Morrow v. United States

• Court: U.S. Court of Appeals — Eighth Circuit
• Citation: Morrow v. United States, 243 F. 854 (8th Cir. 1917)
• Decision Date: 30 May 1917
• Docket Number: 4774.
• Parties: MORROW, County Auditor, et al. v. UNITED STATES.

243 F. 854

MORROW, County Auditor, et al. v. UNITED STATES.

No. 4774.

United States Court of Appeals, Eighth Circuit.

May 30, 1917

Egbert S. Oakley, of St. Paul, Minn. (Lyndon A. Smith, of St. Paul Minn., and Henry N. Jenson, of Detroit, Minn., on the brief) for appellants.

S. W Williams, of Washington, D.C., for the United States.

Before HOOK and STONE, Circuit Judges, and MUNGER, District Judge.

STONE Circuit Judge.

Suit by the United States as trustee of lands for a mixed-blood Chippewa Indian against certain officials of Becker county Minn., to restrain collection of tax levied upon land in the White Earth Reservation allotted and trust patented under the Nelson Act.

The case is submitted upon a stipulation of facts, the essential portions of which are that:

'The allottee of the tract of lands therein described is, and at the time of the commencement of this action was, an adult mixed-blood Chippewa Indian residing upon the White Earth Reservation, and that he has never incumbered or alienated, or attempted to incumber or alienate, said lands; that said lands are situated upon the White Earth Reservation and were allotted to said Kah-be-mah-be and were thereafter patented to him * * * pursuant to the statutes of the United States.'

The sole point for decision is, in general terms, whether or not the land of an adult mixed-blood Chippewa Indian allotted, patented, and held under the provisions of the Nelson Act (January 14, 1889, 25 Stat. 642) is, since the enactment of the so-called Clapp Amendment (June 21, 1906, c. 3504, 34 Stat. 353), subject to state and local taxation, where the allottee has never attempted to avail himself of any power he might have under that amendment to alienate or incumber, but on the contrary is insisting upon holding it according to the provisions of a trust patent issued under the authority of the Nelson Act.

The patent issued on this land December 30, 1902, was what is called a 'trust patent.' The law required that it declare, and that its legal effect be, that the land be held 'in trust for the sole use and benefit of' the Indian to whom such allotment shall have been made, or his heirs for 25 years with no power in the allottee to convey or to contract 'touching the same' during that period; and that at the end of such period the United States 'convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or encumbrance whatsoever.' 24 Stat. 388, Sec. 5.

Appellants properly concede that there was no right of taxation while the land was held solely under such trust patent. They contend that the Clapp Amendment enacted four years subsequent to the issue and during the life of this trust patent had the effect of terminating it and of vesting a complete fee title in the allottee irrespective of his consent to such a change. An answering contention of the government is that Congress had no power to alter this 'trust patent' status without the consent of such patentee, because such trust patent, issued under the Nelson Act, conveyed a property right to this patentee which had become vested. The property right intended being the separate beneficial use of the land free from taxation and involuntary alienation for 25 years from date of trust patent, with fee title thereafter.

There is no question that the government may, in its dealings with the Indians, create property rights which, once vested, even it cannot alter. Williams v. Johnson, 239 U.S. 414, 420, 36 Sup.Ct. 150, 60 L.Ed. 358; Sizemore v. Brady, 235 U.S. 441, 449, 35 Sup.Ct. 135, 59 L.Ed. 308; Choate v. Trapp, 224 U.S. 665, 32 Sup.Ct. 565, 56 L.Ed. 941; English v. Richardson, 224 U.S. 680, 32 Sup.Ct. 571, 56 L.Ed. 949; Jones v. Meehan, 175 U.S. 1, 20 Sup.Ct. 1, 44 L.Ed. 49; Chase v. U.S., 222 F. 593, 596, 138 C.C.A. 117. Such property rights may result from agreements between the government and the Indian. Whether the transaction takes the form of a treaty or of a statute is immaterial; the important considerations are that there should be the essentials of a binding agreement between the government and the Indian and the resultant vesting of a property right in the Indian.

That exemption of land from taxation is a property right is established. Choate v. Trapp, supra. That this Indian had taken possession of and was enjoying this land under such an exemption at the time the Clapp Amendment was passed is undisputed. Therefore, if this exemption came to him as a legal right, it had fully vested. It came as such legal right if it rested on the solid basis of a binding agreement. If there was such an agreement here, it is to be found in the terms of the Nelson Act, read in the light of attendant circumstances. These circumstances are revealed in the communication of the Interior Department recounting the negotiations between the Commissioners and these Indians (Doc. 247, published in volume 32, House Exec. Doc. 51st Cong. 1st. Sess).

At the passage of that act, the Chippewa Indians were scattered over several reservations in the state of Minnesota. Much of their land was held as tribal by different bands or communities while some was held in severalty. The Indians were in dire need from crop failures. Their condition generally was very unsatisfactory. Their reservations included some supposedly valuable mineral land and much very valuable timber land; the worth of the latter, as stated by the commissioners, having been estimated at from $25,000,000 to $50,000,000. Their title to these lands was unquestioned by the government and sprang from several successive treaties, the last being that of March 19, 1867 (16 Stat. 719). Under such circumstances this act was passed, as its title attests, for their 'relief and civilization.'

The broad objects of the act were: The concentration of these Indians upon two reservations (White Earth and Red Lake); allotments thereon in severalty; acquirement by the government of title to the surplus beyond these allotments for sale to establish a fund; the net income from this fund to be utilized for 50 years for the support, civilization, and education of these Indians; the final distribution of the fund among them.

With unquestioning recognition of the Indian title to all of these lands, both tribal and allotted, the first sentence of this act provided for the appointment by the President of a commission 'to negotiate with all the different bands or tribes of Chippewa Indians in the state of Minnesota for the complete cession and relinquishment in writing of all their title and interest in and to all the reservations of said Indians in the state of Minnesota, except the White Earth and Red Lake Reservations, and to all and so much of these two reservations as in the judgment of said commission is not required to make and fill the allotments required by this and existing acts, and shall not have been reserved by the commissioners for said purpose'; such cession and relinquishment to be 'for the purpose and upon the terms hereinafter stated.' The act provided that, where an allotment of land in severalty had theretofore been made on any reservation, the allottee ...