Joseph McKenna

“ The act of Congress is careful of conditions. In the first instance it is concerned with testacy, that is, the existence of a will. A will existing, the allotment is disposed of by it. A will not existing-either not executed or, if executed, canceled-there is intestacy, and the state laws of descent and distribution obtain. In the present case there is a will and it is uncanceled, and therefore the contention of appellant is untenable. ”

“ And we agree with the Court of Appeals that the act of Congress was the prompting of prudence to 'afford needed protection to dependent and natural heirs against the waste of the estate as the result of an unfortunate marriage and enforced inheritance by state laws.' And there can be no doubt that the act was the suggestion of the Interior Department, and its construction is an assistant, if not demonstrative criterion, of the meaning and purpose of the act. ”

“ He says:
'As long as restrictions have not been removed the allotment is subject to the plenary power of Congress,' but 'when restrictions are removed the allotment automatically becomes subject to the state law.'
That is, and to make application to the pending case, at the instant his wife died, appellant became heir at law to one-third of her property under the laws of the state. Appellant's reasoning is direct and confident. By his wife's death he asserts her allotment was emancipated from government control ”