he asserts that the 1926 act is inapplicable here because the devise to plaintiff, as trustee, vests title to the property in a non-Indian. The question thus presented is one of statutory construction.
The obvious effect of the 1926 amendment was to enlarge the scope of section 9 of the 1908 act, supra, so as to place restrictions upon 'any interest' in restricted lands acquired by a full-blood Indian by inheritance or devise from an allottee. Grisso v. United States, supra. The statute deals realistically with the fact that so long as restrictions are made to depend upon quantum of Indian blood there is no logical basis for disparity between full-blood heirs and full-blood devisees, because one needs the protection of the Federal Government as much as the other. See Whitchurch v. Burge, D.C. 1936, 17 F.Supp. 234. The right to use and enjoy the property passes by the will to the full-blood Indians named, and they must be regarded as the real, substantial owners thereof. Cf. Blair v. Commissioner of Internal Revenue, 1937, 300 U.S. 5, 13, 57 S. Ct. 330, 81 L. Ed. 465. The Indians' ownership is not to be denied by the plaintiff because the fiduciary capacity in which he asserts the right to supervise and control the property is in itself a recognition that the Indians own an interest in that property. Clearly, therefore, the Indians have an interest in these lands which is subject to the restrictions imposed by the 1926 act.
While the lands are restricted the Secretary of the Interior has the power and duty under the oil and gas lease to supervise the collection, care and disbursement of the income therefrom as trustee for the full-blood Indian owners. Parker v. Richard, 1919, 250 U.S. 235, 39 S. Ct. 442, 63 L. Ed. 954. If there were any doubt, however, as to the restricted character of the funds coming into the custody of the Secretary of the Interior, that doubt would be removed by section 1 of the act of January 27, 1933, supra, the material part of which reads: 'That all funds and other securities now held by or which may hereafter come under the supervision of the Secretary of the Interior, belonging to and only so long as belonging to Indians of the Five Civilized Tribes in Oklahoma of one-half or more Indian blood, enrolled or unenrolled, are hereby declared to be restricted and shall remain subject to the jurisdiction of said Secretary until April 26, 1956, subject to expenditure in the meantime for the use and benefit of the individual Indians to whom such funds and securities belong, under such rules and regulations as said Secretary may prescribe * * * .' These funds belong to Indians of the degree of blood prescribed by the statute. The conditions of the statute being met, it follows that the funds are restricted and subject to the jurisdiction of the Secretary of the Interior. The Court of Appeals of the District of Columbia has so held and the matter must be regarded as laid at rest. Darks v. Ickes, supra; King v. Ickes, supra; Ickes v. United States, 1933, 62 App.D.C. 86, 64 F.2d 982; see also, Darks v. Magnolia Petroleum Co., et al., supra. Since the Congress has in effect designated the Secretary of the Interior as trustee for the full-blood Indians, no right can exist in the plaintiff incompatible with the trust.
There is also merit in the defendant's contention that the two cases decided adversely to the administrator are res judicata of this controversy. While the plaintiff herein instituted neither of those actions, yet one may be estopped by a judgment against his privies. Sunshine Anthracite Coal Co. v. Adkins, 1940, 310 U.S. 381, 402, 60 S. Ct. 907, 84 L. Ed. 1263. Under sections 251 and 252, Title 58, Oklahoma Statutes Annotated, the administrator is required to take into his possession all of the estate, both real and personal, and is authorized to bring any and all actions for the recovery or possession of real or personal property. Actions so instituted by an administrator are binding upon the heirs or devisees of the decedent. Jameson v. Goodwin, 1914, 43 Okl. 154, 141 P. 767; McClung v. Cullison, 1905, 15 Okl. 402, 82 P. 499. Assuming, however, that the decisions adverse to the administrator were not res judicata of the present controversy, those decisions nevertheless hold that the property is restricted and subject to the jurisdiction of the Secretary of the Interior.
Since the object of the present suit is to declare invalid the Government's exercise of power under the acts of April 12, 1926, supra, and January 27, 1933, supra, the United States of America would be an indispensable party to the granting of the relief sought. It is firmly established that the United States has an interest in restricted Indian property, and that this interest of the sovereign may not be foreclosed by a judgment in proceedings in which the United States is not a party. United States v. Hellard, 1944, 322 U.S. 363, 64 S. Ct. 985, 88 L. Ed. 1326; Minnesota v. United States, 1939, 305 U.S. 382, 59 S. Ct. 292, 83 L. Ed. 235; Cf. Drummond v. United States, 1945, 65 S. Ct. 659; Bowling v. United States, 1914, 233 U.S. 528, 34 S. Ct. 659, 58 L. Ed. 1080. In the Hellard case, supra (322 U.S. 363, 64 S. Ct. 987, 88 L. Ed. 1326), the court said: 'Restricted Indian land is property in which the United States has an interest. 'This national interest is not to be expressed in terms of property, or to be limited to the assertion of rights incident to the ownership of a reversion or to the holding of a technical title in trust.' Heckman v. United States, 224 U.S. 413, 437, 32 S. Ct. 424, 431, 56 L. Ed. 820.' Thus it is clear that the burden of a decree granting the relief sought by the plaintiff would fall upon the United States because a termination of restrictions would be a termination of the governmental interests of the United States. The interest of the United States is not distinct and severable from that of the Secretary, and no decree vitally affecting that interest could be entered unless the United States were present as a party with an opportunity to be heard. Osage Tribe of Indians v. Ickes, D.C.D.C., 45 F.Supp. 179, affirmed 77 U.S.App.D.C. 114, 133 F.2d 47, certiorari denied, 1942, 319 U.S. 750, 63 S. Ct. 1158, 87 L. Ed. 1704; Morrison v. Work, 1925, 266 U.S. 481, 45 S. Ct. 149, 69 L. Ed. 394; Oregon v. Hitchcock, 1906, 202 U.S. 60, 26 S. Ct. 568, 50 L. Ed. 935.
There remains the question of the propriety of the remedy of mandamus. While an administrative officer may not avoid a plainly prescribed duty by relying upon the necessity of reading a particular statute and applying it to the facts at hand, yet if the statutes involved do not plainly prescribe the officer's duty in language equivalent to a positive command the determination of his duty amounts to the exercise of judgment or discretion which cannot be controlled by mandamus. The statutes involved in the present case were enacted at various dates over a period of years and must be read as a whole. So viewed, it cannot be said that those statutes plainly require the Secretary to take the action demanded by the plaintiff. The defendant had reasonable grounds for the interpretation he placed upon those statutes in 1932, and his refusal to relinquish the Indians' property to the plaintiff at that time cannot be regarded as capricious. Wilbur v. United States ex rel. Kadrie, et al., 1930, 281 U.S. 206, 218, 50 S. Ct. 320, 74 L. Ed. 809; United States ex rel. McLennan v. Wilbur, 1931, 283 U.S. 414, 420, 51 S. Ct. 502, 75 L. Ed. 1148; United States ex rel. Kansas City Southern R. Co. v. Interstate Commerce Commission, 1938, 68 App.D.C. 396, 98 F.2d 268; United States ex rel. United States Borax Co. v. Ickes, 1938, 68 App.D.C. 399, 98 F.2d 271, 281; Calf Leather Tanners' Ass'n v. Morgenthau, 1935, 65 App.D.C. 93, 80 F.2d 536, 541, 542.
For the foregoing reasons, and in further compliance with Rule 52(a) of the Rules of Civil Procedure, I state separately my conclusions of law as follows:
Conclusions of Law.
1. The lands and funds involved in this controversy are restricted under the acts of April 12, 1926, supra, and January 27, 1933, supra, and are properly subject to the jurisdiction of the Secretary of the Interior.
2. The cases of Darks v. Ickes, supra, and Darks v. Magnolia Petroleum Co. et al., supra, are res judicata of this controversy.
3. The United States of America would be an indispensable party to the granting of the relief sought by the plaintiff.
4. The statutes do not clearly require the Secretary of the Interior to take the action demanded by the plaintiff, and, as a consequence, the plaintiff is not entitled to a mandatory injunction against the defendant.
5. Judgment should be for the defendant, with costs assessed against the plaintiff.
The entry of appropriate judgment will be accordingly directed by proper order.