United States v. Board of Com'rs of McIntosh County
| Decision Date | 19 March 1921 |
| Docket Number | 3184.,2621,2594 |
| Parties | UNITED STATES v. BOARD OF COM'RS OF McINTOSH COUNTY. SAME v. STUCKEY, County Treasurer. SAME v. RANSON, County Treasurer. |
| Court | U.S. District Court — Eastern District of Oklahoma |
C. W Miller, U.S. Atty., and L. K. Pounders, Sp. Asst. U.S. Atty both of Muskogee, Okl.
N. A Gibson and Jos. L. Hull, both of Muskogee, Okl., W. L McPherson, of Eufaula, Okl., and W. R. Seaver, of Tulsa, Okl., for defendants.
The following questions are involved in the above styled and numbered cause:
(1) Are lands theretofore taxable under the state laws, and afterwards purchased under the supervision of the Secretary of the Interior from their bona fide non-Indian owners with royalties accruing under such supervision to a full-blood Creek Indian from part of her restricted allotment, exempted or freed from state taxation by virtue of the clause inserted by the grantor in the deed to her under the direction of and at the instance of and requirement of the Secretary of the Interior, providing 'that no lease, deed, mortgage, power of attorney, contract to sell, or other instrument affecting the land herein described or the title thereto, executed during the lifetime of said grantee at any time prior to April 26, 1931, shall be of any force and effect or capable of confirmation or ratification, unless made with the consent of and approved by the Secretary of the Interior'; the conveyance being dated December 28, 1914, and prior to its delivery and recording the following certificate of the Secretary of the Interior being thereto annexed: 'I hereby certify that the land described in the above deed was purchased for the said Ella Jones with funds held in trust by the United States for her benefit derived from oil royalty on leases covering lands allotted for her, restricted by virtue of her enrollment as a full-blood citizen of the Creek Nation, * * * and that said purchase was made and said deed was executed and the same is hereby approved pursuant to the regulations prescribed by the Secretary of the Interior under Act of Congress approved May 27, 1908, and the Act approved August 1, 1914.'
(2) Are lands theretofore taxable under state statutes, and afterwards purchased under the supervision of the Secretary of the Interior from their non-Indian bona fide owners with funds accruing under his supervision to a full-blood Creek Indian as a part of the proceeds of the sale of the lands allotted and patented to her as a part of her allotment and restricted, so as to be inalienable without the consent of the Secretary of the Interior, prior to December 1, 1913, which were sold by her subject to the conditions, inserted under the direction and at the instance of the Secretary of the Interior in the deed from the grantors to her, that the purchase price paid therefor should be received by the Secretary of the Interior or his agents and by him held in trust as a trust fund and by him disbursed under the laws, rules, and regulations of the Secretary of the Interior for her benefit, the conveyances by which said lands thus acquired containing a clause inserted by the grantor under the direction of, and at the instance of and by said requirement of the Secretary of the Interior, provided 'that no lease, deed, mortgage, power of attorney, contract to sell, or other instrument affecting the land herein described or the title thereto, executed during the lifetime of said grantee at any time prior to April 26, 1931, shall be of any force and effect or capable of confirmation or ratification unless made with the consent and approval of the Secretary of the Interior,' and prior to its delivery and recording the following certificate of the Secretary of the Interior being thereto annexed:
'That the land described in the above deed purchased for . . . with funds derived from the sale of lands allotted to . . . on the final approved rolls of citizens by blood of that nation, and that said purchase was made and said deed approved pursuant to the Act of Congress of May 27, 1908, which authorized the Secretary of the Interior to remove restrictions from allotted lands of the Five Civilized Tribes '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''
-- thereby exempted or rendered free from state taxation?
The people inhabiting the proposed state of Oklahoma, by the terms of paragraph 3 of section 3 of the Enabling Act (34 Stat. 267) were by irrevocable ordinance required to--
'agree and declare that they forever disclaim all right and title in or to any unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian, tribe, or nation, and that until the title to any such public land shall have been extinguished by the United States, the same shall be and remain subject to the jurisdiction, disposal, and control of the United States; that land belonging to citizens of the United States residing without the limits of said State shall never be taxed at a higher rate than the land belonging to residents thereof; that no taxes shall be imposed by the State on lands or property belonging to or which may hereafter be purchased by the United States or reserved for its use. ' (Italics mine.)
To the foregoing mandatory conditions the people of the proposed state, through their constitutional convention, by irrevocable ordinance agreed. A similar requirement has been imposed upon every state, except Vermont, Kentucky, Tennessee, Maine, and Texas, preliminary to admission into the Union. In so far as it may be a matter of federal cognizance, the same became a continuing and binding obligation on the part of the state after its admission into the Union. Coyle v. Smith, 221 U.S. 559, 31 Sup.Ct. 688, 55 L.Ed. 853; Id., 28 Okl. 121, 113 P. 944; Joplin Mercantile Co. v. U.S., 236 U.S.at page 547, 35 Sup. 291, 59 L.Ed. 705.
Section 1 of said Enabling Act contained the following proviso:
'Provided, that nothing contained in the said Constitution shall be construed to limit or impair the rights of persons or property pertaining to the Indians of said Territories (so long as such rights shall remain unextinguished) or to limit or affect the authority of the government of the United States to make any law or regulation respecting such Indians, their lands, property, or other rights by treaties, agreement, law, or otherwise, which it would have been competent to make if this Act had never been passed. ' (Italics mine.)
Said provision was not required to be accepted by irrevocable ordinance, such being not essential, as it related to a matter within the exclusive control of the Congress and so continues, unless remitted by the Congress to the state authority. Tiger v. Western Inv. Co., 221 U.S.at page 309, 31 Sup.Ct. 578, 55 L.Ed. 738. Said provision of section 3 of the Enabling Act was also in substance incorporated in section 3 of article 1 of the Constitution of the state.
That the states cannot tax or otherwise impose burdens on the exclusive powers of the federal government or its instrumentalities employed to carry such governmental powers into execution is beyond question. The same limitation rests upon the national government as to exclusive agencies of the states unless modified by the Sixteenth Amendment as to taxation which relates to incomes. Weston v. Charleston, 2 Pet. 449, 7 L.Ed. 481; McCulloch v. Maryland, 4 Wheat. 316, 431, 439, 4 L.Ed. 579; Bank of Commerce v. New York City, 2 Black. 620; Collector v. Day, 11 Wall. 113, 124, 20 L.Ed. 122; United States v. Railroad Co., 17 Wall. 322, 21 L.Ed. 597; Railroad Co. v. Peniston, 18 Wall. 5, 21 L.Ed. 787; Knowlton v. Moore, 178 U.S. 59, 20 Sup.Ct. 747, 44 L.Ed. 969.
Beginning with Ohio, it has been customary for the federal government, in admitting the new states into the Union, 'to require from that state-- though without necessity-- a stipulation that the public domain lying within its limits shall not be taxed by the state. ' Cooley on Taxation, vol. 1 (3d Ed.) p. 135. The Ohio Enabling Act (Act April 30, 1802) provides that:
The Illinois Enabling Act (Act April 18, 1818), in addition, required an agreement, by irrevocable ordinance, that the--
'bounty lands granted, or hereafter to be granted, for military services during the late war, shall, while they continue to be held by the patentees, or their heirs, remain exempt, as aforesaid, from all taxes, for the term of three years.'
The Iowa Enabling Act (Act March 3, 1845), in addition, required that--
'the said State shall never interfere with the primary disposal of the soil within the same by the United States nor with any regulations Congress may find necessary for securing the title in such soil to the bona fide purchasers thereof; and that no tax shall be imposed on lands the property of the United States,' and that 'the...
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United States v. Ferry County
...they cite Fink v. Board of Com'rs of Muskogee County, 248 U.S. 399, 404, 39 S.Ct. 128, 63 L.Ed. 324; United States v. Board of Commissioners, McIntosh County, D.C., 271 F. 747, 748, 763; Stewart v. Keyes, 295 U.S. 403, 410, 411, 55 S.Ct. 807, 79 L.Ed. Having thus attempted to distinguish th......