United States v. Porter

Decision Date07 November 1927
Docket NumberNo. 5237.,5237.
Citation22 F.2d 365
CourtU.S. Court of Appeals — Ninth Circuit

John B. Wright, U. S. Atty., of Tucson, Ariz., and George R. Hill, Asst. U. S. Atty., of Phœnix, Ariz.

Levi S. Udall, Co. Atty., of St. Johns, Ariz. (Maurice Barth, of St. Johns, Ariz., of counsel), and Isaac Barth, of Holbrook, Ariz., for appellees.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

RUDKIN, Circuit Judge.

The present suit was instituted by the United States against the taxing officers of Apache county, Arizona, to restrain them from assessing, levying, and collecting taxes on about 1,000 head of sheep and 100 head of cattle, owned by certain Indians belonging to the Navajo Tribe. From a decree of dismissal the present appeal was prosecuted. The material facts, taking the view most favorable to the appellant, are as follows:

The Indians on whose behalf the suit is prosecuted are members of the Navajo Tribe and have never severed their tribal relations. By article 12 of the Treaty of 1868 between the United States and the Navajos it was agreed that the sum of $150,000, appropriated or to be appropriated, should be distributed as follows: "Second. The purchase of 15,000 head of sheep and goats at a cost of not to exceed $30,000." 15 Stat. 670. Under date of August 19, 1870, the agent for the Navajo Tribe reported to the Superintendent of Indian Affairs that a count of the Navajos made on the 18th of the previous October disclosed a total of 8,181 Indians, including men, women, and children; that on November 25 he received 14,000 head of sheep and 1,000 head of goats, in accordance with article 12 of the treaty; and that the sheep and goats thus received were issued to the members of the tribe.

There was further testimony tending to show that each Indian received 2 sheep, and that four or five years later one sheep was issued to each Indian in the like manner; that the father of Little Silversmith was one of the Indians to whom distribution was made; that many years ago the father marked 4 ewe lambs and gave them to Little Silversmith for herding the sheep; that the 4 ewe lambs remained with the father's flock until about 26 years ago, when the number had increased to 50; that the 1,000 head of sheep mentioned in the complaint are the increase of these 50; that the Indians wove blankets from wool grown on the sheep, and traded the blankets to the Mexicans for horses; that the horses were exchanged for cattle; that some 30 years ago the father gave Little Silversmith a bull and a calf, and that the 100 head of cattle described in the complaint are the increase of these two.

Owing to the great lapse of time, the testimony tending to show that the father of Little Silversmith participated in the distribution of sheep was necessarily indefinite and weak, and some of it of doubtful competency; but we have assumed that such was the fact for the purposes of this appeal.

Section 20 of the Enabling Act, under which the state of Arizona was organized and admitted, provides "that no taxes shall be imposed by the state upon lands or property therein belonging to or which may hereafter be...

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3 cases
  • U.S. v. Superior Court In and For Maricopa County
    • United States
    • Arizona Supreme Court
    • January 30, 1985
    ...(Arizona workers' compensation law applicable to Indian workers at non-Indian uranium mine on Navajo Reservation); United States v. Porter, 22 F.2d 365 (9th Cir.1927) (state authority to tax Navajos for property owned by them and located outside the reservation); Francisco v. State, 113 Ari......
  • Harrison v. Laveen
    • United States
    • Arizona Supreme Court
    • July 15, 1948
    ... ... constitution and laws of both the United States and the State ... of Arizona ... The ... defendant recorder moved to dismiss ... could be granted under the authority of the decision of this ... court in the case of Porter v. Hall, 1928, 34 Ariz ... 308, 271 P. 411, 412. This motion was granted and ... subsequently ... ...
  • Dowling v. United States
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • November 8, 1927

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