Brief for the Petitioners — County of Mahnomen v. United States
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No. 684
COUNTY OF MAHNOMEN, « Momicrrat Corporation,
Petitioner,
vs.
THE UNITED STATES OF AMERICA.
ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT COURT
OF APPEALS FOR THE EIGHTH CIRCUIT.
BRIZF OF PETITIONER.
J
Geo. B. Ssose.zvs,
Assisiant Attorney General of Minnesota,
Cownsel for Petitioner.
g
4
J. A. A. Buaweuist,
Attorney General of Mumesota;
L. A. Wuaox,
County Attorney, Mahnomen County;
Lows W. Bunsnoor,
County Attorney, Becker County;
A. B. Stauurxe,
County Attorney, Clearwater Cownty,
Of Counsel.
FILE COPY faxcan
¥ SAUD
SUPREME COURT OF THE UNITED Brates.*
OCTOBER TERM, 1942 ee |
INDEX.
SuBsect INDEX.
I. The United States may not recover for the
allottee, Isabelle Garden, the taxes upon the
lands allotted to her and voluntarily paid by
ous sa kA REE RESON S >
Tax Payments were voluntary.......----.---
Il. The allottee and the United States are bound
by the result of an action which she elected
to bring in the State Court to recover taxes
voluntarily paid upon her allotment........
0 SEPT ET OREN T CTO LET ELE
ee ee ee eee ere
Grounds on which jurisdiction is invoked.............
Opinions below. ....... 0-0... - 05-5 cere terete
TABLE OF CASES.
Baker v. McCarthy, 145 Minn. 167, 176 N. W. 643. ...
Board of County Commissioners of Caddo County, Okla-
homa v. United States, 10 Cir. 87 F. 2d. 55........-.
Bryan County, Oklahoma v. United States, 123 F, 2d. 782
Choate v. Trapp, 224 U.S. 665..........-.-- 225-055:
Continental National Bank v. Holland Banking Co.
(C.C.A. 8), 66 Fed. 2d. 823.........------ +50 ee:
Davis v. Davis, 305 U.S. 32..........--- 25-25-5003:
Engebretson v. West (C.C.A. 8, 1940), 111 Fed. 2d.
ener er rr resy crt rece
Falvey v. Board of County Commissiomers, 76 Minn. 257,
. & Serer ere rrr errs
Fink v. County Commissioners, 248 U.S. 399.........
Glacier County, Montana v. United States, 99 F. 2d. 733.
Gould v. Board of County Commissioners, 76 Minn. 379,
. & 5 Tarr rere core re
ii INDEX
Page
Helvering vy. Rhodes’ Estate (C.C.A. 8, 1941), 111 Fed.
Fee yy oe en
Holley v. General American Life Insurance Co. (C.C.A. 8,
nee), Oe POG. OE B................s 8, 28
Missouri Pacific Transportation Co. v. Priest (C.C.A. 8,
meen, 07 Oe Oe Oe................. 8, 27
Morrow v. United States, 243 Fed. 854............ 7m
Prebyl v. Prudential Insurance Co. of America (C.C.A. 8,
1938), 98 Fed. 2d.199......0000.000000002~2~2~2~O~*” 8, 28
Sweet v. Schock, 245U.8.192..................... 7, 24
Treinies v. Sunshine Mining Co., 308 U. 8. 66, 78.. 8, 27
United States v. First National Bank, 234 U. 8. 245.... 7
U.S. v. Lee, 108 Fed. 2d.936..................... 8, 27
U.S. v. Nice, 241 U. 8. a 29
U. 8. v. Richards, 27 Fed. 2d.284............... 8, 27
U.S. v. Spaeth, 24 F. Supp. 465................. 7,13
U.S. v. Waller, 243 U.S8.452.................07 7,14
Ward v. Love County, 253 U.8.17................. 7,21
Warren v. Mahnomen County, 192 Minn. 464, 257
csi cei b ec. ccsces....... 7, 26
Statutes Crrep
Act of Map 8, 1906, 34 Stat. 182................_ 8, 32
Act of May 27, 1908, 35 Stat.312................._ 7,31
First Clapp Amendment of June 21, 1906, 34 Stat. 325,
____ aE 7,11
Second Clapp Amendment of March 1, 1907 34 Stat.
eee i apie kd dcesss.:..-..5.... 7,
General Allotment Act, 24 Stat. 388... 7, 30
Nelson Act, 25 Stat. 642.........00000.0000000002~2~2 7, 30
TREATIES
February 22, 1855, 10 Stat. 1165.................... 7
March il, 1863, 12 Stat.1249.......00.....000.~~7 7
May 7, 1864, 13 Stat.693........................ 7
March 19, 1867, 16 Stat. 719....................... 7
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1942
No. 684
COUNTY OF MAHNOMEN, a Municrpa, Corporation,
Petitioner,
vs.
THE UNITED STATES OF AMERICA.
BRIEY OF PETITIONER.
Opinions Below.
The opinion and supplemental memorandum of the Dis-
trict Court (R. 22-30) ave not reported. The opinion of
the Circuit Court of Appeals (R. 47-52) is reported in 131
F. (2d) 936.
Grounds On Which Jurisdiction Is Invoked.
The grounds on which jurisdiction is invoked are set
forth in the petition for writ of certiorari on pages 4 and 9.
Statement of the Case.
This action had its origin in a suit brought by the United
States of America in 1940 against County of Mahnomen,
its officers and the State of Minnesota. It involved seven
1d
2
allotments in the White Earth Indian Reservation to In-
dians. It was dismissed as to the State of Minnesota.
Seven allotments are involved in this action but since
the principal and only important issue involves parcel 7
alone, the allotment of Isabelle Garden, we shall state the
facts only in so far as they involve that allotment.
Isabelle Garden is a living, female, mixed-blood Indian
of the White Earth Reservation in Minnesota who was
born in the month of July, 1893, and therefore became an
adult in July, 1911 (R. 20). She was allotted the east half
of the southeast quarter of section five (5) in township
one hundred forty-four (144) north, of range forty-one
(41) west, of the Fifth Principal Meridian in Mahnomen
County, Minnesota, on December 13, 1902, as her original
allotment Number 3612 and a trust patent was issued to
her therefor (R. 17-18). A patent in fee was issued to her
on December 8, 1919. On August 24, 1917, said Isabelle
Garden (being then an adult, mixed-blood Indian) paid
taxes for the years 1911, 1912, 1913, 1914 and 1915 on her
said allotment and on December 24, 1917, paid those for
1916. She paid the taxes for 1917 and 1918 in semi-annual
installments as permitted by the statutes of the state of
Minnesota before the same became delinquent. The 1919
taxes were paid by her in one sum on May 24, 1920, and
before the same became delinquent. The 1920 taxes were
"permitted to become delinquent but were paid in full on
February 17, 1922. The taxes for 1921 were paid in in-
stallments before they became delinquent. Taxes for 1922
to 1927, inclusive, were redeemed on June 30, 1936 (R. 19).
The taxes for those years, 1922 to 1927, inclusive, were
redeemed by Isabelle Garden through her attorney, Robert
Pearson (R. 13). There is no allegation, proof or even
suggestion that said taxes were paid under duress or in-
voluntarily. Ner, since many of them were paid currently
3
and year after year, could the claim well be made that the
payments were other than voluntary payments (R. 14).
In February, 1923, said allottee, Isabelle Garden (being
then an adult, mixed-blood Indian to whom a patent in fee
simple had issued December 8, 1919, pursuant to the policy
of the United States with respect to adult, mixed-blood
allotments but without application on the part of said allot-
tee) commenced an action in the District Court in and for
Mahnomen County, Minnesota, Fourteenth Judicial Dis-
trict, to recover the taxes paid by her as above set out for
the years 1911 to 1921, inclusive. A demurrer to her com-
plaint was interposed and sustained by order of said court
dated March 11, 1927. This was the final order in said
action and she did not appeal therefrom (R. 19-20).
The United States (though its amended complaint does
not allege that Isabelle Garden, or any allottee, had paid
any taxes voluntarily or otherwise) sought recovery of all
taxes paid by said Isabelle Garden as above set out and
was by the District Court allowed recovery of those paid
for the years 1911 to 1921, inclusive, aggregating $405.97,
and denied recovery of those for the years 1922 to 1927, in-
clusive (R. 33).
The case was submitted to the trial court upon two stipu-
lations of fact. The first was made on January 8, 1941
(R. 11). The second was made on April 8, 1941 (R. 13).
The trial court made its findings of fact, conclusions of
law, and order for judgment on July 9, 1941 (R. 15).
Judgment was entered upon the findings and conclusions
of the District Court (R. 31). The County of Mahnomen
by appropriate motions sought to vacate said judgment and
amend said findings and conclusions or have a new trial
(R. 33), and said motions being denied (R. 41), an appeal
to the United States Circuit Court of Appeals, Eighth Cir-
cuit, followed (R. 41). The United States appealed from
+
the judgment (R. 44). The appeals were entitled, re-
specively, County of Mahnomen, a mumcipal corporation,
appellant, v. United States of America, appellee (No.
12340 Civil), and United States of America, appellant, v.
State of Minnesota, et al., appelleees (No. 12376 Civil).
On December 7, 1942, the United States Circuit Court
of Appeals decided both cases affirming that part of the
judgment (R. 31 to 33) of the United States District Court
for the District of Minnesota, Sixth Division, entered March
7, 1942, which allowed recovery of the sum of $405.97, the
aggregate of taxes for 1911 to 1921, both inclusive, paid
by Isabelle Garden, an adult, mixed-blood Indian of the
White Earth Reservation in Minnesota upon her Indian
allotment, and reversing that part of said judgment which
in effect denied recovery of taxes paid by said allottee upon
her said allotment for the years 1922 to 1925. Thereafter
a petition for certiorari was filed herein and granted on
March 15, 1943.
Specification of Errors.
The United States Circuit Court of Appeals, Eighth Cir-
cuit erred:
1. In affirming the judgment of the District Court of the
United States for the District of Minnesota in so far as
it provides for recovery 0° taxes paid for the years 1911
to 1921.
2. In reversing the judgment of the District Court in so
far as it denies recovery of taxes paid for the years 1922
to 1925.
3. In construing the following language of the Clapp
Amendments:
‘*That all restrictions as to the sale, incumbranee, or
taxation for allotments within the White Earth Reser-
vation in the State of Minnesota, heretofore or here-
5
after held by adult mixed-blood Indians, are hereby
removed, * * °.’’ (Italics ours.) (Petition, p. 4,
5.)
so that adult, mixed-blood Indians of the White Earth Reser-
vation are denied the power to waive their vested right to
have their allotted lands immune from taxation.
4. In holding that the United States of America is not
bound by the waiver of immunity from taxation by such
Indians.
5. In construing the Clapp Amendments and the Act of
May 8, 1906, 34 Stat. 182 (Petition, p. 5) so as to hold that
adult, mixed-blood Indians of the White Earth Reserva-
tion are not fully and completely emancipated.
6. In construing the Clapp Amendments so that such
Indians cannot voluntarily subject their allotted lands to
taxation.
7. In holding that the United States of America can re-
cover moneys voluntarily paid by such Indians as taxes
upon such allotted lands.
8. In holding that the United States of America may sue
in its own name on behalf of such adult, mixed-blood In-
dians to recover moneys voluntarily paid as taxes by such
Indians upon such allotted lands. ;
9. In holding that the United States of America is not
bound by the result of an action instituted by such an In-
dian to recover moneys paid as taxes upon such allotted
lands.
16, In holding that the Act of May 8, 1906, 34 Stat. 182
(Petition, p. 5) does not subject adult, mixed-blood Indians
of the White Earth Reservation to all civil laws of Minne-
sota and secure to them the benefits of all such laws.
6
Summary of Argument.
I. This is a case of first impression. It involves Mahno-
men County which lies wholly within the White Earth
Reservation in Minnesota. Adult, mixed-blood Indians of
that reservation are under the Clapp Amendments owners
in fee simple of allotted lands for which a trust patent has
been issued. Such Indians are competent to handle their
allotted lands. They have a vested right to have their
lands immune from taxation. As competent persons they
may waive such immunity. Isabelle Garden did waive
such immunity by voluntarily paying the taxes upon her
allotted lands. Such payments were voluntary. There is
no evidence to the contrary. The District Court found that
they were voluntary. The Circuit Court did not disagree.
Under Minnesota law, voluntary payments of taxes can-
not be recovered. The Circuit Court wholly failed to dis-
tinguish between the law as to full-blood Indians and the
law as to adult, mixed-blood Indians, The trust as to”
Isabelle Garden’s allotted lands terminated when she vol-
untarily paid the taxes, as she did year after year, and
often before delinquency. The Circuit Court mistakenly
applied decisions construing laws relating to Oklahoma and
other lands instead of the applicable law, including the
Clapp Amendments.. The taxes having been voluntarily
paid and the trust having been terminated, the United
States had neither the duty nor the power to recover the
taxes so paid. This is supported by the well recognized
fact that the principal purpose of Indian supervision and
legislation is to bring them to a state of competency. This,
Congress said in the Clapp Amendments, has been achieved
in Minnesota. The United States cannot recover taxes vol-
_ untarily paid by Isabelle Garden. . |
7
Cases Cited—Part I.
Baker v. McCarthy, 145 Minn. 167; 176 N. W. 643;
Board of County Commissioners of Caddo County, Ok-
lahoma v. United States, 10 Cir. 87 F. (2d) 55;
Bryan County, Oklahoma v. United States, 123 F. (2d)
782;
Choate v. Trapp, 224 U. S. 665;
Falvey v. Board of County Commissioners, 76 Minn.
257, 79 N. W. 302;
Fink v. County Commissioners, 248 U. S. 399;
Glacier County, Montana v. United States, 99 F. (2d)
733;
Gould v. Board of County Commissioners, 76 Minn.
379, 79 N. W. 303;
Morrow v. United States, 243 Fed. 854;
Sweet v. Schock, 245 U. S. 192;
United States v. First National Bank, 234 U.S. 245;
United States v. Spaeth, 24 F. Supp. 465;
United States v. Waller, 243 U. S. 452;
Ward v. Love County, 253 U. S. 17;
Warren v. Mahnomen County, 192 Minn. 464; 257 N.
W. 77. |
Statutes Cited.
Act of May 27, 1908, 35 Stat. 312;
First Clapp Amendment of June 21, 1906, 34 Stat. 325,
393 ;
Second Clapp Amendment of March 1, 1907, 34 Stat.
1034 ;
General Allotment Act, 24 Stat. 388;
Nelson Act, 25 Stat. 642.
Treaties.
February 22, 1855, 10 Stat. 1165;
March 11, 1863, 12 Stat. 1249;
8
May 7, 1864, 13 Stat. 693 ;
March 19, 1867, 16 Stat. 719.
II. Isabelle Garden brought an action in the District
Court for Mahnomen County to recover certain of the taxes
here in question. She did not allege that the taxes were
paid involuntarily. She did not succeed in recovering these
taxes. The state court had jurisdiction over Isabelle Gar-
den, as a competent person, and over the subject-matter
of the action. Isabelle Garden is bound by the result of
this action. The United States is also bound by the results
thereof. The United States cannot recover such taxes in
the instant case.
Cases Cited—Part II.
Continental National Bank v. Holland Banking Co.
(C. C. A. 8), 66 F. (2d) 823;
Davis v. Davis, 305 U. S. 32;
Engebretsonv. West (C.C. A. 8, 1940), 111 F. (2d) 528,
932;
Helvering v. Rhodes’ Estate (C. C. A. 8, 1941), 111 F.
(2d) 509;
Holley v. General American Life Insurance Co. (C.C. A.
&, 1939), 101 F. (2d) 172;
Missouri Pacific Transportation Co. v. Priest (C. C. A.
8, 1941), 117 F. (2d) 32;
Prebyl v. Prudential Insurance Co. of America (C.C. A.
8, 1938), 98 F. (2d) 199;
Treinies v. Sunshine Mining Co., 308 TI. 8. 66, 78;
U.S. v. Lee, 108 F. (2d) 936:
U.S. v. Richards, 27 F. (2d) 284 ;
U.S. v. Spaeth, supra.
U. §. v. Waller, supra.
Statutes Cited.
Act of May 8, 1906, 34 Stat. 182.
Oe a ae tate Poe r Sak eels nn Seabee nes SOME Ak wtp
re oe ENC Raise, Meet cat ee
9
ARGUMENT.
This is a case of first impression. This is the first case
in which the United States has sought recovery of taxes
paid, voluntarily or otherwise, by an adult, mixed-blood
allottee of the White Earth Reservation. There have been
_actions in state courts by such allottees to recover taxes paid
by them. Neither their right to bring such actions nor their
binding effect has ever heretofore been questioned. The
United States has brought actions to cancel and abate taxes
assessed and levied upon such allotments ari to enjoin fur-
ther levies but never before has it sought recovery of such
taxes actually paid by such allottees.
The determination of the issues in the instant case rests
primarily upon the construction of the Clapp Amendments
and, for the first time, of that portion thereof lifting the
restricticn upon taxation. In making this determination we
believe that a discussion of the history of Mahnomen County
and the Indians of the White Earth Reservation will be
helpful.
Mahnomen County lies entirely within the White Earth
Reservation. It was organized as of January 1, 1907, and
brought to the Indians the advantages of a county organi-
zation in the same manner that they were enjoyed by the
whites. County organization with its provisions for an edu-
cational system and a much-needed highway system was
highly desirable to the White Earth Indians, who sought to
advance themselves and their families. Many of the early
county officers were Indians. When Mahnomen County was
organized the Indians knew that the county could not
operate without taxes. They participated in county organi-
zation and were willing to subject themselves and their
lands to taxation so that they might have schools, roads,
and other benefits. Many voluntarily paid their taxes
through the years. There have been Indians holding county
24
10
offices down through the years to the present time. The
United States now says in this action that they had no
right to voluntarily subject their allotted lands to taxation
and to pay those taxes in order to have sehools for their
children, roads upon which to travel, and other benefits.
The United States upon its own initiative seeks to burden
the county with the repayment of the taxes voluntarily paid
and perhaps make impossible the continued enjoyment of
that which the Indians themselves sought by their volun-
tary payments, schools, roads, poor relief, and other bene-
fits. The Indians did not reach this right to county organiza-
tion and to be legally competent persons without a struggle.
The history of the Chippewa shows that a number of
treaties were made between them and the United States.
Treaties of February 22, 1855, 10 Stat. 1165, March 11,
1863, 12 Stat. 1249, May 7, 1864, 13 Stat, 693, March 19, 1867,
16 Stat. 719. The treaties show a progressively greater
desire upon the part of the Indians to have lands suitable
to agriculture and to adopt the habits and customs of civil-
ized life. These treaties culminated in the Treaty of March
19, 1867. This treaty recites, among other things, that the
reservation previously set aside for these Indians ‘ ‘has been
found * ** not adapted for agricultural purposes for the
use of such Indians as desire to devote themselves to such
pursuits.’’ The treaty then provides for the creation of the
White Earth Indian Reservation, which consists of 36 town-
ships. The County of Mahnomen is comprised of 16 of these
townships. The treaty makes provision for the purchase of
cattle, farming implements, the erection of a sawmill and a
grist mill, the erection of school buildings and the develop-
ment of agriculture. Proof that these Indians had already
progressed toward a civilized life is found in the acceptance
by the Indians of these provisions in the treaty and the
further provision subjecting them to the civil and criminal
laws of the state. The continued progress of the White
il
Earth Indians in the habits and customs of civilized life is
evidenced by the demand for individual instead of com-
munal ownership of property which resulted in the passage
of the Nelson Act of January 14, 1889 (25 Stat. 642), pro-
viding for allotments in severalty. The allotments involved
in this action were made and trust patents issued pursuant
to the Nelson Act and the General Allotment Act (24 Stat.
390. See Appendix).
At this time the Indians had no control over their allotted
lands in the White Earth Reservation except the right of
occupancy. The title to such lands was in the United States
as trustee for such Indians. The Indians had no right to
sell such lands. They had no right to encumber them nor
could they subject them to taxation. This brings us to the
Clapp Amendments, the changes accomplished by them, and
the argument upon the law and the facts.
The controversy in this case resolves itself into two main
issues in the argument of which will be encompassed all
the specifications of error. We urge and rely upon each
and every specification of error.
I. The United States may not recover for the al-
lottee, Isabelle Garden, the taxes upon the lands al-
lotted to her and voiuntarily paid by her.
II. The allottee and the United States are bound by
the result of an action which she elected to bring in
the state court to recover taxes voluntarily paid upon
her allotment.
L The United States may not recover for the allottee,
Isabelle Garden, the taxes upon the lands allotted to her
and voluntarily paid by her.
The first Clapp Amendment of June 21, 1906, 34 Stat. 325,
353, provides:
‘“'That all restrictions as to sale, incumbrance, or
taxation for allotments within the White Earth Reser-
12
vation in the State of Minnesota, now or hereafter held
by adult mixed-blood Indians, are hereby removed, and
the trust deeds heretofore or hereafter executed by the
Department for such allotments are hereby declared
to pass the title in fee simple, or such mixed bloods
upon application shall be entitled to receive a patent
said restrictions shall be removed when the Secretary
of the Interior is satisfied that said adult full-blood
application. ’’
The second Clapp Amendment of March 1, 1907, 34 Stat.
1034, provides ;
‘‘That all restrictions as to the sale, incumbrance, or
taxation for allotments within the White Earth Reser-
13
ferent provisions with reference to full-blood Indians. The
Cireuit Court of Appeals, as we will point out later, failed
to note this distinction.
We are concerned in the irstant case with the Clapp
Amendments as they affect the adult, mixed-blood Indians
and their allotted lands in the White Earth Reservation.
The full-blood Indians are ‘‘competent to handle their own
affairs’’ only when the Secretary of the Interior has issued
a patent in fee simple. Not so, the adult, mixed-blood In-
dians, title to their allotted land was conveyed to them in
fee simple through operation of law. The Secretary of the
Interior had no discretion to refuse a fee patent to such
allottees; that he must issue them upon application as a
matter of course and as #2 mere ministerial act ; that an appli-
cation was really unnecessary and merely a matter of con-
venience as stated in United States v. Spaeth, 24 F. Supp.
465, 469:
‘‘Presumably Congress determined that adult mixed-
biood Indians on the White Earth Indian Reservation
were capable of self-management so far as their lands
were concerned. That ihe Government recognized the
plain intendment of the Clapp Amendment is reflected
by the action of the Department in issuing fee patcnts
to the adult mixed-blood White Earth Indians. While
in no instance was a fee title patent requested by these
Indians, it may be noted that, in all of the allotments
referred to in the stipulation, fee title patents have been
issued by the Government after the passage of the
Clapp Amendment to all allottees but two. It is not
probable that the issuance of these fee patents were
considered essential in order to give the Indians un-
restricted fee title, but they were issued because it was
apparently believed that fee title now existed and that
a fee title patent would be more convenient for the
Indian and his vendors.’’
This legislative declaration that they ‘‘are competent to
handle their own affairs’? was doubtless highly prized by
14
adult, mixed-bloods and as significant to them as the Eman-
cipation Proclamation was to negro slaves. It declared a
status that was the result of years of struggles and develop-
ment and which should not be taken away or weakened or
impaired by judicial decree except for valid and compelling
reasons, none of which exist in the present case.
The Clapp Amendments conferred other equally impor-
tant rights upon the adult, mixed-blood Indians without
which the declaration that they ‘‘are competent to handle
their own affairs’? would have been meaningless. These
rights were three in number. They flowed from the removal
of the restrictions:
1. as to sale
2. as to incumbrance
3. as to taxation
The failure to remove restrictions as to any one of the
three would be inconsistent with the declaration that such
allottees ‘‘are competent to handie their own affairs.’’ All
pertain to the use, management and enjoyment of land.
The legal effect of these amendments was to pass title in |
fee to the adult, mixed-blood allottees.
U. S.v. Waller, 243 U.S. 452;
U.S. v. Spaeth, 24 Fed. Supp. 465.
The adult, mixed-blood Indians were determined to be
competent by this ‘‘legislative judgment.’’
U.S. v. Waller, supra.
All the cases interpreting and construing the Clapp
Amendments follow and sustain the conclusion that the
White Earth adult, mixed-blood Indians are competent to
manage all affairs relating to their allotments.
‘It is at once apparent from reading this act that it
deals with two classes, adult mixed blood Indians, con-
cerning whom all restrictions as to sale, incumbrance or
————
15
taxation are removed, and full blood Indians, whose
right to be free from restrictions shall rest with the
Secretary of the Interior, who may remove the same
upon being satisfied that such full blood Indians are
competent to handle their own affairs.’’ United States
v. First National Bank, 234 U.S. 245, 258.
‘‘Before dealing with its interpretation, it is neces-
sary to have in mind certain matters which are well set-
tled by the previous decisions of this court. The tribal
Indians are wards of the Government, and as such
under its guardianship. It rests with Congress to de-
termine the time and extent of emancipation. Confer-
ring citizenship is not inconsistent with the continua-
tion of such guardianship, for it has heen held that even
after the Indians have been made citizens the relation
- of guardian and ward for some purposes may continue.
On the other hand, Congress may relieve the Indians
from such guardianship and control, in whole or in
part, and may, if it sees fit, clothe them with full rights
and responsibilities concerning their property or give
to them a partial emancipation if it thinks that course
better for their protection. United States v. Nice, 241
U. S. 591, 598, and cases cited.
‘‘The act thus evidences a legislative judgment that
adult, mixed-blood Indians are, in the respects dealt
with in the act, capable of managing their own affairs,
and for that reason they are given full power and au-
thority to dispose of allotted lands. This may be a mis-
take of judgment as to some cases, and if the allega-
tions of the bill set forth in the certificate in this case
are true, it is quite evident that the Indians here in-
volved were incapable of making an intelligent disposi-
tion of their lands. But Congress dealt with general
conditions, and with these classes of Indians as a whole,
and with authority over the subject has given to adult,
mixed-blood Indians the full right to dispose of the
lands in question. It is not for the courts to question
this legislative judgment.
16
‘*In the case now before us, in whatever other re-
spect the Government of the United States may con-
tinue to hold these Indians as wards, needing and re-
ceiving protection from its authority over their persons
and property, as to the lands in question the United
States, in the passage of the Clapp Amendment, evi-
denced its purpose to grant full power and control to
the class named. As to them the Government has no
further interest in or control over the lands.”” (U.S.
v. Waller, supra.)
An examination of Morrow v. United States, 243 Fed. 854,
makes clear that as to adult, mixed-blood Indians of the
White Earth Reservation, the question which is determina-
tive of the validity of a tax levy is: Has the Indian availed
himself of any power which he might have under the Clapp
Amendment? That is the question which the court asks it-
self. If the Indian has not, the tax must fall. Conversely,
it necessarily follows that if he has, the tax must stand.
Isabelle Garden availed herself of a right which she had
under the Clapp Amendment. She voluntarily paid the
taxes upon her allotment. Under 24 Stat. 390 and 34 Stat.
182, she, as fee owner, made use of the State courts to
bring an action to recover the taxes paid. The lifting of the
restrictions upon her allotment by the Clapp Amendment
was made effective by Isabelle Garden’s voluntary act in
paying her taxes.
6ée@ * e
the passage of the Clapp Act, June 21,
1906 (34 Stat. 353), which provided for the removal of
all restrictions as to sale, encumbrance, or taxation for
allotments within the White Earth Indian Reservation
held by adult, mixed-blood Indians, and which further
provided that the trust deeds were sufficient for such
allottee or allottees to pass title in fee simple, could
not disturb this vested right to be free from taxation
during the twenty-five year period unless the Indian
17
willingly changed his status by acceptance of the rights
and privileges contained in said amendment.
‘¢(7) The removal of the restriction of alienation,
however, does not necessarily interfere with or imperil
the immunity from taxation. That is a vested right.
But while it was necessary to obtain the Indian’s con-
sent to divest him of the guaranteed non-taxable land
during the twenty-five year period, it was not necessary
to obtain his consent to clothe him with authority to
alienate his land.’’ (U.S. v. Spaeth, 24 Fed. Supp. 465,
467.)
The Supreme Court of Minnesota followed the decision
in Waller v. U. S., supra, when in construing the Clapp
Amendments in Baker v. McCarthy, 145 Minn. 167, 170,
176 N. W. 643, it held:
‘(We think it is the general view that the issuance
of a fee-simple patent operates, by implication, to
emancipate the Indian from Federal guardianship and
jurisdiction. Lueck Land Co. v. Dickson, 132 Minn. 396,
157 N. W. 655, affirmed 242 U. S. 371, 37 Sup. Ct. 167,
61 L. Ed. 271. We hold that the same result was ac-
complished by the provision of the Clapp amendments
converting the trust deeds theretofore issued in the
case of adult mixed-bloods into instruments of fee-
simple title, see United States v. Waller, 243 U. S.
452, 37’Sup. Ct. 430, 61 L. Ed. 843, and that the Clapp
amendments by implication gave to the probate courts
of this state jurisdiction to administer the estates and
determine the heirs of an adult mixed-blood allottee,
whether death occurred before or after these amend-
ments.’’
Isabelle Garden willingly changed her status by volun-
tarily paying the taxes upon her allotment.
18
With the law as settled in the foregoing cases in our
minds let us re-examine the pertinent language of the Clapp
Amendment.
‘“‘That all restrictions as to sale, encumbrance, or
taxation for allotments within the White Earth Reser-
vation in the State of Minnesota, heretofore or here-
after held by adult, mixed-blood Indians, are hereby
removed * ° *°,”
This part of the amendment does three things:
1. It removes the restriction as to sale.
2. It removes the restriction as to encumbrance.
3. It removes the restriction as to taxation of allotments
of adult, mixed-blood Indians.
The order in which these restrictions are lifted is signifi-
cant. The Congress had declared the adult, mixed-blood
Indians to be ‘‘competent to handle their own affairs.”’
To implement this declaration, the Congress gave to these
Indians the first and greatest legal right. The right to sell
their allotted lands. Next, it gave them the right to en-
cumber the lands which was undoubtedly of second greatest
importance legally. Last, and perhaps the least of impor-
tance from the legal point of view but undoubtedly the
greatest from the standpoint of practical importance to
the adult, mixed-blood Indians who wished while retaining
their iands to have the benefits of county government in-
cluding schools and roads, the right to subject their lands
to taxation. The importance of this right is emphasized by
the fact that atl lands in Mahnomen County were originally
allotted lands. .
The inclusion of the third element, taxation, by the Con-
gress was done with deliberation. Its purpose must have
been to lift so far as within the power of Congress, the
» i
19
restriction against taxation. Congress had done its part
to make this provision as to taxation effective required
affirmative action by the Indian. Isabelle Garden took that
action when she voluntarily paid the taxes upon her allot-
ment. It is axiomatic that it is the duty of the courts to
give effect to all the provisions of the Clapp Amendment.
The Clapp Amendments are a fully consummated release
by the United States of America of all of its control us trus-
tee, of the allotted lands and the acts of the adult, mixed-
blood Indians relating thereto. The United State recog-
nized the competency of these Indians and their right to
alienate or encumber their lands or subject them to taxation.
This was all that the United States, bound as it was by its
treaty obligation, could de. It could not divest these In-
dians of their vested right to have their lands immune from
taxation or seizure for debt. As to the adult, mixed-blood
Indians, the Clapp Amendments were permissive. The Con-
gress gave them the right, if they wished and only if they
wished, to waive their vested right to have their allotted
lands immune from taxation and to subject them to taxation.
The conceded and inevitable conclusion is that such adult,
mixed-blood Indians had the full right to sell, encumber,
dispose of and deal with their allotted lands in any way
they saw fit and without necessity of obtaining approv.l or
consent of anyone just as any other competent fee owner
might do.
All restrictions upon the adult, mixed-blood Indians’ right
to consummate voluntarily the ‘sale, encumbrance, or taz-
ation for allotments’’ were by the express language of the
Clapp Amendment removed. (Italics ours.) In the case
at bar the allottee, Isabelle Garden, voluntarily subjected
her allotment to taxation. She freely and voluntarily paid
these taxes. She shared in the benefits which they pro-
vided. We have found no statute or court decision author-
20
izing the recovery of taxes sc paid. The United States has
no right of recovery in this case.
Tax Payments Were Voluntary.
There is neither allegation nor proof that the tax pay-
ments here involved were other than voluntary. The Dis-
trict Court appears to have so regarded them as appears
by its language (R. 28).
‘*The question as to whether or not the payment of
the moneys involved was voluntary or involuntary need
give us no concern. The settlements were made by the
Indians after they were emancipated and there is no
evidence in the case to show that their election to pro-
ceed in the manner in which they did was involuntary.”’
And the Circuit Court also appears to have considered the
payments voluntary by its language (R. 50):
‘*The County also contends that it should be held
that the tax payments which it obtained from Isabelle
Garden were voluntary payments and it is presented
that under Minnesota law the taxpayer may not recover
such voluntary payments of taxes by action in the
courts of Minnesota. In this connection stress is laid
upon the extent to which the Clapp Amendments oper-
ated to emancipate the adult mixed-blood Indians to
wnom it related, and it is argued that they became in
effect sui juris and therefore subject to all the conse-
quences of their acts applicable to others in the stnte.
If others are deemed to waive all objection to illegal
taxes by voluntarily paying the same, so it is said
should the Indians.’’
The Circuit Court then apparently from the following
language:
‘‘The argument would not be considered without
force if the case was of first impression’’ (R. 51).
concludes that it is foreclosed by previous devisions from
holding that the United States cannot recover taxes volun-
21
tarily paid by Isabelle Garden. This conclusion is directly
contrary to the decision of this court in Ward v. Love
County, 253 U. 8. 17, 22, wherein this court said:
‘‘We accept so much of the Supreme Court’s deci-
sion as held that, if the payment was voluntary, the
moneys could not be recovered back in -the absence of
a permissive statute, and that there was no such stat-
ute. But we are unable to accept its decision in other
respects.”
There is no permissive statute in Minnesota. Under
Minnesota law taxes voluntarily paid cannot be recovered.
Falvey v. Board of County Commissioners, 76 Minn.
257, 79 N. W. 302;
Gould v. Board of County Commissioners, 76 Minn.
379, 79 N. W. 303, 530.
The Circuit Court therefore erred in assumirg that the
instant case was controlled by decisions involving different
laws and situations and in failing to construe and apply to
the facts of the instant case the pertinent provisions of the
Clapp Amendments themselves which are the applicable
law and must control.
The difference between the Clapp Amendments and the
statutes involved in the cases relied upon by the Circuit
Court of Appeals is obvious upon comparison.
We shall discuss the cases cited by the Cireuit Court
upon this point seriatim.
The statute involved in Choate v. Trapp, 224 U. S. 665,
is the act of May 27, 1908, 35 Stat. 312. See Appendix.
One ‘‘section provided that land from which restrictions
had been removed should be subject to taxation.”’ P. 670.
Thereupon the state sought to assess taxes upon land with-
out the owner’s consent. This court held that this could not
be done. If, however, the owner had not objected but had
paid voluntarily as in the instant case, this court would
22
have had an entirely different question before it. The
question that is in the instant case. In that case the statute
provided directly that the lands should be ‘‘subject to taxa-
tiou.’’ In the instant case, the statute is permissive and
operates only with the consent of the Indian who has been
declared by the Congress to be competent for that purpose.
In Board of County Commissioners of Caddce County,
Oklahoma, v. United States, 10 Cir., 87 F. 2d 55, the case
is determined upon the fact that there was no acceptance
of the fee patent. Under the Clapp Amendments the fee
title was vested in the adult, mixed-blood Indian, but the
lifting of the restrictions was dependent upon the voluntary
act of the Indian. In the Gaddo County case, the court
found that the Indian did not consent but on the contrary
objected, evidencing that objection by paying the taxes
under protest.
The Circuit Court of Appeals also cites Morrow v. United
States, 243 Fed. 854. This case involves the Clapp Amend-
ments. It is an action to restrain the collection of taxes
upon allotted land within the White Earth Reservation.
Obviously, it does not involve taxes voluntarily paid by an
adult, mixed-blood Indian. That this fact was of impor-
tance apzears from the following language on page 858:
‘*His rights are vested and are impervious to altera-
tion against his will except through the sovereign power
of eminent domain. One of these rights was freedom
from state and local taxation.’’ (Italics ours.)
The implication is that he could have voluntarily consented
to taxation of his allotted land.
The last case cited at this point by the Circuit Court of
Appeals is Glacier County, Montana, v. United States, 99
F. 2d 733. This is an action to quiet title and to recover
taxes paid. The statute involved is the act of May 8, 1906,
34 Stat. 182, see Appendix. Under this act, the Secretary
of the Interior issued patents to individual Indians whom
23
he thought competent. In the Clapp Amendments, the
Congress determined certain Indians as a class to be com-
petent and caused title in fee simple to their allotted lands
to pass to such Indians. The Glacier County case and the
eases therein cited turn upon the proposition that under
the act there involved title in fee could be conveyed to the
Indian only upon his request.
The Circuit Court of Appeals cites the case of Bryan
County, Okla., v. United States, 123 F, 2d. 782. But ex-
amination will show that the statute involved in that case is
quite different from the Clapp Amendments. It is the
Act of May 27, 1908, 35 Stat. 312, and for convenience we
print it in the Appendix to this Brief. It will be noted that
the first section pertains only to ‘‘alienation or incum-
brance’’ and not to taxation and does not deal with re-
moval of restriction as to taxation at all. Section 4 deals
with that and specifically provides that the lands involved
‘‘shall be subject to taxation.’’ Of course, this wholly
ignores the vested right of the Indian to tax exemption
and has been held invalid for that reason. The result is
that in Oklahoma the restrictions on taxation stand un-
changed and unimpaired by any valid congressional enact-
ment. This is not the situation under the Clapp Amend-
ments.
The Clapp Amendments provide ‘‘that all restrictions
as to sale, incumbrance, or taxation for allotments
held by adult, mixed-blood Indians, are hereby removed.’*'
Unlike the Oklahoma statute, this does not attempt to spe-
cifically subject the allotted lands to taxation. As stated
in the Waller case, supra, it (the Clapp Amendments) is
a “legislative judgment”’ that such Indians are competent.
As construed by the Morrow and Spaeth cases, supra,
said amendments did not impair the vested right of such
allottees to tax exemption and notwithstanding such amend-
ments such alletments could not be legally taxed during
eee,
24
such trust period against the will or without the consent
the Indian. But the implication is clear that the inhibit
against such taxation so far as the United States is ¢
cerned is removed and that the Indian might consent a
subject his allotment to taxation if he so desired. A
as a member of a community that had organized a coun
and appreciating the need of roads, schools and other be
fits that come only through the expenditure of tax mon
and appreciating also that there would be no adequate |
money unless persons in his class paid taxes, such India
were entirely justified and wise in consenting to taxati
and in paying taxes as many aid and as Isabelle Gard
did. So construed, the Clapp Amendments do not imps
vested rights and are valid. But they do remove restr
tions as to taxation so far as the United States is cc
cerned.
An Indian may waive and in this case did waive in t
samc way that other citizens may waive vested rights.
Sweet v. Schock, 245 U. S. 192
Fink v. County Commissioners, 248 U. 8. 399
The court will note the reference in the opinion of t
Circuit Court of Appeals to the statement in the first stip
lation of facts ‘‘that said land was not legally taxab
prior to the year 1928’ (R. 13). We respectfully subm
that this stipulation must be read together with the secot
stipulation of facts setting out the record of dates of pa
ments of taxes (R. 13), and the proceedings thereafte
From these it clearly appears that it should have read-
. ‘That said land was not legally taxable prior to the yes
1928 without the consent of the allottee.’’ (Part in italic
supplied.)—and that it did not do so was through inac
vertence since that was clearly the theory upon which th
case was submitted, briefed, and argued in the Distric
Court and Circuit Court of Appeals. This is confirme
by the District Court when it said (R. 28):
‘=
25
“The question as to whether or not the payment of
the moneys involved was voluntary or involuntary
need give us no concern. The settlements were made
by the Indians after they were emancipated and there
is no evidence in the case to show that their election
to proceed in the manner in which they did was invol-
untary.”’
We think that the two stipulations and the record fairly
present the question whether taxes so paid can be recovered.
This is the very issue which all parties are seeking to de-
termine by this litigation.
It appears from the language of the trial court, and this
is equally true of the Circuit Court, that it failed to confine
itself to the provisions of the Clapp Amendment and errone-
ously applied the statute applicable to Oklahoma Indians.
There is a very material difference. The applicable stat-
ute in the Oklahoma case, 35 Stat. 312, lifts the restrictions
only as to alienation and encumbrance. It also provides
that the land so-unrestricted shall be subject to taxation.
The Oklahoma statute ignores the vested right of the Indian.
The Clapp Amendment does not, but merely removes the
restriction upon the power of the Indian to subject his
land to taxation if he so desires. The Oklahoma case cited
by the trial court therefore does not sustain his conclusion
as to the White Earth Indians.
The fundamental error of the trial court and the Circuit
Court was in assuming that the trust as to Isabelle Garden
continued for twenty-five years. The trust terminated
when she elected to voluntarily pay the taxes upon her
allotment and thereby ‘‘willingly changed his (her) status
by acceptance of the rights and privileges contained in said
(Clapp) amendment.’’ United States v. Spaeth, supra.
The trial court held properly that the taxes paid after
the expiration of the trust period could not be recovered
because Isabelle Garden was emancipated (R. 28). This
was erroneously reversed by the Circuit Court. Both
26
courts in permitting the recovery of the money paid during
the trust period failed to recognize that at that time Isabelle
Garden was also emancipated. This was the trial court's
fundamental error because the Clapp Amendment was a
‘‘legislative judgment’’ that Isabelle Garden was capable
of managing her own affairs as to her allotment not after
the trust period but at the time of the passage of the
amendment. See U. S. v. Waller, 243 U. S. 452, 462. To
hold otherwise is to nullify the Clapp Amendment as the
restrictions would have lifted without it at the expiration
of the trust period. The trial court’s reasoning in holding
that the money paid after the trust period cannot be re
covered is equally persuasive when applied to the payments
during the trust period. The Circuit Court mistakenly
took the position that the obligation of the government is
not discharged until the Indian applies for the fee patent
and alienates the land (R. 66). The court fails to dis-
tinguish between the two separate provisions of the Clapp
Amendments. The one the court relies upon relates to full-
blooded Indians. The Circuit Court overlooked the other
provision relating to adult, mixed-blood Indians, such as
Isabelle Garden. None of the taxes paid should be re-
covered.
The trial court cites Warren v. Mahnomen County, 192
Minn. 464, 257 N. W. 77, as authority for the proposition
that:
‘‘The Supreme Court of Minnesota has recognized
the right of a mixed-blood Chippewa Indian of the
White Earth Indian Reservation to maintain a suit
against a county to recover taxes illegally imposed
upon his allotment during the trust period’’ (R. 27).
We entirely agree with this statement. We also agree
with the conclusion of the District Court of Minnesota in
the case brought by Isabelle Garden that she could not re-
cover the taxes paid by her. The distinction between the
27
two cases is that in the Warren case the payments were
made involuntarily while in the Garden case the payments
were made voluntarily. Under Minnesota law taxes volun-
tarily paid cannot be recovered.
The answer ic clear that the United States does not owe
a duty to an emancipated Indian to recover taxes volun-
tarily paid during the twenty-five year trust period.
II. The allottee and the United States are bound by the
result of an action which she elected to bring in the state
court to recover taxes voluntarily paid upon her allotment.
Isabelle Garden as an adult, mixed-blood Indian is a com-
petent person.
U. S. v. Waller, supra
The fee title to the lands bere involved passed to Isabelle
Garden upon passage of the Cla;p Amendment.
U. S. v. Spaeth, supra
The voluntary payment of the taxes by Isabelle Garden
lifted the restrictton upon the land here involved.
See discussion under I.
Upon these facts it appears that the state court was
exercising jurisdiction conferred upon it by the Clapp
Amendment, supra, and the Acts of Feb. 8, 1887, C. 119,
Sec. 6, 24 Stat. 390; and of May 8, 1906, 34 Stat. 182. The
judgment of the state court as a court of competent juris-
diction is binding upon the United States.
U. 8. v. Lee, 108 Fed. (2nd) 936;
U.S. v. Richards, 27 Fed. Rep. (2nd) 284;
Treinies v. Sunshine Mining Co., 308 U. S. 66, 78;
Davis v. Davis, 305 U. S. 32;
Helvering v. Rhodes’ Estate (C. C. A. 8, 1941), 117
Fed. (2nd) 509;
Missouri Pacific Transportation Co. v. Priest (C. C.
A. 8, 1941), 117 Fed. (2nd) 32;
28
Engebretson v. West, (C.C. A. 8, 1940), 111 Fed. (2nd)
528, 532;
Holley v. General American Life Insurance Co. (C. C.
A. 8, 1939), 101 Fed. (2nd) 172;
Prebyl v. Prudential Insurance Co. of America (C. C.
A. 8, 1938), 98 Fed. (2nd) 199;
Continental National Bank v. Holland Banking Co.
(C. C. A. 8), 66 Fed. (2nd) 823.
Conclusion.
Applying the usual rules of construction, among then::
(1) that every part of the enactment shall be given
effect ;
(2) the validity of the enactment shall be sustained
if possib’e and if, of two possible constructions, one
sustains and the other invalidates, the former is
favored;
(3) if the Act has been previously construed effect
should be given to such construction under the rule
of stare decisis unless the prior construction is obvi-
ously wrong;
(4) effect should be given to the background and
purpose of the enactment.
the Clapp Amendments result in three things :
1. A legislative judgment that ‘‘adult, mixed-blood
Indians are, in the respects realt with in the act,
capable of managing their own affairs.’’
2. A grant to adult, mixed-blood Indians of full
power and control over the lands in question, includ-
ing the right to subject them to taxation.
3. Immediately passed title in fee simple to the
adult, mixed-blood Indians, including Isabelle Garden.
It is well recognized in the decisions that a principal
object of Indian supervision and legislation is to bring
them to a state of competency.
29
United States v. Nice, 241 U. 8. 591, 595;
United States v. Waller, supra;
Bryan County, Okla., v. United States, supra.
The Act of May 8, 1906, gave the state courts jurisdic-
tion over adult, mixed-blood Indians and their allotted
lands when, as Isabelle Garden did by her voluntary pay-
ment of her taxes, they have accepted the rights and
privileges granted by the Clapp Amendment.
Isabelle Garden as a competent person is bound by the
result of the state court action brought by her.
The United States ‘‘has no further interest or control
over the lands.’’ United States v. Waller, supra.
Taxes voluntarily paid cannot be recovered in the State
of Minnesota.
The court below erred in holding that the United States
ean recover the taxes voluntarily paid by Isabelle Garden.
Respectfully submitted,
Gero. B. Ssosze.rvs,
Assistant Attorney General,
State of Minnesota,
Counsel for Petttioner,
102 State Capitol,
Of Counsel: St. Paul, Minn.
J. A. A. BurnqQuist,
Attorney General of Minnesota,
102 State Capitol,
St. Paul, Minnesota.
L. A. Wi1so0¥,
County Attorney, Mahnomen County,
Mahnomen, Minnesota.
LoweLL W. BensHoor,
County Attorney, Becker County,
Detroit Lakes, Minnesota.
A. B. Sraunixe,
County Attorney, Clearwater County,
Bagley, Minnesota.
30
APPENDIX.
Section 5 of the General Allotment Act of February 8,
1887, c. 119, 24 Stat. 389, 25 U. S. C. sec. 348, provides :
That upon the approval of the allotments provided for in
this act by the Secretary of the Interior, he shall cause pat-
ents to issue therefor in the name of the allottees, which
patents 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 his 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
as aforesaid, in fee, discharged of said trust and free of
all charge or incumbrance whatsoever: Provided, That the
President of the United States may in any case in his dis-
cretion extend the period.
Sections 1 and 3 of the Nelson Act of January 14, 1889,
c. 24, 25 Stat. 642, so far as pertinent, provide:
Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled, That
the President of the United States is hereby authorized and
directed, within sixty days after the passage of this act, to
designate and appoint three Commissioners, one of whom
shall be a citizen of Minnesota, whose duty it shall be, as
soon as practicable after their appointment, to negotiate
with all the different bands or tribes of Chippewa Indians in
the State of Minnesota for the complete cession and re-
linquishment in writing of all their title and interest in and
te all the reservations of said Indians in the State of Minne-
sota, except the White Earth and Red Lake Reservations,
and to all and so much of these two reservations as in the
judgment of said commission is not required to make and
fill the allotments required by this and existing acts, and
shall not have been reserved by the Commissioners for said
purposes, for the purposes and upon the terms hereinafter
stated; ° ° ®°,
31
Sec. 3. That as soon as the censvs has been taken, and
the cession and relinquishment has been obtained, approved,
and ratified, as specified in section one of this act, all of
said Chippewa Indians in the State of Minnesota, except
those on the Red Lake Reservation, shall, under the direction
of said commissioners, be removed to and take up their resi-
dence on the White Earth Reservation, and thereupon there
shall, as soon as practicable, under the direction of said
commissioners, be allotted lands in severalty to the Red Lake
Indians on Red Lake Reservation, and to all the other of
said Indians on White Earth Reservation, in conformity
with the act of February eighth, eighteen hundred and
eighty-seven, entitled ‘‘An act 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 pur-
poses’’; oe @
The Act of May 27, 1908, 35 Stat. 312, provides:
Chap. 199. An Act for the removal of restrictions from
part of the lands of allottees of the Five Civilized Tribes,
and for other purposes.
Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled,
That from and after sixty days from the date of this Act
the status of the lands allotted heretofore or hereafter to
allottees of the Five Civilized Tribes shall, as regards re-
strictions on alienation or incumbrance, be as follows: All
lands, including homesteads, of said allottees enrolled as
intermarried whites, as freedmen, and as mixed-blood In-
dians having less than half Indian blood including minors
shall be free from all restrictions. All lands, except home-
steads, of said allottees enrolled as mixed-blood Indians hav-
ing half or more than half and less than three-quarters In-
dian blood shall be free from all restrictions.
Sec. 4. That all land from which restrictions have been or
shall be removed shall be subject to taxation and all other
civil burdens as though it were the property of other per-
sons than allottees of the Five Civilized Tribes: Provided,
32
That allotted lands shall not be subjected or held liable, to
any form of personal claim, or demand, against the allottees
arising or existing prior to the removal of restrictions, other
than contracts heretofore expressly permitted by law.
The Act of May 8, 1906, 34 Stat. 182, provides:
Chap. 2348. An Act to amend section six of an Act ap-
proved 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 ex-
tend 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 assem-
bled, That section six of an Act approved February eighth,
eighteen hundred and eighty-sever, 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,’’ 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 berefit of and be subject to the
laws, both civil and criminal, of the State or Territory in
which they may reside; and no Territory shal! pass or en-
force any law denying any such Indian within its jurisdic-
tion 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 life, is hereby declared to be a citizen of the
United States, and is entitled to all the rights, privileges,
33
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: Pro-
vided, That the Secretary of the Interior may, in bis dis-
cretion, 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 canse 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
snch patent : Provided further, That until the issuance of fee
simple patents all allottees to whom trust patents shall here-
after 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.”’
(5569)
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.