Brief for the United States — County of Mahnomen v. United States

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INDEX

Page

Opinions below 1

Jurisdiction 1

Question presented ; 9

Statutes involved 2

Statement “ 4

Suminary of argument - 10

Argument:

} The trust patent which the United States issued to

Isabelle Garden in 1902 conferred on her a 25-vear

ta eXeliption which could not be revoked without

her consent 13

Tt Ina suit by the United States to recover taxes Wwrong-

filly exacted from an Indian allottce, payment under

protest as net a prerecaiuisite tO recovers 17

LHL. Ut is tnimaterial that the suit was net brought and that

some of the taxes were not paid until after the expi-

ration of the 25-vear period — . 99

IV. The United States is not bound by the allottee’s un-

successful attempt to recover the taxes in the state

court 25

Conelusion 26

Appendix 27

CITATIONS

Cases:

Board of Com'rs vo United States, 100 F. (245 929 14

Board ot Comers of Caddo County, OkL +. United States, 87 F.

(9A) 5S 14. 1”)

«> >)

Board of Com rs of Okfuskee County \. Hutton, 72 Ola. 223,

179 Pav. 922 19

Board of Com'rs of Tulsa County, Okt. ve United States, 94 F.

(24) 450 19, 24

Bowling v. United States, 233 US. 528 13. 25

trondireliv. Board of ¢ ‘om’ rs of Bryan County, SS Okia. 147,

211 Pac. 1040, certioran denied, 262 U.S. 750 26

Bryan County, Okl. v United State § 193 k (2d) 7s , certi-

orars denied, 315 U.S. 819 12, 13. 24, 25, 26

15

Carpenter vo Shaw, 280 US. 363 6.10.15, 16, 17, 19. 20

Chippeira Indians Vv. United States, 301 U.S. 348 2, a

Choate v. Trapp, 224 U.S. 665 6. 10, 11, 14, 16, 18, 19

524404 -43— 1 W

I

Cxses—Continued. Page

Cramer v. United States, 261 U.S. 219_. ' . 13,24

English v. Richardson, 224 U. 3. 680_. 19

Fink v. County Commissioners, 248 U.S. 3y9_. 22

Glacier County, Mont. v. United States, 99 F. (¢2) 733-- 11. 14, 20

Great Northern Ry. Co. v. United States, 315 U.S. 262. ___- 15

Grotkop v. Stuckey, 140 Okla. 178, 282 Pac. 611_- 19

Heckman vy. United States, 224 U.S. 413 2

Tyall v. Yakima County, 130 Wash. 537, 228 Pac. 513 15

Merrow v. United States, 243 Fed. 854 #, 20, 02, 4, 17,28

New Jersey v. Wilson, 7 Cranch 164 15, 16

Privett v. United States, 256 U.S. 201 25

State v. Ward, 189 Okia. 532, 118 P. (2d) 216_- 15, 20

Sunderland v. United Siates, 266 U.S. 226.-_ - 13, 25

Sweet v. Schock, 245 UL 8S. 192. 22

The Kansas indians, 5 Wall. 737 4,10, 15

United States v. Benewah County, Idaho 290 Fed. 628 14,18

United States v. Board cf Com'rs, 6 F. Supp. 401 14

U'nrted States v. Board of County Com'ra, 13 F. Supp. 641 14, 21

Urited States v. Board of County Com'rs, 19 F. Supp. 635 19

United Staies v. Candetaria, 271 U.S. 432 13, 25

Voniled Staies v. Chehalis County, 217 Fed. 281 ‘ 21

United States v. Dewey County. 14 F. (2d) 784, affirmed 26

PF. (2d) 434, certiorari denied, 278 U.S. 649 20. 21

United States v. Ferry County, Wash., 24 F. Supp. 399 12,

14,19, 23

United States v. Lewis County. Idaho, 95 F. (2d) 236 14

United States vo Minnesota, 270 U.S. 18] - ¥2, 24, 25

U'niled Niates v. Moore, 284 Fed. 86 ip ae

United States vo Nez Perce County, Idaho, 95 F. (2d) 232 ii

14, 26

United States vo Nice, 241 UL S. 591 25

United States v. Rickert, SS U.S. 432 4,10, 12, 14, 15, 24

United States v. Sherhurne Mercantile Co., 68 Fo (2d) 155 24.25

United States v. Spaeth, 24 Fo Supp. 465 7.10, 11, £5, 18, 19

United States vo Waller, 243 US. 452 PE, 38, 25

Ward vo Love County, 253 UL 8.17 6. 11, 16, 17, 20, 21, 22

Warren v. County of Mahnomen, 192 Minn. 464, 257 No W.

77 7, 15, 18, 20, 21, 22

Whitmire v. Trapp, 33 Okla. 429. 126 Pac 578__- 19

Wiliiams v. Johnson, 239 US. 414 18, 19

Statutes:

Act of February 8, ISS7, see. 5, 24 Stat. 388 (25 UL S. ©.

348) / Dawes Act) 2, 3, 10, 27

Act of Angust 19 1890, 26 Stat. 338” . 5,16

Act of January 14. 1889 ¢. 24, 25 Stat. 642 (Nelson Act:. -

a 10.27

Act of June 28. 1898 ©. 517. 30 Stat. 495 (Curtis Act) 6,19

WI

Statutes—Continned. Page

Act of June 21, 1906, ¢. 3504, 34, Stat. 325 (First Clapp

Amend ment) 2, 5, 11, 17, 29

Act of March 1, 1907, ¢. 2285, 34 Stat. 1034 (Seecnd Clapp

Amendment) ... 2,6, 11, 17, 29

Act of May 27, 1908, ¢. 199, 35 Stat. 312 = sgn ae 6

Act of June 11, 1940, 54 Stat. 298. _ 22

Act of February 10, 1942, 56 Stat. 87 (25 U.S.C. A. 352ce) - 22

Miscellaneous:

1 Annual Report, See’y. Int. 1920, p. 9. a soo aria 22

1 Annual Report, Sec’y. Int. 1921, p. 54 22

House Ex. Doe. No. 247, 51st Cong., Ist sess. (Ser. No.

2747) (1890). ei 4, 16

54 Int. Dee. 65 (1932) : 15

49 L. D. 348 (1922) ae 19

50 L. D. 691 (1924; 19

19 Op. A. G. 161 (1888) ee

Report of Commissioner of Indian Affairs:

1917, pp. 3, 5 , oe 22

1918, p. 22 ae wae 22

1926, p. 10 . 22

Othe Supreme Court of the United States

Ocrosper TERM, 1942

No. 684

CouNTY OF MAHNOMEN, a MUNICIPAL CORPORATION,

PETITIONER

v.

THe Untren Srares or AMERICA

ON WRIT OF CERTIORART TO THE UNITED STATES CIRCUIT

COURT OF APPLALS FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion and supplemental memorandum of

the district court (R. 22-30) are not officially re-

ported. The opinion of the eireuit court of ap-

peals (R. 47-52) is reported in 131 F. (2d) 936.

JURISDICTION

The judgment of the circuit eourt of appeals

was entered December 7, 1942. (R. 53). The pe-

tition for a writ of certiorari was filed January

29, 1943, and granted March 15, 1943. The juris-

diction of this Court rests on Section 240 (a) of

(1)

2

the Judicial Code, as amended by the Act of Feb-

-

r

ruary 13, 1925.

QUESTION PRESENTED

Whether the United States, in a suit brought

after the expiration of the trust period, may re-

cover taxes wrongfully assessed against a tax-

exempt Indian allottee, notwithstanding the fact

that the taxes were ‘‘voluntarily’? paid by the

allottee, in some eases before and in others after

the expiration of the trust period, and notwith-

standing the fact that a state court of Minnesota

had previously sustained a demurrer to a com-

plaint filed by the allottee for their recovery.

STATUTES INVOLVED

The pertinent provisions of the General Allot-

ment (Dawes) Act of February 8, 1887, 24 Stat.

388 (25 U.S. C. 348); the Nelson Act of January

14, 1889, 25 Stat. 642; the first Clapp Amendment

of June 21, 1906, 34 Stat. 325; and the second

Clapp Amendment of March 1, 1907, 34 Stat. 1034,

are printed in the Appendix, tufra, pp. 27--30.

STATEMENT

In the post-Civil War period, the various bands

of Chippewa Indians cecupied in communal own-

ership twelve reservations in the State of Minne-

sota. Chippewa Indians vy. United States, 301

U. S. 358, 361. As homestead lands became

searce In the public land states of the West, white

3

men beeame interested in these large tracts of

vy. uable agricultural and timber lands little used

by the Chippewas, with the result that Congress

in 1889 directed the President to appoint three

commissioners ‘‘to negotiate with all the different

bands or tribes of Chippewa Indians in the State

of Minnesota for the complete cession and relin-

quishment in writing of all their title and interest

in and to all the reservations of said Indians in

the State of Minnesota, 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’? individual allotments. Nelson Act of Jan-

nary 14, 1889, see. 1, 25 Stat. 642. Congress fur-

ther provided (sec. 3) that members of the various

bands, except those of the Red Lake Reservation,

should ‘tbe removed to and take up their residence

on the White Earth Reservation, and * * * be

,

allotted lands in severalty’’ in conformity with

the General Ailotment (Dawes) Act of February

8, 1887, 24 Stat. 388. Seetion 5 of that Act con-

tained a declaration that the United States would

hold the allotment in trust for the benefit of the

individual allottee for a period of twenty-five

vears and at the expiration of said period convey

the land to said Indian or his heirs ‘tin fee, dis-

charged of said trust and free of all charge or in-

cumbrance whatsvever.”’

+

This proposal by Congress for a further cession

of tribal lands, the substitution of individual for

tribal ownership, and the sale of surplus lands not

needed for allotment purposes, was not enthusias-

tically received by the Chippewas. House Ex.

Dov. No, 247, 51st Cong. Ist sess. (Ser. No. 2747),

pp. 1, 66-193 (1890). The commissioners per-

sisted, however, in the negotiations. They ex-

plained to the Indians the provisions of the Nelson

Act of i889 and the Dawes Act of 1887. Tbid.,

pp. S86, 153, 157, 165. Buttressed by this Court’s

construction of similar language in the case of The

AKansay Indians, 5 Wall, 737, 760, and an opinion

of the Attorney General construing the very y:ro-

Vision in question (19 Op. A. G. 161, 166-169

(1S888)), the commissioners assured the Lidians

that their allotments would net be taxed fer

twenty-five vears. House Ex. Doe. No. 247, 51st

Cong. Ist sess. (Ser, No. 2747), pp. 93, 103, 104,

Iosy ef. pp. 97, W122 Having been told that the

Nelson Act would ‘be carried out in aecordance

with the explanations”? (ibid., p. 110), the Indians

finally agreed to relinquish their large communal

holdings, to aecepi individual trust allotments, and

to pernut the sale of surplus lands to white set-

thers. Lbid., py. 1-2, 27-66. On March 4, 1890,

the President approved each insirument of cession

‘This construction of Section 5 of the General Allotment

(Dawes) Met of Iss? was subsequently confirmed by this

Courtoin (aited States ve Rickert, ISS U.S. 482. 438-439.

o

and transmitted to Congress a statement of his

approval, together with the commission's report

and related documents. Congress in turn indi-

sated its approval by the Act of August 19, 1890,

26 Stat. 836, 397, making appropriations for the

survey, allotment, and sale of the lands thus ceded.

Sce Chippewa Indians v. United States, 301 U.S.

Bos, Sb4-3bb.

During the next two decades the United States

proceeded to allot to the duly enrolled members

of the several Chippewa bands, including imixed

bloods, specific tracts of land on the White Earth

Indian Reservation in) Mahnomen, Becker, and

Clearwater Counties (see R. 17-18). In the trust

patents Issued to each of these allottees, the United

States agreed to hold the lands in trust for a

period of twenty-five years and then to convey

them to the allottees in fee, discharged of said

trust and **free of all charge or encumbrance what-

soever”’ CR. TS, 25).

Tn 1906 and 1907, prior to the expiration of

the 25-year trust) periods, hate passed two

statutes, generally referred to as the first and

second Clapp Amendments, which declared that

“all restrietionus as to the sale. ineumbrance, or

taxation for allotments within the White Earth

* * * heretofore or hereafter

Reservation

held by adult mixed-bleod Indians, are hereby

removed.” Aet of June 21, 1806, 34 Stat. 3825, 353;

524404-—45- -— 2

6

Act of March 1, 1907, 34 Stat. 1034.) The vounty

taxing authorities promptly took advantage of

these statutes and placed on the tax rolls all allet-

ments held by adult mixed-blood Indians (see R.

18-19).

However, in Choate v. Trapp, 224 U. S. 665,

decided ii T9i2, this Court held that neither the

United States nor the State of Oklahoma could

abrogate a 2l-vear tax exemption promised the

Choctaw Indians in the Atoka Agreement of TSO7

(ratified by the Curtis Aet of June 28, TSYs, 50

Stat. 495,505). Phe Indians having surrendered

their tribal holdings in partial reliance upon the

promise of a 2l-vear tax exemption, this Court

concluded that individual Choctaw allettees had

acquired a vested right protected by the Fifth

Amendment, good agaist both the United States

and the State of Oklahoma, and that therefore

the exemption survived a TOS statute removing

restrictions on alienation in the case of certain

mixed-blood Indians and declaring that all land

from which restrictions had been removed shoul!

be “subject to taxation.” Aet of May 27, 190s,

see. 4,55 Stat. 312.?

Beeause the promises made to the Chippewas in

the Nelson Aet of ISs9 were markedly similar te

those made to the Choetaws in the Curtis Aet of

>For subsequent deeisions hy this Court to the same etfect,

see Ward ve Love County, 253 U.S. 17: Carpenter Vv. Shai.

PSO TLS. B83,

7

1898, the United States Attorney was instructed

in 1914 to bring a class suit to enjoin the tax offi-

cials of Beeker County from = assessing taxes

against Chippewa allotments prior to the expira-

tion of the 25-year period specified in the original

trust patents. The district court granted the re-

quested relief and the circuit court of appeals

affirmed, on the ground that the 25-year tax ex-

emption promised the Chippewas survived the

repudiatory Jangnage of the Clapp Amendments,

just as the promise in the Atoka Agreement had

survived the 1908 Act. Morrow v. United States,

245 Bed. 854 (C. C2 AL 8). And in succeeding

years a number of suecessful suits were brought

by the allottees and by the United States to re-

eover previous collections and to prevent other

assessments. See. c.g. Cuited States v. Spacth,

24 FL Supp. 465 (Minn.); Warren v. County of

Mahnomen. 192) Minn. 404, 257 N. W. 77 (1934).

The few remaining tax claims were finally

‘lumped together” in the present suits which the

United States brought in 1940 against Mahnomen,

Becker, and Clearwater Counties for the cancel-

Intion of all taxes levied prior to the expiration of

the 20-vear pertads, and for refunds im those in-

stanees where the taxes were paid by the allottees

(R. 2-7, 22).

Sova pareels were included in the complaint

filed by the Government in the Mahnomen County

case (R. 3-4). Parcels 1,3, and 5 were dismissed

8

with the Government's eonsent when it developed

that taxes levied against pareel 1 before and after

the expiration of the 2)-vear period in 1227 had

been subsequent'y compromised by the allottee for

less than the amount of the taxes assessed after

1927; that the taxes levied against pareet 3 had

“been abated and cancelled upon application’”’ to

the county ; and that the allottee of parcel d had lost «

his tax exemption by applying for and receiving

a fee simple patent (R. IS-19). The county stip-

ulated that parcels 2, 4, and 6 were not legaliy tax-

able prior to the expiration of the 2-year periods

CR. 12-13) and did not seriously question the Govy-

ernment’s right to have such taxes and enforce-

ment proceedings declared illegal and veid. The

only substantial contest arose in connection With

parcel 7. There the United States issued a trust

patent to Tsabelle Garden, a mixed-blood Chippewa,

in December 1902. The county stipulated that

this traet ‘twas not legally taxable prior to the

year 1928". (R. 13.) Taxes were nevertheless

levied against this allotment commencing in 1911,

the year Isabelle Garden reached her majority.

Taxes for the period from 1911 to 1921, inclusive

CR405.97), were paid in full by the allottee prior

to W222. The allottee discharged the taxes for

1922 to 1925 and for 1926 to 1934 by the purchase

In 1936 of State Assignment Certitieate No, 76 in

tne amount of $33.22 and State Assignment Cer-

tifieate No, 232 in the amount of $145.93. CR. 13-

15, 19-20.)

9

The cases against all three counties were sub-

mitted on agreed statements of fact (R. 22, 26).

The trial court entered judgments ordering the

cancellation of all taxes levied during the 25-vear

periods, the restoration to the allottees of lands

sold for nonpayment of taxes, and the refund of

all taxes levied and paid before the expiration of

the 25-year periods. It refused to order a refund

of taxes levied before, but not paid until after, the

2-year petiod expired. (R. 31-33.)

Becker and Clearwater Counties acquiesced in

these judgments. Mahnomen County, however,

eleeted to appeal from that portion of the judg-

ment directing it to refund the taxes paid be-

tween TOLL and 1921 (3405.97) on parcel 7. The

Government then filed a cross-appeal from that

portion cf the judgment denying recovery of taxes

levied on parcel 7 between 1922 and 1925° and dis-

charged by the allottee in 1936 ($33.22). The

cireuit court of appeals held that. the United

States was entitled to recover all taxes in ques-

tion, whether paid before or after the expiration

of the 25-year period (R. 46-52).

* Since her allotment “was not legally taxable prior to the

year 1925" (R.13), the allottee should not have been required

to pay the taxes for 1926 and 1627. But inasmieh as the

taxes for 1928 to 1954 (whieh she was legally required to

pay) exceeded the amount she actually paid for State Assion-

ment C-rtificate No, 232 covering the vears from 1926 to 1934,

the United States has made no claim for any refund for the

Vears 126 and 1927,

SUMMARY OF ARGUMENT

I

st patents which it issued to the Chip-

is, pursuant to the General Allotment

t of 1887 and the Nelson Act of 1889,

States expressly agreed to hold the

itrust fora period of twenty-five years

CONVEY them to the allottees in fee,

charge or ineumbrarnce whatsoever.”

isly the foregoing provision rendered

nts nontaxable. United States vy.

U.S. 432: Carporntor Vv. Shaw, 280 U.

Cf The Kansas Tudians, 5 Wall, 737,

i view of the fact that the Chippewa

nquished large arcas of land and. re-

! White Earth Indian Reservation in

this promise that their allotments

taxed for twenty-five vears, the above

sion has been uniformly construed as

pon the Tmedian allottees a vested 25-

uption Which may net be revokod with:

sent. Morrow vo United States, 243

CoA, 8): United States v. Spacth, 24

(Minn.) s ef. Choate ve Trapp, 224 U,

puter Vv. Shaw, 280 US. 363.) In fact,

needes that the Chippewa ailottees en-

ar tax exemption, of which they eould

ved without their consent.

ee

II

The Clapp Amendments of 1906 and 1907, effee-

tive as to Isabelle Garden when she reached her

majority im 1911, removed the restrictions on

alienation, but they did not destroy her vested tax

exemption. Choate v. Trapp, 224 U. 8S. 665, 673;

United States v. Waller, 2438 U.S. 452; United

States v. Spacth, 24 F. Supp. 465, 468-469

(Minn.). Since Isabelle Garden was free after

1911 to manage her allotment as she saw fit, it is

incorrect to suggest that she ‘‘voluntarily’’? paid

taxes in order to aequire a right of alienation

whieh was already hers by virtue of the Clapp

Amendments. The allottee herself sued for their

recovery in 1923. Moreover, tax payments made

hy an allottee faced with the threat of having her

lnnds sold for unpaid taxes are not “voluntary

payments’ within the rule that taxes voluntarily

pid eannot be recovered. Ward v. Love County,

PIS ULS. 17, 23: Glacier County, Monto uv United

States, 99 FL (2d) 733, 735 (C. CG. AL 9): United

States vu Nez Peres County, Tdaho, 85 FL (2d) 232,

Yon CE, CL AL 9). Furthermore, when the United

States brings suit to recover monevs wrongfully

exacted from an Indian allottee and to vindieate

a federal right, it is not bound by state statutes of

limitations, statutes governing protests, or the

hike. United States vu Nez Peres County, Tdaho,

9 F. (2d) 232, 236 (C. C. A. 9); Board of Com’rs

of Caddo County, OL NV. United States, 87 F. (2d)

mr ot (CLC. AL 10).

12

III

The duty of the United States to have its guar-

antee of tax immunity respected is a continuing —

obligation even though restrictions on alienation

have been removed and the allottee has been other-

Wise emancipated. Cramer v. United States, 261

I. OS. 219, 232; Bryan County, Ohl. vy. United

States, 123 F. (2d) 782 (C. C. A. 10), certiorari

denied, 315 U. 8. 819. The Government's duty to

recover the taxes unlawfully exacted from. the

allottee in derogation of a federal exemption is

based upon the legal relation of trusteeship and

springs from the obligation contained in the terms

of the trust to preserve the land so that at the end

of twenty-five vears it ean be passed to the bene-

ficiary ‘free of all charge or IncumMbrance. Shay

row V. United States, 243 Fed. 84, 859 (CL CL A,

S)3; United States Vv. Moore, 284 Fed. 86, 89 (C,

(. ALS); United States y. F, rry County, Wash.,

24 F. Supp. 399, 400 (B.D. Wash). Anv taxes

Which were assessed prior to JO28 and which the

allottee had te discharge then or thereafter in or-

der to obtain a free and unencumbered tithe were

unlawful exactions which impinged upon the allot-

tee’s vested tax exemption. The fact that the suit

for their reeovery was not brought until after 1928

is Immateriah The United Mates may at any

tine invoke the aid of the cOnrts “in removing un-

lawful obstacles to the fulfillment of its obliga-

tions.”” United States V. Minnesota, 270 U: S.

IST, 194: United States V. Rickert, 8 U.S. 432,

13

444; Bryan County, Okl. vy. United States, 123

F. (2d) 782 (C. C. A. 10), certiorari denied, 315

U. S. 819.

IV

The interest of the United States in having

its obligations fulfilled and respected, being one

vested in it as a sovereign, cannot be defeated by

a judgment in a proceeding to which it was not

a party. United States v. Candelaria, 271 U. S.

432, 444; Sunderland v. United States, 266 U.S.

226, 232; Bowling v. United States, 233 U. S. 528,

532. Accordiugly, the unsuccessful suit instituted

by the allottee in 1923 is no bar to the present

action by the United States to recover taxes iile-

gally collected by Mahnomen County. Bryan

County, Okl. v. United States, 123 F. (2d) 782

(C. C. A. 10), certiorari denied, 315 U. S. 819.

ARGUMENT

I

THE TRUST PATENT WHICH THE UNITED STATES I8-

SUED TO ISABELLE GARDEN IN 1902 CONFERRED ON

HER A 25-YEAR TAX EXEMPTION WHICH COULD NOT

BE REVOKED WITHOUT HER CONSENT

Petitioner stipulated in the trial court that par-

cel 7, allotted to Isabelle Garden by a trust patent

in December of 1902, ‘twas not legally taxable prior

to the vear 1928”’ (R. 13). And in its brief in

this Court petitioner likewise concedes that the

trust patents which the Government issued to

524404—-~43———3

14

Chippewa allottees conferred on them a 25-year

tax exemption of which they could not be deprived

“without their consent (Br. 5, 6, 19). These are

necessary concessions,

In the trast patents which it granted to these

Indians, the United States expressly agreed to

hold their allotments in trust for a period of

twenty-five years and then to convey them to the

Indians in fee, “free of all charge or encum-

branece Whatsoever"’ (R. 18, 23). This provision

has been uniformly construed as conferring upon

the Indians a vested 2-year tax exemption, of

Which they cannot be deprived without their eon-

sent by either the state or the federal Govern-

ments. United States vy. Rickert, 188 U.S. 432.

158, 439; Choate vy, Trapp, 224 ULS. 665; Morrow

V. United States, 243° Fed. S)4 (CC. CL AL 8):

United States v. Benewah County, Idaho, 290 Fed.

BS (CLC, A. 9): Board of Com’rs of Caddo

County, Okl. v. United States, 87 F. (2d) 55

(C.C. AL 10); United States v. Nez Perce County,

fdaho, 95 F. (2d) 232 (0. C. A. 9); United States

V. Lewis County, Idaho, 95 F. (2d) 236 (°C. C. A.

V2 Glacier County, Mont. v. United States, 99 F.

(2d) 733 0C. C. AL 9): Board of Com’rs v. United

States, LOO FL. (2d) G29 (C. CL AL 10): United

States v. Board of Com’rs, 6 F-. Supp. 401 (W. D.

Okla.) ; United States v. Board of County Com’rs,

13 F. Supp. 641 (N. D. Okla.) ; United States v.

Ferry County, Wash., 24 F. Supp. 399 (E. D.

15

Wash.) ; United States v. Spacth, 24 F. Supp. 465

(Minn.); Warren v. County of Mahnomen, 192

Minn. 464, 257 N. W. 77 (1934); State v. Ward,

189 Okla. 5382. 118 P. (2d) 216 (1941); Tyall v.

Yakima County, 130° Wash. 537, 228 Pae. 513

(1924); 19 Op. A. G. 161, 166-169 (1888) ; 54 Int.

Dec. 65 (19382); ef. New Jersey v. Wilson, 7

ranch 164; The Kansas Indians, 5 Wall. 737,

160; Carpenter v. Shaw, 280 U. &. 363.

That this is the proper construction of the

Government's promise to convey the allotments

to the Indians ‘‘free of all charge or encumbrance

whatsoever” at the end of twenty-five years seems

too clear for argument. Quite obviously, the lan-

guage grants the Indians a tax exemption. The

Kansas Indians, 5 Wall. 737, 760; United States v.

Rickert, 18 U.S. 432; Carpenter vo Shaw, 280

U.S. 363, 366-367. This provision, taken verba-

tim from Section 5 of the General Allotment

(Dawes) Act of 1887, had been construed by the

Attorney General in 1888 as exempting trust al-

lotments from state or territorial taxation. 19

Op. A. G. 161, 166-169. Congress must be deemed,

when it incorporated this provision in the Nelson

Act of 1889, to have known of this ruling of the

Attorney General and to have used the language

with that gloss. Great Northern Ry. Co. vy. United

States, 319 U. 8. 262, 275-276.

And in view of its origin, it seems equally clear

that the tax exemption is a vested one protected

16

from state or federal interference for a period of

twenty-five years. Choate v. Trapp, 224 U.S. 665;

Ward v. Love County, 253 U. S. 17; Carpenter v.

Shaw, 280 U. 8S. 363; ef. New Jersey v. Wilson, 7

Cranch 164. During the negotiations with the

Chippewas for a cession by them of their tribal

holdings in Minnesota, the Indians were repeat-

edly assured that their individual allotments would

be nontaxable for twenty-five years. House Ex.

Doe. 247, 51st Cong, Ist sess. (Ser. No. 2747), pp.

93, 103, 104, 138 (1890). These promises were

known to Congress when it accepted the lands

which the various bands of Chippewas ceded to

the United States (tbid., pp. 1-2) and when it ap-

propriated money for carrying out its allotment

promises (Act of August 19, 1890, 26 Stat. 336,

357). The tax exemption thus conferred on the

Chippewa allottees, being part of the consideration

for their removal to the White Earth Indian

Reservation and for their cession of tribal lands

to th. United States, is a property right protected

by the Fifth and Fourteenth Amendments against

either federal or state interference for the period

therein specified, namely, twenty-five years. Hav-

ing promised the Indian allottees a 25-year tax

exemption, the United States is both legally and

mora!ly bound to see that its obligations are ful-

filled and respected and that the Indians are not

deprived of a vested 25-year tax exemption with-

out their consent. Choate v. Trapp, 224 U. S.

17

665; Ward v. Love County, 253 U. 8. 17; Carpen-

ter v. Shaw, 280 U. S. 363; Morrow vy. United

States, 243 Fed. 854 (C. C. A. 8).

Petitioner does not disagree with the foregoing

principles since it concedes that the allotment

“was not legally taxable prior to the year 1928”

(R. 13; Br. 5, 6, 19). It contends, mstead, that

the taxes collected from Isabelle Garden are not

recoverable by the United States: (1) because

they were ‘voluntarily’? paid by the allottee (Br.

D6, 9-27); and (2) because the United States is

hound by the allottee’s unsuccessful attempt to

recover. these taxes in proceedings which she

brought in the state courts in 1923 (Br. 5, 11,

27-P8). Both contentions are unsound.

I}

IN A SUIT BY THE UNITED STATES TO RECOVER TAXES

WRONGEULLY FNACTED FROM AN INDIAN ALLOTIEE,

PAYMENT UNDER PROTEST IS NOT A PREREQUISITE

TO RECOVERY

Although admitting that Isabelle Garden was

under no legal duty to pay taxes on her allotment

prior to 1928 (Br. 5, 6, 19), it is petitioner's con-

tention that she voluntarily relinquished her ex-

emption and paid the taxes in order that she might

become an emancipated Indian and manage her

allotment as she saw fit (Br. 11-27). But that

right was hers under the Clapp Amendments of

1906 and WOT, 34 Stat. 353, 1034, whether she

18

paid the taxes or not. United States vy. Waller,

243 U.S. 452.

It is true that the original trust patent which

conferred on Isabelle Garden a 25-year tax exemp-

tion likewise imposed restrictions on her right to

alienate the allotment. But the Clapp Amend-

ments, applicable to Isabelle Garden when she

reached her majority in 1911, removed the restri--

tions on alienation. Congress there declared that

“all restrictions as to sale, incumbrance, or tax-

ation for allotments within the White Earth Res-

ervation * * * held by adult mixed-blood In-

dians, are hereby removed.’ The fact that. the

faxation provision was ineffective insofar as it

attempted to subject trust allotments to taxation

prior to the expiration of the 25-year period did

hot render void the other provisions lifting re-

strictions on alienation. United States v. Walle r,

243 U.S. 452, 4614462: United States v. Spacth,

24 F. Supp. 465 (Minn.):; Warren vy. ai of

Mahnomen, 192 Minn. 464, 257 N. W. (1934).

As this Court has repeatedly pointed ae exemp-

tions from taxation and hon-alienabiity are “two

separate and distinct subjeets’? insofar as vested

rights are coneerned. Choate vy. Trapp, 224 U.S.

669, O72; Williams v. Johnson, 239 U.S. 414. 420.

The former is a preperty right protected by the

Federal Constitution against either state or fed-

eral interference; the latter is an expression of

legislative policy which Congress, by virtue of its

19

plenary power over Indian affairs, can change at

will, with or without the allottee’s consent. Wil-

liams v. Johnson, 239 U.S. 414, 420; United States

v. Benewah County, Idaho, 290 Fed. 628, 631,

(C. C. A. 9); United States v. Ferry County,

Waosh., 24 F. Supp. 399, 401 (E. D. Wash.) ;

United States v. Spaeth, 24 F. Supp. 465, 468,

469 (Minn.); 49 L. D. 348 (1922).

Sinee restrictions on alienation can be removed

by legislative fiat, it follows that an Indian allot-

ment may be unrestricted and at the same time

tax exempt. Such was the situation in Choate Vv.

Trapp, 224 U. S. 665, 669, 670, 673; English v.

Richardson, 224 U.S. 690; Carpenter Vv. Shaw, 230

U.S. 23628.365; Board of Com’rs of Tulsa County,

Okle.v. United States, 94 F. (2d) 450, 451 00. C.

A. 16): United States v. Board of County Com’rs,

19 F. Supp. 635, 686 CN. D. Okla.) ; United States

v. Spacth, 24 F. Supp. 465, 468 (Minn); Whit

mire Vv. Trapp, 33 Okla. 429, 126 Pace, 578 (1912) ;

Board of Com’rs of Okvfushee County Vv. Hutton,

72 Okla. 223. 179 Pace. 922 (1919); Grothop v.

Stuckey, 140 Okla. 178, 282 Pae. 611 (1929) ; 49 L.

D. 248, 351-352 (1922); 50 L. D. 691, 693 (1924) ;

<oe Act of June 28, 1898, ¢. 517, 30 Stat. 495, 507.

Because there is nothing to prevent an allottee

from simultaneously possessing an unrestricted

fee and a tax immunity, it Is incorrect to suggest

(Br, 11-27) that Isabeile Garden voluntarily paid

taxes Which she did not have to pay in return for

a right of alienation which she already had by

reason of the Clapp Amendments.

20

Hence, it cannot be said that the taxes were paid

by the allottee for any purpose other than to pre-

vent her allotment from being sold for vnpaid

taxes. This is borne out by the fact that she her-

self brought suit to recover these very taxes in

1923 (R. 19-20). She was aware of the conse-

quences of nonpayment, as well as the apparent

futility of objecting to the levies. The Indians

who failed to pay the taxes lost their allotments

(R. 21, 23). Payments made under eireumstances

Which prevail in these types of cases, namely,

Where the Indians run the risk of losing their

allotments unless the taxes are paid, eannot be

deemed rips payments.’ Werd v. Love

County, 258 U.S. 17, 23; Carpenter v. Shaw, 280

UL S. 363, 369; pak County, Mont. v. United

States, 99 FB. (2d) 733, 735 (C. C. A. 9): United

States v, sae! Perce County, Idaho, 95 F. (2d)

Sie, aoe (C. A. 9); Board of Com'rs of Caddo

County, v. Veiled States, 87 F (2d) 55, 57

Warren ve County of Malnomen, 192. Minn. 464.

257 N. W. 77 (1934): State vy. Ward, 189 Okla,

952, TIS PL (2d) 216 (1941). Any coutention that

the taxes are not recoverable beeause not paid un-

der protest, formal or otherwise, is unseund be-

cause the courts have repeatedly held that ‘The

United States is not preelided from recovering

faxes pald without protest by an Indian ward.”

United States ve Nez Perec County, Ldaho, 95

K. (2d) 232, 236 (C. C. A. 9); Board of Comers

of Caddo County, Okt. Vv. United States, 87 F.

21

(2d) 55, 57 (C. C. A. 10); United States v.

Dewey County, 14 F. (2d) 784, 791 (S. D.),

affirmed, 26 F. (2d) 434 (C. C. A. 8), certiorari

denied, 278 U. 8. 649; United States v. Board of

County Com’rs, 13°F. Supp. 641, 643° (ON. D.

Okla.) ; United States v. Chehalis County, 217 Fed.

281 (W. D. Wash.); ef. Warren v. County of

Mahnomen, 192 Minn. 464, 466, 257 N. W. 77

(1934).

The quotation from Ward vy. Love County, 258

U.S. 17, 22, relied upon by petitioner (Br. 7, 21),

is unduly abbreviated. This Court went on to

state in that case that since a federal exemption

was involved the question whether the taxes were

paid voluntarily or exacted by coercion was a fed-

eral one, and that the Oklahoma Supreme Court’s

determination that the taxes were paid voluntarily

was Without any fair or substantial support (203

U.S. at pp. 22-23). It is to be noted further that

the United States was not the party plaintiff in

that case. Loeal statutes of limitation, statutes

governing protests, ete., are not applicable when

suit is brought by the United States in its sover-

eign capacity to vindicate a federal poliey. Cf.

United States ve. Chehalis County, 217 Fed, 28),

285 OW. D. Wash.); United States vi Dewey

County, 14 F. (2d) 784, 791 (S. D.), affirmed, 26

F. (2d) 434. (°C. C. A. 8), certiorari denied, 278

U.S. 649. Where a federal right is involved and

the United States is the party plaintiff, ‘‘money

got through imposition’? may be recovered back,

22

whatever be the state law. Cf. Ward v. Love

County, 253 U.S. 17, 24.

III

IT IS IMMATERIAL THAT THE SUIT WAS NOT BROUGHT

ANI THAT SOME OF THE TAYFS WERE NOT PAID

UNTIL AFTER THE EXPIRATION OF THE 25-YEAR

PERIOD

Petitioner contends that the United States may

net bring suits on behalf of Indian allettees after

‘Although petitioner twice Tnentions the fact that a fee

patent was issued to Isabelle Garden on December 8. 1919

(Pr. 2.3). ne contention is made that the patent rendered

the Iand taxable (Ro 13). inasmuch as it was issued without

any application on the part of the allottee (Br. 3). Conse-

quently, Cubses like Nireet v, Nchock, 245 U. Ss. 192, ane Fink

S. 399, are not applicable

(cf. Br. 24). The Department of the Interior caused the

fee patents to be issued for two reasons: (1) to keep the

records straight (see Warren vy. County of Mohnomen, live

Minn. 464, 257 N. W. 77 (1934)). inasmuch as Congress

had already granted a fee by legislative fiat; and (2) he-

¥. County Commiss/one Ps, 248 [

x

eatise In 19 the Department of the Interior was enforcing

a“ Dochuration of Policy” which called for the immediate

discontinuance of federal guardianship over all competent

Indians (those of one-half or less Indian blood), Report

of the Commissioner of Indian Affairs, L917, pp. 8.55 ihid.,

Is. p. 22. Phis poliey, because of its disastrous conse-

quences, Was abandoned shortly after 1920, ZA/d.. 1926, Pp.

12 see also Annual Report, Seey. Int. 120, p. 9: iid, 1921,

p. orb.

Since the allotment here involved was not held in a trust

statis on the date the confirmatory fee patent was issued

to Tsabelle Garden in 19i9, the Secretary of the Interior

has ruled that the Aet Ju. 11, i940. 4 Sint, Qs, pre

viding for the reimbursement by the United States of In-

dians for taxes paid on their allotted lands in certain cir-

cumstances, as amended by the Act of February 10, 1942, 56

Stat se (25 UL S.C. AL 352), is not applicable to the facts

of this case.

the

23

expiration of the trust periods and after their

emaneipation (Br. 25-26). In the trust patent

whi

rh it issued to Isabelle Garden in 1902, the

United States agreed to convey the allotment to

her

cha

whi

allo

at the end of twenty-five vears ‘free of all

‘go or encumbrance’ (R. 18, 23). Any taxes

‘+h were assessed prior to 1928 and which the

tee had to discharge then or thereafter, im

ordér to obtain a free and unencumbered title,

wer? unlawful exactions and impinged upon the

allo

{tee’s vested tax exemption. Since the taxes

shotild not have been levied, it makes no difference

whether they were actually paid before or after

the

kie

Sta

one

a

~

expiration of the 25-year period. As_ the

hth Cirenit observed in) Merrow v. United

tes, 243 Fed. 854, 859, The instant case is not

depending upon governmental wardship over

ependent and inferior people, but is based

upan the legal relation of trusteeship, and springs

fro

truy

v the obligation contained in the terms of the

t '

st to preserve the land, so that at the cad of the

trust period it ean be passed to the beneficiary

‘irde of all charge or incumbrance.’ 7 See also

Un

S):

Sul

j

Its 4

its

itu

ted States Vv. Moore, 284 Fed. 86, 89 (CL CL A.

United States Vv. Ferry County, Wash., 24 F.

yp. 399, 400 CW. DL Wash.).

tis the Government's right and duty to have

‘consensual obligations properly discharged and

leclared policies fully respected, To this end,

my invoke the aid of the courts “in removing

24

to the fulfillment of its obli-

’ States Vv. Minnesota, 270 U.S.

Staics Vv. Rickert, 88 U.S. 432.

fy, Ol. Vv. Cuited States, 123. ¥.

. 10), certiorari deniea, 315 U.S.

Hof the United States in havine

policies observed ‘is one which

a sovereton.”” United States v.

S. U8, 194,

he United States to have its

ImmMeAIty respected is a con-

even though the allottees have

e restrictions on alienation have

l the. Indians have been other-

Lo froma owardship — status.

! States, 261 U. S. sin, 232:

rd States, 224 U. 8. 413, 437;

eve United States, 123 BF. (2d)

rertiorarl denied, 315 U.S. 819:

f Tulsa County, OKl. vo United

450, 452 (C. CL AL 10): United

we Mercantil ('o., O8 FL (2d)

9). The Bryan County CHSe,

npoint. There the tax eXeHIp-

pired, the allottees had become

had even assigned their tax

arty. The United States was.

dd to maintain the suit and to

Which the county had wrong-

the allottees, In this connee-

25

tion, it is to be remembered that an Indian may

be emancipated for some: purposes and not for

others. United States v. Waller, 243 U.S. 452,

4994160; United States v. Niece, 241 US. 591, 598 ;

Mnited States v. Sherburne Mercantile Co., 68 ¥F.

(2d) 155,158. (C.C.A.9).

IV

THE UNITED STATES IS NOT UND BY THE ALLOTTEE’S

UNSUCCESSFUL ATTEMPT TO RECOVER. THE TAXES IN

THE STATE COURT -

The interest of the United States in having its

obligations and policies respected, being one which

ix vested in it as a sovereign (United States vy.

Minnesota, 270 U.S. ISI], 194), cannot be de-

feated by a judgment in a proeceding to which

it was nota party. United States v. Candelaria,

271 U.S. 452, 444: Sunderland v. United States,

266 U.S. 226, 232: Privett vo United States, 256

ULS. 201, 204; Bowling v. United States, 233 U.S.

ols, 934. Accordingly, the unsuecessful suit. in-

stituted by the allottee in 1923 is no bar to this

vetion hy the United States to recover taxes il-

legally eolleeted by Mahnomen County. Bryan

County, Ohl Vv. United States, 123 F. (2d) 782

(CC. AL 10), certiorari: denied, 315 U.S. 819.

Here again the Bryan County ease is squarely in

point. There the allottees assigned their tax-

refund claims to one Broadwell who brought suit

to recover the taxes in the state courts of Okla-

26

homa. The suit was defeated by a plea of limita-

tions. Broadwell vy. Board of Com’rs of Bryan

County, 88 Okla. 147, 211 Pae. 1040 (1922), certi-

orari denied, 262 U.S. 750. But that judgement

did not prevent the United States from subse-

quently recovering those taxes in its own courts.

Bruon County, Okl. v. United States, 123 F. (2d)

782 (C. C. A. 10), certiorari demied, 315 U.S, 819.

CONCLUSION

For the foregoing reasons, it is respectfully

submitted that the decision of the circuit court

of appeals should be affirmed.

CHARLES Fany,

Solteittor General.

J Norman M. Lirrete,

Assistant Attorney General,

ms L. WILKINSON,

ALTER J. CUMMINGS, Jr...

Atiorneys.

Apri. 1943.

APPENDIX

Section 5 of the General Allotment (Dawes)

Act of February 8, 1887, c. 119, 24 Stat. 388, 389,

provides:

That upon the approval of the allotments

provided for in this act by the Secretary of

the Interior, he shal! cause patents to issue

therefor in the name of the allottees, which

patents shall be of the legal effect, and de-

clare 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 ta whom such

allotment shall have been mude, or, in case

of his deeease, of fiis betis according to

the laws of the State or Territory where

such land is loeated, and that at the expi-

ration of said period the United States

will convey the same by patent t): said In-

dian, or his heirs as aforesaid, in fee, dis-

charged 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 discretion extend the pe-

roa. * * * (3 U. 8B. C. 348.)

nee 4 and 3 of the Nelson Act of January

14, 1S89, ©. 24, 25 Stat. 642, so far as pertinent,

provide:

Be it enacted by the Senate and louse

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

(27)

28

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

thelr appointment, to negotiate with all the

different bands or tribes of Chippewa Tn-

dans in the State of Minnesota for the com

plete cession and relinguishment in writing

of all their title and interest in and to all

the reservations of said Indians in the State

of Minnesota, except the White Earth and

Red Lake Reservations, and to all and se

much of these two reservations as in the

Judgment of said commission is not required

fo make and fill the allotments r: quired 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: * * ai?

* * * * *

Sec. 3. That as soon as the census has

been taken, and the eessiop and relinguish-

tient has been obtained, approved, and rati-

Hed, 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 residence on the White Earth Res-

ervation, and thereupon there shall, as

soon as practicable, under the direction of

said commissioners, be allotted lands il sev-

eralty to the Red Lake Indians on Red Lake

Reservation, and to all the other of said

Indians on White Earth Ry servation. in

conformity with the act of February eighth,

eighteen laund.cd aad erhty seve, ercitles

“An act for the allotment of lands in sever-

29

altv 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-

poars": ° * *

The first Clapp Amendment of June 21, 1906,

d004, 34 Stat. 325, 358, provides:

That all restrictions as to sale, imeum-

brance, or taxation for allotments within

the White Earth Reservation in the State

of Minnesota, now or hereafter held by

adult mixed-blood Indians, are hereby re-

moved, and the trust deeds heretofore or

hereafter exeeuted by the Department for

such allotmetits are hereby declared to pass

the title in fee simple, or such mixed bloods

upon application shall be entitled to receive

a patent in fee simple for such allotments;

and as to full-bloods, said restrietions shall

be removed when the Secretary of the In-

terior is satished that said adult) full-blood

Indians are competent to handle their own

affairs, and in such case the Secretary of

the Tutertor shall issue to such Indian al-

lottee a patent in fee simple upon appliea-

thon.

The second Clapp Amendment of Mareh 1, 1907,

e, JUS, 4 Stat. 1034, provides:

That all restrictions as to the sale, incum-

brance, or taxation for allotments within

the White Earth Reservation in the State

of Minnesota, heretofore or hereafter held

by adult mixed-blood Indians, are hereby

removed, and the trust deeds heretofore

or hereafter executed by the Depart-

ment for such allotments are hereby de-

30

clared to pass the title in fee simple, or such

mixed-bloods upon application shall be en-

titled to receive a patent in fee simple for

such allotments; and as to fuli-bloods, said

restrictions shall be removed when the Sec-

retary of the Interior is satistied that said

adult full-blood Indians are competent to

handle their own affairs, and in such ease

the Secretary of the Interior shall issue to

such Indian allottee a patent in fee simple

upon application.

©. 8. GOVERNMENT PRintine OFFicH: ad

PVE TD han dae “ast

stl oie of

|

:

|

.

N] | :

SUPREME COURT OF THE UNITED STATES.

No. 684.—OctToBpeR Term, 1942.

County of Mahnomen, a Municipal) On Writf of Certiorari to

Corporation, Petitioner, the United States Circuit

vs. * Court of Appeals for the

The United States of America. | Neweh Circuit.

ida

[June 7, 1943.] —-

Mr. Justice Brack delivered the opinion of the Court.

This action was brought by the government in a federal district

court to recover real estate taxes alleged to have been illegally

colleeted by Mahnomen County, Minneseta, from Isabelle Gar-

den. an Indian allottee! The suit. brought in 1940, seeks a re-

fund of taxes for the years 1911 to 1927 inclusive. It is eon-

ceded that any limitation on the County's power to tax expired in

2s with the termination of the twenty-five year trust described

below. The District Court rendered sudgment against the County

ter the years 1211 to 1921, inclusive, giving a total judgment of

S05 97. On appeal by both the government and the county, the

(ireuit Court of Appeals affirmed but gave an added judgment

for the years 1922 through 1925. 131 F. 2d 936.

In its petition for certiorari, the county claimed that Garden

Was an emancipated Indian whe had paid the taxes voluntarily,

and that hence the judgment granting a refund conflicts with

Ward vo Love County, 253 U.S. 17. The county also contended

that it was wholly within an Indian reservation: that it had long

been dependent on taxation of allotted lands: that after the Passave

ef the first Clapp Amendment in 1906, 34 Stat. 325, 353. which

emancipated the Mahnomen County Indians, and lifted ‘tall re-

trietions as te the sale, incumbrance, or taxation for allotments’’, the

County had assumed that the Indians eould voluntarily contribute

to the support of County institutions; and that while the instant

Judgment is small, the aggregate amount of such Judgments which

might be obtained in similar actions weuld adversely affect) the

Suiveney of the County and imperil the continuance of Ounty

institutions. On these representations of the public importance of

ihe case, we granted eortiorart. —-_. &

1 The government's origina! eoraplaint included additional: claims against

Mahnomen and other counties, but these other claims are not involved in the

ease as it reaches us.

y

oe

County of Mahnowen vs. United States.

in 102. the Secretary of the Interior, acting under Coneros

Stonal authority, issued a patent to this Indian allottee, agre ing

to hold a tract of land in trast for tw nty-five years ‘‘for the >

use and benetit of the Indian’? and then te convey the lard to

her “discharged of said trust and free of all eharge or j

brance whatsoever. Tudian land so hehl by the govern:

his been said to be exempt from all State taxation. United Str. s

Vv. Rickert, 188 U. 8. 432, 436-4288. The first and second (hapep

Amen iinents, passed in 106 and 10075 lifted restrictions rates |

ously imposed upon the sale. eneambranc- and taxation of the

allotments of adult mixed-blood Indians. mn im adebation dhe!

that ‘the trust wds heretofore or bereafter executed by the De.

partiwent for sueh allotments, are hereby declared to pass the title

ote Sinmipie” (Garden is arr alot ou ixed-bl] nd Indian Qed f

been an adult s PYG. when the {rst controverted tax pavnient

Mats orarctale These amendments ot “a Tevistative judy :

1! t ul t rays 1! | ' i? ’ ? e et ou

? af ; ‘ i ‘ Hoon “S. * } Cony rt cs

ri ° nial ro and ty fo dispo . t

triads ( i Stat veh (he ee ee \

WeCrrt] 145 Mir ler, Wa

Notwitl . . Ts ‘ s ? ! : i

arenendsa. that * ; iM fs 1 ; mS WA Tak Tp

do fatmds ot to tH inst th nmsent of the Indians

tnoate ¥. Trapp, 224 V8 665." The | apps Nrnpereedanrestnt .

the consent of the United States to state taxation. thas remo

ine the barrier to taxation foumd to exist tu United States \

Reckert, sipraz: hut under Choate vo Tra ip. the Indian. whe has

gained a ‘*vested right’ net to be taxed. must. alse conmsen?

Acceptance of Choate v Trapp docs net mean that an Indian.

levislatively deelared te be competent to handle his own affairs,

cannot voluntarily decide to pay taxes for his own advantace

and welfare. Tf, as the petitioner argned, and as the government

does not deny. the capacitive of the Nnty te provide seloo's,

roads, end other necessary serviees would have heen serions |»

= 24 Stat. 388, 389: 25 Stat, 64°.

a 24 Stat, 325: 308: 34 Stat, 10se

#We do not consider whether Choate r, Trapp js controlling here. tno

ease the government had patented land with a provision that ‘the land shou}

be non tavable’’ and the ‘igresment with the Indians was held to be a contract

Wheh ‘thaving been aeeonted by the State of Oklahoma in ite Constitutio

Upon admisson te statehood, was s limitation Upen the tanimy power of

State.’" Carpenter r. Shaw, 280 U.S. 363, 366.

i ll te eee

County of Mal nomen vs. United States. 3

peopardized. if not destroyed. by the failure of the Indians to

contribute to a tax fund, ther newly granted emancipation would

have been of little value. In addition, the market value of their

ands would have been greatly reduced by the complete inability

of the County to secure funds essential to the establishment of

means of travel and communication and the maintenance of an

orderly society. Nothing that was said in Choate v. Trapp, or in

any other decision of this Court, deprived an emancipated Indian

of freedom voluntarily to pay taxes in his own interest. Ward

vy. Love County, 253 U.S. 17, 22, assumed that the test of the

right to recover a tax illegally. collected from an Indian is whether

the tax was paid voluntarily, and that the burden is upon one

sevking recovery of the tax to establish that the payment was made

inveluntarily, The issue before us. therefore, is whether the goy-

ernment has sustained that burden.

There is no allegation, stipulation, or finding by either eourt

that these taxes were involuntarily paid. Both courts below

erroneously assumed that the government's origina! obligation

‘) hold the land in trust and deliver ic free of encumbrances

termuts the government to maintain this suit even though the

indian bas willingly paid taxes. 1911-1921 taxes were evidently

paid without protest, and there is nothing in the record te permit

a deduetion that the payments were involuntary.5

The 1922-25 taxes were discharged in somewhat different fashion.

The allottee became delinquent in the payment and the lands were

sed te the State. Subsequently, in) 1986, she made a com-

promise arrangement with the State, for a period including not

culy the years 1922-27, for whieh tax exemption is claimed, but

aso for the vears 12s-54. for whieh there is no conceivable claim

P exemption. This compromise, made in the form of purchase of

‘so tax certificates for the allottee, resulted in payment by Garden

r the entire 1922-34 period of less than the amount of the 1928.

t taxes. The compromise, made at a time when the Indian was

y1

aly as free as any other citizen, was, in the words of the Distriet

’

*In 1923 Garden sued in a state court for recovery of her 1911-1921 taxes.

A demurrer was sustained in the trial court and no appeal was taken. The

record doea not show that she had made the tax payments under protest,

which would probably have entitled her to recovery under state law aecording

+

to the doctrine of Warren v. Mahnomon County, 192 Minn. 464. This action,

brought after the tax benefits had been enjeved, is no indication that she did

hot originally pay the taxes willingly in order to enjoy the benefits of county

government. We need not consider the contention of the County that the

1923 action is res adjudicata. (Cf. Bryan County v. United States, 123 F.

2d 782.

4 County of Mahnomen vs. United States.

Court, a ‘‘voluntary action and election of the allottee to proceed

in a manner which she deemed wise and prudent.’’ It resulted in

a net saving to the allottee of $66.42 for the taxable years 192s.

1934. The voluntary nature and the fairness of the 1936 settlo.

ment are further indicated by the faet that the County, in its

answer to the complaint, has declared its willingness to refund

the sum paid in settlement in order that it may relevy the taxes

fer the years 1928 and 1934 and thus collect the taxes which Garden

adinittedly owed.

The aliottee paid the 1911-21 taxes voluntarily and settled the

balance of her taxes to her advantage in 1936. Neither Minnesota

law? ner federal law’ requires that a county refund taxes which

an emancipated Indian has Voluntarily paid. The County is en-

titled to judgment in its favor.

Reversed

Mr. Justice FRANKFURTER and Mr. Justice RUTLEDGE eeneur

in the result.

% The parties have entered the following stipulation as to the payment of

these taxes: ‘‘That said taxes for the years 1922 and 1927, both inclusive,

were paid and discharged by the said allottee by the purchase by her of

State Assignment Certificate No. 76 in the amount of $33.99 covering the

taxes for the veara 1922 to 1925, both inclusive, and State Assignment (rr

tifieate No. 232 in the amount of $145.93 covering taxes for the years 1926

to 1934, both inclusive, all pursuant to Chapter 387 Laws of Minnesota for

1935, that the aggregate for said State Assignment Certificates is the sum of

$179.15 and that the valid taxes for the years 1928 to 1934, both inclusive,

thereby discharged amounted to $245.57 without penalty or interest and that

therefore said aliottee effected a saving of 66.42 plus penalty and interes:

by the purchase of said State Tax Assignment Certificates. ’’

The government in effect concedes the merit of the argument that the 1936

settlement was a fair and voluntary compromise but seeks to avoid ita force

by an assumption that the two tax certificates are to be ‘reated in different

fashion. As the stipulation makes clear, Certificate Number 76 formally

covers the years 1922-25, and No. 232 covers the years 1926-34. In view of

the substantial benefit received by the allottee from the compremise, the gov-

ernment has waived its claim for any refund for the years 1926-27, but it

apparently aseumed that Certificate No. 76 was unrelated to this compromise.

However, both Certificates were purchased at the same time, both covered the

same lands, and each would be worthless without the other since the Minne-

sota law under which the arrangement was made is aimed at the settlement

of all delinquent taxes. C. 387, Minn. Laws, 1935; Minn. Stat. (Henderson,

1941), § 280.11-13; ef, Security Trust Co. rv. Heyderstaedt, 64 Minn. 409.

The reason for the use of two certificates, one for the years prior to 1925 and

the other for the years thereafter, may have resulted from the fact that the

Minnesota statute applies different standards of value to compromises of taxes

delinquent prior to 1925 and those delinquent thereafter. As is indicated

by the stipulation, the transaction for the two certificates was considered ae

aunit and is in fact one compromise, termed by the trial judge a settlement

for a *‘lump sum”’.

7 Falvey v. Board of County Commissioners, 76 Minnesota 257; Warren r.

County of Mahnomen, supra,

S Ward +. Love County, supra; Carpenter v. Shaw, 280 U. §. 363.

County of Mahnomen vs. United States. 5

Mr. Justice Murpuy, dissenting.

I dissent because the Court today takes too narrow a view of

cur obligations to our Indian citizens—obligations engendered by

a history marked at times with trespass, depredation and corrup-

tion, and by the concomitant necessity of aiding and protecting

a people once dependent and unlearned in our ways during their

difficult period of transition from that situation to the assump-

ton of civie responsibilities and assimilation into the mass of our

citizenry.

The assumptions which the opinion of the Court makes regard-

ing the tax status of Isabelle Garden's allotted land but state the

applicable law. The land which she received in 1902 under a

trust patent, issued pursuant to the Nelson Act (25 Stat. 642) and

the General Allotment Act (24 Stat. 388), was exempt from state

and local taxation for a period of 25 years. or until 1928. United

States Vv. Rwkert, 188 U.S. 432. Board of Commissioners v. Seber,

~ UL S. —, No. 556 this Term. Since the tribe to which she be-

longed wave up its extensive holdings after assurances that. the

fortheoming allotments would be non-taxable for 2A years,’ this

tax exemption was a vested right of which she could not be de-

prived without her consent. Choate y. Trapp, 224 US. 665: Ward

Vv. Love County, 253 U.S. 17; Curpenter Vo Shaw, 280 U.S. 363.

Consequently, although Isabelle Carden upon reaching her ma-

Jerity in 1911 became emancipated by virtue of the Clapp Amend-

ments of 1906 and 1807 (34 Stat. 253, 1034), that legislation did

net disturb her vested tax exemption.

The Court's reliance upon Ward v. Lore County, 253 U.S. 17,

as the basis for its decision with regard to the 1911-21 taxes paid

by Isabelle Garden is unwarranted. In that case it was assumed

that an emancipated Indian possessing a vested tax exemption

conld not recover back taxes illegally assessed but voluntarily

paid. 253 U.S. at 22. But that case did not hold, as the Court

now asserts that it did, that the burden was on the Indian claimant

to establish the involuntary character of the payment. Still less,

since the United States was not a party, did it consider what the

reghts of the United States would be should it bring suit on behalf

(f the Indian. That is the instant question, and while it is ordi-

narily true that the burden of demonstrating the illegality of a

' House Ex. Doe. 247, Slst Cong., Ist Sess, (Ser. No. 27475, pp. 93, 103,

104, 138 61890). See also Morrow r. United States, 243 Fed. 854.

t) County of Mahiomen vs. United States.

collected tax and compliance with the statutory requigements for

refund are upon the taxpayer seeking recovery, stréng reasons

of policy suggest an opposite rule should prevail in this case.

While ‘‘emancipated’* upon attaining twenty-one, Isabelle Garden

was an Indian ‘‘just emerging from a state of dependency

and wardship’’, Ward v. Love County, supra, at p. 23, and the

United States had the right, if not the duty, to enforce for her

benefit its guarantee of iax immunity even though she was a

citizen, the restrictions on her property were removed, and she

was otherwise emancipated from a wardship status. Cf. Cramer

v. United States, 261 U. S. 219, 232; Heckman vy. United States,

224 U. S. 413, 437; United States v. Minnesota, 270 U. S. 181,

194. To hold that the United States is foreclosed by action which

Isabelle Garden may have taken or failed to take in ignorance of

her iegal rights is to hinder the United States in the performance

of its considered policy of protection and to deprive her indirectly

of that which she could not directly be deprived—her vested tax

exemption. Without legal right the County placed her tax exempt

property upon its tax rolls immediately upon her reaching adult-

hood, assessed it, and she paid the taxes under circumstances nut

fully disclosed. In this situation it is only fair to put the burden

on the County, whose unauthorized action brought it about, of

establishing that she paid the taxes of her own free will with full

knowledge of her legal rights. A contrary rule fails to take into

account the long and not altogether creditable history of our re-

lations with the Indians and the obligations we owe to those people

to protect them in their rights.

Apart from the question of burden of proof, however, I eannot

agree with the opinien of the Court. The crucial issue with re-

gard to the 191'-21.taxes is assumed to be the voluntary or in-

voluntary character of these payments. The trial court admit-

tedly made no findings on this issue and in the absence of such

findings, the proper procedure would be to remand the ease to

the trial court. Cf. Seminole Nation v. United States, 316 U. S.

286, JOO. But if we are to decide the case here by indulging in

presumptions, I think the only tenable assumption is that the pay-

ments were made under compulsion. Jsabelle Garden’s land was

assessed immediately after she became twenty-one, and she ran

the risk of losing it unless she paid the taxes. The record shows

that some of the Indians, originally included in this action, who

failed to pay their taxes did lose their allotments. On the record

County of Mehnomen vs. United Siates. 7

it cannot be said with certainty that Isabelle Garden paid the

taxes for any other purpose than to prevent her allotment from

being sold for unpaid taxes. This is borne out by the fact that

she herself brought suit in 1923 te recover the 1911-21. taxes.*

Suggested reasons for finding that the payments were voluntary

are without substance. Isabelle Garden did not have to pay those

taxes for the privilege of managing her allotment as she wished.

Theat right was hers under the Clapp Amendments which were

competent to remove the restrictions upon her lana, but not the

vested tax immunity. Cf. Choate v. Trapp, supra, p. 673. And

tere is nothing in the record, apart from argument contained in

the County's unsuccessful motion for a new trial, to support the

assumption that she voluntarily paid the taxes to enjoy the bene-

tits of County government. Payments made under circumstances

such as this, where an exempt Indian runs the risk of losing her

allotment unless the taxes are paid, should not be considered vol-

untary payments. Cf. Ward v. Love County, supra, p. 23; Car-

penter Vv. Shaw, 280 U.S. 368, 369.

Finally, IT cannot assent te the proposition that since Isabelle

Garden settled her taxes for 1922 through 1934 for less than the

amount she owed for taxes validly assessed for the period be-

ginning in 1928 when her land became taxable, the United States

eannot recover for her the amounts she paid to discharge the

1922-25 taxes. Those taxes were discharged in 1936 by the pur-

chase of State Assignment Certificate No. 76. At the same time

the taxes for 1926-34 were discharged by the purchase of another

assigninent certificate. The facet, unexplained by the stipulation,

that two certificates were used to discharge the taxes suggests

that there was no relation between the discharge of the 1922-25

taxes arid the settlement of the admittedly due taxes for 1928-34,

But even if a relation is assumed, the United States should still

be allowed to recover the amount paid for Assignment ‘‘ertificate

No. 76. Isabelle Garden probably would have been able to com-

promise her 1928-34 taxes even more advantageously if the County

had not asserted its unwarranted claims for the years 1922-25

2 This unsuccessful suit is no bar to the present action by the United States.

The interest of the United States in having its obligations and policies re-

spected cannot be defeated by judgments in actions to which it is not a party.

United States v. Candelaria, 271 U. S. 432, 443-44; Sunderland rv. United

States, 266 v. S. 226, 232; Privett vr. United States, 256 U. 8. 201, 204; Bryan

County, Okl. v. United States, 123 F. 2d 782.

-

8 County of Mahnomen vs. United States.

during which period the property was still tax exempt. That is

sufficient to warrant recovery of the amount paid for Assignment

Certificate No. 76 in discharge of the 1922-25 taxes.®

3 This analysis also indicates that the portica of the assignment certificate

covering the period 1926-34 which discharged the taxes levied for 1926 and

1927 should be returned. The Government, however, presses no claim for these

amounts here.