# Chapman v. Tiger

> Supreme Court of Oklahoma · August 2, 1960 · 356 P.2d 571

URL: https://www.frixlaw.com/law-library/cases/9628659

## Case

- **Full name:** Earl CHAPMAN and Milton W. Hardy, Plaintiffs in Error, v. Eliza TIGER, Et Al., Defendants in Error
- **Court:** Supreme Court of Oklahoma
- **Decided:** August 2, 1960
- **Citations:** 356 P.2d 571; 1960 OK 181; 1960 Okla. LEXIS 479
- **Precedential status:** Published
- **Opinion:** Dissent by Berry
- **Judges:** Davison, Williams, Welch, Halley, Johnson, Blackbird, Irwin, Berry, Jackson
- **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/9628659

## Opinion text

BERRY, Justice
(dissenting).
I am of the conviction that the following quoted provision of Sec. 4 of the 1908 Act (35 Stat.L. 312) controls this case:
“Sec. 4. 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 the property of other persons than allottees of the Five Civilized Tribes. * * *»
To my way of thinking, the question posed by this appeal is whether restrictions on the tract in controversy had been removed prior to May 27, 1908, the effective date of the cited Act. The fact that restrictions had been removed is free from doubt.
The case of Skelton v. Dill, 235 U.S. 206 , 35 S.Ct. 60 , 59 L.Ed. 198 , is squarely in point on the proposition that the tract in the hands of the heirs of Eliza Tiger was unrestricted. The headnote to said case ( 35 S.Ct. 60 ) clearly shows the Supreme Court of the United States holding in said case. The headnote reads as follows:
“The restrictions upon alienation by the heirs of an Indian allottee, made by § 16 of the supplemental Creek agreement of June 30, 1902 (32 Stat. at L. 500, chap. 1323), apply only to allotments made to living citizens in their own right, and not to allotments made on behalf of deceased persons, under the authority of § 28 of the original agreement of March 1, 1901 (31 Stat. at L. 861, chap. 676), or of §§ 7, 8 of the supplemental agreement, in none of which is there any suggestion of a restriction upon alienation.”
In the cited case it is pointed out in the body of the opinion that “In Mullen v. United States, 224 U.S. 448 , 32 S.Ct. 494 , *581 56 L.Ed. 834 , a like question arose under the original and supplemental acts relating to the Choctaw and Chickasaw lands, and we held that the restrictions upon alienation imposed by those acts were applicable to allotments to living members in their own right, but not to allotments on behalf of members then deceased. We do not perceive anything in the acts relating to the Creek lands which calls for a different conclusion.”
The first paragraph of the syllabus to Moffett et al. v. Conley et al., 63 Okl. 3 , 163 P. 118 , reads as follows:
“Lands allotted under section 11, Curtis Act June 28,1898, c. 517, 30 Stat. 495 , 497, in the name of a deceased Creek Indian, and which allotment was confirmed by Original Creek Agreement March 1, 1901, c. 676, § 6, 31 Stat. 861 , 863, as well as lands allotted in the name of said deceased Creek citizen, pursuant to section 28 of said latter agreement, and where the patent thereto issued to ‘the heirs’ of the deceased ancestor, such heirs took the title by inheritance, and not by purchase.”
This Court held in Rentie et al. v. McCoy et al., 35 Okl. 77 , 128 P. 244 , that where a person entitled to a Creek allotment died before the allotment was made and the allotment was therefore made to his heirs, his heirs took as heirs and the land in their hands was not restricted.
In Smith v. Sumpsey & Rosie, 64 Okl. 186 , 166 P. 1094 , it is pointed out that restrictions upon alienation imposed upon citizens of the Seminole Nation apply to allotments made to living citizens and not to allotments made on behalf of deceased citizens. The syllabus to said case reads as follows:
.“The restrictions upon alienation by citizens of the Seminole Nation made by the original Seminole Agreement (Act of July 1, 1898, c. 542, 30 Stat.L. 567), apply only to allotments made to living citizens in their own right, and not to allotments made on behalf of deceased persons under the authority of section 2 of the second Seminole Agreement (Act of June 2, 1900, c. 610, 31 Stat.L. 250).”
Attention is directed to cases cited and discussed in the last above cited case at page 1095 of 166 P. At said page it is stated that “In the case of Skelton v. Dill, 235 U.S. 206 , 35 S.Ct. 60 , 59 L.Ed. 198 , it was held that lands in the Creek Nation allotted after the death of the allottee, under Sec. 28 of that treaty, passed to the heirs free from restrictions; that the restrictions imposed under the other sections of the treaty did not apply to allotments made after the death of the allottee. * * * ” When it is remembered that this case involves the Creeks, and that the land in controversy was allotted after the death of the allottee, the Skelton v. Dill case must be said to represent controlling precedent.
In Greenlees v. Wettack, 43 Okl. 16 , 141 P. 282 , it was held that land allotted to a Cherokee heir was unrestricted in the hands of the heir. The syllabus of the case reads as follows:
“Section 14 of the Cherokee Agreement (Act July 1, 1902, c. 1375, 32 Stat. 717 ), providing restrictions as to sale, alienation, etc., of lands by allottee or his heirs within five years after issuance of patent, does not apply to lands allotted under section 20 of said agreement to heirs of an enrolled citizen who died subsequent to September 1, 1902, before receiving his allotment, and as to such lands the said agreement imposed no restrictions upon the right of alienation.”
The first paragraph of Chupco et al. v. Chapman et al., 76 Okl. 210 , 170 P. 259 , reads thus:
“Katie Chupco, a full-blood Creek Indian woman, died after enrollment, on April 26, 1900. After her death an allotment was selected for her and patented to her heirs. Held, such heirs took the title to the land by inheritance, and not by purchase.”
In view of the fact that restrictions had been removed on the land in controversy prior to the effective date of the cited 1908 *582 Act, the land, by force of Sec. 4 of said Act, which is quoted in part, supra, was subject to ad valorem tax for 1912-1916.
I believe it advisable to point out that the fact that land is restricted in the hands of the Indian owner does not necessarily render the land exempt from ad valorem tax.
In Wynn v. Fugate, 149 Okl. 210 , 299 P. 890, 891 , a full-blood Indian inherited an interest in the allotment of a half-blood Cherokee. The allotment so inherited was subject to ad valorem tax in the hands of the half-blood allottee. The full-blood Indian heir contended that under the provisions of Sec. 9 of the 1908 Act the land was restricted in his hands and that it was therefore exempt from ad valorem tax. In rejecting said contention this Court pointed out that "though the land in question be subject to restrictions upon alienation, as here contended but not here decided, and though the full-blood Cherokee Indian heir be subject to restrictions upon the sale of the land, a distinction recognized but not here decided, the land may be subject to taxation. The distinction between restrictions on land or the alienation thereof and restrictions on taxation is clear, notzvith-standing the statement of this court in Marcy v. Board of County Commissioners et al., 45 Okl. 1 , 144 P. 611 , that ‘the power to tax inherited Indian land is coincident with and dependent upon the removal of restrictions upon alienation,’ * * * ”.
The first paragi-aph of the syllabus to the Wynn v. Fugate case, supra, reads as follows:
“Under the provisions of section 4 of the Act of Congress of May 27, 1908 ( 35 Stat. 312 ), all land from which restrictions have been or shall be removed shall be subject to taxation as though it were the property of other persons than allottees of the Five Civilized Tribes. The exception thereto is land exempt from taxation by the provisions of some treaty between the Indian tribe and the United States government, which treaty exemption is protected by section 6, article 10, of the Constitution of Oklahoma.”
An application of the rale announced in Wynn v. Fugate, supra, clearly sustains the proposition that if Indian land wás unrestricted prior to effective date of the 1908 Act, it was thereafter subject to ad valorem tax, notwithstanding provisions of an Act of Congress requiring that the County Court approve a conveyance of the land by the Indian owner.
In Oklahoma Tax Commission v. United States, 319 U.S. 598 , 63 S.Ct. 1284, 1288 , 87 L.Ed. 1612 , the Supreme Court of the United States said that “ ‘Nontaxability and restriction upon alienation are distinct things’, Superintendent of Five Civilized Tribes, For Sandy Fox Creek No. 1263 v. Commissioner, supra, 295 U.S. 421 , 79 L.Ed. 1517 , 55 S.Ct. 822 , and when Congress wants to require both alienability and nontaxability it can as it has so often done, say so explicitly.” In Sec. 4 of the 1908 Act, Congress said in plain language “that all land from which restrictions have been * * * removed shall be subject to taxation”, and so Congress has spoken in so far as this case is concerned.
In arriving at the intent of Congress in enacting the 1908 Act in controversy, it is well to remember that the heirs of Eliza Tiger, as members of the Creek Tribe, received allotments in their own right in connection with which they enjoyed the same ad valorem tax benefits as those enjoyed by other Creek allottees who did not inherit from ancestors who were entitled to allotments. It follows that if ad valorem tax benefits are extended to Creek lands inherited prior to allotments being made, the limited number of Creeks who took allotments as heirs are, taxwise, placed in a preferred position to those who did not so take. I am of the opinion that Congress did not intend to grant a tax preference to those taking Creek allotments as heirs.
All italics appearing in this dissent have been supplied.
For reasons given, I respectfully dissent to the opinion promulgated herein.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9628659. Public record. Not legal advice.