ORDER AND MEMORANDUM OPINION
JAMESON, Chief Judge.
This is an action seeking judicial review of the decision of the Secretary of the Interior approving the last will and testament of Amelia Keyes Abbott Viramontes Walker, deceased, mother of the plaintiff in this action, Earlene Ida Abbott Simons.1
Defendants have moved for summary judgment. The primary question for determination is whether the decision of the Secretary is subject to judicial review. Plaintiff concedes that, "If the case is not reviewable in this court and the Secretary's decision is final no doubt the case is ended".
The action of the Secretary was taken pursuant to section 2 of the Act of June 25, 1910, 36 Stat. 855, as amended, 25 U.S.C. §§ 372, 373. This Act reads in pertinent part:
"Sec. 1. When any Indian to whom an allotment of land has been made, or may hereafter be made, dies before the expiration of the trust period and before the issuance of a fee simple patent, without having made a will disposing of said allotment as hereinafter provided, the Secretary of the Interior, upon notice and hearing, under such rules as he may prescribe, shall ascertain the legal heirs of such decedent, and his decision thereon shall be final and conclusive. If the Secretary of the Interior decides the heir or heirs of such decedent competent to manage their own affairs, he shall issue to such heir or heirs a patent in fee for the allotment of such decedent; if he shall decide one or more of the heirs to be incompetent, he may in his discretion, cause such lands to be sold * * *.
"Sec. 2. Any persons of the age of twenty-one years having any right, title, or interest in any allotment held under trust or other patent containing restrictions on alienation or individual Indian moneys or other property held in trust by the United States shall have the right prior to the expiration of the trust or restrictive period, and before the issuance of a fee simple patent or the removal of restrictions, to dispose of such property by will, in accordance with regulations to be prescribed by the Secretary of the Interior: Provided, however, That no will so executed shall be valid or have any force or effect unless and until it shall have been approved by the Secretary of the Interior: Provided further, That the Secretary of the Interior may approve or disapprove the will either before or after the death of the testator, and in case where a will has been approved and it is subsequently discovered that there has been fraud in connection with the execution or procurement of the will the Secretary of the Interior is authorized within one year after the death of the testator to cancel the approval of the will, and the property of the testator shall thereupon descend or be distributed in accordance with the laws of the State wherein the property is located: Provided further, That the approval of the will and the death of the testator shall not operate to terminate the trust or restrictive period, but the Secretary of the Interior may, in his discretion, cause the lands to be sold and the money derived therefrom, or so much thereof as may be necessary, used for the benefit of the heir or heirs entitled thereto, remove the restrictions, or cause patent in fee to be issued to the devisee or devisees, and pay the moneys to the legatee or legatees either in whole or in part from time to time as he may deem advisable, or use it for their benefit: Provided also, That this section and section 372 of this title section 1 of the Act shall not apply to the Five Civilized Tribes or the Osage Indians." (Emphasis added.)
Section 1 relating to ascertainment of the legal heirs of the decedent contains the language "and his (the Secretary's) decision thereon shall be final and conclusive". In many cases it has been held that decisions of the Secretary made pursuant to section 1 are not reviewable.2 There is a conflict in the authorities as to whether the same finality extends to decisions of the Secretary under section 2. In the consideration of these cases, it is important at the outset to recognize the plenary power of Congress over Indians and Indian property. This power was well-summarized in an opinion by Judge Pope in Simmons v. Eagle Seelatsee, E.D.Wash.1965, 244 F.Supp. 808, 813; aff'd without opinion, 384 U.S. 209, 86 S.Ct. 1459, 16 L.Ed.2d 480.3 The court said in pertinent part:
"It is well settled that Congress has plenary control over Indian tribal relations and property and that this power continues after the Indians are made citizens. (citing cases) `After 1871 Congress turned from regulating Indian affairs by treaty to regulation by agreement and legislation. The plenary character of this legislative power over various phases of Indian affairs has been recognized on many occasions.' Board of County Com'rs of Creek County v. Seber, 318 U.S. 705, 716, 63 S.Ct. 920, 926, 87 L.Ed. 1094."
"* * * `"Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government. Lone Wolf v. Hitchcock, 187 U.S. (553) 565. (23 S.Ct. 216, 47 L.Ed. 299)."'"
A leading case on the effect and purpose of the Act of June 25, 1910, is Hallowell v. Commons, 239 U.S. 506, 508, 36 S.Ct. 202, 60 L.Ed. 409, which involved the equitable title of alleged heirs of an Indian allottee dying intestate during the trust period. It was argued that the Act should not apply to pending cases. The language of the Court in answering this contention (although related specifically to section 1 of the Act) is pertinent. The Court said in part:
"* * * This act restored to the Secretary the power that had been taken from him by acts of 1894 28 Stat. at L. 305, chap. 290 and February 6, 1901, chap. 217, 31 Stat. at L. 760, Comp.Stat.1913, § 4214. McKay v. Kalyton,4 204 U.S. 458, 468, 27 Sup. Ct.Rep. 346, 51 L.Ed. 566, 570. It made his jurisdiction exclusive in terms, it made no exception for pending litigation, but purported to be universal, and so to take away the jurisdiction that for a time had been conferred upon the courts of the United States. * * * But, apart from a question that we have passed, whether the plaintiff even attempted to rely upon the statutes giving jurisdiction to the courts in allotment cases, the reference of the matter to the Secretary, unlike the changes with regard to suits upon bonds, takes away no substantive right, but simply changes the tribunal that is to hear the case."
There is some conflict in the few cases which have passed upon the reviewability of decisions of the Secretary under section 2 of the 1910 Act. In the case of Homovich v. Chapman, 1951, 89 U.S.App. D.C. 150, 191 F.2d 761, the court held that review is not precluded by the statute,5 saying in part:
"* * * We think it plain that, if Congress had meant that the decisions in Section 2 should be final and conclusive, it would have said so; in the immediately preceding paragraph it had so provided when it meant to do so. The mere fact that the acts of the Secretary in providing regulations for the execution of these wills and in approving them, required the exercise of discretion and judgment on his part, does not preclude judicial review of his action. To be sure, if upon such review it appears that his action was within the scope of the authority conferred upon him, the court cannot disturb his decision. But that is a different rule from the rule of total non-reviewability. The Administrative Procedure Act (Section 10) forbids judicial review only where statutes `preclude' such review or where agency action is `by law committed to agency discretion.' No statute `precludes' this review, and the Secretary would have us stretch the second prohibitory clause far beyond its meaning. * *"
In Hayes v. Seaton, 1959, 106 U.S.App. D.C. 126, 270 F.2d 319, the primary question for determination was whether a father or son died first. If the father died first, the property passed to the son under his will. If the son died first, the father inherited his son's property by intestate succession. The court held that the Secretary's determination that the son survived the father was "final and conclusive" under Section 1 of the 1910 Act, and that there was "no basis for * * * reliance on § 2" of the act. In a dissenting opinion, Judge Burger took the position that both Sections I and 2 had equal bearing, and that the action of the Secretary was reviewable in view of the holding in Homovich v. Chapman that "Section 10 of the Administrative Procedure Act governs review of action taken by the Secretary under the authority of Section 2 of the 1910 Act".
In the recent case of Heffelman v. Udall, 1967, 10 Cir., 378 F.2d 109, 112, cert. den. Nov. 7, 1967, 389 U.S. 926, 88 S.Ct. 287, 19 L.Ed.2d 278, the Court of Appeals for the Tenth Circuit declined to follow Homovich v. Chapman. On the contrary, the court said that it would be "illogical and contrary to the whole history of laws governing Indian property" to distinguish between the rights of heirs under section 1 and legatees and devisees under section 2. In that case the will provided that if the deceased remarried, one-third of her estate was to go to her husband. The question determined by the Secretary was whether or not a...
