United States v. NEZ PERCE COUNTY, IDAHO

• Decision Date: 13 July 1943
• Docket Number: No. 1513.,1513.
• Citation: United States v. NEZ PERCE COUNTY, IDAHO, 50 F.Supp. 966 (D. Idaho 1943)
• Parties: UNITED STATES v. NEZ PERCE COUNTY, IDAHO, et al.
• Court: U.S. District Court — District of Idaho

50 F. Supp. 966

UNITED STATES v. NEZ PERCE COUNTY, IDAHO, et al.

No. 1513.

District Court, D. Idaho, Central Division.

July 13, 1943.

John A. Carver, U. S. Dist. Atty., E. H. Casterlin, Asst. U. S. Dist. Atty., and R. W. Beckwith, Asst. U. S. Dist. Atty., all of Boise, Idaho, for the United States.

Marcus J. Ware, of Lewiston, Idaho, for defendants.

CLARK, District Judge.

This action is brought by, through and under the direction and authority of the Attorney General of the United States, and the jurisdiction of this Court is claimed on the ground that the United States of America is plaintiff.

The action is on behalf of certain Indian wards and is brought to quiet title to six separate tracts of land described in plaintiff's complaint and numbered tract 1 to tract 6 inclusive. The title being held by the following named Indians:

Tract No. 1 by Joseph Peterson Estate.

Tract No. 2 by Clarence Raboin

Tract No. 3 by Weyahtulwenunmy

Tract No. 4 by Helen Jack Tomeo and Ellen Ellenwood

Tract No. 5 by James McConville, Owen J. Gould, Carrie Brown, Mary Bailey Arthur, and Fanny Vailey Hayes

Tract No. 6 by Elsie Rubens

Hereinafter in this opinion they will be referred to by tract numbers only.

Tract Number 1: This tract of land was purchased on the 30th of November 1915 at the cost of $1,000 from funds arising from the sale of land held in trust by the United States for the benefit of said Joseph Peterson, and has been held ever since that time subject to restrictions against alienation and encumbrance except with the consent and approval of the Secretary of Interior. The taxes were paid on this tract to Nez Perce County by Joseph Peterson as follows: $11.07 for the year 1936; $12.26 for the year 1937; $10.33 for the year 1938, and the taxes were levied by Nez Perce County for the years subsequent to the year 1938, no part of which has been paid.

Tract Number 2: This tract of land was purchased on August 22, 1930, at a cost of $700 under the same conditions and reservations as tract number 1. Taxes on this tract were paid to Nez Perce County for the year 1936 $13.25; for the year 1937 $13.99; for the year 1938 $12.57; for the year 1939 $16.26, and taxes were levied for years subsequent to 1939, no part of which has been paid.

Tract Number 3: This tract was purchased on the 16th day of May 1924 for the consideration of the sum of $800 and was again transferred on December 2, 1929, for the sum of $1,000 with the same reservations as applied to tract number 1. Taxes on this tract were paid to Nez Perce County, Idaho, as follows: $11.30 for the year 1936; $15.63 for the year 1937; $13.97 for the year 1938; $14.65 for the year 1939; $14.64 for the year 1940; $14.88 for the year 1941; $8.62 for the year 1942.

Tract Number 4: This tract of land was purchased on the 20th day of June, 1912, for the consideration of $550 and was deeded to Theodore Sharp, Superintendent of Fort Lapwai Indian Sanitarium School, as agent of the Government, in trust for Tok-toe-tson-my of Lapwai, County of Nez Perce, State of Idaho. In this deed there are no reservations or restrictions, but on April 9, 1925, Margaret E. Sharp, administratrix of the estate of Theodore Sharp, deceased, in trust for Tok-toe-tson-my conveyed the tract to the United States in trust for Tok-toe-tson-my, subject to the conditions that no deed, mortgage, power of attorney, contract to sell, or other instrument affecting the title thereto executed by or for the grantees or their heirs or legal representatives shall have any force or effect without the approval of the Secretary of the Interior. The present owners are Indian wards of the Government. Certificate designating this property exempt from taxation was approved by the Assistant Secretary of the Interior on August 29, 1940, and on October 5, 1940, the same was recorded in Nez Perce County, Idaho.

The deed hereinbefore mentioned dated June 20, 1912, to Theodore Sharp, Superintendent of the Fort Lapwai Sanitarium School as Agent for the Government was recorded in the records of Nez Perce County, Idaho, on the 24th day of June 1912. The deed from Margaret Sharp, administratrix, made on the 9th day of April, 1925, was not recorded, and it appears from the evidence that it never has been recorded. The exemption certificates hereinbefore referred to were filed for record in the office of the County Recorder of Nez Perce County on October 5, 1940.

The taxes on this tract were paid to Nez Perce County by or on behalf of the Indian Wards of the Government as follows: $5.17 for the year 1936; $6.06 for the year 1937; $5.68 for the year 1938; $5.94 for the year 1939; $5.94 for the year 1940. Taxes have been levied for the years subsequent to 1940, and Nez Perce County now claims the land in said tract for the taxes so levied.

Tract Number 5: This tract of land was purchased on the 27th day of April 1914 at a cost of $2,500 out of trust or restricted Indian funds, and since that time has been held subject to restrictions against alienation or incumbrance except with the consent or approval of the Secretary of Interior. Taxes on said tract were paid for the year 1936 in the sum of $21.33; for the year 1937 and thereafter taxes have been levied by Nez Perce County but have not been paid.

Tract Number 6: This tract of land was purchased on the 20th day of August, 1920, and deeded to Louis Rubens for a consideration of $6,000. This deed contains a provision: "that while the title is in the grantee or heirs, no deed, mortgage, power of attorney, contract to sell or other instrument affecting the land herein described or the title thereto shall be of any force or effect or capable of confirmation or ratification unless approved by the Secretary of the Interior."

Louis Rubens died intestate on February 21, 1931, and Elsie Rubens, Indian Ward, as his heir is now the owner of said tract of land. Elsie Rubens executed a certificate designating the property exempt from taxation on October 15, 1940. On February 21, 1941, the same was approved by the Assistant Secretary of Interior and on May 7, 1941, the certificate was recorded in Nez Perce County, Idaho. This certificate recites in the description "an undivided 5/6 interest" in the tract described as tract number 6.

Taxes in the sum of $29.66 were paid to Nez Perce County for the year 1936; taxes for 1937 to 1941 inclusive were not paid, and on December 22, 1941, this tract of land was deeded to Nez Perce County, Idaho, for the unpaid 1937 taxes.

These tracts have been listed separately as there is some difference in the Statement of facts as to each tract.

The question is whether those lands embraced in the different tracts held by these Indian wards were exempt from the Idaho Real Estate taxes for the years in question, commencing with the year 1936 through to the Act of June 20, 1936, 49 Stat. 1542, and whether a portion was exempt by virtue of the Act of 1936, as amended by the Act of May 19, 1937; Section 2 of this Act provides:

"All lands the title to which is now held by an Indian subject to restrictions against alienation or encumbrance except with the...