Comm'rs of Franklin Co. v. Pennock , 18 Kan. 579 ( 1877 )

The opinion of the court was delivered by

Horton, C. J.:

The sole question presented by the record in this case is, whether the lands belonging to the mixed or half-bloods of the Sac-and-Fox Indians residing in Kansas, but who have tribal relations with the confederated tribes of the Sacs-and-Foxes of the Mississippi, are taxable. The authorities of Franklin county assert the right, and the district court of that county having denied it, and having granted a perpetual injunction against certain tax deeds being issued embracing lands of the defendant in error, the question is properly here for consideration. The lands described in the-petition were allotted to Mrs. Pénnock, and her vendors, under article 10 of the treaty with the Sac-and-Fox Indians of 1st October 1859, (15 U. S. Stat. at Large, 470.) By virtue of the amended 17th article of the Sac-and-Fox treaty of 18th February 1867, (15 U. S. Stat. at Large, 498,) the lands were conveyed to the allottees by the government by patents in fee simple. It is claimed on the part of the defendant in error, that the following provision of said article 10 of the treaty of 1859 exempts these lands from taxes, viz.: “The lands granted by this article shall remain inalienable, except to the United States, or members of the tribe.” This court settled this question in Krause v. Means, 12 Kas. 335. In that case, it was held that by virtue of said amended 17th article of the treaty of 18th February 1867, “the restraint upon the alienation, imposed by the old treaty of 1859, was abrogated.” In that case, Julia Goodell, a half-breed, and a member of the same Sac-and-Fox tribe, conveyed land allotted to her to one Mary A. Means. The opinion in that case fully covers the question in dispute. If the lands are not taxable, they cannot be conveyed except subject to the limitations of article 10 of the treaty of 1859. If such article is abrogated by the amended article 17 of the treaty of 1867, the lands are both taxable and subject to sale and conveyance to any person.

We do not now care to open the question anew. Rights of property have undoubtedly been acquired by various parties since the above decision was announced, which would be disturbed by an adverse ruling, and if any error has been committed by this court, the defendant in error can be fully protected in a case of this character on a review of our decision by the supreme court of the United States. We are of the opinion that “ when the rules laid down by the courts become the laws which sustain titles and contracts, they are, in general, to be sacredly adhered to.” Church v. Brown, 21 N. Y. 335. The learned counsel for the defendant in error participated in the argument in this court in the said case of Krause v. Means, supra, and then insisted here that “art. 10 ceased to operate in 1867, when the treaty of that year took effect,” and that “ever since the United States conveyed the property in fee simple to Julia Goodell, and a fortiori, since it belonged to Mrs. Means, it has been subject exclusively to the laws of Kansas. (See brief, 12 Kas. 336.) If the argument presented then by the counsel for the defendant in error in this cause was good law, and so this court assumed, it is equally applicable now. To him, under the circumstances, the writer of this might well reply, that sometimes “even-handed justice commends the ingredients of our poison’d chalice to our own lips.” If it be claimed however, that the expression in Clarke v. Libbey, 14 Kas. 438, that “the issuance of patents for lands in fee simple, under the terms of an Indian treaty, does not necessarily convey an implication of a full title,” sustains the present argument of the counsel for defendant in error, we answer, that not merely the provision for the patents to issue to the Sac-and-Fox half-breeds, by article 17 of the treaty of 1867, but the general object and purview of the entire treaty is in conflict with any idea that after such last treaty was proclaimed the lands allotted by article 10 of the treaty of 1859, and patented under article 17 of the new treaty, were to continue to be inalienable. The purpose of the latter treaty was not to change the character of the reserve, but to abolish it as a reserve. The object of the treaty was to remove the tribe from Kansas, and to furnish them homes in the Indian country. A clause is contained in said treaty of 1867 to the effect, “that no part of the funds arising from, or due the nation, under this or previous treaty stipulations shall be paid to any band, or parts of bands, who do not permanently reside on the reservation set apart to them by the government in the Indian Territory, as provided in this treaty, except those residing in the state of Iowa.” In obedience to the obligations of this treaty, the tribe, numbering about one thousand, removed in 1870 from their reservation in this state to their new reservation in the Indian Territory, where they have since lived, maintaining their tribal organization. Mrs. Pennock remained in Kansas, and is now with her husband, who is a white man, a resident of the state. There is no longer any tribal organization of these Indians in our state — there are no chiefs here — no councils, and no stated meetings of the tribe. All of this was anticipated in the treaty of 1867. In pursuance of this result, the government provided for the issuance of patents in fee simple to the allottees among the mixed, or half-blood Sac-and-Foxes, and by virtue of the said treaty of 1867, abrogated the restraint upou the alienation imposed by the old treaty. After the issuance of these patents, the lands therein conveyed were alienable, and taxable, in the full meaning these terms imply.

The judgment will be reversed, and an order will be directed to the court below to dissolve the injunction heretofore allowed, and to enter judgment in favor of plaintiffs in error for all costs.

All the Justices concurring.