delivered the opinion of the court.
This writ of error brings up for review, a judgment of the Court of. Appeals of the District of Columbia (35 App. D. C. 429) affirming a judgment of the Supreme Court of the District refusing a writ of mandamus commanding the Secretary of the Interior to deliver to the relator a patent for a tract of land claimed by the latter as a Cherokee allotment. The facts upon which the decision must turn are these:
On August 21, 1907, a parcel of allottable land containing 50 acres, in the Cherokee Nation, was selected as an allotment for Eva Waters, a minor Cherokee child belonging to the class whose rights to participate in the distribution and allotment of the tribal funds and lands were sustained in the recent decision in
Gritts
v.
Fisher,
Under the regulations governing the institution and disposition of contests over allotments a party was accorded thirty days after a decision by the Secretary within which, to apply for a rehearing. Within this period the parents of Eva Waters, acting in her behalf, applied to the Secretary for a rehearing of the matter covered by his decision of May 10, 1909, it being asserted in that connection that her potential interest was worth much more than the sum named in the decision,.and that her parents’ consent to the adjustment had been grounded on inaccurate and misleading information. The application was entertained,.andj after a hearing thereon in which Twist and Knight participated, the Secretary rendered a further decision vacating the former one and disapproving the proposed adjustment, on the ground that the consideration which the minor was to receive was not at all adequate. The Secretary also ruled that both contests should be considered and disposed of on their merits and that the $25,000 should be returned. The money was not actually repaid, but this may have been because those who paid it were as yet unwilling to take it back. In consequence of his later decision the Secretary declined to approve the patents executed by the principal chief, or to permit them to be recorded or delivered.
On July 16, 1909, Knight’s contest was called for hearing before the Commissioner to the Five Civilized Tribes in pursuance of the Secretary’s direction that it be considered and disposed of on its merits, and Knight then appeared and protested against any further steps therein, insisting that in virtue of the matters hére recited he had acquired a fixed and absolute right to the patent and that the administrative officers were without authority to proceed with the contest. The protest was disregarded, and on the same day he applied to the Supreme *11 Court of the District of Columbia for a writ of mandamus,, as before indicated, to compel the Secretary of the Interior to deliver to him the patent for the 30 acres and to perform any other acts necessary to clothe him with the full legal title.
The question for decision is, whether in the circumstances the Secretary was without authority to reconsider and vacate his decision of May Í0, 1909, approving the proposed adjustment of the relator’s contest, whereby the minor, Eva Waters, was to withdraw her selection in consideration of the payment by the relator of $15,000 for her use. It is frankly conceded by counsel for the relator, and rightly so, that the adjustment could not have been made without the Secretary’s approval, which means'that he possessed a power of decision in the matter. The act of July 1, 1902, 32 Stat. 725, c. 1375, under which the Cherokee lands were being allotted in severalty, shows that Congress was solicitous not only that every member of the tribe should receive an allotment (§§ 11, 16), but that the rights of minors should be specially asserted and conserved (§70). And that it was intended to clothe the Secretary with comprehensive powers is shown in the provisions that all matters relating to allotments should be determined under his direction (§ 22) and that all things necessary to carry into effect the provisions of the. act, not otherwise therein specifically provided-for, should be done under his authority and direction (§ 65). The question therefore is reduced to this: Was(his power of decision exhausted when on May 10, 1909, he approved the proposed adjustment? To this there can be only a negative answer. That decision was not final, but interlocutory. In terms it shows that the patent was not to be effective or delivered until he approved it, and the act of 1902 declared that it must have his approval (§ 59). Not only so, but, no statutory provision opposing, effect was to. be given to the regulation providing for rehearings
*12
and allowing, thirty days within which to apply therefor. Thus, it was as if the decision itself had. made provision for a rehearing. Proper regard must also be had for the fact that the act of April 26, 1906, 34 Stat. 137, c. 1876, § 5, expressly con Amplated that the title should not pass until the patent was recorded in the office of the Commissioner to the Five Civilized Tribes. In such a case we perceive no reason for departing from the rule applicable to kindred proceedings in the Land Department, which is well stated in the following excerpts from the opinion in
Brown
v.
Hitchcock,
“Until the legal title to public land passes from the Government, inquiry as to all equitable rights comes within the cognizance of the land department. In
United States
v.
Schurz,
* * * * * * * *
“We do not mean to say that cases may not arise in which a party is justified in coming into the courts of the District to assert his rights as against a proceeding in the land department or when the department refuses to act at all.
United States
v.
Schurz, supra,
and
Noble
v.
Union River Logging Railroad Co.,
“Neither do we affirm that the administrative right of the departments in reference to proceedings before them justifies action without notice to parties interested, any *13 more than the power of a court, to determine legal and equitable rights permits action without notice to parties interested.
****** **
“But what we do affirm and reiterate is that power is vested in the Departments to determine all questions of equitable right or title, upon proper notice to the parties interested, and that the courts must, as á general rule, be resorted to only when the legal title has passed from the Government.”
As entirely apposite, we repeat the statement in
New Orleans
v.
Paine,
Inasmuch as the decision of the Secretary revoking his prior approval of the proposed adjustment was not arbitrary or capricious, but was given after a hearing and in the exercise of a judgment and discretion confided to him by law, it cannot be reviewed, or he be compelled to retract it, by mandamus.
Ness
v.
Fisher,
The decisions in
Garfield
v.
Goldsby,
Judgment affirmed.