MEMORANDUM OPINION
DAUGHERTY, District Judge.
The plaintiffs, being five of the co-tenants of a Comanche Indian allotment, the title to which is held in trust by the United States, brought an action in the District Court of Cotton County, Oklahoma, against the remaining surface cotenant, the agricultural tenant and the United States to partition the allotment, for an accounting between the co-tenants, and for the extinguishment of a mortgage against the interest owned by the defendant cotenant. The United States removed to this court and moved to dismiss upon the ground that the United States is an indispensable party to the action and has not consented to be sued therein, and upon the further ground that the plaintiffs have not exhausted their administrative remedy.
The land which is the subject of this action is described as Lots Six and Seven and the East Half of the Southwest Quarter of Section Six, Township Three South, Range Ten West of the Indian Meridian in Cotton County, Oklahoma. It was allotted in 1901 to a Comanche Indian, Chemah, and a trust patent was issued. This allotment was made in the manner and to the extent provided in the General Allotment Act of February 8, 1887, 24 Stat. 388, 389.1 No fee [912]*912patent to the land has issued to Chemah or to her heirs. The trust period of twenty-five years has from time to time been extended,2 so that the United States continues to hold the title in trust at this time for seven heirs of the allottee.
One of the heirs, the plaintiff Flossie Parks Chemah, is the non-Indian widow of the allottee’s deceased son. Plaintiffs contend that because of this heir’s non-Indian status her inherited interest is not subject to the trusteeship of the United States and that the Secretary of the Interior is therefore without power or jurisdiction to partition her interest. It is urged that only the appropriate Oklahoma court is vested with jurisdiction to effect partition in such situations. The authority, I conclude, is to the contrary.
The inheritance of an interest in Indian land allotted under the General Allotment Act by one not of Indian blood does not operate to terminate the trust as to such interest. True, as was pointed out in Bailess v. Paukune, 344 U.S. 171, 173, 73 S.Ct. 198, 97 L.Ed. 197 (1952), the trust becomes a dry and passive one by reason of the fact that the non-Indian heir does not fall within that class of persons to whom the United States owes a duty of protection. As was stated in that decision, however, the title continues to remain in trust until such time as the ministerial act of issuing the final patent in fee has been performed.
The Indian probate statute 3 confers upon the Secretary of the Interior the exclusive duty of determining the heirs of deceased Indians for whom lands are held in trust under the General Atlotment Act and provides that his decision thereon shall be final and conclusive. That enactment also authorizes the Secretary to partition the land between the heirs. This authority is further implemented by the Act of May 18, 1916.4 Clearly there is no lack of Secretarial authority under which plaintiffs may obtain relief.
The plain import of the decision of Bailess v. Paukune, supra, is to require the issuance of a patent in fee to the non-Indian plaintiff. The Secretary of the Interior may cause her interest to be [913]*913partitioned in kind from the remainder of the allotment and issue a patent in fee to her for her aliquot part. It would seem that he could also issue to her a patent in fee for her undivided interest in the whole allotment, but it is suggested that the use of such method would solve nothing and would further confound the existing problems of multiple ownership.
State laws are not applicable to allotted Indian lands except to the extent that Congress has so authorized. State of Minnesota v. United States, 305 U.S. 382, 387, 59 S.Ct. 292, 83 L.Ed. 235 (1939); McKay v. Kalyton, 204 U.S. 458, 469, 27 S.Ct. 346, 51 L.Ed. 566 (1907). Counsel have not cited, nor have I been able to find, a federal statute consenting to a suit in the courts of the State seeking to partition property held in trust by the United States under the General Allotment Act. Nor would such congressional authorization be consonant with the language of that enactment because of its provision that “ * * * if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching the same, before the expiration of the time above mentioned, such conveyance or contract shall be absolutely null and void: * * Partition actions brought under applicable Oklahoma law presume the right to sell the land when it is found that the same is not susceptible of equitable partition in kind.
It is elemental that an action against property in which the United States has an interest is a suit against the United States. The United States thereby, of necessity, becomes an indispensable party to any action affecting such property. In United States v. Bros-nan, 363 U.S. 237, 250, 80 S.Ct. 1108, 1116, 4 L.Ed.2d 1192 (1960), the court said:
“ * * * Under the decisions of this Court, a judicial proceeding against property in which the Government has an interest is a suit against the United States which cannot be maintained without its consent. The Siren, 7 Wall. 152, 19 L.Ed. 129; State of Minnesota v. United States, 305 U.S. 382, 59 S.Ct. 292, 83 L.Ed. 235; United States v. State of Alabama, 313 U.S. 274, 61 S.Ct. 1011, 85 L.Ed. 1327. It has been suggested that this principle applies only where the Government holds a fee interest or such other interest in the property as to render it an indispensable party under state law. See United States v. Cless, 3 Cir., 254 F.2d 590, 592. That, however, seems a dubious distinction since whether or not the United States is an indispensable party to a judicial proceeding cannot depend on state law. See State of Minnesota v. United States, supra, 305 U.S. at page 386, 59 S.Ct. at page 294, 83 L.Ed. 235.”
Authorities supporting the rule that the United States, as sovereign, is immune from suit save as it consents to be sued are collected in United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). Accordingly, I find that the United States has an interest in the property sought to be partitioned, is an indispensable party to the action, and has not consented to be so sued.
Plaintiffs complain that the defendant Marlene N.
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MEMORANDUM OPINION
DAUGHERTY, District Judge.
The plaintiffs, being five of the co-tenants of a Comanche Indian allotment, the title to which is held in trust by the United States, brought an action in the District Court of Cotton County, Oklahoma, against the remaining surface cotenant, the agricultural tenant and the United States to partition the allotment, for an accounting between the co-tenants, and for the extinguishment of a mortgage against the interest owned by the defendant cotenant. The United States removed to this court and moved to dismiss upon the ground that the United States is an indispensable party to the action and has not consented to be sued therein, and upon the further ground that the plaintiffs have not exhausted their administrative remedy.
The land which is the subject of this action is described as Lots Six and Seven and the East Half of the Southwest Quarter of Section Six, Township Three South, Range Ten West of the Indian Meridian in Cotton County, Oklahoma. It was allotted in 1901 to a Comanche Indian, Chemah, and a trust patent was issued. This allotment was made in the manner and to the extent provided in the General Allotment Act of February 8, 1887, 24 Stat. 388, 389.1 No fee [912]*912patent to the land has issued to Chemah or to her heirs. The trust period of twenty-five years has from time to time been extended,2 so that the United States continues to hold the title in trust at this time for seven heirs of the allottee.
One of the heirs, the plaintiff Flossie Parks Chemah, is the non-Indian widow of the allottee’s deceased son. Plaintiffs contend that because of this heir’s non-Indian status her inherited interest is not subject to the trusteeship of the United States and that the Secretary of the Interior is therefore without power or jurisdiction to partition her interest. It is urged that only the appropriate Oklahoma court is vested with jurisdiction to effect partition in such situations. The authority, I conclude, is to the contrary.
The inheritance of an interest in Indian land allotted under the General Allotment Act by one not of Indian blood does not operate to terminate the trust as to such interest. True, as was pointed out in Bailess v. Paukune, 344 U.S. 171, 173, 73 S.Ct. 198, 97 L.Ed. 197 (1952), the trust becomes a dry and passive one by reason of the fact that the non-Indian heir does not fall within that class of persons to whom the United States owes a duty of protection. As was stated in that decision, however, the title continues to remain in trust until such time as the ministerial act of issuing the final patent in fee has been performed.
The Indian probate statute 3 confers upon the Secretary of the Interior the exclusive duty of determining the heirs of deceased Indians for whom lands are held in trust under the General Atlotment Act and provides that his decision thereon shall be final and conclusive. That enactment also authorizes the Secretary to partition the land between the heirs. This authority is further implemented by the Act of May 18, 1916.4 Clearly there is no lack of Secretarial authority under which plaintiffs may obtain relief.
The plain import of the decision of Bailess v. Paukune, supra, is to require the issuance of a patent in fee to the non-Indian plaintiff. The Secretary of the Interior may cause her interest to be [913]*913partitioned in kind from the remainder of the allotment and issue a patent in fee to her for her aliquot part. It would seem that he could also issue to her a patent in fee for her undivided interest in the whole allotment, but it is suggested that the use of such method would solve nothing and would further confound the existing problems of multiple ownership.
State laws are not applicable to allotted Indian lands except to the extent that Congress has so authorized. State of Minnesota v. United States, 305 U.S. 382, 387, 59 S.Ct. 292, 83 L.Ed. 235 (1939); McKay v. Kalyton, 204 U.S. 458, 469, 27 S.Ct. 346, 51 L.Ed. 566 (1907). Counsel have not cited, nor have I been able to find, a federal statute consenting to a suit in the courts of the State seeking to partition property held in trust by the United States under the General Allotment Act. Nor would such congressional authorization be consonant with the language of that enactment because of its provision that “ * * * if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching the same, before the expiration of the time above mentioned, such conveyance or contract shall be absolutely null and void: * * Partition actions brought under applicable Oklahoma law presume the right to sell the land when it is found that the same is not susceptible of equitable partition in kind.
It is elemental that an action against property in which the United States has an interest is a suit against the United States. The United States thereby, of necessity, becomes an indispensable party to any action affecting such property. In United States v. Bros-nan, 363 U.S. 237, 250, 80 S.Ct. 1108, 1116, 4 L.Ed.2d 1192 (1960), the court said:
“ * * * Under the decisions of this Court, a judicial proceeding against property in which the Government has an interest is a suit against the United States which cannot be maintained without its consent. The Siren, 7 Wall. 152, 19 L.Ed. 129; State of Minnesota v. United States, 305 U.S. 382, 59 S.Ct. 292, 83 L.Ed. 235; United States v. State of Alabama, 313 U.S. 274, 61 S.Ct. 1011, 85 L.Ed. 1327. It has been suggested that this principle applies only where the Government holds a fee interest or such other interest in the property as to render it an indispensable party under state law. See United States v. Cless, 3 Cir., 254 F.2d 590, 592. That, however, seems a dubious distinction since whether or not the United States is an indispensable party to a judicial proceeding cannot depend on state law. See State of Minnesota v. United States, supra, 305 U.S. at page 386, 59 S.Ct. at page 294, 83 L.Ed. 235.”
Authorities supporting the rule that the United States, as sovereign, is immune from suit save as it consents to be sued are collected in United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). Accordingly, I find that the United States has an interest in the property sought to be partitioned, is an indispensable party to the action, and has not consented to be so sued.
Plaintiffs complain that the defendant Marlene N. Fodder has assumed possession of the allotment to the exclusion of the plaintiffs, has been utilizing and continues to utilize it for agricultural purposes, has failed to share various items of income with or account therefor to the plaintiffs, and that the Bureau of Indian Affairs will not place the allotment under a Departmental agricultural lease in order that plaintiffs may share in the income. The government does not deny this allegation, but asserts that the provisions of the Heirship Leasing Act of July 8, 1940, 54 Stat. 745,5 [914]*914prevent the agency superintendent from entering into a lease contract when the land is in use by one of the heir's. Plaintiffs contend that the application of the statute to them is not only unfair but leads to an absurd result. With that view the Court is not inclined to disagree. But the question is a political one and not a judicial one. The judiciary cannot question or inquire into the motives which prompt the Congress to enact legislation in the field of Indian affairs, no matter how unfair or absurd the results of its application. Lone Wolf V. Hitchcock, 187 U.S. 553, 568, 23 S.Ct. 216, 47 L.Ed. 299 (1903).
Indians are citizens of the United States and as such have the capacity to sue in the courts to the same extent as all other citizens. Hatahley, et al. v. United States, 351 U.S. 173, 76 S.Ct. 745, 100 L.Ed. 1065 (1956). Nor are they immune from suit in their individual capacities. Plaintiffs therefore are not without a remedy. They may bring their action for an accounting in the appropriate State court and reduce their claim to judgment. It should be pointed out that any judgment so obtained, however, cannot be enforced against the Indian property of the defendants.6
Finally, plaintiffs complain that the defendant Marlene N. Fodder has encumbered the allotment with a mortgage. The government admits that the United States holds a mortgage upon her individual interest but asserts that it neither encumbers the plaintiffs’ interests nor imposes an obstacle to any partition effected by the Department of the Interior. I am in agreement that the government, which holds the mortgage, can readily shift its security to any aliquot part of the allotment which may ultimately be partitioned in kind to this defendant.
Accordingly, an order will be entered dismissing this action for lack of jurisdiction.