be issued to require the Secretary of the Interior to deliver to the plaintiff a fee patent to the property in controversy and to account for any income which has accrued from such property.
Conclusions of Law
1. Although the United States has not been named a party defendant this suit is a suit against the United States to which it has not given its consent, and the Court lacks jurisdiction.
2. The five tracts of land allotted respectively to Angeline La Jeunesse, being Allotment No. 125, Mr. Nibitsie, being Allotment No. 947, Thyra Passedoah, being Allotment No. 948, Neal Passedoah, being Allotment No. 2123, and Jossie Passedoah, being Allotment No. 2124, remained restricted for a period of twenty-five years from the date of the issuance of the trust patents.
3. By Executive Order No. 5768 dated December 30, 1931, issued by President Hoover, by Executive Order No. 8580 issued October 29, 1940, and Executive Order No. 8965 issued December 10, 1941, by President Franklin D. Roosevelt, the restrictions on the five tracts of land described in the foregoing conclusion of law were extended until the year 1967.
4. The matter of removing restrictions from the property of Indians who received trust allotments under the General Allotment Act and the matter of issuing fee patents for such lands are matters for the discretion of the Secretary of the Interior and mandamus will not lie to compel him to perform such a discretionary action.
5. The issuance of a fee patent to William O'Neal for his own Allotment No. 843 and the issuance of a fee patent to Mary Candler for her own Allotment No. 765 did not have the effect of releasing the restrictions against the alienation of the five tracts described in Conclusion of Law No. 2 which were imposed by the General Allotment Act, Act of February 8, 1887, 24 Stat. 388, 25 U.S.C.A. § 348.
6. The restrictions against the alienation of lands which were allotted to Lillie Passedoah, Allotment No. 950, were removed by the issuance of a fee patent on January 11, 1919, No. 658744, which conveyed the legal title to those lands in fee simple to the then owner.
7. Title 25 U.S.C.A. § 373, providing that adult Indians may make wills disposing of their restricted property and providing for the approval of such wills by the Secretary of the Interior does not confer power upon such Indians to dispose of their restricted property without the approval of the Secretary of the Interior.
8. The determination of heirship of an Indian who died leaving restricted property does not, by virtue of 25 U.S.C. § 372, operate to remove the restrictions from the property of such Indians. Nor does the Citizenship Act of June 2, 1924, 43 Stat. 253, affect such restrictions.
9. Although the restrictions were removed from the allotment of Lillie Passedoah, No. 950, as noted in the foregoing conclusion of law and although it was error for the Secretary of the Interior to require the plaintiff to convey that tract by the deed dated April 5, 1930, to the United States in trust for Mary Candler, Mary Candler as the owner of the equitable or beneficial interest in that tract is a necessary party to this suit to cancel the deed of April 5, 1930. Jurisdiction over her for that purpose could be obtained only by personal service.
10. The court concludes that the delivery to Mary Candler in Lander, Fremont County, Wyoming, where she lived, of a copy of the complaint was not personal service upon her within the meaning of the statutes and the Federal Rules of Civil Procedure relating to service of process.
11. Without jurisdiction over Mary Candler the suit as to the land described as the Allotment to Lillie Passedoah No. 950 should be dismissed.
12. The plaintiff's claim is barred by the statute of limitations, D.C.Code 1940, Title 12, § 201, and by laches.
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