Under the Act of April 26, 1906, § 19, C. 1876, 34 Stat. 137,
and the Act of May 27, 1908, 4, c. 199, 35 Stat. 312, providing
that allotments in the Five Civilized Tribes from which
restrictions on alienation have been removed shall be subject to
taxation, land allotted to a Creek Freedwoman as a homestead under
the Act of June 30, 1902, c. 1323, 32 Stat. 500, lost its tax
exemption when the restrictions were removed by the Secretary of
the Interior upon the petition of the allottee under the townsite
provision of the Act of March 3, 1903, c. 994, 32 Stat. 996.
Choate v. Trapp, 224 U. S. 665,
distinguished.
45 Okl. 51 affirmed.
The case is stated in the opinion.
MR. JUSTICE McKENNA delivered the opinion of the Court.
Error to review a judgment of the Supreme Court of Oklahoma
sustaining the taxation of lands which were
Page 245 U. S. 193
allotted to a Creek freedwoman under § 16 of the Allotment Act.
32 Stat. 500, c. 1323.
The suit was instituted by plaintiffs in error in the District
Court of Okmulgee County to enjoin defendant in error, as treasurer
of the county, from selling the lands and placing a penalty thereon
or taking any steps towards collecting the taxes.
Plaintiffs in error are the owners of certain lots in the City
of Okmulgee, Oklahoma, deriving title to the same through mesne
conveyance from Sarah Smith, a freedwoman and citizen of the Creek
Nation, to whom the lands had been patented as a homestead.
A certain part of the lands was conveyed by Sarah Smith to one
Nathan Boyd and was by him surveyed, platted, and laid out in
blocks, lots, and streets as the Capitol Heights addition to the
City of Okmulgee, and it is now a part of that city.
The remaining portion of the homestead land Sarah Smith also
caused to be surveyed, laid out, and platted in lots, blocks, and
streets as the Capitol Heights Second Addition to the City of
Okmulgee.
The county board of commissioners placed the lots upon the tax
duplicates of the county and refused to remove them therefrom upon
petition of plaintiffs in error, who thereupon commenced this suit.
Decree was entered for plaintiffs in error, which was reversed by
the supreme court of the state.
The land allotted to Sarah Smith and laid out in lots as
described was allotted to her by deed executed April 23, 1904,
under the acts of Congress of March 1, 1901, and June 30, 1902. 31
Stat. 861; 32 Stat. 500.
By the former act, it was provided that the land should "be
nontaxable and inalienable and free from any incumbrance whatever
for twenty-one years." By the latter act, it was provided, in
amendment of the other act, that the land should
"be and remain nontaxable, inalienable,
Page 245 U. S. 194
and free from any incumbrance whatever for twenty-one years from
the date of the deed therefor."
Both acts provided for the laying out of townsites under certain
circumstances, and by the Indian Appropriation Act of March 3,
1903, 32 Stat. 996, it was enacted
"that nothing herein contained shall prevent the survey and
platting at their own expense of townsites by private parties where
stations are located along the lines of railroads, nor the
unrestricted alienation of lands for such purposes when recommended
by the Commission to the Five Civilized Tribes and approved by the
Secretary of the Interior."
Sarah Smith availed herself of these provisions -- that is, she
petitioned the Commission to the Five Civilized Tribes for the
removal of the restrictions against alienation for the purpose of
permitting her to sell part of the land for townsite purposes. The
Commission, after investigation, made a report to the Secretary of
the Interior, recommending the removal of the restrictions. The
Indian Office concurred in the recommendation and granted the
petition and authorized her to sell the land. Thereupon (February
28, 1907) she conveyed 1.69 acres of the land by warranty deed to
one Nathan Boyd, as has been said, who platted the land deeded to
him in town lots, and Sarah Smith, after July 26, 1908, so platted
the remainder of the land, and plaintiffs in error derive title
from her and him.
The contentions of the parties are quite accurately opposed, and
are in short compass. Plaintiffs in error contend that, when the
land was allotted to Sarah Smith, nontaxability was given it by a
valid act of Congress and accompanied the land to her grantees, and
this in consideration of the surrender by her of the rights she had
in common with other members of the Creek Tribe to the tribal
lands. The opposing contention is that she devested the land of
nontaxability by petitioning for and accepting
Page 245 U. S. 195
a right to alienate it. A determination between the contentions
depends upon certain acts of Congress in addition to those we have
mentioned, and their consideration and construction therefore
become necessary.
The deed allotting the land to Sarah Smith, as we have seen,
provided, in accordance with the act of Congress under which it was
executed, that it should "be nontaxable and inalienable . . . for
twenty-one years." It will be observed that the right
(nontaxability) and the restriction (inalienability) were
concomitants, and necessarily they concerned alone the Indian,
benefited her to the extent of the right, protected her by the
extent of the restriction.
Accommodation to new conditions became necessary, and Congress,
by an act passed March 3, 1903, hereinabove quoted, provided for
the survey and platting of townsites out of allotted lands, when
recommended by the Commission to the Five Civilized Tribes and
approved by the Secretary of the Interior, and permitted the
"unrestricted alienation of lands for such purposes." A consequence
of the exercise of the privilege so given was imposed by certain
acts of Congress -- (1) That of April 26, 1906, § 19 of which is as
follows:
"That all lands upon which restrictions are removed shall be
subject to taxation, and the other lands shall be exempt from
taxation as long as the title remains in the original
allottee."
(2) That of May 27, 1908, § 4 of which reads as follows:
"That all lands 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."
It was after the passage of the act of April 26, 1906, that
Sarah Smith petitioned for the removal of the restrictions upon her
homestead, that is, its alienation for townsite purposes, and
conveyed to Boyd, and it was
Page 245 U. S. 196
after the passage of the act of May 27, 1908, that she platted
the land as stated. She and her grantees must therefore be deemed
to have accepted the consequences of her acts, to-wit, that the
land thereafter should be subject to taxation. And this is not
taking from her or them a vested right; it is simply enforcing
against her and them the results of a bargain, and, it may be
presumed, a beneficial bargain.
The contention of plaintiffs in error overlooks the fact that
the Commission to the Five Civilized Tribes and the Secretary of
the Interior are instruments of the government, delegated, it is
true, to extend a privilege, but bound, in extending it, by the
laws of the United States; that is, that they, in granting it, and
Sarah Smith, in accepting it, did so under the conditions imposed
by those laws, and
Choate v. Trapp, 224 U.
S. 665, is not opposed.
In that case, it was decided that an Indian of one of the Five
Civilized Tribes had an equitable interest in tribal lands which,
when given up, constituted a consideration for his allotment and
its exemption from taxation, and a law of the State of Oklahoma
taxing the allotment while in possession of the Indians was
declared invalid.
The acts of Congress, confirming previous agreements, provided
that the lands allotted should be nontaxable while the title
remained in the original allottee, and provided for alienation
within certain periods. The state argued, nevertheless, that there
was in fact no tax exemption, but that the provision for it was but
an additional prohibition against a forced sale,
* and that, when
restrictions against alienation were removed by the act of Congress
of 1908 (35 Stat. 312) the provision for tax exemption went as a
necessary part thereof. The contention was rejected, and rightly
so, and, as was aptly said by Mr.
Page 245 U. S. 197
Justice Lamar, speaking for the Court: "The exemption and
nonalienability were two separate . . . subjects. One conferred a
right, and the other imposed a limitation." Under the
circumstances, it was a complete answer to the attempt which was
made to make the right depend upon the limitation. And that, too,
without the removal of the limitation being availed of by the
Indian. As we have seen, to have availed himself of it would have
relinquished the right, for, by the express provision of the
statute, it only existed while the title remained in him.
The elements are different in the case at bar. Sarah Smith
invoked a removal of the limitation, the restriction upon
alienation, and could only receive the benefit of the law by
accepting the consequences of the law. It would indeed have been
anomalous to give her power to erect a town and convey its lots
free from taxation.
New Jersey v.
Wilson, 7 Cranch 164, is adduced by plaintiffs in
error to sustain their contention. That case passed upon a grant of
the State of New Jersey to certain Indians "with the privilege of
exemption from taxation." It was decided that the privilege, though
for the benefit of the Indians, was annexed by the terms which
created it to the land itself, not to their persons. And this was
an advantage to the Indians, it was said, "because, in the event of
sale, on which alone the question could become material, the value
would be enhanced by it." But it was further said it was not
doubted that the state might have insisted on a surrender of the
privilege as the sole condition on which a sale of the property
should be allowed. Such condition is imposed by the acts of
Congress which we have mentioned, when voluntarily invoked by an
allottee. And there is no hardship in this. The right or privilege
of exemption from taxation cannot be taken from an allottee's land
while he retains the title. Its surrender may not be forced from
him, but he may yield it in bargain for another right or privilege,
and any
Page 245 U. S. 198
improvident estimate of the right to be given up or to be
received is guarded against by the requirement of the approval by
the Commission to the Five Civilized Tribes and the Secretary of
the Interior. And it can easily be seen that, if exemption from
taxation gave value to the land, the power to constitute towns was
of greater value. The record shows the value of the lots to
plaintiffs in error in the erected town, ranging from $25 to
$1,700, a number being valued at $100, others at $200, $300, $400,
and $1,500. We may observe that Sarah Smith was authorized to sell
for not less than $125 an acre.
Judgment affirmed.
* Section 16 of the Allotment Act (32 Stat. 500) contains a
prohibition of any incumbrance or sale of allotted lands in
satisfaction of any debt or obligation of the allottee.