This writ presents two questions: Had a district court of the state' of Oklahoma on March 2, 1908, jurisdiction to avoid, or to change in effect or duration, the restriction upon the alienation of the allotted homestead of a Creek minor, by means of a decree pursuant to section 4955a of Snyder’s Compiled Daws of Oklahoma 1909, that the rights of majority concerning contracts and the leasing of his allotment were conferred upon him; and may a lessee of the oil and gas deposits of a certain tract of land, of the right to prospect for, extract, and use them, and of the right to occupy so much only of the surface of the land as may be reasonably necessary to carry on the work of finding, extracting and removing the oil and natural gas therefrom, who has never been in possession of the land, sustain an action of ejectment therefor against a defendant in possession of the property? The court below answered both these questions in the negative and dismissed the. action of ejectment which had been brought by the plaintiff, an assignee of an oil and gas lease of his homestead allotment made by Fred Saulsbury, a Creek freedman, on March 2, 1908, when he was only 19 years of age.
Saulsbury derived the title to his homestead from the United States and the Creek Nation. They had the right and the power to grant or to withhold it from him and, a fortiori, to fix the conditions and limitations on which he should hold and use it. They provided, by section 4 of the original Creek agreement approved March 1, 1901, that no allotment of any minor should be sold during his minority (31 Stat. c. 676, § 4, p. 863), and by the supplemental Creek agreement approved June 30, 1902 (32 Stat. c. 1323, § 16, p. 503), that the homestead allotment of each Creek citizen should remain nontaxable, inalienable, and free from any incumbrance whatever for 21 years from the date of the deed therefor. By the Act of May 2, 1890, 26 Stat. c. 182, § 31, p. 94, the laws contained in chapter 73 of Mansfield’s Digest of the Laws of Arkansas, so far as they were not locally inapplicable or in conflict with any law of Congress, had been put in force in the Indian Territory, and section 3464 of that chapter provided that males under 21 years and females under 18 years of age should be considered minors. So that Saulsbury was a minor when these restrictions upon the alienation of his homestead allotment were imposed, and he continued to be a minor and his homestead continued to be subject to prohibitive restrictions against its alienatiofi, or in-cumbrance by lease, or otherwise, on Alarch 2, 1908, unless his allotment was relieved from those restrictions by the decree of the district court under the Oklahoma law of 1895. This conclusion has not been reached without consideration of and reflection upon the contention of counsel for the plaintiff that the decree merely fixed the status or domestic social condition of Saulsbury. But the legal and actual effect of the decree, if it was valid, was to shorten the term of restriction upon the alienation or incumbrance of this homestead fixed
This, therefore, was the situation when the state of Oklahoma was admitted into the Union and the Indian- Territory became a part of it. The United States had prohibited the alienation of their homestead allotments by Creek minors except by means of the probate jurisdiction over them, their allotments, and the leases thereof, which it had vested exclusively in the district courts in the Indian Territory sitting as probate courts, and it had carefully withheld from those and all other courts the power to abolish, diminish, or modify by adjudging that these minors might lease or sell their allotments as though they were adults, the restrictions upon the alienation of their lands which it had imposed. The jurisdiction over the leases and allotments of these minors, and over their guardianship, together with all the other probate jurisdiction of the district courts of the Indian Territory, was transferred to and vested, not in the district courts of the state of Oklahoma, but in the county or probate courts of that state when it was admitted into the Union on November 16, 1907. 34 Stat. 277, § 19; Act March 4, 1907, c. 2911, 34 Stat. 1287, § 3; Constitution of Oklahoma, art. 7, § 12; Snyder’s Comp. Laws of Oklahoma 1909, p. 88; Schedule of the Constitution of Oklahoma, § 23; Snyder’s Comp. Laws of Oklahoma 1909, p. 140; Davis v. Caruthers, 22 Okl. 323, 97 Pac. 581, 583; Eaves v. Mullen, 25 Okl. 679, 107 Pac. 433, 436; Burdett v. Burdett, 26 Okl. 416, 109 Pac. 922, 924, 925, 35 L. R. A. (N. S.) 964. In addition to the watchful preservation of its ■ control over these allotments which the legislation which has been recited evinces, the United States had expressly reserved its power over'them and the alienation and incumbrance of them by the proviso to the first section of the enabling act of Oklahoma:
“That nothing contained in the said Constitution (of Oklahoma) shall be construed to limit or impair the rights of persons or property pertaining to*959 the Indians of said territories (so long as such rights shall remain unex-tinguished) or to limit or affect the authority of the government of the United States to make any law or regulation respecting such Indians, their lands, property, or other rights by treaties, agreement, law, or otherwise, which it would have been competent to make if this act had never been passed.” 31 Stat. 267.
The United States then, at the admission of the state of Oklahoma, as we have seen, had lawfully restricted the alienation by Creek minors of their homestead allotments until they came of age, except that by an order of the proper district court in the Indian Territory sitting as a probate court in regular proceedings therefor, such minor might be authorized to lease his property. If in this state of the legislation any state or territory had enacted a law adding the exception that such allotments might be leased by the minor upon the order of one of the trial courts of that state or territory, to the effect that such minor might act, contract, or convey as though he were of age, that law would have been iñ conflict with the acts of Congress and void, because the United States by excluding the law of Arkansas to that effect from the general laws of that state which it put in force in the Indian Territory rendered that law and any other territorial or state law of like character inapplicable to the rights of Creek minors in their homestead allotments, and to the restrictions upon the alienation of them. And by the same mark, and also because these restrictions, their nature and duration, are within the exclusive jurisdiction and power of the United States, and may not be destroyed or modified without its clear assent, the law of Oklahoma of 1895 of the same character, set forth in section 4955a and those which follow, of the Compiled Laws of Oklahoma 1909, was inapplicable to these rights and restrictions at and after the admission of that state to the Union, and the extension of all the laws of Oklahoma, so far as applicable over the Indian Territory by the Oklahoma enabling act (34 Stat. 275), and section 2 of the Schedule to the Oklahoma Constitution (Laws 1909, p. 137), failed to subject them to it.
About three months after this lease was made Congress passed the Act of May 27, 1908, c. 199, 35 Stat. 312. That act and the construction and legal effect- given to it by this court and by the Supreme Court of Oklahoma are consistent with the conclusion which has been reached in this case. Truskett v. Closser, 198 Fed. 835, 839, 840, 117 C. C. A. 477; Jefferson v. Winkler, 26 Old. 653, 110 Pac. 755, 758; Wilson v. Morton, 29 Okl. 745, 119 Pac. 213. That act was not passed, as counsel for the plaintiff contends, because prior to its passage the Oklahoma law of 1895 was applicable to the restrictions upon the alienation of the allotments of Creek minors and for the purpose of depriving it of further application. The chief object of its enactment was to remove certain restrictions upon the alienation of the allotments of some of the members of the Five Civilized Tribes, and if any purpose regarding the law of 1895 ever entered the minds of the legislators who passed this act of 1908, that purpose was to make it clear beyond doubt that the law of 1895 was inapplicable to the restrictions imposed by Congress upon the allotments of members of those tribes who were minors. The court below committed no error in its negative answer to the first question in this case.
There was no error in the trial of this case, and the judgment below is affirmed.