(after stating the facts as above). On 'behalf of the appellants it is contended that, as the original selection by McNack was made on May 9, 1901, and the lands allotted to him, and a patent issued therefor under this selection, the five acres in controversy must be treated as a part of that selection, and as if allotted to McNack on May 9, 1901; that as the Supplemental Agreement with the Creek Tribe, approved June 30, 1902 (32 Stat. p. 500, c, 1323), ratified by the Creek Indians on July 31, 1902, and proclaimed by the President on August 8, 1902, restricted the surplus lands, allotted to the Creeks, from alienation for only five years from date of the approval of the supplemental agreement, the act of May 27, 1908, is unconstitutional, and cannot affect the right of McNack to sell the land, after the expiration of the five-year period, and as these lands were not conveyed by him until 1911, his deed conveyed a perfect title to Eaton and the defendants, claiming under him.

To sustain this contention the defendants rely upon Bartlett v. United States, 203 Eed. 410, 121 C. C. A. 520, decided by this court. In that case the original restrictions against alienation had expired before the enactment of the act of May 27, 1908, and we held that it was not within the power of Congress to impose restrictions on the alienation of lands allotted to an Indian, after the restrictions imposed by the prior law, under which the allotment had been made, had expired. Upon appeal to the Supreme Court the case was affirmed without passing on the power of Congress to impose such additional restrictions, after the original restrictions had expired, the court holding that it was unnecessary to pass on that question as the act of May 27, 1908. contained an excepting clause as to restrictions removed by any *583prior law. United States v. Bartlett, 235 U. S. 72, 35 Sup. Ct. 14, 59 L. Ed. 137.

But in the instant case the restrictions on alienation of McNack had not expired or been removed, when the act of 1908 went into effect, 60 days after its approval, as the selection and allotment were made after the act of 1908 was in force. While the learned counsel for the appellants attack the constitutionality of the act of 1908, so far as it may affect the lands allotted under former acts, we do not deem it necessary, in view of the conclusion reached, to determine that question. Tiger v. Western Investment Co., 221 U. S. 286, 31 Sup. Ct 578, 55 L. Ed. 738; Heckman v. United States, 224 U. S. 413, 436, 32 Sup. Ct. 424, 56 L. Ed. 820; United States v. Knight, 206 Fed. 145, 124 C. C. A. 211, may be examined on that point.

The land in controversy was selected and allotted to McNack after the act of 1908 had become operative. But it is claimed that as this tract was selected and allotted to him to make up the deficiency of his original allotment, it must be treated as if it had been made and allotted to him on May 9, 1901, and therefore the restriction on alienation had expired long before the conveyance’to Eaton in 1911.

We are of the opinion that this contention is untenable. Until the selection and allotment were made on September 23, 1908, McNack had no right, title, or interest, whatsoever, either legal or equitable, in and to this 5-acre tract. It was an act of grace on the part of the government that the deficiency in the original allotment was made good. Until the government saw proper to permit him to select this deficiency he had no right, title, or interest, either equitable or legal, to this tract. Until he made the selection no one could tell what particular tract of land would be allotted to him. If he had not made the selection within 60 days after notice, the Commissioner to the Five Civilized Tribes would have made the selection for him. Whether this particular tract would have been selected by him is problematical.

One of the objects of these restrictions on alienation and incum-brance was to induce the Indians to cultivate the lands or at least obtain the rents and profits therefrom, so as to make them self-supporting. Until this allotment was made to McNack he could not do either. When he did make the selection and this land was allotted to him, the act of May 27, 1908, was in full force, and that act made it inalienable until April 26, 1931, except with the approval of the Secretary of the Interior, which was not obtained, when the conveyance was made to Eaton. McNack held the land subject to the restrictions in force at the time he made the selection, and, therefore, the learned trial judge committed no error in sustaining the motion to strike the answer of the defendants.

The decree is accordingly affirmed.