Through the Act of May 27, 1908, c.199, 35 Stat. 312,
restrictions on alienation were removed from a Creek Indian
allotment which, under the Creek Supplemental Agreement of June 30,
1902, c. 1323, § 16, 32 Stat. 500, and the Oklahoma Enabling Act
and Constitution, was exempt from taxation. The Act of 1908
provides "that all land from which restrictions have been or shall
be removed shall be subject to taxation," etc. Upon conveyance by
the allottee, held
that the tract was subject to state
taxation in the hands of the grantees, for, by taking their title
under the Act of 1908, they took subject to its conditions and
policy. P. 248 U. S.
The Act of May 27, 1908, supra,
granting the right of
alienation, invades no right of the Indian in making the exercise
of that right a surrender of the exemption from taxation. P.
248 U. S.
as to how far a grantee of an Indian may avail
himself of the Indian's right to assert the unconstitutionality of
an act of Congress. P. 248 U. S. 405
53 Okla. ___ affirmed.
The case is stated in the opinion.
Page 248 U. S. 400
MR. JUSTICE McKENNA delivered the opinion of the Court.
The question in the case is whether land allotted to an Indian
of the Creek Tribe exempt from taxation in the hands of the Indian
is exempt in the hands of a purchaser from the Indian.
Considering that the land was so exempt -- in other words, that
the exemption went with the land in subsequent hands -- the suit
was commenced by plaintiffs in error, here called plaintiffs, to
restrain the collection of taxes upon part of the land which had
become lots in the Town of Muskogee. There was a demurrer to the
petition by defendant in error, here called defendant, which by
stipulation of counsel was submitted solely on the question of
exemption, other questions being reserved.
The stipulation recited that plaintiffs sought an injunction
against the taxes assessed or hereafter assessed against the lots
for the reason that they had been a part of the homestead of Eliza
J. Murphy, a Creek Indian allottee and a citizen and member of the
Creek Tribe or Nation, and for that reason the lots were exempt
from taxation for the period of 21 years from the date of the deed
The district court overruled the demurrer and enjoined the
collection of the taxes. The judgment was reversed by the Supreme
Court, and the plaintiffs then
Page 248 U. S. 401
dismissed their petition as to all other grounds of relief than
that the taxes "were illegal and void because prohibited by the
contract, Constitution, laws and treaties of the United
A petition for rehearing was denied, and a judgment entered
sustaining the demurrer and dismissing the petition.
The elements of decision are certain acts of Congress, the deed
to Eliza J. Murphy, her deed to plaintiffs, and certain provisions
in the Constitution of the State of Oklahoma.
The lands of which the lots involved were a part were allotted
to Eliza J. Murphy by virtue of the act of Congress of March 1,
1901, and that of June 30, 1902 (31 Stat. 861, c. 676; 32 Stat.
500). The latter act is known as the Creek Supplemental Agreement,
and provides (§ 16) that an allotment shall not be incumbered or
subject to forced the for five years, except with the approval of
the Secretary of the Interior. And the section requires that each
citizen of the tribe
"shall select from his allotment forty acres of land, or a
quarter of a quarter section, as a homestead, which shall be and
remain nontaxable, inalienable, and free from any incumbrance
whatever for twenty-one years from the date of the deed therefor,
and a separate deed shall be issued to each allottee for his
homestead, in which this condition shall appear."
A deed was made to Eliza J. Murphy on April 20, 1903, and,
following the statute, expressed the nontaxability and
inalienability and freedom from incumbrance for the designated
period of exemption.
There were provisions in the Enabling Act of the state under
which its Constitution was drawn which preserved the rights of
persons and property of the Indians so long as such rights should
remain unextinguished and provided that nothing in the Constitution
should be construed to limit or affect the authority of the United
Page 248 U. S. 402
the Indians, their lands, their property, or their rights. And
the Constitution exempted from taxation such property as might be
exempt by reason of treaty stipulations existing between the
Indians and the United States or by federal laws during the force
and effect of such treaties and laws. Plaintiffs rely on these
provisions and the deed to Eliza J. Murphy for their contentions,
fortified, they assert, by decisions of this Court.
To the contentions, defendant opposes the Act of Congress of May
27, 1908, c. 199, 35 Stat. 312, which removed the existing
restrictions on the homestead allotment, thereby enabling the
allottee to sell the land, and 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 property of other citizens than allottees of the
Five Civilized Tribes."
The contention based on this act is that, by the Creek
Supplemental Agreement, supra,
the nontaxability and
inalienability and freedom from incumbrance of the land were
correlatives, and to a certain extent therefore interdependent -- a
combination of limitations and rights -- and, as they existed
together, they disappeared together. And their coexistence depended
upon the Indian, and, because it did, there was no limitation or
infringement of rights or impairment of contract. Plaintiffs, it is
further contended, are in no better situation, as they only got
title by virtue of the act of May 27, 1908, removing the
restriction upon alienation, and they cannot avail themselves of it
and repudiate it at the same time.
The supreme court of the state yielded to these contentions and
gave special effect to the Act of 1908, which it considered "a
comprehensive revision of the laws relating to the Five Civilized
Tribes and their lands," that, by it "the free right of alienation
was granted," and as the plaintiffs
"took their title to the lots they are
Page 248 U. S. 403
seeking to exempt from taxation by virtue of the terms of this
act, they cannot go behind it. But for that act, they could not
have purchased the lands in question. They took subject to all the
conditions of that act, and they cannot now claim the benefits of
the exemption from taxation granted to the allottee by the Creek
Supplemental Agreement. Goudy v. Meath, 203 U. S.
In resistance to the contentions of the defendant and the
conclusions of the court, plaintiffs adduce Choate v.
Trapp, 224 U. S. 665
certain cases decided upon its authority -- that is, Gleason v.
Wood, 224 U. S. 679
English v. Richardson, 224 U. S. 680
Choate v. Trapp
has not the extent assigned to it. In
that case, the State of Oklahoma undertook to tax lands which were
yet in the hands of the Indians, asserting the right simply because
of the removal of the restrictions upon alienation by the Act of
May 27, 1908, supra.
The reply of this Court was that the
law (Curtis Act of June 28, 1898, 30 Stat. 505), as modified by the
Act of July 1, 1902, c. 1362, 32 Stat. 641, provided that all of
the lands allotted should "be nontaxable while the title remained
in the original allottee." There was no question in the case, and
could not be, of the effect of alienation -- an exercise of the
right conferred by the Act of May 27, 1908, and the consequence of
such exercise. It is true it was said that "exemption and
nonalienability were two separate and distinct subjects," and that
"one conferred a right and the other imposed a limitation." The
distinction was apt for that case. The state contended that there
was no tax exemption, but that that provision was only directed
against the absolute alienation of the land. This was, in effect, a
contention that the power of alienation unexercised was the same as
the power exercised, and, to correct this confusion, it was
declared that the provision exempting from taxation was a property
right. But it was a property right in the Indian, preserved to him
Page 248 U. S. 404
for his own interest but in the interest of the policy of the
United States regarding him. Kansas
5 Wall. 737; United States v.
Rickert, 188 U. S. 432
cases cited in Choate v. Trapp.
At first, his interest was
put beyond his control; by the Act of May 27, 1908, it was
committed to his control, this also satisfying the policy of the
United States under the changed conditions. It invades no right of
the Indian, therefore, to make the alienation of the land a
surrender of the exemption from taxation, and we concur in the
conclusion of the supreme court of the state that plaintiffs,
having taken title under the act, cannot repudiate its conditions
and its manifest policy. New Jersey v.
7 Cranch 164. We are not dealing with
rights in the abstract; we are dealing with rights under special
conditions, and as determined by acts of the parties under a law of
Congress which was availed of by the Indian and a grantee of the
Indian, and which therefore bound them by its conditions and
subjected the land in the hands of the grantee to the usual burdens
of government. It is an error to suppose that this takes anything
of value from the Indian. We may here invoke the commonplace, for
it is commonplace to say that we only know the value of a thing by
that which makes its worth. Under the restriction against the
alienation, the land had no worth but in its uses; the restriction
removed, it had the added worth of exchangeability for other things
-- a power of sale was conferred. To say there was no value in that
power is to contradict the examples and estimations of the world.
It may be that, if exemption from taxation went with the land, it
might become an element in the price (worth in money) which the
Indian might ask and receive, but that was not of concern to the
purpose of the law, which was to give to the Indian all of the
attributes of ownership, to give him a mastery of his property
equal to that of other owners of property, and nothing more, and
this consummated the new policy of Congress.
Page 248 U. S. 405
Further discussion we deem unnecessary, but we may observe that,
in Tiger v. Western Investment Co., 221 U.
, 221 U. S. 310
and in Williams v. Johnson, 239 U.
, 239 U. S.
-421, a question was intimated whether a grantee of
an Indian could avail himself of the Indian's right, if he had any,
to assert the unconstitutionality of an act of Congress. Opinion,
however, was reserved, and we reserve it here, and rest the case on
the grounds we have discussed.