Under the General Allotment Act of February 8, 1887, a trust
patent to land in Oklahoma was issued to an Apache Indian. He died,
leaving a will devising an undivided interest in the allotment to
his widow. No fee patent had been issued, and the trust period had
if the widow is not an Indian, her interest is
subject to state taxation. Pp. 344 U. S.
206 Okla. 527, 244 P.2d 1137
reversed and remanded.
Respondent sued in an Oklahoma state court to enjoin state
taxation of her undivided interest in a trust patent for land
issued to her deceased Indian husband. Without determining whether
the widow was an Indian, the trial court held that the interest was
not taxable, and the Supreme Court of Oklahoma affirmed. 206 Okla.
527, 244 P.2d 1137
This Court granted certiorari. 344 U.S. 812. Reversed and
p. 344 U. S.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
In 1901, an Apache Indian, Paukune, was issued a trust patent to
land in Caddo County, Oklahoma. This allotment was made under the
General Allotment Act of February
Page 344 U. S. 172
8, 1887, 24 Stat. 388, 389. [Footnote 1
] Paukune died testate in 1919, leaving a wife
Juana and a son Jose. By his will, he devised an undivided one-hird
interest in the allotment to his widow and an undivided two-hirds
interest to his son. No fee patent to the land has issued to
Paukune, to his widow, or to the son. The trust period of
twenty-ive years has, from time to time, been extended. In other
words, the United States still holds the land in trust for Paukune
and his heirs.
In 1947, Juana's undivided one-hird interest was assessed for
taxes in the amount of $21.33, and was
advertised for sale for failure to pay. She thereupon instituted
this suit in the Oklahoma courts to enjoin the sale and any further
levy of ad valorem
taxes on the theory that the land was
exempt from state taxation. The petitioners answered, alleging that
Juana was a non-ndian, and therefore not exempt from the taxes.
Page 344 U. S. 173
trial court, without determining whether the widow was an
Indian, held her interest nontaxable by the state, and the Supreme
Court of Oklahoma affirmed, 244 P.2d 1137
saying it mattered not under federal law whether the widow was
Indian or non-ndian. The case is here on certiorari.
Levindale Lead & Zinc Mining Co. v. Coleman,
241 U. S. 432
dealt with restrictions on alienation attached to land under the
Osage Indian Allotment Act of June 28, 1906, 34 Stat. 539. The
Court held that the policy of that Act did not embrace person who
were not Indians, since the Congress sought to protect only those
toward whom it owed the duties of a guardian. The same answer must
be given here. If Juana is not an Indian, the United States has no
interest of hers in the land to protect. [Footnote 2
] True, the United States holds the legal
title to the land. But nothing in the Act prevents the devolution
of the quitable interest to the widow. If she is not within the
class whom Congress sought to protect, the trust is a dry and
passive one; there remains only a ministerial act for the trustee
to perform, namely the issuance of a fee patent to the
The judgment of the Supreme Court of Oklahoma is reversed and
the cause is remanded to that court for proceedings not
inconsistent with this opinion.
Section 5 of the Act provides in part as follows:
"That, upon the approval of the allotments provided for in this
act by the Secretary of the Interior, he shall cause patents to
issue therefor in the name of the allottees, which patents shall be
of the legal effect, and declare that the United States does and
will hold the land thus allotted, for the period of twenty-ive
years, in trust for the sole use and benefit of the Indian to whom
such allotment shall have been made, or, in case of his decease, of
his heirs according to the laws of the State or Territory where
such land is located, and that, at the expiration of said period,
the United States will convey the same by patent to said Indian, or
his heirs as aforesaid, in fee, discharged of said trust and free
of all charge or incumbrance whatsoever: Provided,
the President of the United States may, in any case in his
discretion, extend the period. And if any conveyance shall be made
of the lands set apart and allotted as herein provided, or any
contract made touching the same, before the expiration of the time
above mentioned, such conveyance or contract shall be absolutely
null and void: Provided,
That the law of descent and
partition in force in the State or Territory where such lands are
situate shall apply thereto after patents therefor have been
executed and delivered, except as herein otherwise provided. . .
And see Mixon v. Littleton,
265 F. 603; Unkle v.
281 F. 29, 35.