United States v. Swain County, NC

• Decision Date: 17 December 1930
• Citation: 46 F.2d 99
• Court: U.S. District Court — Western District of North Carolina
• Parties: UNITED STATES v. SWAIN COUNTY, N. C.

46 F.2d 99 (1930)

UNITED STATES v. SWAIN COUNTY, N. C.

District Court, W. D. North Carolina.

December 17, 1930.

Thos. J. Harkins, U. S. Atty., of Asheville, N. C Edwards & Leatherwood, of Bryson City, N. C., and Alley & Alley, of Waynesville, N. C., for defendants.

WEBB, District Judge.

This is a suit in equity, brought by the United States against the sheriff, the county commissioners, and the register of deeds, of Swain county, N. C., to enjoin those duly constituted authorities from the collection of taxes assessed by them, for state and county purposes, against the lands of what is known as the "Eastern Band of Cherokee Indians," for the year 1926. This Eastern Band of Cherokee Indians is a corporation, organized by an act of the Legislature of North Carolina in the year 1889.

To satisfy the levy of taxes due upon the land owned by this corporation, these lands were advertised and sold, and Swain county became the purchaser of the same at the sale. However, before conveyance was executed pursuant to the sale, this suit was brought by the complainant for the purpose of canceling and annulling said assessment, and to have declared void the sale of the lands, and to restrain the sheriff and tax collector from making a deed for same.

The defendants, in behalf of Swain county, answered the bill of complaint and admitted most of the allegations of the bill, but denied that the tax assessment was illegal, and asserted the right of Swain county to assess and collect these taxes against the lands of the Eastern Band of Cherokee Indians, lying within Swain county, for both state and county purposes.

The defendants assert that the act of Congress of June 4, 1924 (43 Stat. at Large 376 25 USCA § 331 note), attempting to exempt these lands from such taxation, is void and unconstitutional. This act authorizes the Eastern Band of Cherokee Indians to convey to the United States in their right all the lands, money, and property of the Eastern Band of Cherokee Indians for final disposition as provided in the act, and provides further for a roll of the members for allotment of lands to the individual members of the band, and the manner of making the allotment, and numerous details for carrying out the provisions of the act.

This act contains the further provision:

"That such restricted and undivided property shall be exempt from sale for unpaid taxes for two years from the date when such taxes become due and payable," etc. Section 21.

And further provides:

"After the expiration of the tax year following that in which this Act is approved all lands allotted to members of said band, from which restrictions shall have been removed, shall be subject to taxation the same as other lands. But from and after the expiration of said tax year all restricted allotments and undivided property shall be exempt from taxation until the restrictions on the alienation of such allotments are removed or the title of the band to such undivided property is extinguished." (Section 21.)

The only question before the court is: Has Congress the power to exempt these lands from state and county taxes?

Before discussing the constitutionality of this act, I think it proper that we should consider the rights of the Indians in North America to the lands which they occupied or used as their hunting and fishing grounds when this continent was discovered.

Chief Justice Marshall, in the case of Johnson & Graham's Lessee v. William M'Intosh, 8 Wheat. 543, 574, 5 L. Ed. 681, says, among other things, that:

"The power of the Indians to dispose of the soil, at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it."

The great Chief Justice further said in this opinion:

"In this first effort made by the English government to acquire territory on this continent, we perceive a complete recognition of the principle which has been mentioned. The right of discovery given by this commission, is confined to countries `then unknown to all Christian people'; and of these countries, Cabot was empowered to take possession in the name of the king of England. * * * While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy."

Continuing, Chief Justice Marshall said:

"The same principle continued to be recognized. The charter granted to Sir Humphrey Gilbert, in 1578, authorizes him to discover and take possession of such remote, heathen and barbarous lands, as were not actually possessed by any Christian prince or people. This charter was afterwards renewed to Sir Walter Raleigh, in nearly the same terms. * * * Thus has our whole country been granted by the crown, while in the occupation of the Indians. These grants purport to convey the soil as well as the right of dominion to the grantees. * * * Thus, all the nations of Europe, who have acquired territory on this continent, have asserted in themselves, and have recognized in others, the exclusive right of the discoverer to appropriate the lands occupied by the Indians. Have the American states rejected or adopted this principle?

"By the treaty which concluded the war of our revolution, Great Britain relinquished all claim, not only to the government, but to the `propriety and territorial rights of the United States,' whose boundaries were fixed in the second article. By this treaty, the powers of government, and the right to soil, which had previously been in Great Britain, passed definitely to these states. We had before taken possession of them, by declaring independence. * * * It has never been doubted, that either the United States, or the several states, had a clear title to all the lands within the boundary lines described in the treaty, subject only to the Indian right of occupancy, and that the exclusive power to extinguish that right, was vested in that government which might constitutionally exercise it. * * * The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold, and assert in themselves, the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest. * * * The British government, which was then our government, and whose rights have passed to the United States, asserted a title to all the lands occupied by Indians, within the chartered limits of the British colonies."

North Carolina and the lands in controversy were a part of the territory described in this opinion.

Again we find Chief Justice Marshall delivering the opinion of the court in the case of Worcester v. Georgia, 6 Pet. 515, 543, 8 L. Ed. 483, and declaring:

"The great maritime powers of Europe discovered and visited different parts of this continent, at nearly the same time. The object was too immense for any one of them to grasp the whole; and the claimants were too powerful to submit to the exclusive or unreasonable pretensions of any single potentate. To avoid bloody conflicts, which might terminate disastrously to all, it was necessary for the nations of Europe to establish some principle which all would acknowledge, and which should decide their respective rights as between themselves. This principle, suggested by the actual state of things, was, `that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.' * * * This principle, acknowledged by all Europeans, * * * gave to the nation making the discovery * * * sole right of acquiring the soil and of making settlements on it."

By common consent it may be admitted that most of the continent of North America at one time belonged to Great Britain by right of discovery. Certainly Great Britain owned the territory comprising the boundaries of the thirteen original states. The King of England established the Virginia colony, and at one time North Carolina was one of Virginia's colonies, and at that time the Indians were in pretty general occupancy and control of practically all of the land in North Carolina. So, whatever title Great Britain had to the lands in North America, including North Carolina, was transferred to the thirteen original states in the treaty of peace, executed at Paris on September 3, 1783 (8 Stat. 80), and ratified by Congress on January 14, 1784.

The principal article of this famous document declares:

"His Britannic Majesty acknowledges the said United States, viz. New Hampshire, Massachusetts-Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, to be free, sovereign and independent States; that he treats with them as such; and for himself, his heirs and successors, relinquishes all claims to the government, propriety and territorial rights of the same, and every part thereof."

The word "propriety" in this first article of the treaty means "exclusive right of property, property."

The Revolutionary War was fought and won by the individual states, and as confederated sovereigns. So, the King of England ceded to these individual states all of the lands within their respective boundaries.

In the Articles of Confederation of 1777 the states were careful to give to the Congress the power, only, to regulate "trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own...