Memorandum — Taunah v. Jones

Opinions below

Jurisdiction

Statement

Cases:

Oklahoma Tax Comm'n v. Texas Co., 336 U. S. 342

Stratton’s Independence v. Howbert, 231 U. S. 399

Superintendent v. Commissioner, 295 U. S. 418 ;

Statutes:

MP I, TOD Fionn nnn onecnccscens. en...

Act of May 10, 1928, ¢. 517, 45 Stat. 495, Sec. 3.....

Act of January 27, 1933, ¢. 23, 47 Stat. 777.......

Internal Revenue Code:

(1)

I Li GR arse ex bhw ced Oouet Wis fobs nos vue recta c:

EAE RENE ERNEST DPE le a sa an eae air

Oklahoma Tax Comm'n vy. United States, 319 U. S. 598,

5, 10,11

United States v. Ludey, 274 U.S. 295.................

Act of May 8, 1906, ¢. 2348, 34 Stat, 183 (25 U.S.C.

General Allotment Act of February 8, 1887, e. 119, 24

MINTS Seah eis Vel cy s Cae ount ee hac ny bk

See. 1 (25 U.S.C. 1946 ed., See. 331)..............

Sec. 5 (25 U.S.C. 1946 ed., Sec. 348)..............

See. 6 (25 U.S.C. 1946 ed., See. 349)..............,

Income Tax Act of 1913, ce. 16, 38 Stat. 114, 116-181,

DM nat hs Pe Nae oe eke haw choot oes Jen

See. 11 (26 U.S.C. 1946 ed., See. 11)..............

Il

Statutes—Continued

See. 21 (26 U.S.C. 1946 ed., See. 21)..............

Sec. 22 (26 U.S.C. 1946 ed., See. 22)..............

Sec. 23 (26 U.S.C. 1946 ed., Sec. 23)..............

See. 114 (26 U.S.C. 1946 ed., See. 114).. Mee

Jerome Agreement, ratified by ‘Act of June ‘ 1900, ¢.

Gay Oe: ee Oe, OE ee ee

Revenue Act of 1916, ¢e. 463, 39 Stat. 756, Sees. 5, 12. .

Revenue Act of 1918, c. 18, 40 Stat. 1057, Secs. 214,

i, EEE TOE er Eu lh BHU ESR y LR EOE AN

Revenue Act of 1921, c. 136, 42 Stat. 227, Secs. 214,

BUN As dik cel Bab cb ae Paik nvebs Meee Ce

Revenue Act of 1926, ¢. 27, 44 Stat. 9, Secs. 214,

MR i su ao sas oe ka be CORR ee ee

PETS TUR ER ree Pr re ee mre on ea iengi toes

BMY 6 uns tad Seo mee cas Seas aie batr aeee oes Oe

Revenue Act of 1936, ¢. 690, 49 Stat. 1648, sees. 23,

ee BE eT ee Ete oy REO GME CMTE. See ie

ME. 8 aLS hp ey MAREE PRLS GRRE ERO Loa Eee

Miscellaneous:

Executive Order 7464, September 30, 1936, 1 Fed. Reg-

ister, Part II, p. 1507 i Wakes Kiel wick en Sib cin tls

25 Code of Federal Regulations (1938 ed.), Secs. 171. 2

BPM. 5:5 05 yen Vied te Pad MAT VER ee TO oa

Gnthe Supreme Court of the United States

OcToBER TERM, 1950

No. 568

Bert TAUNAH AND PEAWIFEAH TAUNAH,

PETITIONERS

v.

H. C. JONEs, COLLECTOR OF INTERNAL REVENUE

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE TENTH

CIRCUIT

MEMORANDUM FOR THE RESPONDENT

OPINIONS BELOW

The findings of fact and conclusions of law of

the District Court (R. 46-53) are reported at 90

F. Supp. 459. The majority and the dissenting

opinions of the Court of Appeals (R. 59-64, 65-68 )

are reported at 186 F. 2d 445, 448.

JURISDICTION

The judgment of the Court of Appeals was en-

tered January 2, 1951. (R. 68.) The petition for

(1)

2

a writ of certiorari was filed on February 20, 1951.

The jurisdiction of this Court is involved under 28

U.S.C., Section 1254.

QUESTION PRESENTED

Whether taxpayers, who are full-blood restricted

Comanche Indians, are subject to federal income

taxes on their income directly derived from their

allotted lands.

STATUTES AND EXECUTIVE ORDER INVOLVED

The relevant statutes and Executive Order will

be found in the Appendix, infra, pp. 13-20.

STATEMENT

The facts found by the District Court are sub-

stantially as follows (R. 46-48) :

Peawifeah (Flora Taunah), a taxpayer herein,

is a full-blood restricted Comanche Indian (with

Allotment No. 1929, Individual Indian Account

No. P-116). She owns certain restricted Indian

land some of which was originally allotted to her

and some of which she inherited. Title to this land

is held in trust by the United States Government

for Peawifeah. (R. 46.)

Bert Taunah (Wauk-We), the other taxpayer

herein and husband of Peawifeah, is a full-blood

restricted Comanche Indian (with Allotment No.

742, Individual Indian Account No. B-47). He

owns certain restricted Indian land some of which

was originally allotted to him and some of which

he inherited. Title to this land is held in trust

3

by the United States Government for Bert Taunah.

(R. 46-47.)

The original trust patents for the land in ques-

tion were issued to the allottees by the General

Land Office under date of August 25, 1901. The

trust period of twenty-five years has been extended

by Executive Order, as provided by law, and the

extended trust period has not expired. The land

was allotted to, or inherited by, the taxpayers un-

der the provisions of the General Allotment Act of

1887 (infra, pp. 14-16), and the Jerome Agreement

of 1892, ratified by Congress, June 6, 1900 (infra,

pp. 16-19). (R. 47.)

During the year 1946, Peawifeah received

$195.56 agricultural and interest income, and $235,-

239.99 oil and gas rentals and royalties, all except

$22.46 of which came from her original allotment.

A deduction for depletion of 271% per cent, or

$6,941, was taken on the royalty income, resulting

in a determination of Peawifeah’s taxadle income

for 1946 as $18,494.55. (R. 47.)

During the year 1946, Bert Taunah received

$345 agricultural lease income, $360 oil and gas

royalty income, $100 oil lease bonus, and 40¢ in-

terest (not in controversy), making a total income

of $805.40. A deduction of $99 for percentage

depletion on the bonus and royalty income resulted

in a determination that Bert Taunah’s taxable

income was $706.40. (R. 47.)

Thus, the aggregate taxable income received, in

4

1946, by Peawifeah and Bert Taunah from all

sources was $19,200.95. This amount was equally

divided between them for income tax purposes; the

resulting income tax collected totaled $3,950.42.

(R. 47.)

The income tax return for the calendar year

1946 was prepared and filed for taxpayers by a

United States Government employee of the South-

ern Plains Agency, formerly the Western Okla-

homa Consolidated Agency and the Kiowa Indian

Agency, at Anadarko, Oklahoma. The tax payable

under the return was deducted, on January 31, 1947,

from taxpayers’ individual Indian accounts on

deposit with the Treasurer of the United States

and under the supervision and control of the Secre-

tary of the Interior, and was credited to the account

of United States Collector of Internal Revenue for

the District of Oklahoma. (R. 48.)

None of the income involved was paid directly to

these taxpayers, but all was paid into the Indian

Agency at Anadarko, Oklahoma, and each dis-

bursement therefrom was made under supervision

and control of the Department of the Interior.

All such restricted funds are held by the United

States Government for the sole use and benefit of

the individual Indian owner, and all receipts or

expenditures for each Indian are credited or

charged to his individual account. (R. 48.)

All income involved in this controversy is de-

rived directly from the land which was allotted or

5

inherited under the provisions of the General

Allotment Act of 1887 and the Jerome Agreement.

(R. 48.)

The District Court concluded (R. 48-53) that the

General Allotment Act and the Jerome Agreement

relieved the Indian wards’ lands from the burdens

of all taxation and that the tax exemption so

created covered income derived from the lands. It

thus gave judgment for recovery of the 1946 tax

paid by these taxpayers. The Court of Appeals,

Chief Judge Phillips dissenting, reversed (R. 59-

68. )

DISCUSSION

I

In our view, the judgment of the Court of Ap-

peals is clearly correct.

1. It is now settled that Sections 11, 21, and

22 of the Internal Revenue Code (Appendix, infra,

pp. 13-14) subject to income tax all the income of

Indian citizens of the United States, like that of

other citizens, unless an exemption from such taxa-

tion is definitely expressed in an agreement with

the Indians or some Act of Congress dealing with

their affairs. Superintendent v. Commissioner,

295 U.S. 418; Choteau v. Burnet, 283 U. S. 691;

Oklahoma Tax Comm’n v. Texas Co., 336 U.S. 342,

353, fn. 21; ef. Oklahoma Tax Comm’n v. United

States, 319 U.S. 598, 606-608. Neither the General

Allotment Act of 1887 nor the Jerome Agreement

(Appendix, infra, pp. 14-19), which are the only

6

provisions relied on by taxpayers as applicable to

the Comanche, contains any specific exemption

from taxation. Taxpayers would, however, read

an exemption from federal income taxation into

the undertaking of the United States to convey the

allotted land to the Indian at the end of the trust

period discharged of trust and ‘‘free of all charge

or incumbrance whatsoever’’. While this provi-

sion has been held to prevent the imposition of an

ad valorem tax on the allotted land by a state be-

cause, inter alia, such a tax, if unpaid, could be a

charge on the land at the end of the trust period

(United States v. Rickert, 188 U.S. 432, 438), the

provision does not preclude the imposition of a

federal tax on income derived from the land. Such

a tax could, in no circumstances, be a lien or en-

cumbrance on the land as of the end of the trust

period, both because the tax is collectible currently

by the United States out of the very income taxed

which is held by it in trust for the Indian, and

also because, even if the United States failed

through oversight to pay itself the tax due on the

income in its hands, the United States could, and

would, not enforce a lien for the unpaid tax against

the land at or after the end of the trust period in

the face of its promise to convey the land free of

encumbrance at the end of the trust period.’

? While Indians believed to have sufficient business capacity,

knowledge, and experience may be permitted to negotiate

leases of restricted land for farming and grazing purposes and

to collect the rentals thereon, with the approval of the Super-

intendent, (25 Code of Federal Regulations (1938 ed.,) Sec-

7

2. There is also no validity to the taxpayers’ con-

tention (Pet. 11) that taxation of the oil and gas

royalty income diminishes the value of the land and

thus necessarily constitutes a violation of the un-

dertaking of the United States to convey the land

at the end of the trust period free of all charges and

encumbrances. The production of oil and gas

represents partly an income-producing operation

and partly the wasting of a capital asset, the oil

and gas in place. Like the mining of ores, such

production results in a profit, for the oil and gas

are worth more extracted and severed than they

were worth in the ground. Stratton’s Independ-

ence V. Howbert, 231 U.S. 399, 415, 416; Murphy

Oil Co. v. Burnet, 287 U.S. 299; Burnet v. Harmel,

287 U.S. 103; Anderson v. Helvering, 310 U.S. 404,

407-408; Kirby Petroleum Co. v. Commissioner,

326 U.S. 599, 602-603. In determining the profit

or income from production for income tax pur-

poses, Congress has, from the beginning of the tax

under the Sixteenth Amendment, always pro-

vided for a depletion deduction,” which is regarded

tions 171.2 and 171.4), the United States would, as stated

above, be unable to assert a lien for taxes due on such rentals

at the end of the trust period.

An Indian allottee actually declared competent may, in the

discretion of the Secretary of the Interior, receive a patent to

his allotted lands in fee simple, free of all restrictions. (Act of

May 8, 1906, Appendix, infra, pp. 19-20.

* Sec. II of the Income Tax Act of 1913, c. 16, 38 Stat. 114,

166-181; Sees. 5(a) Eighth and 12(b) Second of the Revenue

Act of 1916, c. 463, 39 Stat. 756; Secs. 214 (a)(10) and

234(a) (9) of the Revenue Act of 1918, c. 18, 40 Stat. 1057, and

of the Revenue Act of 1921, c. 136, 42 Stat. 227; Secs. 214

(a)(9) and 234(a)(8) of the Revenue Act of 1924, c. 234,

8

as compensation for the reduction in the mineral

content of the land from which the mined product

is taken. Anderson v. Helvering, supra, p. 408;

United States v. Ludey, 274 U.S. 295, 302. Tax-

payers in this case were allowed, under Section

23(m), Internal Revenue Code, the 2714% deple-

tion deduction provided by Section 114(b) (3) of

the Code with respect to the royalties and bonuses

received by them for the taxable year 1946. (R.

47.) Consequently, such part of the royalties and

bonuses as represents the proceeds from the con-

version of the oil and gas in place, 7.e., a part of the

land, is actually exempted from income tax. Thus,

to the extent that the land has diminished in value

through being depleted of the oil and gas in place,

the taxpayers, or the Indian Agency for their ac-

counts, have received, and will receive, cash pro-

ceeds not reduced by the income tax. In effect,

taxpayers receive a part of their lands in cash

prior to the expiration of the trust period. This

partial performance by the United States of its

promise, prior to the date fixed for performance,

can hardly be deemed a violation of the promise.

Although the Treasury has several times recom-

mended to Congress that the percentage depletion

deduction be eliminated, it has not recommended

elimination of a deduction for the actual depletion

43 Stat. 253, and of the Revenue Act of 1926, c. 27, 44 Stat. 9;

Sees. 23(1) and (m) and 114(b) of the Revenue Act of 1928,

ce. 852, 45 Stat. 791, and of the Revenue Act of 1932, c. 209, 47

Stat. 169; Secs. 23(m) and (n) and 114(b) of the Revenue ‘Act

of 1934, c. 277, 48 Stat. 680, of the Revenue Act of 1936, c. 690,

49 Stat. 1648, of the Revenue Act of 1938, c. 289, 52 Stat. 447,

and of the Internal Revenue Code.

9

sustained. Congress, of course, has not even

adopted the Treasury’s recommendation with re-

spect to percentage depletion, and there is cer-

tainly no basis for a view that Congress will with-

draw completely the right to any depletion deduc-

tion whatever. Because oil and gas are fugacious

minerals, the amount and value of the oil and gas in

place on taxpayers’ lands—represented by that

extracted and to be extracted in the future under

the leases—could never be precisely known. But

it cannot be said that the percentage depletion

deduction (which is allowable so long as oil or gas

is produced and sold irrespective of whether or not

the value of the oil and gas in place, or the cost, if

any, of the property, has already previously been

returned), or depletion allowed on some other

basis which Congress might adopt, will not com-

pensate in full for any reduction in value of the

land caused by withdrawal of the oil and gas in

place, the value of which, as distinguished from

their value when brought to the surface and sev-

ered for sale, is relatively small.

In any event, as stated above, it cannot be

claimed that the 1946 tax, by itself, will diminish

the value of the land since taxpayers were actually

allowed deductions for depletion on the percentage

basis.

3. There is likewise no merit to taxpayers’ fur-

ther assertion (Pet. 12), that the judgment below

unwarrantedly imputes to Congress an inconsist-

ent policy with respect to taxation of agricultural

10

income from restricted allotted lands received by

Indians of different tribes. In the first place,

taxpayers’ assumption that, because part of the

restricted allotted lands of the Five Civilized

Tribes and the Quapaws are exempted by statute

and treaty from all taxation, the agricultural in-

come from such lands is also necessarily exempt

from such taxation is not justified. A tax on in-

come derived from land does not amount to a tax

on the land itself. N.Y. ez rel. Cohn v. Graves, 300

U.S. 308, 314-315; Superintendent v. Commis-

stoner, 295 U.S. 418. Cf. Oklahoma Tax Comm’n

v. United States, 319 U.S. 598, 604-610, and Land-

man Vv. Commissioner, 123 F. 2d 787, 790 (C.A. 10),

certiorari denied, 315 U.S. 810. Thus, taxation

of the income from allotted lands of a restricted

Indian is permitted, even though his lands

may be tax exempt. Superintendent v. Commis-

sioner, supra, wherein Blackbird v. Commissioner,

38 F. 2d 976 (C.A. 10), embodying a contrary

holding, was disapproved. Secondly, the General

Allotment Act and the Jerome Agreement have

substantially different provisions from those appli-

cable to the Five Civilized Tribes, construed by

this Court in Oklahoma Tax Comm’n vy. United

States, supra. The provisions involved here—

which do not refer at all to exemption from taxa-

tion—fully warrant the decision below, even assum-

ing arguendo that members of the Five Civilized

Tribes might be entitled to a different judgment.

Finally, it should be noted that the judgment in

this case, insofar as taxation of the oil royalties and

11

bonuses is upheld, is entirely consistent with spe-

cific provisions authorizing federal (and state)

taxation of such income from restricted tax-exempt

lands belonging to members of the Five Civilized

Tribes. Section 3, Act of May 10, 1928, ec. 517, 45

Stat. 495, 496; Act of J anuary 27, 1933, ¢. 23, 47

Stat. 777. See Oklahoma Tax Comm’n v. United

States, 319 U.S. 598, 604, fn. 6. It follows, on peti-

tioners’ own theory, that Congress did not adopt

an “inconsistent policy as to tax exemption of re-

stricted allotted Indian lands” (Pet. 12), and that

petitioners’ oil and gas income, forming the bulk

of their gain (supra, pp. 3-4), is clearly taxable.

II

As shown in Part I, the holding of the Court of

Appeals is correct. No conflict exists and none is

asserted by the taxpayers. However, this action

is a test case, instituted with the consent of the

United States Commissioner of Indian Affairs, and

the proper rule to be followed is of importance to

those Indians having income from restricted

allotted lands, as well as to the Bureau of Indian

Affairs. Only in recent years has the Commis-

sioner of Internal Revenue been collecting an in-

come tax on the direct income of restricted Indians

from their allotted lands.

We are informed by the Department of the In-

terior that about three-quarters of all allotted

Indian lands were granted under the General Al-

lotment Act, here involved, and that about two-

thirds of the restricted Indians holding allotted

i

12

lands hold under that Act. These number between

225,000 and 240,000 persons, and the lands lie in

various states west of the Mississippi River, both

within and without the jurisdiction of the Court of

Appeals for the Tenth Circuit. The administra-

tive officials of the Bureau of Indian Affairs do

not feel justified, on the basis of the decision below

alone, in paying income taxes on behalf of any of

these Indians, except the 1800 members of the

Comanche, Kiowa, and Apache tribes, which are

the tribes covered by the Jerome Agreement. A

ruling by this Court will, of course, have more uni-

versal effect, and will preclude the necessity for

further litigation. Accordingly, the Department

of the Interior is anxious for a determination by

this Court.

In these circumstances, the Court may consider

that a sufficient basis exists for review at this time.

However, if the petition is granted, the Court may

also feel warranted in affirming the judgment

below without further brief or argument.

Respectfully submitted,

Pur B. PERLMAN,

Solicitor General.

THERON LAMAR CAUDLE,

Assistant Attorney General.

Ewuis N. SLAck,

HELEN GOoDNER,

J. W. Hussey,

Special Assistants to the

Attorney General.

Marcu, 1951.

13

APPENDIX

1. Internal Revenue Code:

Sec. 11 [as amended by Section 101(a), Reve-

nue Act of 1945, ¢. 453, 59 Stat. 556].

NorMAL Tax ON INDIVIDUALS.

There shall be levied, collected, and paid for

each taxable year upon the net income of every

individual a normal tax determined by com-

puting a tentative normal tax of 3 per centum

of the amount of the net income in excess of

the credits against net income provided in sec-

tion 25, and by reducing such tentative normal

tax by 5 per centum thereof. For alternative

tax which may be.elected if adjusted gross in-

come is less than $5,000, see Supplement T.

(26 U.S.C. 1946 ed., See. 11.)

Sec. 21. Net INComME.

(a) Definition —‘Net income’? means the

gross income computed under section 22, less

the deductions allowed by section 23.

* * * *

(26 U.S.C. 1946 ed., See. 21.)

Sec, 22 [as amended by Section 1 of the Public

Salary Tax Act of 1939, ¢. 59, 53 Stat. 574].

Gross INCOME.

(a) General Definition—‘Gross income’’

includes gains, profits, and income derived

from salaries, wages, or compensation for per-

sonal service (including personal service as

an .officer or employee of a State, or any

political subdivision thereof, or any agency or

14

instrumentality of any one or more of the fore-

going), of whatever kind and in whatever

form paid, or from professions, vocations,

trades, businesses, commerce, or sales, or deal-

ings in property, whether real or personal,

growing out of the ownership or use of or in-

terest in such property; also from interest,

rent, dividends, securities, or the transaction

of any business carried on for gain or profit,

or gains or profits and income derived from

any source whatever.

* * * * *

(26 U.S.C. 1946 ed., See. 22.)

Sec. 23. DEpucTIONS FROM Gross INCOME.

In computing net income there shall be al-

lowed as deductions:

* * * * *

(26 U.S.C. 1946 ed., See. 23.)

2. General Allotment Act of February 8, 1887,

¢. 119, 24 Stat. 388:

That in all cases where any tribe or band of

Indians has been, or shall hereafter be, located

upon any reservation created for their use,

either by treaty stipulation or by virtue of an

act of Congress or executive order setting

apart the same for their use, the President of

the United States be, and he hereby is, author-

ized, whenever in his opinion any reservation

or any part thereof of such Indians is advan-

tageous for agricultural and grazing purposes,

to cause said reservation, or any part thereof,

15

to be surveyed, or resurveyed if necessary, and

to allot the lands in said reservation in sever-

alty to any Indian located thereon in quanti-

ties as follows: * * *

(25 U.S.C. 1946 ed., See. 331.)

Sec. 5. That upon the approval of the allot-

ments provided for in this act by the Secretary

of the Interior, he shall cause patents to issue

therefor in the name of the allottees, which

patents shall be of the legal 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, 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 period. And

if any conveyance shall be made of the lands

set apart and allotted as herein provided, or

any contract made touching the same, before

the expiration of the time above mentioned,

such conveyance or contract shall be absolutely

null and void: * * *

(25 U.S.C. 1946 ed., See. 348.)

Sec. 6. That upon the completion of said

allotments and the patenting of the lands to

said allottees, each and every member of the

16

respective bands or tribes of Indians to whom

allotments have been made shall have the

benefit of and be subject to the laws, both civil

and criminal, of the State or Territory in

which they may reside; and no Territory shall

pass or enforce any law denying any such

Indian within its jurisdiction the equal pro-

tection of the law. And every Indian born

within the territorial limits of the United

States to whom allotments shall have been

made 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, and

immunities of such citizens, whether said In-

dian has been or not, by birth or otherwise, a

member of any tribe of Indians within the ter-

ritorial limits of the United States without in

any manner impairing or otherwise affecting

the right of any such Indian to tribal or other

property.

(25 U.S.C. 1946 ed., See. 349.)

3. Jerome Agreement, ratified by the Act of June

6, 1900, c. 813, 31 Stat. 672:

Sec. 6. Whereas David H. Jerome, Alfred

M. Wilson, and Warren G. Sayre, duly ap-

pointed Commissioners on the part of the

United States, did, on the sixth day of October,

eighteen hundred and ninety-two, conclude

17

an agreement with the Comanche, Kiowa, and

Apache tribes of Indians in Oklahoma, for-

merly a part of the Indian Territory, which

said agreement is in the words and figures as

follows:

‘‘Articles of agreement made and entered

into at Fort Sill, in the Indian Territory, on

the twenty-first day of October, eighteen hun-

dred and ninety-two, by and between David H.

Jerome, Alfred M. Wilson, and Warren G.

Sayre, Commissioners on the part of the

United States, and the Comanche, Kiowa, and

Apache tribes of Indians in the Indian Terri-

tory.

** ARTICLE I

‘Subject to the allotment of land, in sever-

alty to the individual members of the Co-

manche, Kiowa, and Apache tribes of Indians

in the Indian Territory, as hereinafter pro-

vided for, and subject to the setting apart as

grazing lands for said Indians, four hundred

and eighty thousand acres of land as herein-

after provided for, and subject to the condi-

tions hereinafter imposed, and for the con-

siderations hereinafter mentioned, the said

Comanche, Kiowa, and Apache Indians hereby

cede, convey, transfer, relinquish, and sur-

render, forever and absolutely, without any

reservation whatever, express or implied, all

their claim, title, and interest, of every kind

and character, in and to the lands embraced in

the following-described tract of country in the

Indian Territory to wit: * * *

18

** ARTICLE II

‘‘Out of the lands ceded, conveyed, trans-

ferred, relinquished, and surrendered by Ar-

ticle I hereof, and in part consideration for

the cession thereof, it is agreed by the United

States that each member of said Comanche,

Kiowa, and Apache tribes of Indians over the

age of eighteen (18) years shall have the right

to select for himself or herself one hundred

and sixty (160) acres of land to be held and

owned in severalty, to conform to the legal

surveys in boundary; and that the father, or,

if he be dead, the mother, if members of either

of said tribe of Indians, shall have the right

to select a like amount of land for each of his

or her children under the age of eighteen (18)

years; and that the Commissioner of Indian

Affairs, or some one by him appointed for the

purpose, shall select a like amount of land for

each orphan child belonging to either of said

tribes under the age of eighteen (18) years.

** ARTICLE V

‘*When said allotments of land shall have

been selected and taken as aforesaid, and

approved by the Secretary of the Interior, the

titles thereto shall be held in trust for the

allottees, respectively, for the period of

twenty-five (25) years, in the time and manner

and to the extent provided for in the act of

Congress entitled ‘An act to provide for the

allotment of land in severalty to Indians on

the various reservations, and to extend the

protection of the laws of the Unitec States and

Territories over the Indians, and for other

19

purposes,’ approved February 8, 1887, and an

act amendatory thereof, approved February

28, 1891.

‘‘And at the expiration of the said period

of twenty-five (25) years the titles thereto

shall be conveyed in fee simple to the allottees

or their heirs, free from all incumbrances.

‘* ARTICLE XI

“This agreement shall be effective only

when ratified by the Congress of the United

States.”’

Said agreement be, and the same hereby is,

accepted, ratified, and confirmed as herein

amended.

That the Secretary of the Interior is hereby

authorized and directed to cause the allot-

ments of said lands, provided for in said treaty

among said Indians, to be made by any Indian

inspector or special agent. * * *,

4, Act of May 8, 1906, c. 2348, 34 Stat. 182:

Be it enacted by the Senate and House of

Representatives of the United States of

America in Congress assembled, That section

six of an Act approved February eighth, eight-

een hundred and eighty-seven, entitled ‘‘An

Act to provide for the allotment of lands in

severalty to Indians on the various reserva-

tions, 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:

“See.6. * * * That the Secretary of the

Interior may, in his discretion, and he is

20

hereby authorized, whenever he shall be satis-

fied that any Indian allottee is competent and

capable of managing his or her affairs at any

time to cause to be issued to such allottee a

patent in fee simple, and thereafter all re-

strictions as to sale, encumbrance, or taxation

of said land shall be removed and said land

shall not be liable to the satisfaction of any

debt contracted prior to the issuing of such

wee: * *:*."

* * * * 7

(25 U.S.C. 1946 ed., Sec. 349.)

5. Executive Order 7464, September 30, 1936, 1

Fed. Register, Part II, p. 1507:

By virtue of and pursuant to the authority

vested in me by section 5 of the Act of Febru-

ary 8, 1887, * * * it is ordered that the

periods of trust applying to any Indian lands,

whether of a tribal or individual status, which,

unless extended, will expire December 31,

1936, or during the calendar year 1937, be, and

they are hereby, extended in each case for a

further period of twenty-five years * * *.

TY U. S. GOVERNMENT PRINTING OFFICE: 1951 93661 eet