ership of their land. The exercise of this latter authority in no way depends upon the former, but may operate where the land has passed from all restrictions of the grant. Brader v. James, 246 U. S. 88, 38 Sup. Ct. 285, 62 L. Ed. 591; Tiger v. Western Inv. Co., 221 U. S. 286, 31 Sup. Ct. 578, 55 L. Ed. 738.

As to instances of control through the grant of the lands it is established law (as stated in 14 R. C. L. 131) that:

"In making allotments of tribal lands the federal government has undoubted power to attach conditions to the grant, and it has exercised this power for the purpose of conserving the interests of the Indians by safeguarding the individual ownership of allottees through suitable restrictions designed to secure them in their possession and to prevent their exploitation, such, for example, as a prohibition against alienation for a specified period, or a requirement that an executive officer of the government shall assent to the execution of a conveyance."

Where the land is allotted in fee with no restrictive reservations, or where under the terms of the treaty or statute the land after restricted allotment passes from under the restriction, its ownership becomes untrammeled so far as governmental supervision extends, unless the allottee, or subsequent holder, is an Indian whose acts in respect to any land, or that character of land, are under governmental guardianship and as such controlled by law.

[3] The Osage Indians are recognized as maintaining a tribal organization, and their powers as to alienation of lands held in severalty are covered by the provisions of the Osage Allotment Act of June 28, 1906 (34 Stat. 539). As presented in this court and as found by the trial court the subsequent Act of April 18, 1912 (37 Stat. 86) concerned only two of the tracts of land here involved. In those two instances the act of 1912 did not affect the result reached by the trial court because one (the Wah-tsa-moie allotment) was a tenancy in common and the other (the Jack Wheeler allotment) was land subject to administration, but as to which there had never been any administration. Therefore the controversy is controlled by the Allotment Act of 1906 and what is herein stated refers to that act uninfluenced by later legislation. No opinion is ventured as to the effect of later legislation. That act provided (sections 2, 3, and 4) for the allotment of lands to the members of the tribe, subject to reservation to the tribe of all mineral rights therein for 25 years; the allotments to be divided into homestead and surplus lands; the homesteads to be inalienable until further congressional action and the surplus lands inalienable for 25 years, except that the Secretary of the Interior might grant to adults certificates of competency empowering them to convey their surplus lands and, after 25 years or the death of such allottees, their homesteads. As it would be impossible for such competent Indian to convey by deed after death, that part of the provision must be taken to mean testamentary disposition. It further provided (section 5) that at the expiration of 25 years "the lands, shall be the absolute property of the individual members of the Osage tribe, or their heirs, as here

* * *

* * *

in provided, and deeds to said lands shall be issued to said members, or to their heirs, as herein provided,

*

and said members shall

have full control of said lands, * except as hereinbefore provided." It then designated (section 6) the law to govern the descent of such lands. Section 7 provides for the use and control of such lands during the restriction period above designated as follows:

"That the lands herein provided for are set aside for the sole use and benefit of the individual members of the tribe entitled thereto, or to their heirs, as herein provided; and said members, or their heirs, shall have the right to use and to lease said lands for farming, grazing, or any other purpose not otherwise specifically provided for herein, and said members shall have full control of the same, including the proceeds thereof: Provided, that parents of minor members of the tribe shall have the control and use of said minors' lands, together with the proceeds of the same, until said minors arrive at their majority: And provided further, that all leases given on said lands for the benefit of the individual members of the tribe entitled thereto, or for their heirs, shall be subject only to the approval of the Secretary of the Interior."

Section 12 is:

"That all things necessary to carry into effect the provisions of this act not otherwise herein specifically provided for shall be done under the authority and direction of the Secretary of the Interior."

The purpose and policy of this act regarding these lands is clearly expressed. The mineral wealth is reserved for 25 years to the tribe under the strict control and protection of the Secretary, the proceeds. thereof to be held in trust by him and distributed to the tribal members or their heirs. The surface is "set aside for the sole use and benefit of the individual members of the tribe, entitled thereto, or to their heirs" for 25 years from January 1, 1907. They are not to be diverted from this "use" by incumbrance or alienation except as to surplus lands of adults whom the Secretary has investigated and certified as competent to protect themselves in that regard, and except as to homesteads of such competent Indians which may be devised by them. To secure the full "benefit" to such Indians and their heirs they are permitted to fully control such lands for "farming, grazing or any other purpose not otherwise specifically provided for" in the act and to control the proceeds from such usage. They may accomplish this through leases, but, to prevent overreaching by lessees and the consequent partial or total destruction of the beneficial use designed by the act, the approval of such leases by the Secretary is required. The only exception to this last statement is in the case of those holding certificates of competency from the Secretary where it is provided that such persons "shall have the right to manage, control, and dispose of his or her lands the same as any citizen of the United States."

Applying this definition of the statute to the various sets of facts determined in the decree of the trial court there results the following: The approval of the Secretary is required to leases of lands held by minors or other noncompetents whether the land covered thereby came to such through allotment, descent, or devise, provided the land was allotted under the above statute. The circumstance that such lease was arranged by a parent, guardian, or administrator who might or might not be a nonmember of the tribe or a member competent to manage his own affairs or that the lease may have been approved by the state

county court is of no consequence because the statute specifically requires the protection afforded by the approval of the Secretary. The above application applies to all of such sets of facts except those of a lease by a competent allottee of his surplus lands or homestead and of leases by competents or nonmembers of the tribe who were tenants in common with noncompetents. As to the former the statute provides that the homestead cannot be alienated, but it seems clear that such competent Indian, through the "right to manage, control and dispose of his or her lands the same as any citizen of the United States," expressly given by the statute, can make such leases without the approval of the Secretary.

[4] As to instances where the land is held by tenants in common, part of whom are noncompetent and part competent or nonmembers of the tribe, a more perplexing situation is presented. Each of such tenants is, under the ordinary rules of tenancy in common, entitled to ingress, egress, and possession of the land and to a proper share of the benefits from the usage of the land. Such rights may be transferred by those legally capable of acting for themselves in such matters. But these considerations must bow to the requirements of the statute. Tenancy in common does not change a noncompetent into a competent Indian nor in any wise increase the power of such to deal with his interest in land so held. On the other hand, to permit the competent tenant to lease or use the entire tract or any undivided portion thereof, even though he accounted to the noncompetent tenant for his just portion, would completely obliterate that protection of supervision and approval which the statute carefully lodges in the Secretary alone. Therefore, the conclusion seems necessary that no lease of any part or interest in Osage Indian land held in common where one or more of such tenants in common are noncompetents can be made without the approval of the Secretary. Only through such a conclusion can the protection required by the statute be preserved. Apparent injustice to the competent or nonmember tenant cannot prevail against the statute, and such result is easily avoidable through the definite separation of land among the tenants through partition in accordance with the provisions of section 6 of the act of 1912 (37 Stat. 86).

[5] Another situation is presented by some of the above sets of facts and requires notice. That is where allotted lands have come through descent, devise or purchase to noncompetents from or through competents or nonmembers of the tribe. The provisions of section 2, par. 7, give full power of alienation of surplus lands to competents and make such subject to taxation. The homestead of such is made inalienable and nontaxable for 25 years "or during the life of the homestead allottee." These provisions show the legislative intention that all restrictions are removed from the surplus lands and, after 25 years or the death of the allottee, from the homestead. In short, that such restrictions do not follow the land into whosesoever hands it may pass. But this determination is not conclusive of the right of alienation or leasing by a noncompetent Osage Indian who may succeed to or acquire the title to such land. As stated earlier in this opinion the government, through its powers and duty of wardship over a people in

a state of pupilage, may protect them in the disposition of allotted lands coming to them without restriction. Such were the cases of Brader v. James, 246 U. S. 88, 38 Sup. Ct. 285, 62 L. Ed. 591, and Tiger v. Western Investment Co., 221 U. S. 286, 31 Sup. Ct. 578, 55 L. Ed. 738. The question is, therefore: Has the government retained its control over the disposition by noncompetent Osage Indians of Osage lands no matter from what source those lands came to such noncompetents? If such control is retained it must be found in the act now under consideration. The act contemplates the continuation of the tribal government; the supervision of the valuable mineral rights (retained in the tribe) by the government for 25 years; the holding in trust by the government of tribal funds for 25 years; the absolute inalienability by noncompetents for 25 years of surplus lands and of homesteads until further provision by law; the specific requirement that "all leases given on said lands for the benefit of the individual members of the tribe entitled thereto, or for their heirs, shall be subject only to the approval of the Secretary of the Interior"; the setting aside of these lands "for the sole use and benefit of the individual members of the tribe entitled thereto, or to their heirs as herein provided." In the Brader and Tiger Cases, the Act of April 26, 1906 (34 Stat. 137), which dealt broadly with the Five Civilized Tribes, was reviewed. Both that and the Osage Allotment Act were passed by the same session of Congress. The Supreme Court in those cases. determined that the provisions of that law showed a Congressional intention to retain control over the disposition of lands by the class of Indians there involved. A comparison of those provisions, as discussed and construed in those opinions, with the provisions of the act here in question shows a similarity as to many of them and, in our judgment, a stronger situation here where there is dissimilarity. We, therefore, conclude that Congress intended to and did in this act retain for 25 years such control over the Osage lands of noncompetent Osage Indians from whatever source they were derived.

[6] Another question is whether the Secretary has authority under this act to prescribe and enforce rules and regulations and forms of leases respecting the leasing of lands of noncompetents. We read the requirement that such leases "shall be subject only to the approval of the Secretary of the Interior" to mean that they are valid only when approved by him. The Secretary acts in such matters as the protector of the Indians' welfare. He can withhold such approval for any reason that seems to him meritorious. These lands comprise many thousands of acres. It was to be expected, as has proved true, that upon so much land and over a period of 25 years there would be many hundreds of these leases presented for his approval. It would seem. the most natural procedure for the Secretary to work out and make public the general requirements he deemed necessary for the protection of such Indians, and therefore for the procurement of his approval. Such would be a great saving to him in the convenient and speedy performance of his duties in this respect and a like saving of delay and uncertainty to those desiring to procure such leases. In fact, such a procedure would seem a necessity to the proper perform

ance by him of such a trust. This action is expressly authorized by section 12, which is:

"That all things necessary to carry into effect the provisions of this act not otherwise herein specifically provided for shall be done under the authority and direction of the Secretary of the Interior."

[7] There remains for our consideration the determination of the trial court that the government was without authority to maintain an injunction to restrain the La Mottes from leasing or grazing land leased by the allottee to H. G. Ezell. The facts are that Ezell is the valid lessee under the approval of the Secretary; that he has paid the full consideration therein required to the allottee; that the La Mottes have not attempted to lease such premises; that their lessees of other adjacent lands owned or controlled by them permit cattle to pass on and graze the unfenced leasehold held by Ezell. Such trespass does not injure the freehold nor affect the allottee lessor. The wrong is to Ezell alone and he has a legal remedy and he alone. The government is not concerned in and has no authority to protect such interest of Ezell.

There is a clear ground of equitable interference by the government stated in the bill in that leases made contrary to the statute cast clouds upon the title which the government holds in trust for the Indians.

The order is that the decree be modified in accordance with the terms of this opinion, and, as thus modified, affirmed. The costs in the court below to be assessed against the La Mottes.

DELAWARE, L. & W. R. CO. v. TOMASCO.

(Circuit Court of Appeals, Second Circuit. January 15, 1919.)

No. 127.

1. MASTER AND SERVANT 220(7)—INJURY-ASSUMPTION OF RISK.

An interstate commerce employé, of experience, who after refusal of a light, and without assurance of safety or a light forthcoming in a reasonable time, continues in the dark at the work of removing a metal platform from where it had been used as passageway between freight cars on parallel trucks, must be held to have assumed the risk.

2. MASTER AND SERVANT 204(1)—ASSUMPTION OF RISK-EMPLOYERS' LIABILITY ACT.

It is only risk of employment from violation by the master of a federal statute that under Employers' Liability Act, § 4 (Comp. St. § 8660), the employé may not be held to assume.

In Error to the District Court of the United States for the Western District of New York.

Action by Michael Tomasco against the Delaware, Lackawanna & Western Railroad Company for personal injuries. Verdict and judgment for plaintiff, and defendant brings error. Reversed.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes