Watkins v. Howard
| Decision Date | 10 July 1917 |
| Docket Number | 5853. |
| Citation | 166 P. 706,64 Okla. 166,1917 OK 350 |
| Parties | VATKINS v. HOWARD, COUNTY TREASURER. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Following Marcy v. Board of County Commissioners, 45 Okl. 1, 144 P 611, it is held, where the conveyance or deed of the interest of a full-blood Indian heir of the allottee of land allotted in the Choctaw Nation is invalid, unless approved by the Secretary of the Interior, or by the court having jurisdiction of the settlement of the estate of the deceased allottee, such interest in the land is not subject to taxation for any year prior to the execution and approval of the conveyance or deed by the heirs.
Brader v. James, 154 P. 560, and Moffett v Conley, 163 P. 118, followed, and held, that at the dates as of which certain allotted lands of the Choctaw Nation were assessed for taxation, then owned by full-blood Indian heirs of the allottee, the same could not be alienated without the approval of the Secretary of the Interior or of the court having jurisdiction of the settlement of the estate of the deceased allottees.
Error from District Court, Jefferson County.
Action by F. E. Watkins against Jim E. Howard, Treasurer of Jefferson County, Okl. There was a judgment for defendant and plaintiff brings error. Reversed and remanded.
W. Y. Dilley, of Waurika, for plaintiff in error.
This proceeding in error brings up for review a judgment sustaining demurrer to the petition and dismissing an action to enjoin collection of taxes for various years, assessed against several tracts of real estate, which it was alleged were not subject to taxation for such years. Six different causes of action, separately stated and numbered, were united in the petition. The demurrer was upon the ground that the petition did not state facts sufficient to constitute a cause of action, and was to the petition as a whole, and not to the several causes of action separately. If any one of the several causes of action stated sufficient facts, it was error to sustain the demurrer and dismiss the petition. Emmerson v. Botkin, 26 Okl. 218, 109 P. 531, 29 Am. St. Rep. 786, 138 Am. St. Rep. 953; Owen v. City of Tulsa, 27 Okl. 264, 111 P. 320. All of the land involved had been allotted either to enrolled citizens of the Choctaw Nation, who subsequently died, or in the right of enrolled Choctaw citizens who died before the allotment was selected, and was in each instance, at the time the taxes were assessed, owned by the heirs of such allottees or citizens, who, it was alleged, were duly enrolled as Indians of the full blood. Each cause of action stated sufficient facts to entitle the plaintiff to the relief asked thereon, if the land was not subject to taxation for the year the same was assessed and taxes levied.
This court has previously decided that, where the conveyance or deed of the interest of a full-blood Indian heir of the allottee in land allotted in the Seminole Nation is invalid, unless approved by the Secretary of the Interior under the provisions of section 22 of the act of April 26, 1906 (34 Stat. 137, c. 1876), or by the court having jurisdiction of the settlement of the estate of the deceased allottee under section 9 of the act of May 27, 1908 (35 Stat. 312, c. 199), such interest in the land is not subject to taxation prior to the execution and approval of the conveyance or deed by the heirs. Marcy v. Board of County Commissioners of Seminole County, 45 Okl. 1, 144 P. 611. The same is true of land allotted in the Choctaw and Chickasaw Nations. Therefore it is only necessary to consider whether, on the date on which the assessment complained of was made, the Indian heir could, subsequent to April 26, 1906, and prior to May 27, 1908, execute a valid conveyance of his interest without the approval of the Secretary of the Interior, and subsequent to the last-named date by the court having jurisdiction of the settlement of the estate of the deceased allottee.
The land involved in the first cause of action was allotted to a Choctaw citizen, and was the portion of the allotment other than that designated as the homestead. She died in 1905 after the allotment was selected, and on March 1, 1908, the same was owned by her heirs, who were full-blood Indians. The taxes complained of were levied for the fiscal year ending June 30, 1909. The alienation of this land was restricted under the provisions of section 16 of the Choctaw-Chickasaw Treaty (Act July 1, 1902, c. 1362, 32 Stat. 641), which were not removed by the death of the allottee, but ran with the land and restricted alienation by the heirs for the time specified. Gannon v. Johnston, 40 Okl. 695, 140 P. 430, Ann. Cas. 1915D, 522; Id., 243 U.S. 108, 37 S.Ct. 330, 61 L.Ed. 622. Under section 22 of the act of April 26, 1906 (34 Stat. 137), authority is given the heirs to sell and...
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