Muskogee County v. United States

• Court: U.S. Court of Appeals — Tenth Circuit
• Writing for the Court: PHILLIPS, BRATTON, and MURRAH, Circuit
• Citation: Muskogee County v. United States, 133 F.2d 61 (10th Cir. 1943)
• Decision Date: 06 January 1943
• Docket Number: No. 2587.,2587.
• Parties: MUSKOGEE COUNTY, OKL. et al. v. UNITED STATES.

133 F.2d 61 (1943)

MUSKOGEE COUNTY, OKL. et al. v. UNITED STATES.

No. 2587.

Circuit Court of Appeals, Tenth Circuit.

January 6, 1943.

Houston Bus Hill, Asst. Atty. Gen. (Mac Q. Williamson, Atty. Gen., and Douglas Garrett, Co. Atty., and P. W. Jones, both of Muskogee, Okl., on the brief), for appellants.

Norman MacDonald, of Washington, D. C. (Norman M. Littell, Asst. Atty. Gen., and Cleon A. Summers, U. S. Atty., of Muskogee, Okl., on the brief), for appellee.

Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.

MURRAH, Circuit Judge.

By Section 2 of the Act of June 20, 1936, 49 Stat. 1542, all lands the title to which were held by an Indian, subject to restrictions against alienation without the consent and approval of the Secretary of the Interior, and purchased out of trust or restricted funds of the said Indian, were declared to be instrumentalities of the Federal government and nontaxable until otherwise directed by Congress. By the amendatory Act of May 19, 1937, 50 Stat. 188, 25 U.S.C.A. § 412a, Congress limited the scope of the exemption granted by the 1936 Act to "homesteads" purchased out of trust or restricted funds of an individual Indian, and "provided" that the Indian owner should select, with the approval of the Secretary of the Interior, agricultural or grazing lands not exceeding 160 acres, or village or town property not exceeding in value $5,000, to be designated as a homestead.

On September 19, 1941, the United States, in its own right and as guardian of Jefferson Harrison, a fullblood restricted Seminole Indian, commenced this suit against the County of Muskogee, Oklahoma, and its Board of County Commissioners, to collect ad valorem taxes assessed and collected on 439 acres of land located in the said county, which had been heretofore purchased for the said Jefferson Harrison by the Secretary of the Interior with trust or restricted funds of the said Harrison, and restricted against alienation without the consent and approval of the Secretary. In 1934 the said Harrison, with the consent of the Secretary of the Interior, transferred the lands to his heirs at law, reserving unto himself a life estate therein which he held at all times material here. Specifically the United States sought to recover taxes assessed and collected on the 439 acres of land in question for the taxable year 1936, and for taxes levied and collected upon the homestead for the taxable year 1937, and to cancel a tax deed covering the homestead issued to the county pursuant to a tax sale conducted in 1939 for taxes levied on the homestead for the taxable year 1938.

Under facts closely analogous, the principal questions involved here were presented to and decided by this court in Board of County Commissioners of Creek County v. Seber, 10 Cir., 130 F.2d 663 (one judge dissenting). The judgment of the trial court, entered prior to our decision in the Seber case, followed the judgment of the trial court in that case, D.C., 38 F.Supp. 731, which we modified, and as modified, affirmed. Except in respects presently noted, we deem it unnecessary to state in detail the analogous facts on this record, or to state the reasons upon which our conclusions were based in the former case. It is sufficient to say that insofar as applicable, we adhere to the views of the majority in the Seber case, and our conclusions here upon these facts are based upon the conclusions reached there.

In the Seber case, we held the 1936 Act, as amended by the 1937 Act, constitutionally valid as a proper exercise of the power of the national government to legislate for and on behalf of its Indian wards, principally on the grounds that the power to purchase lands for the Indian ward, and to restrict the same against alienation without the consent and approval of the Secretary of the Interior, carried with it the power to free the same from state taxation by expressly declaring them tax-free Federal instrumentalities. We also held that the life estate in the property was the dominant and taxable estate, and that the owner thereof had the right to assert the tax immunity granted by the Acts during its existence. We further held that the right of the Indian to assert the tax immunity granted by the Act in a suit commenced in his own behalf to recover the taxes wrongfully collected, and to free the same from future taxation, did not depend upon state procedural requirements. A fortiori we hold that the United States, acting as the guardian of its ward, is not relegated to state procedural requirements in the assertion of the same right. See also United States v. Dewey County, D.C., 14 F.2d 784; Board of Commissioners of Caddo County v. United States, 10 Cir., 87 F.2d 55; United States v. Nez Perce County, 9 Cir., 95 F.2d 232; Board of Bryan County v. United States, 10 Cir., 123 F.2d 782.

In the former case, we had no occasion to pass upon the application of the state statute of limitations to suits of this character, since under our holding in that case the suit for the recoverable taxes was commenced within the prescribed limitations. But the inapplicability of state statute of limitations to suits by the government on behalf of Indians in this class of cases is too well established to warrant comment here. Board...