United States v. Thurston County, Neb.

• Decision Date: 21 March 1906
• Docket Number: 2,339.
• Citation: United States v. Thurston County, Neb., 143 F. 287 (8th Cir. 1906)
• Parties: UNITED STATES v. THURSTON COUNTY, NEB., et al.
• Court: U.S. Court of Appeals — Eighth Circuit

143 F. 287

UNITED STATES v. THURSTON COUNTY, NEB., et al.

No. 2,339.

United States Court of Appeals, Eighth Circuit.

March 21, 1906

A. W Lane (Irving F. Baxter, on the brief), for appellant.

Thomas L. Sloan(W. S. Summers and W. E. Whitcomb, on the brief) for appellees.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

SANBORN Circuit Judge.

This is an appeal from a decree of dismissal upon a demurrer to a bill exhibited by the United States to prevent the county of Thurston in the state of Nebraska from collecting taxes from certain Indians of the Omaha and Winnebago tribes who reside in that county on account of the proceeds of the sales of their inherited lands which have been deposited in a bank by order of the Secretary of the Interior.These Indians are heirs of Indian allottees, whose lands were held in trust by the United States either under ActAug. 7, 1882, 22 Stat 342, c. 434, Sec. 6, or under ActFeb. 8, 1887, 24 Stat. 389, c. 119, Sec. 5, which provide that the United States will hold each of their respective allotments 'for the period of twenty-five years in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or in case of his decease, of his heirs. ' The allottees died, and their heirs were permitted by the Secretary of Interior to sell the allotments they inherited under ActMay 27, 1902, 32 Stat. 245, c. 888, Sec. 7, on condition that the proceeds of the sales should be deposited to their respective individual credits in a bank selected by the Commissioner of Indian Affairs, subject to their respective checks for not exceeding $10 in any one month, when approved by the Indian agent or officer in charge, and to checks for sums in excess of $10 per month upon the approval of the agent when specifically authorized by the Commissioner of Indian Affairs.The proceeds of these sales on deposit in the bank aggregate more than $36,000.In no instance have the 25 years during which the United States undertook to hold the allotments in trust expired.The officers of the county of Thurston have assessed these deposits for taxation and will levy taxes thereon and collect the same of the Indians who are equitably entitled thereto unless prohibited by order of the court.The Indians to whom these proceeds belong in equity are members of the Omaha and Winnebago tribes, respectively, and these tribes are still under the charge of Indian agents appointed by the United States, which distributes annuities of merchandise, field seeds, farming machinery, and at times stores for subsistence and annuities in money to them, and maintains schools and employs a physician, farmers, teachers, and interpreters for their benefit.The complainant discloses the foregoing facts by its bill, alleges that it brings this suit as trustee for each of these individual heirs and as trustee of the funds derived from the sales of their inherited lands, that it has permitted these sales and caused the deposits of money derived therefrom in the bank, and is controlling the disposition thereof in execution of its trust for the use and benefit of these heirs, and it prays that the county of Thurston and its officers be enjoined from levying any taxes upon these deposits and from collecting any taxes from these Indians on account of them.

In the consideration of the questions which this bill presents the assumption will be indulged that the Indians for whose benefit the proceeds of these lands are held are citizens of the United States and of the state of Nebraska.Their civil and political status, however, does not condition the power, authority, or duty of the United States to exert its powers of government to control their property, to protect them in their rights, to faithfully discharge its legal and moral obligations to them, and to execute every trust with which it is charged for their benefit.Matter of Heff,197 U.S. 488, 509, 25 Sup.Ct. 506, 49 L.Ed. 848;Buster v. Wright,68 C.C.A. 505, 135 F. 947;Wallace v. Adams (C.C.A.)143 F. 716, decided at this term.They are still members of their tribes and of an inferior and dependent race, of which the Supreme Court has said that '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 has always been recognized by the Executive and by Congress, and by this court, whenever the question has arisen. 'U.S. v. Kagama,118 U.S. 375, 384, 6 Sup.Ct. 1109, 30 L.Ed. 228.The experience of more than a century has demonstrated the fact that the unrestrained greed, rapacity, cunning, and perfidy of members of the superior race in their dealings with the Indians unavoidably drive them to poverty, despair, and war.To protect them from want and despair, and the superior race from the inevitable attacks which these evils produce, to lead them to abandon their nomadic habits and to learn the arts of civilized life, the government of the United States has long exercised the power granted to it by the Constitution(article 1, Sec. 8, subd. 3) to reserve and hold in trust for them large tracts of land and large sums of money derived from the release of their rights of occupancy of the lands of the continent, to manage and control their property, to furnish them with agricultural implements, houses, barns, and other permanent improvements upon their lands, domestic animals, means of subsistence, and small amounts of money, and to provide them with physicians, farmers, schools and teachers.The Indian reservations, the funds derived from the release of the Indian right of occupancy, the lands allotted to individual Indians, but still held in trust by the nation for their benefit, the improvements upon these lands, the agricultural implements, the domestic animals and other property of like character furnished to them by the nation to enable and induce them to cultivate the soil and to establish and maintain permanent homes and families, are the means by which the nation pursues its wise policy of protection and instruction and exercises its lawful powers of government.

The power to tax is the power to destroy.The Constitution, the laws of the United States made in pursuance of it, and the government of the United States, in the execution of these laws, are supreme.They are superior to, and control, the Constitutions, the laws, and the governments of the states.The power of a state to tax the forts, the arsenals, the ships, the buildings, the lands, the funds, or any other means lawfully used by the nation to exert its legal powers is inconsistent with its supremacy and subversive of the national government.Hence no such power exists, or can exist, in any state.Every instrumentality lawfully employed by the United States to...