United States v. Bean

• Decision Date: 02 September 1918
• Docket Number: 5078.
• Citation: 253 F. 1
• Parties: UNITED STATES v. BEAN, County Treasurer.
• Court: U.S. Court of Appeals — Eighth Circuit

253 F. 1

UNITED STATES v. BEAN, County Treasurer.

No. 5078.

United States Court of Appeals, Eighth Circuit.

September 2, 1918

W. P McGinnis, U.S. Atty., of Muskogee, Okl. (C. W. Miller, Sp Asst. U.S. Atty., of Muskogee, Okl., on the brief), for the United States.

T. S Cobb, J. H. Cobb, and A. M. Fowler, all of Wewoka, Okl., for appellee.

Before SANBORN and CARLAND, Circuit Judges, and BOOTH, District Judge.

SANBORN Circuit Judge.

The United States brought this suit to prevent the county treasurer of Seminole county, Okl., from selling or conveying certain allotted lands formerly owned by the Seminole Nation or Tribe of Indians, on account of taxes levied thereon by the officers of those counties for the fiscal years ending June 30, 1910, June 30, 1911, June 30, 1912, June 30, 1913 and June 30, 1914. The court below rendered a decree, by which it classified the lands, enjoined the county treasurer from selling or conveying on account of those taxes the lands it adjudged not legally subject thereto, and dismissed the bill as to those lands which it found to be lawfully subject to such taxes. The United States has appealed, and specified several alleged errors.

The agreement between the United States and the Seminole Nation or Tribe of Indians, ratified by Act July 1, 1898, c. 542, 30 Stat. 567, 568, provides for the division, allotment, and conveyance of the lands of that nation to the enrolled members thereof in severalty, so that each member shall receive land of the same value as near as may be as the value of that which every other member receives.

It declares that each shall receive a deed of his allotment and that:

'Each allottee shall designate one tract of forty acres, which shall, by the terms of the deed, be made inalienable and nontaxable as a homestead in perpetuity.' For convenience the tract thus selected by an allottee is called his homestead, and the remainder of his allotment his surplus land. Section 8 of the act of March 3, 1903 (32 Stat. 1008, c. 994), provides:

'That the homestead referred to in said act (the act of July 1, 1898, just cited) shall be inalienable during the lifetime of the allottee, not exceeding twenty-one years from the date of the deed for the allotment.'

Act May 27, 1908, c. 199, 35 Stat. 312, 313, is a comprehensive declaration of the status as to restrictions upon alienation of the numerous classes of allotted lands formerly held by the Five Civilized Tribes, and section 4 of that 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.'

Counsel for the United States assign the third and fifth paragraphs of the decree as error. Those paragraphs read in this way:

'(3) That all inherited homestead allotments, where the allottees died prior to April 26, 1906, which were owned by said heirs during said fiscal years, were alienable and taxable during said years, regardless of whether said heirs were enrolled as full-blood Indians, or of less Indian blood.'

'(5) That all allotments, both surplus and homestead, made after the death of the enrolled Seminole citizens, whether owned by full-blood heirs, or by heirs of less Indian blood, were alienable and taxable during said fiscal years, whether the death of the enrolled citizens or the selections of allotments were made before or after April 26, 1906.'

The court below made these findings and rendered this decree before the decisions of the Supreme Court in Brader v. James, 246 U.S. 88, 38 Sup.Ct. 285, 286, 287, 62 L.Ed. 591, and Talley v. Burgess, 246 U.S. 104, 38 Sup.Ct. 287, 288, 289, 62 L.Ed. 600, were handed down. Conceding that prior to the passage of the act of April 26, 1906 (34 Stat. 137, c. 1876), the land described in these findings were alienable, it must now be held, in deference to the opinions in these cases, that section 22 of the act of April 26, 1906, which subjected all conveyances of adult full-blood Indian heirs to the approval of the Secretary of the Interior, and all conveyances of minor full-blood Indian heirs to the approval of the court, and section 9 of the act of May 27, 1908 (35 Stat. 312, 315), which subjected all conveyances of full-blood Indian heirs to the approval of the court having jurisdiction of the estate of the deceased allottee, rendered the lands of all full-blood Seminole Indian heirs inalienable during the fiscal years for which the taxes here in controversy were levied. David v. Youngken, 250 F. 208, . . . C.C.A. . . ., C.C.A. 8th Circuit, filed April 3, 1918; Harris v. Bell, 250 F. 209, . . . C.C.A. . . ., C.C.A. 8th Circuit, filed April 30, 1918.

Were these inalienable lands of the full-blood Indian heirs taxable for the fiscal years 1910, 1911, 1912, 1913, and 1914? Counsel for the treasurer of the county argue that they were because Congress provided in section 19 of the act of April 26, 1906 (34 Stat. 137), that 'all lands upon which restrictions are removed shall be subject to taxation,' and by the act of May 27, 1908 (35 Stat. 312), that 'all lands from which restrictions have been or shall have been removed shall be subject to taxation and all other civil burdens. ' But this contention is overborne by the fact that by these very acts of Congress restrictions upon the alienation of these lands while held by full-blood Indian heirs were imposed, and these lands were held in trust by the United States for these heirs, and made one of the instrumentalities of the government of the United States by which it pursues its wise policy of protecting Indians from the unrestrained greed, rapacity, and cunning of the members of the white race, and of seeking to induce them to cultivate the soil, to practice the arts of civilized life, and become provident and useful citizens. The lands of the full-blood Indian heirs were not lands from which restrictions had then been removed. They were lands upon which restrictions were imposed by these very acts, and it is not probable that the legislators intended to impose taxes upon lands of Indians which the United States was holding for them, while it withheld from them the power of disposition, for such a course runs counter to its public policy and practice from the foundation of the government.

Counsel call attention to the fact that there is no provision in the agreement with the Seminole Nation that any of the lands to be allotted to the members of the tribe, except the homesteads, should be free from taxation while they remained inalienable. But when that agreement was made they were free from taxation, and those who made the agreement knew that the settled policy and practice of the United States was to protect the members of the tribe and all the property which it held the control and disposition of for them free from taxation until it granted them full power of disposition thereof. And it was doubtless for that reason that no stipulation was inserted in the treaty on the subject, except that the 40 acres to be selected by each member of the tribe for a homestead should be 'nontaxable as a homestead in perpetuity.' 30 Stat. 567, 568. So it was that the imposition of the restrictions upon alienation by these acts of 1906 and 1908 upon the lands of the full-blood Indian heirs brought these lands under the universal rule that every instrumentality lawfully employed by the United States to execute its constitutional laws and to exercise its lawful governmental authority is necessarily exempt from state taxation or interference. United States v. Rickert, 188 U.S. 432, 437, 438, 439, 23 Sup.Ct. 478, 47 L.Ed. 532; United States v. Thurston County, 143 F. 287, 289 290, 74 C.C.A. 425. The provisions of the acts of 1906 and 1908, cited by counsel for the treasurer, are therefore so inconsistent with the imposition of the restrictions by these acts upon the alienation of the lands of full-blood Indian heirs and the legal effect of that imposition, that Congress could not have intended that they should apply to those lands, and the true construction of the acts which contain them undoubtedly limits their application and effect to other land. The result is that the allotments of Seminole lands owned and held during the fiscal years 1910, 1911, 1912, 1913, and 1914 by full-blood Indian heirs were instrumentalities of the United States reserved and used by it to execute its laws and to exercise its governmental powers, and they were exempt from taxation by the state of Oklahoma...