Gleason v. Wood

Decision Date21 March 1911
Docket NumberCase Number: 1877
Citation1911 OK 91,114 P. 703,28 Okla. 502
PartiesGLEASON et al. v. WOOD, County Treasurer, et al. *
CourtOklahoma Supreme Court
Syllabus

¶0 TAXATION--Property Subject--Lands of Indians. Section 4 of an act of Congress of May 27, 1908, c. 199, 35 Stat. 312, 313, entitled "An act for the removal of restrictions from part of the lands of allottees of the Five Civilized Tribes, and for other purposes." is valid, and under and by virtue thereof the lands of all allottees of the Five Civilized Tribes of Indians, from which restrictions have been or shall be removed, are subject to taxation under the general laws of the state equally with the property of all other persons.

* Appealed to the Supreme Court of the United States.

Error from Superior Court, Pittsburg County; P. D. Brewer, Judge.

Action by Michael H. Gleason and others against J. I. Wood, County Treasurer, and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

Kane, J., dissenting.

McCurtain & Hill and W. L. Sturdevant, for plaintiffs in error.

Chas. West, Atty. Gen., and Charles Moore, Asst. Atty. Gen., for defendants in error.

DUNN, J.

¶1 This case presents error from the superior court of Pittsburg county; the plaintiffs being citizens and members and the original allottees of the Choctaw Tribe of Indians, and holding allotments of lands in several different counties of the state.

¶2 The action is brought to enjoin and restrain the defendants as treasurers of these counties from collecting or attempting to collect taxes on said lands for the year 1909. It is contended by counsel that the allotted lands of the Choctaw Tribe of Indians cannot be taxed so long as the title remains in the original allottee, not to exceed 21 years from the date of the patent. That by section 29 of an act of Congress of June 28, 1898, c. 517, 30 Stat. 495, generally known as the Atoka Agreement, the United States government made a valid and enforceable contract between itself and the Choctaw Nation, and that among the terms of said contract were the provisions that "all the lands allotted shall be nontaxable while the title remains in the original allottee but not to exceed twenty-one years from date of patent." That this agreement was ratified by a vote of the Choctaw Tribe of Indians and all of the provisions contained therein were adopted by them, and it is claimed that the exemption from taxation was a part of the consideration to them for entering into the same. That the exemption was not a gratuity or privilege, but on its vesting became a property right, based upon a sufficient consideration accepted by both parties, which could not be taken away by subsequent legislation. It is further contended that the Constitution of the state of Oklahoma, adopted in 1907, recognized the force and validity of this contract in section 6 of article 10 (p. 289, Snyder's Const.), wherein it is provided that:

"All property owned," etc., "shall be exempt from taxation, and such property as may be exempt by reason of treaty stipulations, existing between the Indians and the United States government, or by federal laws during the force and effect of such treaties or federal laws."

¶3 It is claimed that herein was a recognition and ratification by the state of Oklahoma of the act of Congress above referred to, which constituted a contract between the state and the Indians which could not be abrogated by subsequent acts of Congress. May 27, 1908, Congress passed an act (c. 199, 35 Stat. 312) entitled "An act for the removal of restrictions from part of the lands of allottees of the Five Civilized Tribes, and for other purposes," among the provisions of which are the following:

"Section 1. That from and after sixty days from the date of this act the status of the lands allotted heretofore or hereafter to allottees of the Five Civilized Tribes shall, as regards restrictions on alienation or incumbrance, be as follows: All lands, including homesteads, of said allottees enrolled as intermarried whites, as freedmen, and as mixed-blood Indians having less than half Indian blood including minors shall be free from all restrictions. * * *"

¶4 Section 4 of said act provides:

"That all land from which restrictions have been or shall be removed shall be subject to taxation and all other civil burdens as though it were the property of other persons than allottees of the Five Civilized Tribes. * * *"

¶5 Plaintiffs state that they, and they for whom they sue, are members of the Choctaw Tribe of Indians, and Choctaw citizens, and original allottees enrolled as of September 25, 1902, and are among the number of those from whose allotments restrictions were removed by the above provisions. To the petition filed, setting forth in full the facts upon which reliance is placed to recover, a general demurrer was filed which, in due course, was heard by the court and sustained, and the case has been lodged in this court for review.

¶6 The question raised is, After these lands had been taken, under the terms and provisions of the allotment acts agreed to by the members of the different tribes, which provided exemption from taxation, did Congress have the power to remove the restrictions and to subject them, under the act of May 27, 1908, to taxation and all civil burdens, as though they were the property of other persons than the allottees of such tribes?

¶7 In an action arising in the Creek Nation, United States v. Shock (recently decided by Judge Campbell of the Eastern district of Oklahoma, but not yet officially reported), 185 F. , it is said:

"The Constitution of this state (section 270) provides that 'such property as may be exempt by reason of treaty stipulations existing between the Indians and the United States government, or by federal laws, during the effect of such treaties or federal laws, shall be exempt from taxation.' Congress, by the act of April 26, 1906, c. 1876, 34 Stat. 137, provided: 'That all lands upon which restrictions are removed shall be subject to taxation and the other lands shall be exempt from taxation as long as the title remains in the original allottee.' The last-mentioned act, as its title indicates, is to provide for the final disposition of the affairs of the Five Civilized Tribes, and the lands referred to in the provision above mentioned are the lands allotted to members of the Five Civilized Tribes, the subject of the tax here involved. By act of May 27, 1908, c. 199, 35 Stat. 312, it was further provided: 'That all lands from which restrictions have been or shall be removed shall be subject to taxation and all other civil burdens, as though it were the property of other persons than allottees of the Five Civilized Tribes.' From this it is clear that, regardless of prior legislation or treaties, the intention and policy of Congress, as expressed by the two acts last referred to, was that, so long as these allotted lands remain subject to any restrictions upon alienation, they shall not be taxed by the state, but whenever all restriction upon alienation shall be removed, then such lands shall be subject to taxation and other civil burdens to which other lands are subjected. Therefore any attempt on the part of the state to tax restricted lands would be in violation, not only of the acts of Congress, enacted pursuant to its paramount and sole right to legislate regarding these lands, but would also violate the exemption expressed in the state Constitution. In view of the purpose which prompted Congress, in the first instance, to place restrictions upon the alienation of these allotted lands, and in view, also, of the purpose of Congress, as expressed in the act of 1893 [Act March 3, 1893, c. 209, 27 Stat. 646], providing for the Dawes Commission, and various subsequent acts, to prepare what was then the Indian Territory for statehood, with a view to the establishment of a state at an early date, which has now been accomplished, it is entirely reasonable that Congress should not have intended the exemption from taxation to exist longer than the time during which the lands were inalienable. Goudy v. Meath, 203 U.S. 146 [27 S. Ct. 48, 51 L. Ed. 130]. Therefore the complainant in this case cannot successfully contend that the lands of any particular class of Creek allottees were exempt from taxation by the state at any particular time, unless it appears that at such time the lands were inalienable by reason of restrictions still existing upon their alienation."

¶8 While the foregoing expresses the policy of Congress and holds that the lands from which the restrictions have been removed are available for taxing purposes by the state, the questions presented to us appear to have been assumed, rather than considered at length; yet we believe after a full consideration of the authorities that Judge Campbell is amply sustained in the conclusion to which he came. The people of the state in the adoption of the terms of the enabling act, in effect, have disclaimed any right or authority to limit or affect the power of the government to make any law or regulation respecting Indians, their lands, property, or other rights which the government might have made, had the territory embracing the same not been created into a state, and has held as exempt the property of the Indians in accordance with the treaties or federal laws relating thereto during the force and effect of the same. So that the general laws relating to the taxation of all property within the state, for the purposes of state and municipal government under the provisions of the enabling act and the Constitution, were suspended from operating upon these lands so long as they were held inalienable and exempt from taxation by the laws of Congress. On Oklahoma coming in as a state, it yielded the right to the federal government to legislate as to this property, of either absolving it from taxation or, by removing the exemption, thereby bringing it within the operation of the...

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5 cases
  • Wynn v. Fugate
    • United States
    • Oklahoma Supreme Court
    • June 2, 1931
    ...it expressly agreed to exempt Indian property from taxation, the right to tax remains unimpaired." ¶21 This court, in Gleason v. Wood, Co. Treas., 28 Okla. 502, 114 P. 703, discussing those rights, said: "The people of the state, in the adoption of the terms of the Enabling Act, in effect, ......
  • Marcy v. Bd. of Comm'rs of Seminole Cnty.
    • United States
    • Oklahoma Supreme Court
    • November 24, 1914
    ...construing section 1 of the Enabling Act and section 6, art. 10 of the Constitution of Oklahoma, this court, in the case of Gleason v. Wood, 28 Okla. 502, 114 P. 703, held: "The people of the state in the adoption of the terms of the Enabling Act, in effect, have disclaimed any right or aut......
  • Yarbrough v. Spalding
    • United States
    • Oklahoma Supreme Court
    • March 12, 1912
    ...Nation, 174 U.S. 445, 483, 19 S. Ct. 722, 43 L. Ed. 1041, 1054." ¶6 Quoting the foregoing, this court, in the case of Gleason et al. v. Wood, 28 Okla. 502, 114 P. 703, said: "Not only has this power been exercised over the tribal affairs, but it is extended to the property of the members an......
  • Ross v. Wright
    • United States
    • Oklahoma Supreme Court
    • June 20, 1911
    ...to the Indian tribes and their affairs. Lone Wolf et al. v. Hitchcock, 187 U.S. 553, 47 Law Ed. 299, 23 S. Ct. 216; Gleason et al. v. Wood, 28 Okla. 502, 114 P. 703. The Cherokee act was a rule established by that nation prior to the congressional allotting act for the control of internal a......
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