BOARD OF COM'RS v. United States, 1728.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Citation100 F.2d 929
Docket NumberNo. 1728.,1728.
PartiesBOARD OF COM'RS OF JACKSON COUNTY, KAN., v. UNITED STATES.
Decision Date23 January 1939

Geo. M. Brewster, of Topeka, Kan. (Warden L. Noe and Floyd W. Hobbs, both of Holton, Kan., and John L. Hunt, of Topeka, Kan., on the brief), for appellant.

Raymond M. Kell, Atty., Department of Justice, of Washington, D. C. (Charles E. Collett, Acting Asst. Atty. Gen., Summerfield S. Alexander, U. S. Atty., of Topeka, Kan., Oscar Provost, Atty., Department of Justice, of Washington, D. C., on the brief), for the United States.

Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

The United States of America instituted this action under direction of its Attorney General, in accordance with Section 24(1) of the Judicial Code as amended, 28 U.S.C.A. § 41(1), in the District Court of the United States for the District of Kansas, in behalf of M-Ko-Quah-Wah, its restricted or incompetent Indian ward, of the Pottawatomie Indians, hereinafter referred to as allottee, against the Board of County Commissioners of Jackson County, Kansas, to recover taxes collected by said county during the years 1919-1933, inclusive, upon land which had been allotted to said Indian under the General Allotment Act of February 8, 1887, 24 Stat. 388, 25 U.S.C.A. § 331 et seq.

The trial court submitted the disputed questions of fact to the jury, a verdict being returned in favor of the government. The judgment of the trial court on said verdict was rendered on December 17, 1937. Petition for appeal was filed and allowed March 15, 1938, jurisdiction of this court being invoked under Section 128(a) of the Judicial Code, as amended, 28 U.S. C.A. § 225(a), page 294.

By Treaty of June 5 and 17, 1846, 9 Stat. 853, the United States of America, for a consideration, granted to the Pottawatomie Tribe of Indians a tract of land within the territory now embraced within that of the state of Kansas "as their land and home forever."1

Under Treaty of November 15, 1861, 12 Stat. 1191, Indian Affairs, Laws and Treaties, by Kappler, Vol. II, 2d Edition, page 824, said reservation was to be surveyed and separate tracts therefrom assigned to those members who desired to take such tracts and who relinquished their rights to the lands held in common by the tribe, and there was to be issued to each of such members a certificate establishing his or her exclusive right to the exclusive possession of the tract assigned to and set apart to him or her "for the perpetual and exclusive use and benefit of such assignees and their heirs," and "until otherwise provided by law, such tracts shall be exempt from levy, taxation, or sale, and shall be alienable in fee or leased or otherwise disposed of only to the United States, or to persons then being members of the Pottawatomie tribe and of Indian blood, with the permission of the President, and under such regulations as the Secretary of the Interior shall provide, except as may be hereinafter provided."2

By provisions of Treaty of March 29, 1866, with said tribe (14 Stat. 763; Indian Affairs, Laws and Treaties, by Kappler, Vol. II, 2d Edition, p. 916), an amendment to the prior treaties was incorporated so as to extend the provisions thereof to the more prudent and intelligent members of said tribe, not to be confined to males and heads of families of said tribe, without distinction of sex.3

Said allottee, a fullblood Pottawatomie Indian who did not speak English, on land on which the taxes here in controversy were collected and which having been allotted to her on May 31, 1893, and a trust patent thereto issued on August 15, 1893, pursuant to the General Allotment Act of February 8, 1887,4 and by executive orders dated July 30, 1918, and April 16, 1928, the trust period as provided and stipulated in said patent and said Act of February 8, 1887, was extended for an additional 20 years, to-wit, until 1938,5 such trust period later being extended indefinitely by Act of Congress, June 18, 1934, Wheeler-Howard Act, c. 576, Section 2, 48 Stat. 984, 25 U.S.C.A. § 462.

According to a finding by a competency commission appointed by the Secretary of the Interior,6 said allottee and her husband were considered "very competent people." The President of the United States issued a fee-simple patent dated April 17, 1918. The application for the issuance of said fee-simple patent submitted to the Secretary of the Interior was not signed by her, the competency commission stating, "This allottee declined to sign an application," in fact, refused to sign such application — not desiring that a fee-simple patent be issued to her. Such issuance was done altogether without her permission, and upon its receipt she requested her husband to send it back to Washington, as her husband "did the business for her," handled the operation and management of her lands, the employment of farm help, the leasing of pasture lands, and the collection of all income from the farm. During his lifetime, she did not transact any business for herself, and did not have a separate or joint bank account.

After her husband's death about 1927, a banker in a bank at which her husband had carried the bank account opened the account in her name. The husband had not possessed any land at the time of his marriage to said allottee, and except for an inheritance of land, he had no substantial source of income beyond that received from the operation and management of allottee's land.

The allottee had advised her husband to pay the taxes "for fear that if we didn't we would lose the land", and after her husband's death she advised the banker for the same reason to pay the taxes.

The patent was recorded on April 7, 1930, by one of the officers of the bank, same not being done under the direction, knowledge, permission or consent of the allottee.

The land was placed on the county tax rolls for the years 1919-1934, inclusive.

The General Allotment Act and the terms of the patent issued pursuant thereto, which by extensions is still in force, created an immunity from taxation under the laws of the state, such exemption being a present vested right in the allottee which continued as binding upon the state and its subdivisions and which could not be taken away from the allottee by the mere issuance of the fee patent during the trust period without her consent. Board of County Com'rs of Caddo County v. United States, 10 Cir., 87 F.2d 55, 56, and cases there cited.

The Treaty of 1861 provided that the land should be exempt from taxation until otherwise provided by law and for the termination of the exemption upon the issuance of a patent in fee simple, such patent to be issued only upon request of the allottee. Such fee simple patent was issued not only without the request of the allottee, but also over her protest. Congress has not by law provided for the termination of the exemption. On the contrary, by the General Allotment Act, such exemption extended until the termination of the trust period, which was duly extended until 1938, and later for an indefinite period by Act of June 18, 1934.7 Caddo County Case, supra, 87 F.2d 55, and cases therein cited, Choate v. Trapp, 224 U.S. 665, 32 S.Ct. 565, 56 L.Ed. 941, and Ward v. Love County, 253 U.S. 17, 40 S.Ct. 419, 64 L.Ed. 751.

In Ward v. Love County, supra, it is said (at page 24, 40 S.Ct. at page 422): "As the payment was not voluntary, but made under compulsion, no statutory authority was essential to enable or require the county to refund the money. It is a well-settled rule that `money got through imposition' may be recovered back; and, as this court has said on several occasions, `the obligation to do justice rests upon all persons, natural and artificial, and if a county obtains the money or property of others without authority, the law, independent of any statute, will compel restitution or compensation.' * * * To say that the county could collect these unlawful taxes by coercive means and not incur any obligation to pay them back is nothing short of saying that it could take or appropriate the property of these Indian allottees arbitrarily and without due process of law. Of course this would be in contravention of the Fourteenth Amendment, which binds the county as an agency of the state." (Italics supplied.)

The land was immune from the assessments from taxation, the same being void.8 The findings and judgment are supported by substantial evidence.

Section 284 (Judicial Code, Section 177, as amended), 28 U.S.C.A. page 119, provides that no interest shall be allowed on any claim up to the time of the rendition of judgment by the Court of Claims, unless upon a contract expressly stipulating for the payment of interest, except that interest may be allowed in any judgment of any court rendered against the United States for any internal revenue tax erroneously or illegally assessed or collected, or for any penalty collected without authority or any sum which was excessive or in any manner wrongfully collected, under the internal revenue laws.

Under the Fifth Amendment to the Constitution of the United States, U.S.C.A. Const. Amend. 5, which provides that private property shall not be taken for public use without just compensation, a claimant would have been entitled to just compensation, by way of recompense, for the money wrongfully taken. The claim here is founded on the protection of the Fourteenth Amendment, U.S.C.A.Const. Amend. 14. Ward v. Love County, supra. In the Phelps Case, Phelps v. United States, 274 U.S. 341, 47 S.Ct. 611, 71 L.Ed. 1083, where the property was taken before its value was ascertained or paid, it was held that judgment rendered in 1926 for the value of the use of the property in 1918 and 1919, without more, is not sufficient to constitute just compensation, and that said Section 177, supra, does not prohibit the inclusion of the additional amount for which petitioner...

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