The opinion
Skelton, Judge,
dissenting:
I think the majority has fallen into error in refusing to follow the decision of the Supreme Court in West v. Oklahoma Tax Commission, 334 U.S. 717 (1948), which it admits involved the identical problem we have in the instant case and is the only decision of that Court that has ever decided the exact question we have before us. That case has never been overruled and the law under which it was decided has not been changed. Consequently, we are required to follow it. Furthermore, it was correctly decided, as will be shown below.
The West case involved the power of the State of Oklahoma to levy an inheritance tax on the estate of a deceased restricted (noncompetent) Osage Indian which is the exact question before us in the instant case. The Court held in no uncertain terms that the State of Oklahoma did have such power and the tax was legal because it was a tax on the transfer of the property of the noncompetent Indian after his death and not a tax on the trust property itself. The Court said:
*626 * * * An inheritance or estate tax is not levied on the property of which an estate is composed. Rather it is imposed upon the shifting of economic benefits and the privilege of transmitting or receiving such benefits. United States Trust Co. v. Helvering, 307 U.S. 67, 60 ; Whitney v. Tax Commission, 309 U.S. 630 , 638. In this case, for example, the decedent had a vested interest in his Osage headright; and he had the right to receive the annual income from the trust properties and to receive all the properties at the end of the trust period. At his death, these interests and rights passed to his heir. It is ■the transfer of these incidents, rather than the trust properties themselves, that is the subject of the inheritance tax in question. In this setting, refinements of title are immaterial. Whether legal title to the properties ■is in the United States or in the decedent and his heir is of no consequence to the taxability of the transfer.
The result of permitting the imposition of the inheritance tax on the transfer of trust properties may be, as we have noted, to deplete the trust corpus and to create lien difficulties. But those are normal and intended consequences of the inheritance tax. And until Congress has in some affirmative way indicated that ■these burdens require that the transfer be immune from the inheritance tax liability, the Oklahoma Tax Commission case permits that liability to be imposed. * * * [Id. at 727.]
As may be seen from the foregoing, the decision is squarely in point, not only on the law question in our case, but also on the facts, as both cases involve the same kind of property of Osage Indians and the same kind of inheritance tax levied by the State of Oklahoma. The majority opinion admits all of this, but refuses to follow the West decision. Instead it questions the viability of the West case and relies on the decision in Squire v. Capoeman, 351 U.S. 1 (1956), and decisions of various inferior courts.
The Cafoeman case is clearly distinguishable from the West case on both the facts and the law. That case involved the question of whether or not the Federal Government could levy an income tax on the income of living noncom-petent Quinaielt Indians derived from the sale of timber cut from lands held in trust for them by the government under the provisions of the General Allotment Act of 1887 *627 ( 24 Stat. 388 , 25 U.S.C. § 331 et. seq.). The Court held the income tax on the proceeds of the sale invalid. In doing so, it quoted with approval an opinion of an attorney general as follows:
“* * * In other words, it is not lightly to be assumed that Congress intended to tax the ward for the benefit of the guardian.” [Footnote omitted.] [Id. at 8.]
In that case, the court was dealing with a direct tax on the property of a living noncom/petent Indian, and no inheritance tax imposed by a state was involved. Furthermore, the tax was being imposed on the property of the wards by their guardian during their lifetime. No such facts existed in West nor do they exist in our case.
The Court in Oapoeman showed clearly that it was protecting the property of the noncompetent Indians during their lifetime so that when they became competent their property would not be depleted and they could take their rightful place in society. This is clearly shown by the following statements of the Court:
* * * The purpose of the allotment system was to protect the Indians’ interest and “to prepare the Indians to take their place as independent, qualified members of the modem body politic.” * * * [Id. at 9.]
* * * Unless the proceeds of the timber sale are preserved for respondent, he cannot go forward when declared competent with the necessary chance of economic survival in competition with others. * * * [Emphasis supplied.] [Id. at 10.]
In the case at hand, we are not dealing with a living non-competent Indian who may someday be declared competent and at that time will need to have his property intact so that he can make his own way in our economic society. Here we are dealing with a deceased noncompetent Indian whose non-competency died with her. All of her property has already been transferred and distributed to her heirs, who, as far as the records show are competent and are not restricted in any way. The Oklahoma tax was levied on the transfer and distribution of the property of the deceased Indian to her heirs. This is exactly the kind of a tax that the West decision held to be valid.
*628 The majority discusses other decisions of lower courts and a Revenue Ruling of the Internal Revenue Service to the effect that trust funds of Indians are not subject to Federal income tax or estate taxes. These authorities are not in point because taxes of that kind are not involved here. Furthermore, as the Supreme Court pointed out in Capoeman, the ward cannot be taxed by the guardian. The majority notes a few cases of lower courts that Indian trust property is not subject to state inheritance taxes. If those cases involve different Indians whose property is held in trust under different Acts of Congress to the Osage Allotment Act here involved, they are not in point. If they involve the same facts and the same legal questions we have in the instant case, they are in direct conflict with the decision of the Supreme Court in the West case and are not controlling. For all of these reasons, I have not discussed them individually.
From the foregoing, it is readily apparent that the West decision is viable and controlling, and we are not free to question its viability. Neither do we have the power or authority to overrule it by relying on decisions of lower courts nor by speculating on what the Supreme Court might do sometime in the future if this question should again be presented to it.
I would deny plaintiffs’ motion for summary judgment and grant that of the defendant, and dismiss plaintiffs’ petition.