GLACIER COUNTY, MONT. v. UNITED STATES
99 F.2d 733 (1938)
GLACIER COUNTY, MONT., et al.
Circuit Court of Appeals, Ninth Circuit.
October 15, 1938.
Horace W. Judson, of Cut Bank, Mont., and H. C. Hall and Edw. C. Alexander, both of Great Falls, Mont., for appellants.
Carl McFarland, Asst. Atty. Gen., C. W. Leaphart, of Missoula, Mont., and Oscar A. Provost, Robert M. Vaughan, and Thomas E. Harris, Attys., Dept of Justice, all of Washington, D. C., and John B. Tansil, U. S. Atty., and Donald J. Stocking, Asst. U. S. Atty., both of Butte, Mont., for the United States.
Before WILBUR, HANEY, and HEALY, Circuit Judges.
HEALY, Circuit Judge.
The appeal is from a decree quieting title of the United States to lands in the Blackfeet Indian Reservation, in Glacier County, Montana, and giving judgment for the recovery with interest of taxes collected by the county from Indian allottees.
The cause was tried without a jury upon documentary evidence and an agreed statement of facts. Briefly, the record discloses that in the year 1918 patents covering the lands involved were issued to the United States in trust for twenty-seven Indians to whom the lands had been allotted in severalty. Within two years thereafter, fee patents were issued to these Indians. It is stipulated that the fee title was granted to the Indians without any application on their part and without their consent. Apparently there was some opposition among the Indians to the policy of the Department and some had said that they would not receipt for the fee patents. There is a letter in the record written under date of April 24, 1918 from the office of the Commissioner of Indian Affairs to the special superintendent in charge at the reservation, instructing the latter to inform the Indians that the Secretary of the Interior "has the right to issue these patents, and if they refuse to accept them, you are directed to have the patents recorded and after recording same, to send them to the patentees by registered mail and retain the receipt cards for the files in your office."
In 1919 and 1920 the lands were placed on the tax rolls of Glacier County and taxes levied pursuant to the state laws. Fourteen of the Indians paid taxes, some of these for the first few years only, although the majority of the fourteen paid down to the years 1927 or 1928. Between 1927 and 1932, the Department, under authority of the act of February 26, 1927, 44 Stat. 1247, 25 U.S.C.A. § 352a, canceled the fee patents of all save one of the Indians, on the ground that they had been issued without application or consent. The present suit was brought in September, 1933.
A special act of Congress, approved March 1, 1907, 34 Stat. 1035, had directed that, so soon as all the lands in the Blackfeet Reservation had been surveyed, the Commissioner of Indian Affairs "shall cause allotments of the same to be made under the provisions of the allotment laws of the United States." The trust patents for the allotted lands were in the form required by the General Allotment Act of February 8, 1887, 24 Stat. 388, 25 U.S.C.A. §§ 331 et seq., 339 et seq., 381, declaring that the United States "does and will hold the land thus allotted [subject to all statutory provisions and restrictions], for the period of twenty-five years, in trust for the sole use and benefit of the Indian * * * and that at the expiration of said period the United States will convey the same by patent to said Indian * * * in fee, discharged of said trust, and free from all charge or incumbrance whatsoever." Section 5, 25 U.S.C.A. § 348.
The case is controlled by the decisions of this court in United States v. Benewah County, 9 Cir., 290 F. 628; United States v. Nez Perce County, 9 Cir., 95 F.2d 232; United States v. Lewis County, 9 Cir., 95 F.2d 236, and the opinion on petition for rehearing in the two latter cases, 9 Cir., 95 F.2d 238. These cases, in line with the general authority on the subject, hold that a grant of immunity from taxation during the trust period is implied from the allotment act and the terms of the trust patents; and that this immunity is a vested right of which the Indian may not be deprived without his consent. Appellants contend that the two later decisions, at least, are distinguishable, the distinction being that the Congressional act authorizing the allotments in the present instance was passed, and the trust patents issued, subsequent to the passage of the so-called Burke Act of May 8, 1906, 34 Stat. 182, 25 U.S.C.A. § 349. By this act — which was an amendment to the General Allotment Act of February 8, 1887 — the Secretary of the Interior was authorized, if satisfied of the competency of any Indian allottee, to cause the issuance to such allottee of a patent in fee simple, "and thereafter all restrictions as to sale, incumbrance, or taxation of said land shall be removed." While conceding that trust patents issued prior to the 1906 act vest in the Indians the right to immunity from tax during the specified trust period, appellants claim that no such right vests in the case of trust patents issued thereafter. This contention was disposed of in United States v. Benewah County, supra, where the trust patents involved had been issued in 1909. It was there said that the act of May 8, 1906 should "be held to mean that such
action by the Secretary [the issuance of a patent in fee simple] can be had only upon the application of the allottee or with his consent." [Page 631.] That construction of the 1906 amendment was again declared in United States v. Nez Perce County, supra.