John Marshall Harlan II

“ First, it must be remembered that the primary purpose of § 373 is to give to the testator, not to the Secretary, the power to dispose of restricted property by a will. In accordance to the Indian testamentary capacity over restricted property Congress could have only intended to give him the power to dispose of restricted property according to personal preference rather than the predetermined dictates of intestate succession. Such is the essence of the power to make a will. ”

“ The Court's opinion has two aspects: First, that the Secretary of the Interior's approval or disapproval of a will disposing of restricted Indian property is subject to judicial review in a federal court. Second, that the Secretary's action disapproving the decedent's will in the circumstances of this case was not a valid exercise of the authority vested in him by the first proviso of 25 U.S.C. § 373. [1] I join the Court's opinion in both respects; but I deem it appropriate to amplify the reasons given by the Court for its second conclusion. ”

“ He was allotted land at the time he had only two children, and the father and the mother have allotments and the two children who were living at the time allotments were made have allotments, but the other children have no land at all.
'Now, the Indian is just as human as a white man, and it frequently happens that he desires to have permission to give his allotment to the children who have no land, and in a case of that kind undoubtedly the Interior Department would O.K. it, whereas if it was a will giving his estate to some person who ought not to have it, then they would disapprove it. ”