and ruled that the purchase of cattle by an industrial teacher of Indians came within its terms. This decision was rendered over ten years ago, and if it had been deemed an erroneous construction of the act, Congress would no doubt have long since modified it. Again we agree with the circuit court of appeals that the land was acquired by

[For other cases, see Appeal and Error, VIII. c. 1; v. b, in Digest Sup. Ct. 1908.] Indians

restrictions on alienation approval by Land Department relation.

6. The subsequent approval by the Land Department of a deed for Indian lands, executed before the restrictions on alienation had expired, cannot, by the doctrine of relation, be held to give validity to the deed as of its date, where, if full disclosure of the conditions under which the deed was executed had been made to the Department, approval would not have been given. [For other cases, see Indians, VIII. in Di.

gest Sup. Ct. 1908.]

personal prop

what law governs. 7. There being no congressional legislation providing for the administration of the personal property of an intestate Indian, the state law is applicable.

[For other cases, see Indians, VIII. in Di

gest Sup. Ct. 1908.]

Parties administrator of intestate appeal.

Indian

8. The administrator of an intestate Quapaw Indian is a competent party to assert, in a suit praying the cancelation of a deed of his intestate's restricted lands and an accounting for rents and profits, the right of the estate to the rents or royalties derived from such lands during the intestate's lifetime, and to prosecute an appeal from a decree of dismissal below after a settlement with the heirs.

[For other cases, see Parties, I. a, 5; Appeal

and Error, IV. b, 2, a, in Digest Sup. Ct.

1908.] Indians

interdiction on trade purchase of land against mortgage.

void indemnification

9. One who purchases Indian lands in violation of the provision of U. S. Rev. Stat. § 2078, that no person employed in Indian affairs shall have any interest or concern in any trade with the Indians except for and on account of the United States, and who encumbers the land with a mortgage, must, upon the setting aside of the deed, indemnify the Indian owners against the mortgage if the lien still subsists. [For other cases, see Indians, II. in Digest Sup. Ct. 1908.]

[No. 157.] Argued March 13, 1922.

1922.

Decided May 15,

APPEAL from the United States Circuit Court of Appeals for the Eighth Circuit to review a decree which dismissed an appeal from a decree of the District Court of the United States for the Eastern District of Oklahoma, dismissing the petition in a suit to set aside a deed of Indian lands and to have an accounting of rents and profits.

Re

See same case below, 264 Fed. 1021. The facts are stated in the opinion. Mr. Arthur Scott Thompson argued the cause and filed a brief for appellants:

The original transaction being void and unlawful, the compromise stipulation or ratification is likewise void and ineffective.

Pope Mfg. Co. v. Gormully, 144 U. S. 224, 234, 36 L. ed. 414, 418, 12 Sup. Ct. Rep. 632; Stoutenberg v. Lybrand, 13 Ohio St. 228; 5 R. C. L. 884, § 8; 2 Pom. Eq. Jur. § 964; 9 Cyc. 562; 8 Cyc. 530; Union Collection Co. v. Buckman, 150 Cal. 159, 9 L.R.A.(N.S.) 568, 119 Am. St. Rep. 164, 88 Pac. 710, 11 Ann. Cas. 609; Boutelle v. Melendy, 19 N. H. 196, 49 Am. Dec. 153; Lindt v. Uihlein, 109 Iowa, 591, 79 N. W. 75, 80 N. W. 658; United States v. Grossmayer, 9 Wall. 72, 75, 19 L. ed. 627, 629; Brown v. First Nat. Bank, 137 Ind. 655, 24 L.R.A. 211, 37 N. E. 158; Armstrong v. Toler, 11 Wheat. 258, 6 L. ed. 468; Willcox v. Edwards, 162 Cal. 455, 123 Pac. 276, Ann. Cas. 1913C, 1394; North-Western Salt Co. v. Electrolytic Alkali Co. [1913] 3 K. B. 422, 107 L. T. N. S. 439, Ann. Cas. 1915B, p. 228; Comstock v. Draper, 1 Mich. 481, 53 Am. Dec. 80; Bridger v. Goldsmith, 143 N. Y. 428, 38 N. E. 458; McMullen v. Hoffman, 174 U. S. 657, 43 L. ed. 1124, 19 Sup. Ct. Rep. 839; Embrey v. Jemison, 131 U. S. 348, 33 L. ed. 177, 9 Sup. Ct. Rep. 776; Coppell v. Hall, 7 Wall. 542, 558, 559, 19 L. ed. 244, 248; Continental Wall Paper Co. v. Louis Voight & Sons Co. 212 U. S. 227, 263, 53 L. ed. 486, 505, 29 Sup. Ct. Rep. 280.

The findings of the master, on reference of motion to dismiss, are not sustained by the evidence, and exceptions of appellants should have been sustained.

Stewart v. Wyoming Cattle Ranche Co. 128 U. S. 383, 388, 32 L. ed. 439, 441, 9 Sup. Ct. Rep. 101; Roberts v. Tompkins, 75 N. J. Eq. 576, 73 Atl. 505; Hart v. Sandy, 39 W. Va. 644, 20 S. E. 665; 20 Cyc. p. 450; Mooney v. Davis, 75 Mich. 188, 13 Am. St. Rep. 425, 42 N. W. 802; 14 Am. & Eng. Enc. Law, 2d ed. p. 74; Manter v. Truesdale, 57 Mo. App. 443;

Loewer v. Harris, & C. C. A. 394, 14 U. S. App. 615, 57 Fed. 368; Moore v. Sawyer, 167 Fed. 826; Wheeler v. Smith, 9 How. 55, 13 L. ed. 44; 2 Pom. Eq. Jur. 3d ed. §§ 877, 896, pp. 1560, 1601; Berry

1 Mandate stayed and leave granted June 5. 1922, to present petition for rehearing within sixty days, on motion of Mr. Will R. King in that behalf.

v. American Cent. Ins. Co. 132 N. Y. 49, 28 Am. St. Rep. 548, 30 N. E. 254; Black, Rescission, § 125.

Mr. Paul A. Ewert, in propria persona, argued the cause, and, with Messrs. Henry C. Lewis and William R. Andrews, filed a brief for appellee:

The adult heirs were guilty of such laches in the bringing of the suit as to bar them from maintaining the action.

Bluejacket v. Ewert, 265 Fed. 823; Felix v. Patrick, 145 U. S. 317, 331, 332, 36 L. ed. 719, 726, 12 Sup. Ct. Rep. 862; Schrimpscher v. Stockton, 183 U. S. 290, 296, 46 L. ed. 203, 205, 22 Sup. Ct. Rep. 107.

Mr. Justice Clarke delivered the opinion of the court:

This is an appeal from a decree of the circuit court of appeals, dismissing an appeal from a decree by the district court, which dismissed the petition, in a suit in which it was prayed that appellee, Paul A. Ewert, should be decreed to hold in trust for George Redeagle the title to 100 acres of restricted and very valuable Indian lands, which Redeagle, a full-blood Quapaw Indian, had, in form, deeded, in 1909, to Franklin A. Smith, who, a year later, conveyed the same to Ewert. It was alleged that Smith, in bidding upon the land, acted as the agent of Ewert, who, it was averred, was legally incapable of purchasing it, because he was employed at the time by the government in Indian affairs.

[141] Ewert is the same person who was appellant and appellee in Nos. 173| and 186, respectively (the Bluejacket Case [259 U. S. 129, ante, 858, 42 Sup. Ct. Rep. 442]), this day decided, and the validity of the deed in this case is assailed, as was the one involved in those appeals, on the ground that Ewert was not competent to make such a purchase under Rev. Stat. § 2078, Comp. Stat. § 4026, 3 Fed. Stat. Anno. 2d ed. p. 760, which reads:

"No person employed in Indian affairs shall have any interest or concern in any trade with the Indians, except for, and on account of, the United States; and any person offending herein, shall be liable to a penalty of $5,000, and shall be removed from his office."

The facts in the two cases are very similar, except that in this case the evidence is clear that, regarding himself as prohibited from making the purchase, and desiring to conceal his relation to it, Ewert procured Smith to bid on the land, to take the deed for it in his own

name, and then, a year later, to deed it to him. The deed to Smith was for the consideration of $1,300, but the quitthe recited consideration of $2,000. claim deed from Smith to Ewert was for Ewert admitted in his answer that he purchased the land through Smith, as his agent, but, when pressed for a reason for the difference in the considerations, his reply was evasive and indefinite. The restriction on the land [March 2, 1895] 28 Stat. at L. 907, expressed in the patent and required by chap. 188, did not expire until Septem

ber 26, 1921.

In the Bluejacket Case we have held that, assuming the sale to have been made in the public manner required by the rules of the Department, all required action to have been, in form, properly taken, and the deed therein to [142] have been approved by the Secretary of the Interior, nevertheless it was void because Ewert was prohibited by Rev. Stat. § 2078, from then becoming the purchaser of such Indian lands, and the construction therein given to the statute must rule this case and render void the deeds herein relied upon to give him title.

But this case presents several additional features.

After the district court decided in favor of Ewert and dismissed the petition, he paid $700, on July 5, 1918, to procure from Redeagle a stipulation to dismiss the action with prejudice, and for the same consideration and at the same time took from him a quitclaim deed for the land. Before hearing on appeal, by Redeagle, in the circuit court of appeals, Ewert filed a motion to dismiss the appeal, based on this stipulation to dismiss the case, and the appellant, in turn, moved the court to cancel the stipulation and strike it from the files, because as he averred, it was procured by fraud and without notice to his counsel.

When these motions to dismiss were presented to the circuit court of appeals that court ordered that "this cause be... referred back to the district court . . with directions to investigate the circumstances of the stipulation for dismissal of the suit