Combs v. Johnson , 92 Okla. 189 ( 1923 )

Plaintiff in error takes up the proposiion that the court erred in sustaining defendant's motion for judgment on the pleading, and insists that for the purposes of said motion all the material allegations of plaintiff's pleading must be taken as true, and only those allegations of defendant's cross-petition may be taken as true as are by the answer of plaintiff to such cross-petition specifically admitted. In other words his proposition is, that where the answer denies material allegations in the complaint and an issue of fact is raised, it is error to grant a motion for judgment on the pleading, citing cases in support of this proposition. But after raising this question, counsel for plaintiff in error make the following statement in their brief:

"The sole question presented for determination is: Was the land in controversy owned by a full-blood Creek Indian allottee, exempt from taxation for the year 1909?"

Counsel for defendant in error, on page four of their brief, quote the above proposition and say they concur in the proposition as stated by counsel for plaintiff in error. So that it is clear from the statement of the parties that it is their desire that the only question that this court is to consider and pass on is whether, under section 9 and other sections contained in the Act of May 27, 1908, land inherited by full-blood Indian heirs from a full-blood Creek Indian allottee is taxable in the hands of the heirs before they convey the same, with the approval of the county court of the proper county. So that an answer to this question is decisive of the question raised by counsel in their brief. It is contended by plaintiff in error that it was the intention of Congress, that only so long as the title to allotted land remained in the original allottee was such land to be exempt from taxation, and quotes section 22 of the Act of April 26, 1906, which reads as follows:

"That the adult heirs of any deceased Indian of either of the Five Civilized Tribes whose selection has been made or to whom a deed or patent has been issued for his or her share of the lands of the tribe * * * may sell and convey the lands inherited from such decedent."

He also quotes part of section 9 of the act of May 27, 1908, which is as follows:

"That the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allottee's land."

In support of their contention, they cite the case of Jones, Gdn., et al. v. Howard et al., 88 Okla. 242, 212 P. 986, quoting the third subdivision of the syllabus of said case, which reads as follows:

"Section 9 of the act of May 27, 1908, upon compliance with its terms, obviously removed all remaining restrictions upon the right to alienate inherited lands by a full blood Seminole Indian, regardless of the issuance and delivery of patent."

We have read this case and we got very little light on the subject from it, as the question there involved was the right to convey inherited land by full-blood Indians before the issuance and delivery of the patent. Counsel also cite the following cases in support of this contention that the land was taxable in the year 1909; Chupco v. Chapman, 76 Okla. 120,170 P. 259; Seiffert v. Jones, 77 Okla. 204, 186 P. 472. These cases tend to support the theory of plaintiff in error, with a great many other cases from this court, but in none of these cases does the court decide the exact question of when the inherited lands of a full-blood allottee, and whose heirs are full-blood Indians, become taxable. Judge Rainey in the case of Chupco v. Chapman, supra, delivered quite an exhaustive opinion and reviews the cases from this court and reaches the conclusion that by the terms of section 9 of the act of May 27, 1908, death of an allottee operated to remove all restrictions upon the alienation of said allottee's land. If the heirs or any of them are Indians of less than one-half blood, they are authorized to sell and convey the lands, so inherited by them, without any supervision. But the heirs enrolled as full-blood are authorized to sell and convey their interest in such inherited land only upon the approval of the conveyance by the court having jurisdiction of the settlement of the estate of the deceased allottee. Since said restrictions are personal to the full-blood Indian heirs and do not run with the land, such inherited land in the hands of full-blood Indians is not restricted land within the meaning of the term as found in proviso of section 6 of the Act of May 27, 1908.

This I think is a fair statement of the contention of counsel for plaintiff in error.

The land in question in this case was the allotment of Willie Thomas, who died in infancy, without issue. His father and mother, Polly Wesley and Waitie Thomas, were his sole heirs at law and were full-blood Indians. They did not convey the land in question with the approval of either the Secretary of the Interior of the county court, until the 15th day of June, 1912, when they conveyed the land to the defendant, B.B. Jones, and said conveyance was approved by the county court of McIntosh county, that being the court having jurisdiction over the administrator of Willie Thomas' estate. Defendant in error claims title under that deed, and plaintiff claims title under a tax deed issued to him by the county treasurer of Creek county for the taxes of the year, 1909. The validity of these deeds is not questioned, so far as the regularity of the proceedings under which they were obtained is concerned. But the contention of the plaintiff in error is that the lands were taxable for the year, 1909, as, according to their contention, the land was unrestricted at that time. The contention of defendant in error is that the lands were restricted in 1909 and continued to be restricted lands in the hands of full-blood heirs of a full-blood allottee until the 15th day of June, 1912, when they were conveyed with the approval of the county court of McIntosh county.

As heretofore stated, the cases cited from this court by plaintiff in error by analogy would seem to support their contention, but this court has decided the question squarely against the contention of plaintiff in error in Marcy v. Board of Commissioners of Seminole County et al., 45 Okla. 1,144 P. 611. In this case the court says:

"The power to tax inherited Indian land is coincident with and dependent upon the removal of restrictions upon alienation; and, prior to the approval of conveyance of full-blood Indian heirs under the provision of said act by the proper court, the power to tax said lands does not exist."

In the body of the opinion, the court says, from the language of the act:

"That all land from which restrictions have been or shall be removed shall be subject to taxation, it is clear that the power of the state to tax the lands in question is coincident with and dependent upon the unrestricted right of the owner to sell the same."

The power to tax, and right to convey, are granted by the same act, become effective upon the same condition and at one and the same time; the former cannot exist without the latter.

It follows that restrictions upon the alienation of the lands involved are removed only upon compliance with the terms of the proviso requiring the approval of conveyances of full-blood heirs by the county court having jurisdiction of the settlement of the allottee's estate. This is a necessary condition precedent to the power of the state to subject such lands to taxation, and not having been complied with, all proceedings for the purpose of enforcing collection of taxes on said lands are void:

It will be seen that this court has decided the question squarely against the contention of the plaintiff in error. The United States court for the Eastern district of Oklahoma in the case of United States v. Shock, 187 Fed. 870, holds that the lands are not taxable until after they have been conveyed by the heirs, with approval of the proper county court.

Another case against the contention of plaintiff in error is a case from the Supreme Court of the United States, Parker v. Richard, 250 U.S. 235. Justice Van Devanter delivered the opinion of the court and holds that the lands are not taxable in the hands of full-blood Indian heirs, nor are they taxable until after they have conveyed the same with the approval of the county court. In the body of the opinion, Justice Van Devanter says:

"In cases presenting the question whether lands inherited from allottees by full-blood Indian heirs are freed from restrictions by section 9, and thus brought within another provision in the same act declaring that land 'from which restrictions have been or shall be removed' shall be taxable and subject to other civil burdens, the Supreme Court of the state and the federal court of that district have both held that under the proviso such land remains restricted in the hands of the full-blood heirs, and so is not within the taxing provision. Marcy v. Board of Commissioners, supra; United States v. Shock, 187 Fed. Rep. 870."

Entertaining a like view of the proviso, we conclude that the land covered by the lease is still restricted land.

It will be seen that the Supreme Court of the United States has held squarely that inherited land in the hands of a full-blood Indian heir is not taxable until after it has been sold by said heirs, with the approval of the county court, etc.

It is seen from the above quotation that the cage of Marcy v. Board of County Commissioners, supra, and United States v. Shock, 187 Fed. Rep. 870, are cited, with approval and it seems to us that this being a federal statute, we are bound by the construction placed on that statute by the Supreme Court of the United States.

We, therefore, hold that the allotment of a full-blood allottee in the hands of his full-blood heirs is not taxable until after said heirs have conveyed the same in accordance with the act of May 27, 1908, which requires that the deed of said full-blood heirs must be approved by the county court having jurisdiction of the estate of the deceased allottee before they become taxable.

Entertaining these views, we hold that the court did not err in sustaining the motion for judgment on the pleadings, and the judgment of the trial court is therefore affirmed.

By the Court: It is so ordered.