The partition and sale of restricted land in an action for partition constitutes an involuntary alienation, within the meaning of the Acts of Congress imposing restrictions; and prior to the enactment of the Act of June 14, 1918, 40 Stat. 606, 25 U.S.C.A. §§ 355, 375, the state courts in Oklahoma were without any authority under their general jurisdiction to partition and order sold land of that character acquired by full-blood members of the Tribes. Coleman v. Battiest, 65 Okla. 71, 162 P. 786; Lewis v. Gillard, 70 Okla. 231, 173 P. 1136. But section 2 of that act provides that the lands of full-blood members of any of the Five Civilized Tribes are made subject to the laws of the state respecting the partition of real estate, and that in case of a sale under a decree of partition the conveyance shall operate to relieve the land of all restrictions of every character.
It is clear that under these acts, without more, the district courts in Oklahoma would be without jurisdiction to partition restricted and tax-exempt land acquired through inheritance by full-blood members of the Five Civilized Tribes. Coleman v. Battiest, 65 Okla. 71, 162 P. 786; Hoodenpyl v. Champion, 71 Okla. 270, 177 P. 369. But, recognizing the frequent need to partition land acquired in that manner, the Congress enacted the Act of June 14, 1918, 40 Stat. 606.
Unless provided by Act of Congress, state courts in Oklahoma are without power to partition lands held by restricted Indians. Lewis v. Gillard, 70 Okla. 231, 173 P. 1136; Coleman v. Battiest, 65 Okla. 71, 162 P. 786. However, Congress has authorized partition of lands owned by Osage Indians (chapter 83, 37 Stat. 86, supra), but such proceedings in the state courts must conform to and comply with the requirements and provisions contained in the federal act.
Brewer v. Dodson, 60 Okla. 81, 159 P. 329; Title Guaranty Surety Co. v. Foster, 84 Okla. 291, 203 P. 231; Appeal of Sim's Estate, 162 Okla. 35, 18 P.2d 1077; Sims v. Billings, 162 Okla. 51, 18 P.2d 1084; Sharp v. Sharp, 65 Okla. 76, 166 P. 175; Eysenbach v. Naharkey, 114 Okla. 217, 246 P. 603; Coleman v. Battiest, 65 Okla. 71, 162 P. 786; Arnold v. Joines, 50 Okla. 4, 150 P. 130; Rock Island Imp. Co. v. Pearsey, 133 Okla. 1, 270 P. 846; Burris v. Straughn, 107 Okla. 299, 232 P. 394; Zahn v. Obert, 60 Okla. 118, 159 P. 298; First State Bank v. Lattimer, 48 Okla. 104, 149 P. 1099; Parmenter v. Ray, 58 Okla. 27, 158 P. 1183; Jackson v. Carroll, 86 Okla. 230, 207 P. 735; Condren v. Marlin, 113 Okla. 259, 241 P. 826; Oder v. Oder, 149 Okla. 63, 299 P. 202; Fowler v. Humphrey Inv. Co., 142 Okla. 221, 286 P. 867; Brown v. State National Bank, 133 Okla. 173, 271 P. 833. These cases are all cited by the plaintiff in the brief.
We so held in Eysenbach v. Naharkey, supra, and we now decline to depart from the rule therein announced. See, also, Robinson v. Fair, 128 U.S. 53, 9 Sup. Ct. 30, 32 L.Ed. 415; Coleman v. Battiest, 65 Okla. 71, 162 P. 786; Lewis et al. v. Gillard, 70 Okla. 231, 173 P. 1136: Hoodenpyl v. Champion, 71 Okla. 270, 177 P. 369. Neither can we agree with defendant that the view adopted in Eysenbach v. Naharkey, supra, is inconsistent with the general plan of administering Indian affairs as manifested by the various acts of Congress and the treaties with the different tribes.
Counsel says, and correctly so, that the district court of Okmulgee county had no jurisdiction to partition the inherited lands of Sammy Taylor if he were in fact a full-blood Indian minor. Coleman v. Battiest, 65 Okla. 71, 162 P. 786; Lewis v. Gillard, 70 Okla. 231, 173 P. 1136; Hoodenpyl v. Champion, 71 Okla. 270, 177 Pac 369; Eysenback v. Naharkey, 110 Okla. 207, 236 P. 619. The quantum of blood of this Indian minor does not appear in the abstract, and the absence of such leaves the record title to at least one-half interest in the land in grave doubt.
The decree, in attempting to partition the land, was in effect an alienation of certain portions of the land away from certain heirs, purporting to vest the title thereof in other heirs and the court was without jurisdiction at that time of the subject-matter. Coleman v. Battiest, 65 Okla. 71, 162 P. 786. The next matter which concerns us on a proper determination of this appeal is the question of whether or not Hardesty is entitled to recover $400 as attorney fees. Construing sections 5263, 5264, and 5265, C. O. S. 1921, together, we think that when a grantee sues upon his warranty, he is entitled to recover, if at all, among other damages, that of reasonable attorney fees.
In line with the principle announced in the cases cited, it has been generally held in both the state and federal courts that no right whatever can be acquired in Indian land under state law or upon equitable grounds where such right is based on and grows out of some act or relation made unlawful by Congress itself. F. B. Collins Investment Company et al. v. Beard, 46 Okla. 310, 149 P. 846; Brewer v. Perryman et al., 62 Okla. 176, 162 P. 791; Coleman v. Battiest, 65 Okla. 71, 162 P. 786; Jefferson v. Winkler, 26 Okla. 653, 110 P. 755; Tidal Oil Co. v. Flanagan, 87 Okla. 231, 209 P. 729. Our conclusion is that the Act of April 26, 1906, reimposing restrictions on that class of Indians to which the plaintiffs belong and requiring conveyances thereafter made of their inherited lands to be approved by the Secretary of the Interior was exclusive of all other modes for acquiring title thereto, and where a title thereafter asserted depended in part for its validity upon adverse possession under the Arkansas statute of limitation held for a number of years after the Act of Congress of April 26, 1906, became effective, such statute of limitation is inapplicable as a defense to an action brought by the plaintiffs for the recovery of such land.
" Coleman v. Battiest, 65 Okla. 71, 162 P. 786, was an action for partition of lands inherited from a full-blood. The suit was filed after the approval of the Act of Congress of May 27, 1908 (35 St. 315, c. 199), which provides:
Majority rights authorized by sections 4427 to 4430, Rev. Laws 1910, to be conferred under certain circumstances by the district court on minors are not applicable to an Indian minor in the matter of the sale of allotted or inherited Indian lands. Brewer v. Perryman et al., 62 Okla. 176, 162 P. 791. Partition cannot be had under the state statutes of allotted lands inherited by full-blood members of the Five Civilized Tribes. Coleman v. Battiest, 65 Okla. 71, 162 P. 786. State statute emancipating a minor upon marriage is not applicable to a minor Indian in a matter concerning his allotted or inherited lands.