United States v. BOARD OF COUNTY COM'RS

• Decision Date: 21 March 1946
• Docket Number: No. 3243.,3243.
• Citation: 154 F.2d 600
• Parties: UNITED STATES v. BOARD OF COUNTY COMMISSIONERS OF McINTOSH COUNTY, OKL., et al.
• Court: U.S. Court of Appeals — Tenth Circuit

154 F.2d 600 (1946)

UNITED STATES v. BOARD OF COUNTY COMMISSIONERS OF McINTOSH COUNTY, OKL., et al.

No. 3243.

Circuit Court of Appeals Tenth Circuit.

March 21, 1946.

Fred W. Smith, Atty., Department of Justice, of Washington, D. C. (J. Edward Williams, Acting Head, Lands Division, Department of Justice, of Washington, D. C., Cleon A. Summers, U. S. Atty., of Muskogee, Okl., and Roger P. Marquis, Atty., Department of Justice, of Washington, D. C., on the brief), for appellant.

James H. Harkin, Asst. Atty. Gen. (Randell S. Cobb, Atty. Gen., and Hazen Green, Co. Atty., of Eufaula, Okl., on the brief), for appellees.

Before BRATTON, HUXMAN and MURRAH, Circuit Judges.

BRATTON, Circuit Judge.

The question for determination is whether certain land containing 120 acres in McIntosh County, Oklahoma, was subject to tax pursuant to state law.

Section 19 of the Act of April 26, 1906, 34 Stat. 137, 144, provides that no full-blood Indian of the Choctaw, Chickasaw, Cherokee, Creek, or Seminole Tribes shall have power to alienate, sell, dispose of, or encumber any of the lands allotted to him for a period of twenty-five years from and after passage and approval of the Act, unless such restrictions shall prior to the expiration of that period be removed by Act of Congress; and further, 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 pertinent part of section 1 of the Act of May 27, 1908, 35 Stat. 312, provides that "all allotted lands of enrolled full-bloods, and enrolled mixed-bloods of three-quarters or more Indian blood, including minors of such degrees of blood (Five Civilized Tribes), shall not be subject to alienation * * * prior to April twenty-sixth, nineteen hundred and thirty-one, except that the Secretary of the Interior may remove such restrictions, wholly or in part, under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe." Section 4 provides that all land from which restrictions have been or shall be removed shall be subject to taxation. Section 9 provides that the death of any allottee shall operate to remove all restrictions upon alienation of the allottee's land, "Provided, That no conveyance of any interest of any full-blood Indian heir in such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee * * *." And it contains a second proviso which does not have material bearing here. This section was amended by the Act of April 12, 1926, 44 Stat. 239, but the presently material part remained unchanged in substance. Section 1 of the Act of May 10, 1928, 45 Stat. 495, provides in effect that restrictions against alienation of lands allotted to members of the Five Civilized Tribes in Oklahoma, enrolled as of one-half or more Indian blood, are extended to April 26, 1956. Section 2 extends in like manner the provisions of section 9 of such Act of May 27, 1908, as amended, except the second proviso thereof. Section 4 provides that on and after April 26, 1931, the allotted, inherited, and devised restricted lands of each Indian of such Tribes in excess of 160 acres shall be subject to taxation by the state, in all respects as unrestricted and other lands. It further provides that if the Indian owner is an adult and not legally incompetent, he shall select from his restricted land a tract or tracts, not exceeding in the aggregate 160 acres, to remain exempt from taxation, and shall file with the Superintendent of the Five Civilized Tribes a certificate designating the tract or tracts selected. It further provides that in cases where the Indian fails within two years from the date of the Act to file the certificate, and in cases where the Indian is a minor or otherwise legally incompetent, the selection shall be made and the certificate prepared by the Superintendent. It further provides that the certificate, whether prepared by the Indian or the Superintendent, shall be subject to approval by the Secretary, shall be recorded in the office of the Superintendent, and shall be recorded in the county records. And it further provides that the land designated and described in the certificate so recorded shall remain exempt from taxation while the title remains in the Indian, or in any full-blood Indian heir or devisee of the land, but not beyond the period of restrictions provided for in the Act. Section 5 provides that the Act shall not be construed to reimpose restrictions theretofore or thereafter removed by the Secretary or by operation of law, nor to exempt from taxation any lands which are subject to taxation under existing law. Section 2 of the Act of June 20, 1936, 49 Stat. 1542, provides that all lands, the title to which is held by an Indian subject to restrictions against alienation or encumbrance except with the consent of the Secretary, heretofore purchased out of trust or restricted funds of such Indian, are declared to be instrumentalities of the Federal Government and shall be nontaxable until otherwise directed by Congress. That section was amended by the Act of May 19, 1937, 50 Stat. 188, 25 U.S.C.A. § 412a, to provide that all homesteads, theretofore or thereafter purchased out of trust or restricted funds of individual Indians, are declared to be instrumentalities of the Federal Government and shall be nontaxable until directed by Congress, provided the title to such homesteads are held subject to restrictions against alienation except with the approval of the Secretary. And it further provides that the Indian owner or owners shall select, with the approval of the Secretary, either agricultural or grazing lands, not exceeding in the aggregate 160 acres, or village, town, or city property, not exceeding in cost $5000, to be designated as a homestead.

Part of the land in suit was allotted to Lewis Harjo, a full-blood enrolled Creek Indian; part was allotted to Lena Hall, likewise a full-blood enrolled Creek Indian; and patents were issued to the respective allottees. The land was restricted against alienation while title remained in the allottees unless the restrictions be removed by the Secretary of the Interior, as provided by law. Sulloly Jones, an enrolled Creek Indian of the full-blood, received an allotment of land similarly restricted against alienation, from which income was derived through the sale of oil and gas. The funds representing the income were paid to the Secretary of the Interior in trust for the use and benefit of Jones and were subject to disbursement under rules and regulations promulgated by the Secretary. In 1914, Jones desired to acquire by purchase the land allotted to Harjo and Hall, and he applied to the Secretary for consent to use for that purpose the requisite amount of his restricted funds. The application was approved, and in order to consummate the transaction the Secretary removed the restrictions upon the land allotted to Harjo and Hall upon the condition that the conveyances to Jones contain a provision in the habendum clause restricting alienation by Jones during his lifetime or at any time prior to April 26, 1931, unless with the consent of the Secretary, and upon the further condition that the consideration paid Harjo and Hall be from the restricted funds of Jones. The deeds, each containing the provision restricting alienation, were delivered and the consideration was paid with restricted funds. Jones died in 1925, and the land passed by descent and distribution to his widow and children, one-third undivided interest to the widow and two-fifteenths undivided interest to each of the children, all of whom were full-blood Creek Indians. The land was occupied by Jones as a homestead until his death, and thereafter the heirs continued to occupy it as their homestead. But no certificate was ever executed by the heirs or on their behalf designating any part of the land as tax exempt.

The land was assessed for taxes levied pursuant to state law for the years 1915 to 1943, inclusive. The taxes for some of the years were paid for and on behalf of Jones, those for other years were paid for and on behalf of the heirs of Jones, and those for still other years became delinquent. The land was sold to the county for the delinquent taxes and was later resold to J. R. Watson, and a tax deed was issued to him. Watson brought an action in the state court in which it was sought to establish the validity of the tax deed. The Board of County Commissioners was a party, and the United States intervened. Judgment was entered cancelling the tax deed, directing payment to Watson of a specified amount then in the hands of a receiver, and dismissing the action without prejudice to the right of the United States or the heirs of Jones to recover for any taxes which might have been illegally collected.

The United States, in its own behalf and on behalf of the restricted heirs of...