Board of Com'rs v. United States , 94 F.2d 450 ( 1938 )

LEWIS, Circuit Judge.

Pansy B. Hawk, nee Lloyd, of one-eighth Indian blood and a member of the Cherokee tribe, 'received her allotment of tribal lands and selected therefrom thirty acres as her homestead pursuant to the Cherokee Allotment Act of July 1, 1902, 32 Stat. 716, which was ratified by the tribe as the act required on August 7, 1902, She received a separate deed from the Chief of the Cherokee nation to her homestead of date February 24, 1905.

On February 18, 1936, appellee at the request of the Secretary of the Interior instituted this action to recover $3,426.61, the amount of general taxes and special improvement assessments that had been levied on her homestead and which she had paid under protest to prevent sale thereof by appellant for the years 1910, 1911, 1923, 1924, 1926, 1927, and 1928, and 6% on said sum from dates of payments. Appellee recovered judgment as prayed from which this appeal was taken.

It was agreed by counsel at the trial that Pansy B. Hawk owned and held her homestead so allotted to her at the times and during the years for which it was assessed and taxed and that the gross sum stated is the total amount that she paid as taxes, penalties, redemption fees, and special benefits designated as sewer tax.

That Cherokee homesteads acquired under the Allotment Act of July 1, 1902, are non-taxable as long as they are held by the allottees seems to have been settled by the decisions in Choate v. Trapp, 224 U.S. 665, 32 S.Ct. 565, 567, 56 L.Ed. 941, and the two cases that immediately follow it. Those cases have to do with the allotment acts of the Choctaw and Chickasaw, and Creek tribes, but we think the exemptions there under consideration were equivalent in principle to the one here involved. The relations between the Five Civilized Tribes and the United States in the division of the tribal lands between the members of the tribes in severalty was contractual. The Cherokees were given the privilege of determining by vote of its members whether it would accept the proposals. They did accept. The constitution of the state of Oklahoma, as stated in the Choate Case, provided “that property exempt from taxation by virtue of treaties and Federal laws should so remain during the force and effect of such treaties or Federal laws.” It was therefore held that the acceptance of deeds containing exemption of the land from taxation under the allotment acts operated as full performance by the allottees of the contract and created a vested right in the Indian of the exemption which is protected by the Fifth Amendment. See, also, Carpenter v. Shaw, 280 U.S. 363, 50 S.Ct. 121, 74 L.Ed. 478, and Grotkop v. Stuckey, 140 Okl. 178, 282 P. 611. Section 13 of the Cherokee Agreement, 32 Stat. 716, 717, is in part this:

“Separate certificate shall issue for said homestead. During the time said homestead is held by the allottee the same shall be nontaxable.”

The principal contention of appellant is that the statutes of limitation of the state of Oklahoma are applicable in this case and bar recovery, not because of their vigor standing alone, but because Congress, they contend, made them applicable by the Act of April 12, 1926, 44 Stat. 239, which is entitled, “An Act To amend section 9 of the Act of May 27, 1908 (Thirty-Fifth Statutes at Large, page 312), and for putting in force, in reference to suits involving Indian titles, the statutes of limitations of the State of Oklahoma, * * * and for making judgments binding on all parties, and for other purposes.” It is section 2 of that act, 44 Stat. 240, on which appellant relies and it reads thus:

“The statutes of limitations of the State of Oklahoma are hereby made and declared to be applicable to and shall have full force and effect against all restricted Indians of the Five Civilized Tribes, and against the heirs or grantees of any such Indians, and against all rights and causes of action heretofore accrued or hereafter accruing to any such Indians or their heirs or grantees, to the same extent and effect and in the same manner as in the case of any other citizen of the State of Oklahoma, and may be pleaded in bar of any action brought by or on behalf of any such Indian, his or her heirs or grantees, either in his own behalf or by the Government of the United States, or by any other party for his or her benefit, to the same extent as though such action were brought by or on behalf of any other citizen of said State.”

It will be observed that section 9 of the Act of May 27, 1908, 35 Stat. 315, both before and after it was amended by the Act of April 12, 1926, dealt only with sale, descent and devise of lands that had been allotted; that section 2 of said Act of April 12, 1926, uses words appropriate only to land titles — heirs or grantees; and that the title of that act refers “to suits involving Indian titles.” Each of these references may be considered in determining the intent of Congress. Likewise section 3, the last section of said Act of 1926, 44 Stat. 240, presents and deals with this situation: “Any one or more of the parties to a suit in the United States courts in the State of Oklahoma or in the State courts of Oklahoma to which a restricted member of the Five Civilized Tribes in Oklahoma, or the restricted heirs or grantees of such Indian are parties, as plaintiff, defendant, or intervenor, and claiming or entitled to claim title to or an interest in lands allotted to a citizen of the Five Civilized Tribes or the proceeds, issues, rents, and profits derived from the same, may serve written notice of the pendency of such suit upon the Superintendent for the Five Civilized Tribes, and the United States may appear in said cause within twenty days thereafter,” and having been made a party may participate in the trial of said cause in the state court or have it removed to the federal court in said state on petition, where it shall be tried. The suit above described must be one claiming “title to or an interest in lands allotted to a citizen of the Five Civilized Tribes or the proceeds, issues, rents, and profits derived from the same.”

Also 'the legislative history of the Act of 1926 is strongly persuasive that Congress intended that the Oklahoma statute of limitations should be applied only when title to lands that had belonged to the Civilized Tribes was involved or claimed rights to benefits or profits therefrom. When the bill was in the House the report of the Committee on Indian Affairs to which it had been referred contained this: “The entire bill is designed to stabilize titles in eastern Oklahoma and it is expected that it will add value to these lands.” When it was in the Senate the Committee on Indian Affairs said the bill was, “for putting in force in reference to suits involving Indian titles, the statute of limitations of the State of Oklahoma”. These sources of inquiry open to us are convincing that the intention and purpose of the Act of 1926 was to make applicable only the statutes of limitation of the state of Oklahoma in suits where the issues involved title to allotted lands of the named tribes. United States v. Katz, 271 U.S. 354, 46 S.Ct. 513, 70 L.Ed. 986; Cramp & Sons Co. v. Curtis Turbine Co., 246 U.S. 28, 38 S.Ct. 271, 62 L.Ed. 560; United States v. Great Northern Railway Co., 287 U.S. 144, 53 S.Ct. 28, 77 L.Ed. 223; Knowlton v. Moore, 178 U.S. 41, 65, 20 S.Ct. 747, 44 L.Ed. 969; United States v. Palmer, 3 Wheat. 610, 631, 4 L.Ed. 471; Grier v. Kennan, 8 Cir., 64 F.2d 605. This is a personal action, in assumpsit. Nor does it involve the “proceeds, issues, rents or profits” derived from- allotted lands.

The complaint alleges that the United States of America brings this action in its own right in behalf of its Indian ward Pansy B. Hawk for the recovery of taxes wrongfully exacted from said Indian by Tulsa County upon lands located therein which were exempt from all taxation. The appellant by motion to dismiss and also by answer denied that Pansy B. Hawk is a ward of the plaintiff and contends that appellee has no right to institute and maintain the suit. In support of that contention appellant relies upon the fact that the Act of May 27, 1908, 35 Stat. 312, in its first section contains this: “All lands, including homesteads, of said allottees enrolled as * * * mixed-blood Indians having less than half Indian blood including minors shall be free from all restrictions.” It is argued that the language just quoted from the Act of May, 1908, emancipated Pansy B. Hawk from guardianship; that thereafter she was no longer a ward; and that the suit could not be instituted or maintained by appellee. That act dealt with their capacity to dispose of their allotments. Other statutes dealt with their capacity not based on the quantum of Indian blood to look after their affairs and empowered the Secretary of the Interior to issue certificates of competency to those who were in his judgment capable of caring for their own interests, authorizing those to whom certificates w.ere issued to exercise full dominion, control and disposition of their property. We are disposed to take the word “restrictions” in the Act of 1926 as applicable against those only who were without certificates. Presumptively they were without the requisite capacity and in that sense restricted. The guardianship of the United States over Indians has been exercised from an early day. The policy of the Indian allotment' acts has been with the view of gradually bringing them to a state of competency in order that they might be capable of attending to their own affairs. It seems obvious that Pansy B. Hawk was not capable of protecting her own interest against the unlawful, exactions for which the United States here sues. She wholly neglected to take the necessary course for that purpose. But whether that be the true view to take of this phase of the Act of 1926’Seems to us unnecessary for determination in this case. No act of Congress has been brought to our attention by counsel or discovered by us terminating the long continued guardianship either entirely or as to specific classes of Indians, and until that has been done we are disposed to recognize the right when it is asserted by the United States in the institution of suits for their protection. That seems to be the view taken by the Supreme Court in United States v. Nice, 241 U.S. 591, 36 S.Ct. 696, 60 L.Ed. 1192. See, also, Choteau v. Burnet, 283 U.S. 691, 51 S.Ct. 598, 75 L.Ed. 1353.

The judgment appealed from is affirmed.