United States v. Nez Perce County, Idaho, 1265

• Decision Date: 29 August 1936
• Docket Number: 1275.,1274,No. 1265,1265
• Citation: 16 F. Supp. 267
• Parties: UNITED STATES v. NEZ PERCE COUNTY, IDAHO, et al. (two cases). SAME v. LEWIS COUNTY, IDAHO, et al.
• Court: U.S. District Court — District of Idaho

16 F. Supp. 267

UNITED STATES v. NEZ PERCE COUNTY, IDAHO, et al. (two cases).

SAME v. LEWIS COUNTY, IDAHO, et al.

Nos. 1265, 1274, 1275.

District Court, D. Idaho, Central Division.

August 29, 1936.

John A. Carver, U. S. Dist. Atty., and E. H. Casterlin and Frank Griffin, Asst. U. S. Dist. Attys., all of Boise, Idaho, for the United States.

Ray E. Durham, of Lewiston, Idaho, for defendant Nez Perce County, Idaho.

Edward C. Butler, of Lewiston, Idaho, for defendants Rural High School Dist. No. 1, Village of Lapwai, and Lapwai Valley Highway Dist.

Thomas A. Madden, of Nezperce, Idaho, for defendant Lewis County, Idaho. CAVANAH, District Judge.

As these three cases were tried at the same time, although presenting different rights and questions, yet they can be considered and disposed of separately in one opinion.

The cases were brought by the United States against Nez Perce county and others to recover taxes paid by Indian wards of the government and to cancel taxes levied but not paid and to quiet title to the lands of two of the wards. They involve the same class of land and the same class of Indian ward, and a discussion of the same legal questions involved will be applied to each case where applicable, with a consideration of the facts separately.

At the conclusion of the plaintiff's evidence, the defendants moved for a nonsuit and dismissal, in each case, and it was agreed that in the event the motion was overruled, the court could consider the evidence offered by the defendants, subject to certain objections thereto of the plaintiff. In case No. 1265 the land assessed and taxed was held in trust by the United States for Annie Luke, and she or some one acting in her behalf without protest paid the taxes to the county for the years 1924 to 1929, inclusive. The United States now seeks to recover these taxes, which aggregate $880.64, upon the theory that as the lands so assessed were trust lands and held by it in trust for Annie Luke, an Indian ward of the Government, they are exempt from taxation under the Treaty of June 9, 1863, with the Nez Perces, which set apart the lands for the exclusive use and benefit of the tribe of Indians as an Indian reservation. The provision of the treaty relied upon is that: "Until otherwise provided by law, such tracts shall be exempt from levy, taxation, or sale, and shall be alienable in fee, or leased, or otherwise disposed of, only to the United States, or to persons then being members of the Nez Perce tribe, and of Indian blood, with the permission of the President, and under such regulations as the Secretary of the Interior of the Commissioner of Indian Affairs shall prescribe; * * * No state or territorial legislature shall remove the restriction herein provided for, without the consent of Congress, and no State or territorial law to that end shall be deemed valid until the same has been specially submitted to Congress for its approval." Article 3, 14 Stat. 647-649.

The defendants interpose the defense that the United States is not the proper party plaintiff, and, if so, the taxes cannot be recovered for the reason that the land was subject to taxation, and as the taxes were voluntarily paid, the doctrine of estoppel applies.

The government has never terminated its wardship over the Indians involved in these actions, and under the treaty the lands are held by the government in trust for the use and benefit of the wards with the tax-free provision until otherwise provided by law and until they are by fee-simple deeds transferred to the Indians. Title 25 U.S.C.A. § 348. It is not only a proper party plaintiff, but its duty as long as the wardship over the Indians exist is to proceed to protect the Indians' land and assert their exemptions from taxation, if the circumstances warrant. Title 5 U. S.C.A. § 485; title 25 U.S.C.A. § 231. The doctrine that it is the policy of the government as guardian of the Indians to protect them and their property, with authority to sue, was upheld in Cramer v. United States, 261 U.S. 219-232, 43 S.Ct. 342, 345, 67 L. Ed. 622, where the court said: "The contention that the United States was without authority to maintain the suit in the capacity of guardian for these Indians is without merit. In United States v. Kagama, 118 U.S. 375, 383, 384, 6 S.Ct. 1109, 1114, 30 L.Ed. 228, the general doctrine was laid down by this court that the Indian tribes are wards of the nation, communities dependent on the United States. `From their very weakness and helplessness, so largely due to the course of dealing of the federal government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power.' This duty of protection and power extend to individual Indians, even though they may have become citizens. United States v. Nice, 241 U.S. 591, 598, 36 S.Ct. 696, 60 L.Ed. 1192, and cases cited; Heckman v. United States, 224 U.S. 413, 436, 32 S.Ct. 424, 56 L.Ed. 820; United States v. Gray, 201 F. 291 * * *; United States v. Fitzgerald, 201 F. 295 * * *. In United States v. Gray, supra, the capacity of the United States to sue for the breach of a lease made by an Indian allottee was asserted and upheld. After pointing out the fact that it was the policy of the government to protect all Indians and their property and to teach and persuade them to abandon their nomadic habits the court said: `The civil and political status of the Indian does not condition the power of the government to protect their property or to instruct them. Their admission to citizenship does not deprive the United States of its power nor relieve it of its duty. * * *' In United States v. Fitzgerald, supra, it was held that the United States had capacity to sue for the taking of personal property from an Indian held by him subject to the management of an Indian agent, on the ground, among others, that such taking obstructs the execution of its governmental policy. At page 296 of 201 F., * * * the court said: `The United States may lawfully maintain suits in its own courts to prevent interference with the means it adopts to exercise its powers of government and to carry into effect its policies. It may maintain such suits, although it has no pecuniary interest in the subject-matter thereof, for the purpose of protecting and enforcing its governmental rights and to aid in the execution of its governmental policies.' Congress may, if it thinks fit, emancipate the Indians from their wardship wholly or partially, United States v. Waller, 243 U.S. 452, 459, 37 S. Ct. 430, 61 L.Ed. 843; but in respect of the Indians here concerned that has not been done. It results, from the conclusion we have reached to the effect that these Indians had occupied the lands in dispute with the implied consent of the United States and in accordance with its policy, that the United States sustains such a relation to the subject matter and persons that its authority to maintain the suit cannot be questioned."

The trust patent to Annie Luke having not expired nor was there issued to her a fee-simple patent, and the lands allotted to her being held in trust by the United States, it seems, without doubt, that the United States may maintain the action to recover back taxes paid by her upon her lands if exempt from taxation under the treaty, even though there is an administrator appointed to administer her estate, because her property was held in trust by the United States. The doctrine of estoppel invoked because of the acts of an agency of the government in informing the county assessor that the lands were not held in trust by the government, and were therefore placed on the tax roll by mistake and the taxes voluntarily paid, is without merit, as the United States is not bound or estopped by the acts of its agents in doing what the law does not sanction or permit. Utah Power & Light Company v. United States, 243 U.S. 389, 409, 37 S.Ct. 387, 61 L.Ed. 791; United States v. Carbon County Land Co. et al. (C.C.A.) 46 F.(2d) 980, 987. Neither does the fact that the taxes were paid without protest by the Indian preclude a recovery by the United States. United States v. Dewey County (D.C.) 14 F.(2d) 784.

The argument that in these cases Congress had no authority to extend and continue the trust period falls, when we consider that as long as the tribal relation exists the national guardianship continues and includes the authority of the United States to make regulations and limitations upon the rights which such Indians might exercise in respect to their lands. Brader v. James, 246 U.S. 88, 96, 38 S.Ct. 285, 62 L. Ed. 591.

As the assessment and levy of the taxes, by the county, against the land of the allottee Annie Luke, was illegal under the provisions of the treaty, the taxes paid by her are to be refunded to the United States to be held by it in trust for her use and benefit, and therefore the motion of the defendants for a nonsuit will be denied, and the objections of the defendants to the introduction of certain evidence is to be denied as it becomes pertinent to consider that evidence after the view taken by the court in these cases.

A decree will be entered as prayed for in plaintiff's complaint.

In case 1274, the United States seeks to quiet title to certain lands and clear the title from assessment of taxes, and recover the amount of taxes paid by Cable Carter, an Indian ward of the United States, for the years 1923 to 1928, inclusive. It is urged by the defendants that the United States should not recover as a patent in fee was issued by it to Carter on May 31, 1921, to the lands assessed, which is, and was at the time the taxes were levied, in force and effect, for the reasons: First, that Carter consented to the issuance of the patent in fee. Second, that by reason of the issuance of the patent in fee, the trust period expired prior to the cancellation of the patent by the Secretary of the Interior under date April 20, 1932, and therefore his...