Syllabus by the Court.
Lands
allotted to an enrolled Choctaw freedman under the Atoka
Agreement embodied in Act Cong. June 28, 1898, in pursuance
of provisions of the Treaty of July 10, 1866, and Act of
Choctaw Council of May 21, 1883, and which lands were to be
nontaxable for a period of 21 years, or while the title
remained in the original allottee, are exempt from state
taxation. The allottee acquired vested rights of exemption
from taxation, which were not abrogated by Act Cong. May 27
1908, removing restrictions upon alienation and providing
that the lands from which restrictions were removed should be
subject to taxation.
Error
from District Court, Garvin County; F. B. Swank, Judge.
Action
by the Union Central Life Insurance Company against Joe
Farris and another to foreclose a mortgage. Judgment for
plaintiff, and defendants bring error. Reversed.
PITCHFORD
J.
On the
21st of May, 1916, the defendant in error commenced this
action in the district court of Garvin county to foreclose a
mortgage executed by the plaintiff in error, Joe Farris, then
a single man, to secure a loan of $350, evidenced by
promissory note. At the time the action was filed, there was
no sum for principal or interest past due on the note. The
sole ground alleged in the petition was that the maker had
defaulted in not paying taxes levied and assessed against the
mortgaged property for the years 1909 to 1915, inclusive. The
mortgage contained the provision that, in the event the
mortgagor failed to pay taxes assessed for any year, then the
mortgagee would have the right to foreclose. The cause was
submitted to the court below upon the note and mortgage, and
upon an agreed statement of facts. For a better understanding
of the issue presented in this case, it will be necessary to
refer briefly to certain treaties and agreements between the
United States and the Choctaw and Chickasaw Tribes of
Indians.
Prior
to the Proclamation of Emancipation, African slavery existed
in the Choctaw Nation. The majority of the Choctaws had sided
with the Southern Confederacy in the war between the states.
After peace was declared between the North and the South,
there was still some bitterness existing in the tribe. In
1865, commissioners, representing the United States, met with
delegates from the Choctaw and Chickasaw Nations at Ft.
Smith, Ark., and entered into a treaty which was duly
ratified and proclaimed July 10, 1866 (14 Stat. L. 769), and,
among other things, provided:
"Article III. The Choctaws and Chickasaws, in
consideration of the sum of three hundred thousand dollars,
hereby cede to the United States the territory west of the
98~ west longitude, known as the leased district, provided
that the said sum shall be invested and held by the United
States, at an interest not less than five per cent., in trust
for the said nations, until the Legislatures of the Choctaw
and Chickasaw Nations respectively shall have made such laws,
rules, and regulations as may be necessary to give all
persons of African descent, resident in the said nations at
the date of the treaty of Ft. Smith, and their descendants,
heretofore held in slavery among said nations, all the
rights, privileges, and immunities, including the right of
suffrage, of citizens of said nations, except in the
annuities, moneys, and public domain claimed by, or belonging
to, said nations respectively; and also to give to such
persons who were residents as aforesaid, and their
descendants, forty acres each of the land
of said nations on the same terms as the Choctaws and
Chickasaws, to be selected on the survey of said land, after
the Choctaws and Chickasaws and Kansas Indians have made
their selections as herein provided; and immediately on the
enactment of such laws, rules, and regulations, the said sum
of three hundred thousand dollars shall be paid to the said
Choctaw and Chickasaw Nations in the proportion of
three-fourths to the former and one-fourth to the
latter,-less such sum, at the rate of one hundred dollars per
capita, as shall be sufficient to pay such persons of African
descent before referred to as within ninety days after the
passage of such laws, rules, and regulations shall elect to
remove and actually remove from the said nations
respectively. And should the said laws, rules, and
regulations not be made by the Legislatures of the said
nations respectively, within two years from the ratification
of this treaty, then the said sum of three hundred thousand
dollars, shall cease to be held in trust for the said Choctaw
and Chickasaw Nations, and be held for the use and benefit of
such of said persons of African descent as the United States
shall remove from the said territory in such manner as the
United States shall deem proper,-the United States agreeing,
within ninety days from the expiration of the said two years,
to remove from said nations all such persons of African
descent as may be willing to remove; those remaining or
returning after having been removed from said nations to have
no benefit of said sum of three hundred thousand dollars, or
any part thereof, but shall be upon the same footing as other
citizens of the United States in the said nations."
On May
21, 1883, the Choctaw Council, for the purpose of carrying
into effect the conditions and provisions of the above act,
passed a law conferring upon the Choctaw freedmen all the
rights, privileges, and immunities belonging to citizens of
the Choctaw Nation. Sections 1, 2, and 3 of the Act of the
Choctaw Council, supra, are as follows:
"Section 1. Be it enacted by the General Council of the
Choctaw Nation assembled: That all persons of African
descent, resident in the Choctaw Nation at the date of the
treaty of Ft. Smith, September 13, 1865, and their
descendants formerly held in slavery by the Choctaws or
Chickasaws, are hereby declared to be entitled to, and
invested with all the rights, privileges and immunities,
including the rights of suffrage, of citizens of the Choctaw
Nation, except in the annuity moneys and the public domain of
the nation.
Sec. 2. Be it further enacted: That all said persons of
African descent, as aforesaid, and their descendants, shall
be allowed the same rights of process, civil and criminal, in
the several courts of this nation, as are allowed to
Choctaws, and full protection of person and property is
hereby granted to all such persons.
Sec. 3. Be it further enacted: That all said persons are
hereby declared to be entitled to forty acres each of the
lands of the nation, to be selected and held upon the same
terms as the Choctaws."
On the
23d of April, 1897, there was made between the United States
and the Choctaw and Chickasaw Nations what is known as the
Atoka Agreement, and...
