Mr. Chief Justice Moore,
after stating the facts in the preceding terms, delivered the opinion of the court.
1. It is contended by plaintiff’s counsel that notwithstanding land in the Umatilla Indian Reservation had been *119allotted in severalty to Joe Kalyton, and also to plaintiff’s mother, their tribal relations still existed, and, as the testimony shows that they were married according to the customs and laws of the tribe to which they belonged, the court erred in refusing to grant the relief prayed for. It is maintained by the defendants’ counsel, however, that the testimony shows that plaintiff’s mother was incompetent to enter into a legal marriage, and, this being so, the plaintiff was not born in lawful wedlock, and hence no error was committed as alleged. The Cayuse Indians were recognized as a tribe by the United States June 9, 1855, when a treaty was concluded with them and other Indians, which was ratified by the Senate March 8, 1859, and approved by the President April 11th of that year, setting apart for their exclusive use certain territory in Oregon, which has since been known as the “Umatilla Indian Reservation”: 12 Stat. U. S. 945. An act of Congress approved March 3, 1885, authorized the President of the United States, with the consent of the Indians, to allot to the Cayuse and other Indians residing upon the Umatilla Reservation certain areas of land in severalty, and, in addition thereto, to reserve a reasonable amount of pasture and timber lands for their use in common, and also a tract for an industrial farm and school, not exceeding, in all, 120,-000 acres. A commission was created to survey the land and make allotment thereof, which, if approved by the Secretary of the Interior, should thereafter constitute the reservation for the Cayuse and other Indians, and within which the allotments were required to be made. The President was also authorized to cause patents to be issued to all allottees, declaring that the United States held the land so allotted for the term of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment was made, or, in case of his death, of his heirs, according to the laws of the State of Oregon, and that at *120the expiration of that period the United States would convey the premises by patent to the allottee or his heirs in fee, discharged of the trust, and free of all charge or incumbrance whatsoever. The law of alienation and descent in force in this State was made applicable thereto after the issuance of the patents, except as therein otherwise provided : 23 Stat. U. S. 340, c. 319, § 1.
Section 6 of an act of Congress approved February 8, 1887, generally known as the “Dawes Act,” providing for the allotment of land in severalty to the Indians on the various reservations, is as follows: “That upon the completion of said allotments and the patenting of the lands to said allottees, each and every member of the respective bands or tribes of Indians to whom allotments have been made shall have the benefit of and be subject to the laws, both civil and criminal, of the state or territory in which they may reside; and no territory shall pass -or enforce any law denying any such Indian within its jurisdiction the equal protection of the law. And every Indian born within the territorial limits of the United States to whom allotments shall have been made under the provisions of this act, or under any law or treaty, and every Indian born within the territorial limits of the United States who has voluntarily taken up, within said limits, his residence separate and apart from any tribe of Indians theréin, and has adopted the habits of civilized life, is hereby declared to be a citizen of the United States, and is entitled to all the rights, privileges, and immunities of such citizens, whether said Indian has been or not, by birth or otherwise, a member of any tribe of Indians within the territorial limits of the United States without in any manner impairing or otherwise affecting the right of any such Indian to tribal or other property ”: 24 Stat. U. S. 388, 390, c. 119 (3 Fed. Stat. Ann. 496). Section 5 of an act of Congress approved February 28,1891, amending and extend*121ing the benefits of the act approved February 8, 1887, is, so far as deemed applicable, as follows: “That for the purpose of determining the descent of land to the heirs of any deceased Indian under the provisions of the fifth section of said act, whenever any male and female Indian shall have cohabited together as husband and wife according to the custom and manner of Indian life the issue of such cohabitation shall be, for the purpose aforesaid, taken and deemed to be the legitimate issue of the Indians so living together, and every Indian child, otherwise illegitimate, shall for such purpose be taken and deemed to be the legitimate issue of the father of such child'”: 26 Stat. U. S. 794, 795, c. 383 (3 Fed. Stat. Ann. 499, 501).
These excerpts and quotations from the acts of Congress disclose the policy pursued by the United States in dealing with Indians residing upon reservations to whom land has been allotted in severalty, and, though these people have been invested with the rights of citizenship and guaranteed the protection of the laws, and rendered amenable thereto, the object evidently intended to be subserved by such legislation was to encourage them .to forsake their primitive ways and to adopt a higher civilization. Reforms of this character are necessarily radical, and not cheerfully submitted to or acquiesced in by uneducated Indians. The change from savagery to refinement is slow, and results from convincing the ignorant of the superior advantages which the latter state affords. The general government, realizing that the task of persuading the older Indians was difficult, has established schools to teach their children the English branches, and to instruct them in the use of tools and implements, thus rendering them self-supporting and partially qualified to compete with the Caucasian race. It is to the younger Indians, then, when removed from the influence of the examples of their parents, and from the teachings and *122traditions of their tribes, during the formation of their characters, and when educated in the schools provided for them,' that the government must look, to elevate their race. It is quite probable that this conclusion induced the passage of section 5 of the act of Congress approved February 28, 1891 (26 Stat. U. S. 794, 795, c. 383, 3 Fed. Stat. Ann. 499,501), providing that, for the purpose of determining the descent of land to the heir of any deceased Indian, whenever a male and a female Indian shall have cohabited as husband and wife, according to the custom and manner of Indian life, the issue of such cohabitation shall be deemed their legitimate offspring. Congress thus recognized the validity of Indian marriages, and, though the union may have occurred subsequent to the acceptance of an allotment of land in severalty in an Indian reservation, we believe that if the nuptials were celebrated according to the custom of the tribe of which the parties were members, or to which one of them belonged, and, in pursuance of such union, they have cohabited as husband and wife, the marriage is valid : Johnson v. Johnson’s Admr. 30 Mo. 72 (77 Am. Dec. 598); Earl v. Godley, 42 Minn. 361 (44 N. W. 254, 7 L. R. A. 125, 18 Am. St. Rep. 517); Bank of Austin v. Sharpe, 12 Tex. Civ. App. 223 (33 S. W. 676).
In United States v. Rickert, 188 U. S. 432 (23 Sup. Ct. 478), Mr Justice Harlan, in speaking of persons residing on a reservation, to whom allotments of land in severalty had been made thereon, says: “These Indians are yet wards of the nation, in a condition of pupilage or dependency, and have not been discharged from that condition.” The allotment of a part of a reservation to Indians in severalty does not terminate their tribal relations, nor remove them from the supervision and control of the interior department of the general government: United States v. Flournoy L. S. & Rl. E. Co. (C. C.) 71 Fed. 576. To reach any other conclusion might in some instances *123thwart the beneficient purposes of the government, and transfer the title of land donated by it to induce the elevation of a race into another channel, never contemplated, for if a marriage entered into by members of a tribe, according to the customs thereof, is to be held invalid, and the issue illigitimate, the offspring could never inherit from the father, whose real property, if he had no collateral kinsmen, following the rule of descent in Oregon, would escheat to the State: Laws 1903, p. 127. In McBean v. McBean, 37 Or. 195 (61 Pac. 418), Mr. Chief Justice Wolverton, in speaking of the tribal relations of an allottee on the Umatilla Indian Reservation, makes use of the following language : “And it is the adjudged policy of the law to treat the Indian tribes who adhere to their peculiar customs as separate communities or distinct nationalities, with full and free authority to manage their own domestic affairs, and to pursue their own peculiar habits and customs, especialty as it concerns the marriage relation. And this is so although their territory is located within the state lines, and the Federal Government manages their affairs through agencies designated for the purpose.” In State v. Columbia George, 39 Or. 127 (65 Pac. 604), the same justice, in discussing the rights of the Indians on that reservation, and the paternal exercise of authority over them, further says: “It would seem, therefore, that citizenship, such as extends, within the purview of the Dawes Act, to Indian allottees, is neither inconsistent nor incompatible with the status of a tribal Indian; that the government, while it has bestowed citizenship, has not thereby relinquished the guardianship of the tribes — indulging them yet a little while, but with greatly restricted authority, in their primitive government.” Though Indians residing on a reservation, to whom land therein has been allotted in severalty, are classed as citizens, and deemed to be subject to the laws of the state, *124■the Federal courts only have jurisdiction of grave crimes committed on the reservation by one such Indian against another: State v. Columbia George, 39 Or. 127 (65 Pac. 604). This is an admission that notwithstanding the allotment-a quasi tribal relation still subsists, and that the general government still continues to exercise a paternal care over these wards of the rtation, a'nd until that guardianship is removed, the state courts should not interfere with or disturb the domestic relations of such Indians; but, when these relations are involved, it should be the duty of the state courts' to determine whether or not they had been entered into or dissolved in accordance with the customs of the tribe.
2. The principal inquiry, therefore, is whether Jo’e Kalyton and plaintiff’s mother were married according to the customs of the Cayuse Indians. Lee Moorehouse, who had been Indian agent at the Umatilla Reservation, appearing as plaintiff’s witness, testified that he had' observed the customs of the Indians on that reservation, and was asked : “ Can you tell the habits of these Indians in regard to marrying, by the Indian custom?” and, over objection and exception, replied : “There doesn’t appear to be any regular form they go through in an Indian marriage, and, to get married, they simply go to living together, as near as I understand it.” This witness further says that when these Indians concluded to marry they entered into the agreement by mutual consent, and went to living together; that sometimes the man, if he had any property, purchased his wife; and that he understood the Indians considered their form of marriage as sacred as any other. In Henry v. Taylor (16 S. Dak. 494, 93 N. W. 641), it was held that in order to show a marriage between two Indians according to the Indian custom, consisting of an agreement to live together, followed by cohabitation, it was necessary to show an express agreement and pursuant cohabitation, *125which contract must be evidenced by words disclosing a meeting of minds, uttered in the present tense, for the purpose of establishing the marriage relation. The plaintiff’s mother, testifying by an interpreter, says that she lived with Joe Kalyton as his wife five years immediately prior to his death; that they were not married by any regular custom; that he asked her if she would live with him, and she consented; that the young and the old- Indians are married in that manner; and that it is an old custom, and she could not tell when it commenced. The testimony of this witness is corroborated by that of Joe Allen, who says that Kalyton and plaintiff’s mother lived together as other Indian husbands and wives belonging to that tribe. The defendant Mary Kalyton testifies that her brother and plaintiff’s mother lived together as husband and wife according to the Indian customs, in speaking of which she says she was first married in that manner, and lived with her husband one summer, and that they were thereafter married according to the laws of this State. We think the testimony clearly shows a valid and subsisting custom of the Gayuse tribe of Indians, in observing which Kalyton and plaintiff’s mother entered into an express agreement, evidenced bj words disclosing a meeting of their minds, followed by cohabitation, and, under the rule announced, established the existence of a valid marriage.
It is maintained by defendants’ counsel, however, that plaintiff’s mother was not competent to enter into a marriage contract at the time or after she commenced living with Kalyton, and, this being so, plaintiff’s illegitimacy is established, and no error was committed in decreeing the real property of which he died seised to his sister, as his sole heir. The testimony shows that plaintiff’s mother had lived with the following named Indians, as the wife of each, respectively, to wit: Ish-lo-wal-ko, White Wolf, *126and Top-la-won. The transcript does not show whether or not the first-named person is dead, but it discloses that the others were living during all the time she lived with Kalyton, Top-la-won having remarried. The plaintiff’s mother testifies that she was married to these persons in the Indian manner, and that she ceased to live with and separated from each according to the custom of her tribe. The following question was propounded to the interpreter : “Ask her if she separated or was divorced from White Wolf and these other Indians according to Indian custom, the same as Indians always separated ?” and she answered, through him, as follows: “Yes, sir; separated in the Indian way.” No evidence was offered tending to show how an Indian divorce is secured, and it is argued by defendants’ counsel that the testimony of plaintiff’s mother is the mere statement of a legal conclusion, and insufficient to establish the probative facts of the dissolution of the marital relation according to the Indian custom. The legal principle insisted upon would ordinarily be sufficient to defeat the plaintiff’s right of recovery, but in the present instance we do not think the rule invoked applicable, for, in settling the pleadings, the court having held that after the allotment of land in severalty a marriage according to law was a prerequisite to the legitimacy of the issue of cohabitation, the subordinate question of the capacity of plaintiff’s mother to enter into a marriage contract with Kalyton was not given that degree of attention which its importance demanded. No objection was interposed to the questions propounded to her in relation to her separation from her prior husbands, nor was she cross-examined as to the customs of her tribe in the manner of securing divorces, in view of which we believe the testimony was sufficient to show that she was divorced from them, and was capable of entering into a valid marriage with Kalyton.
*127It is contended by defendants’ counsel that the plaintiff was not born within the period of gestation after the death of Kalyton, and hence no error was committed in rendering the decree complained of. The testimony shows that Kalyton died, as plaintiff’s mother testified, a “few days” after the new year, and that her daughter was born “ late in the fall — the time the leaves fall off the trees”; that the witness did not know the names of the months, but that plaintiff was born about one month before Christmas, and at the trial her age was “four snows.” When it is considered that the knowledge of plaintiff’s mother concerning the year seems to be limited to the holidays, and that a “few days” or “one month” are to her vague and indefinite terms, we believe her testimony that Kalyton was the father of her daughter to be true, without discussing the question of how long gestation might be protracted. No testimony having been offered tending to show that plaintiff’s mother was dissolute, we conclude that her daughter, the plaintiff herein, was born in lawful wedlock, and is the sole heir of Joe Kalyton, deceased, and, as such, entitled to the possession of the real property of which he died seised. The decree will therefore be reversed, and one entered here in accordance with this opinion.
Reversed.
Decided 17 October, 1904.
On Motion for Rehearing.
Mr. Chief Justice Moore
delivered the opinion.
3. A petition for a rehearing having been filed, it is contended that this suit was instituted to determine, in effect, the title and right to the possession of public land, thereby necessarily rendering the United States a party; but that this cannot be done by a state court, and hence the decree rendered herein is coram non judice and void. *128The legal principle now insisted upon was not discussed by counsel at the trial in this court, but, as jurisdiction of subject-matter cannot be conferred by consent, is never waived (B. & C. Comp. § 72), and may be invoked for the firsttime on appeal (Evarts v. Steger, 5 Or. 147), it becomes necessary to consider the question presented. -
4. The act of Congress approved March 3, 1885 (23 Stat. U. S. 340, c. 319, § 1), providing for the allotment of lands in severalty to the Indians residing upon the Umatilla Reservation, in this State, and prescribing the quantity to be distributed to each person of the various classes, contains the following clause : “ The President shall cause patents to issue to all persons to whom allotments of lands shall be made under the provisions of this act, which shall be of the legal effect, and declare that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs according to the laws of the State of Oregon, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever; provided, that the law of alienation and descent in force in the State of Orégon shall apply thereto after patents have been executed, except as herein otherwise provided.” An examination of the language quoted will show that, though the issuance of two patents is contemplated, it is evident that the first specified in the act was intended to be nothing more than a certificate or written memorandum to evidence the selection of the land allotted-and to declare the trust reserved : United States v. Rickert, 188 U. S. 432 (23 Sup. Ct. 478).
5. In our opinion, the word “descent” in the clause stipulating “ that the law of alienation and descent in force *129in the State of Oregon shall apply thereto after patents have been executed,” etc., was intended to render the transmission of an estate by inheritance applicable to the land allotted to an Indian from the time such certificate was issued. The word “ alienation ” usually means the act by which the title to real property is voluntarily transferred by one person to and accepted by another, and such act is generally accomplished by the execution of a deed or of á will: Burbank v. Rockingham, etc. Ins. Co. 24 N. H. 550 (57 Am. Dec. 300). As an Indian cannot voluntarily transfer the title to the land allotted to him until the final patent is issued, it is evident that the word “alienation” was not used in the-act under consideration in its technical sense.
6. It is quite probable, however, that until the title is transferred an Indian allottee has no estate in the premises, and that his heirs take as donees of the United States, and not by inheritance from him. The act having provided that after the expiration of twenty-five years from the time of the allotment “the United States will convey the premises by patent” to the allottee or his heirs “in fee,” etc., the final patent, when issued, will invest the allottee with an estate in the land that he can “ alienate” or “ devise,” and, as these quoted words were not necessary in the grant of a fee, they, in our opinion, are limited to the first-patent issued.
7. The law of descent of this State being applicable on the death of an Indian allottee after the primary patent or certificate is issued, has a state court jurisdiction of the subject-matter, and is its decree determining the heirs in such cases valid ? So long as the United States holds the lands in trust for Indian allottees, the title thereto remains in the general government (United States v. Rickert, 188 U. S. 432, 23 Sup. Ct. 478), and the question as to whether *130or not a final patent therefor shall issue is to be determined by the Secretary of the Interior, thereby depriving state courts of all jurisdiction of the subject-matter : Mosgrove v. Harper, 33 Or. 252 (54 Pac. 187); Moore v. Robbins, 96 U. S. 530; United States v. Schurz, 102 U. S. 378. If this were a suit to enforce the trust reserved, the United States would be an indispensable party (Act Cong. Feb. 6, 1901, 31 Stat. U. S. 760, c. 217; 3 Fed. Stat. Ann. 503, 504, §§1,2); Pomeroy, Remedies, § 356; Tucker v. Silver, 9 Iowa, 261; Hy-yu-tse-mil-kin v. Smith, 194 U. S. 401, 24 Sup. Ct. 676), and as this cannot be done by a state court the decree rendered herein would be void. The determination by a state court of the heirs of a deceased Indian allottee is not, in our opinion, an execution of the trust: Bird v. Wimyer, 24 Wash. 269 (64 Pac. 178); Bird v. Terry (C. C.) 129 Fed. 472. The finding of such fact is not an interference with the primary disposal of the soil, but is in aid of the general government in protecting the rights of its cestui que trust. Thus in Kitcherside v. Myers, 10 Or. 21, it was held that where a person had taken the initiatory steps to secure the title to public land, and received from the proper officers the necessary evidence thereof, he was entitled to the possession of the premises selected, and for any interference therewith by another without legal title or equal equitable claim a state court, upon application of the entryman, would put him in possession of his rights. The rule is settled in this State that a person entitled to the possession of land the title to which is in the United States will be protected in his right by our courts, when his possession has been unlawfully disturbed by another : Jackson v. Jackson, 17 Or. 110 (19 Pac. 847); Hindman v. Rizor, 21 Or. 112 (27 Pac. 13); Allen v. Dunlap, 24 Or. 229 (33 Pac. 675); Bishop v. Baisley, 28 Or. 119 (41 Pac. 936) ; Pacific Live Stock Co. v. Gentry, 38 Or. 275 (61 Pac. 422, 65 Pac. 597); Browning v. Lewis, 39 *131Or. 11 (64 Pac. 304); Moore v. Halliday, 43 Or. 243 (72 Pac. 801, 99 Am. St. Rep. 724, and note). In the case at bar Joe Kalyton was entitled, during his lifetime, to the possession of the land allotted to him, and upon his death his heirs, under the law of descent in this State, succeeded to his right in the premises. This possession having been disturbed by one who is not his successor in interest or estate, according to such law, the rule established in this State makes it encumbent upon our courts, in aid of the beneficent policy adopted and pursued by the general government in caring for the Indians and in trying to promote their civilization, to declare by solemn degree who is his legal heir.
It is argued, however, that, unless the Indian agent in charge of the Umatilla Reservation voluntarily surrenders to the plaintiff the possession of the premises allotted to the deceased, it will be impossible to enforce the decree herein. It is the duty of the court to declare the law involved in causes submitted, irrespective of the consequences that may result therefrom, and, having faithfully discharged that obligation according to law, as we understand it, we are compelled to adhere to the opinion heretofore announced, leaving the enforcement of the decree to the person in whose favor it was rendered. It follows that the petition should be denied, and it is so ordered.
Rehearing Denied.