Wynn v. Fugate
| Decision Date | 02 June 1931 |
| Docket Number | Case Number: 21138 |
| Citation | 149 Okla. 210,299 P. 890,1931 OK 317 |
| Parties | WYNN, County Treas., v. FUGATE. |
| Court | Oklahoma Supreme Court |
¶0 1. Taxation--Right to Tax Indian Land After Removal of Restrictions Except Where Treaty Exemption.
Under the provisions of section 4 of the Act of Congress May 27, 1908 (35 Stat. 312), all land from which restrictions have been or shall be removed shall be subject to taxation as though it were the property of other persons than allottees of the Five Civilized Tribes. The exception thereto is land exempt from taxation by the provisions of some treaty between the Indian Tribe and the United States government, which treaty exemption is protected by section 6, art. 10, of the Constitution of Oklahoma.
2. Same.
General laws relating to the taxation of all property within the state, for the purpose of state or municipal government, under the provisions of the Enabling Act and the Constitution were suspended from operation upon Indian land so long as it was exempt from taxation by the laws of Congress or any treaty between the Indian Tribe and the United States government. When Oklahoma became a state, it yielded the right to the federal government to legislate as to this class of property and to absolve it from taxation or to remove the tax exemption and thereby bring it within the operation of the general taxing system of the state. When Congress acted and the tax exemption was removed, the state's power to tax by operation of law immediately attached. The only exception thereto is the right of exemption from taxation by reason of some treaty provision between the United States government and the Indian Tribe.
3. Same--Surplus Unrestricted Allotment of Cherokee Citizen of Half-Blood Held Subject to Taxation.
The surplus unrestricted allotment of a duly enrolled Cherokee citizen of half-blood is subject to taxation by and under the treaties between the Cherokee Tribe of Indians and the United States government, the laws of the United States, and the laws of Oklahoma.
4. Same--Allotment Held Subject to Taxation After Death of Allottee Though Inherited by Full-Blood Indian Heir.
The surplus unrestricted allotment of a duly enrolled Cherokee citizen of half-blood, subject to taxation under the treaties between the Cherokee Tribe of Indians and the United States government, the laws of the United States, and the state of Oklahoma, during the lifetime of the allottee remains subject to taxation after the death of the allottee and the inheritance of the land by a full-blood Indian heir, notwithstanding the proviso to section 9 of the Act of Congress of May 27, 1908 (35 Stat. 312), that no conveyance of any interest of any full-blood Indian heir in the land affected by section 9, Id., shall be valid unless approved by the court having jurisdiction of the settlement of the estate of the deceased allottee.
Appeal from District Court, Washington County; J. R. Charlton, Judge.
Action by Lillie Fugate against Richard T. Wynn, Treasurer of Washington County. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
E. E. Heyl, Co. Atty., and B. B. Foster, Asst. Co. Atty., for plaintiff in error.
Fred B. Woodard, for defendant in error.
¶1 Lillie Fugate, defendant in error, hereinafter referred to as plaintiff, brought an action in the district court of Washington county to restrain the plaintiff in error, hereinafter referred to as defendant, from selling certain land at a tax resale, and recovered judgment as prayed for.
¶2 The record shows that the land was a part of the surplus allotment of George Fugate, who was enrolled as a half-blood on the Cherokee rolls, and that he died seized and possessed of the same, leaving as his sole and only heirs at law his mother, the plaintiff, a full-blood, and his father, of no Indian blood; that the land was partitioned in an action in the district court of Washington county and the portion thereof involved in this suit was set aside by that court to this plaintiff; that the land was thereafter assessed, placed upon the tax rolls, and sold to the county, and that the county treasurer is about to sell the same at a resale.
¶3 The defense was that the land was unrestricted land after July 27, 1908, under the provisions of the Act of Congress of May 27, 1908 (35 Stat. 312), and as such subject to taxation, or, if that was not true, that one-half thereof having been acquired by the plaintiff from her non-Indian husband by partition was subject to taxation. Under the view we take of the law applicable, it is not necessary for us to consider the effect of the partition proceeding and the title acquired thereby.
¶4 The question to be determined is whether or not land allotted as a surplus allotment to a half-blood Cherokee Indian, which passed upon his death to a full-blood Indian heir while the Act of Congress of May 27, 1908, was in effect, may be sold for taxes levied after title passed to the full-blood Indian heir and while the title thereto is retained by the full-blood Indian heir.
¶5 If a full-blood Cherokee Indian heir had inherited the surplus allotment of a full-blood Cherokee Indian allottee while the Act of May 27, 1908, was in effect, the answer to the question would have been less difficult. Here the allottee was not a full-blood Cherokee Indian. He was only a half-blood Cherokee Indian.
¶6 We are not here concerned with the question of whether or not the land involved in this action may be conveyed without the approval of the court having jurisdiction of the settlement of the estate of the deceased allottee or the question of whether a resale tax deed is a conveyance requiring such approval. Those issues are not here presented and they are not here decided.
¶7 Though the land in question be subject to restrictions upon alienation, as here contended but not here decided, and though the full-blood Cherokee Indian heir be subject to restrictions upon the sale of the land, a distinction recognized but not here decided, the land may be subject to taxation. The distinction between restrictions on land or the alienation thereof and restrictions on taxation is clear, notwithstanding the statement of this court in Marcy v. Board of County Commissioners, 45 Okla. 1, 144 P. 611, that "The power to tax inherited Indian land is coincident with and dependent upon the removal of restrictions upon alienation," and the decisions of this court in McGeisey v. Board of Commissioners, 45 Okla. 10, 144 P. 614, which followed the Marcy Case without discussion of the law, Watkins v. Howard, 64 Okla. 166, 166 P. 706, and Combs v. Johnson, 92 Okla. 189, 218 P. 1098. See United States v. Brown, 8 F.2d 564.
¶8 In Marcy v. Board of Commissioners, supra, the action was to annul and cancel certain tax sale certificates and to restrain the collection of taxes assessed for the years 1910 and 1911 against land which consisted of the surplus allotment of a full-blood Seminole Indian which had been inherited from him by his full-blood Seminole Indian heirs. It will be noted that the restrictions upon that land had not been removed under the provisions of section 1 of the Act of May 27, 1908, or in any other manner prior to the death of the allottee, and that the restrictions thereon had been removed by the death of the allottee under the provisions of section 9 of the act, subject to the proviso contained in section 9 thereof. The finding of this court was a general one, but it was based upon one proposition, stated in the opinion as follows:
"The sole question determinative of this case is: Are lands allotted to a full-blood member of the Seminole Tribe of Indians, exclusive of his homestead, inherited at his death by his full-blood Indian heirs exempt from taxation while owned and held by such heirs?"
¶9 The facts there presented differ from the facts presented here in three important particulars. There the allottee was a Seminole Indian, while here the allottee was a Cherokee Indian. Different treaties and federal acts governed those tribes of Indians. There the allottee was a full-blood Indian, while here the allottee was a half-blood Indian. A different rule applies to half-blood Indians from that applying to full-blood Indians. There the restrictions upon the alienation of the land had not been removed at the time of the death of the allottee, while here the restrictions upon the alienation of the land had expired prior to the death of the allottee. There, there was no question as to whether or not the proviso to section 9 of the Act of May 27, 1908, affected land the restrictions upon the alienation of which had been removed prior to the death of the allottee, while here that question is presented. The opinion in the Marcy Case is in no wise decisive of the issue presented here, notwithstanding the general language used therein. It failed to consider section 1 and section 4 of the Act of May 27, 1908, section 1 of which provides:
--and section 4 of which provides:
"That all land from which restrictions have been or shall be removed shall be subject to taxation and all other civil burdens as though it were the property of other persons than allottees of the Five Civilized Tribes * * *"
--which sections are controlling as to the issues presented here unless there is some treaty provision between the Indian...
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