Board of Com'rs of Caddo County, Okl. v. United States

• Decision Date: 14 December 1936
• Docket Number: No. 1437.,1437.
• Parties: BOARD OF COM'RS OF CADDO COUNTY, OKL., v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

87 F.2d 55 (1936)

BOARD OF COM'RS OF CADDO COUNTY, OKL., v. UNITED STATES.

No. 1437.

Circuit Court of Appeals, Tenth Circuit.

December 14, 1936.

Amos Stovall, of Anadarko, Okl., for appellant.

Wade H. Loofbourrow, Asst. U. S. Atty., of Oklahoma City, Okl. (William C. Lewis, U. S. Atty., of Oklahoma City, Okl., on the brief), for the United States.

Before PHILLIPS, McDERMOTT, and BRATTON, Circuit Judges.

BRATTON, Circuit Judge.

The United States, in its own right and in behalf of an Indian ward, instituted this action against the Board of County Commissioners of Caddo County, Okl., for the recovery of taxes assessed against land which had previously been allotted to the Indian, the taxes being for the years 1918 to 1931, inclusive. Trial by jury was waived and the cause submitted to the court.

The court found that the allottee, a Wichita Indian of one-fourth Indian blood, is a person of more than ordinary intelligence; that she graduated from high school and has the appearance of being an educated and refined person; that a trust patent for the land issued on December 31, 1901; that under its terms the land was to be held in trust for a period of twenty-five years, subject to all restrictions and conditions contained in the applicable acts of Congress; that the patent was filed for record in 1906; that upon the recommendation of the Competency Commission, a patent in fee without restriction issued in August, 1917; that the allottee did not request its issuance and did not accept it after it was issued; that her husband caused it to be recorded in November, 1917; that the land was thereafter regularly placed upon the tax rolls for the county pursuant to information furnished by the then superintendent of the Indian Agency, all without the approval of the allottee; that the taxes were paid under protest; and that the allottee and her husband executed two oil and gas leases on the land, one in 1927 and the other in 1930. The journal entry contained a general finding that the taxes were unlawfully assessed and collected. Judgment was rendered for the United States, and the Board of Commissioners appealed.

The trust patent issued under the provisions of section 5 of the Act of February 8, 1887, 24 Stat. 389 (25 U.S.C.A. § 348). The trust period fixed was twenty-five years, with the further provision that the President should have power, in his discretion, to extend it. By executive order dated March 18, 1926, the President extended the period ten years. The Act of February 26, 1927, 44 Stat. 1247, 25 U. S.C.A. § 352a, authorized the Secretary of the Interior, in his discretion, to cancel any patent in fee simple issued to an Indian allottee during the original trust period or any extension of it, if such patent was issued without the application or consent of the allottee or his heirs, provided the patentee had not sold or mortgaged any of the land. Acting upon the authority thus conferred, the Secretary made an order on October 31, 1931, canceling the fee patent in question.

The act of Congress, and the terms of the patent issued pursuant to it, created an immunity from taxation under the laws of the state. That immunity was a presently vested right in the allottee which was binding upon the state and its subdivisions and could not be taken from her by the mere issuance of the fee patent during the trust period. Choate v. Trapp, 224 U.S. 665, 32 S.Ct. 565, 56 L.Ed. 941; Morrow v. United States (C.C.A.) 243 F. 854; United States v. Board of Commissioners (D.C.) 6 F.Supp. 401; United States v. Board of Commissioners (D.C.) 13 F.Supp. 641.

The parties proceed upon the postulate that the voluntary acceptance of a fee patent during the trust period operates to end the immunity. That may be assumed, without deciding the question. The major point contested in the trial court and argued earnestly here is whether the allottee accepted the fee patent issued in 1917. The general finding contained in the journal entry of judgment constitutes a finding against the Board of Commissioners on that issue, but it is urged that the evidence shows conclusively her acceptance, and therefore the finding is without substantial evidence to support it. The allottee testified that she did not make application for the issuance of the fee patent; that she was requested to do so and refused; that while she was ill, the superintendent of the agency brought it to her home for delivery and that she refused to accept it; that he then placed it on the library table; that she signed a receipt that the agent delivered it to the residence, but that it was not an acceptance; that she and her husband discussed taking it back to the agency, but on account of her illness they failed to do so; and that her husband later caused it to be placed of record. She testified at one place that she knew he was going to have it recorded and at another that she did not know it. The superintendent of the agency at the time testified that he was a...