# Yarbrough v. Oklahoma Tax Commission > Supreme Court of Oklahoma · October 28, 1947 · 200 Okla. 402 URL: https://www.frixlaw.com/law-library/cases/5145109 ## Case - **Full name:** YARBROUGH v. OKLAHOMA TAX COMMISSION WEST v. SAME - **Court:** Supreme Court of Oklahoma - **Decided:** October 28, 1947 - **Citations:** 200 Okla. 402; 193 P.2d 1017; 1947 OK 332; 1947 Okla. LEXIS 775 - **Precedential status:** Published - **Opinion:** Dissent by Hurst - **Judges:** Arnold, Bayless, Corn, Davison, Gibson, Hurst, Luttrell, Only, Riley, Welch - **Cited by:** 6 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5145109 ## Opinion text HURST, C.J. (dissenting). Two questions inhere in this case, (1) may Oklahoma levy an estate tax upon the transmission of property, the legal title to which is vested in the United States, and which is held in trust for the benefit of an Indian Tribe, where the only right of the deceased Indian allottee is to receive his aliquot portion of the income from the trust property as the United States government may from time to time elect to distribute it in the absence of an Act of Congress authorizing such tax, and (2) did the Oklahoma Legislature intend to levy a tax upon the transmission of such right? I think both questions should be answered in the negative. We are not concerned with whether Congress should authorize such a tax to be levied, but rather whether it can be done without the consent of Congress. 1. The authorities relied upon in the majority opinion do not sustain the result reached. None of the cases relied upon involved a tax upon property held in trust by the United States for the benefit of its Indian wards. The Mountain Producers case, 303 U. S. 376 , involved a tax upon the income of an oil and gas lessee of state lands, and it stands for the rule that the interest of the lessee is too remote to be protected from the levy under the rule exempting state instrumentalities from Federal taxation. The property involved in the other cases relied upon was owned in fee by the individual Indians, but the alienation of such property was restricted. The Five Civilized Tribes case 319 U. S. 598 , recognizes the distinction between property owned in fee by individual Indians and property held in trust by the United States for their benefit, and cites United States v. Rickert, 188 U. S. 432 , in making such distinction. The Rickert Case has never been departed from. If, as there held, property held in trust by the United States for ■ the Indian allottee is not subject to state ad valorem taxation without the consent of Congress, it would seem that the state cannot levy an estate tax on its transmission by the death of the allottee, without the consent of Congress. *407 Our decision should be based upon sound legal principles, and not upon what we understand to be the “tone” or trend of the recent decisions of the United States Supreme Court in other tax cases not involving the precise question here involved. After all, it is the function of Congress and not that of the courts to declare the policy of the United States with reference to its Indian wards. No remote Federal instrumentality is here involved, but rather the United States government itself. Congress has not provided a method of collecting the tax and has not authorized those having the custody of the funds held in trust to disburse them for such purposes. 25 U. S. C. A'. §123 provides: “No money shall be expended from Indian tribal funds without specific appropriation by Congress.” It is my view that until Congress expressly or by necessary implication authorizes the tax to be levied and collected, it cannot be done because of the implied immunity doctrine. The question of whether these headright interests are or may be taxed by the federal government is beside the point. The doctrine of implied immunity operates only to prevent one government from taxing the property or instrumen-talities of another government, and does not prevent a government from taxing its own property or instrumentalities. 61 C.J. 361, 371; 51 Am. Jur. 279 . 2. Both this court and the Federal courts are committed to the rule that the descent of the property here involved is cast under the Federal statutes and not under the state statutes. See In re Pryor’s Estate, 199 Okla. 17 , 181 P. 2d 979 , and the cases there cited. Our estate tax statute purports to cover only such property of the decedent as passes “by will or the intestate laws of this state.” 68 O. S. 1941 §989. Estate and inheritance taxes are excise taxes “imposed on the privilege of transmitting or receiving property upon the death of the owner.” 28 Am. Jur. 12 . See, also, 61 C.J. 1592. Our Legislature did not express an intention to levy an estate tax on the privilege of transmitting property under the laws of the United States, and it seems elementary that it could not constitutionally do so. 61 C.J. 1604, note 41; 28 Am. Jur. 16 , 90; In re Estates of Harkness, 83 Okla. 107 , 204 P. 911 , 42 A.L.R. 399 ; Frick v. Pennsylvania, 268 U. S. 473 , 69 L. Ed. 1058 , 45 S. Ct. 603 , 42 A.L.R. 316 . For the foregoing reasons, I respectfully dissent. GIBSON, J., concurs in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5145109. Public record. Not legal advice.