As the appellant itself suggests, the Supreme Court, in an opinion rendered at an earlier stage of the present litigation, has “pointed the way * * * for a decision on the full record which is now before this Court.”

Accordingly, we will set out herein, in italics, the “signposts” of law and of fact contained in the opinion to which the appellant refers — Arenas v. United States, 322 U.S. 419 , 64 S.Ct. 1090 , 88 L.Ed. 1363 . We will supplement the Supreme Court’s outline with material developed or suggested by the “full record” presented when the same case was again heard in the court below. D.C., 60 F.Supp. 411.

We shall find that, almost paragraph by paragraph, the Supreme Court’s opinion-charts the course that we must follow here.

“The petitioner Arenas is a full-blood Mission Indian, regularly enrolled in theAgua Caliente or Palm Springs Band. He sued in the United States District Court to-be awarded a trust patent to certain lands on the Palm Springs Reservation.” 322 U.S. at page 420 , 64 S.Ct. at page 1090 , 88 L.Ed. 1363 .

In the instant case, the appellee is suing for allotment trust patents in his own name- and as sole heir at law and next of kin of Guadaloupe Arenas, his wife, who died on-March 26, 1937; his father, Francisco-Arenas, who died on October 4, 1924; and. his brother, Simon Arenas, who died .on. February 18, 1925. [R. 10, 14, 19, 24-26,. 49]

“For a long period Congress pursued the policy of imposing, as rapidly as possible, our system of individual land tenure on the Indiapi. To this end tribal or communal land holdings of the Indians were superseded by allotment to individuals, who were protected against impro,vidence by restraints on alienation. The Mission Indians had deserved well and had fared badly and Congress passed the Mission Indian Act of Jan. 12, 1891 for their particular redress.” 322 U.S. at pages 420, 421, 64 S.Ct. at page 1090 , 88 L.Ed. 1363 .

In support of its statement that the Mission Indians “had deserved well and had fared badly,” the Supreme Court cites Sen. Rep.No. 74, 50th Cong., 1st Sess. In that report, the Senate Committee began its recommendation of the passage of the Mission Indian Act in the following words:

In this same Senate document is embodied the report of the Mission Indian Commission appointment by the Government to make an investigation into the condition of these Indians. In the latter report, dated July 13, 1884, we find the following account of thq red man’s burden in Southern California:

The record in the instant case further buttresses the Supreme Court’s statement. In a letter from the Commissioner of Indian Affairs to the Secretary of the Interior, dated December 13, 1944, and introduced by the appellant itself, the following language appears:

From the foregoing excerpts, it will be seen that, at least up to the second quarter of the nineteenth century, the Mission Indians .literally “dwelt safely, every man under his vine and under his fig tree.” 1 Kings 4:25. But after 1822, and particularly after California was admitted into the Union in 1850, it could be well said o£ the grape and fig and date lands of the Mission Indians: “The vine is dried up, and the fig tree languisheth; the palm tree * * * even all the trees of the field, are withered: because joy is withered away from the sons of men.” Joel 1:12.

The Supreme Court opinion continues its narrative of the legislative and administrative history pertinent to the instant case, taking up first the Mission Indian Act:

In a footnote, the court quotes Sections 4 and 5 of the Act, as follows:

The opinion then resumes its discussion of the legislation enacted on behalf of the Mission Indians, and of the administrative acts done in compliance therewith :

At this point, it might be well to advert to the appellant’s insistence that the “only relevancy of the General Allotment Act [supra, which will be discussed more fully hereafter], as binding upon the Secretary, is that he must allot to all Mission Indians and in the quantities specified therein.” But the appellant concludes its argument on this phase of the case with the following statement: “Thus, Congress, rather than requiring the Secretary to follow the detailed procedure set out in the General Allotment Act, permitted him to exercise his discretion as to the procedure to be followed in making selections on and allotting the Mission Indian Reservation.”

If this is correct, then it is highly relevant to point out that Wadsworth was specifically instructed by the Commissioner of Indian Affairs, with the approval of the Assistant Secretary of the Interior, to make all the Mission Indian allotments “under the provisions of the Act of Congress of February 8, 1887 (24 Stat.L. 388), as amended by the Act of June 25, 1910 (36 Stat.L. 855,) and supplemented by the Act of March 2, 1917 (39 Stat.L. 969-976).” [R. 46, 393, 402, 432]. And Wads-worth followed his instructions, noting the fact on the schedule as submitted to Washington. [Original Exhibit 15]

If, therefore, Congress “permitted” the Secretary of the Interior to “exercise his discretion as to the procedure to be followed in making selections” and allotments, it is clear that the Secretary exercised his discretion by choosing the General Allotment Act, “as amended and supplemented,” as his legislative guide. This fact, as tending to establish the Departmental policy, will be important in considering the schedule of 1927.

The Supreme Court’s recital continues:

The “full record” now before us indicates that as early as 1923, confusion and delay prevailed in the Department of Interior as far as the Agua Caliente Indian Reservation was concerned.

Two inter-office memoranda set out the chronology of the 1923 allotment schedule and reveal the departmental ineptitude in dealing with it:

And there the record ends, so far as the 1923 schedule is concerned. But the record of the Department’s delays, indecision and growing bias against allotments generally, unfortunately does not end at this point. It continues with alarming crescendo until December, 1944, when, as we will fully set out, not only does the Secretary’s “sound discretion” as to Palm Springs allotments dwindle into nothingness, but his personal knowledge of even the existence of such allotments simply does not appear.

We continue with the Supreme Court’s narrative:

Wadsworth made similar promises to other Indians. In a statement before the Committee of Indian Affairs of the United States Senate, Marcus Pete, a full-blood Indian who owned about 56 houses in the Agua Caliente Reservation, of a total value of $48,350, said that he had selected the land for his allotment and for his children’s allotments “through Mr. Wadsworth, United States special allotting agent.” Pete further stated:

In the court below, Wadsworth himself testified that he informed the allottees after the selections in each schedule had been made that “they could occupy the lands and make use of them as long as the allotments were scheduled out” [R. 146]; and that the Commissioner of Indian Affairs had authorized him to that effect [R. 142, 162, 164]. He also testified that it had been his experience that his allotments had come back within even less than six weeks — “less than a month.” [R. 186-187]

These were not the rash statements of an irresponsible beginner, but the author--ized promises of a veteran of the Indian Service, who at that time had been in the work for twenty or more years. [R.138] Mr. Wadsworth had been praised at a meeting of Indians at Palm Springs by Assistant Commissioner Meritt, [R.150-151 and 521] and of him Inspector Blair had said in his comprehensive report on the conditions in the reservation:

Wadsworth’s standing and accomplishments in the Indian Service are significant not only in establishing that the allottees did believe and had the right to believe his authorized representations, but also as tending to refute the specious and belated criticism of his 1927 schedule, voiced by Commissioner Collier. That criticism will be discussed fully hereafter.

Continuing its narrative regarding the 1927 allotments, the Supreme Court’s opinion sets forth:

On December 14, 1944, seven months after the Supreme Court had handed down the opinion quoted from herein, and more than seventeen years after Wadsworth’s schedule of selections for allotment [R. 314] had been received in the Indian Office [R. 317], Oscar L. Chapman, Assistant Secretary of the Interior, in a one-paragraph memorandum, disapproved the 1927 schedule. His disapproval was based upon the reasons noted in a lengthy letter by John Collier, Commissioner of Indian Affairs, which reasons Chapman adopted as his own. [R. 340]

Summarized, the Commissioner’s reasons for disapproving the 1927 schedule were as follows: (1) It gave allotments to only a minority of the members of the Band; (2) it did not represent a proper exercise of the allotment policy; (3) it did not divide the land into selections of equal value; (4) some portions of the land covered by it were of too great value as a unit to be allotted in severalty; (5) if the 1927 schedule had been approved, a just and equitable division of the tribal assets would be impossible. [R.327-338]

In an attempt to explain the unconscionable delay on the part of the Department of the Interior in passing upon the allotment rights of these Indians, the appellant’s brief asserts:

This attempt to justify the Secretary’s delay is inconsistent with the Commissioner’s own statement of what happened to the schedule after it reached Washing ton. After reciting “in minute detail” [R. 325] certain office and administrative matters relatéd to the routing of the ill-starred document, the Commissioner stated his conclusion:

How can it be said, then, that the Secretary of the Interior was burning the midnight oil, year after year, over this Palm Springs allotment problem, when he did not even “consider” the1 chief datum in that problem — the schedule of selections for allotment prepared by his own experienced and competent agent in the field?

Finally, the appellant argues:

From the foregoing, it is reasonably clear that the 1927 schedule was held up in the Indian Office for two reasons: First, in the hope that legislation, to be referred to in greater detail hereafter, would be enacted by Congress to abolish the system of allotments so far as the Mission Indians were concerned; and second, in the belief that, in any event, the Secretary had discretion as to whether allotments on these reservations should be made at all. When Congress and the Supreme Court both frustrated these hopes of the Commissioner’s he “promptly”— that is, seven months after the Supreme Court’s decision — recommended disapproval of the 1927 schedule.

In other words, the specious objections to the schedule appear to be mere “window dressing,” under the cover of which Commissioner Collier could gratify his deep-seated and long-standing aversion to allotments generally.

This implacable opposition to allotments is irrefutably established by statements made at Congressional hearings, as well as by the “full record” in the instant case. In a statement before the Senate Committee on Indian Affairs at a hearing on S. 1424 and S.2589, Commissioner Collier said:

Again, at the same hearing, the Commissioner said:

In the court below, Wadsworth testified that Commissioner Collier was “opposed to allotments.” [R.149]

Collier’s opposition seemed to have commenced early — in the 1920’s, when he was secretary of the Indian Defense League or Association, as it is variously called in the record.

Referring to the organizations “largely responsible for the numerous protests, now on file with the Department, against the proposed allotments to the Mission Indians” [R.421], Inspector Blair, in his report to the Secretary of the Interior under date of April 30, 1924 [R.421], introduced in evidence by the appellant itself, wrote:

Mr. Wadsworth identified Commissioner Collier as having written letters opposing allotments while Collier was connected with the “American Indian Defense Association.” [R. 148-149]

Finally, the fourth reason assigned by Collier for the disapproval of the 1927 schedule discloses that his real objection was not to the particular schedule itself, but to allotments generally, at least as far as part of the land covered by the schedule was concerned:

As to those portions, at least, Commissioner Collier admitted that no plan of allotment would have pleased him. Yet it must be borne in mind that, in a letter written by Commissioner Charles H. Burke, dated August 29, 1928, and addressed to the Secretary of the Interior — which letter Collier contends never reached the Secretary — [R.326] it is stated that the allotments were made and the schedule prepared “in accordance with instructions of this Department.” [R.583] Nowhere in those instructions does it appear that Wadsworth was told not to include the lands to which Collier objected, [R.525-531] namely, those embraced in the much-discussed Section 14. [R.336-338]

Therefore, so far as Section 14 is concerned, at least it is evident from Collier’s own recommendations that he objected not to the method, of allotment, but to the fact of allotment.

As we read the record — and, indeed, even the briefs of the appellant itself — it is reasonably clear that Collier was planning to “pocket veto” his own agent’s allotments by permitting them to gather du'st in the pigeon-holes of the Department. When, in 1944, however, the Supreme Court cut from under him and his chief the power to disapprove of allotments generally, Collier bestirred himself and sought to adduce plausible reasons why that particular allotment of 1927 should not be approved. At this juncture, it should be observed that Collier’s own letter contains internal evidence that it was an afterthought, made expedient by the Supreme Court’s decision:

In other words, Collier seems to be trying to do indirectly what the Supreme Court said that the Department could not do directly; namely, frustrate the Congressional policy of allotments to Mission Indians generally.

Quite apart, however, from Commissioner Collier’s motives in opposing this schedule, the stubborn and unexplained fact remains that these Indian allottees were kept in suspense for nearly two decades as to whether or not their selections were to be approved and patents granted to them. Certainly, such unprecedented a delay constitutes neglect on the part of the Department. The legal consequences of such neglect will be considered hereafter.

At this point, it will suffice to observe that the Indians were entitled to have, with reasonable promptness, a yes-or-no answer as to whether they were going to get their patents. The Great White Father should place his dealings with his underprivileged wards upon a higher plane than that which has marked the conduct of the Department in the instant case. United States v. Shoshone Tribe of Indians, 304 U.S. 111, 116 , 58 S.Ct. 794 , 82 L.Ed. 1213 ; United States v. Alcea Band of Tillamooks, 67 S.Ct. 167 .

Since the appellant concedes that the Supreme Court “construed the 1917 Act [supra] as removing from him [the Secretary of the Interior] discretion as to whether allotments should be made at all on the Palm Springs Reservation,” we will quote from that section of the opinion only the portions helpful in resolving the issues that are still in controversy herein:

Regarding the Secretary’s discretion as to procedure for making the allotments, the Supreme Court observed:

At this juncture, it should be pointed out that Commissioner Burke’s letter of August 29, 1928, already referred to, not only set forth that the Palm Springs 1927 allotments had been “made * * * in accordance with instructions of this Department,” but specified that Wadsworth’s schedule was prepared “under the provisions of the Act of February 8, 1887 [24 Stats. 388] as amended by the Act of June 25, 1910 [36 Stats. 855] and supplemented by the Act of March 2, 1917 [ 39 Stat. 969 -976].” [R. 583] The General Allotment Act gives the Indians the right of selection. It will be remembered that the appellant insists that the “only relevancy of the General Allotment Act, as binding upon the Secretary, is that he must allot to all Mission Indians and in the quantities specified therein,” and that Congress permitted him to exercise his discretion as to the procedure to be followed. From Commissioner Burke’s letter, it is clear that if the Secretary had any discretion as to what law should be Wads-worth’s guide, in 1927 as in 1923 he exercised that discretion by designating the General Allotment Act as the governing statute. Commissioner Burke’s Jetter is also a Departmental admission that in making the 1927 allotment Wadsworth did in fact follow both the General Allotment Act and the Department’s instructions given thereunder.

Proceeding to its third and last point, the Supreme Court’s opinion in the Arenas case “points the way” to the determination of what it terms “the crux of the lawsuit”— 'the Secretary’s Discretion as to Final Approval of the Allotments.”

The Payne case, cited in the preceding quoted paragraph “points the way” to the norm of conduct that the Government should adopt in dealing with Indians:

After observing that the record then before it did not contain any information as to “what the dispute between the Secretary of the Interior and Arenas is about", the Supreme Court continues:

Evidence adduced at various Congressional hearings dealing with the situation on the Palm Springs Reservation indicates' that the leading business interests of the town urged the sale of the Indian lands in the immediate vicinity of Palm Springs. The arguments offered by those prominent white residents of the fashionable resort had no connection, for the most part, with the welfare of the Indians but unmistakably savored of the counting-house.

As no doubt faithfully representing the views of the “best people” of Palm Springs, a statement prepared for submission to Commissioner Collier by the Palm Springs Chamber of Commerce is illuminating. It is found in the report of the hearing on S. 1424 and S. 2589, from which we have already quoted. It frankly sets forth what the Supreme Court termed “the annoyance of the whites” over the Indians’ exploitation of the springs, the reasons for that annoyance, and the means whereby it might be eliminated. The entire document is quite lengthy, but we quote a few significant passages from its "Restatement,” or recapitulation :

Elsewhere in the same statement, we find an even plainer revelation of the reasons why the “best people” of Palm Springs wanted to get rid of their Indian neighbors :

These objections of the influential white residents of Palm Springs seem to have impressed some of the officials of the Indian Service, including Commissioner Collier, who. was opposed to allotments anyway.

C. L. Ellis, district superintendent of the Indian Field Service, with headquarters at Muskogee, Okla., under date of August 2, 1928, wrote to Collier as follows:

In his letter to the Secretary of the Interior of December 13, 1944, Commissioner Collier said:

It will be observed that Commissioner Collier’s expression, “rather shabby structures,” is a close echo to “the cheap shack construction” decried by the Palm Springs Chamber of Commerce!

In refreshing contrast with the foregoing arguments of the market-place is the statement of Mrs. Alice Lee Jemison, Washington representative of the American Indian Federation. Her declaration was praised by two members of the House Committee as “one of the most intelligent and persuasive statements I have ever heard before the committee.”

Referring to II. R. 7430, which would have authorized the sale of parj of the lands belonging to the Palm Springs Band, Mrs. Jemison said:

More impassioned but equally sincere was the outburst of Mrs. Juana S. Hatchitt, a Palm Springs Indian who spoke at another hearing of the House Committee of Indian Affairs:

The Supreme Court’s analysis of the Secretary’s discretion as to the final approval of the allotments is helpful to us in the instant case, even though that analysis was based only upon the complaint and affidavit and upon the record of the St. Marie litigation, supra:

The “full record” in this case clearly establishes that “a departmental change of. policy” was the real reason behind the disapproval of the 1927 allotment.

For years the Department had favored allotments of the Mission Indian lands. On December 22, 1926, Commissioner Burke, in recommending to the Secretary that this same 1927 schedule be prepared, and after mentioning the various Mission reservations in which allotments had already been made, wrote:

The record is replete with similar official expressions. [R. 487, 493-494, 495, 497, 500, 502, 504, 505-506, 508-509, 511, 513]

Chiefly because of the influence of Commissioner Collier, however, as we have already endeavored to show, the Department steadily veered away from a policy of allotment, at least so far as the Palm Springs Indians were concerned.

The Supreme Court’s opinion summarizes the legislation that the Secretary of the Interior recommended to Congress in furtherance of his opposition to allotments. It was in connection with some of this proposed legislation that the hearings from which we have quoted were held. The Court says:

llow strongly some of the Committee members in the House of Representatives felt about the efforts being made to deprive the Indians of their land is indicated by the passages at arms that they had with witnesses that advocated legislation designed for that purpose.

The arch-proponent of the sale of the Palm Springs Reservation lands, as the record clearly indicates, was Commissioner Collier. The following colloquy that occurred between the Commissioner and Representative Thomas O’Malley, of Wisconsin, is revealing:

While Carl Eardley, former United States Attorney who had handled some allotment suits involving the title to Palm Springs land, was making a statement, a question by Representative Fred L. Crawford, of Michigan, indicated that he too was not in sympathy with the aims of the Palm Springs Chamber of Commerce, so far as the Indians were concerned:

Finally, in the penult paragraph of its opinion, the Supreme Court advances to the legal conclusion that, we think, definitively “points the way” to the judgment that must be rendered in this case:

From the context, it is clear that the “policy of allotment” means the Congressional policy, and not the Departmental anti-allotment preferences; for on the preceding page we have just been told that “The Secretary has endeavored to persuade Congress that treatment other than the allotment policy embodied in its legislation would be more advantageous for the Indians.”

As if to make the semaphore even more luminous, the Supreme Court adds this final footnote:

The Department’s decision referred to by the Supreme Court is Allotment Selections on the Fort Belknap Indian Reservation, handed down July .17, 1935. The Solicitor’s opinion was approved by Assistant Secretary Chapman — the same official who approved Commissioner Collier’s adverse memorandum in the instant case. The opinion reads inopart as follows:

The Norris case, upon which the Solicitor relied so heavily in his Belknap opinion, supra, contains the following language :

In the instant case, it is undisputed that “the special agent made no allotments to any one not entitled thereto,” as' far as the right of Lee and Guadaloupe Arenas to be listed in the 1927 schedule is concerned.

In Bonifer v. Smith, 4 Cir., 166 F. 846, 849 , cited by the Solicitor in the Bel-knap case, supra, as “Smith v. Bonifer”, its title in the trial court, Judge Gilbert, of this court, said:

In his dealings with the Indians, the Secretary of the Interior does not have the power of an Asiatic potentate or even of a benevolent despot. He, like his wards themselves, is subject to legislative restrictions. The Supreme Court found it necessary to sound such a note of caution in the case of Ballinger v. United States ex rel. Frost, 216 U.S. 240, 249 , 30 S.Ct 338, 340 , 54 L.Ed. 464 :

See also Payne v. Central Pac. R. Co., 225 U.S. 228 , 236, 237, 41 S.Ct. 314 , 65 L.Ed. 598 ; Payne v. State of New Mexico, 255 U.S. 367, 371-372 , 41 S.Ct. 333 , 65 L.Ed. 680 ; State of Wyoming v. United States, 255 U.S. 489, 496, 497 , 41 S.Ct. 393 , 65 L.Ed. 742 ; United States v. Whitmire, 8 Cir., 236 F. 474, 480 ; Fort Peck Indian Reservation, 57 I.D. 16, 18-21, 24.

We next address our attention to the fourth ground upon which the Commissioner based his objection to the 1927 schedule:

We might well here paraphrase the language of the Supreme Court when it was considering the Secretary’s discretion as to whether or not the Indians were ready for allotments, and ask:

If some portions of the land were of too great a value to be allotted in severalty, why send an agent to hold out to the Indians that hope and promise? Why the elaborate procedure of allotment?

It is significant that the appellant, in summarizing the Commissioner’s reasons for recommending disapproval of the schedule, omits this fourth ground. Perhaps counsel for the Government realized that this fourth reason could not be defended under the applicable statutes and jurisprudence.

Be that as it may, it is clear that the Secretary no longer can refuse to allot Indian lands merely because they are too valuable. It is doubtful whether he ever had that power; but that question, under the Supreme Court’s holding in the Arenas case, supra, is now moot:

“The Act of 1917, however, drops the language of discretion and directs the Secretary to cause allotments to be made to the Indians on the Mission reservations.” Page 425 of 322 U.S., page 1093 of 64 S.Ct., 88 L.Ed. 1363; emphasis supplied by the Supreme Court.

In Leecy v. United States, 8 Cir., 190 F. 289, 292 , appeal dismissed, 232 U.S. 731 , 732, 34 S.Ct. 603 , 58 L.Ed. 818 , the court said:

This Court cited the Leecy case, supra, with approval in United States v. Payne, 9 Cir., 284 F. 827, 829 , affirmed, 264 U.S. 446 , 44 S.Ct. 352 , 68 L.Ed. 782 , supra.

Finally, a concise and, we think, a fairly accurate summary of the ambit of the Secretary’s powers with respect to Indian allotments has been given by Solicitor Mar-gold, of the Department of the Interior, in Fort Peck Indian Reservation, supra, 57 I.D. 16, 18-19, in an opinion handed down on May 31, 1939:

We do not agree, however, that there is either legislative or judicial authority for the qualification that the allotment selections must be “in accordance with a course of allotment on the reservation” in order to be binding upon the Secretary. Particularly inappropriate would such a qualification be where, as here, there had been no previous schedules that had received the Secretary’s approval. The crucial question is whether or not the statutes and the Departmental regulations and instructions were followed by the allotting agent. That this was done by Wadsworth in preparing the 1927 schedule is not disputed.

As we read the authorities, then, the Secretary’s powers regarding an allotment to a Mission Indian are twofold:

1. As to “whether the selector is acting within the law, in respect of * * the land * * * selected,” the Secretary’s authority is “judicial in its nature.” Payne v. New Mexico, supra, 255 U.S. at page 371 . So is his power as “to disapproving particular selections not entitled to approval because of error or the ineligibility of the applicant or other such reason.” Fort Peck Indian Reservation, supra, 57 I.D. at pages 18-19. No such illegality, “error”, or “ineligibility” has been shown in the instant case. The Secretary’s ostensible objections to the 1927 schedule were based upon “inequity”: his underlying opposition probably was due to a dislike for allotments in general, at least as far as these Indians were concerned. Neither reason was sufficient as a basis for his disapproval of the schedule on “judicial” grounds. His instructions to Wadsworth had been scrupulously carried out. He could not change his mind, and decide that there should be no allotments.

2. Once the regularity and the legality of a schedule, in every respect, are established, the Secretary’s duty as to approving the schedule and granting patents thereunder becomes ministerial.

If, however, the Supreme Court’s opinion in the Arenas case be interpreted to “point the way” to a third power enjoyed by the Secretary — namely, that of exercising discretion as to the approval of a schedule regularly and lawfuly prepared in accordance with his own instructions — under the record in the instant case we hold that such "discretion was abused. The abuse resulted from the promises made to the Indians by Wadsworth, the Secretary’s agent; from the Secretary’s own neglect of the schedule and his inordinate delay in reaching a decision thereon; and, finally, by the specious and colorable reasons given for the disapproval of the allotments, when the record clearly shows that the Secretary’s real objection was not to the carefully compiled individual schedule of 1927 but to the general Congressional “policy of allotment”.

Testing the “full record” in this case in the crucible of the foregoing legal principles, we find that there emerge the following decisive facts regarding the 1927 schedule :

1. The appellee and his wife, Guadaloupe Arenas, were duly enrolled and recognized members of the Palm Springs or Agua Caliente Band of Mission Indians of California. [R. 45]

2. In a letter dated March 19, 1927, the appellee and his wife requested of the Commissioner of Indian Affairs, through H. E. Wadsworth, the duly appointed special allotting agent at large, that each be given allotments of land on the Palm Springs Indian Reservation. [R. 48-49, 532-533]

3. Certificates of selections for allotment on that reservation for the appellee and his wife were delivered to them by Wadsworth. [R. 159] Both had done all that was necessary and all that they could do to become entitled to the land.

4. The allotments and the schedule thereof were prepared by Wadsworth in accordance with instructions of the Department of the Interior, and under the provisions of the Act of February 8, 1887 ( 24 Stat. 388 ), as amended by the Act of June 25, 1910 ( 36 Stat. 855 ) and supplemented by the Act of March 2,1917'( 39 Stat. 969 -976). The Indians whose names appeared on the schedule had signed written requests that the lands selected be allotted to them and that trust patents be issued therefor, [R. 582-583] in compliance with requirements of Department approval.

5. On August 29, 1928, Charles H. Burke, at that time Commissioner of Indian Affairs, recommended that the 1927 schedule be approved and that the Commissioner of the General Land Office be authorized» to issue trust patents for the allotments noted thereon, with the exception of five allotment selections not pertinent here. [R. 582-585]

6. In a memorandum dated April 24, 1929, submitted to the Commissioner of Indian Affairs by D. K. Parrott, Acting Assistant Commissioner of the General Land Office, it was stated that, except for certain modifications not relevant here, “no reasons [were] known why the schedule should not be approved and trust patents issued as recommended.” [R.573]

7. Following the decision of the Supreme Court in the Arenas case, supra, which admittedly took from the Secretary of the Interior “discretion as to whether allotments should be made at all on the Palm Springs Reservation” the schedule, after having lain in the offices of the Department of the Interior for 17 years without having even been “considered” by the Secretary [R.327], was disapproved by Assistant Secretary Oscar L. Chapman on December 14, 1944. The disapproval was based upon a lengthy letter from Commissioner Collier, who suddenly found much fault with the neglected schedule. (R.340; 327-340)

We therefore hold that the appellee has acquired an equitable title to the lands covered by his selection for allotment and the certificate therefor issued by Wads-worth. In the language of the Supreme Court, “he is entitled to have completed the all but fully executed policy of allotment” laid down by Congress. In accordance with the prayer of his third amended complaint, an allotment trust patent to the lands covered by his certificate of selection for allotment should be issued to him by the United States, [R. 24, 158-160] as of the date of the' schedule of selections for allotment, May 9, 1927. [R.49]

We turn next to the appellee’s claims to trust patents to the lands covered by the certificates of selections for allotment issued to Guadaloupe, his wife; Francisco, his father; and Simon, his brother. He bases these claims upon the ground that he is their “sole heir at law. and next of kin.” [R.12,17,22] His heirship and his kinship were testified to by the appellee in the court below [R. 192, 202, 207, 227], were found as facts [R. 69, 73, 77] by the trial judge, and, indeed, are not denied in the appellant’s briefs. The appellant contends, however, that the appellee cannot for other reasons obtain trust patents based on his deceased relatives’ certificates of selections.

As we have seen, “the owner of an allotment selection, even before its approval, has an inheritable interest.” Fort Belknap Indian Reservation, supra, 55 I.D. at Page 303, cited by the Supreme Court in the Arenas case, supra; Fort Peck Indian Reservation, supra, 57 I.D. at Page 19.

Guadaloupe died on March 26, 1937. [R. 49] Through a misapprehension, in its opening brief the appellant stated that she had died on March 26, 1927 [R. 36], and proceeded to argue that, even though she had requested an allotment, since her death occurred before the 1927 schedule was made out and transmitted she “had only a personal right which perished with her”. When its error was brought to its attention, however, the appellant, in its reply brief, withdrew that section of its opening brief dealing with the quality of Guada-loupe’s interest in the land covered by her selection for allotment. In other words, the appellant thereby has conceded, as in deed it must, that Guadaloupe’s rights under the 1927 schedule were on a parity with the rights, if any, enjoyed thereunder by the appellee himself.

We therefore hold that the appellee has inherited Guadaloupe’s equitable rights under her certificate of selection for allotment and the inclusion of her name in the 1927 schedule.

On a different footing, however, stand the claims of the appellee, as heir, to the lands covered by the purported selections for allotment made out by Wadsworth in favor of Francisco and Simon. It will be remembered that the latter two Indians died long before the 1927 schedule was even contemplated — on October 4, 1924, and February 18, 1925, respectively. Since their names were included under both the 1923 and the 1927 schedule, we will briefly consider their rights under each.

The record shows and the court found that Francisco and Simon, together with the appellee and Guadaloupe, protested in 1923 against the making of allotments, and that at least three of them refused their certificates of selections and caused them to be returned to Wadsworth by the postal authorities. [R. 176-180] The return of these certificates is specifically included in the lower court’s findings of fact, [R. 65, 69, 78] except in the case of Francisco, as to whom the court found that the evidence was not clear. [R. 74] In its opinion, however, the lower court stated that “Francisco Arenas did not accept his certificate of allotment, and these four allotment certificates remained in the possession of Mr. Wadsworth until he retired from the Government service in 1930.” 60 F.Supp. at page 415. When Francisco’s original certificate was introduced in evidence, Wadsworth, in answer to a question as to how it was returned to him, replied that he did not remember. [R. 179] Our own independent study of the record inclines us to the belief that Francisco, like his three relatives, returned his certificate of selection for allotment to Wadsworth, regardless of the mechanical means by which that return was effected. In any event, it is incumbent upon the appellee to establish by a preponderance of evidence that the persons to whose equitable titles he claims to succeed did all that was necessary and all that they could do to become entitled to the land. Otherwise he cannot bring himself within the doctrine announced in the Fort Belknap case, supra, which was cited with approval by the Supreme Court in the Arenas case, supra.

Be that as it may, it is beyond cavil that Wadsworth, in attempting to allot the lands to Francisco as well as Simon, made the selections for each of them. The evidence in this case establishes the fact, and in his brief the appellee admits it. [R. 172]

In our view, Wadsworth had no power to do this without specific authorization from the Secretary of the Interior. The record fails to show that he had such authorization, nor does the appellee point to any such specific authority from the Secretary. On the contrary, he relies upon the following general grant of power, contained in Section 2 of the General Allotment Act of 1887, appearing without change in 25 U.S.C.A. § 332 as follows:

It will be observed that the section has never been amended, since its original enactment in 1887. We .have preserved the appellee’s italicization for the reason that we believe that it indicates his misconstruction of this section. He emphasizes the allotting agent’s power to make selections for the Indians, but overlooks the condition precedent to the exercise of that power; namely, "the Secretary of the Interior may direct the agent of such tribe or band, if such there be, and if there be no agent, then a special agent appointed for that purpose, to make a selection for such Indian,” etc.

As the appellee points out, the Act of 1917 directed that allotments be made to the Mission Indians in severalty, and made unnecessary any Presidential direction. We have already quoted the Supreme Court’s construction of that statute as affecting the Secretary’s discretion as to whether or not the Indians “had the capacity for individual responsibility for land 'ownership.”

But nothing in the Act of 1917 or the construction thereof by the Supreme Court takes from the Secretary the authority to determine what method of allotment shall be followed. Indeed, as we have seen, the Supreme Court has plainly stated that “We assume the Secretary’s complete control of the method.”

Under Section 2 of the General Allotment Act, quoted above, there must be a specific direction from the Secretary to the agent in charge of the allotments that he make selections for Indians who fail to choose for' themselves. The record here is barren of any evidence that the Secretary authorized Wadsworth, or Ellis, or anyone else to make the selections for the Indians who refused to do so.

It might be observed, in passing, that any statute authorizing, the Secretary to force land in severalty upon the Indians should be strictly construed. Such legislation is in derogation of the general principles of law, which do not favor compulsory ownership of land — especially by persons in a restricted civil status.

Indeed, the court below, which seems to have been [R. 168, 189] impressed with Wadsworth and his “good memory,” felt compelled to say frankly:

The foregoing passage clearly indicates that Wadsworth was acting “on his own” when he made the selections for the Indians, and did not have the required special authorization from the Department for doing so.

The Supreme Court’s holding in this respect is unequivocal, specific and emphatic:

Accordingly, we hold that none of the four Indians whose titles are involved in this case acquired any equitable rights under the allotment schedule of June 21, 1923.

As to the 1927 schedule, we have already adjudicated the equitable titles acquired thereunder by the appellee and his wife, Guadaloupe. There remain to be considered the rights to a trust patent that it gave to Francisco and Simon.

Both these latter Indians were dead at the time that Wadsworth prepared and submitted the schedule.

In La Roque v. United States, 239 U.S. 62, 66 , 36 S.Ct. 22, 24 , 60 L.Ed. 147 , after quoting from the General Allotment Act of 1887, the Supreme Court said:

It is true that in the instant case, in a letter dated March 14, 1927, Commissioner Burke instructed Wadsworth as follows:

Even the instructions of the Indian Commissioner to a subordinate, however, cannot transcend a Congressional mandate, as construed by the highest court in the land.

We therefore hold that neither Francisco nor Simon Arenas acquired any equitable rights to a trust patent under either the 1923 or the 1927 schedule. Not having any such rights, of course, they could transmit none to the appellee.

Finally, the appellant complains that in the closing paragraph of its judgment the court below stated that it retained jurisdiction “for the purpose of adjudicating the reasonable sums that shall be allowed and paid to the attorneys of record for plaintiff for their services rendered to him in this action and for expenses necessarily incurred by them in his behalf in the prosecution thereof, and for the purpose of making all necessary and proper orders, judgments and decrees for the securing and payment of all such sums so found due and owing by the plaintiff to said attorneys.”

The appellant objects that “Presumably, it was intended that thereafter judgment would be entered against the United States for such expenses,” and points out that the Act of 1894, supra, “by which the United States consented to this suit, does not authorize the imposition of liability for costs or other expenses of litigation against the Government.”

We agree entirely with the appellant’s construction of the Act of 1894 [ 25 U.S.C.A. § 345 ], The difficulty with the appellant’s argument, however, is that it has no application to the case at bar.

The judgment of the court below seeks to impose no liability for any expenses of litigation upon any one, certainly not the United States. The appellant does not question the court’s right to leave the case open for such future action as it may deem proper: the objection is that “presumably” the lower court is planning to mulct the Government for the appellee’s attorneys’ fees.

There is neither internal nor external evidence that the judgment reflects any such intention, or any other unlawful or unfair intention. So far as the appellant is concerned, any objection to this paragraph of the judgment is not only premature, but moot. P'or this reason, this Court refrains from making any ruling on the subject.

That portion of the judgment which holds that the appellee is entitled to a trust patent for his allotment and for that of his wife, Guadaloupe Arenas, to be effective as of June 21, 1923, is modified so as to make the effective date May 9, 1927; and, as modified, that portion of the judgment is affirmed.

That portion of the judgment which holds that the appellee is entitled to a trust patent for the allotments purported to have been made to Francisco and Simon Arenas by either the 1923 schedule or the 1927 schedule is reversed.

Affirmed in part and reversed in part.

Because of the importance of this case and the earnestness and energy with which it has been litigated, we are supplying the page numbers of the record. St. Marie v. United States, D.C., 24 F.Supp. 237 , Id., 9 Cir., 108 F.2d 876 , certiorari denied because petition out of time, 311 U.S. 652 , 61 S.Ct. 35 , 35 L.Ed. 417 . Report of Hearing on S. 1424 and S. 2589, 75th Cong., 1st Sess., pages 260-261 (July 29,1937). Id., at Page 175. Id., at Page 176. Id., Page 53. Id., Page 35. Report of Hearings before the Committee on Indian Affairs, House of Representatives, on H.R. 7450, 75th Cong., 3d Sess., Page 180. Id., Pages 168-169. Report of Hearings before the Committee of Indian Affairs, House of Representatives, on H.R.5297, 75th Cong., 1st Sess., Page 39. “11 See H.R.Rep.No. 1521 and Sen.Rep. No. 1201, 74-th Cong., 1st Sess. “12 Sen.Rep.No. 1238, 75th Cong., 1st Sess. The Palm Springs Indians were among those who had voted against application to them of the Indian Reorganization Act of 1934, 48 Stat. 984 , which would have terminated all future allotment in severalty. “13 Hearings, House Committee on Indian Affairs, on H.R. 7450, 75th Cong., 3d Sess., pp. 5, 6.” Id., Pages 13-14. Id., Pages 518-519.