NETERER, District Judge
(after stating the facts as above). [1] The facts demonstrate that the removal of the timber was an incident to'the beneficial use and enjoyment of the land, and that the sale of the timber is not within the restraints on alienation. Justice McKenna, in United States v. Paine Lumber Co., 206 U. S. 467, 473, 27 Sup. Ct. 697, 699 (51 L. Ed. 1139), said:
“Trie land is not tbe land of tbe United States, and tbe timber when cut did not become tbe property of tbe United States. And we cannot extend tbe restraint upon tbe alienation of tbe land to a restraint upon tbe sale of tbe timber consistently witb a proper and beneficial use of tbe land by tbe Indians. * * * Indeed, it may be said that- arable land is of no use until tbe timber is off, and it was of arable land that tbe treaty contemplated tbe allotments would be made. We encounter difficulties and bafliing inquiries when we concede a cutting for clearing tbe land for cultivation, and deny it for other purpose. At wbat time shall we date tbe preparation for cultivation and make tbe right to sell tbe timber depend? Must tbe axe * * * precede tbe plow and do no more than keep out of its way? And if that close relation be not always maintained, may tbe purpose of an allottee be questioned and referred to some advantage other than tbe cultivation of tbe land, and bis title or that of bis vendee to tbe timber be denied? Nor does tbe argument which makes tbe occupation of tbe land a test of tbe title to tbe timber seem to ns more adequate to justify tbe qualification of tbe Indians’ rights.”
[215]*215This conclusion would be decisive oí this case but for the alleged transfer of an easement for the 50-foot right of way across the land. The grant of such an interest in the land necessitates a determination of the question as.to whether there was a restriction upon alienation at the time it was made. Defendants contend that the patent should have been issued under the act of March 3, 1875, 18 Stat. 420, c. 131, § 15 (U. S. Comp. St. 1901, p. 1419), which provided that the land should be inalienable during a period of only five years, which period had expired at the time of the grant. This contention is based upon the holding of the Circuit Court of Appeals in Hemmer v. United States, 204 Fed. 898, 123 C. C. A. 194, that the act of 1875, which related to the acquisition of homesteads by nontribal Indians, was not repealed by the act of July 4, 1884, 23 Stat. 96, c. 180 (U. S. Comp. St. 1901, p. 1420), which embraces both tribal and nontribal Indians.
In that case the Indian had entered upon the land under the provisions of the act of 1875, and had resided upon and cultivated it for five years, and was entitled to make final proof and receive patent before the passage of the act of July 4, 1884. His actual proof was made, however, a few months after the passage of the latter act. The land department erroneously inserted in his patent a declaration that it should be inalienable for 20 years in accordance with the provisions of the act of January 18, 1881, 21 Stat. 315, c. 23. This act related solely to the Winnebago Indians of Wisconsin, and had no application to the Indian to whom the patent was issued, and was inserted therein by reason of an erroneous construction by the land department that the restrictions required by that act to be inserted in patents issued to Winnebago Indians applied to other Indians as well. In 1907 the department ruled that the,decision of United States v. Saunders (C. C.) 96 Fed. 268, that the act applied only to the Winnebago Indians was correct, and that its prior construction had been wrong. Thereafter, in August, 1908, and, as the court concludes, “doubtless in reliance upon these decisions,” defendant bought the land from the Indian. Subsequently, in June, 1909, the land department issued the Indian another patent, which declared that it was issued in lieu of the first patent, and contained a provision that the land should be held in trust for a period of 25 years, according to the terms of the act of 1884. In July, 1909, the United States brought a suit in equity against the immediate and remote grantees of the Indian to set aside all conveyances as having been made contrary to the provision, that the land should be held in trust for 25 years, contained in the last issued patent. The court held that the provision in the first patent that the act of 1881 should govern was void, and that the only provision against alienation attached to the Indian’s title was that provided by the act of 1875, under which the Indian’s right to obtain patent had become vested.
[2] It is well settled that a patent issued by the land department, where there is no want of jurisdiction or power to dispose of the land, is not subject to collateral assault. 32 Cyc. 1040, and cases cited; United States v. Winona & St. Paul Ry. Co., 67 Fed. 948, 15 C. C. A. 96. It is equally well settled that the decisions of the land depart[216]*216ment upon questions within its jurisdiction cannot be collaterally assailed.
“The land department of tlie United States is a special tribunal vested with judicial powers, whose decisions upon questions within its jurisdiction are impregnable to collateral attack, and conclusive until they are reversed on appeal or set aside by proper proceedings in equity.” Sanborn, J., in Hartman v. Warren, 76 Fed. 159, 22 C. C. A. 30; Johnson v. Drew, 171 U. S. 92, 18 Sup. Ct. 800, 43 L. Ed. 88; McCormick v. Hays, 159 U. S. 337, 16 Sup. Ct. 37, 40 L. Ed. 171; Smelting Co. v. Kemp, 104 U. S. 636, 26 L. Ed. 875.
[3] The Indian Sewalmus could have obtained the land in question under the provisions of the act of 1884. Whether he was also entitled to obtain it under the provisions of the act of 1875 was a question which was presented to the land department at the time his application for patent was presented. The determination of that question would depend, among other things, upon whether he was a member of the special class named therein, that is, whether he had severed his tribal relations. This would be a question of fact, depending upon evidence to be presented before the tribunal having jurisdiction of the matter, and which, if presented, we must presume was acted upon by the issuance of the patent under the act of 1884. We are not concerned with the question as to whether the issuance of the patent under the act of 1884 was erroneous. The land department had the power to issue the patent under either the act of 1875 or 1884. The fact that it may have erred does not deprive it of jurisdiction, or make its determination any the less final against collateral attack. The defense set up involves-: (1) a determination by this court that the decision of the land department that the Indian had not brought himself within'the-provisions of the act of 1875 was erroneous; (2) the reformation of the patent by striking therefrom the provision that the land shall be held in trust for 25 years, according to the provisions of the act of 1884; (3) the insertion of a provision against alienation for a period of 5 years, according to the act of 1875. All of this is asked for by way of collateral attack on the instrument thus sought to be reformed. A mere statement of such a request demands its denial.
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NETERER, District Judge
(after stating the facts as above). [1] The facts demonstrate that the removal of the timber was an incident to'the beneficial use and enjoyment of the land, and that the sale of the timber is not within the restraints on alienation. Justice McKenna, in United States v. Paine Lumber Co., 206 U. S. 467, 473, 27 Sup. Ct. 697, 699 (51 L. Ed. 1139), said:
“Trie land is not tbe land of tbe United States, and tbe timber when cut did not become tbe property of tbe United States. And we cannot extend tbe restraint upon tbe alienation of tbe land to a restraint upon tbe sale of tbe timber consistently witb a proper and beneficial use of tbe land by tbe Indians. * * * Indeed, it may be said that- arable land is of no use until tbe timber is off, and it was of arable land that tbe treaty contemplated tbe allotments would be made. We encounter difficulties and bafliing inquiries when we concede a cutting for clearing tbe land for cultivation, and deny it for other purpose. At wbat time shall we date tbe preparation for cultivation and make tbe right to sell tbe timber depend? Must tbe axe * * * precede tbe plow and do no more than keep out of its way? And if that close relation be not always maintained, may tbe purpose of an allottee be questioned and referred to some advantage other than tbe cultivation of tbe land, and bis title or that of bis vendee to tbe timber be denied? Nor does tbe argument which makes tbe occupation of tbe land a test of tbe title to tbe timber seem to ns more adequate to justify tbe qualification of tbe Indians’ rights.”
[215]*215This conclusion would be decisive oí this case but for the alleged transfer of an easement for the 50-foot right of way across the land. The grant of such an interest in the land necessitates a determination of the question as.to whether there was a restriction upon alienation at the time it was made. Defendants contend that the patent should have been issued under the act of March 3, 1875, 18 Stat. 420, c. 131, § 15 (U. S. Comp. St. 1901, p. 1419), which provided that the land should be inalienable during a period of only five years, which period had expired at the time of the grant. This contention is based upon the holding of the Circuit Court of Appeals in Hemmer v. United States, 204 Fed. 898, 123 C. C. A. 194, that the act of 1875, which related to the acquisition of homesteads by nontribal Indians, was not repealed by the act of July 4, 1884, 23 Stat. 96, c. 180 (U. S. Comp. St. 1901, p. 1420), which embraces both tribal and nontribal Indians.
In that case the Indian had entered upon the land under the provisions of the act of 1875, and had resided upon and cultivated it for five years, and was entitled to make final proof and receive patent before the passage of the act of July 4, 1884. His actual proof was made, however, a few months after the passage of the latter act. The land department erroneously inserted in his patent a declaration that it should be inalienable for 20 years in accordance with the provisions of the act of January 18, 1881, 21 Stat. 315, c. 23. This act related solely to the Winnebago Indians of Wisconsin, and had no application to the Indian to whom the patent was issued, and was inserted therein by reason of an erroneous construction by the land department that the restrictions required by that act to be inserted in patents issued to Winnebago Indians applied to other Indians as well. In 1907 the department ruled that the,decision of United States v. Saunders (C. C.) 96 Fed. 268, that the act applied only to the Winnebago Indians was correct, and that its prior construction had been wrong. Thereafter, in August, 1908, and, as the court concludes, “doubtless in reliance upon these decisions,” defendant bought the land from the Indian. Subsequently, in June, 1909, the land department issued the Indian another patent, which declared that it was issued in lieu of the first patent, and contained a provision that the land should be held in trust for a period of 25 years, according to the terms of the act of 1884. In July, 1909, the United States brought a suit in equity against the immediate and remote grantees of the Indian to set aside all conveyances as having been made contrary to the provision, that the land should be held in trust for 25 years, contained in the last issued patent. The court held that the provision in the first patent that the act of 1881 should govern was void, and that the only provision against alienation attached to the Indian’s title was that provided by the act of 1875, under which the Indian’s right to obtain patent had become vested.
[2] It is well settled that a patent issued by the land department, where there is no want of jurisdiction or power to dispose of the land, is not subject to collateral assault. 32 Cyc. 1040, and cases cited; United States v. Winona & St. Paul Ry. Co., 67 Fed. 948, 15 C. C. A. 96. It is equally well settled that the decisions of the land depart[216]*216ment upon questions within its jurisdiction cannot be collaterally assailed.
“The land department of tlie United States is a special tribunal vested with judicial powers, whose decisions upon questions within its jurisdiction are impregnable to collateral attack, and conclusive until they are reversed on appeal or set aside by proper proceedings in equity.” Sanborn, J., in Hartman v. Warren, 76 Fed. 159, 22 C. C. A. 30; Johnson v. Drew, 171 U. S. 92, 18 Sup. Ct. 800, 43 L. Ed. 88; McCormick v. Hays, 159 U. S. 337, 16 Sup. Ct. 37, 40 L. Ed. 171; Smelting Co. v. Kemp, 104 U. S. 636, 26 L. Ed. 875.
[3] The Indian Sewalmus could have obtained the land in question under the provisions of the act of 1884. Whether he was also entitled to obtain it under the provisions of the act of 1875 was a question which was presented to the land department at the time his application for patent was presented. The determination of that question would depend, among other things, upon whether he was a member of the special class named therein, that is, whether he had severed his tribal relations. This would be a question of fact, depending upon evidence to be presented before the tribunal having jurisdiction of the matter, and which, if presented, we must presume was acted upon by the issuance of the patent under the act of 1884. We are not concerned with the question as to whether the issuance of the patent under the act of 1884 was erroneous. The land department had the power to issue the patent under either the act of 1875 or 1884. The fact that it may have erred does not deprive it of jurisdiction, or make its determination any the less final against collateral attack. The defense set up involves-: (1) a determination by this court that the decision of the land department that the Indian had not brought himself within'the-provisions of the act of 1875 was erroneous; (2) the reformation of the patent by striking therefrom the provision that the land shall be held in trust for 25 years, according to the provisions of the act of 1884; (3) the insertion of a provision against alienation for a period of 5 years, according to the act of 1875. All of this is asked for by way of collateral attack on the instrument thus sought to be reformed. A mere statement of such a request demands its denial.
It will be observéd from the facts stated in the Hemmer Case that the provision that the land should be held in trust for 25 years, inserted in the patent at the time of its issuance, was beyond the jurisdiction of the land department; that is, that it had no power to insert therein the provisions of an act which had no application whatever. At the time the defendant purchased the land and when his rights attached thereto, there was no valid restriction against alienation contained therein, and the court determined that it was only such restrictions as that provided for under the act of 1875, under which the Indian had entered and made his proof. The court held, in substance, that, the defendant having relied u]3on the provisions of the act of -1875, which Were by implication terms of the patent, the government should not be permitted, after the defendant had purchased the land, to insert other and more onerous provisions 23 years after the issuance of the patent. However, no element of estoppel enters into the instant case, for the restriction which the defendants are seeking to set aside [217]*217appeared upon the face of the patent at the time they acquired the easement. Simmons Creek Coal Co. v. Doran, 142 U. S. 417, 437, 12 Sup. Ct. 239, 35 L. Ed. 1063.
[4] The defendants also contend that as section 6 of the acf of February 8, 1887, 24 Stat. 390, c. 119, conferred the right of citizenship on Indians who had severed their tribal relations and adopted the habits of civilized life, they were entitled to land entered under the homestead laws as free from restrictions as any other citizen of the United States. A similar contention was made in Frazee v. Spokane County, 29 Wash. 278, 69 Pac. 779, and the court, speaking through Justice Hadley, said:
“The fact that the act of 1887 confers citizenship upon Indians who comply with certain conditions does not conflict with the law of 1884. * * * The later act does not i’cpeal the former, unless it may be said that the provision conferring citizenship in the later one has the effect to repeal the clause in the former which places restrictions upon alienation. We do not think it had that effect. The evident design of Congress was to prepare the Indian to become a self-supporting individual, and if, as a means to that end, and for the purpose of inducing him to separate himself from his tribal relations, it saw proper to confer citizenship upon him, we are unable to see that it is repugnant to the government’s still retaining a certain guardianship over Mm, in the way of holding title to his lands in trust for a period, so that he may not be deprived of them while he is learning the lessons and duties of citizenship.” Beck v. Flournoy Live Stock Co., 65 Fed. 30, 12 C. C. A. 497; United States v. Flournoy Live Stock Co. (C. C.) 69 Fed. 886; United Slates v. Flournoy Live Stock Co. (C. C.) 71 Fed. 576; Frazee v. Piper, 51 Wash. 278, 98 Pac. 760.
[5] The statement of Judge Hanford in the case of United States v. Saunders (C. C.) 96 Fed. 268, that the restriction against alienation for 20 years was repugnant to the grant, and void, must be taken in connection with the rest of his opinion. When so considered, it is manifest that he did not mean that the restriction was void because it was repugnant to the grant, but because “it was not required nor authorized by any law.” The only question there involved was whether a restriction imposed by an act which had no application was to be enforced. It could not therefore have been determined that the provisions of an act which did have application would .have been void, if inserted in the patent. Such a determination would have been without the range of inquiry. The court decided in that case that the act of 1881 had no application because it related to a special tribe of Indians, and the act of 1884 had no application because final proof was made before the passage of that act. Jt does not appear what would have been the decision had the court concluded that the provisions of either act were applicable.
Det an appropriate decree be presented.