holding that a county's assessment of ad valorem tax on land owned by an Indian was permissible because the land was freely alienable under a federal treaty and subsequently, the General Allotment Act and a state ActSummary of this case from McGuire v. Aberle
Submitted October 23, 1906. Decided November 19, 1906.
Where a State by statute makes the allotted lands of Indians alienable the same as lands of citizens, and Congress by statute postpones the operation of the state statute for a definite period, when that period has expired all restriction upon alienation both voluntary and involuntary by operation of law, such as taxation and levy and sale thereunder, ceases. Although Congress may by statute give Indians a right of voluntary alienation of allotted lands but exempt such lands from levy, sale and forfeiture, such an exemption cannot exist by implication but must be clearly manifested. By the act of February 8, 1887, allottee Indians became citizens and their property, unless clearly exempted by statute, is subject to taxation in the same manner as that of other citizens. 38 Wn. 126, affirmed.
Mr. Walter Christian for plaintiff in error.
Mr. Charles O. Bates and Mr. Walter M. Harvey for defendant in error.
In the brief filed by the plaintiff in error no question is made of his right to sell and convey the land. The Supreme Court of the State, in its opinion, says: "It is conceded that the Indians may now sell their lands voluntarily and convey a title in fee, and that thereupon the lands so sold are subject to taxation in the hands of parties not Indians." But the contention is that although he has the power of voluntary sale and conveyance, yet until he has exercised that power the land is not subject to taxation or forced sale. His argument rests mainly upon the contention that there is no express repeal of the exemption, provided in the original treaty, "from levy, sale or forfeiture." That Congress may grant the power of voluntary sale, while withholding the land from taxation or forced alienation, may be conceded. For illustration, see treaty of January 31, 1855, with the Wyandotts, 10 Stat. 1159, 1161. But while Congress may make such provision, its intent to do so should be clearly manifested, for the purpose of the restriction upon voluntary alienation is protection of the Indian from the cunning and rapacity of his white neighbors, and it would seem strange to withdraw this protection and permit the Indian to dispose of his lands as he pleases, while at the same time releasing it from taxation. In other words, that the officers of a State enforcing its laws cannot be trusted to do justice, although each and every individual acting for himself may be so trusted.
But further, by the act of February 8, 1887, plaintiff became and is a citizen of the United States. That act, in addition to the grant of citizenship, provided that "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." Matter of Heff, 197 U.S. 488.
Among the laws to which the plaintiff as a citizen became subject were those in respect to taxation. His property, unless exempt, became subject to taxation in the same manner as property belonging to other citizens, and the rule of exemption for him must be the same as for other citizens — that is, that no exemption exists by implication but must be clearly manifested. No exemption is clearly shown by the legislation in respect to these Indian lands. The original treaty provided that they should be exempt from levy, sale or forfeiture until the legislature of the State should, with the consent of Congress, remove the restriction. This, of course, meant involuntary as well as voluntary alienation. When the State was admitted and its constitution formed, its legislature granted the power of alienation "in like manner and with like effect as any other person may do under the laws of the United States and of this State, and all restrictions in reference thereto are hereby removed." What restrictions? Evidently those upon alienation. The Indian may not only voluntarily convey his land (authority to do that is provided by the use of the word "grant"), but he may also permit its alienation by any action or omission which in due course of law results in forced sale. Congress postponed the operation of this statute for ten years. When the ten years expired (and they had expired before this tax was attempted to be levied) all restriction upon alienation ceased. It requires a technical and narrow construction to hold that involuntary alienation continues to be forbidden while the power of voluntary alienation is granted; and it is disregarding the act of Congress to hold that the Indian, having property, is not subject to taxation when he is subject to all the laws, civil and criminal, of the State.
We see no error in the ruling of the Supreme Court of the State of Washington, and its judgment is