United States v. Mullendore

• Decision Date: 30 September 1929
• Docket Number: 8439.,No. 8417,8417
• Citation: 35 F.2d 78
• Parties: UNITED STATES v. MULLENDORE et al. SAME v. HUNTER, County Treasurer.
• Court: U.S. Court of Appeals — Eighth Circuit

35 F.2d 78 (1929)

UNITED STATES v. MULLENDORE et al.

SAME v. HUNTER, County Treasurer.

Nos. 8417, 8439.

Circuit Court of Appeals, Eighth Circuit.

September 30, 1929.

Louis N. Stivers, Asst. U. S. Atty., of Tulsa, Okl. (John M. Goldesberry, U. S. Atty., of Tulsa, Okl., on the brief), for the United States.

J. H. Maxey, of Tulsa, Okl., and C. Kenny Templeton, of Pawhuska, Okl. (T. J. Leahy and C. S. Macdonald, both of Pawhuska, Okl., on the brief), for appellees Mullendore et al.

C. Kenny Templeton, of Pawhuska, Okl., for appellee Hunter.

Before LEWIS and VAN VALKENBURGH, Circuit Judges, and SYMES, District Judge.

LEWIS, Circuit Judge.

The question for decision in this suit is, whether Osage homestead allotments inherited by non-competent Osages of half or more Indian blood from a non-competent allottee of like degree of Indian blood are taxable. The suit was brought by appellants in behalf of the heirs. The bill alleges that Fannie Wheeler was an Osage Indian of half or more Indian blood, that she was enrolled as such opposite Roll No. 732; that under the Act of June 28, 1906 (34 Stat. 539), certain lands, describing them, in Osage County, Oklahoma, were allotted to her as a homestead; that on January 27, 1917, she died intestate, without having received a certificate of competency, and left surviving her as her sole and only heirs at law her husband Ben Wheeler and her two children Mary and Francis Wheeler, all of whom are restricted Osage Indians of one-half or more Indian blood and to none of whom has there ever been issued a certificate of competency, that they are the owners in fee simple of said homestead lands, subject only to the supervision of plaintiffs; that said lands were and are inalienable and non-taxable, but nevertheless the sheriff of said Osage County sold said lands in August, 1927, to defendant Mullendore in satisfaction of a claimed lien for taxes assessed thereon for the years 1919 to 1925 both inclusive, and that the sheriff's deed executed pursuant to said sale to Mullendore is now of record in the office of the county clerk of Osage County. A copy of the deed is exhibited with the bill. It is prayed that the deed be adjudged null and void and the title to the lands quieted in said heirs. The board of county commissioners were permitted to intervene as a defendant.

The court below sustained a demurrer to the bill on the ground the facts stated did not entitle plaintiffs to relief. Then this appeal was taken.

In the division of the Osage Indian Reservation in Oklahoma each member of the tribe, as shown by the roll of membership, made three selections of 160 acres each, one of which was designated as a homestead. Osage Allotment Act June 28, 1906, 34 Stat. 539. By paragraph 4 of Section 2 the homestead allotments were made "inalienable and nontaxable until otherwise provided by Act of Congress. The other two selections of each member, together with his share of the remaining lands allotted to the member, shall be known as surplus land, and shall be inalienable for twenty-five years, except as hereinafter provided;" but by Paragraph 7 of said Section 2 the surplus lands were to become taxable after the expiration of three years from the date of the approval of the Act. That paragraph also provides that the Secretary of the Interior may, in his discretion, issue to an allottee a certificate of competency which authorizes the allottee to sell and convey any of the lands allotted to him under the Act, except his homestead, which in that case remains inalienable for twenty-five years or during the life of the homestead allottee. Section 6 provides that the allotted lands of any deceased member of the tribe shall descend to the legal heirs of the allottee, and Section 7:

"That the lands herein provided for are set aside for the sole use and benefit of the individual members of the tribe entitled thereto, or to their heirs, as herein provided; and said members, or their heirs, shall have the right to use and to lease said lands for farming, grazing, or any other purpose not otherwise specifically provided for herein, and said members shall have full control of the same, including the proceeds thereof. * * *"

That section also provides that all leases of said lands for the benefit of the members or their heirs shall be subject to the approval of the Secretary of the Interior. The Act also authorizes the principal chief of the tribe to execute deeds to the members for their allotments, but that no deed shall be valid without the approval of the Secretary.

Counsel for appellees concede the homestead is not taxable under the Act of June 28, 1906, and that to sustain the ruling of the district court there must have been subsequent legislation by Congress removing the exemption. In their brief they say:

"If it were not for the Acts of April 18, 1912, and March 3, 1921, there would be no question but what the lands involved would not be subject to taxation, but it is necessary to ascertain the effect of these two Acts for upon their construction the question involved in this case must be determined."

The concession of counsel is in accord with the interpretation given by the Federal courts of the Eighth Circuit to the restrictions in the Act of June 28, 1906. Aaron v. U. S. (C. C. A.) 204 F. 943; U. S. v. Board of Commissioners (C. C.) 193 F. 485, Id. (C. C. A.) 216 F. 883. The Act of April 18, 1912 (37 Stat. 86), contains eleven sections. Its title shows that it is supplementary to and amendatory of the Act of June 28, 1906, but the body of the Act discloses that only one of its sections (10) is an express amendment to the Act of June 28th, that is Paragraph 4 of Section 4 of the earlier Act, and with that we are not concerned. Section 9 of the Act of April 18th, more out of precaution than of necessity, again defines the word "competent" as meaning a person to whom a certificate has been issued authorizing alienation of all the lands comprising his allotment, except his homestead. Section 11 repeals all acts or parts of acts inconsistent with the Act of April 18th. All other sections of the Act of April 18, 1912, are supplementary to the Act of June 28th, and the two Acts must be read together, retaining all of each in full vigor unless there be parts of the earlier Act in irreconcilable conflict with the later, when the earlier must to that extent give way to the later. There is not to be found in the Act of April 18th an express repeal of the exemption of the homestead from alienation and taxation, or any reference to Paragraph 4 of Section 2 of the Act of June 28th; so if there be a repeal of that paragraph it is by implication only and repeals by implication are not favored.

"If both acts can, by any reasonable construction, be construed together, both will be sustained. Two statutes are not repugnant to each other unless they relate to the same subject. Furthermore, it is necessary to the implication of a repeal that the objects of the two statutes be the same. If they are not both statutes will stand, although they may refer to the same subject." 36 Cyc. pp. 1076, 1077.

See McCool v. Smith, 1 Black, 459, 17 L. Ed. 218; United States v. Healey, 160 U. S. 136, 16 S. Ct. 247, 40 L. Ed. 369; Cope v. Cope, 137 U. S. 682, 11 S. Ct. 222, 34 L. Ed. 832; Frost v. Wenie, 157 U. S. 46, 15 S. Ct. 532, 39 L. Ed. 614; Washington v. Miller, 235 U. S. 422, 35 S. Ct. 119, 59 L. Ed. 295.

The appellees rely upon Sections 1, 6 and 7 of the Act of April 18th, and especially the last proviso to Section 7. Before setting them out in full we give a résumé of the other sections. Section 2 permits the exchange of surplus allotments when so authorized by the Secretary of the Interior. Section 3 submits the estates of deceased allottees, orphan minors, insane and other incompetent allottees of the tribe, to the jurisdiction of the county courts of Oklahoma and authorizes a designated United States agent to inspect transactions therein in such courts and to call to the attention of the court for investigation any claimed dereliction of duty on the part of administrators or guardians of such estates or persons, and it provides

"That no land shall be sold or alienated under the provisions of this section without the approval of the Secretary of the Interior."

Section 4 declares that the rights of the Osage Tribe in oil, gas, coal and other minerals as fixed by the Act of June 28, 1906, are to be in no manner changed by the Act of April 18th. Section 5 authorizes the Secretary of the Interior, in his discretion, to pay to Osage allottees all or part of the funds in the Treasury to their individual credit. Section 8 provides that adult members of the Osage Tribe who are not mentally incompetent may dispose of their property, including that from which restrictions as to alienation have not been removed, by will, in accordance with the laws of the State of Oklahoma, but that no such will shall be valid until it has been approved by the Secretary of the Interior. Throughout these sections there is no intimation of an intention to slacken the restrictions of the prior Act as to either alienation or taxation of homesteads.

The sections relied on read thus:

Section 1: "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That until the inherited lands of the deceased members of the Osage tribe of Indians shall be partitioned or sold the Secretary of the Interior be, and he hereby is, authorized to pay the taxes on said land out of any money due and payable to the heirs from the segregated decedent's funds in the Treasury of the United States."

Obviously, there is nothing in this section that removes the restriction of the Act of June 28, 1906, exempting homesteads from alienation and taxation, or either.

Section 6: "That from and after the approval of this act the lands of deceased Osage allottees, unless the heirs agree to partition the same,...