Morrow v. United States

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation243 F. 854
Docket Number4774.
PartiesMORROW, County Auditor, et al. v. UNITED STATES.
Decision Date30 May 1917

243 F. 854

MORROW, County Auditor, et al.

No. 4774.

United States Court of Appeals, Eighth Circuit.

May 30, 1917

[243 F. 855]

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 [243 F. 856] 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...

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    ...with any intention to reject the distribution."); United States v. Benewah County, 290 F. 628 (9th Cir.1923); Morrow v. United States, 243 F. 854, 855 (8th Cir.1917) (the court stated the issue as whether land patented under the Clapp Amendment was "subject to state and local taxation, wher......
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    ...Moreover, in light of the fact that plaintiffs' families have had a claim to these allotments for generations, Morrow v. United States, 243 F. 854 (8th Cir.1917), the Court cannot find that plaintiffs' unfortunate circumstances sufficiently remove the new limitation on land claim suits from......
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