Petition for Writ of Certiorari — Board of Comm'rs of Jackson Cty. v. United States

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of lar = Sepa Coury U. 8...

J MAR 8. 1939 |

CHARLES ELMORE

OROPLEY

OLWé Ae

IN THE SUPREME COURT OF THE UNITED STATES

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; October Term, 1938 — :

No Qe 1 4 fetes Ne,

THE BOARD OF COUNTY COMMISSIONERS OF *THE COUNTY OF

JACKSON, IN THE STATE OF KANSAS, A BODY POLITIC AND |

. QUASI PUBLIG CORPORATION, PETITIONER,

; “VS.

UNITED STATES OF AMERICA (M- -KO-QUAH-WAH, ALLOTTEE No. 198,

AN INCOMPETENT INDIAN OF THE PRAIRIE BAND OF POTTA-—

’ ' WATOMIE INDIANS), RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI REQUIRING THE |

‘. CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT

TO CERTIFY TO THE SUPREME COURT, FOR ITS RE-

VIEW: AND DETERMINATION, THE CASE OF THE

_ BOARD OF COUNTY COMMISSIONERS OF THE COUNTY

OF JACKSON, IN THE STATE OF KANSAS, A BODY ©

POLITIC AND QUASI PUBLIC CORPORATION, APPEL

LANT, VS. UNITED STATES OF AMERICA (M-KO-QUAH-

WAH,“ ALLOTTEE No. 193, AN INCOMPETENT INDIAN

OF THE PRAIRIE BAND OF POTTAWATOMIE INDIANS),

re ae 2s Berens Sane, +

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THE Boarp or County’? CoMMISStONERS

ax : OF THE COUNTY OF’ JACKSON; IN THE

| STATE OF KANSAS, @.- Bony. Po.itic

AND Quast PusLic ORPORATION,

-Petitioner= — ~ —-

DEAN SHRADER, : \ By THomas. M. LiLisrp,

County Attorney of ~ Of Topeka, Kansas,

Jackson County A Kansas, . Counsel for Petitioner.

FLoyp W. Hosss, f ieee :

‘Of Counsel. Appa eee aps

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Petition for Writ of, Certiorari. are beeen Siehe ie re

Summary Statement of the Matter Tivolved Fs ahs ey 2

The Sole Questién Involved... :...05............... 2 3

The Allegations of the Petisaon. EP REET METS ER TS eta ESM |

The Evidence Be MN bth cies ceeds ie ee ve

Reasons Relied. Upep for Allowance of of the Writ, nT eS

Brief i in ‘Support of Petition for Writ of Certiorari , pak’ Os 8.22

The Opinion: of the Court Below..... DE Pope E Se SCRE - 8

Jurisdiction . . oe Mie eee ee fe, ae

Statement of the Case. Ba ee ae als ee

Specification of ‘Erroré Sie BA es iris nA Na a “ai Bao tol

-. Argument - - aha pening vas Sg teas re

Conclusion Sects h pees els o' oe fee PTET,

Appendix . ar SOE: ECan Ronee ree - als

Article 2. and’ 3 of the Tieaty of November AS; 1861. 7

Cy a (eee Pee ae “Sey 23

Section 5 of the General ‘Allotment J ct of February 8, ue

eed, e. 119 (24 Stat. 38; 25 US. np BEL. F486)... aire. 7

- Act Sf May 8, 1906, c. 23.48 ee Stat. 182, 2 U.S.C., ee

Sec. 349)...» eR SS AE OPES GAS eee bang Ghar rn e . 25 |

-- . Actof February 26, °1927, c. 915 4. ‘Stat. 1247) as

Amended by the Act of February 21, 1931, c. 271

(46 Stat. 1205, 25 USSG, Sec 2) eee 25

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ye Statutes Cited

- Jiadicial Code 240, as amended by Act of vain 13, °-

1925, c. 229, Sec. I, 43 Stat. 938 (28 U.S.C.A. aie 8

15.R.C.L.,; page 17: 7....... EE Gas Sabinin ag KRU wae wa ss 12

Federal Judiciary Act of 1789, ‘Sec. 34. (28 U SCA, Lo

Sec. 351). aay « ey heen ES ore ee Ee ote e sae oos 2

hse 3 - 3 Cases Cited a if

“Erie R. Co: v. ‘Tompkins, 304 US. 64, 58 S. Ct. 417,

62 L. Ed: 787.44... ME Pe ne OFT, APY ye TOs ‘Ss bh Rdg oe

_ Flemming: v. County Commissioners, 119 Kan. 598, pr

SE Te a cua Nave wk beeen tae aeek sven Shhh eres |

Glacier County, Montana, v. United States,

99.F. 2d 738... :. b ixvarg oa Rie aad ew Gke PEDIC S xpere 5, 19

Kittredge v. Boyd, 137 Kan. 241, 20 P. 2d 811... dewate eee 19

Jackson County y. Kaul, 77-Kan. 717, 96 P. 45... .. Peres "st §

Salthouse v. McPherson County, 115 Kan. 668, 224 Pac. 70. 11

Seaboard Air Line R. Co..v. U. S., 261 U.S. 299, 304,

43 3. Ge. 354, 355; G7 LB. G66. os ie ccnes cadets. 17

School District’ v. County Commissioners, 127 Kan. 999,

273 Pets SEF oak anus esa DS the ka 4S S 5 ALE SR iy 1 Y

United States v. Board of C commissioners of ‘Comanche |

> County, Oklahoma, OF. BOO, Goi s isid ies geese s sae.

United States v. Board of County Commiagplicys of Pawnee

County, Oklahoma, 1S &. Supp. O41 235 ar ae eres 19 -

United $ Statés v. Lewis County, ‘Idaho, 95 F: ‘2d 236 . woe. 5, 20.

United States.v. Nez Perce County, Idaho, - : ral .-

95 F 2 2825. ip. i Nesacures enw t tes Te BAe 207 8.

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“IN THE SUPREME COURT OF THE: UNITED STATES |

_ October Term, 1938

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No.

THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY, OF

JACKSON, IN THE STATE OF KANSAS, A BODY -POLITIG AND

. QUASI PUBLIC CORPORATION, PETITIONER,

: \ ee Seer, | nf Xs

4 UNIT ED STATES OF AMERICA. (M- KO. -QUAH-WAH, ALLOFTEE No. 193,

-- AN INCOMPETENT INDIAN OF THE PRAIRIE BAND OF POTTA-

. WATOMIE INDIANS), RESPO:. DENT. - ;

Rese? Bray AU ie

PETITION FOR A WRIT OF CERTIORARI REqumina THE :

CIRCUIT COURT OF APPEALS F(R THE TENTH CIRCUIT

“TO CERTIFY TO THE SUPREME OGURT, FOR ITS RE-

VIEW AND DETERMINATION, THE CASE OF THE

BOARD OF COUNTY COMMISSIONERS OF THE COUNTY

OF JACKSON, IN THE STATE OF KANSAS, A BODY

POLITIC AND QUASI PUBLIC CORPORATION, APPEL. |

' ¢ EANT, V8. UNITED STATES OF AMERICA (M-KO.QUAE-

WAE, ALLOTTEE No. 193, AN -INCOMPETENT INDIAN

OF THE PRAIRIE BAND oF POTTAWATOMIE INDIANS), |

ye

APPELLEE.

e

To the Honorable The Supreme Court of the United States:

The petition of The Board -of County Commissioners of °

the County of Jackson, in the State of Kansas,’ a boy politic

and. quasi public corporation, : tiene: respecsfull shows to -

this Honorable Court.

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SUMMARY STATEMENT OF THE MATTER INVOLVED. |

The United States of America instituted this action Decem-

ber 23, 1936, in the District Court of the United States for_

the District. of - Kansas under the direction of the. Attorney,

General of the United, States to recover a judgment against

The Board of County Commissionets of Jackson County, Kan-

» sas, on account of taxes collected By said’ County during the-

years 1919-1933, inclusive, upori. farm land in’ Kansas which

had been allotted to a certain Indian under the General

‘Allotment Act: of ‘February 8, -1887, c. 19 (24 Stat. 38, 25

U.S.C.A. 348). (For text of Act, see Appendix B.) . The

- amount claimed in the petition’ was $3,073.70, being, the prin:.

- Cipal amount. of faxes paid by the: Indian, plus accrued inter-

est. The. amount of taxes actually paid .was $1,966.96, and

, the interest claimed amounted to $1,106.74, which made ae

* the gl ese for as above stated.

~ The District Court entered judgment in favot of the plain.

: tiff for the amount of $3,277.49, which included interest up to

- the lith day of September, 1937, the date of the rendition. .

of the judgment, together with interest thereafter. at the

rate of six Per cent per annum until Lege An appeal was.

cuit, in which the jillgnncnk of: thé District Court was affirtyed

(fr, 61- -72.) A petition for rehearing was filed Abie 7%), —_

was thereafter, denied.

. qa) : ‘The Sole ‘Question Leveled:

The action was sneccbials brought under the authority of

Section 24 of the Judicial Code, Sub-section (1), as ,amendéd :

bring this action .on behalf of the Indian, M-Kg-Quah-Wah, »

(28-U.S.C.A. 41 (1)). ‘The authority of the United States to

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is ; not challenged; not is the correctness of the judgment of

the District Court in permitting recovery of the principal |

amount of the tax money paid by the Indian to thé County

‘now a macter of issue here. The sole. contention is tha the

’ District Court was in error in rendering jadgritent in favor.”

of the Unitéd States and against The Board ‘of County Commis- |

sioners of Jackson County, Kansas, for interest on the principal: ~ .

amount of the taxes’ collected from ‘the Indian (Tr. 13-14),

- it having been stipulated by and between’ the sparties that - .

if recovery of such interest could be had. it would be in the -

" amount of -$1,311.36.: -(Tr. 43.) ° 3 pty

Fhere ‘are a number of Indian allottees in n Jacksan’ County,

Kansas, from whom taxes have ween collected in a manner’

Similar to the taxes collected . from, the Indian, M- -Ko-Quah-

Wah, in the present case:: Thé decision in this case will there-

fore determine as to whether many others, along with the

oe Indian involved . inf this . case, may collect interest on ‘back’

taxes oe a refund of tax paynients is sy. 2h recoverable.”

(2) The Allegations of the Petition.

The petition filed by the Government. (Tr. } ‘to 5, inc?) °

alleges that the land in. Jackson County, Kansas, was allotted.

to the Indian’ in question; that on August 15, 1893, a trust

patent was issued to hef covering the premises in question

under the Fifth Section of ‘the General Allotment Act (see.

‘ Appendix B) hereinbefore: reférred to; that in accordanée

with: said -Alotment Act the trust patent so .issued™ provided

that the land should be held by the Government for a period

- of twenty-five’ years in trust for the sole benefit and .use of-

__ the Indian. or her heirs; that at the expiration of said per- |

_ tod the United ‘States would convey the land by. patent to

the Indian. or her heirs in fee, discharged of said trust and

free from all charges or ehcumbrances whatsoever. .

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The petition of the Government further! alleges that on”

_ April, 17, 1918, a patent in’ fee was “issued to. the Indian -

withour’ her consent, which on’ its face: purported to convey

‘the land an fee simple to the Indian allottee. The taxes

sought to be recovered as set out in the petition of the Gov-

ernment were those paid for the ‘years from 1919 to 1933,

inclusive, in. the total. amount, as hereinbefore. stated.

The petition further alleges that the fee simple patent.

was cancelled by-- the Government on May 31, 1935, under.

authority of the Act of Congress approved Februaty 26,

"1927, 44 Stat. L. 1247; as amended | by the Act of February

21, 1931, ¢..271, 46 Stat. L. 1205 (25 U.S.C C.A. Ets (For

‘text of ‘Act, see Saran D.) |

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(3) °The Evidence... 2

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The evidence:-shows that’ the indian did not request the

_ issuance of this feé patent; that the taxes were paid for her

by. her husband, or by the admmistrator of her husband's

ma estate, from her funds, or funds that had’ been accumulated '

ah herselt ‘and her husband from the land so patented to -

(Tr: 35-36-37.) . The “Government at no time “jariig

a litigation. has contended that the taxes were paid by the

Indian, or on her behalf, under formal protest. as provided -

by statutes of the State of. Kansas. ied . .

' The. ev idence introdtced ‘on’ behalf of the Government

re shows that a Government Competency Commission | _investi-

‘gated’ the allottee Indian in December ‘of 1917, the year

"prior to the issuance of the fee: patent . refetred to above.

The- report of | this Commission (Tr. 29-30) shows -that. at

tliat time the Indian and her husband . had a ‘well improved

e home, a large barn, wells, windmills, and. other ‘farm ‘build. -

"ings; ‘an automobile, ten or -fifteen head of horses and mules, .

a large herd of cattle? iricluding a bunch of thoreéaghbred

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Galloways. The Commission concluded that. the Indians, were 5

very. competent people, and so advised the Office ‘of Indian

Affairs, which office, in- turn, recommended - that the fee.

patent be issued. (Tr. 30.) The County officials did not be

gin. to levy taxes Until the year after this fee patent was is-

- Sued, and no taxes, were levied or collected: -after the fee .

“Patent + was: cancelled. SAGAS | Spee as

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REASONS RELIED UPON FOR ALLOWANCE OF THE WRIT

I. The decision of the Circuit Gourt of Appeals’. the

~ Tenth Circuit. in the present. case. 100 F. 2d 929 (Tr. 61 to.

+ ie inc.), as to the. right of the Indian allottee to recover.

interest on taxes erroneously assessed and collected against aS

her by the defendant, Jackson | County, Kansas, is directly. in ce

. conflict with: the decision ‘of the. Circuit Court of Appeals

for the Ninth Circuit: in the case of United States. v. Nez

Perce County, Idaho, 95 F. 2d 232; and in direct conflict with.

a sirnilar case in the same Circuit, ‘entitled United States v.

Lewis County, Idaho, 95 F. 2d 236, and in direct conflict with

the decision of the United States Circuit Court of Appeals :

for the Ninth Circuit, when--both of the. cases just referred to”

* were before that Court on consolidated rehearing, as reported

__in 95 F. 2nd 238; also in dj conflict with the decision of

‘th Ninth Circuit Court of Appeals in the case of* Glacier

eCownty, Mentaria, v. United States, 99, F. 2d 733. The Cir-

cuit Corrt of Appeals for the Ninth Circuit’ in the aforesaid

cases hdld upon facts Preece identical with: those existing, .

“in the present case’ that the vernment was not entitled to

Tecover interest on behalf of Indian allottees on taxes which

had’ been paid to the’ defendant counties over a period of

years, The decision of the Circuit Court of Appeals ¢for the 4

. Tenth Circuit in this case is an erroneous decision, the de-

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_ > Of federal law: which has not been, @but which should we

* certiorari -issue’ under the. seal. of this Court, | directed to the -

go :

_ cisions of the Circuit r= of Appeals for the Ninth Gircuin,”

being the correct ‘legal ‘conclusion to be applied. ng) cael

a A The, decision of the Circuit Court of Appeals for the:

Tenth Circuit in the present case, as ‘above referred to, as

to the-right of the Governmeni to recover interest for ari In-

“dian allottee. on taxes erroneously collected from her, en

_ helding that such interest charges | could be collected, is ade.

. cision, on an important question of. local law in a way ice

“is in conflict with applicable;local .or state decisions. a

ie The decisidns of the Circuit Court. of Appeals for ae

Tenth Cireuit in the present. case, as above referred to, by — :

holding that interest may be recovered by the Government

on behalf of an Indian allottee from a “county, \which | is a,

political subdivision of a state, involves an important question

settled by this Court. 9. 0. | ; ‘SS ;

WHEREFORE, your petitioner seapecthaly prays, that a Ge =

United States Circuit Coart of Appeals for the. Tenth Cir’

cuit, commanding said Court to certify and: send to this t

- Court a full and complete transcript of the, record, and all :

" proceédings of said Circuit: Court, had: in the ‘tase numbered .

and entitled on its docket, No. 1728, The Board of County

Commissioners of. the County ° of Jackson, in ‘the State of

_ ‘Kansas, a body politic and ‘quasi public corporation, Appel:

—lant,sv. United States of America (M- Ko-Quah-Wah, Allottee

» No. 193, an Incompetent Indian of the Prairie Band of Potta-

. watomie Indians), Appellee, to the end that this cause may

be reviewed and determined by this “Court, ; as provided for. ©

by. the statutes of thé United States, and .that ‘the ee

herein of said United ‘States Circuit Court of Appeals be

reversed by his Court, and for such further relief as to the ,

~ court may seem proper. :

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‘s Caples of be- transcript of the record in \this case in the

Circuit Court ef Appeals. for the ‘Fenth Circuit are filed

herewith in rene with ‘Rule No. 38. of _ Honorable

Court. . , .

. . ; : 4 Tue BOARD -OF » decane colhiiabiones

pee ee OF THE CoUNTY OF JACKSON, IN THE

~. * e - $raTe oF Kansas, A Bopy Potitic

é . | _*, AND Quast Pustic’ Cogporation,

oO aaa Moe : Petitioner.

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patna R By Tyona’, M. Litrarp,

eae Fe RR NE Ss se ‘Topeka, Kansas, * -j

bak pees $i es Counsel for. Petitioner.

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| January 23, °1939. (Tr. 79.)

,' ,

BRIEF IN SUPPORT OF PETITION FOR:

- WRIT OF CERTIORARI

Be See SAS ede re

y : THE OPINION OF mix COURT BELOW. es

The opinion of the’ United Seates Circuit Court of Ap-

_ peals for the Tenth Circuit (Tr. 61-72), sought to be re-:

yiewed was handed down on. December 10, 1938. It is re-

ported in,100-F. 2d 929 (Advance Sheet No. 7). Petition for

rehearing was filed .in‘ said Circuit Court of Appeals on

January 9, 1939. (ir. 75-77.) This petition was denied on

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| II.

oe -. JURISDICTION -

The ground on which the jutisdiction of this Court ‘is

-' invoked is the Judicial Code_240, as amendéd by Act of Feb-

_tuary 13, F925, c. 229, Sec. 1, 43 Stat. 938 (28 U.S.C.A. 347),

* providing fox the issuance-of writs of eertiorari by ‘the Supreme _

Court of the United States to review judgments of the Circuit

Courts of ok im o ,

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STATEMENT OF THE CASE ===,

"The nature of the case and the ruling of the Circuit Court

of Appeals for the Tenth Circuit is set forth jn the forego- -

ing petition (Point A, pp. 2 2-5) which is adopted as a part of

this brief. : ‘ hn - ff

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| IV.

SPECIFICATION OF ERRORS.

. The Circuit Court of Appeals below erred: ‘"

my In holding that the United’ States of America on ‘be

half of M,Ko-Quah- -Wah gould recover interest on taxes.which

she paid to Jackson County,, Kansas, during the time she

held a fee patent from the Government to the land which was

the subject of the taxes, and such holding is contrary to de- —

cisions of the Ninth. Circuit Court of ‘Appeals in cases prac-

- identical in facts and circumstances.

In holding that the. United States Government had

e right ‘to recover interést for an Indian allottee on taxes |

collected on Kansas land, which decision involves an import-

ant question on local law contrary to and in. conflict with

decisions of the Supreme Court of the State of Kansas.

ARGUMENT; —st:

" Unless the Government is Held Entitled to Interest as a

Strict Matter of Legal Right as by Force of Statute or

Contract, it is in no Position to Demand Interest Pay-

ments From the County on Behalf “. ‘an Indian ne

as Damages. :

There -is no statute in the Siate of Kansas which authorizes

the collection of interest from a county. The Kansas Supreme

Court holds that a county is a political subdivision of the

State. : oF

The Supreme Court of the State of Kansas in the case of

- Jackson” County w. Kaul, 77 Kan. 717, 96 P. 45, held as- fol-

lows, as shown by the soso of the case, as oe by

the Court: a Sew

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cs “The general interest statute. allowing creditors to

receiye in the absence’ of contract, interest upon money

» after it becomes due cannot be interpreted to impose

3 liability upon a county, which is a political subdivi-

sion of the state, organized for. purely governmenrital pur-

_ poses. and endowed with quasi-corporate powers only;

‘ and, in an action against county officers to recover taxes —

wrongfully exacted. over the protest of the taxpayer and

. through the compulsion of a tax warrart, interest on .

_ the money from the time it was paid (j*then being due):

cannot be recovered.” ;

In the opinion, “referring to the general statute of the

‘ State of Kansas which permits’ creditors to receive interest

at the rate of six per cent per annum ‘when-no other -rate

of interest is agreed upon, for any money after it becomes

dae (Sec. 41-101, GS. Kans. 1935), the comrt said:,

“The word | Beditors is here used in the ‘broad sense

. of those who have the Jegal right to demand ‘and re-

ceive the payment of money, and includes the plaintiff

in the transaction .under investigation.. "The money

having been wrongfully extorted from the plaintiff by the

threatened seizure of his property under the tax war-

rant then in the sheriff's hands for execution, the county

- had no right ¢ retain, it for a single day. It owed thé

pltintift the duty’ to make restitution at once. (See

22 Cyc. 1506.) No demand was necessary, because the

money had been exacted over the plaintiff's protest and

denial of liability. Therefore the money was ‘due’ as

soon’ as the county had ‘taken it. , ‘ v

“So far the statuté has been looked at from the cred’

_ itor’s side. Considered from the viewpoint of the detitor,

it imposes a duty and a liability outside of contract which

would not otherwise exist. Do its merely general terms

extend to counties? The general rule.that the’ state

is ‘not, bound by statutes limiting rights and imposing

burdens unless it be expressly named or be intended by

7 mecetaary. er is familiar. (The. State v. Book

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ke Sa

Co.,'69 Kan. 1, 24, 76 Pac. 411, and authorities there

cited.) “To bind the state by an implication it must

' be one that is unavoidable. If there be a doubt upon’.

the subject, that doubt must be resolved in favor of .

the state. (The State v. School District, 34 Kan. 237,

242, 8 Pac. 208.)

“Counties are mere political subdivisions of the state.

(Commissioners of Shawnee County -v. Cartere 2 Kan..

115.) They are mere instrumentalities of the state in the

_ exercise of its governmental functions, and -are given cor-

porate power only so far as may be necessary to aid’

a fumstions. They are only quasi-corporations ‘(Com-

/ eosho Co. v. Stoddatt, 13 Kan. 207, 210; Free-

‘land v. Stillman, 49 Kan. 197, 207, 30 Pac. 235; In re

Dalton, 61 Kan. 257, 264, 59 Pac. 336, 47 L.R.A. 380;

The State v. Wilson, 65 Kan. 237, 238, 69 Pac. 172), and :

are clearly - distinguished from municipal organizations

like cities, which are given far greater powers and are

endowed with much laiger measures of corporate life.

(I Dill. Mun. Corp.,.4th ed., No. 25; 11 Cyc. 341 et seq.)

This suit can be maintained only because it relates to

a -subject which falls strictly jvithin the hmits of ex- .

_pressly gtanted authority. If it does not, the county

- cannot be sued any more than the state itself. When

the statutes have made no distinction a: county is en-

titled to the game privileges and immunities of the

state.” ;

As indicated, the collection of interest from the county was

denied. As stated above, there is no {other statute in Kansas

witich evidences the consent of that state to a recovery of |

. Interest upen tax money which has been collected erroneously.

In the case of Salthouse v. McPherson County, 11

668, 224 Pac. 70, it is held:

“A: - judgment against a county in an action fon the

repayment of a void tax ‘does not bear interest, the

statute ‘providing in general terms that judgments’ shall

bear interest not applying. where the state or county is

the debtor.” ~

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_—--2- an-the-é vinion, 15 R.C.L., page-17, is cited. This text

reads as folteys: ¥

‘It is well settled, both on principle and authority,

“that a state cannot be held. to the payment of interes:

on its debts unless: bound by an act of the legislature

or ‘by a lawful contract of its executive officers “made

-. within the scope of, their duly constituted authority.

This principle applies to bonds,*clams; judgments, and .

. warrants. The theory upon which the rule is based is

that whenever interest, is allowed either by statute’ or

by. common law, excépt in cases where there has been

a contract to pay interest, it is allowed for delay or de-

fault of the debtor. But delay or default cannot be

attributed to the government. It is presumed .to be |

- always ready to pay. what it owes. The apparently-fav-

+. ored position of the government in this respect has

- been declared to be, demanded by. public’ policy. A

county is generally regarded as but an arm or agent ofa

the state, and not liable for interest, in the absence of,

an express agreement to pay it.”

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This rule is.also followed in the case of School District v.

County Commissioners, 127 Kan 2927 273 Pac. 427, where it

was held: ., *.” tie ee ae

“Interest may not bemecavered from ‘a ‘coumty except »

through express provjsion of statute.”

This, chess: is the rule ’in Kansas aca the collection

of interest ftom’ counties, which, as is demonstrated by the

case of Jackson County v. Kaul, supra, are regarded as if:

s(rumentalities of the state. The ruling of- the’ highest°courty

in Kansas is to the effect that there is no applicable statute

in’ Kansas which authorizes the collection of interest. on

judgments for the: refund of tax money erroneously collected. . *

aA similar’ situation. as to law exists in the State of Idaho. — |

In that -state there is a statute — allows interest on taxes |

refunded after’ erroneous collection, but there is, : statute

of that state which evidences thes consent of the state to a :

a récovery of interest in a case such as is presented here. Under

- ‘such a, state of facts and circumstances, the United States

Circuit Court’ of Appeals for the Ninth Circuig, held’ that

interest could not be recovered by the United States on be-

half of .an Indian ward living in Idaho.’ The facts there

were practically identical to the facts in the present case.

See United States v. Nez Perce County, Idaho, 95 F. 2d 232.

> - On page 236 of the — in that case the following ree

“The recovery of interest on the amounts paid as taxes .

should not be allowed. Interest may not be recovered ©

‘upon money due from the sovereign ‘unless some posi-

>. , . tive statute or contract of the state evidences its consent

' to pay it. United States v. North Carolina, 136 U.S. 211,

10S. Ce 920, 34 L. Ed. 336; United States v. North

aes American Transp. & Trading Co., 253 U.S. 330,. 336," 40°

S. Ct. 518, 64 L. Ed. 935; Seaboard Air Line -R. Co. v.

- .°- United Stales, 261-U.S. 299, 304, 43-S. Ct. 354, 355,

: 67 L. Ed. 664. The cougty is:a political subdivision of — -

the state, and as such would seem to be’ entitled ‘to this

form of fmmunity. While the Codé provision (section

61-1902, Idaho Code 1932) allows interest on taxes re- ’.

funded. after erroneous collection, the ‘statute has no

application in suits for refund brought in the federal

courts. We are not aware of any statuteof the State of

Idaho which evide a the consent of that state to, a-

recovery of ,interest~in a situation such as the one pre-

sented here.” (Italics ours.)

A rehcarifey was granted in that case on the sole conten-

tion that thé court committed error in denying to the. Gov-

ernment the recovery of interest. .The opinion denying a

‘ebearing i is reported in 95 F. 2d 238, beginning on Pied 239 .

the court uses the following language: :

ae eee TS eye

“Unless the government is here ential: to interest

as a strict matter of legal right, as by force of statute or

contract, jt is in no position to.demand interest as dam-

ages. Its situation in that respect is conspicuously lack-

ing in equity. The amended bills in these cases were’

filed in September, 1935. This was nine or ten years

after the last payment of taxes had beén made by the |

Indians, and the payments themselves had extended over

a prior period of fdGr or five years. Thus interest is

sought on payments made as long as fourteen «years

_ before’ the. commencement of the suits, and in no in-

stance has the delay ‘in secking recovery been less than’ .

nine years. These delays are in no m@ggner traceable to

fault on the part of the counties or their governing offi- -

cials, but are due to inexcusable laches on-the part of

the governnrent itself. Again, the counties were in no

way responsible for the issuance of the fee patents to

the Indians in the first place. This was-an act of the

government itself; occasioned .by facts and circumstances

peculiarly within the knowledge of those fepresenting

_it. The local authorities had a right to rely upon the

conduct of the government in the issuance of the pat-

efi, and were by this conduct induced to believe that | ‘¢

' the lands were subject tor tax. , The good faith of the

counties and of ‘their officers and’ governing boards. is

not open to question: For many years their budgets.

were formulated and their levies were fixed on the as

" sumption—certainly- jot an ‘unreasonable. one—that these

‘ patented lands were part of the whole bédy .of property

‘subject to’ tax. Were the rights of the United States —

‘ alone to be considered in these cases, its conduct might —

properly be held to estop it from any recovery at all.

Nor, as indicated in the: original opinions, is there a

showing in either case that the Indian. paid the taxes

under protest. We have held that the United States is

net preclude ea th is account frém recovering the —

_ principal of the tax) buc it does not follow that ‘the

Indians, having paia the taxes without protest, are them:

selves? equitably ‘entitled to interest by way of damages

because of the retention of the moneys so paid. Nor is

re me ee - arenes y! x .

aa D le Se :

: em. + aes

7

15

‘there any. - showin ng that the ‘counties have yet or

_ received interest, ‘on the moneys illegally exacted.

“Under ‘all the circumstances, it ‘is clear that,the gov--

enment is. entitled to no more than a refund of the

principal of these payments. The allgwancé of: inter-

* @t, even if normally recoverable, WA be an abuse of

discretion.” we . ee

In the present: case, the -petition of the Government was ©

filed‘on December 2%, 1936, fifteen years after the first _pay-

ment of taxes wis made, and more than tivo. years after the

last item of taxes had been paid. Thus interest is sought =

on payments made as. long as fifteen-years before the com-

mencement-of the suit. As in the opinion last above quoted

from, athe delay in attempyng to collect thee taxes | is in no

manner tracéable to fault, on the part of the, county or its

. otheers, butt és due alone to the laches on the part, of the Gov-

ernment. Also,‘as in the foregoing case, the county heré was

in no way responsible for the’ issuance of the fee patent to

the Indian allottee. T hat was an act of the Government,

the p@fintiff in the case, occasioned and prompced by facts and

circumsiances which were peculiarly within the knowledge of

the. Government officials. | “ |

We submiit the logic of the court in the above case, wtime

it hoids that under such a sitiation the local authorities had

a rig ‘rely upon the conduct of the Government in the,

issuance of the patent and that they are warranted | in be- .

lieving the lands were properly, taxable, is sound. There

was no evidence in this case which in any way questioned

; > the ‘good faith of the.county officers, and there is nothing to

'. show that they ‘were arbitrary or unreasonable in ‘making

' the tax levies against the property of the Indian in question.

As’ in the foregoing case, they undoubtedly made their

budgets and the levies were fixed upon the very reasonable

assumption tHat these lands having been’ patented in fee by”

a 16

the Governinent were ‘subject to- taxation.: There is no show-

; ing in the case that the county has ever received interest on

the tax inoneys collected from the allottee in. question. In

fact, tRe evidence is directly. to the contrary, in thgt it shows.

the county, officials largely disbursed: the money to state, town-

ships and school districts; the county having been the col-”

lecting agency for those’ branches of the state government. :

There: are. many Indians in Jackson- County, . Kansas, for

rule as announced and found by the Circuit Court: of .Ap-

_ peals for-the Tenth: Circuit is permitted to stand, many other

large items of interest. of this character, will be charged: to,

and collected from Jackson County, Kansas. The county is

rural in its characteristics.. The farmers and few business

men residing therein are m very low financial condition. | If

these citizens" are ‘required to pay interest.on these ancient

—

tax levies, which were occasioned by errors on the part of the

Government ‘in the issuance of fee patents to Indians, an

extraordinary and unreasonable additional financial burden

_Will be casy upon the Kansas citizens: ‘to the unreasonable .ad-

vantage of Indian atortees. So far as the record in this case *

is concerned, the indian here involved was, and is, financially

- whom the Goyernment’ has not yet filed suit. If the interest

-

well fixed. She was fond by she Competency Commission -

sent .out by the Government to ) be fully competent to handle

her ‘own affairs. qd pe ; : =

The Circuit Court of Appeals for the Tenth Circuit: in’

the present case in its opinion (Tr. 61-72) cites authorities

* which are not appropriate to thie conclusion - ultimately reached

by the court’ on the question. of interest. Condemnation

cases, and -cases where food, fuel and supplies were requisi-

tioned - W the government are cited. But the authorities *

make a distinction betwee —- where property -has been

l

taken and compensation i@claimed under the Fifth Amend:

‘*

|

|

Bid ie

. ment’ to the United States Constitution, . and cases in which

refunds of fax. nioneys are sought: See Flemming v. County

Commissioners, 119 Kan. 598, 602, 240. Pac... 591; Seaboard

Air Line R. Co. v. U.S. 261 U.S. 299, 304, 43.8. Ct. 354, 355,

67 L. Ed. 664.’ oe

In -the opinion: in the hitiiaebcies: the ‘Circinit Court of

Appeals gites Section 34 of the Federal Judiciary Act of

1789, 28 U.S.C.A.,”°Sec. 351, which provides that the. laws of |

the several ‘stdtes, except where the Constitution, treaties qr."

“statutes of the United States otherwise require or provide,

shall be regarded as rules of: decision in trials at common

law, in the courts of ‘the United States, the inference from

such citation being: that: the. rights? i in’ question in the pres- _

ent action are governed. by provisions of the Federal Consti- ‘e

tution, treaties «or statutes. However, there are no constitu- |

tional. provisions. or. statutes,-or provisions of the treaty in-

volved in the present case (Artic les,2 and 3 of Treaty of No-

vember i5; 1861 [12 Stat. 1191, Sée Appendix A]) which

require the payment of interest by, statés or subdivisions of

states where taxes are erroneously collected? We are con--

ceding the correctness of the opinion of the District. Court —

‘in grantifig a refund of the principal amount of taxes paid.

That is as much as the treaty. involved in this case contem-’

plates. It simply says that, the land shall be: free son taxa-

tion. If the taxes are ugfunded, it will be free from taxation.

_ There: is ‘nothing in the treaty which says that interest may

also be charged. The Circuit Court of Appeals i in the opinion

in the. present case attempts to distingyish the case of Erie

R. Co. v. Tompkins, 304 U.S. 64, 58S. Ct. 417, 82 L. Ed.

787, by referring particularly to the éxception as announced”

in ‘the Federal Judiciary Act referred ta above. The quo-.,

tation in the opinion from the Erie case in that respect is,_, ©

Somowe: he ss BoB :

a!

-

“Except in matters governed by the Federal Conétitn- |

tion or by acts of Congress, the law to be applied — in

any case is the law of the state. *-* * re is nq _

eral eer common law.” eS

a

ipemeiie Rea Circuit Court of Appeals takes the view

that the excéption ‘just quoted fits the present ‘situation, but

_ there are no federal, constitutional provisions or federal stat-

‘utes which authorize the collection of interest: in cases of this .

character. From this it is apparent that the conclusion, of

the Tenth Circuit Court of Appéals i in support of its decision

as to the interestcitem is not sustained by the: clear logic and

tre. reasoning that was adduced ‘by the Ninth Circuit Court: of

appeals in ,the Idaho and Montana cases abave referred to.

As 4 matter of fact, the judgment of the Circuit Court of | -

Appeals for ‘the Tenth Cirguit * ‘in this case “does not even

| agree with” ‘two prior judgments | in almost’ identical cases as

--decided by District Judges. within the same Circuit. In the

case of United States v. Board of Commissioners-of Comanche

County, - Oklahoma, 6 F. Supp. 401, District Judge Vaught

decided in. a‘ case almost identical in its facts with the casé’

now béfore the court that hac terest could not be recovered on

the taxes sued for. The taxes in that case were paid under

ik

“Where | taxes are paid under protest, the collecting ©

authority can Only hold chem in trust, and since .Com-:

anche County-would be. regarded in this case asa trustee,

this court ‘knows of no provision for. the payment of

interést except by taking the interest from some other &

fund whose pepmeation: had heen provided by statute.”

~ Judgment was thereupon rake for the amount “bt the

taxes without interest. ao ;

Later, the District Court of Oklahoma j in une case of United °

States. v. Board of County Commissioners of. Pawnee County,

& je

o

protest. The court in that Opinion, on° page 403, states: * + |

| Oklahoma, 13 F. Supp. 641, in an opinion. written by. Judge

Kennamer, reached a conclusion in another case exactly in .

‘line with the case’ now - before this court, that interest could

"not be collected. The faxes in that. case were not paid. under

" fdrmal’ protest; but the court held that the judgment for

the Indian plaintiff should not: carry interest. een

Thesé, decisions are in line with the case of Kittredge. vu.

. Boyd, 137 Kan. ‘241, 20. P. 2d. ‘811. Siero page 248

of the’ opinion; ‘it is said: iS

o-

“That is pe question eae: interest should be paid

on the protested sums during the ‘time the state treasurer’

has held them pending an authoritative adjudication « on

ae legality of the statute. An our. opinion ‘the state

» ”. treasurer served as official. “stakeholder for. all. parties

"concerned. He fias no fynd to pay interest. While’ we

_ have -held that plaintiffs had no..adequate remedy at By

- law, and in consequence they could rightfully bring

mandamus in these cases, ‘mandamus was not, the only

extraordinary «procedural redress—an: injunction or man- _.

datory injunctive® proceeding int the district court, ands -

could thereby have procured -an adjudication on the—

_ state's claim. fo these illegal tax exactions without hav-

ing paid over the money at all. The- procedure they

did follow was simpter-arid more expéditious, but it

does not entitle them to interest on: their _funds while

they have been in the. hands of the state treasurer.”’. ©

Aes §

Thus it is that as gaint cases of exact simnilarity the decision

"here of the Circuit Court of Appeals for the Tenth Circuit stands ,

out alone, and unsupported by other’ federal authorities. ‘The

court was clearly in error im holding - ‘thaé interest charges

- could be properly coated on the taxes. paid by the Indian

‘ allottee. #

Another very. late case- by the Ninth Circuit Court of

peals. where ‘the facts | are practically identical gwith the facts in,

the present case is that of, Glacier County, Montana, v.. United

ee a ee eles ase ea tad

SiMes, 99 EF. 2d 733. That was an-action _by the Government:

on behalf “of. an. Indian ward to recover taxes: which had

been assessed and collected during the “time when the trust

period , as provided by theyGeneral Allotment ‘Act of 1887.

~ was ‘still running. The court adhered tits earlier decisions

cited hereinbefore in holding that while he taxes should! be .

refunded to the. Indian, interest could not be: collected from

the County: ‘This decision | was handed. down oh October 15,,

1938, indic ating the clear intent of the United ‘States Circuit

‘Court of Appeals for -the Ninth Gircuit to adhere to its

earlier decisions,’ ang, to regard: the molding of no interest

liability’ as established aa a ,

3 This being a brief im support of petition for a writ of cer-

tiorari, rather than, on the complete ease, we will not. go

further than to suggest the foregoing shows conclusively that

| _ the exact, reasons for the granting of certiorari ‘as set out: in

re , Rule 38 of this court, are ‘present here ‘as’ follows: >

: First; “Fhe Qircuit Court of Appéals for the Tenth Ci it

“cuit haS rendered a decision in, the present case directly in-

conflict and. irrecéncilable to the decisions of the Circuit

‘Court of Appeals fox the Ninth Circuit in the cases. of United

: "scStates v. Nez Perce. County, Idaho, and United States v. Lewis <

; County, Idaho, supra, where the identical question as to the > |

- right of recovery of interest was involved. Both courts, as

» shown by’ ~~ opinions, have given careful consideration to

- the . fluestion, “reaching directly opposite. conclusions; beth

courts cite decisions of this court in support of their décisigns.

The opinion of the Tenth Circuit Court of Appeals requires

the county fo pay interest on tax moneys, some of which was

collected ‘as’ mucly as fifteen. years prior * to the daté of. the

bringing of the suit: “The total interest charges amount to.

_. almost as much as’ the principal amount of the, taxes paid.”

# The opinion of the ‘Ninth Circuit Court of Appeals holds

that outside and beyond the fact that. interest may. not “be

al ry patig \ (oes eS

o ‘

aT

. ° ad

-

. x ‘ r . “9 ‘

| BaP ee Pee . roe; ¢ :

Rive : : : 2 mee >

Se ai Sy

. on :

s HA eeee &

° < ese .

. = : =

: : <ay

collected as a.matter of law, to require such Mpayment would

work a grave inequity against. the court and that interest

may not therefore be collected. as damages. Thais there «is a

direct conflict, and. it is apparent that the Circuit Court: of

‘Appeals for the NintheCircait reached ,the correct result.

Second: ‘ The decision of. the Circuit Court of Appeals for

the Tenth Circuit ‘in: the present case requiring the payment

of interest is’a decision on an fmportarit question of local law,

o°

which is contrary to ‘and in conflict with the laws of the °

State of Kansas. in Which the tand in question is _situated,

and where the case was filed and tried in the Federal, District |

Court, _ The rule announced in, the case of Erie R: Co. v.

Tompkins, supra, requires that the law of the state must Le«

applied ‘whére the Federal Constitution, Federal Statutes or

Federal Treaties do fot provide to the contrary. .We submit

the rule announced by the state cowrt as shown heretofore is

not ‘contradictory to any provisions, of the Federal Gonstitu-”

tion, Federal Statutes or’ of any Federal Treaty involved in. .

this case and that it should control. rte °

8

eo OA .

oe COMGMIMIOM Oe!

‘Itisa serious matter when Circuit Courts of peter reach

“ilfereng “conclusions on identical “situations. It leaves: the

_/aw in. such an unsettled.” condition that litigants, may not

“know‘their. rights. . This case also presents a serious situation -

®? Jackson County; Kansas, a rural community, whose in-

” debtednes to, Indians willbe nearly doubled if the erroneds

‘ruling ‘announced- by the’ Tenth Circuit Court of Appeals is

adhered to. It results also in a very. apparent discrimination

against Indians in the Idaho jarisdiction, in that ‘they are

not permitted to, recover interest won "taxes erroneously as-

- sessed and collected from, them: whereas, if the present. ruling»

See

]

4

ae eae

is permitted to stand, the Kansas | Indians will have that iam

vantage. Over and above this, it works a grave inequity where

the county was misled by'a mistaké on the p4rt of the Gov-

ernment in issuing.a fee patent, which was not cancelled

_ until after the last portion of taxes which are the” subject of

this litigation had been collected. {The Indian, in question

here, as found by the Competency Commission, is capable

of attending to her own affairs’ as is demonstrated by her

financial. soundness. It will afford%her an unneeded advan-

tage to the grave detriment of the taxpayers of ‘Jaekson-

County. These cons.derations demonstrate that two very

distinct grounds for the granting of certiorari as set out in

Rule 38 of this court, are readily available here:

It is,.therefore respectfully. submitted that this cause is

one calling for tHe exercise by4 this court of its supervisory

‘ powers: in ordering that the decree and opinion of the United

States Circuit Court of Appeals for the Tenth Circuit may

be examined, and to stich end a writ of certiorari should be -

granted, and that this court slfould review the opinion of

_ said Circuit Court of Appeals and reverse" it. .

Respectfully submitted,

Tue Boarp oF ‘Coynty, CoMMIssioneRs

OF THE COUNTY OF JACKSON, IN THE

STATE oF Kandx4, A Bopy Potrric

AND Quasi Pusiic CorPoraTION,

° ; _ Retstioner.

By Tuomas M. Littarp,

Counsel for Petitioner.

. . :

; 9 , of |

rf Ss e 23 : _=

. P °

° ‘

‘

APPENDIX

1 A y “4 ° * 2

. Articles 2° and 13 of the Teeny of wedges 15, 1861 (12

Stat. 1191):

Aanic.s. ‘2. .Iv shall be the -duty” of. the agent of the

United States for said, tribe to take an accurate census

- of all the members of . the tribe, and’ to classify them’

in separate lists, showing the names; ages, and numbers

of those desiring lands in severalty, and of those’ desir-

‘ing lands in common,,. designating chiefs and head-men,

respectively; each adult choosing for himself ‘or herself,

and each head of a family for the minor children of

such family, and the agent for orphans and persons of

- an unsound mind. And ‘thereupon there shall be as-

signed, under the direction of the Commissioner -of

Indian Affairs, to each. chief at the signing of the treaty,”

“one section;*to each head-man, one-half. section; to each

other head of a family, one-quaster section; and to gach -

. other person eighty acres’ of land, to include, in every

case, as far as practicable, to each family, their improve-

ments and a reasonable portion of timber, to be selected

according to the legal subdivision of survey. When

such assignments shall have been completed, certificates ‘

shall be issued by the Commissioner of Indian Affairs

for the tracts assigned in severalty, specifying the names

‘of the individuals to whom they have been assigned,

respectively, and that said. tracts axe set apart for the

perpetual and exclusive use and bene&t of such assignees |

and their heirs. Until gtherwise provided by law, such:

.tracts shall be exempt levy, taxation

shall be alienable in fee or leased or othebwise disposed

of only to the United States, a persons then being |

» members of the Potigg’atomie tribe and of Indian blood,

with the permission of the President, and: under such

regulations as the Secretary.of the, Interior shall fico

except as may be hereinafter provided. And on r¢ceipt of

such certificates, the person to whom they — ate issued

el te

shall be deemed to. have -relinquished all right to any

,Portion of the lands assigned to others in severalty, or

*to a portion .of the tribe in common, and to the pro-,

ceeds of sale of the same whensoever ’ :

ArticLe 3. At any time hereafter when the Prciidene

of the United States shall have become satisfied that

any adults,’ being males and heads of families, who mat |

be allottees under the provisions of she foregoing. ar-

ticle, are sufficiently intelligent and prudent to control

their affairs and interests, he may, at the request of such

persohis, cause the jands severally held bf them to be

conveyed to them by patent im fee-simple, with pdéwer ot

alienation; and may, at the same time, cause to be paid

to them, in cash or in the bonds of the United States,

thejr proportion of the cash value of the credits of the

tribe, principal, and interest/then held in trust by the

United States, and also, as the same may be received,

their proportion of the proceeds of the sale of lands

_ under the provisions of qhis treaty. And on such patents .

‘being ‘issued and such payments ordered to be made by

the President, such competent. persons shall cease to be

members of said tribe, and shall become citizens of the

United States; and thereafter thé lands so patented to

them shall be subject to levy, taxation, and sale, in

like manner with the property of other Citizeris: Provided,

That, before making any such application to the Pres-

‘ident, they shall appear in open court in the djstrict «

court ‘of the United States for the district of Kansas,

and make thg same proof and take the same oath of

allegiance as -is provided by law for the naturalization

of aliens, and shal] also make. proof to the satisfaction,

of: said court. that they are sufficiently intelligent and

‘prudent to control their affairs anf interests, shat. they

have™adopted the habits of civilized life, and have been

able to support, for at bese five years, themselves: and

families “ * *

.

- B

2 At ah : —

Section 5 of the’ General Allotment Act of February 8,

, 1887, c, 119 (24 Stat. 38, 25 U. S. C., Sec. $48):

YS

ena 25

Upon the approval of the allotments provided for in

sections 331 to 334, inclusive, and 336 by the Secretary of

the Interior, he shall cause patents to issue therefor in

the name of the allottees, which patents shall be of the

legal efféct, and ‘declare that the United States does and _

wil! 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 haye been made,

or, in tase of his décease, of his heits according to the

Jaws of the State or Territory where such land is located,

and that at the expiration of said period sthe United

States will convey the same by patent to said Indian, or

his heirs as aforesaid, in fee, discharged of said trust

and free of allcharge or incumbrance whatsoever: Pro-

vided, That the Pagsident of the United States may in ,

any case in his disttetion extend the period. * * *

; c

Act of May 8, 1906, c. 2348 (34 Stat. 182, 25 U.S. G;

Sec. 349):

At the expiration of the. trust pefiod and when the

lands have been conveyed to the Indians-by patent in

fee, as provided in section 448, then each and ‘every

allottee ghall have the benefit of and be subject to the

laws, both civil and criminal, of the State or Tertitory

in which they may reside; * * * and thereafter, all

strictions as to sale, encumbrance, or taxation’ of sai

‘land shall be removed * & *.

: D : Boi. e: PAs. Wi &

Act“of February 26, 1927, c. 215 (44 Stat. 1247) as

amended by the Act of February 21, 1931, c. 271 (46 Stat.

1205, 25 U. S.C, Sec. 352a): 7

The Secretary of the Interior is. hereby wathorized, in

nis discretion, to cancel any. patent in fee simple issued

to an Indian allottee or to ‘his heirs before the end of

the period of trust, described in the original or trust

i

\e

ie

patent issued to such allottee, or before, the expiration.

~ of any €xtension of such period of trust by the Presi-

dent, where such-patent in fee simple was issued without

~the,consent or an application therefor by the ‘allottee

or by -his heirs: Prgvided,; That the patentee has not

mortgaged of sold any. part of the land described in such

patent: Provided also, That upon, cancellation of such

‘patent in fee simple the land shall have the same status,

as though such fee patent has never been issued.

yt)

9

o

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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