Amicus Curiae Brief — Countyof Yakima v. Confederated Tribes and Bands of Yakima Nation

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OCTOBER TERM, 1991

COUNTY OF YAKIMA and DALE A. GRAY,

Yakima County Treasurer,

e Petitioners,

CONFEDERATED TRIBES AND BANDS OF THE

YAKIMA INDIAN NATION,

Respondent.

CONFEDERATED TRIBES AND BANDS OF THE

YAKIMA INDIAN NATION,

Cross-Petitioner,

COUNTY OF YAKIMA and DALE A. GRAx,

Yakima County Treasurer,

Cross-Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF FOR LA PLATA COUNTY, COLORADO;

BANNOCK COUNTY, LEWIS COUNTY AND POWER

COUNTY, IDAHO; BECKER COUNTY AND MAHNOMEN

COUNTY, MINNESOTA; BLAINE COUNTY, FLATHEAD

COUNTY, GLACIER COUNTY, LAKE COUNTY AND

ROOSEVELT COUNTY, MONTANA; THURSTON

COUNTY, NEBRASKA; MOUNTRAIL COUNTY AND

SIOUX COUNTY, NORTH DAKOTA; CORSON COUNTY,

DEWEY COUNTY, LYMAN COUNTY, TODD COUNTY

AND ZEIBACH COUNTY, SOUTH DAKOTA; DUCHESNE

COUNTY, UTAH; AND FREMONT COUNTY, WYOMING,

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

Tom D. ToBIN *

TOBIN LAW OFFICES, P. C.

422 Main Street

Winner, South Dakota 57580

(605) 842-2500

* Counsel of Record

(Additional Counsel Listed on Inside Cover)

WILSON - Erase Printing Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

SUSAN W. PAHLKE

Todd County Deputy

States Attorney

P.O. Box 482

Winner, South Dakota 57580

(605) 842-2551

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE EEgEEgz wu...

SUMMARY OF ARGUMENT

ee IEE

I. The General Allotment Act Clearly Authorized

the Taxation of Fee Patent Land .......................

II. The General Allotment Act Was Clearly Under-

stood to Authorize the Taxation of Fee Patent

, ̃ ꝶVVuW'„

III. The General Allotment Act Has Been Consist-

ently Construed to Clearly Authorize the Taxa-

tion of Fee Patent Land

ESE

Page

TABLE OF AUTHORITIES

CASES: Page

Bailess v. Paukune, 344 U.S. 171 (195277 26, 27

Board of Comm'rs of Jackson County, Kansas v.

United States, 308 U.S. 343 (19399 24, 26

Board of Comm'rs of Jackson County, Kansas v.

United States, 100 F.2d 929 (1938), modified,

/ 14

Brendale v. Confederated Tribes & Bands of

Yakima Indian Nation, 109 S. Ct. 2994 (1989). 2, 30

California v. Cabazon Band of Mission Indians,

,, . 30

County of Thurston v. Andrus, 586 F.2d 1212 (8th

Cir. 1978), cert. denied, 441 U.S. 952 (1979) 26

Draper v. United States, 140 U.S. 240 (18917 22

Duro v. Reina, 110 S. Ct. 2058 (1990) —... 16

Goudy v. Meath, 203 U.S. 146 (1906) —............... 22

Mahnomen County v. United States, 819 U.S. 474

ES . ˙ 26

Mescalero Apache Tribe v. Jones, 411 U.S. 145

1 30

Nichols v. Rysavy, 809 F.2d 1317 (8th Cir. 1987),

cert. denied, 484 U.S. 848 (1987) 15, 26

Solem v. Bartlett, 465 U.S. 463 (19843) 21

Squire v. Capoeman, 351 U.S. 1 (1956) 27

United States v. Mason, 412 U.S. 391 (1973 27, 28

United States v. McCurdy, 246 U.S. 263 (1918).......... 23, 24

United States v. Mitchell, 445 U.S. 535 (1980)..4, 28, 29, 30

United States v. Nice, 241 U.S. 591 (1916) 23, 24

United States v. Rickert, 188 U.S. 432 (1903) 22

CONGRESSIONAL MATERIALS:

11 Cong. Rec. (Excerpts) (1881777) 4

18 Cong. Rec. $211 (1882) 4

i 5

38 Cong. Rec. 2830 (1904)i!iũ: nec ceccceccececeeeeeeeee 5

67 Cong. Rec. (Excerpts) (1926)... — 8,9

C 9

74 Cong. Rec. (Excerpts) (1931) 9,11

r 2 eesumnennnue 12

86 Cong. Rec. (Excerpts) (19400))ʒ/õ 14, 15

General Allotment Act of 1887 (24 Stat. 388) passim

—

iii

TABLE OF AUTHORITIES—Continued

Page

Burke Act of 1906 (34 Stat. 182) 5

S. Rep. No. 68, 61st Cong., 2d Sess. (1910)... 6

S. Rep. No. 536, 69th Cong., Ist Sess. (1926) 8

S. Rep. No. 1488, 76th Cong., 3d Sess. (1940) 13, 14

H.R. Rep. No. 1896, 69th Cong., 2d Sess. (1927) 8

H.R. Rep. No. 2269, 71st Cong., 3d Sess. (1931) 9,10

H.R. Rep. No. 669, 76th Cong., Ist Sess. (1939) 12, 13, 14

MISCELLANEOUS:

19 Op. Atty. Gen. 161, 169 (188) 15

r . eemenl 15

r ... a ee 15

, 2222... QU 15

Ee eS ae 15

Annual Report of the Board of Indian Commis-

EE EEE SR ETERS TE ae . 17

Annual Report of the Board of Indian Commis-

EE REISE NE PA a a 18

Annual Report of the Board of Indian Commis-

a 18

Annual Report of the Commissioner of Indian

Affairs to the Secretary of the Interior (1927) 17

Brief for Petitioner, Squire v. Capoeman, 351 U.S.

nnn . 27

Brief for the United States, Bailess v. Paukune,

e ee 26

Brief for the United States, Board of Comm'rs of

Jackson County, Kansas v. United States, 308

r 25

Brief for the United States, Mahnomen County v.

United States, 319 U.S. 474 (1943) 26

Brief for the United States, United States v.

Mason, 412 U.S. 391 (1973) 28

Brief for the United States, United States v.

McCurdy, 246 U.S. 263 (191) 24

Brief for the United States, United States v.

Mitchell, 445 U.S. 535 (1980). 29

Brief for the United States, Nice v. United States,

|. .

TABLE OF AUTHORITIES—Continued

Brief for the United States, United States v.

Rickert, 188 U.S. 482 (1903)

Hoxie, Beyond Savagery, The Campaign to As-

similate the American Indians, 1880-1920

Leupp, The Indian and His Problem (1910) ...........

McLaughlin, My Friend the Indian (19100

Memorandum of Associate Solicitor (198997

Memorandum for the United States, Yakima Na-

tion v. Yakima County, 903 F.2d 1207 (9th Cir.

11. A Ee

Otis, Tùhe Dawes Act and the Allotment of Indian

Lands (Prucha edition, 1973) (originally en-

titled History of the Allotment Policy) )

Pfaller, James McLaughlin, The Man With the In-

2 cctctetalianenttininsciniaanbitiiaeennciamene

Proceedings of the Board of Indian Commissioners

at 11th Lake Mohonk Indian Conference as re-

ported in Annual Report of Board of Indian

Commissioners (1898) ...................-...............--..---

Proceedings of the Board of Indian Commissioners

at 5th Lake Mohonk Indian Conference as re-

ported in Annual Report of Board of Indian

Prucha, The Great Father (1984) ............................

Report of the Commissioner of Indian Affairs to

the Secretary of the Interior, H.R: Doc. No. 5,

59th Cong., 2d Sess. (1906)...

Report of the Secretary of the Interior, H.R. Exec.

Doc. No. 1, 52nd Cong., 2d Sess. (18917

Schmeckebier, The Office of Indian Affairs, Its

History, Activities and Organization (1927). 6, 7, 20

S. D. State Historical Soc’y Quarterly, Vol. 11

The Problem of Indian Administration (1928)

Transcript of Oral Argument, United States v.

Mason, 412 U.S. 891 (1978) .........................--...-.---

Transcript of Oral Argument, United States v.

Mitchell, 445 U.S. 535 (1980)

INTEREST OF AMICI CURIAE

The concern that prompts the filing of this Brief can

be simply stated. The tax records in county court houses

are being rifled. Since 1987 tribal governments across

the country, with the assistance and encouragement of

the United States, have challenged the validity of county

ad valorem taxes on Indian fee lands. Almost without

exception, the tribal arguments are loosely premised on

bits and scraps of language from several unrelated opin-

ions of this Court in the 1970s. As a result, members of

tribes have refused to pay their taxes (everywhere), tax

abatement petitions have been filed (La Plata County,

Colorado), individual lawsuits have been filed against

counties in State courts (Corson County, South Dakota),

tribal lawsuits have been filed against counties in federal

courts (two in Montana), and even worse, the United

States, just a year ago, after the decision below, targeted

one Amici county and sued the county and the State in

federal court in the name of the United States (Todd

County, South Dakota). (Federal complaint with attach-

ments; one inch thick, burdensome interrogatories and re-

quests for production of documents). Apart from the

fact that county governments can ill afford to squander

scarce resources on senseless litigation, the issue here

threatens the very core of county fiscal integrity.

The Counties joining in this Brief all contain areas

that at one time were established as Indian Reserva-

tions. They are representative of many other counties

similarly situated throughout the United States. As this

Court has often noted, fee lands are scattered through-

out the counties, some of which are owned by Indians

and Indian Tribes. The history of each area is, of

course, as varied and diverse as federal Indian policy—

with one exception. Historically, every county has rou-

tinely taxed these fee lands and this practice has been

the accepted rule for decades.

To be sure, the extent of Indian fee ownership varies

from reservation to reservation and reflects radically dif-

ferent fact situations. As Amici States note, the precise

amount of lands nationally has not been determined.

Locally, tribal enrollment lists are not ordinarily avail-

able to county governments and even these lists do not

include non-member Indians, who also own fee property.

So we are not certain of the total sum involved. One

thing, however, is certain. The amount is substantial—

because these counties also contain large areas of other

lands that are non-taxable and held in trust by the

United States for Indians and Indian tribes. For exam-

ple, in Todd County, South Dakota, approximately 60

percent of the entire county is held in trust by the

United States for the Rosebud Sioux Tribe or its mem-

bers or other Indians. Of the taxable land, Indian fee

land on paper roughly constitutes more than 10 per-

cent of the seven hundred and fifty thousand ($750,000)

to eight hundred and fifty thousand ($850,000) dollars

of total taxes collected by the county per year in recent

years. In Dewey County, South Dakota, the same figure

represents roughly 8 percent of the total taxes collected.

In other counties the percentage could be more and in

some counties it is undoubtedly less. But the exact per-

centage is beside the point. Whatever the amount, county

government in these areas is not some new and novel

experience. It has been there for decades pursuant to

Congressional Policy. That Congressional Policy has au-

thorized the taxes here—and not on a case by case basis

as the court of appeals has indicated. The issue in this

case represents a fundamental and most basic concept in

Federal Indian Law that has been resolved and relied on

for decades. For this reason, Amici respectfully submit

that this Court authoritatively document and set forth

that concept in this case.

Although the United States did not participate below

except as Amicus in support of the tribal petition for re-

hearing and suggestion for rehearing en banc, at that

time the United States told the court of appeals that to

tax Indian fee lands would “create an exception without

any policy basis, from the general rule that the state may

not tax Indians or their property on reservations.” Mem-

orandum for the United States at 2. By Order of Janu-

ary 7, 1991, this Court invited the Solicitor General to

file a brief in this case expressing the views of the United

States. The United States responded by now asserting

in this Court that various Acts of Congress and judicial

decisions “changed” the effect “that Section 6 (including

its provision) otherwise would have“. Brief for the

United States at 15-16, n.10 (emphasis added). This is

a significant concession. What the United States still did

not tell this Court Amici would submit, is even more

significant. Time and time again for almost three dec-

ades since the alleged change occurred, the United States

has told everyone else, including this Court, a different

story.

* SUMMARY OF ARGUMENT

Petitioners and Amici Curiae States have set forth in

detail the reasons the court of appeals misconstrued

Brendale, and while we agree with those important points,

they are not repeated here.

The argument of Amici Curiae Counties centers around

the fundamental validity of the taxes in question and the

support for that position in the legislative history of the

General Allotment Act and in the manner in which the

United States and this Court have consistently construed

this most important legislation.

ARGUMENT

i. The General Allotment Act Clearly Authorized the

Taxation of Fee Patent Land.

Perhaps no other area of Federal Indian Law has been

better understood than the taxing of Indian fee lands

authorized by Congress in the General Allotment Act of

1887 (24 Stat. 388). In the beginning, even the general

public was involved in the debate on the fundamental as-

pects of the question presented. Meetings were held,

memorials passed, and Congress was inundated with the

pros and cons of the allotment policy. When first intro-

duced in 1881, the Senate debated the overall issue day

after day. In subsequent years, the debate continued,

bills passed the Senate, were stalled in the House, and

in 1887 the measure finally passed. Some of this legis-

lative history was recently submitted to this Court by

the United States in United States v. Mitchell, 445 U.S.

535 (1980). A more complete index is set forth in Amici

App. la-2a. The General Allotment Act documents cited

there are replete with evidence that Congress clearly in-

tended, after the expiration of the twenty-five year trust,

that Indian fee lands would be taxed as all other fee

lands. For example, in 1881, the first provision that in-

corporated this concept stated:

That the lands acquired by any Indian under and by

virtue of this act shall not be subject to alienation,

lease, or incumbrance, either by voluntary convey-

ance or by the judgment, order or decree of any

court, or subject to taxation of any character, but

shall be and remain inalienable, and not subject to

-taxation, lien, or incumbrance, for the period of

twenty-five years from the date of the patent, which

said restrictions shall be incorporated in the patents

when issued. 11 Cong. Ree. 875 (1881). Amici App.

3a.

When Senator Dawes introduced the language of the

present section in related legislation, he stated “The In-

dian, therefore, under the law will be to all intents and

purposes the occupant of the land and enjoy all its uses

and at the end of the twenty-five years the United States

will be obliged by the force of this provision to give him

or his heirs a patent discharged of the trust and free of

incumbrance. It will be impossible to raise the question

of taxation under that provision .. . 13 Cong. Rec. 3211

(1882). Amici App. 5a-6a.

It was clear, as Senator Coke stated in similar debate,

that “Section 5 prohibits the alienation of land by the

Indians; it exempts the land from taxation, from lien or

incumbrance for twenty-five years.” 11 Cong. Rec. 876-

877 (1881) (emphasis added). And thereafter, the rec-

ord is replete with similar statements, “Mr. Dawes... .

The bill protects the property of the Indians for twenty-

five years. That is the limit. That is the intent of the

bill.” 15 Cong. Rec. 2242 (1884) (emphasis added).

Other representative statements to this same effect are

set forth in Amici App. 3a-10a.

When Congress amended this provision for unrelated

reasons in the Burke Act in 1906 (34 Stat. 182), this

understanding was reflected in the text of the Act, as

Petitioner and Amici States have discussed at length.

It is also reflected in the legislative history set forth

verbatim in Amici App. 16a-56a and in the related docu-

mentation in Amici App. 57a-179a.

As one would expect, in other instances, whenever the

subject was addressed in congressional debate or in House

or Senate Reports, the explanation was always the same—

both before and after the Burke Act of 1906. For ex-

ample, when Congressman Burke addressed the House of

Representatives in 1904, he referred to the twenty-five

year trust exemption twice in the same debate:

The man who goes into that section of the country

goes in there with a handicap of one-fifth of the land

nontaxable for twenty-five years, and he has got to

pay his proportionate increase of the expenses of that

community for all that time. The Indians will

have the benefit of the roads, of the courts, and the

benefits of a county and State government without

contributing a cent therefor, their lands being non-

taxable for twenty-five years, as before stated, while

the settler who takes a homestead and acquires title

to the same must do his share in paying these

expenses.

38 Cong. Rec. 2830 (1904) (emphasis added).

And in 1910, when Senator Gamble submitted a Re-

port for the Committee on Indian Affairs, the Report

similarly reflected this understanding:

Considering the fact that the Indian allotments are

relieved from taxation for a period of twenty-five

years and the Indians are to receive like advantages

with the whites in connection with the above, it is

thought by your committee that such a provision is

wise, equitable, and just not only to the Indians but

to the prospective settlers. . ..

S. Rep. No. 68, 61st Cong., 2d Sess. at 4 (1910) (em-

phasis added).

Although Congress continued to amend the General

Pv ce Act over the course of the next two decades,

none of the subsequent Amendments or supporting con-

gressional documentation specifically focused on the fact

that the tax exemption was tied to the twenty-five year

trust period. It was presumed that this was naturally

the case and there was no perceived need to ever clarify

or direct any remarks to this point in any of these ma-

terials. However, the adoption of a more liberal policy

for the issuance of fee patents in 1917 did eventually

prompt Congress to indirectly address this commonly held

presumption and in so doing, thereby lay to rest any ar-

gument or doubt that Congress could have ever intended

or understood the exemption in any other way.

In 1917, the Commissioner of Indian Affairs, with the

approval of the Secretary of the Interior, adopted the more

liberal policy of issuing patents in fee sooner to all In-

dians.of less than half blood and issuing others on a less

restrictive basis to those of larger percentage of Indian

blood without individual applications. “Competency com-

missions” were dispatched to several reservations to ac-

complish this objective. This new declaration of policy

provided in part that:

The time has come for discounting guardianship of

all competent Indians and giving even closer atten-

tion to the incompetent that they may more speedily

achieve competency. Broadly speaking, a policy of

greater liberalism will henceforth prevail in Indian

administration to the end that every Indian, as soon

as he has been determined to be as competent to

transact his own business as the average white man,

shall be given full control of his property... .

L. Schmeckebier, The Office of Indian Affairs, Its His-

tory, Activities and Organization, at 152-153 (1927).

With this concerted policy as guidance, the consequences

were predictably arbitrary, far reaching, and understand-

ably subject to quick criticism and remedial action not at

issue here. However, to the extent that premature taxa-

tion was stated as one necessary result of the process, the

documentation surrounding the “forced fee” policy merits

attention. With this limited purpose in mind, the docu-

ments are probative and unequivocal.

For example, by 1921 it was apparent to the Commis-

sioner of Indian Affairs that apart from those “influences

which sought to hasten the taxable status of the property”

by “the termination of the trust title’ and the issuance

of “patents in fee”, the degree of blood should not be a

deciding factor to establish competency and applications

should still be required:

[Als there are numerous instances of full-bloods who

are clearly demonstrating their industrial ability by

the actual use made of their land and who are

shrewdly content with a restrictive title thereto that

exempts them from taxation. .. .

L. Schmeckebier, supra at 156-157 (emphasis added).

Congressional attention first focused on the issue when

Congressman Williamson from South Dakota was in-

formed that the Department of the Interior could not take

“corrective” action on a forced fee patent without express

congressional direction. As a result, on January 18, 1926,

the Secretary of the Interior, Dr. Hubert Work, for-

warded a draft of a department bill to the Committee on

Indian Affairs. As justification for the measure, Secre-

tary Work explained:

During the year 1919, and later, the then Secretary

caused a great number of patents in fee simple to be

issued to adult allottees, or to their heirs of less

than one-half Indian blood, without application by

the Indians for such patents, believing that such

mixed-blood adult Indians were competent and capa-

ble of managing their own affairs. This depart-

ment canceled patents issued to two Coeur d’ Alene

Indians who had refused to accept their patents or

to pay taxes, and suit was brought to cancel the

assessments. The United States Circuit Court of

Appeals, Ninth Circuit, in these two cases, United

States v. County of Benewah and United States v.

County of Kootenai, Idaho (290 Fed. 628), held that,

the Secretary of the Interior had no authority under

the act of May 8, 1906, to issue a patent in fee to

an Indian allottee during the trust period without an

application therefor; that a patent so issued did not

pass title and such patents having been refused, the

cancellation of the patent was upheld. ... [T]he

department desires legislative authority to cancel

such patents where there has been no voluntary sale

or encumbrance of the land.

S. Rep. No. 536, 69th Cong., Ist Sess. at 2-3 (1926)

(emphasis added), Amici App. 63a.

For the purpose of the issue here, Secretary Work

shared the commonly held presumptions noted above:

[Platents, prima facie, subject the lands to taxation

and other liens... [I]ndians who had refused to

accept their patents or to pay taxes.... Few of the

Indians will or can pay taxes. Practically all

these lands have been placed on the tax rolls and

some have been sold for nonpayment of assessments.

S. Rep. No. 536, 69th Cong., Ist Sess. at 2 (1926) (em-

phasis added), Amici App. 63a.

The bill was introduced on January 23, 1926. 67 Cong.

Rec. 2630 (1926). In the House Report patents in fee

are again equated with taxation:

Under existing law it has been held by the courts

that the Indians have a vested right in the tax-free

status of their allotments during the trust period

fixed by law.... [T]hey did not want their patents

in fee on the ground that they would be unable to

pay the taxes. [F]oreclosure or tax deed or dis-

posed of them by sale. [A]cceptance of the fee

patent and a waiver of the tax-exempt privileges of

a trust patent....

H.R. Rep. No. 1896, 69th Cong., 2d Sess. at 1-2 (1927)

(emphasis added). Amici App. 67a. It passed the House

without debate and was reported in the Senate on April

2, 1926. 67 Cong. Rec. 6763 (1926). Shortly thereafter,

on April 10, 1926, 67 Cong. Rec. 7272 (1926), the

measure passed the Senate and was signed by the Presi-

dent on February 26, 1927. 68 Cong. Rec. 4892 (1927).

Act of February 26, 1927 (44 Stat. 1247).

In 1930, in response to bill that would have created a

commission to investigate the entire matter, the Depart-

ment of the Interior proposed a letter of instructions to all

superintendents to gather the information needed and

then report back to Congress. H.R. Rep. No. 2269, 71st

Cong., 3rd Sess., at 3-5 (1931). Once again, taxation of

patents in fee was a stated premise in the list of the ques-

tions contained in the instructions:

Has any of the land been sold for debt or taxes

If canceled, have tax assessments or tax sales been

canceled or paid assessments refunded . . .

H.R. Rep. No. 2269, 71st Cong., 3rd Sess. at 4 (1931).

Amici App. 83a.

After the materials from the instructions were compiled,

the new Secretary of the Interior, Ray Lyman Wilbur,

reported back to Congress and proposed a bill to amend

the 1927 Act and address the unanswered concerns:

namely, that the Department be authorized to cancel cer-

tain fee patents and return the land to trust status if

any portion of the allotment was not encumbered.

In his letter of transmittal dated December 18, 1930,

Secretary Wilbur shared the same assumptions regarding

fee patents and taxation related by his predecessor, Sec-

retary Work. H.R. Rep. No. 2269, 71st Cong., 3d Sess.

at 3-5 (1931), Amici App. 83a.

Congressman Williamson reported the bill as amended

in the House of Representatives on January 14, 1931.

74 Cong. Rec. 2193 (1931). This time even the text of

the bill expressly reflects the concept of the taxation of

fee patents.

Provided, That this act shall not apply where any

such lands have been sold for unpaid taxes assessed

after the date....

H.R. Rep. No. 2269, 71st Cong., 3d Sess. at 1-2 (1931)

(emphasis added), Amici App. 88a.

The balance of the Report confirms the same under-

standing in every conceivable manner:

{I]t has been held by the courts that the Indians have

a vested right in the tax-free status of their allot-

ments during the trust period fixed by law.

[T]hey did not want their patents in fee on the

ground that they would be unable to pay the tazes.

. . » [NJot pay the rapidly accruing taxes... .

[Llands through foreclosure or tax deed or disposed

of them by sale. . Placing a voluntary encum-

brance upon or disposing of land so patented must in

law be considered as an acceptance of the fee patent

and a waiver of the tax-exempt privileges of a trust

patent. Taxes, or even tax deeds can not be

said to be encumbrances of a character to prevent

cancellation... [A]s to the States examined pro-

vision is made for reimbursement to tax-certificate

holders, with interest, in all cases where taxes have

been canceled. . . . All purchasers at tax sale are

put upon notice as to any defect in making the tax

levy and are not innocent holders for value

[C]ases where the lands may have been sold for un-

paid taxes assessed after the date of the encumbrance.

H.R. Rep. No. 2269, 71st Cong., 3d Sess. at 2-3 (1931)

(emphasis added), Amici App. 88a.

On January 28, 1931, Congressman Williamson was

requested to explain the bill on the floor of the House of

Representatives because he had made a “special study”

of the matter:

Mr. Williamson: It will mean this: There are still

a few hundred tracts of land for which patents in

fee have been issued without the consent of the hold-

ers of the trust patents, and if this bill is passed it

will enable the Secretary of the Interior, upon the

application of these Indians, to cance] the patents in

fee to such of their lands as are unencumbered. This

will have the effect of restoring their trust-patent

status. In other words, this will mean that the lands

will no longer be subject to taxation or any other

kind of encumbrance, and the Indian will then be

able to hold the lands without paying taxes until the

25-year period of the trust patent has either expired

or the extension has expired. . . The point is these

forced fee simple patents were illegally issued. The

courts have so held, and the Indians have the un-

doubted right to have the lands involved restored as

trust property. The courts have also held that the

Indian has a vested right to the tax free status of

his land; that this is a right he is entitled to insist

upon

Mr. Williamson. These trust patents carried a clause,

which is a part of the law authorizing the trust

patent, providing that they shall remain in force for

a period of 25 years from the time they were issued.

So if these patents are restored they would become

effective from the date of the trust patent that was

superceded by a patent in fee; in other words, re-

stores them to the status they had before the fee

patent was issued. In some cases the 25-year period

has been extended either by law or by Executive

order. . [Bleen filed by an Indian whose land has

been restored to a trust patent status, the boards

have restored the taxes to the Indian. [Mly

understanding is, from the information we now have,

that there are only between 300 and 400 such tracts

of land in the United States. [They found their

lands had been patented and assessed and that taxes

had accumulated. . . . [T]o meet the tax levies and

to prevent their lands from being sold for tazes. . .

74 Cong. Rec. 3412-3413 (1931) (emphasis added),

Amici App. 74a-78a. At the conclusion of his remarks

the bill passed the House without further discussion. 74

Cong. Rec. 3413 (1931). The Senate adopted the ertire

House Report, noting that the facts were fully set forth

therein and, after a short explanation and reference to

the Report, passed the bill without further amendment

on February 17, 1931. 74 Cong. Rec. 5195 (1931).

On at least one more occasion Congress revisited the

issue in detail. Neither the 1927 Act nor the 1931 Act

provided for reimbursement of the taxes levied on the

fee patented lands during the trust periods in question.

In 1937, a bill was introduced to determine the status of

each patent but it was rejected because the cost was esti-

mated to exceed the amount involved. The next year, a

measure that would have provided relief in one state was

objected to for that reason. H.R. Rep. No. 669, 76th

Cong., Ist Sess. at 2 (1939), Amici App. 103a. Finally,

on January 3, 1939, a comprehensive bill was introduced.

84 Cong. Rec. 34 (1939).

In the most explicit materials to date, the exemption

granted by the 1887 General Allotment Act trust patent

was repeatedly tied to the trust period. The Secretary of

the Interior, Harold L. Ickes was first to suggest the com-

prehensive approach. In a letter to the Chairman of the

House Committee on Claims, the Secretary stated:

Patents in fee having been recorded covering lands

allotted to Indians the county authorities naturally

felt they were entitled to assess and collect taxes

thereon. Doubtless when requests were made for

reimbursement of such taxes after the patents in fee

were canceled and trust patents reinstated or re-

issued, the counties either did not have funds in their

treasuries available for such payment or the county

officials lacked legal authority to pay. Clearly the

local authorities were not at fault for taxing such

land while patents in fee were outstanding. ... Upon

cancellation of patents in fee, county officials have

been requested to remove the allotment from the

tax-assessment rolls, cancel any unpaid assessments,

tax sales or tax deeds, and refund any taxes paid.

[N]ot subject to taxation by State authorities durin

the years the invalid patents. . [R]ight to exemp-

tion from taxation was vested.... [L]ands had not

been sold for unpaid taxes assessed.

H.R. Rep. No. 669, 76th Cong., Ist Sess. at 7-8 (1939)

(emphasis added), Amici App. 10a.

He also suggested that the title be changed so as to

read:

—ͤ—ũ⁊ — — — — —

— — —

A bill for the relief of Indians who have paid taxes

on allotted lands for which patents in fee were issued

without application by or consent of the allottees and

subsequently canceled, and for other purposes.

H.R. Rep. No. 669, 76th Cong., Ist Sess. at 8 (1989)

(emphasis added), Amici App. 103a.

Later, in response to a request from the Chairman of

the House Committee on Indian Affairs for an Interior

report on an identical bill, the acting Secretary of the

Interior, E. K. Burlew, replied in nearly identical terms.

S. Rep. No. 1488, 76th Cong., 3d Sess. at 5-6 (1940),

Amici App. 122a. One month before the bill was re-

ported in the House of Representatives, Secretary Ickes

responded directly to the Chairman of the House Com-

mittee on Indian Affairs:

Clearly the local authorities were not at fault for

taxing these lands while such fee patents were out-

standing. . . . Taxes were levied by the various

counties against the lands of the Indians thus receiv-

ing these “forced” fee patents.

S. Rep. No. 1488, 76th Cong., 3d Sess. at 3 (1940) (em-

phasis added). All three reports were then appended to

the House Report from the Committee on Indian Affairs.

S. Rep. No. 1488, 76th Cong., 3d Sess. at 2-8 (1940),

Amici App. 122a.

The Committee Report itself contains a brief history

of the legislation and reflects the understanding clearly

set forth in the correspondence from the Department of

the Interior:

The levy and collection of taxes was a duty imposed

upon local units of government by statutory law and

the bonds of their officials. This was not their error.

The error was by the United States Government.

Lands so patented naturally were taxed until the

trust status was restored.... [T]he taxes logically

H.R. Rep. No. 669, 76th Cong., Ist Sess. at 1 (1939)

(emprasis added), Amici App. 108a. The Report fur-

ther noted that the Secretary concluded that an appro-

priation of seventy-five thousand dollars ($75,000.00)

would be sufficient to take Care of all cases, present and

future. H.R. Rep. No. 669, 76th Cong., Ist Sess. at 2

(1939).

Two weeks before the Report, Attorney General Frank

Murphy advised the chairman that this Court had just

granted a petition for a Writ of Certiorari in Board of

Comm’rs of Jackson County, Kansas v. United States,

100 F.2d 929 (1938), modified, 308 U.S. 343 (1989), to

resolve the question of interest in the same kind of cases

present in the bill under consideration. For this reason,

the Attorney General recommended that no action be

taken with respect to this legislation until the Supreme

Court heard and decided the Jackson County case.

H.R. Rep. No. 669, 76th Cong., Ist Sess. at 4 (1939). For

purposes here, it is not without significance that the cor-

respondence of Attorney General Murphy, which was

also appended to the House Report, reflects the same

understanding found throughout all of the Congressional

materials noted above:

Rleimburse Indian allottees and Indian heirs of

allottees for all taxes paid on so much of their al-

lotted lands as, having been patented in fee prior to

the expiration of the period of trust. [C]om-

pensate Indian allottees for taxes erroneously col-

lected from them and to relieve the political sub-

divisions of States of the burden of making restitu-

tion in such cases.

H.R. Rep. No. 669, 76th Cong., Ist Sess. at 4 (1939)

(emphasis added), Amici App. 10a.

As a result of the recommendation of Attorney Gen-

eral Murphy, it was not until the following year, 1940,

that the House considered the bill on the merits. 86

Cong. Rec. 1628 (1940). When presented, it passed with-

out amendment or debate. 86 Cong. Rec. 3007 (1940).

The Senate Committee on Indian Affairs deemed the

matter so fully explained in the House Report that it

simply adopted and appended the Report in its entirety.

S. Rep. No, 1488, 76th Cong., 3d Sess. (1940). Shortly

— ————— — —

thereafter, the full Senate passed the measure without

amendments or debate. 86 Cong. Rec. 6988 (1940).

Act of June 11, 1940 (5th Stat. 298.

II. The General Allotment Act Was Clearly Understood

to Authorize the Taxation of Fee Patent Land.

Immediately after the passage of the 1887 Act, the

Secretary of the Interior requested and received an opin-

ion from the Attorney General of the United States.

Among other things, this opinion clearly ties the tax ex-

emption to the twenty-five year trust period.

I am also of opinion that the allotment lands pro-

vided for in the act of 1887 are exempt from State

or Territorial taxation upon the ground above stated

with reference to the act of 1884, namely, that the

lands covered by the act are held by the United States

for the period of twenty-five years in trust for the

Indians, such trust being an agency for the exercise

of a Federal power, and therefore outside the province

of State or Territorial authority.

19 Op. Atty Gen. 161, 169 (1888) (emphasis added).

Later, opinions from the Department of the Interior re-

inforeed this accepted construction. 30 L. D. 258, 266-267

(1900), 50 L.D. 591 (1924), 538 L.D. 107 (1980), 53

L.D. 133 (1930). With specifie reference to the Yakima

Indian Reservation, in 1930 the Interior Solicitor char-

acterized the issue as follows:

The United States thus retained its hold on the lands

allotted for a period of 25 years after the allotment

and as much longer as the President in his discre-

tion might determine, and the clearly expressed in-

tent of Congress is that so long as the land remains

in that status it is beyond the power of the State to

tax the same for any purpose.

53 L.D. 107 (1930) (emphasis added).

More recent litigation related to this issue was resolved in

Nichols v. Rysavy, 809 F.2d 1317 (8th Cir. 1987), cert. denied, 484

U.S. 848 (1987).

This construction of the 1887 Act is repeatedly re-

fleeted in every related opinion of the Department of the

Interior thereafter until 1989. On April 21, 1989, the

1979 opinion that restated this position was simply re-

scinded. After citing several cases decided by this Court

in the 1970s, an Associate Solicitor of the Department of

the Interior reasoned that:

[Llanguage in some of those decisions suggests the

state is on weaker ground when it attempts to tax

Indian ownership of land.

Memorandum at 1, BIA. IA. 0943, April 21, 1989. (This

Court briefly reviewed some of these same decisions in

Duro v. Reina, 110 S.Ct. 2053 (1990). In eontrast to

the broad characterization of the Associate Solicitor,

Duro particularly described the exemption noted there

as extending to only “certain taxes on transactions of

tribal members. . .” Duro, 110 S.Ct. at 2606.) On bal-

ance, the prior Interior opinions are entitled to more

weight than the 1989 Memorandum. See, e.g., Duro, 120

S.Ct. at 2063. Other historical sources confirm this

position,

The annual reports of the Secretary of the Interior,

the Commissioner of Indian Affairs, and the Board of In-

dian Commissioners, compiled and communicated to Con-

gress each year, are replete with evidence of the histor-

ical understanding that this tax exemption was intended

and understood to correspond with the trust period. Rep-

resentative excerpts from these reports are set forth in

more detail in Amici App. 123a-179a. From the beginning,

the Secretary of the Interior quoted the Commissioner of

Indian Affairs’ conclusion in support of this position :

Even in the cases where, by taking their lands in

severalty, they are in process of becoming citizens,

they are still in a state of quasi-independence, be-

cause the General Government withholds from them

for tweny-five years the power of alienating their

lands, while by exempting them from taxation for

same period.

Report of the Secretary of the Interior, H.R. Exec. Doc.

No, 1, 52nd Cong., 2nd Sess. at 88 (1891) (emphasis

added), Amici App. 131a.

And the Commissioner of Indian Affairs expressed the

same principle in more than one way:

Under a principle of law recognized by the courts,

real property held in trust by the Federal Govern-

ment is not taxable by the State.

At the same time, with the exception that their lands

received under allotment laws will be exempt from

taxation for a period of twenty-five years, and pos-

sibly longer, they will be subject to the burdens borne

by other citizens, and must manage their own af-

fairs. ... Annual Report of the Commissioner of

Indian Affairs at 13, 56 (1927) (emphasis added),

Amici App. 172a.

it also confers authority on the Secretary of the

Interior, in his discretion, to terminate the trust

period by issuing a patent in fee simple whenever he

shall be satisfied that any Indian allottee is competent

and capable of managing his or her affairs. Re-

port of the Commissioner of Indian Affairs, H.R.

Doc. No. 5, 59th Cong., 2nd Sess. at 49 (1906) (em-

phasis added), Amici App. 154a.

The Board of Indian Commissioners was authorized by

statute in 1869 and organized by an Executive Order of

President Grant that same year. In its annual reports

to the Secretary of the Interior, the Board made detailed

recommendations on the broad Indian policy questions of

the day. Because one-half of the members of the 1887

Board continued to serve for the next two decades, it

was an informed and influential institution. Year after

year the annua! reports confirm the essential principles

set forth above. Any one of several examples make the

point :

The lands allotted to the Indians are exempt from

taxation for a period of twenty-five years.... An-

nual Report of the Board of Indian Commissioners

at 8 (1887) (emphasis added), Amici App. 126a.

The reception of an allotment of land to which the

title is by law protected from alienation or taxation

for twenty-five ears. Annual Report of the

Board of Indian Commissioners at 7 (1902) (em-

phasis added), Amici App. 149a.

We have understood that it was largely the wish on

the part of the present Commissioner of Indian

Affairs to protect allottee Indians against the evils

which follow the sale and the use of intoxicants,

which led him to advocate the amendment to the

general severalty act known as the Burke law, by

which Indians allotted after May 8, 1906, do not

become citizens by virtue of allotment until after

the expiration of twenty-five years, the period cov-

ered by the protected title to their lands—the trust

deed from the United States which keeps Indian al-

lotments inalienable and untaxed for that length of

time.. . Annual Report of the Board of Indian

Commissioners at 7-8 (1906) emphasis added),

Amici App. 155a.

(T]he wise statesmanship of Senator Dawes and

others who framed and carried into effect the Dawes

Act of February, 1887, proposed to train Indians for

citizenship by intrusting them at once, on allotment,

with the duties and the conscious responsibilities of

active, local citizenship, and with the manhood—stim-

ulating right of suffrage, while the homestead was

made inalienable and was freed from taxation by the

United States trust deed for twenty-five years. .

Annual Report of the Board of Indian Commissioners

at 8 (1906) (emphasis added), Amici App. 155a.

In addition to the annual reports, guest speakers such

as the Commissioners of Indian Affairs and Senator

Dawes were invited each fall to address the Board at its

Lake Mohonk Conference. The proceedings were tran-

scribed and appended to the annual report, and constitute

yet another source that reflects this same understanding.

For example, in 1893 Senator Dawes referred to “Tall-

lotted Indians, not a foot of whose land can be taxed for

twenty-five years” .... Proceedings of the Board of In

dian Commissioners at 11th Lake Mohonk Indian Confer-

ence as reported in the Annual Report of the Board of

Indian Commissioners at 61 (1893) (emphasis added). In

1895, Commissioner of Indian Affairs Browning similarly

stated [when the lands are allotted to the Indians and

they become citizens, under the law the lands are not

taxable for twenty-five years”... . Proceedings of the

Board of Indian Commissioners at 5th Lake Mohonk In-

dian conference as reported in the Annual Report of the

Board of Indian Commissioners at 37 (1895) ( emphasis

added). Early texts by other authorities support this

same construction.

For example, F.E. Leupp, the Commissioner of Indian

Affairs at the time of the 1906 Burke Act also viewed

the restrictions on taxation as tied to the trust status of

the land. In his 1910 text, Commissioner Leupp sum-

marized the administration of the General Allotment Act

from his perspective and discussed the taxation issue in

the context of fee lands. Leupp, The Indian And His

Problem, 34, 47, 64, 75 (1910). (Also, see Amici App.

46a, 50a, where the recommendations of Commissioner

Leupp are contained in the House and Senate Reports on

the Burke Act. )

James McLaughlin worked for fifty-two years, 1871-

1923, in the Indian service. As an inspector in the De-

partment of the Interior, he had more experience in deal-

ing with the General Allotment Act than any other in-

dividual of his time. In 1910, he summarized this experi-

ence in the following words:

In the process of civilization, they had arrived at a

stage of their progress when, as part of the usual

policy, they were given their lands in severalty. To

each individual was allotted one hundred and sixty

acres of land, the title to which was to be held in

trust by the government for twenty-five years and

then patented in fee to the allottee. The allotted

lands were to be free of taxes during the trust period.

McLaughlin, My Friend the Indian, 106 (1910) (empha-

sis added). See Pfaller, James McLaughlin, The Man

With the Indian Heart, xi, 331-332 (1978).

Later, the Institute for Government Research pub-

lished a series of authoritative monographs giving a de-

tailed description of each of the more distinct services of

the government. In 1927, Laurence F. Schmeckebier’s

The Office of Indian Affairs, Its History, Activities and

Organization, the most extensive text on the subject to

that date, reflects this same understanding. [The sev-

eral states are not allowed to tax Indian property held

by the United States in trust. [T]ribal and allot-

ments held in trust are exempt from state and local

taxation... Schmeckebier, supra, at 9, 11 (1927) (em-

phasis added).

A year later, the Institute responded to a special re-

quest of the Secretary of the Interior with the publica-

tion of The Problem of Indian Administration, commonly

called the Meriam Report after it’s principal author.

More will be said about this Report by others, but it is

important to remember here that the explanation on tax-

ation confirms again the opinions on this subject set

forth above.

When an Indian is declared competent to manage his

own property and is given a fee deed to it, his prop-

erty becomes subject to state and local taxation. . . .

Under the allotment act the incompetent Indian hold-

ing a trust patent is generally exempt from taxation.

On the day he is declared competent and is given his

fee patent, he straightway becomes subject to the full

burden of state and local taxation... . The Problem

of Indian Administration, at 95, 477 (1928) (em-

phasis added).

Shortly thereafter, Dr. D.S. Otis was actually em-

ployed by the Bureau of Indian Affairs to write an en-

tire book on the “History of the Allotment Policy”.

Through the efforts of the Commissioner of Indian Af-

fairs, John Collier, Otis’ monograph was inserted in its

entirety in the hearing records of the Indian Reorganiza-

tion Act of 1934 (Readjustments of Indian Affairs).

Once again, in the most comprehensive and fact specific

text to date, described by the editor of the 1973 edi-

tion, Francis Paul Prucha, as “a careful study of the

carrying out of allotment in the years following the enact-

ment of the law”, the conclusion is the same:

The Dawes Act, providing for the twenty-five-year

Federal trust period during which time the land

might not be encumbered, meant, it was clear, that

no State could tax the allottee’s holdings. . . . Otis,

The Dawes Act and the Allotment of Indian Lands,

at 105 Prucha edition (1973) (originally entitled

History of the Allotment Policy) (emphasis added).

Citations to other scholarly works that have continued

to confirm this understanding up to the present time

could fill a small book. One recent thesis, by the same

author cited by this Court in Solem v. Bartlett, 465 U.S.

463, at 480, n.25 (1984), F. Hoxie, entitled Beyond

Savagery, The Campaign to Assimilate the American

Indians, 1880-1920 states:

For the remainder of his term, federal funds were

used only for “restricted” non-tax-paying Indians.

Patented tribesmen—who presumably paid property

taxes—were usually expected to attend the public

schools.

This was the doctrine of guardianship. As it evolved

between 1890 and 1920, the concept of federal con-

trol over individual Indians was used to protect land

titles, to continue tax exemptions on trust land... .

The severalty law granted all allottees citizenship,

but stipulated that their homesteads would be held

under a trust title that prevented the sale of their

land and exempted them from taxation. ... F. Hoxie,

supra, at 554, 566, 568 (emphasis added}.

However, the most recent example undoubtedly is the

1991 article by a Bureau of Indian Affairs historian,

from Washington, D.C. Michael L. Lawson. In this fea-

ture article, the author recounts:

[T]he General Allotment Act provided that title to

these allotments would be held in trust by the United

States for at least twenty-five years during which

time the land could not be sold, leased, taxed, mort-

gaged, devised by will, or otherwise encumbered

without the consent of the federal government. It

was hoped that by the end of this probationary

period, the individual allottee, who would then be

eligible to receive the usual fee simple title to the

land, would have learned how to make productive

use of the acreage, to know its market value, and

to be ready to assume full responsibility for it, in-

cluding the payment of the taxes. . .

If this was found not to be the case, the law gave

the President discretionary power to extend the trust

period. . S. D. State History Soc’y Quarterly,

No. 1 at 4 (1991) .°

III. The General Allotment Act Has Been Consistently

Construed to Clearly Authorize the Taxation of Fee

Patent Land.

Although this Court generally discussed the General

Allotment Act in Draper v. United States, 140 U.S. 240

(1891), it was not until 1903 that a tax related issue

reached this Court in United States v. Rickert, 188 U.S.

432 (1903). There, the United States correctly headed

its argument with the proposition that “the lands of the

Indian allottees are not taxable under the authority of

the State during the trust period” and concluded that im-

provements were similarly “exempt from taxation during

the trust period that the land is so exempt, such improve-

ments being in legal contemplation land”. Brief for the

United States at 15, 42, Rickert, supra (emphasis added).

The Rickert opinion reflects this representation:

no power in the State of South Dakota, for state or

municipal purposes, to assess and tax the lands in

question until at least the fee was conveyed to the

Indians. While the title to the land remained in

the United States, the permanent improvements,

could no more be sold for local taxes than could the

land to which they belonged.

Rickert, 188 U.S. at 437, 442 (emphasis added).

A few years later, in Goudy v. Meath, 203 U.S. 146,

(1906), a related issue was generally discussed and de-

2 See Prucha, The Great Father (1984).

cisively resolved. The Goudy argument, addressed in de-

tail by others, need not be repeated here.

In United States v. Nice, 241 U.S. 591 (1916), a case

involving a federal prosecution for the sale of liquor to

a tribal member with a 1902 trust patent, the United

States only indirectly touched on this aspect of General

Allotment Act and the status of the individual:

[Clongress by this very act of 1887 expressly re-

tained control over the allottee Indian’s land by re-

strictions of alienation and trusteeship. ... The

State, having no power to tax these Indian [trust]

allotments, had no particular interest in the Indian’s

welfare. ... [I]t was well established that State

laws relating to taxation of his [trust] property did

not apply. ...

Brief of the United States at 26, 21, 12, Nice, supra

(emphasis added).

The Court in Nice referred to this aspect of the Gen-

eral Allotment Act when it described the holding in

Rickert, supra,

The act of 1887 came under consideration in United

States v. Rickert, 188 U.S. 432, a case involving the

power of the State of South Dakota to tax allottees

under that act, according to the laws of the State,

upon their allotments, the permanent improvements

thereon and the horses, cattle and other personal

property issued to them by the United States and

used on their [trust] allotments, and this court, after

reviewing the provisions of the act and saying, p. 437,

“These Indians are yet wards of the Nation, in a

condition of pupilage or dependency, and have not

been discharged from that condition”, held that the

State was without power to tax the [trust] lands and

other property, because the same were being held and

used in carrying out a policy of the Government.

Nice, supra (emphasis added).

Two years later, the United States was more succinct

when it argued another tax exemption issue in United

States v. McCurdy, 246 U.S. 268 (1918).

Partial emancipation from the Federal guardianship,

accompanied by restricted ownership of land for a

limited period, as a method of educating and pre-

paring the Indians for the duties of civilized life, was

adopted by Congress at an early date and has become

a settled national policy. . . . In United States v.

Rickert, 188 U.S. 432, it was decided that trust allot-

ments and personal property issued to Indian allot-

tees could not be taxed by a State because this would

be “to tax an instrumentality employed by the United

States for the benefit and control of this dependent

race .

Brief for the United States at 9, 11, 12, McCurdy, supra,

(emphasis added).

In McCurdy, the United States argued that land pur-

chased with trust funds for an Osage Indian, as evidenced

by a restrictive deed, should not be taxable by the State

of Oklahoma. The McCurdy Opinion rejected the tax ex-

emption argument of the United States in no uncertain

terms. At the same time, the Court clearly restated the

basis of Rickert, supra:

There is also a clear distinction between the present

case and those like United States v. Rickert, 188 U.S.

432, 23 Sup.Ct. 478, 47 L. Ed. 532, where it was

sought to tax property, the legal title of which was

in the United States and which was held by it for

the benefit of Indians.

Brief for the United States at 266, McCurdy, supra (em-

phasis added). Nothing in United States v. Nice, supra,

was argued or cited by the United States and Nice did

not figure in the Opinion of the Court in United States

v. McCurdy, supra, and correctly so.

A case more directly on point reached this Court in

1939. In Board of Comm’rs of Jackson County, Kansas

v. United States, 308 U.S. 343 (1939), the United States

equated a General Allotment Act trust patent with the

exemption from taxation:

The trust patents issued in fulfillment of that treaty

and pursuant to the General Allotment Act of 1887

——

24 Stat. 388 (sec. 5), as amended by Act of May 8,

1906, c. 2348, 34 Stat. 182] bound by the United

States to convey the land “free of all charge or in-

cumbrance whatever” at the end of the trust period.

Such [trust] patents have uniformly been construed

to grant to the Indians a broad exemption from all

forms of taxation effecting the land.

Brief for the United States at 6-7, Board of Comm’rs of

Jackson County, Kansas, supra (emphasis added).

Although Board of Comm'rs of Jackson County, Kansas

only involved the question of whether interest should be

awarded when taxes were erroneously assessed, the opin-

ion mentions the General Allotment Act and reflects the

understanding of that time:

The land which gave rise to this controversy, situated

in Jackson County, Kansas, was [trust] patented

under the General Allotment Act of February 8,

1887, 24 Stat. 388, 25 U.S.C. § 348. In pursuance of

this Act, the United States agreed to hold the land

for twenty-five years under the restrictions of the

1861 Treaty, subject to extension at the President’s

discretion. . ..

In this legislative setting, the Secretary of the In-

terior in 1918, over the objection of M-Ko-Quah-Wah,

cancelled her outstanding trust patent and in its

place issued a fee simple patent. This was duly re

corded in the Registry of Deeds for Jackson County.

In consequence Jackson County in 1919 began to sub-

ject the land to its regular property taxes. It con-

tinued to do so as long as this fee simple patent

was left undisturbed by the United States. . . . Jackson

County in all innocence acted in reliance on a fee pat-

ent given under the hand of the President of the United

States. Here is a long, unexcused delay in the

assertion of a right for which Jackson County should

not be penalized. By virtue of the most authoritative

semblance of legitimacy under national law, the land

of M-Ko-Quah-Wah and the lands of other Indians

had become part of the economy of Jackson County.

For eight years after Congress had directed attention

to the problem, those specially entrusted with the

intricacies of Indian law did not call Jackson

County’s action into question. Whatever may be her

unfortunate duty to restore the taxes which she had

every practical justification for collecting at the time,

no claim of fairness calls upon her also to pay inter-

est for the use of the money which she could not have

known was not properly hers.

Board of Comm’rs, supra at 348-349, 352-353 (emphasis

added).

In 1943, in a most instructive case that involved a

special modification of the twenty-five year trust limita-

tion of the General Allotment Act, the United States re-

counted to this Court that the General Allotment Act

“has been uniformly construed as conferring upon the

Indians a vested 25-year tax exemption. .. .” and the

United States conceded that subsequent to that period,

the land was legally taxable. Brief for the United States,

at 17, 43, Mahnomen County v. United States, 319 U.S.

474 (1943) (emphasis added). The Mahnomen decision

reflects this important concession in no uncertain terms:

It is conceded that any limitation on the County’s

power to tax expired in 1928 with the termination

of the twenty-five year trust described below.

Mahnomen, 319 U.S. at 475 (emphasis added).

In 1952, the United States in Bailess v. Paukune, 344

U.S. 171 (1952), generally described two instances where

it deemed taxation to be “forbidden by the General Allot-

ment Act”.

whether under trust patents or under fee patents

with restrictions upon alienation. . . .

Brief for the United States at 2, Bailess v. Paukune,

supra (emphasis added).

Bailess involved the taxation of land of an allegedly

Indian widow, who in due course was to receive a “fee

Most of the important early cases of this Court are discussed in

detail in the Brief for the United States, Mahnomen, supra. Also,

see Nichols v. Rysavy, 809 F.2d 1317 (8th Cir. 1987), cert. denied,

484 U.S. 848 (1987), and County of Thurston v. Andrus, 586 F.2d

1212 (8th Cir. 1978), cert. denied, 441 U.S. 952 (1979).

— ett ——

patent“ for the interest she inherited from her husband

in a trust allotment. The Court concluded her interest

was taxable if she was a non-Indian and in the process

noted:

This allotment was made under the General Allot-

ment Act of February 8, 1887, 24 Stat. 388, 389.

No fee patent to the land has issued to Paukune, to

his widow, or to the son. The trust period of twenty-

five 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. .. .

Bailess v. Paukune, 344 U.S. at 171-172 (emphasis

added).

In 1956, in an income tax case that involved the Gen-

eral Allotment Act, as amended by the Burke Act of

1906, supra, the United States succinctly stated that:

this provision was undoubtedly intended to make it

clear that Indian lands transferred in fee to the In-

dians would thereafter be subject to state and local

taxation

Brief for the Petitioner, note 4 at 13, Sguire v. Capoeman,

351 U.S. 1. 13, n.4 (1956) (emphasis added). The opin-

ion of the Court accepted the basic premise of the argu-

ment:

The Government argues that this amendment was

directed solely at permitting state and local taxation

after a transfer in fee, but there is no indication in

the legislative history of the amendment that it was

to be so limited... The literal language of the pro-

viso evinces a congressional intent to subject an In-

dian allotment to all taxes only after a patent in fee

is issued to the allottee.

Squire, 351 U.S. at 7-8 (emphasis added).

In 1973, in United States v. Mason, 412 U.S. 391

(1973), the United States noted that the Court in Squire:

relied on language in an amendment to the General

Allotment Act providing for taxation of the land

after the allottee receives a patent in fee... [and]

held that an amendment to the General Allotment

Act created a tax exemption by implication, and that

it required the return of the trust property without

encumbrances at the end of the trust period.

and provided for taxation after the termination of

the trust.

Brief for the United States, at 9-10, 17, Mason, supra

(emphasis added). The Court in Mason agreed:

Moreover, the Squire decision rested heavily on the

provision in the General Allotment Act providing for

the removal of ‘all restrictions as to sale, encum-

brance, or taxation’ when Indian property is granted

in fee

Mason, 412 U.S. at 396 (emphasis added). Even Mr.

Hobbs, arguing for the tribal respondents in oral argu-

ment, stated:

The next thing that happens is that in 1906 Congress

amends the General Allotment Act, and it says that

for the first time adds the idea that the trust period

can end sooner than the 25 years intended if the In-

dian becomes competent sooner than that time. And

it says that after he reaches the point of competency,

the trust will end and he gets his land, and all re-

strictions as to alienation and taxation are lifted.

This implies that Congress thought that the land

was free of tax up to that point and well so. Over

sixty years ago this Supreme Court, in 1903, had

held that a restriction on alienation added up to a

tax exemption. So, Congress assumed on very good

authority in 1906 that the restriction on alienation

was the equivalent of a tax exemption.

Tr. of Oral Argument, at 38, United States v. Mason,

412 U.S. 391 (1978) (emphasis added).

Most recently, in United States v. Mitchell, 445 US.

535 (1980), the United States reviewed the entire his-

tory of the General Allotment Act. Again, the United

States told this Court the exemption to state taxation

coincided with the trust period:

The General Allotment Act . . . for the limited pur-

poses of (a) restraining improvident alienation of the

—— Kes ao heme ee ee ne

land by the allottees and (b) affording an immunity

from state taxation for the period during which the

legal title remained in the United States.

Brief for the United States at 24, Mitchell, supra (em-

phasis added). In oral argument, Mr. Claiborne, arguing

for the United States, said the same thing:

That statute contemplated a scheme whereby the

land of the reservation would be divided among the

Indians within 25 years, and in the meantime, the

United States was simply to hold title in trust solely

for the purpose of preventing state taxation, it being

legal title in the United States and therefore exempt

from state taxation.

Tr. of Oral Argument, at 14, United States v. Mitchell,

445 U.S. 535 (1980) (emphasis added). This Court

agreed :

[Wihen Congress enacted the General Allotment Act.

it intended . . . to prevent alienation of the land and

to ensure that allottees would be immune from state

taxation.

Mitchell, 445 U.S. at 544. At the end of this conclusion,

the Court quoted at length and added emphasis to the

remarks of Representative Skinner, the sponsor in the

House of Representatives: “. land is made inalienable

and non-taxable for a sufficient length of tim.

Mitchell, 445 U.S. at 544, n.5 (emphasis as in original

except for a sufficient length of time). In dissenting,

Justice White described the holding of the Court in the

same terms:

The Court holds, however, that the ‘trust’ established

by § 5 is not a trust as that term is commonly under-

stood, and that Congress had no intention of impos-

ing full fiduciary obligations on the United States.

Congress’ purposes, it is said, were narrower: to

impose a restraint on alienation by Indian allottees

while ensuring immunity from state taxation during

the period of the restraint.

Mitchell, 445 U.S. at 546, 547 (White, J., dissenting )

(emphasis added). It is significant that the arguments

the United States submitted in Mitchell were presented

subsequent to the decisions of this Court that the United

States now advances to undermine the same position.

In addition, in many cases, this Court has addressed

in detail the arguments, principles and rules of construc-

tion that govern this case. See, ¢.g., Mescalero Apache

Tribe v. Jones, 411 U.S. 145 (1973) and California v.

Cabazon Band of Mission Indians, 480 U.S. 202, 215 n.17

(1987). The Congressional documents set forth above

more than satisfy the standards of clarity required here

to sanction the taxation of Indian fee lands. It is too late

in the day to give serious credence to an unsubstantiated

argument that this understanding and established prac-

tice has been somehow repealed by implication—especially

without anyone having even mentioned the fact until now.

CONCLUSION

The judgment of the Court of Appeals should be af-

firmed, except as to real estate excise taxes and the

Brendale remand.

Respectfully submitted,

SUSAN W. PAHLKE Tom D. TosBIn *

Todd County Deputy TOBIN LAW OFFICEs, P.C.

States Attorney 422 Main Street

P.O. Box 482 Winner, South Dakota 57580

Winner, South Dakota 57580 (605) 842-2500

(605) 842-2551 * Counsel of Record

July 1, 1991

* Even so, in the special area of state taxation, absent cession of

jurisdiction or other federal statutes permitting it, there has

been no satisfactory authority for taxing Indian reservation

lands or Indian income from activities carried on within the

boundaries of the reservation, and McClanahan v. Arizona State

Tax Comm'n, supra, lays to rest any doubt in this respect by

holding that such taxation is not permissible absent congres-

sional consent.

Mescalero Apache Tribe, 411 U.S. at 148 (emphasis added),

APPENDIX

TABLE OF CONTENTS

Excerpts from the legislative history of the General

Allotment Act, ch. 119, 24 Stat. 388 (1887)

Excerpts from the legislative history of S. 2068, 52nd

Cong., Ist Sess. (1892)

The Burke Act, ch. 2348, 34 Stat. 182 (1906)

Force Fee Patent Related Legislation

Act of Feb. 26, 1927, ch. 215, 44 Stat. 1247

Act of Feb. 21, 1931, ch. 271, 46 Stat. 1205

Act of June 11, 1940, ch. 315, 54 Stat. 298

Annual Reports of the Secretary of the Interior, the

Commissioner of Indian Affairs, and the Board of

Indian Commissioners for the years 1887-1931

Report of the Secretary of the Interior, H.R. Exec. Doc.

No. 1, 50th Cong., 1st Sess. (1887)

Report of the Commissioner of Indian Affairs to the

Secretary of the Interior, H.R. Exec. Doc. No. 1,

50th Cong., Ist Sess. (1887)

Annual Report of the Board of Indian Commissioners

Report of the Secretary of the Interior, H.R. Exec. Doc.

No. 1, 50th Cong., 2nd Sess. (1888)

Report of the Commissioner of Indian Affairs to the

Secretary of the Interior, H.R. Exec. Doc. No. 1, 50th

Report of the Secretary of the Interior, H.R. Exec. Doc.

No. 1, 51st Cong., Ist Sess. (1889)

Report of the Commissioner of Indian Affairs to the

Secretary of the Interior, H.R. Exec. Doc. No. 1, 51st

Cong., Ist Sess. (1889)

Annual Report of the Board of Indian Commissioners

Report of the Secretary of the Interior, H.R. Exec. Doc.

No. 1, 51st Cong., 2nd Sess, (1890)

Page

TABLE OF CONTENTS—Continued

Report of the Commissioner of Indian Affairs to the

Secretary of the Interior, H.R. Exec. Doc. No. 1, 51st

, ee

Annual Report of the Board of Indian Commissioners

%%% ͤ ——A—ͤͤ ˙-;.. ̃ U ———.

Report of the Secretary of the Interior, H.R. Exec. Doc.

No. 1, 52nd Cong., Ist Sess. (189177)

Report of the Commissioner of Indian Affairs to the

Secretary of the Interior, H.R. Exec. Doc. 1, 52nd

ics ..

Annual Report of the Board of Indian Commissioners

/ — TTT

Report of the Secretary of the Interior, H.R. Exec. Doc.

No. 1, 52nd Cong., 2nd Sess. (1892

Report of the Commissioner of Indian Affairs to the

Secretary of the Interior, H.R. Exec. Doc. No. 1, 52nd

e leasesctwnsusocsoneocs

Annual Report of the Board of Indian Commissioners

Report of the Secretary of the Interior, H.R. Exec. Doc.

No. 1, 53rd Cong., 2nd Sess. (1893)ÿ))))))

Report of the Commissioner of Indian Affairs to the

Secretary of the Interior, H.R. Exec. Doc. No. 1, 53rd

r ee ec ee

Annual Report of the Board of Indian Commissioners

ene

Report of the Secretary of the Interior, H.R. Exec. Doc.

No. 1, 53rd Cong., 3rd Sess. (1894) 0...

Report of the Commissioner of Indian Affairs to the

Secretary of the Interior, H.R. Exec. Doc. No. 1, 53rd

e eee 1

Annual Report of the Board of Indian Commissioners

11 ̃ ̃ ↄ— ͤ ͤ— —

Report of the Secretary of the Interior, H.R. Doc. No.

5, 54th Cong., Ist Sess. (1895055

Page

130a

131a

133a

134a

135a

136a

iii

TABLE OF CONTENTS—Continued

Report of the Commissioner of Indian Affairs to the

Secretary of the Interior, H.R. Doc. No. 5, 54th

es I EE essensncilionasignennnicneee

Annual Report of the Board of Indian Commissioners

e 5 a ee a em

Report of the Secretary of the Interior, H.R. Doc. No.

5, 54th Cong., 2nd Sess. (1899)

Report of the Commissioner of Indian Affairs to the

Secretary of the Interior, H.R. Doc. No. 5, 54th Cong.,

e 2

Report of the Secretary of the Interior, H.R. Doc. No.

5, 55th Cong., 2nd Sess. (1897) n

Report of the Commissioner of Indian Affairs to the

Secretary of the Interior, H.R. Doc. No. 5, 55th Cong.,

D coasaaenicbibeninnineinmacseses

Report of the Secretary of the Interior, H.R. Doc. No.

5, 55th Cong., 3rd Sess. (1898)))))))) ::

Report of the Commissioner of Indian Affairs to the

Secretary of the Interior, H.R. Doc. No. 5, 55th Cong.,

r ũÜ ES Oar on

Report of the Secretary of the Interior, H.R. Doc. No.

5, 56th Cong., Ist Sess. (189 9))))99)97):j:-

Annual Report of the Board of Indian Commissioners

D cuahdoionanisniaie

Report of the Secretary of the Interior, H.R. Doc. No. 5,

56th Cong., 2nd Sess. (1900)

Report of the Commissioner of Indian Affairs to the

Secretary of the Interior, H.R. Doc. No. 5, 56th Cong.,

r ̃ũ mm AER

Annual Report of the Board of Indian Commissioners

a A a 8 EERE SC a ene ann ec ERECT Im

Report of the Secretary of the Interior, H.R. Doc. No. 5,

57th Cong., Ist Sess. (190) 1

Report of the Commissioner of Indian Affairs to the

Secretary of the Interior, H.R. Doc. No. 5, 57th Cong. ,

ee A ARS ̃— U BT he SE

Page

142a

140a

142a

143a

TABLE OF CONTENTS—Continued

Annual Report of the Board of Indian Commissioners

6 V

Report of the Secretary of the Interior, H.R. Doc. No. 5,

57th Cong., 2nd Sess. (19020))))))))))j:ꝛ:

Report of the Commissioner of Indian Affairs to the

Secretary of the Interior, H.R. Doc. No. 5, 57th Cong.,

Annual Report of the Board of Indian Commissioners

Report of the Secretary of the Interior, H.R. Doc. No. 5,

58th Cong., 2nd Sess. (1903)))))))))

Report of the Commissioner of Indian Affairs to the

Secretary of the Interior, H.R. Doc. No. 5, 58th Cong.,

e...

Annual Report of the Board of Indian Commissioners

— „F r

Report of the Secretary of the Interior, H.R. Doc. No. 5,

68th Cong., rd Seas. (1906)

Report of the Commissioner of Indian Affairs to the

Secretary of the Interior, H.R. Doc. No. 5, 58th Cong.,

L a ein

Annual Report of the Board of Indian Commissioners

Report of the Secretary of the Interior, H.R. Doc. No. 5,

59th Cong., Ist Sess. (1905) eee

Report of the Commissioner of Indian Affairs to the

Secretary of the Interior, H.R. Doc. No. 5, 59th Cong.,

ö ee

Annual Report of the Board of Indian Commissioners

/ A

Report of the Secretary of the Interior, H.R. Doc. No. 5,

59th Cong., 2nd Sess. (1906)))))))) ccececeeceeeee

Report of the Commissioner of Indian Affairs to the

Secretary of the Interior, H.R. Doc. No. 5, 59th Cong.,

Page

147a

148a

149

150a

153a

154a

——

TABLE OF CONTENTS — Continued

Annual Report of the Board of Indian Commissioners

r “.....

ELLE

Annual Report of the Commissioner of Indian Affairs to

the Secretary of the Interior (1907)

Annual Report of the Secretary of the Interior Vol. 1

e ͤ ...

Annual Report of the Commissioner of Indian Affairs

to the Secretary of the Interior (190)

Annual Report of the Board of Indian Commissioners

EE ...

Annual Report of the Commissioner of Indian Affairs

to the Secretary of the Interior (1909979

Annual Report of the Board of Indian Commissioners

EE ESS TT

Annual — of the Secretary of the Interior Vol. 1

(1910) *

Annual 8 of the Ne. of the Interior Vol. 1

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Annual Report of the Commissioner of Indian Affairs

to the Secretary of the Interior (1911

Annual Report of the Secretary of the Interior Vol. 1

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Annual Report of the Commissioner of Indian Affairs

to the Secretary of the Interior (1917

Annual Report of the Board of indian Commissioners

EE éèÄ Ä.

r SSL

Annual Report of the Commissioner of Indian Affairs

to the Secretary of the Interior (1913)

Page

155a

TABLE OF CONTENTS—Continued

Annual Report of the Secretary of the Interior Vol. 1

re ee ee ee

Annual Report of the Commissioner of Indian Affairs

to the Secretary of the Interior (191):

Annual Report of the Board of Indian Commissioners

KKK ee EE Nee

COCOA TRA LA LENE,

Annual Report of the Commissioner of Indian Affairs

to the Secretary of the Interior (1919

Annual Report of the Secretary of the Interior Vol. 1

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Annual Report of the Commissioner of Indian Affairs

to the Secretary of the Interior (1916)

Annual Report of the Secretary of the Interior Vol. 1

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Annual Report of the Commissioner of Indian Affairs

to the Secretary of the Interior (19177 a

Annual Report of the 1 of the Interior Vol. 1

. 0c

Annual Report of the Commissioner of Indian Affairs

to the Secretary of the Interior (1919

Annual Report of the Secretary of the Interior Vol. 1

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Annual Report of the Commissioner of Indian Affairs

to the Secretary of the Interior (19199

Annual Report of the Secretary of the Interior Vol. 1

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Annual Report of the Commissioner of Indian Affairs

to the Secretary of the Interior (1920)...

Annual Report of the Secretary of the Interior Vol. 1

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Annual Report of the Commissioner of Indian Affairs

to the Secretary of the Interior (1921)...

Page

162a

163a

164a

165a

166a

167a

168a

vii

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Annual Report of the Board of Indian Commissioners

EE r

Annual Report of the Commissioner of Indian Affairs

to the Secretary of the Interior (19227222

Annual Report of the Board of Indian Commissioners

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to the Secretary of the Interior (1923))))))

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to the Secretary of the Interior (192)

Annual Report of the Secretary of the Interior Vol. 1

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to the Secretary of the Interior (1925 N

Annual Report of the Secretary of the Interior Vol. 1

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Annual Report of the Commissioner of Indian Affairs

to the Secretary of the Interior (1926)

Annual Report of the Secretary of the Interior Vol. 1

Annual Report of the Commissioner of Indian Affairs

to the Secretary of the Interior (1927)

Annual Report of the Board of Indian Commissioners

— . ee

n nnn

Annual Report of the Commissioner of Indian Affairs

to the Secretary of the Interior (192)

viii

TABLE OF CONTENTS—Continued

Annual Report of the Secretary of the Interior Vol. 1

11. ˙·¹mAA¹˙¹⁰¹.. ü —ᷣ Ü — * ¼ seinen

Annual Report of the Commissioner of Indian Affairs

to the Secretary of the Interior (1929999

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to the Secretary of the Interior (1030)00

Annual Report of the Secretary of the Interior Vol. 1

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Annual Report of the Commissioner of Indian Affairs

to the Secretary of the Interior (1931)

—— ee —

APPENDIX

INDEX TO LEGISLATIVE HISTORY OF THE

GENERAL ALLOTMENT ACT

The General Allotment Act or Dawes Act can be traced

back to 1880 when similar bills were debated in the Sen-

ate beginning with S. 1773, 48th Cong., 2nd Sess. (1880).

That bill was reported in the Senate at 10 Cong. Rec.

3507. Then in the 48th Cong., 3d Sess. (1881), S. 1773

was considered and amended. See 11 Cong. Rec. 761, 778-

788, 873-882, 904-913, 933-943, 994-1003, 1026-1038,

1060-1070, 1211, 1096, and 1253.

In 1882, a similar bill, S. 1445, 47th Cong., Ist Sess.

(1882), was introduced in the Senate as a replacement

for Senate bills 19 and 931. See 13 Cong. Rec. 1824. That

bill was amended and passed the Senate. See 13 Cong.

Rec. 3212.

S. 48, 48th Cong., Ist Sess. (1883) was introduced next

and referred to the Senate Committee on Indian Affairs.

See 15 Cong. Rec. 13. It was reported back with amend-

ments in 1884. See 15 Cong. Rec. 877. It was then de-

bated, amended, and passed. See 15 Cong. Rec. 2240-

2242, 2277-2280. In the 48th Cong. 2nd Sess. (1884),

S. 48 was referred to the House Committee on Indian

Affairs. See 16 Cong. Rec. 218. It was then reported

back with accompanying House Report 2247 (H.R. 2247,

48th Cong., 2nd Sess. (1884) Serial Set #2328 Vol. 1).

See 16 Cong. Rec. 580.

In 1885, S. 54, 48th Cong., Ist Sess. (1885) was intro-

duced and referred to the Senate Committee on Indian

Affairs. See 17 Cong. Rec. 123. It was reported back in

1886, see 17 Cong. Rec. 841, and was then debated,

amended, and passed in the Senate. See 17 Cong. Rec.

1558, 1630-1635, 1674, 1719, 1762-1764. It was then re-

ferred to the House Committee on Indian Affairs, see 17

Cong. Rec. 1959, and reported back with House Report

1835. (H.R. 1835, 48th Cong., Ist Sess. Serial Set #2240

Vol. 8). See 17 Cong. Rec. 3841.

S. 54 was then debated in the 49th Cong., 2nd Sess. as

well. See 18 Cong. Rec. 189, 224-225. It was amended

and passed the House, see 18 Cong. Rec. 226, and then

referred to the Senate Committee on Indian Affairs. See

18 Cong. Rec. 247, 313. The bill was then returned to

the House. See 18 Cong. Rec. 273, 285, 315. The Senate

non-concurred in the House amendments, see 18 Cong,

Rec. 476, and a conference was then appointed. See 18

Cong. Rec. 478, 534, 580. A conference report was made,

debated, and agreed to. See 18 Cong. Rec. 772, 882, 972.

The bill was then examined and signed, see 18 Cong. Rec.

1048, 1054, and approved by the President. See 18 Cong.

Rec. 1577 (1887).

In 1906, the Burke Act was signed, amending section

6 of the Dawes Act of 1887. The Burke Act began as

House Resolution 11946, 58th Cong., Ist Sess., and was

first referred to the House Committee on Indian Affairs.

See 40 Cong. Rec. 1110. It was reported back with

amendments, accompanied by House Report 1556, (H.R.

1558, 59th Cong., Ist Sess. Serial Set #4941 vol. 1).

See 40 Cong. Rec. 2812. The bill was then debated,

amended, and passed in the House. See 40 Cong. Rec.

3598, 3602. It was then referred to the Senate Com-

mittte on Indian Affairs, see 40 Cong. Rec. 3638, and

was reported back with amendments and Senate Report

1998. (S.R. 1998, 59th Cong., Ist Sess. Serial Set

#4904 vol. 1). See 40 Cong. Rec. 4153. The bill was

passed over, see 40 Cong. Rec. 5189, 5605, and was then

debated, amended, and passed in the Senate. See 40

Cong. Rec. 4805. The House concurred in the Senate

amendments. See 40 Cong. Rec. 5980. It was examined

and signed, see 40 Cong. Rec. 6089, 6100, 6233, and was

approved by the President. See 40 Cong. Rec. 7795.

ͤ——äͤ— — —— i es ee

EXCERPTS FROM THE LEGISLATIVE HISTORY

OF THE GENERAL ALLOTMENT ACT OF 1887

Mr. COKE. In section 5 of this bill it is provided:

That the lands acquired by any Indian under and by

virtue of this act shall not be subject to alienation, lease,

or incumbrance, either by voluntary conveyance or by the

judgment, order or decree of any court, or subject to

taxation of any character, but shall be and remain in-

alineable, and not subject to taxation, lien, or incum-

brance, for the period of twenty-five years from the date

of the patent, which said restrictions shall be incorpo-

rated in the patents when issued.

If the Senator’s amendment prevails, will not tat pro-

vision be rendered nugatory?

Mr. HOAR. I do not understand it so.

11 Cong. Rec. 875 (1881).

Mr. COKE. _.. . . Section 5 prohibits the alienation of

land by the Indians; it exempts the land from taxation,

from lien or incumbrance for twenty-five years.

11 Cong. Rec. 876-877 (1881).

Mr. COKE. ... In the first place, his lands are ex-

empt from judgment and from execution, are exempt

from taxation, which those of no citizen are

11 Cong. Rec. 877 (1881)

Mr. COKE. ... There is an exemption here from

taxation. There is a prohibition against alienation. One

is a privilege and the other a burden. They are put there

for the benefit and protection of the Indian.

11 Cong. Rec. 878 (1881)

Mr. BROWN. ... It is true you exempt his land from

taxes by this bill for a certain length of time

11 Cong. Rec. 880 (1881).

Mr. BROWN. . . I trust, Mr. President, that we shall

pass this bill in a shape that will give every Indian a

home on his reservation, and guarantee it to him and his

children for all time to come, and that the power of

alienation will be restricted until he has learned the

rights and the duties of an American citizen. After that

let him and his posterity take care of it or alienate it as

may any one else. Fix a reasonable time; exempt their

- homesteads from taxation. After that time there is no

further exclusion in the fourteenth constitutional amend-

ment in the way of counting them in the representative

population of the States where they may reside, and no

reason that I can see why they may not be full-fledged

citizens and voters.

11 Cong. Rec. 882 (1881).

Mr. CALL. . But the bill cautiously and carefully

proceeds with a preliminary period, a probationary pe-

riod of twenty-five years, which shall be a period of

preparation for them before their ownership of land shall

be complete.

11 Cong. Rec. 908 (1881).

Mr. PLUMB. .. . If that position of the bill which

provides that these lands shall not be alienated and shall

not be subject to taxation for a period of twenty-five

years and shall not be leased until the same period shall

pass, you will find about your doors here from year to

year an increasingly tumult from the communities in

which you have set thesse people, exempt from the burdens

of the Government and occupying lands which they can-

not cultivate—a tumult which you cannot prevent and the

consequences of which you cannot avoid.

11 Cong. Rec. 942 (1881).

Mr. TELLER. .. . It is provided in the sixth line of

the sixth section “that their lands shall not be subject to

taxation or execution upon the judgment, order, or decree

— — — ne ed

of any court.“ That ought to be qualified so that they

shall not be subject to taxation, judgment, &e., for a

period of twenty-five years, because that will make it in

harmony with the rest of the bill.

11 Cong. Rec. 997 (1881).

Mr. DAWES. The matter which is involved in the

lines on the third page, beginning with the proviso in the

fifty-fourth line of section 1, has been discussed several

times in the Senate; and to obviate all question about it,

to reach precisely what is sought for in that proviso and

at the same time avoid any question about the right of

the State to tax this land so held by an Indian in sev-

eralty, I have prepared a substitute for the proviso, which

I have shown to several members—not all, for I have not

had time—of the Committee on Indian Affairs, and which

I think will commend itself to the Senate. Therefore I

move to strike out that proviso and insert what I send

to the desk.

The ACTING SECRETARY. It is proposed to strike out,

after the word “act,” in line 54 of section 1, the follow-

ing proviso:

Provided, That the title to lands acquired by Indians

under the provisions of this act shall not be subject to

alienation or incumbrance, either by voluntary convey-

ance or by the judgment, decree, or this order of any

court, but shall be and remain inalienable and not sub-

ject to taxation, lien, or incumbrance for any purpose for

a period of ten years from the date of patent, and until

such time thereafter as the President may see fit to re-

move the restriction, which conditions shall be expressed

in the patent.

And in lieu thereof to insert:

Which shall be of the legal effect, and declare that the

United States does and will hold this land thus alloted

for the period of twenty-five 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 of Oregon, 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, discharge of said trust and

free of all charge or incumbrance whatsoever.

Mr. DAWES. That, in short, Mr. President, provides

that the United States shall hold the title itself to this

particular severalty, but in trust for the sale use and

benefit of each Indian getting his land in severalty. The

Indian, therefore, under the law will be to all intents

and purposes the occupant of the land and enjoy all its

use, and at the end of twenty-five years the United States

will be obliged by the force of this provision to give him

or his heirs a patent discharged of the trust and free of

incumbrance. It will be impossible to raise the question

of taxation under that provision, and that will secure to

the Indian his rights in severalty precisely as the other

provision would.

The amendment was agreed to.

13 Cong. Rec. 3211 (1882). (Umatilla Allotment Act.)

Mr. DAWES. I offer the same amendment which I

offered ‘o the bill that has just passed, to strike out the

proviso on the fifth page, beginning at the third line of

the fifth section, down to and including the eleventh line,

and insert:

Which 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-five years in trust for the sole

use and benefit of the Indian to whom such allotment

shall have been made, or, in case of 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 aforesaid in fee discharged of

said trust and free of all charge or incumbrance whatso-

ever.

— =

;

Mr. COKE. While I do not see the necessity of that

amendment, I cannot perceive that it will do any harm,

and am willing as far as I am concerned, to accept it.

13 Cong. Rec. 3212 (1882).

Mr. CONGER. Before the bill goes over I wish to call

the attention of the committee to one point to be con-

sidered before to-morrow morning. There is nothing said

in the bill in regard to the taxation of this property. This

alienable property of the Indians is distributed in all

States and Territories where the lands lie, and there is

an uncertainty in regard to the right of the State or

Territory to tax the property. I think some provisions of

that kind is worthy of the consideration of the committee.

Mr. DAWES. The bill protects the property of the

Indians for twenty-five years. That is the limit. That is

the intent of the bill.

Mr. CONGER. It does not say so in terms.

Mr. DAWES. It says so in absolute legal effect, be-

cause the United States is to hold the title. The title in

fee remains in the United States for twenty-five years.

Mr. CONGER. But it is not to be inalienable for

twenty-five years. I merely call attention to it. It seems

to me there should be some provision by which this prop-

erty could all be saved to the Indians and saved to them

from any attempt at taxation.

15 Cong. Rec. 2242 (1884).

Mr. DOLPH. ... We propose now to allot lands to

them in severalty, and to make such lands inalienable

for twenty-five years, and it is supposed that at the end

of twenty-five years they will become capable of taking

care of themselves.

15 Cong. Rec. 2277 (1884).

Mr. COKE. ... After providing that the patent shall

be issued and shall convey the land in fee discharged of

trusts at the end of twenty-five years, it reads:

Provided, That the President may withhold the issu-

ance of the patent in fee in any case for such further

time as he may deem to be for the interests of the In-

dians. And the trust created in the original patent shall

be and remain in full force until the patent in fee be

issued.

If the condition of affairs exists at the expiration of

twenty-five years feared by the Senator from California,

here is ample discretion reserved to the President of the

United States to apply the proper remedy, and that is to

withhold the patents. I think that is an abundant answer

to the objection the Senator has made.

15 Cong. Rec. 2278-2279 (1884).

Mr. DAWES. ... But as to the individual allotments

the term is fixed at twenty-five years. It is fixed for

several reasons. One is that the holding of land by the

United States so that it can not be taxed in any com-

munity, for any unnecessary period of time, is irksome

and unwise, unless there be some good reason for it. The

allotment patent which is to issue after twenty-five years

is only to issue to such Indians as in the opinion of the

Interior Department are so far advanced in the outset as

to give hope and encouragement that by this process they

will be self-supporting at the end of twenty-five years

from that time and be able to stand upon their own feet.

I know the Senator would desire that the moment an

Indian, like any white man, is able to take care of him-

self he should be free to dispose of his property like any

white man

Mr. COKE. ... The President must find these facts

recited in this section of the bill to be true before he can

put the machinery of this bill in motion. Then he must

get the consent of two-thirds of each tribe before it op-

erates upon that tribe. Then when the lands are sur-

veyed patents are issued promising a fee-simple title to

the Indians at the end of twenty-five years. At the ex-

piration of that time, if there are any conditions sur-

rounding the Indians which make it in the judgment of

— ay aa an Silt

;

the President improper that they should have the fee-

simple title to the land, the President is authorized to

withhold patents for an indefinite time... .

15 Cong. Rec. 2279 (1884).

Mr. DAWES. ... Under a subsequent part of the bill

the United States is to give him a patent, by which the

United States covenants to hold for him for twenty-five

years in trust this particular 160 acres, and at the end

of twenty-five years to give him or his heirs a patent in

fee.

17 Cong. Rec. 1630 (1886).

Mr. SKINNER. ... Or shall he be converted into a

civilized tax-payer, contributing toward the support of the

Government and adding to the material prosperity of the

country? ... In addition thereto, his land is made in-

alienable and non-taxable for a sufficient length of time

for the new citizen to become accustomed to his new life,

to learn his rights as a citizen, and prepare himself to

cope on an equal footing with any white man

17 Cong. Rec. 190 (1886).

Mr. PERKINS. ... It has the warm endorsement and

approval of the Secretary of the Interior, of the Com-

missioner of Indian Affairs, and of all those who have

given attention to the subject of the education, the Chris-

tianization, and the development of the Indian race.

The bill provides for the breaking up, as rapidly as pos-

sible, of all the tribal organizations and for the allotment

of lands to the Indians in severalty, in order that they

may possess them individually and proceed to qualify

themselves for the duties and responsibilities of citizen-

ship....

For that reason, as I have suggested, it meets the

warm approval of all the Government officers whose

duties bring them in close contract with the Indians, and

it has also the indorsement of the Indian rights associa-

tion throughout the country, and of the best sentiment

of the land..

18 Cong. Rec. 191 (1887).

10a

Mr. DOLPH. ... Do I understand that the changes

made by the House amendments and the conference com-

mittee permit a lien or disposition of lands that shall be

allotted to Indians in severalty after the lapse of a less

period than that provided in the bill as passed by the

Senate—twenty-five years? Also, do I understand that

the provision inserted in the bill in the Senate

Mr. DAWES. Will the Senator put his first interroga-

tory again?

Mr. DOLPH. My question is whether such changes

have been made in the bill that instead of the bill as it

passed the Senate providing that the land which shall be

allotted to Indians in severalty can only be disposed of or

be subject to liens after a period of twenty-five years, it

now allows that to be done after five years?

Mr. DAWES. No, that has not been changed, except

in this way, that the President may, in his discretion in

any particular case, extend the time after the twenty-five

years. The time limiting the power of alienation is not

reduced at all, but has this further extension in the

discretion of the President as to any particular case.

Mr. DOLPH. According to the conference report, when

are patents to issue to the individual Indians?

Mr. DAWES. If the Senator will get the bill he will

see. As soon as the individual Indian takes up his allot-

ment he is to have a patent which shall be of the legal

effect that the United States holds in trust this particu-

lar tract of land for the sole use and benefit of the par-

ticular Indian for the period of twenty-five years, at the

end of which time the United States is to give him a

patent in fee of the land; and then to that is added a

provision that in any particular case the President may

extend that twenty-five years’ limit so that the United

States shall in that particular case hold the land in trust

for the Indian a further time.

18 Cong. Rec. 973 (1887).

ee ̃ ͤ¶w — ̃ ̃ ̃ ͤ 2 —

11a

EXCERPTS FROM THE LEGISLATIVE HISTORY

OF S. 2068, 52np CONG., Ist SESS. (1892)

The Committee on Indian Affairs report back (S.2068)

“a bill extending relief to Indian citizens, and for other

purposes,” with the recommendation that it pass with an

amendment in the nature of a substitute, which strikes

out all of the bill after the enacting clause, and insert the

words reported in an amended bill herewith reported,

reading as follows:

Be it enacted by the Senate and House of Representa-

tives of the United States of America, in Congress

assembled, That the lands now allotted to or which

may hereafter be allotted to any Indians in severalty,

or which may be the property of any Indian citizens

of the United States, when such Indians under the

provisions of any existing law have become or shall

become entitled to the benefits of and subject to the

laws of any State, and when such lands shall be em-

braced in and as a part of any county or town or-

ganization, so as to enjoy full and equal participa-

tion in the benefits of such local government, and

when the Indians enjoy their equal privileges as citi-

zens, shall be subject to State and local assessment

and taxation the same as any other lands similarly

located in such State: Provided, however, That noth-

ing herei.. contained shall authorize the sale or in-

cumbrance of any such land on the account of such

assessment and taxation, or in any manner interfere

in the trust in which such lands are held by the

United States while such trust continues: And pro-

vided further, That during the continuance of said

trust said taxes so assessed and levied shall be paid

from the Treasury of the United States to the county

treasurer, or other legally authorized officer of the

county or municipality to which said taxes are pay-

able, at such times as said taxes shall become due

and payable: And also provided further, That said

l2a

taxes shall only be paid on the receipt of the sworn

statement of the county treasurer, or other legally

authorized officer of the county or municipality to

which said taxes are payable, showing that such tax

has been legally assessed and levied, and that said

tax is then due and payable, accompanied by the cer-

tificate of the Secretary of the Interior that said

lands are within the State and county described in

said statement, and that the lands therein described

have been allotted in severalty, or belong to Indian

citizens of the United States, and that he is satisfied,

after such sufficient inquiry, that the assessment of

the lands for taxation is a fair and reasonable one,

and the taxes levied just and equitable, both inde-

pendently and in proportion to the valuation and

taxation of lands in the same county, town, or other

municipal corporation: And provided further, That

no moneys shall be so paid for road or highway taxes

which by the laws of the State may be discharged by

work, but the Indians owning such lands may be

required to so discharge such taxes: And provided

further, That the Secretary of the Interior shall be

satisfied, and so certify, that the public expenditure

of such taxes is fairly made to give the lands of such

Indians their just share of benefit.

Sec. 2. That from and after the passage of this

act there shall be paid annually, from any moneys in

the Treasury not otherwise appropriated, such sum

as shall be necessay to pay said taxes so certified

under section one of this act.

[T]he following letter from the Commissioner of In-

dian Affairs gives his views upon the bill [excerpts] :

[T]he matter to which Senator Manderson refers

is unquestionably an evil attendant upon the allot-

ment of lands in severalty to the Indians with a title

inalienable for a specified number of years, during

which the land cannot be taxed... .

13a

The Government . . has wisely exempted Indian

allotments from taxation for a period of twenty-five

years, or longer, at the discretion of the President.

So far as I am able to form an opinion on the sub-

ject, it seems to me that this nontaxable provision,

coupled with the proviso that the land shall be inalien-

able for twenty-five years, is absolutely essential for

the success of the scheme of individualizing owner-

ship in Indian lands.

[Alnd thus hasten the day when the Indians will

become citizens in fact, able and willing to bear all

the burdens of citizenship. . . .

This is necessary as a matter of good faith to the

Indians who have ceded their lands to the government

on the condition that their allotments should be in-

alienable for twenty-five years and exempt from

taxation

[A] portion of the income of which shall be devoted

to the payment of the taxes upon the allotted lands

during the period wherein they are exempt from in-

dividual taxation.

S. Rep. No. 1003, 52nd Cong., Ist Sess. 1-4 (1892).

Mr. COCKRELL. I should like to know who pays the

taxes in the end? Are we to understand that the people

of the United States are for twenty years to pay all the

taxes out of their own funds upon the lands which are

allotted in severalty to Indians

24 Cong. Rec. 1196 (1893).

Mr. COCKRELL. .. and here is a proposition that

these Indians, taking these lands free of all debt, drawing

their annuities, able-bodied, stout, athletic fellows, are

to sit upon that land for twenty years and make all the

people of the United States pay their taxes.

l4a

. . . They have a trust fund. Let these taxes come out

of that fund....

24 Cong. Rec. 1196 (1893).

Mr. DAWES. I wish to call the attention of the

Senator from Missouri [Mr. Manderson] to the existing

situation. It is the United States which exempts all this

property from taxation

24 Cong. Rec. 1196 (1893).

Mr. DAWES. The Congress has thought that the best

way to make citizens, self-supporting people out of these

Indians, was to give them some of the United States land

and hold it for them for twenty-five years exempt from

taxation...

24 Cong. Rec. 1196 (1893).

Mr. COCKRELL. ... I move to amend the part of

the bill which reads: ‘That the lands now allotted to or

which may hereafter be allotted to any Indians in sev-

eralty,’ by inserting ‘under agreements already made.’

Those lands ought not to be exempted from taxation in

the States and the people of the United States made to

pay taxes on them. I want it limited. I do not want a

provision to be inserted whereby Indians may go specu-

lating in land. . . and make the people of the United

States pay taxes on it.

24 Cong. Rec. 1197 (1893).

Mr. MANDERSON. ... We are in the unfortunate

condition that by the act of the United States those lands

are not taxable for twenty-five years

24 Cong. Rec. 1197 (1893).

Under the act of February 28, 1887 [General Allot-

ment Act], allotting lands in severalty to Indians on the

various reservations, many Indians became citizens of

the United States and of the State or Territory in which

15a

said land is located, with all the rights and privileges

pertaining thereto; but in doing this the act fails to lay

on these Indian eitizens all of the responsibilities and bur-

dens full citizenship naturally carries with it. By exempt-

ing their lands from taxation for a period of twenty-five

years...

H.R. Rep. 2509, 52nd Cong., 2nd Sess. 1 (1893).

. . clearly the Indian’s land can not pay tax for a

period of twenty-five years from date of act [General

Allotment Act]...

H.R. Rep. No. 2509, 52nd Cong., 2nd Sess. 2 (1893).

—

16a

FIFTY-NINTH CONGRESS

Sess. 1. CH. 2348 1906

[182] CHAP. 2348.— An Act To amend section six of

an Act approved February eighth, eighteen hundred and

eighty-seven, entitled “An Act to provide for the allot-

ment of lands in severalty to Indians on the various res-

ervations, and to extend the protection of the laws of the

United States and the Territories over the Indians, and

for other purposes.”

Be it enacted by the Senate and House of Representa-

tives of the United States of America in Congress as-

sembled, That section six of an Act approved February

eighth, eighteen hundred and eighty-seven, entitled “An

Act to provide for the allotment of lands in severalty to

Indians on the various reservations, and to extend the

protection of the laws of the United States and the Terri-

tories over the Indians, and for other purposes,” be

amended to read as follows:

“Sec. 6. That at the expiration of the trust period and

when the lands have been conveyed to the Indians by

patent in fee, as provided in section five of this Act, then

each and every allottee shall have the benefit of and be

subject to the laws, both civil and criminal, of the State

or Territory in which they may reside; and no Territory

shall pass or enforce any law denying any such Indian

within its jurisdiction the equal protection of the law.

And every Indian born within the territorial limits of the

United States to whom allotments shall have been made

and who has received a patent in fee simple under the

provisions of this Act, or under any law or treaty, and

every Indian born within the territorial limits of the

United States who has voluntarily taken up within said

limits his residence, separate and apart from any tribe

of Indians therein, and has adopted the habits of civilized

17a

life, is hereby declared to be a citizen of the United

States, and is entitled to all the rights, privileges, and

immunities of such citizens, whether said Indian has been

or not, by birth or otherwise, a member of any tribe of

Indians within the territorial limits of the United States

without in any manner impairing or otherwise affecting

the right of any such [183] Indian to tribal or other

property: Provided, That the Secretary of the Interior

may, in his discretion, and he is hereby authorized, when-

ever he shall be satisfied that any Indian allottee is com-

petent and capable of managing his or her affairs at any

time to cause to be issued to such allottee a patent in fee

simple, and thereafter all restrictions as to sale, incum-

brance, or taxation of said land shall be removed and

said land shall not be liable to the satisfaction of any

debt contracted prior to the issuing of such patent: Pro-

vided further, That until the issuance of fee-simple pat-

ents all allottees to whom trust patents shall hereafter

be issued shall be subject to the exclusive jurisdiction of

the United States: And provided further, That the pro-

visions of this Act shall not extend to any Indians in the

Indian Territory.”

That hereafter when an allotment of land is made to

any Indian, and any such Indian dies before the expira-

tion of the trust period, said allotment shall be cancelled

and the land shall revert to the United States, and the

Secretary of the Interior shall ascertain the legal heirs

of such Indians, and shall cause to be issued to said heirs

and in their names, a patent in fee simple for said land,

or he may cause the land to be sold as provided by law

and issue a patent therefor to the purchaser or purchas-

ers, and pay the net proceeds to the heirs, or their legal

representatives, of such deceased Indian. The action of

the Secretary of the Interior in determining the legal

heirs of any deceased Indian, as provided herein, shal! in

all respects be conclusive and final.

Approved, May 8, 1906.

18a

CONGRESSIONAL RECORD INDEX

H.R. 11946

H.R. 11946—

To amend section 6 of an act approved February 8,

1887, entitled “An Act to provide for the allotment of

lands in severalty to Indians on the various reservations,

and to extend the protection of the laws of the United

States and the Territories over the Indians, and for other

purposes.“

Mr. Burke of South Dakota; Committee on Indian Af-

fairs 1110.—Reported back with amendment (H.R. ReE-

PORT 558) 2812.—Debated, amended and passed House

3598, 3602.—Referred to Senate Committees on Indian

Affairs 3668.—Reported back with amendments (S. RE-

PORT 1998) 4153.—Passed over 5189, 5605.—Debated,

amended, and passed Senate 5805.—House concurs in

Senate amendments 5980.—Examined and signed 6089,

6100, 6233.—Approved by President 7795.

CONGRESSIONAL RECORD—HOUSE

JANUARY 15

1110] By Mr. BURKE of South Dakota: A bill (H.R.

11946) to amend section 6 of an act approved February

8, 1887, entitled “An act to provide for the allotment of

lands in severalty to Indians on the various reservations,

and to extend the protection of the laws of the United

States and the Territories over the Indians, and for other

purposes“ to the Committee on Indian Affairs.

* * * *

FERRUARY 21

[2812] Mr. BURKE of South Dakota from the Com-

mittee on Indian Affairs, to which was referred the bill

19a

of the House (H. R. 11946) to amend section 6 of an act

approved February 8, 1887, entitled “An act to provide

for the allotment of lands in severalty to Indians on the

various reservations, and to extend the protection of the

laws of the United States and the Territories over the

Indians, and for other purposes,” reported the same with

amendment, accompanied by a report (No. 1558); which

said bill and report were referred to the Committee of

the Whole House on the state of the Union.

MARCH 9

ALLOTMENT OF LANDS TO INDIANS

[8598] Mr. BURKE of South Dakota. Mr. Speaker, I

ask unanimous consent for the present consideration of

the bill (H. R. 11946) to amend section 6 of an act ap-

proved February 8, 1887, entitled “An Act to provide for

the allotment of lands in severalty to Indians on the

various reservations and to extend the protection of the

laws of the United States and the Territories over the

Indians, and for other purposes,” which I send to the desk

and ask to have read.

The Clerk read as follows:

Be it enacted, etc., That section 6 of an act approved

February 8, 1887, entitled “An act to provide for the al-

lotment of lands in severalty to Indians on the various

reservations, and to extend the protection of the laws of

the United States and the Territories over the Indians,

and for other purposes,“ be amended to read as follows:

“Sec. 6. That at the expiration of twenty-five years or

thereafter, if the period has been extended by the Presi-

dent, and when the lands have been conveyed to the In-

dians by patent in fee, as provided in section 5 of this

act, then each and every allottee shall have the benefit of

and be subject to the laws, both civil and criminal, of the

State or Terri- [3599] tory to which they may reside;

20a

and no Territory shall pass or enforce any law denying

any such Indian within its jurisdiction the equal protec-

tion of the law. And every Indian born within the terri-

torial limits of the United States to whom allotments

shall have been made and who has received a patent in

fee simple under the provisions of this act, or under any

law or treaty, and every Indian born within the territo-

rial limits of the United States who has voluntarily taken

up with said limits his residence, separate and apart

from any tribe of Indians therein, and has adopted the

habits of civilized life, is hereby declared to be a citizen

of the United States, and is entitled to all the rights,

privileges, and immunities of such citizens whether said

Indian has been or not, by birth or otherwise, a member

of any tribe of Indians within the territorial limits of

the United States without in any manner impairing or

otherwise affecting the right of any such Indian to tribal

or other property: Provided, That the Secretary of the

Interior may, in his discretion, and he is hereby author-

ized, whenever he shall be satisfied that any Indian al-

lottee is competent and capable of managing his or her

affairs, at any time cause to be issued to such allottee a

patent in fee simple, and thereafter all restrictions as to

sale, incumbrance, or taxation of said land shall be re-

moved.”

With the following amendments:

Page 1, line 6, strike out “twenty-five years or.“

Page 2, line 1, strike out “thereafter, if the period has

been extended by the President.”

Page 2, line 2, before the word “and” insert “the trust

period.”

At the end of the bill add: “Provided further, That

until the issuance of fee simple patents all allottees to

whom trust patents shall hereafter be issued shall be

subject to the exclusive jurisdiction of the United States.”

2la

The SPEAKER. Is there objection?

Mr. FINLEY. Mr. Speaker, I reserve the right to

object.

Mr. STEPHENS of Texas. Mr. Speaker, I desire to

ask the gentleman from South Dakota if the Committee

on Indian Affairs has reported this bill; and if not, what

committee did it come from?

Mr. BURKE of South Dakota. Mr. Speaker, I desire

to say that the Committee on indian Affairs has made a

unanimous report on this bill, and it has the favorable

report of the Department. It provides, first, to change

the present Indian allotment law, so that an Indian when

he takes an allotment does not become a citizen until he

gets a fee simple patent. It also provides that the Secre-

tary of the Interior may grant a fee simple patent when,

after investigation, he becomes satisfied that the Indian

has reached such a state of advancement and civilization

that he is capable of managing his own affairs, and the

gentleman from Texas (Mr. STEPHENS] will recall that

yesterday this matter was discussed in explanation of

why there were so many of these individual cases in the

Indian appropriation bill. The practice of the committee

has been to put in such cases as might be recommended

by the Department, and only such cases, and my recollec-

tion is that this provision was in one or more appropria-

tion bills and passed the House at the last session, but

that it went out in the Senate.

Mr. STEPHENS of Texas. Is the gentleman aware of

the fact that the present Secretary of the Interior is hold-

ing up numerous applications for patents at the present

time and is not issuing them, no demands having been

made, and the allottees are entitled to them, and does he

not think this might result in indefinitely preventing

these people from becoming citizens of the State in which

they live if the bill passed?

Mr. BURKE of South Dakota. I think not, Mr.

Speaker; and as I indicated to the gentleman yesterday,

I think the oiginal allotment law did not contemplate

22a

that citizenship would go with the mere allotment of land.

Of course this bill will not affect the status of any Indian

allottees who has taken an allotment prior to this time.

Mr. STEPHENS of Texas. The gentleman will admit

it affects his citizenship. He can not become a citizen

until the Secretary of the Interior will permit him to be-

come a citizen by issuing to him a patent.

Mr. BURKE of South Dakota. It does not affect the

status as to citizenship of Indians who have taken allot-

ments previous to the time when this becomes a law.

Mr. STEPHENS of Texas. Then what reason have

you that this should become law?

Mr. BURKE of South Dakota. For this reason: Take

it in my State, for instance, the Indians that have not

yet received allotments and to whom allotments are now

being made are the Indians in the remote portions and

reservations that are commonly known as “blanket In-

dians,” and they do not possess one single qualification

entitling them to citizenship, and yet it is desirable that

the lands be allotted to them. If citizenship goes with

allotment, then I do not think there will be any allotment

to any such Indians in the future.

Mr. FITZGERALD. I would like to make an inquiry.

This bill, if I understand it correctly, makes two changes

in the present law. First, it gives to the Secretary of

the Interior power to issue patents, regardless of the

twenty-five-year restriction, whenever he deems it proper.

Mr. BURKE of South Dakota. Yes, sir.

Mr. FITZGERALD. And, secondly, it changes the law

so that the mere allotment of land to an Indian does not

confer citizenship upon him.

Mr. BURKE of South Dakota. It leaves him subject

only to the jurisdiction of the United States until he gets

his fee simple patent.

Mr. FITZGERALD. Are those the only two changes?

Mr. BURKE of South Dakota. Those are the only

changes,

28a

Mr. CRUMPACKER. Under the law as it now stands

the Secretary of the Interior does not have authority to

issue fee simple patents to Indians whom he may con-

clude are entitled to them?

Mr. BURKE of South Dakota. That is true.

Mr. CRUMPACKER. And if this bill should become

a law Congress would still have the power to issue pat-

ents in special cases notwithstanding the authority con-

ferred upon the Secretary of the Interior.

Mr. BURKE of South Dakota. Congress would cer-

tainly have that power.

Mr. CRUMPACKER. I observed in the Indian appro-

priation bill that was up for consideration yesterday a

number of pages of authority granted to the Secretary

of the Interior to issue patents to numerous Indians.

Those provisions occupied several pages in the bill, and

it struck me that this kind of a law ought to be enacted

in order to avoid the necessity of Congressional action in

relation to these several cases. I suppose the recommenda-

tion of the Committee on Indian Affairs is guided almost

entirely by the recommendations of the Interior Depart-

ment?

Mr. BURKE of South Dakota. Entirely so; and all

such provisions as appear in the Indian appropriation bill

might go out on a point of order. Now I yield to the

gentleman from Wyoming.

Mr. MONDELL. Mr. Speaker, I just came into the

House and did not hear the discussion on the bill. As I

understand it, at the present time all Indian patents are

issued with a non-alienation clause, and that for the time

within which the lands are not alienable the Indians,

under this bill, would not become citizens.

Mr. BURKE of South Dakota. Not Indians who may

take allotments after the passage of this act. It does not

affect the status of any Indian who has taken an allot-

ment when it has been approved by the Secretary of the

Interior.

24a

Mr. MONDELL. However, it will give the Secretary

of the Interior power to withhold indefinitely final pat-

ents in fees simple and enable him to deprive them of

citizenship.

Mr. BURKE of South Dakota. Not at all. Mr.

Speaker, because of the absence of this change in the law

they can not obtain a fee simple patent until the expira-

tion of twenty-five years and unless Congress by special

act grants them that privilege. The practice has been

that in such cases we have granted the privilege on the

recommendation of the Secretary of the Interior.

Mr. MONDELL. Under existing law, Mr. Speaker, the

Indian becomes a citizen, as interpreted by the court,

when he receives his allotment. I believe I am correct in

that statement.

Mr. BURKE of South Dakota. That is the holding in

the Supreme Court of the United States in the case of

Heff.

Mr. MONDELL. Now, under this legislation the In-

dian remains the ward of the Government for twenty-

five years after he takes his allotment, unless in the

meantime the Secretary of the Interior sees fit to make

him a citizen by granting him a patent in fee simple.

Mr. BURKE of South Dakota. Except that Congress

may grant that privilege if it sees fit.

Mr. CURTIS. And, further, the agreement might pro-

vide that the title should become absolute or a fee simple

title should pass, say, in ten years.

Mr. MONDELL. Yes; but—

Mr. CURTIS. The main advantage of this bill is that

under exisitng law the Supreme Court has held that after

a patent has issued (the court said the word “patent” was

not happily chosen to express the thought which, it is

clear, all parts of the section being considered, Congress

intended to express), notwithstanding the Indian does

not secure a title in fee for twenty-five years, he becomes

a citizen of the United States, and that the State courts

have full jurisdiction over him, but not over his property.

They can not assess and tax the lands, nor can a State

enact a law which will prevent the Government, at the

time agreed, conveying the allottee the land in fee. Now,

this bill, if enacted, will leave him under the control of

the Government until he secures a patent conveying the

fee, whether he gets it under an agreement or whether it

is issued to him under the law by the Secretary of the

Interior. The Supreme Court held that the Indians to

whom allotments were made under the act of 1887 were

still wards of the nation, in a condition of pupilage or

dependency.

[3680] Mr. MONDELL. In other words, Mr. Speaker,

this legislation retains the Indian in his condition as a

ward of the nation without rights of citizenship for

twenty-five years after he receives his allotment.

Whereas under present conditions he becomes a citizen

upon receiving his allotment. Is not that a fair statement

of the situation?

Mr. CURTIS. That is true, unless, as I said a moment

ago, the agreement provides that the fee should pass in

a shorter time.

Mr. MONDELL. If there is some special provision in

a particular piece of legislation. Generally this puts off

for twenty-five years the time in which an Indian may

become a citizen of the United States.

Mr. CURTIS. Yes, sir—that is, by the mere taking of

an allotment.

Mr. MONDELL. I understand.

Mr. CURTIS. He may become a citizen of the United

States any minute he desires by leaving the reservation

and taking up a residence apart from any tribe of In-

dians and adopting the habits of civilized life.

Mr. MONDELL. Under this law, however, if he does

accept an allotment—and of course every Indian residing

on a reservation will take an allotment, or ought to do

so—he can not become a citizen within twenty-five years

unless the Secretary of the Interior in the meantime shal!

issue him a patent in fee simple.

26a

Mr. BURKE of South Dakota. Mr. Speaker, let me

say to the gentleman he does not become a citizen on tak-

ing an allotment until it is approved by the Secretary of

the Interior. So the Secretary of the Interior now has

it within his power to withhold citizenship; yet the In-

dian may take an allotment.

Mr. MONDELL. Mr. Speaker, is a point of order

pending?

Mr. FINLEY. Mr. Speaker, I reserved the point of

order against the bill. ,

Mr. BURKE of South Dakota. Mr. Speaker, I yield to

the gentleman from Montana for a question.

Mr. DIXON of Montana. Mr. Speaker, I want to ask

the gentleman from South Dakota Mr. BuRKE] if the

purpose of the bill is not to prevent the blanket Indians

by wholesale becoming citizens by allotment, and still al-

low the intelligent Indians on application to become citi-

bens by allotment?

Mr. BURKE of South Dakota. That is the purpose of

the law, and, further, to protect the Indians from the

sale of liquor.

Mr. CURTIS. It is a very great improvement over

existing law.

Mr. DIXON of Montana. I thoroughly concur.

Mr. BURKE of South Dakota. It is in accordance, in

my opinion, with what the original allotment law con-

templated, and what was considered to be the law until

the decision of the Supreme Court last April held other-

wise.

Mr. DIXON of Montana. I know a case where the res-

ervation assumed to be open where, under the decision

of the Supreme Court, there is no way on earth to pre-

vent the wholesale sale of whisky to those allotted In-

dians. Under this bill it will stop the sale of it to the

blanket Indians.

Mr. FINLEY. Where are the Indians located who will

be affected by this bill?

27a

Mr. BURKE of South Dakota. Mostly in the reserva-

tions of the country, if not entirely in the reservations.

Mr. FINLEY. Within all the States and Territories?

What Indians?

Mr. BURKE of South Dakota. The South Dakota In-

dians probably more than any others. I understand the

application of the present law has been held not to apply

to Territories.

Mr. FINLEY. Will this bill apply to Indians in the

Indian Territory

Mr. BURKE of South Dakota. I think it would; yes,

sir; though I am not sure that I am familiar with the

general allotment law as to whether it applies to Indians

within the Indian Territory or not.

Mr. FINLEY. In the Indian Territory?

Mr. BURKE of South Dakota. I have said I thought it

would, but that I am uncertain.

Mr. FINLEY. Then to that extent it would affect the

Indian Territory Indians, would it not?

Mr. BURKE of South Dakota. It would affect no In-

dian who had taken his allotment.

Mr. FINLEY. To what extent have the Indians in the

Indian Territory not taken allotments?

Mr. BURKE of South Dakota. I will yield to the gen-

tleman from Kansas, who is more familiar with that

than I am.

Mr. CURTIS. So far as the Indian Territory is con-

cerned, all the Indians have been made citizens of the

United States, and they are citizens now. The allotments

have al! been made to the Seminoles; nearly all to the

Creeks. They are being made to the Chickasaws, the

Choctaws, and the Cherokees.

Mr. FINLEY. How many Indians in the Indian Ter-

ritory have received their allotment?

Mr. CURTIS. That would be very hard to say. There

are about 4,000 allotments yet to be made to the Choc-

taws and Chickasaws, but the patents have not been de-

livered to those who have been allotted in those two

28a

tribes; nearly 7,000 patents have been delivered to mem-

bers of the Cherokee tribe; nearly all patents have been

delivered to the members of the Creek tribe, and allot-

ments are complete among the Seminole tribe.

Mr. FINLEY. Would not the passage of this bill have

the effect of delaying it?

Mr. CURTIS. It would not have that effect in the

Indian Territory, because they were not included in the

act of 1887; and the Government has made special agree-

ments with the five tribes in the Indian Territory, and

this law would in no way affect them.

Mr. FINLEY. I understood the gentleman from South

Dakota to say a moment ago that it would apply to the

Indians in the Indian Territory.

Mr. BURKE of South Dakota. I stated I did not

= and I yielded to the gentleman from Kansas, who

id.

Mr. CURTIS. This law never applied to the Indian

Territory.

Mr. FINLEY. Then I understand it does not apply to

the Indians in the Indian Territory?

Mr. BURKE of South Dakota. It seems not.

Mr. KEIFER. I wish to ask the gentleman a question

or two.

Mr. BURKE of South Dakota. I yield to the gentle

man.

Mr. KEIFER. I want to know what there is in the bill

that he has prepared that excludes it from general opera-

tion upon the Indian tribes in the Indian Territory.

Mr. BURKE of South Dakota. The gentleman from

Kansas has just explained, I thought, that particular

point.

Mr. KEIFER. A general law is likely to apply gen-

erally. Is there any reservation in this bill?

Mr. CURTIS. Not in this bill; this is simply an

amendment to section 6 of the act of 1887. The act of

29a

1887 excludes the Indians of the Indian Territory. Now,

there is nothing in this bill bringing them within its

terms. Therefore the two acts would be construed to-

gether, and under the rules of law it would be held that

the original act not applying to the Indians in the Indian

Territory, this act amending it would not apply to them.

Now we have special agreements with the five tribes,

under which allotments are being made to them. We

have a bill pending, which will go to conference within

a day or two, providing for final settlement of all their

affairs. We have special provisions in the various agree-

ments in regard to the sale of intoxicating liquors which

have not been put in other agreements with Indians in

the United States, and they have always been dealt with

separately and distinctly. The agreements provide the

conditions under which the deeds or patents shall be

issued, which shall be subject to alienation and when they

may be alienated; that homesteads shall not be disposed

of for certain periods. As this bill only affects Indians

with whom agreements are hereafter to be made, it can

not under any circumstances apply to the members of the

Five Civilized Tribes.

Mr. MONDELL. I fail to find any feature in your bill,

from a hasty examination of it, that limits its provi-

Sion

Mr. BURKE of South Dakota. Read the first line of

the bill

Mr. MONDELL (continuing). To future agreements

with Indians.

Mr. CURTIS. I have heard the bill read and as I

understand it, it only applies to agreements hereafter to

be made.

Mr. BURKE of South Dakata. It only amends section

6 of the act of 1887.

Mr. KEIFER. The gentleman from Kansas makes a

clear statement as to the existing law as to how it would

apply, but the general rule is

30a

Mr. ADAMS of Pennsylvania. Mr. Speaker, I make

the point of order that we can not hear.

Tht SPEAKER. The House will be in order.

Mr. BURKE of South Dakota. I yield to the gentle-

man from Ohio.

Mr. KEIFER. Not for any particular time. I was

going to say to the gentleman from Kansas that the ven-

eral rule is that a general law will repeal or supersede

another general law unless there is some reservation

against it, and it looks to me as though now, to avoid

confusion, you better put some reservation in this bill if

there is none there now.

Mr. BURKE of South Dakota. Let me state to the

gentleman from Ohio that we have this proviso on the

bill:

Provided further, That until the issuance of fee-

simple patents all allotees to whom trust patents shall

hereafter be issued shall be subject to the exclusive juris-

diction of the United States.

3601] Now, we certainly can not legislate to change

the status of any citizen whose status has been fixed, and

the Supreme Court in the Heff case state that we have

not that right without the consent of the citizen to be

affected and the consent of the State within which he

resides.

Mr. KEIFER. I have no objection to that statement,

but it does not cover the objection. It applies only to

conditions that are already fixed; but there are cases

that are to come, of applications to be made, allotments

to be made in the future, and this may embarrass condi-

tions existing in the Indian Territory; and no matter

“whether there is a reservation in the act of 1887 or not,

there is no reservation in this, and that is what I sug-

gest—that the gentleman put in such a reservation. I am

not opposing the bill.

Mr. CURTIS. A very few words would cover it, simply

providing that the provisions of this act shall not extend

to the Indians in the Indian Territory.

31a

Mr. KEIFER. I suggest that had better be put in, 80

as to avoid any confusion.

Mr. FITZGERALD. I think the gentleman from Ohio

entirely misunderstands this bill. The act of 1887—the

general allotment act—which is known as the “Dawes

Act,” authorized the President to allot lands to Indians,

excepting from the operations of the act the lands of the

Five Civilized Tribes.

Mr. KEIFER. That has been stated over and over

again; but this bill does not except from that, and that

is the trouble. The gentleman comes in without having

heard the discussion

Mr. FITZGERALD. If the gentleman will wait a mo-

ment, he will find out that I not only have heard the

discussion, but that I understand this, which he does not.

Mr. KEIFER. That is the gentleman’s ipse dixit about

it.

Mr. FITZGERALD. This bill which is now offered

amends one section of the general allotment act. Does

the gentleman contend that one section of that act, by

being amended, repeals the reservation contained in the

first part?

Mr. KEIFER. Certainly not. It does not affect that

so far as it relates to the original act; but it does take

the place, probably, of the act and gives a general ap-

plication.

Mr. BURKE of South Dakota. I yield to the gentleman

from Kansas [Mr. Curtis] for the purpose of suggesting

an amendment.

Mr. CURTIS. Mr. Speaker, I suggest the following

amendment:

Provided further, That the provisions of this act shall

not extend to the Five Civilized Tribes.

Mr. LACEY. In the Indian Territory.

Mr. CURTIS. In the Indian Territory.

The SPEAKER. Is there objection to the considera-

tion of the bill?

32a

Mr. FINLEY. One moment. I understand the gentle-

man from South Dakota to say as to these blanket In-

dians that parties could go in under the laws of the

United States and sell them intoxicating liquors. Is that

true?

Mr. BURKE of South Dakota. Under the decision in

the Heff case, if liquor is sold to an Indian and the Indian

happens to be an allottee, the person selling tht liquor to

him can not be prosecuted under the laws of the United

States which prohibit the sale of liquor to the Indians.

Mr. FINLEY. To what extent will this bill cut off the

present or prospective right of suffrage from the blanket

Indians?

Mr. BURKE of South Dakota. I can only answer that

question by guessing at the number of Indians who have

not taken their allotments, and I have endeavored to get

that information.

Mr. FINLEY. Will it cut off the right of suffrage

from any of the blanket Indians?

Mr. BURKE of South Dakota. Yes; I think it will.

Mr. CURTIS. None who have it now.

Mr. BURKE of South Dakota. It will not affect any

who now enjoy that privilege.

Mr. FINLEY. But it will prevent the extension of the

privilege to blanket Indians in the future until such time

as they receive their patents.

Mr. BURKE of South Dakota. Yes.

Mr. FINLEY. And the gentleman is of the opinion

that the blanket Indians as a rule are unfit for the exer-

cise of suffrage?

Mr. BURKE of South Dakota. I most certainly am of

that opinion.

Mr. STEPHENS of Texas. In what respect will it

prevent the sale of whisky on the reservations to these

Indians?

Mr. BURKE of South Dakota. I do not know that it

will have any particular effect, because if liquor is sold

now on the reservations it is a violation of the law.

33a

Mr. STEPHENS of Texas. I would like to ask the

gentleman if he can not frame an amendment that would

protect them from being sold whisky when they are at

the Capitol. [Laughter.]

Mr. BURKE of South Dakota. I do not think they

have any right to sell liquor here or anywhere else to the

Indians. I will yield to the gentleman from Minnesota.

Mr. STEENERSON. I understand the object of this

bill is to apply to those Indians who hereafter, after the

passage of this proposed act, shall be allotted lands in

severalty?

Mr. BURKE of South Dakota. Yes.

Mr. STEENERSON. That the mere allotment of lands

to such Indians in severalty shall not operate to make

them citizens within the meaning of the liquor law?

Mr. BURKE of South Dakota. That is right.

Mr. STEENERSON. It can not affect those who al-

ready enjoy the high privilege of purchasing liquor?

Mr. BURKE of South Dakota. Certainly not.

Mr. STEENERSON. I understand further that in the

proviso to this bill it is provided for granting lands in

fee without any restriction; that that provision is not

limited. That applies to all Indians anywhere that have

allotments?

Mr. BURKE of South Dakota. It does.

Mr. STEENERSON. And is operative whether allot-

ment has already been made or will be made in the

future?

Mr. BURKE of South Dakota. Yes. Now I will yield

to the gentleman from Wyoming.

Mr. MONDELL. Mr. Speaker, I would like to ask the

gentleman from South Dakota in what manner this bill

affects the status of Indians to whom allotments have

been made at this time and who have heretofore enjoyed

the privileges of citizenship?

Mr. BURKE of South Dakota. I will answer the gen-

tleman’s question by stating that it does not affect such

34a

Indians any more than it affects the Members of this

House so far as the question of citizenship is concerned.

Mr. MONDELL. Well, Mr. Speaker, that is a pretty

strong statement. The Indian to whom allotment has

been made has heretofore been held to be a citizen and

granted the right to vote in certain localifies. I do not

understand that he has been allowed that privilege in all

of the States. That privilege has not been exercised in

the past by reason of any legislation clearly denominat-

ing him a citizen, as I understand it, but by interpreta-

tion. Now, we provide in this statute that during the

trust period, which is twenty-five years, the Indian may

not exercise the rights of citizenship and is not subject

to the laws of the State or Territory in which he resides.

The gentleman from South Dakota is a lawyer, I be-

lieve, and I am not, but in my mind there is some ques-

tion—and I want to know if that matter has been care-

fully considered—as to whether by any possibility this

statute could affect the status of Indians who have here-

tofore been considered, by reason of being an ailottee,

entitled to the rights of citizenship.

Mr. BURKE of South Dakota. That question has been

carefully considered. I think the gentleman is confused

in his mind by the belief that because an Indian has the

right to vote within a State that therefore he is a citizen:

but a man may be a citizen of a State and not be a voter.

Mr. MONDELL. I am not confused on that point. It

is true, however, that many Indians have been considered

citizens, some of whom have exercised the right of fran-

chise and some of whom have not. I simply want to be

satisfied that this legislation would not affect the status

of these men who have heretofore been exercising the

rights of citizenship.

Mr. BURKE of South Dakota. I am positive, Mr.

Speaker, that it does not.

Mr. CRUMPACKER. This bill does not affect the

status of the voter. Thta is one of the rights of citizen-

ship; that is fixed by the State itself. In Indiana we

85a

allow a man to vote who is not a Citizen of the United

States. An alien who has lived in the State one year, who

has declared his intentions to become a citizen, can vote

at all elections, but he will not be a citizen for five years;

so the question of the voting status of Indians under the

law as it exists can not be affected by this bill one way or

the other.

Mr. MONDELL. I want to call attention to the fact

that Indians have been allowed to vote on the theory that

they were citizens and therefore entitled to vote.

Mr. CRUMPACKER. That is in your own State under

the State law?

Mr. MONDELL. By reason of the fact of their being

citizens of the United States.

Mr. CRUMPACKER. No Congress could take away a

right to vote that is granted in your State by any kind

of legislation that it could pass.

[3602] Mr. MONDELL. Mr. Speaker, upon the state-

ment of the gentleman from South Dakota [Mr. BURKE]

that in the opinion of the members of the committee the

bill does not affect the status of Indians to whom allot-

ments have heretofore been made, I have no objection to

the legislation.

Mr. KEIFER. Mr. Speaker, the amendment offered by

the gentleman from Kansas [Mr. Curtis] I think has

not been reported.

The SPEAKER. The Clerk will report the amend-

ment.

The Clerk read as follows:

Add, at the end of the bill, the following: “And pro-

vided further, That the provisions of this act shall not

extend to the Five Civilized Tribes.”

The SPEAKER. The question is on agreeing to the

amendments.

The question was taken, and the amendments were

agreed to.

The SPEAKER. The question now is on the engross-

ment and third reading of the bill.

36a

The bill was ordered to be engrossed and read a third

time; read the third time, and passed.

On motion of Mr. BURKE of South Dakota, a motion to

reconsider the last vote was laid on the table.

CONGRESSIONAL RECORD —-SENATE

March 12

* e a *

[3668] HOUSE BILLS REFERRED

H.R. 11946. An act to amend section 6 of an act ap-

proved February 8, 1887, entitled “An act to provide for

the allotment of lands in severalty to Indians on the vari-

ous reservations and to extend the protection of the laws

of the United States and the Territories over the Indians,

and for other purposes,” was read twice by its title, and

referred to the Committee on Indian Affairs.

[4153] REPORTS OF COMMITTEES

Mr. GAMBLE, from the Committee on Indian Affairs,

to whom was referred the bill (H.R. 11946) to amend

section 6 of an act approved February 8, 1887, entitled

“An act to provide for the allotment of lands in severalty

to Indians on the various reservations, and to extend the

protection of the laws of the United States and the Ter-

ritories over the Indians, and for other purposes,” re-

ported it with amendments, and submitted a report

thereon.

[5189] ALLOTMENT OF LANDS TO INDIANS

The bill (H.R. 11946) to amend section 6 of an act

approved February 8, 1887, entitled “An act to provide

for the allotment of lands in severalty to Indians on the

87a

various reservations, and to extend the protection of the

laws of the United States and the Territories over the

Indians, and for other purposes, was announced as the

next business in order on the Calendar.

[5190] Mr. McCUMBER. I ask that the bill may be

passed over, retaining its place on the Calendar.

The VICE-PRESIDENT. At the request of the Sena-

tor from North Dakota, the bill will go over, retaining

its place on the Calendar.

APRIL 20

[5605] ALLOTMENT OF INDIAN LANDS IN

SEVERALTY

The bill (H.R. 11946) to amend section 6 of an act

approved February 8, 1887, entitled “An act to provide

for the allotment of land in severalty to Indians on the

various reservations, and to extend the protection of the

laws of the United States and the Territories over the

Indians, and for other purposes,” was announced as next

in order on the Calendar.

Mr. KEAN. I do not see the Senator from South Da-

kota [Mr. GAMBLE] who reported the bill in the Chamber

at this time, and so I ask that the bill go over.

The VICE-PRESIDENT The bill will go over, at the

request of the Senator from New Jersey, without preju-

dice.

Mr. CLAPP subsequently said: In the absence of the

Senator from South Dakota [Mr. GAMBLE] I should like

to have the objection withdrawn to the consideration at

this time of House bill 11946. The Senator from South

Dakota who has the bill in charge is very anxious to have

it passed. I hope the Senator from New Jersey will with-

draw his objection.

[5606] Mr. KEAN. I do not know that I shall object

to the bill, but I should like to have some explanation of it

before it is passed. The title would indicate that it is a

38a

bill of some importance and one which would give rise

to debate.

Mr. CLAPP. I can make a very short statement in ex-

planation of the bill.

Mr. KEAN. I have no objection to that.

The VICE-PRESIDENT. Does the Senator from New

Jersey withdraw his objection to the present considera-

tion of the bill?

Mr. KEAN. I withdraw the objection.

Mr. CLAPP. Mr. President, under the existing allot-

ment law, when an Indian obtains his allotment he be-

comes a citizen, which divests the Federal Government of

all authority over the Indian, have so far as there may

be retained a restriction by the Government upon aliena-

tion of the allotment by the allottee. This has led to a

most deplorable condition in many of the reservations.

The purpose of this bill is to provide that in their future

allotments the rights of citizenship shall not attach until

the expiration of the trust period and the allottee obtains

his patent. It is a bill in which the Department is vitally

interested and one that should become a law.

The VICE-PRESIDENT. Objection being withdrawn,

the bill will be read for the information of the Senate.

The Secretary read the bill; and by unanimous con-

sent the Senate, as in Committee of the Whole, proceeded

to its consideration.

Mr. HEYBURN. I should like to ask the Senator from

Minnesota a question. I understand him to state that this

bill provides that Indians shall only become citizens of

the United States after the lapse of the time in which

they might prove upon their lands. Is that it?

Mr. CLAPP. Yes.

Mr. HEYBURN. Then here is the condition that con-

fronts us: We have in Idaho the Nez Perce Indians, for

instance, and the Coeur d’Alenes, who were provided for

the other day. Some of those Indians are now in the pos-

session of full citizenship. Would this bill prevent those

89a

that are not already within the limits of full citizenship

from completing their citizenship?

Mr. CLAPP. Yes, sir; it would.

Mr. HEYBURN. Then it would bring two classes of

Indians on the same reservation?

Mr. CLAPP. Yes, sir.

Mr. HEYBURN. At 12 o’clock in the day the Indians

who had before noon complied with the law and taken

their lands in severalty would have one status as citizens

and those who did not happen to get in at that time would

be shut off from citizenship under this proposed law. It

seems to me that there should be some amendment that

would prevent a condition where one portion of a tribe

would be citizens of the United States and occupy a posi-

tion above the other portion of the tribe. That would

hardly result in harmony in that tribe. It would create

an aristocracy of citizenship.

I am in favor of the general principle of the bill, pro-

vided it is amended so as to avoid those embarrassments,

and they would be serious embarrassments to the two

tribes in the State which I in part represent here, be-

cause just now their lands are in the process of being

alloted.

Mr. CLAPP. Mr. President, the condition to which the

Senator refers, I think obtains to-day upon every reserva-

tion in the United States under the existing law. A por-

tion of a tribe who have had their allotments made under

the existing law advance to certain rights of citizenship.

Those who have not received their allotments do not reach

that point in citizenship. The trouble under the existing

condition is that when they bet their first allotments,

ti.cir trust deeds, they become citizens. It is true that

under this bill those who have heretofore taken their allot-

ments will have the rights of citizenship, because no law

that Congress could pass could to-day divest them of the

rights which they have, but the bill will for the future

cure the evil that is found on these reservations, where

the Indians by merely receiving their allotments pass be-

40a

yond the jurisdiction of the Federal Government. We

can not avoid the condition to which the Senator referred,

because under the existing law there are two classes.

Mr. HEYBURN. I am anxious to perfect the bill

rather than to defeat it. Now comes this provision at the

top of page 2:

Then each and every allottee shall have the benefit of

and be subject to the laws, both civil and criminal, of the

State or Territory in which they may reside; and no

Territory shall pass or enforce any law denying any such

Indian within its jurisdiction the equal protection of the

law.

There is a discrimination in that provision between

Indians who live in the Territories and Indians who live

in the States, which I doubt if the Senator who prepared

this bill intended should exist.

Mr. CLAPP. I do not think it exists, because no State

could pass such a law.

Mr. HEYBURN. Well, then, why provide, as is pro-

vided in this bill? Of course, a State can not pass such a

law after the Indians do become citizens, but why pro-

vide that a Territory shall not pass any law denying the

Indians within a Territory the equal] protection of the

law?

Mr. CLAPP. Because we are legislating now for the

Territories and not for the States. A State could not take

away the rights of citizenship if it wanted to. We are

legislating for the Territories, and provide in this bill

that no Territory shall do it.

Mr. HEYBURN. Yes; but we use the words “State or

Territory” in defining the laws to which they should be

subject in line 4, on page 2.

Mr. CLAPP. No, sir; we use the words “State or

Territory” in defining the rights that the Indian attains

to. The bill provides:

Every allottee shall have the benefit of and be subject

to the laws, both civil and erimina

4la

Mr. HEYBURN. Well, he already is in a State.

Mr. CLAPP. Not unless he has got his allotment he is

not.

Mr. HEYBURN. The bill says “every allottee.” It has

been held by the Supreme Court of the Unted States re-

cently th taevery allottee has attained to citizenship and

has those rights, of course. There was a doubt about this

until a recent time, but it has been settled.

Mr. CLAPP. What would the Senator like to suggest

in the way of amendment?

Mr. HEYBURN. I should like to have time to look the

bill over and make a suggestion.

Mr. CLAPP. I do not wish to take up the time of the

Senate with a discussion of this bill this morning.

Mr. McCUMBER. Let me call the attention of the

Senator——

Mr. GALLINGER. I ask that the bill may go over.

Mr. McCUMBER. Let me call the attention of the

Senator to one matter. We are simply repeating the law

as it now stands with reference to the Indians, and what

has been the law ever since 1887. This bill does not add

to it, but, on the contrary, the exact language of the law

of February 8, 1887, has been recopied into this bill; so

that it will not affect the question whether it comes in

again or whether it does not.

Mr. HEYBURN. I should like to ask the Senator

Mr. GALLINGER. I ask that the bill may go over.

The VICE-PRESIDENT. Under objection, the bill will

go over without prejudice.

+ * *

[5805] ALLOTMENT OF INDIAN LANDS IN

SEVERALTY

The bill (H.R. 11946) to amend section 6 of an act

approved February 8, 1887, entitled “An act to provide

for the allotment of lands in severalty to Indians on the

various reservations, and to extend the protection of the

laws of the United States and the Territories over the

42a

Indians, and for other purposes,” was announced as next

in order.

The VICE-PRESIDENT. On April 20 last the bill was

considered as in Committee of the Whole, and was read.

The Senate, as in Committee of the Whole, resumed

the consideration of the bill, which had been reported

from the Committee on Indian Affairs with amendments.

The first amendment was, on page 3, line 2, after the

word “removed,” to insert “and said land shall not be

liable to the satisfaction of any debt contracted prior to

oF ae of such patent;” so as to make the proviso

read:

Provided, That the Secretary of the Interior may, in

his discretion, and he is hereby authorized, whenever he

shall be satisfied that any Indian allottee is competent

and capable of managing his or her affairs at any time to

cause to be issued to such allottee a patent in fee simple,

and thereafter all restrictions as to sale, incumbrance, or

taxation of said land shall be removed and said land shall

not be liable to the satisfaction of any debt contracted

prior to the issuing of such patent.

The amendment was agreed to.

The next amendment was, on page 3, line 8, to strike

out the words “the Five Civilized Tribes” and insert “any

Indians in the Indian Territory;” so as to make the ad-

ditional proviso read:

And provided further, That the provisions of this act

shall not extend to any Indians in the Indian Territory.

The amendment was agreed to.

Mr. CLAPP. I desire to offer an amendment to the

bill.

The VICE-PRESIDENT. The amendment will be

stated.

; The SECRETARY. Add at the end of the bill the follow-

ing:

That hereafter when an allotment of land is made to

any Indian, and any such Indian dies before the expira-

43a

tion of the trust period, said allotment shall be canceled

and the land shall revert to the United States, and the

Secretary of the Interior shall ascertain the legal heirs

of such Indian and shall cause to be issued to said heirs

and in their names a patent in fee simple for said land,

or he may cause the land to be sold as provided by law

and issue a patent therefor to the purchaser or purchas-

ers and pay the net proceeds to the heirs, or their legal

representatives, of such deceased Indian. The action of

the Secretary of the Interior in determining the legal

heirs of any deceased Indian, as provided herein, shall in

all respects be conclusive and final.

The amendment was agreed to.

The bill was reported to the Senate as amended, and

the amendments were concurred in.

The amendments were ordered to be engrossed and the

bill to be read a third time.

The bill was read the third time, and passed.

CONGRESSIONAL RECORD—HOUSE

April 27

[5980] ALLOTMENT OF LANDS TO INDIANS

The SPEAKER laid before the House the bill (H.R.

11946) to amend section 6 of an act approved February

8, 1887, entitled “An act to provide for the allotment of

lands in severalty to Indians of the various reservations

and to extend the protection of the laws of the United

States and the Territories over the Indians, and for other

purposes,” with Senate amendments.

The Senate amendments were read.

Mr. SHERMAN. Mr. Speaker, I move that the House

concur in the Senate amendments.

The motion was agreed to.

On motion of Mr. SHERMAN, a motion to reconsider the

last vote was laid on the table.

44a

[6089 ] ENROLLED BILLS SIGNED

H.R. 11946. An act to amend section 6 of an act

approved February 8, 1887, entitled “An act to provide

for the allotment of lands in severalty to Indians on

various reservations, and to extend the protection of the

laws of the United States and the Territories over the

Indians and for other purposes ;”

CONGRESSIONAL RECORD—SENATE

April 30

[6100] ENROLLED BILLS SIGNED

H.R. 11946. An act to amend section 6 of an act ap-

proved February 8, 1887, entitled “An act to provide for

the allotment of lands in severalty to Indians on various

reservations, and to extend the protection of the laws of

the United States and the Territories over the Indians,

and for other purposes; and

CONGRESSIONAL RECORD—HOUSE

[6233] H.R. 11946. An act to amend section 6 of an

act approved February 8, 1887, entitled “An act to pro-

vide for the allotment of lands in severalty to Indians on

the various reservations, and to extend the protection of

the laws of the United States and the Territories over the

Indians, and for other purposes.”

77951 MESSAGE FROM THE PRESIDENT OF

THE UNITED STATES

A message, in writing, from the President of the

' United States was communicated to the House of Repre-

sentatives by Mr. BARNES, one of his secretaries, who also

informed the House of Representatives that the Presi-

dent had approved and signed bills of the following titles:

On May 8, 1906;

45a

H.R. 11946. An act to amend section 6 of an act ap-

proved February 8, 1887, entitled “An act to provide for

the allotment of lands in severalty to Indians on various

reservations, and to extend the protection of the laws of

the United States and the Territories over the Indians,

and for other purposes.“

46a

HOUSE OF REPRESENTATIVES

59th Congress, Ist Session Report No. 1558

ALLOTMENT OF LANDS IN SEVERALTY TO

CERTAIN INDIANS

February 21, 1906,—Committed to the Committee

of the Whole House on the state of the Union and

ordered to be printed

Mr. BuRKE, of South Dakota, from the Committee

on Indian Affairs, submitted the following

REPORT.

[To accompany H.R. 11946]

The committee on Indian Affairs, to whom was re-

ferred House bill 11946, submit the following report:

The committee have amended the bill and, as amended,

recommend that it do pass.

The amendments adopted are as follows:

In line 9, page 1, after the word “of,” strike out the

words “twenty-five years or,” and strike out all of line

10, and insert in lieu thereof the words “the trust

period.”

In line 1, page 3, after the word “time,” insert the

word “to.”

47a

In line 4, page 3, after the word “removed,” add an

additional proviso, as follows:

Provided further, That until the issuance of fee-simple

patents all allottees to whom trust patents shall hereafter

be issued shal! be subject to the exclusive jurisdiction of

the United States.

This bill proposes to amend the general Indian allot-

ment law of 1887, and changes section 6 of said act so

that hereafter, whenever an allotment of land is made to

any Indian, citizenship will be withheld from such In-

dian during the trust period. It has generally been sup-

ported that where Indians had taken allotments under the

general allotting law that they were still wards of the

nation and subject to the jurisdiction only of the United

States, and in cases where persons were prosecuted for

selling liquor to Indians the courts assumed jurisdiction,

regardless of whether the Indians had taken an allotment

or not, but upon April 10, 1905, the Supreme Court of

the United States decided otherwise in a case entitled

“Matter of Heff,” reported in 197 U.S. Reports, page 488,

the opinion of the court being by Mr. Justice Brewer.

In that case Heff was convicted in the district court of

the United States in the district of Kansas, under an in-

dictment for having sold certain intoxicating liquor to

an Indian and a ward of the Government; upon convic-

tion he was sentenced to imprisonment for a period of

four months and to pay a fine of $200 and the costs of

the prosecution. He appealed, and the court of appeals

of the eighth circuit sustained the decision of the district

court, and he presented an application for a writ of

habeas corpus to the Supreme Court. In effect the court

holds that under the law, when an Indian takes an allot-

ment, that he then becomes a citizen of the State or Ter-

ritory in which he may reside and subject to the laws

thereof, and is no longer a ward of the nation, subject to

the police regulations on the part of Congress. In con-

cluding the opinion the court says:

48a

We are of the opinion that when the United States

grants the privileges of citizenship to an Indian, gives to

him the benefit of and requires him to be subject to the

laws, both civil and criminal of the State, it places him

outside the reach of police regulations on the part of Con-

gress; that the emancipation from federal control thus

created can not be set aside at the instance of the Gov-

ernment without the consent of the individual Indian and

the State, and that this emancipation from Federal con-

trol is not affected by the fact that the lands it has

granted to the Indian are granted subject to a condition

against alienation and encumbrance, or the further fact

that it guarantees to him an interest in tribal or other

property.

The district court of Kansas did not have jurisdiction

of the offense charged, and therefore the petitioner is en-

titled to his discharge from imprisonment.

Mr. Justice Harlan dissented.

Since this decision was rendered there has been more

or less demoralization among the Indians, as most of

them have taken allotments and liquor has been sold to

them, regardless of the fact that they are Indians, and in

the opinion of this committee it is advisable that all In-

dians who may hereafter take allotments be not granted

citizenship during the trust period, and that they shall be

subject to the exclusive jurisdiction of the United States.

The bill also provides and authorizes the Secretary of

the Interior, in his discretion, whenever he shall be satis-

fied that any Indian allottee is competent and capable of

managing his or her own affairs, may cause to be issued

to such allottee a patent in fee simple, and thereafter all

restrictions as to sale, encumbrance, or taxation of said

land shall be removed, and if that should be done it would

follow as a matter of course, under the provisions of this

bill, that the allottèe would then become a full citizen and

49a

no longer subject to the exclusive jurisdiction of the

United States.

In the opinion of the committee this provision is ad-

visable, as it will make it unnecessary for legislation

granting fee-simple patents to individual Indian allottees,

as has been done in every session of Congress for several

years, and it places the responsibility upon the Secretary

of the Interior and the Indian Department, who know

best when an Indian has reached such a stage of civiliza-

tion as to

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