Keokuk v. Ulam

Keokuk v. Ulam
1894 OK 55
38 P. 1080
4 Okla. 5
Case Number: ___
Decided: 09/07/1894
Supreme Court of Oklahoma

KEOKUK
v.
ULAM, Treasurer, et al.

SYLLABUS

Error to Lincoln county court.

Action by Moses Keokuk against D. S. Ulam, treasurer, and other county officers of Lincoln county, to restrain a levy on his personal property for taxes. From a judgment for defendants, plaintiff brings error. Affirmed.

L. E. Payne and J. F. Stone, for plaintiff in error.

Fraser & Newby, for defendants in error.

McATEE, J.

¶1 Plaintiff in error (plaintiff below) is an Indian of the Sac & Fox Tribe, and the reservation provided for that tribe by the United States by treaty proclaimed October 14, 1868, was included within the boundaries of Oklahoma. Territory by the organic act passed by congress. May 2, 1890, and is within the county of A, now Lincoln county, from the district court of which the case comes here. The tribe took their land by allotment under the act of congress passed in pursuance of an agreement made by it with the United States, June 10, 1890. Personal property of plaintiff in error,-consisting of two horses, valued at $50; one pleasure carriage, valued at $35; household goods, valued at $30; money, $2,000: total, $2,115,-located upon the agency quarter section of the reservation, was listed for taxation in 1892, by the assessor of Kickapoo township, within which that quarter section lies. The amount of taxes found to be due thereon for that year was $94.85, and, this sum remaining unpaid, the treasurer of the county issued his delinquent tax warrant to the sheriff of Lincoln county, commanding him to levy the said sum, with costs, out of the personal property of plaintiff in error. The levy of said sum was thereupon made by the sheriff upon the personal property of plaintiff in error, which had been listed for taxation. The complaint of plaintiff in error was thereupon filed in the district court of Lincoln county, asking for a restraining order, and that, upon a final hearing, an injunction should be granted perpetually restraining the defendants in error from the collection of said taxes. The defendants filed their demurrer to the said complaint, as not stating facts sufficient to constitute a cause of action. A hearing was had by the district court, and the demurrer was sustained. Plaintiff in error brings the case here for review, assigning error (1) that the court erred in holding that the quarter section of land known as the "Sac & Fox Agency" is not ceded Indian land, but that it is a part of Lincolu county; and (2) in holding that personal property on unceded Indian land can be assessed and taxed by the authorities of Lincoln county.

¶2 The United States acquired title to the lands of the Indian Territory by the Louisiana purchase. The interest of the Sac & Fox Indians in the lands in question was acquired by treaty between the United States and that tribe, proclaimed October 14, 1868, to be found in Revision of Indian Treaties, pp. 767-775. By this treaty the tribe ceded to the government of the United States a quantity of land, with improvements thereon, located in the state of Mississippi. By the third article thereof, "the United States agree to pay to the Sac & Fox Indians at the rate of one dollar an acre for the whole of the land ceded in the two preceding sections, being about 157,000 acres, less the amount of land set apart for individuals; and further agree to pay the outstanding indebtedness of the said tribe, amounting to $26,574.00, and interest thereon, out of the proceeds of the sale of the lands ceded in this treaty, and after deducting such sums as, under the provisions of the treaty, are to be expended for their removal, and expenses of establishing them in their new country, to add the remainder to their vested funds, and to pay them five per cent. interest thereon." By the sixth article of said treaty, the United States agreed, "In consideration of the improvements upon said reservation, to give to the Sacs & Foxes, for their future home, a tract of land in the Indian country south of Kansas, and south of the Cherokee lands, not exceeding 750 square miles in extent." The tract of land therein provided for was selected in the manner provided for by the treaty, and included the section and quarter section of land herein mentioned. By article 9 of said treaty, it was provided that, "in order to promote the civilization of the tribe, one section of land, convenient to the residence of the agent, shall be selected by said agent, with the approval of the commissioner of Indian affairs, and set apart for a manual labor school; and there shall also be set apart, from the money to be paid the tribe under this treaty, the sum of ten thousand dollars for the erection of the necessary school buildings and dwellings for the teachers, and the annual amount of five thousand dollars shall be set apart from the income of their funds after the erection of the school building, for the support of the school," etc. The agreement here made on behalf of the United States was that, "in consideration of the improvements upon said reservation, to give to the Sacs & Foxes, for their future home, a tract of land in the Indian country," etc. Was it meant by this agreement to grant the land, and thus convey and pass the title from the United States to the Sac & Fox Tribe of Indians? Was it intended and here provided that the United States should patent the land in fee simple to this tribe? The provision in the treaty is that the tribe shall have the tract of land "for a future home." We understand the words "for a future home" to be words of limitation. The United States did not agree in the treaty to grant the absolute ownership of the land, or to execute a patent for it by which the conveyance should be made. The contract was for the use of the reservation for a specific purpose. In treating with Indian tribes, the government of the United States has well known how to provide for their benefit,-the making of a grant in fee simple, on the one hand; or, on the other hand, for a provision which should entitle them to the use and occupation of their reservations for the purpose of, and while they were needed for, homes only. When it was the purpose of the government to stipulate for the conveyance of a fee simple title, and for the execution of a patent therefor, that purpose was manifested in other, appropriate, and unmistakable terms. The United States made the latter provision, in the eleventh article of the same treaty. Several individual members of the Sac & Fox Tribe had owned lands in fee simple, and had made improvements upon them in the reservation in Mississippi, ceded to the United States by that treaty. In order to compensate these individuals for their improvements and interests theretofore held in private ownership, it was provided, in article 11, that "George Powers, the present government interpreter, for valuable services rendered and uniform kindness towards the nation, shall have patented to him, in fee simple, 320 acres of land, to be selected by the agent"; and, similar provisions being made for the benefit of other individual members of the tribe, it further "provided *** that upon the approval of the secretary of the interior, after such selections, and on payment therefor, as hereinbefore provided, patents in fee simple shall be issued to the respective parties, their heirs and assigns." And it is also provided by article 12 that, "in consideration of the faithful services of Samuel Black in protecting their houses and timber from trespass and depredation, there shall be patented to him, in fee simple, a tract of land upon which he lives"; and it was by article 17 "provided that half breeds and full bloods of the tribe who were entitled to selections of land under the Sac & Fox treaty ratified July 9, 1860, and which selections have been approved by the secretary of the interior, shall be entitled to patents in fee simple for the land heretofore selected, according to the schedule annexed to this treaty."

¶3 It will therefore be seen that while the United States government, in the exercise of its treaty-making power, held in its hand, and in full view, and gave to particular individuals, grants of portions of the reservation in fee simple, it carefully provided for the whole tribe that the tract of land then provided for was "given for their future home" only; and if it had been intended by the terms of article 3 of the treaty of 1868 to stipulate for the conveyance of any interest in the land itself, other than the use of it for a future home, such a purpose and such a conveyance would have been inconsistent with the subsequent stipulations that certain private individuals of the tribe should have grants to themselves individually of portions of the same land. And it was not the policy nor was it the practice of the United States to convey the title and absolute estate and ownership of any land upon which it located tribes of Indians, while those tribes sustained the tribal relation. Good reasons existed therefor. While the tribes remained under the elementary and rude organizations of the savage state, they were not considered competent either to receive or to execute grants of land; and neither stipulations for such conveyances by the United States of the fee-simple title nor conveyances themselves to lands can be found among the treaties executed by the United States government to such Indian tribes. A contrary policy was adopted with the five civilized tribes. These tribes have each long ago adopted forms of constitutional government, having each an elective executive head, a dual legislature, and a judiciary system, with superior and inferior courts; and with each of them the United States has treated in a different manner with reference to the title to lands negotiated for by them. The Creeks, Cherokees, Chickasaws, Choctaws, and Seminoles each hold their lands by "grants," by solemn "guaranties of patents," by "grants in fee simple," and by "patents," solemnly executed, conveying to them their lands "in fee simple."

¶4 When the Sac & Fox Tribe sold its land in Mississippi, and agreed that the United States should keep the proceeds of such sales in trust for them, and pay to it a certain sum as interest upon those proceeds, and it was allotted a location "for a home" in the Indian Territory, the tribe did not buy the new reservation. The proceeds of their former reservation are still held for them in trust by the United States. Their location upon this land was conceded to them for a future home, the only consideration therefor being the loss of such improvements as they had made upon their reservation in Mississippi. This particular tract of land, then given to them for a home, could not be taken away from them without their consent so long as they used it for the specified purpose, but the title remained in the United States. When, therefore, articles of agreement were made and entered into at the seat of government of the Sac & Fox Nation in the Indian Territory, on the 10th day of June, 1890, by the United States Commissioners and the Sac & Fox Tribe, it was provided, by article 1 of that treaty, "that the said Sac & Fox Nation here by cedes, conveys, transfers, surrenders, and forever relinquishes to the United States of America all their title, claim, or interest, of every kind of character, in and to the therein described tract of land in the Indian Territory." And when it was "further provided, however, that the quarter section of land on which is now located the Sac & Fox Agency shall not pass to the United States by this cession, conveyance, transfer, surrender, and relinquishment, but shall remain the property of said Sac & Fox Nation to the full extent that it is now the property of said nation, subject only to the rights of the United States therein by reason of said agency being located thereon, and subject to the rights, legal and equitable, of those persons that are now legally located thereon"; and when it was agreed "that the national council of the said Sac & Fox Nation should have the right at any time *** to sell and convey said quarter section of land, or any part thereof, saving in such conveyance the rights of the United States and of persons legally located thereon, for the benefit of said Sac & Fox Nation, but not subject to be taken by any citizen of the Sac & Fox Nation in allotment, not subject to homestead entry under any law of the United States"; and when it was provided, further, that the "said Sac & Fox Nation might be released from the operation of that part of the agreement as to one or more quarters of the said school section of land,"-the commissioners of the United States did not and could not thereby enlarge the estate of the Sac & Fox Tribe to the said quarter section of land. And notwithstanding either provision "that the Sac & Fox Nation hereby cedes," and "that the quarter section of land upon which the Sac & Fox Agency is located shall not pass to the United States by this cession," etc., and notwithstanding their agreement with the Sac & Fox Nation that it should have the right to "sell and convey" said quarter section of land, such stipulations had no further or other effect upon the estate in the land as it then existed than to concede to the Sac & Fox Nation the privilege and right to retain or to sell such interests as it had by the treaty of 1868 in the said quarter section, "to the full extent that it is now the property of said nation"; so that if the Sac & Fox Tribe did not own the absolute estate in, and have the title to, the said quarter section of land before this treaty, neither did the tribe have it afterwards. And if the tribe's interest in the land was merely for the purpose of a future home prior to the making of the treaty of June 10, 1890, that, and no greater, was its interest after the making of the treaty; and accordingly, when congress ratified the treaty, it did not acknowledge the sole title and ownership of this Sac & Fox quarter section of land to be in the Sac & Fox Nation of Indians, as is contended by plaintiff in error.

¶5 The United States conveys title to its lands in a different manner; never by inference or implication. No instance can be found in which lands of the United States have been conveyed to any Indian tribe, except under and in pursuance of a treaty, by which the United States has agreed to grant the land and execute a patent for it, and in pursuance of which treaty a grant of the land by patent has been executed by the president of the United States, after having been fully authorized to do so by act of congress, and in which, by the terms of the patent, the lands have been actually granted by metes and bounds. This, as has been seen, is not such a case. The land is therefore land belonging to the United States. Even if the land was the land of the Sac & Fox Tribe, there is no clause in the treaty of October 14, 1868, setting it apart for and giving it to the tribe for a future home, by which it was provided that this land shall not be included within the limits of any territorial or state jurisdiction; and it is expressly held in Langford v. Monteith, 102 U.S. 146 to 147, affirming Harkness v. Hyde, 98 U.S. 476, that, "where no such clause or language equivalent to it is found in a treaty with any Indian tribe within the exterior limits of Idaho, the land held by them is a part of the territory, and subject to its jurisdiction, so that process may run there, however the Indians themselves may be exempt from that jurisdiction." Congress had therefore full and complete authority to provide, as it did in section 1 of the organic act of this territory, that "all that portion of the United States now known as the Indian Territory [within which the land in question was included] is hereby erected into a temporary government, by the name of the ‘Territory of Oklahoma"'; and to extend the jurisdiction of its courts, and the powers of legislation and of the execution of the laws, over the lands of this territory; and to concede any portion of those powers and of that jurisdiction to the territorial government; and to provide, as it did in the organic act (section 6), that "all property subject to taxation shall be taxed in proportion to its value." And the territorial legislature was authorized to provide, as it afterwards did provide, upon the subject of revenue, as follows (chapter 70, § 1): "All property, whether real or personal, all moneys, notes, credits, or investments in bonds or stocks, owned by joint stock companies or otherwise, of persons residing in this territory, *** shall be entered on the list of taxable property for that purpose in the manner prescribed by this act."

¶6 In the absence of treaty or other express exclusion, the different Indian reservations become a part of the territory, and are subject to territorial legislative jurisdiction, subject, however, to the power of the general government to make regulations respecting the Indians. A necessary part of the power and jurisdiction of the territorial government, and of the counties into which it has been divided, is the power to levy taxes for the payment of the expenses, and for the support of such part of the territorial and county government as is not provided for by the general government. The power is essential to the existence of the government, and to the protection of persons and property within its limits. The plaintiff in errors enjoys that protection. He no longer holds in common with his tribe a temporary location upon a tract of land the title to which is in the general government. He has been provided with the right to take a portion of that reservation in severalty, and to become the owner of it in fee simple. The tribe in which he was included has surrendered its tribal relation. He has become a resident of the United States and of the territory of Oklahoma. He no longer depends upon the feeble support of his tribe for the preservation of his rights of person and property. He is no longer subject to its regulations. He is now surrounded with the protections of the law, and entitled to the benefit of the new order of things. He has the right, in common with other citizens, to use the public schools for his children, if he has any; and, if his family becomes indigent, they are entitled to the aid of the territory and county, in such almshouses as may be established for the unfortunate poor of the county. If insanity should afflict him, he will be provided, under the law, with the provisions made for the insane. When roads and bridges are built, they will be for his use. Courts are held into which he may come for the redress of any wrongs which may be inflicted upon him. He is a "person," in the contemplation of law. He may sue and be sued. Code Civ. Proc. c. 66, §§ 3907, 3908; Fellows v. Blacksmith, 19 How. 366; Pka-o-wah-ash-kum v. Sims, 8 Fed. 740; Wau-pe-mau-qua v. Aldrick, 28 Fed. 489; Swartzel v. Rogers, 3 Kan. 372; Wiley v. Keokuk, 6 Kan. 94; Wiley v. Manatowah, 6 Kan. 111; Lowry v. Weaver, 4 McLean, 82, Fed. Cas. No. 8,584; Const. U. S. art. 1, § 2; Elk v. Wilkins, 112 U.S. 112, 5 Sup. Ct. 41. If the property sought to be taxed in this action is stolen, he may apply to the legally constituted authorities for its recovery, and again for the punishment of the offender. He would doubtless do so. But he has corresponding duties. He must not throw all of the burden of these new benefits upon his other fellow citizens. They are provided for by contributions made by the representatives of the public interests for the public good. These contributions are taxes, and the method which has been found most appropriate to insure that the burdens of their payment shall be equally borne is called "taxation," and the plaintiff in error is subject to the obligations imposed by this system. Our attention has been called to no exemption to which he is now entitled, and we are not acquainted with any provision of the law by which he is exempt from these obligations. The title to the land upon which his property is located is in the United States. Even if it were in the Sac & Fox Tribe of Indians, there is no provision in the treaty by which it is claimed he is exempt from that jurisdiction of the territory of Oklahoma and the county of Lincoln under which process runs from the courts, and under which taxes are levied and their collection enforced. The quarter section of land known as the "Sac & Fox Agency" is a part of Lincoln county, and is subject to the jurisdiction of the United States and of the territory of Oklahoma and of that county as to the power to assess and collect taxes upon personal property which is situated thereon, and belonging to a person who is a resident in the said county. The judgment of the lower court is affirmed.