City of Philadelphia v. Collector, 72 U.S. (5 Wall.) 720
Case details
Bluebook Citation
City of Philadelphia v. Collector, 72 U.S. (5 Wall.) 720
Full caption
City of Philadelphia v. The Collector.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
City of Philadelphia v. The Collector.
1. The jurisdiction of the Circuit Court in a case between citizens of the same State, under the internal revenue laws of July 1, 1862, and March 3, 1863, removed thereto from a State court under the act of March 2, 1833 (the Force Bill), and before the passage of the internal revenue act of June 30, 1864, is saved by the sixty-eighth section of the internal revenue act of July 13, 1866, if the justice of said Circuit Court is of opinion that the case would be removable from the State court to the Circuit Court under the sixty-seventh section of the said act of July 13, 1866.
2. Where a case, removed from a State court to a Circuit Court under the act of 1833, above mentioned, would be clearly removable under the provisions of the act of 1866, directing such Circuit Court to remand removed cases, unless the circuit judge should be of opinion that the same, if pending in the State court, would be removable under a provision which the last-named act made, the fact that the case was in the Circuit Court when the new act passed, and that it never was remanded, is a fact from which it may be inferred, as a conclusion of law, that it was the opinion of the circuit judge that the case was one that ought to be retained.
8. Where an article (as illuminating gas) which, under the internal revenue acts, is taxable when made and “ sold,” but is not taxable when made by the party “ for his own use,” is made by trustees appointed by the party using it, under obligatory and fixed arrangements with such party s ere itors, at an establishment of which the party using the article has appa ently the ultimate ownership, but which, till certain debts due by 1 » and contracted in order to build and enlarge the establishment, are p > is held and managed exclusively by the trustees, under an anan&em that the party using may have the article at a certain price, an a clear profits shall be set aside as a sinking fund for the paymen o principal due the creditors,—such article, when furnished to e at a price fixed, is “sold,” and taxable; though apparent y chiefly for the purpose of providing, in the manner agree on, a ing fund to pay the debts of the party using it.
.. The trustees of the Philadelphia Gas Works, by the law and ord-nan« creating and constituting them, and by reason of the severe ated for the support and management of the said gas wor s, a relation to the private consumer, the loanholder, an t eci Y . delphia, that all illuminating gas manufactured by the sai ru >
furnished by them to the city, to be used in her public lamps,—is liable to, and chargeable with, the internal revenue duty imposed by the act of July 1, 1862, and the supplement thereto of March 3, 1863.
Error to the Circuit Court for Eastern Pennsylvania; the case being thus:
The Judiciary Act of 1789 limits the jurisdiction of the Federal courts, so far as determined by citizenship, to “ suits between a citizen of the State in which the suit is brought and a citizen of another State.”
An act of 1833,* “ to provide further for the collection of duties on imports,” extended the jurisdiction to cases arising under “ the revenue laws of the United States,” where other provision had not been made. And it authorized any person injured, in person or property, on account of any act done “under any law of the United States for the protection of the revenue or the collection of duties on imports,” to maintain suit in the Circuit Court. It also allowed any person sued in a State court, on account of any act done “ under the revenue laws of the United States,” to remove the cause by a mode which the’ act itself set forth, into the Circuit Court of the United States.
With the passage of the internal revenue laws, made necessary by the late rebellion, it was doubted by some persons whether this act of 1833 extended to cases under the new enactments. And the internal revenue act of 1864,f y its fiftieth section extended in general words “ the pro-1810118 of the act of 1833 to cases arising under the internal revenue acts.
By an internal revenue act of 1866,J however (§ 67), ^ongress made provision for removing cases from State
Ur 8 the Circuit Court, authorizing such removal in a ay w ich it particularized, “ in any case, civil or criminal, of 616 °r Prosecution shall be commenced in any court aea^f a^aiD8^ officer of the United States, ... or ns any person acting under or by authority of any such
* 4 Stat, at Large, 632. f 18 id. 241. + 14 Id> 172.
vol. v p. 722722 City or Philadelphia v. The Collector. [Sup. Ct
officer, on account of any act done under color of his office,’’ &c.
And by the sixty-eighth section, immediately following, it “ repealed ” the fiftieth section of the act of 1864, with, however, this proviso:
“ Provided, That any case which may have been removed from the courts of any State under said fiftieth section to the courts of the United States, shall be remanded to the State court from which it was so removed, with all the records relating to such cases, unless the justice of the Circuit Court of the United States in which such suit or prosecution is pending shall be of opinion that said case would be removable from the court of the State to the Circuit Court under and by virtue of the provisions of this act.”
With the act of 1833 in force, but before the passage of any of the others, the city of Philadelphia, in October, 1863, sued in a State court the collector of internal revenue of the collection district to which the city belongs, for a return of oertain internal revenue taxes paid under protest; the city corporation (constructively) and the collector being citizens of the same State.
The collector assuming that the case was one arising “ under the revenue laws of the United States,” and that it was, therefore, within the act of 1833, removed it by t ie mode prescribed in that act of 1833 into the Circuit Court. This was in November, 1863. And the Circuit Couit av ing been, apparently, of the same opinion as to the ex^eu of operation of the act of 1833, tried the case twice, the r-trial beginning in December, 1863; therefore, befoie internal revenue act of 1864, having its fiftieth section, passed. A new trial was had in October, 1864, an judgment then given.
The suit thus brought in the State court and removed, to recover internal revenue taxes accrued under t e in reve lue acts of 1862 and 1863, demanded by the co ec paid under protest by the “ Trustees of the Phila e p p. 723Dec. 1866.] City of Philadelphia v. The Collector. 723
Works,” for gas used by the city for its public lamps. Supposing jurisdiction to have existed in the Circuit Court, the question was whether this gas had been “made and sold” by the trustees to the city, or whether it had been made by the city through its appointees, the trustees, for itself. If the former, it was taxable under the provisions of the revenue acts, which taxed all gas “ made and soldif the latter, it came within an exception which exempted articles made by any person “ not for sale, but for his or their own use,” and was not taxable.
The history of “ the Philadelphia Gas Works,” where the gas was made, and their relation to the city of Philadelphia, was this:
They originated in a city ordinance passed in 1835, and which seems to have contemplated the temporary establishment of a quasi corporation which might yet be, or be ultimately, a department of the city government. The works were to be and were constructed by means of money subscribed by private individuals, for which they received certificates of stock entitling them to the profits arising from the manufacture and sale of gas. The ordinance provided that the works should be under the exclusive management of trustees elected by the councils of the city; also that the public lamps should be supplied at half the price paid by private consumers. It provided, above all, that the city corporation should have a right to take possession on certain conditions. The original capital was limited to $100,000. The works, with the increase of the city, not being found large enough and needing to be extended, subsequent ordinances weie passed authorizing loans, and providing that the money should be borrowed by the city, on the requisition of the trustees, and that obligations of the city should be issued to t e loanholders. A sinking fund, as security for the loano ders, was created out of the proceeds of sale of gas be-ore any profits were distributable to the stockholders. The interest on the certificates of loan was declared payable at e office of the gas works. In 1841, under the original inance of 1835, reserving to the city the right to take p. 724possession, the city did take possession in their own right, and the stock was converted into a “ gas loan,” in which the city was the debtor, and whose interest was, in fact, paid at the city treasury. But the works were continued under the superintendence of the existing trustees; the only change in the relation of the trustees being that they thenceforth were trustees for the city and loanholders, instead of for the stockholders. Several ordinances were subsequently passed, authorizing further loans. They stipulated that, for the further security of the loanholders, the works should be controlled and managed by a board of trustees, elected and constituted as theretofore, who should have the whole control of the works, and of all the funds belonging to them; and that the trustees should pay no part of the funds, nor any of the profits of the works, into the city treasury, but should apply the same in payment of the interest and principal of the loans; a stipulation whose primary design was declared by the Supreme Court of Pennsylvania—on a controversy between some of the holders of the gas loans and the city corporation, which last wished to take into its own control the property, held by the trustees under the various city ordinances, out of their hands, and to elect other trus tees, in addition to the number provided by the original ordinance of 1835* —to have been “ to keep the pledge entire y out of the hands of the borrowers (the city), and prevent t e funds from being intermingled with other property of t e city, and thus exposed to the hazards of expenditure or other objects than those to which it was exclusively desio nated.”
The gas used by the city for its public lamps was mana factured at these works; and under different ordinances, specifically providing for the price payable for gas supp 1 to the public lamps, a process of payment was regu ar gone through with at stated intervals, though practic the matter was, in a good degree, a provision by t e
—-
*
Western Saving Fund Society v. The City of Philadelphia, sylvania State, 178.
Argument for the collector.
for the support of works whose income paid the interest on, and provided a sinking fund for final redemption of its own “ gas loans,” held by various creditors.
The court below was of opinion that the gas was “ made and sold,” and that it was taxable.
Mr. Ashton, for the collector:
1. The case of Insurance Company v. Ritchie,* lately adjudged, decides that the jurisdiction of the Circuit Courts, in original suits between citizens of the same State, in internal revenue cases, conferred by the 50th section of the act of June 30th, 1864, was taken away by the 68th section of the act of July 13th, 1866, and that all original suits, pending at the passage of this last act, fell. This 68th section, however, saves (under certain conditions) “ any case which may have been removed from the courts of any State, under said 50th section.” It saves none, removed otherwise. But the present suit was not so removed. It was removed under the act of 1833, which was assumed by the collector to extend to such cases. In fact it was removed, and once tried, months before the act having that 50th section was passed. Unless, therefore, the act of 1833 extends to cases of internal revenue, must not this case fall ? The matter is suggested.
2. Js to the merits: If all the loans, for the payment of which the trustees appointed by the city, primarily hold and manage the gas works, were paid off, no new ones being contacted, the works, and all right over their products, won d become the city’s, and the tax might not be chargea e, but at present there is a clear trust for the holders of e gas loan; and the city has to elect trustees who will manage them in subordination to their obligations to those e itors. The gas is “sold” for their benefit, and by the so angemen^8 between the city and its creditors, it must be nia ° h ^ec^8^on Supreme Court of Pennsylva-
»w en the city wished to act as owners, concludes this
* Supra, p. ‘541.
Argument for the city.
Messrs. Lynd {City Solicitor). W. L. Hirst, and Richard Ludlow, contra:
1. The question of jurisdiction seems not to be much pressed. If the court below was right in taking jurisdiction under the act of 1833, as it did, the case is plain. Neither the act of 1864 nor that of 1866 has anything to do with the matter.
2. Jis respects the main question: Taxing statutes, confessedly, are to be strictly construed. Hence the manufacturers or producers of gas, subject to taxation, must be private individuals, or private corporations, who pursue the business of making gas as a source of profit.
Nowhere in the law is it provided that a city, or town, or state, engaged in the manufacture of taxable articles, shall pay a tax; for no city or state is known to be in the exercise of any but municipal functions—functions exercised for the public good and not for pecuniary aggrandizement. The gas used by the city of Philadelphia is made under the direction of and by an especial department of the municipal government. The trustees of her gas works are chosen at stated periods by the city councils, the legislative department o the city. The trustees are mere managers; elected by tie city; having no title whatever. Really and practically the gas works are a city affair. The city owes for them an owns them. There are no stockholders, and the “ payment relied on to make the case “ a sale” and to take it out ot that of a person manufacturing for himself is simply a pay ment by one hand into another and back. The city pay-the gas works and the gas works hand the payment back to the city to pay interest on its gas debt.
The internal revenue acts were made for the purpose o taxing the revenues and the incomes of the country, where does it appear that subsidies were to be levied upoi states, or towns, or that any business but that whic w clearing a profit should pay a tax. These facts are evi e from the whole language and import of the acts thenase v, sufficiently known to all. Land itself was not to be tax, but its products in kind and specie. The manufacturer w p. 727not to pay for the amount of his stock, nor for his accumulation of raw material, but for the results of his skill and labor from which he gets wealth.
Mr. Justice CLIFFORD delivered the opinion of the court.
Plaintiffs sued the defendant as the collector of internal revenue in the second collection district in the State of Pennsylvania, in an action of assumpsit for money had and received, to recover back the sum of twenty-six thousand eight hundred and seventy-five dollars and fifty-seven cents, which they had previously paid to him under protest, and which he, as such collector, had demanded of them as for internal revenue duties. Record shows that the duties were assessed for the last four months of the year 1862, and for the first six months of the succeeding year, upon illuminating gas, manufactured and furnished by the trustees of the Philadelphia Gas Works, and which was consumed under the direction of the proper authorities of the city in her public lamps during that period. Assessment of the duties in question was made under the seventy-fifth section of the act of the first of July, 1862, which provides in effect that upon illuminating gas, made wholly or in part of coal, or of any other material, and produced and sold, or manufactured, or made and sold or removed for consumption, or for delivery to others than agents of the manufacturers or producers, there shall be levied and collected a duty of five cents per one thousand cubic feet. Section thirty-three of the act of the third of March, 1863, enacts that those provisions shall also be applied to the producers of the several articles mentioned m that section as subject to duty as well as the manufacturers.*
Suit was commenced in this case in the State court, but on motion of the defendant, the same was removed, on the twenty-fifth day of November, 1863, into the Circuit Court o the United States for that district, where the verdict and
* 12 Stat, at Large, 462-729.
judgment were for the defendant. Exceptions were duly taken by the plaintiffs, and they sued out the present writ of error. Defendant objects to the jurisdiction of the court, and insists that the writ of error should be dismissed, and as that objection presents a preliminary question it will first be examined.
1. Jurisdiction of the Circuit Courts was extended by the second section of the act of the second of March, 1833, to all cases in law or equity arising under the revenue laws where other provisions had not been previously made by law. Section three of that act also provided that any officer of the United States, or other person who should be sued in any State court for or on account of any act done under the revenue laws, or under color thereof, or for or on account of any right, authority, or title, set up or claimed by such officer or other person under such law, might, in the manner therein prescribed, remove the cause into the Circuit Court, and that the cause so removed should be proceeded in as one originally commenced in that court.*
Those provisions were extended to cases arising under the laws for the collection of internal duties by the fifth section of the act of the thirtieth of June, 1864, and the same section enacted in effect that all persons duly authorized to assess, receive, or collect such duties or taxes under such laws, should be entitled to all the exemptions, immunities, benefits, rights, and privileges therein enumerated or conferred.!
Undoubtedly the original act was passed for the protection of officers of the revenue, and persons acting under them, charged by law with the collection of import duties, and t^e first proviso in the sixty-seventh section of the act of t e thirtieth of July, 1866, expressly enacts that the origina ac shall not be so construed as to apply to cases “ arising un er any of the internal revenue acts, nor to any case in w nc i the validity or interpretation of those acts shall be in issue. ।
Effect of that proviso is to limit the scope of the origin^ act, without repealing it, to cases arising under the acts o
J 14 Id. 172, § 67.
* 4 Stat, at Large, 132. f 13 Id. 241.
Dec. 1866.] City of Philadelphia v. The Collector. 729
Congress providing for the collection of import duties, and to confine its operation to the purposes for which it was originally passed, but the proviso does not touch the provision as re-enacted in the subsequent act, entitled An act to provide ways and means for the support of the government, and for other purposes. Had legislation stopped there the subsequent provision would have remained in full force, but the sixty-eighth section of the act which in its sixty-seventh section limits and restrains the original provision in the act of the second of March, 1833, repeals the fiftieth section of the act of the thirtieth of June, 1864, altogether, subject to the proviso contained in the same repealing section.* Substance of the last-named proviso is that any case removed from the court of a State into the Circuit Court under former regulations upon the subject, shall be remanded, unless the justice of the Circuit Court shall be of opinion that the same if pending in the State court would be removable under the new provision contained in the sixty-seventh section of the same act which in its sixty-eighth section repeals the fiftieth section of the prior law.f
2. Section sixty-seven, in the body of the section preceding the proviso limiting and restraining the operations of the original act to cases arising under the laws for the levy and collection of import duties, makes provision for the removal of any case, civil or criminal, commenced against any officer appointed or acting under the law to provide internal revenue, or against any person acting under such an officer, on account of any act done in virtue of his office, &c., and prescribes the mode of proceeding to effect such a removal of the case.J
Present case is one which was removed into the Circuit ourt under the original act, now limited and restrained in its operation to cases arising under the laws for the collection of import duties, but it is undeniably one which, if pending in the State court, would be removable under the new provision, and inasmuch as it was pending in the Cir-
* 14 Stat, at Large, 172, § 68. f lb. | Id. 171, g 67. p. 730cuit Court when the last-named proviso was passed, and had never been remanded by the justice of the Circuit Court, it must be understood as a conclusion of law that it was his opinion that it ought to be retained in the Circuit Court. Want of jurisdiction, therefore, is not shown, although the parties, plaintiffs and defendant, are citizens of the same State.
3. Cases arising under the internal revenue laws, as now modified, if commenced in a State court, against an officer appointed or acting under those laws, or against persons acting under such an officer, may be removed on petition of the defendant into the Circuit Court for the district, and the jurisdiction of the Circuit Court over such controversies, when all the prescribed conditions for the removal concur in the case, is clear beyond doubt, irrespective of the citizenship of the parties.
Although the point was not made in this case, it seems proper to remark that the jurisdiction of the Circuit Court has often been denied in this class of cases, because the party aggrieved may appeal to the commissioner for redress, and because he may also pursue his remedy by petition to Congress or present it in the Court of Claims. Suffice it to say, without entering much into the argument, that such a theory finds no substantial support in any act of Congress upon the subject or in any decided case. On the contrary, the severa acts of Congress for the assessment and collection of interna duties contain many provisions wholly inconsistent with any such theory, and which, when considered together, affbr an entirely satisfactory basis for the opposite conclusion.
Collectors are appointed by the President, and they wer made responsible by7 the fifth section of the act of the rs of May, 1862, both to the United States and individua s, a the case might be, for all moneys collected by their epu i, and for every omission of duty.* «
Collections were required by the twenty-third sectioi the act to be completed within six months, and co
* 12 Stat, at Large, 434.
Dec. 1866.] City of Philadelphia v. The Collector. 781
were required to render their final account and pay the sums collected into the treasury within that period. Argument it» that inasmuch as collectors were required by that act to pay all moneys collected into the treasury, they cannot be held liable to refund any portion of such collections; but the same requirement is made of the commissioner, and yet he is authorized to remit, refund, and pay back all duties erroneously or illegally assessed or collected, and to pay all judgments or sums of money recovered in any court against any collector or deputy collector for any duties or licenses paid under protest.*
4. Necessary implication from those provisions is, that actions may be maintained against collectors of the internal revenue to recover back duties illegally or erroneously assessed. Authority is also conferred upon the commissioner, by the forty-fourth section of the act of the thirtieth of June, 1864, not only to pay back all duties erroneously or illegally assessed or collected, but also all duties that appear to be excessive in amount, and to repay to collectors or deputy collectors the full amount of such sums of money as shall or niay be recovered against them in any court for any internal duties or licenses collected by them, with costs and expenses of suit.f
Same section also confers authority upon the commissioner to repay to assessors, assistant assessors, collectors, eputy collectors, and inspectors, all damages and costs recovere in any suit against them by reason of any act done in e performance of their official duties. Evidently, those j-7pSeS ^le 8ection contemplate different grievances and 1 erent remedies for their redress as known at common aw and in the practice of the courts.J
• Appropriate remedy to recover back money paid under ag° GS\Oti accour|t of duties or taxes erroneously or illegally ce’68^6 ’ an acti°n °f assumpsit for money had and re-
Where the party voluntarily pays the money, he is
°u i emedy; but if he pays it by compulsion of law, or
* 12 Stat, at Large, 725, 729. f 13 Id. 239. t See also 14 Id. 111.
(no text on this page in the source reporter)
under protest, or with notice that he intends to bring suit to test the validity of the claim, he may recover it back, if the assessment was erroneous or illegal, in an action of assumpsit for money had and received.*
When a party, knowing his rights, voluntarily pays duties or taxes illegally or erroneously assessed, the law will not aiford him redress for the injury; but when the duties or taxes are illegally demanded, and he pays the same under protest, or gives notice to the collector that he intends to bring a suit against him to test the validity of the claim, the collector may be compelled to refund the amount illegally exacted.f
Decisions to the same effect were made in the parent country at a very early period, and like decisions are to be found in the judicial reports of all, or nearly all, of the several States. But the third section of the act of the third of March, 1865, requires collectors to pay daily into the treasury the gross amount of all duties, taxes, and revenue received or collected in virtue of the internal revenue acts, without any abatement or deduction on account of salary, compensation, fees, costs, charges, expenses, or claims of any description whatever .J
Defendant contends that this provision has the same lega effect in respect to suits against the collectors of the interna revenue as the second section of the act of the third o March, 1839, had in respect to suits against collectors o customs. §
6. None of the internal revenue acts, however, contem plate that collectors shall reimburse themselves for t e amount of any judgment recovered against them on accoun of duties illegally or erroneously assessed and paid un ! protest. Direction in those acts is, without exception, all such judgments shall be paid by the commission including, by the latter acts, costs and expenses o 8__ p. 733Dec. 1866.] City of Philadelphia v. The Collect j >r. 733
*
5
5 Stat, at Large, 348; Cary et al. o. Curtis, 3 Howard, , Fiedler, 2 Black, 461.
Clear implication of the several provisions is, that a judgment against the collector in such a case is in the nature ot a recovery against the United States, and that the amount recovered is regarded as a proper charge against the revenue collected from that source. Evidently, therefore, it is not material in this inquiry whether the collectors of the internal revenue are required to account daily or monthly, or whether they are required to pay into the treasury the gross or only the net amount of collections, so long as this provision authorizing the commissioner to pay such judgments, costs, and expenses of suit, remains in full force.
Direct repeal is not pretended, and it is equally clear that the enactment requiring collectors to pay the gross amounts collected into the treasury is in no respect repugnant to the provision directing the commissioner to pay all judgments recovered against such collectors for duties illegally or erroneously assessed and paid under protest. Inconsistent provisions are repealed, but all others remain in full force.* Section nineteen of the act of the thirteenth of July, 1866, does not apply in this case, as it was not passed until long after this suit was commenced.f
Strong support to the conclusion that the Circuit Courts have jurisdiction in cases like the present is derived from the several provisions authorizing the removal of such cases from the State courts into the Circuit Courts for trial. Parties compelled to pay an illegal assessment ought to have a convenient remedy to redress the injury, and inasmuch as it 18 enacted by Congress that no suit for the purpose of restraining the assessment or collection of taxes shall be maintained in any court, it is believed that there is no more appropriate or effectual remedy known to the common law t an the action of assumpsit for money had and received, as >n this case.J
7. All the gas consumed in the public lamps of the corporation plaintiffs, is manufactured at the Philadelphia Gas
* 13 Stat, at Large, 486, § 16.
f 14 Id. 152.
t Act March 2, 1867, g 10.
Works, and payment therefor is made by the corporation to the trustees of the works, as shown by the only witness examined in the case. Origin of the gas works is shown in the ordinance of the twenty-first of March, 1835, and it appears that the works were constructed and put in operation by means of money subscribed by private individuals, for which they received certificates of stock, signed by the mayor of the city, and countersigned by the treasurer, entitling the holder to the proper share of the profits arising from the manufacture and sale of gas. Original subscriptions amounted to one hundred thousand dollars, and the provision was, that the works should be under the exclusive control and management of twelve trustees, to be elected by the councils of the city. Purpose was to supply the city and the citizens with gas; but the stipulation was, that the public lamps of the city should be supplied at one-half the price paid by private consumers. Five hundred dollars is annually paid by the trustees to the city as rent of the lot for the location and use of the gas works. New subscriptions and loans were subsequently authorized to increase the capital stock for the extension of the works.
Moneys arising from the manufacture and sale of the gas were required by the original ordinance to be paid into the city treasury, but that part of the ordinance was afterwards repealed, which gave the entire control to the trustees. Whenever the municipality deemed it expedient they mig t take possession of the gas works and convert the stock into a loan, redeemable in twenty years. They did take posses sion of the works, and loan certificates, on the third day o June, 1841, were issued to the stockholders, but the stipu a tion that the works should be controlled and manage y the trustees elected, as before, was renewed in the su se quent ordinance, passed in the same month. Clear pro 9 were required, under this last arrangement, to be set apa as a sinking fund to be invested in the loans to the associ tion, and the trustees were charged with the duty of carry ing the regulation into effect. Throughout, from the orga^ ization oe the association to the commencement of t e » p. 735the works have been controlled and managed by the trustees, and the interest of the association, which constructed the works and put them in operation, has never been divested or become vested in the corporation.
Plaintiffs authorized the mayor of the city, on the sixteenth day of February, 1856, to contract with the trustees for the lighting, extinguishing, cleansing, and repairs of the public lamps of the city, for the term of three years, at a stipulated sum for each lamp, and made a sufficient appropriation to carry the contract into effect; and the evidence showed that the works were, throughout the period for which the duties were assessed, in the exclusive possession of the trustees. Testimony also showed that the city paid monthly for the gas consumed in her public lamps throughout that entire period. They sometimes paid a fixed sum for each lamp and sometimes one-half the rate paid by private consumers.
Prayers for instruction were presented by both parties, but the presiding justice rejected them all, and instructed t e jury that the plaintiffs were not entitled to recover, and that their verdict should be for the defendant.
• Buried as the original transaction is in subsequent ordnances and amendments thereto, still it is believed that ere is no great difficulty in ascertaining the true state of e case so far as it respects the present controversy. Trusses elected by the councils of the city superintended the J50 ^ruction of the works, but the subscribers to the capital c finished the money employed in the enterprise, and ecanae and are the legal owners of the works. When loans su sequently made to enable the association to supply ffie ° a xrger ^)Or^on °f the citizens, the capital stock and ma er 8^ares were increased, but the control and loanagemeilh lemained unchanged. Debts contracted by soml.°r,Ot erwige became liens upon the works, and, in Was nN aU?e8’ ^ie faith of the city as surety or guarantor Davm<Agr Payment of the interest and ultimate owner h'° ^h® principal. Such liens did not change the
JP o the capital stock of the association, nor did p. 736736 City of Philadelphia v. The Collector. [Sup. Ct.
the mere entry by the city for the purpose of laying the foundation to issue the loan certificates, as the possession was only temporary, and the control and management were, by new stipulation, continued in the trustees constituted and appointed in case of any vacancy, as provided in the original ordinance. Bent was paid, as before, to the city for the lot leased for the location of the works and for the use of the association, and the authorities continued, as before, to pay monthly or otherwise, at stipulated prices, for the gas consumed in the public lamps.
Taking the facts as they appear in this record, it is clear that the property of the association never became vested in the city, and it is equally clear that it remained vested in the association, subject to the liens created as security for the loans and as indemnity to the city for her liabilities incurred as surety or guarantor. Supreme Court of the State regarded the city as the borrower in the matter of the last loan, and they held that the object of the stipulation that the works should continue to be controlled and managed by a board of trustees, elected as before, was to keep the pledge out of the hands of the borrower and prevent the fund from being mingled with the funds of the city. Ruling of the court that the works were held by the city in pledge only,, and not in full property, is all which the present case re quires this court to decide. They also held that the effect of taking possession and the issuing of the certificates o loans, was, that the trustees ceased to be trustees for t e stockholders and became the trustees of the city an t e loanholders
Suppose that to be so, still they held that the control and management of the works continued in the trustees, a that they were to be elected, as under the origina cr nance. Rights of the stockholders could not be ive8.,. without their consent, and the mere acceptance o cer cates of loan in the place of certificates of shares in e ital stock, without more, would not operate to convey
* Saving Fund Co. v. City of Philadelphia, 7 Casey, 187.
city their interests in the gas works. Conclusion is, that the duties were properly assessed, and that there is no error in the record.
Judgment affirmed, with costs.
The Kansas Indians.
1. The State of Kansas has no right to tax lands held in severalty by individual Indians of the Shawnee, Miami, and Wea tribes, under patents issued to them by virtue of the treaties made with those tribes respectively in 1854, and in pursuance of the provisions of the 11th section of the act of June 30th, 1859 (11 Stat, at Large, p. 431).
2. If the tribal organization of Indian bands is recognized by the political department of the National government as existing ; that is to say, if the National government makes treaties with, and has its Indian agent among them, paying annuities, and dealing otherwise with “ head men ” m its behalf, the fact that the primitive habits and customs of the tribe, when in a savage state, have been largely broken into by their intercourse with the whites,—in the midst of whom, by the advance of civilization, they have come to find themselves,—does not authorize a State government to regard the tribal organization as gone, and the Indians as citizens of the State where they are, and subject to its laws.
• ‘ Rules of interpretation favorable to the Indian tribes are to be adopted in construing our treaties with them. Hence, a provision in an Indian treaty which exempts their lands from “levy, sale, and forfeiture,” is not, in the absence of expressions so to limit it, to be confined to levy an sale under ordinary judicial proceedings only, but is to be extended to levy and sale by county officers also, for non-payment of taxes.
hese were three distinct cases involving, however, with certain differences, essentially the same question, argued on
« oame day and by the same counsel.
e specific question was, whether the State of Kansas . $ fight to tax lands in that State held in severalty by und^ Indians the Shawnee, Wea, and Miami tribes, th eJyP.atent8 issued to them pursuant to certain treaties of ha^ ’ Qi^ed States; the tribal organization of these tribes ud a. certa^n extent, as was alleged, been broken in ou y their intercourse with the whites, in the midst of
V0L’ V- 47
788 The Kansas Indians. [Sup. Ct.
whom the Indians were, and by their enjoyment, to some extent, of the social and other advantages of our own people.
The question was raised on bills filed in equity in the county courts of Kansas, by different Indian chiefs,—Blue Jacket as representing the Shawnees; Yellow Beaver representing the Wea tribe, and Wan-zop-e-ah the Miamis—against the County Commissioners of Johnson County and Miami County, to restrain these commissioners from selling for non-payment of taxes lands held by these Indians in their individual characters. The county court dismissed the bills, conceiving that the lands were rightly taxed, and on an affirmance of such dismissals in the Supreme Court of the State, the cases were brought here. They were, respectively, thus:
I. Case of the Shawnee Tribe.
In 1817, a portion of the Shawnees were living in Missouri, others in Ohio; those in Missouri were upon lands given to them by the United States, and which, by treaty, was declared should not be liable to taxes so long as they continued to e the property of the Indians.*
In 1825, the Shawnees in Missouri gave up their lan s there to the United States, and in consideration for the sur render received for themselves, and such of their biethien in Ohio as might choose to follow them, a tract in Kansas then a wild—of 50,000 square miles, or 1,600,000 acr^*t
In 1831, the Shawnees in Ohio resolved to join their 18 souri brethren who had gone to Kansas. A treaty was a cordingly concluded in that year by the United States wi the Ohio Shawnees. By the terms of it the Presi en w _ to cause the said tribe from Ohio to be protected at t eir tended residence against all interruption or disturbance r any other tribe or nation of Indians, or from any ot er p^ son or persons whatsoever, and he was to have the sam__ .
f Id. 284.
* 7 Stat, at Large, 166.
and superintendence over them in the country to which they were to remove, that heretofore he had over them at their then place of residence. 100,000 acres of land within the 50,000 square miles, above mentioned, were granted to them in fee by patent, so long as they should exist as a nation. These lands were not to be ceded by them except to the United States, and were never to be included within the bounds of my State or Territory, nor to be subject to its laws.*
The Ohio Shawnees were thus transferred to Kansas, and were there resident with the rest of their tribe from the time they went there, continuously, up to 1854. In the course of this term of years, the progress of civilization westward, carried numbers of white men to, around, among, and beyond them. They were thus in the midst of whites. In May of the year just mentioned, 1854, Kansas became a “Territory” of the United States, with an organic law from Congress. By this law, it was ordained “ that all treaties, laws, and other engagements made by the government of the United States with the Indian tribes inhabiting the territories embraced therein should be faithfully and rigidly observed; ’ and also that all such “territory, as by treaty with any Indian tribe was not to be included within the territorial limits or jurisdiction of any State or Territory should e excepted out of the boundaries and constitute no part of t e same until said tribe should signify their assent to the resident of the United States to be included therein.” h ld‘ ^°Vein^er this same year, 1854, the Shawnees—° ing their lands in common in fee by patent, no partition avmg been made among themselves, and they proposing o wide them to the extent of 200 acres each, among theme ves, but having no mode to effect this except by parole—? ed to the United States the whole tract of 1,600,000 acres. 6ame^r°CeS8^011 a (200,000 acres) was made in the tio eJns^rumen^ t° carry out this purpose, with a stipulaimn ^G8e Preceded lands should cover the lands where rovements of individuals had been made, and that the
* 7 Stat, at Large, 357.
restriction before annexed to their title should be as to the power of alienation, regulated as Congress might provide for. In one article of the agreement now made with these Indians, “ the care and protection of the United States are invoked, and they agree to comply with the laws of the United States, and expect to be protected and have their rights vindicated by them.”* A sum of $829,000 was agreed to be paid to the Shawnee Indians for the cession to the United States. One article of the treaty provides that this sum “shall be in full satisfaction not only of such claim, but of all others of what kind soever, and in release of all demands and stipulations arising under former treaties.” From this re-ceded or reserved tract 200 acres were to be selected
for each individual, except as to certain bands, who were to have their lands in common and in a compact body. The lands assigned to individuals were to be patented, under such restrictions as Congress—or, as that body afterwards enactedf—such restrictions as the Secretary of the Interior might impose. This officer afterwards made rules; and patents were issued in fee simple, with the restriction that “ the said lands shall never be sold or conveyed by the grantee or his heirs without the consent of the Secretary of the Interior.
In July, 1859, a constitution was formed for the State o Kansas, in which it was provided that all rights of indivi uals should continue as if no State had been forme, or change in the government made.
In January, 1861, an act for the admission of the a was passed by Congress.^ In this it was provided that no ing contained in this said constitution respecting the ou aries of said State shall be construed to impair the rig person or property now pertaining to the Indians of sof tory, so long as such rights shall remain un extinguís e treaty with such Indians.” And also, “that no te^r! should be included which, by treaty with such In ian J was not (without the consent of such tribe) to e in within the territorial limits or jurisdiction of any
j 12 Id. 127.
f 11 Id. 480.
* 10 Stat, at Large, 1053-68.
Statement of the cases : The Miamis.
Territory; but that all such territory shall be excepted out of the boundaries and constitute no part of the State of Kansas until said tribe shall signify their assent to the President of the United States to be included in said State.”
No treaty had been made by this tribe in which such consent was given by them. Nor was such assent shown by the record to have been given to the President.
II. The Case of the Wea Tribe
Was similar in the outlines to that of the Shawnees. It was a small tribe—a mere band—who joining with other small tribes surrendered to the United States, by treaty of 10/A August, 1854,* lands which had been ceded to them in earlier times while the region was wild. One hundred and sixty acres were reserved for each individual, to be selected, not in a body, by the heads of families. Ten sections were reserved for the common property of the tribe, and one section for the American Indian Mission Association. The unselected lands were to be sold and the proceeds given to t e Indians. The patents were like those given to the onawnees.
HL The Case of the Miami Tribe
f ma^n asPect, like the others. By the treaty
,t it was provided, “ should difficulties at any time tj 18-*? ? ^iese Indians would abide by the laws of the tj'1 e tates, and as they expected to be protected and tbellth611, eights vindicated by those laws.” And also in Pre *d ari1C}e ^ie same treaty it was provided, “ that the adont en^?Whh the advice and consent of the Senate, might his ii ]SUC P°hey in the management of their affairs as in Rress raight be most beneficent to them; or Con__ ** thereafter make such provision by law as expe-
* 10 Stat, at Large, 1082.
t Id. 1097.
742 The Kansas Indians. [Sup. Ct
rience should prove to be necessary.” Like the Indians of the other two tribes, this tribe held their rights in severalty, with the conditions against alienation except on approval, &c. The patents, in the case of this tribe, declared, however :
“ That the lands now patented shall not be liable to levy, sale, or execution, or forfeiture: Provided, that the legislature of a State within which the ceded county may be hereafter embraced, may, with the assent of Congress, remove the restriction.”
In the Case of the Shawnee Tribe, the Commissioners of the County of Johnson, which had laid the tax, answered the bill as follows:
“ That the aggregate of the lands selected by the said Indians, and from which it is sought to enjoin the levy of taxes, is about one hundred thousand acres; that they do not lie in a contiguous body, but are scattered over the entire area of the lands ceded by said tribe of Indians to the United States; in fact, over the whole body of the said county of Johnson; that interspersed with the selected lands are farm lands and 10a s, and school districts and municipal townships (the said dis tricts and townships exercising their jurisdiction and functions over the said lands) of the white citizens of the county; that tie lands are traversed by the white citizens as well as by Indians in visiting each other, in going to mill and to various business cen tres of the county; that highways have been laid across e lands by different county tribunals, and frequently at t e i stance and request of the grantees of the lands; that since lands have been patented to the Indians, many of them sold to their white neighbors, and to each other, such por as they were allowed to do by the Secretary of the n that the Indians traffic and live with their white tneig they do with each other, and as such white neighbors each other; that many of the Indians have interma.n e_ their white neighbors and friends; that their marnag mony conforms to the laws of the State; that many o -nant9 bers of the said tribe of Indians, and who are the comp ‘ in the bill, and who are grantees of the selected lan s, a
men and women; that the said white men are entitled to, and do exercise the elective franchise at all elections; that the Indians appeal to the different courts of justice of the county to protect their rights, not only as against their white neighbors, but as against each other; that offenders among them are brought by them before the courts of justice for trial and punishment; that the Indians invoke the aid and shield of the laws, courts, and institutions of the State as administered and enforced in the said county to preserve order, maintain justice, protect rights, and redress wrongs among themselves as well as among their white neighbors and themselves; that they use the common school» established in said county, and their children are entitled to the benefit of the different school funds; that on the decease of any of the said Indians, their estates are subject to the laws of descent, inheritance, and distribution of the State, and are in fact administered upon and disposed of by their request and application in the Probate Court of said county; that many of the said Indians have paid the taxes levied upon their lands into the treasury of the county, and that commercial business and social intercourse prevail throughout said county between the complainants and the citizens and residents of said county.”
As respected the Wea Tribe, it was admitted in a case agreed on,
That guardians are appointed by the Probate Court of said county for minors, and their lands sold by order of the Probate ourtunder the like regulations of the Secretary of the Interior; at the members of said tribe sue and are sued in the various courts in the said county of Miami; that the said Indians trade n traffic with the whites, and the whites with them—the same e whites do with each other; that the tribe exercise no n rol over the head-rights, and do not punish for offences
^ernse^ves’ but that the Indians go to the criminal courts bPore ress> that eight of the persons for whose use this suit is head^’ are wbite men, adopted into the said tribe, and own exer Ju8 Un^er. th® treaty; that some of the adopted whites and C18e 6 ?^ec^ve franchise; that highways are laid out over thatT1088 land8 under the authority of the laws of Kansas; these V^8 w^^es are interspersed more or less among n lan lands; that municipal townships of the county p. 744744 The Kansas Indians. [Sup. Ct
embrace the said Indian lands, and have done so since the organization of the county. That annuities of the United States are not received by the chiefs, but are paid over to each Indian who signs the pay-roll. The chiefs only receive those funds that are used and expended for tribal purposes. The said tribe does not enforce the collection ef debts among the members of said tribe.”
As respected the Miamis, the case was admitted to be essentially similar.
In 1860 a law was passed by the Territorial authorities of Kansas,* to the effect “ that all Indians in Kansas Territory to whom lands have been set apart in severalty or by families, and who shall receive patents therefor from the United States, are hereby declared to be, and are, made citizens of the Territory of Kansas.”
Notwithstanding all this, however, it was plain that a tribal organization in all three of the tribes was, to a greater or less extent, kept up. Blue Jacket, who filed the bill on behalf of the Shawnees, was himself the Shawnee head-chief. There was also a second chief. These Indians had a council, elected for a year, and a clerk of council, and a sheriff, of their own. Also a place where the council and head-men met to transact business once in each month. The number of Indians belonging to the tribe was 860, not including ab sentees, of whom there were about 250.
The clerk of the council, a white man apparently, w o was a member of the Shawnee tribe of Indians by adoption, gave the following account of them:
“ I have resided among them since the year 1849. I was th head of a family. I got eight hundred acres of land as a ea right. I have been clerk of the Shawnee council since attend the meetings of the council regularly. I keep a rec of the business transacted in the council. Any difficu tie. tween members of the tribe they sit as a council to e the same. Since I have been clerk there have been quite a n
* Compiled Laws of Kansas, p. 602.
ber of difficulties settled by the council. Shawnees who die, the council appoint persons to sell the personal property and pay the debts. They appoint the men to sell; order the sale to pay the debts. We keep a record in the council in relation to all the transactions relating to orphans and the disposal of property of deceased persons, &c. The last estate settled in the council was the estate of Eliza Flint, a woman who died in the fall of 1864. She had but a few things to administer on. There is one estate which is not yet settled up. It is of a man who died in the fall of 1864. The council do not order the sale of real estate, and do not take control of our lands. I am administering, through the Probate Court of Johnson County, the estate of James Suggott, who was a member of the Shawnee tribe. There is one minor, and I am the guardian appointed by the Probate Court of Johnson County. I was curator of an incompetent Indian, appointed by the Probate Court of Wyandotte County, in Kansas. The council takes cognizance of offences committed by one Shawnee against another Shawnee. They determine the punishment for offences of Shawnees against Shawnees. The party found guilty is fined. He is fined the value of the thing stolen, which is paid to the owner, and a like value paid to the council, which goes into the council fund. There have been cases of this kind since I have been clerk, but not a very great many. The last man that was fined was in 1863; he had stolen something. Within the last five years there have been a number of persons punished. There was one case where a Shawnee was charged with manslaughter. The council found im guilty, and sentenced him to one hundred lashes, and to be expelled from the tribe, and to lose his annuity; but that sentence was not executed, owing to the opposition of some of the tribe. his took place in 1860 or 1861. It was just before the war, and t e defendant went into the service. They have hung one man or murder since 1 was clerk. In the case of William Fish, arrested by the sheriff of Johnson County, for shooting Robert uejacket, the council directed me and the Shawnee sheriff to emand him of the sheriff of Johnson County, to be delivered over to the council for trial. We did so, and he was delivered J??0 U8' and Bluejacket were both Shawnee Indians.
is took place in 1858; in the fall. He was tried before the ^neiand acfiuitted. The Shawnees have a custom of their wnwithiegard to marriage. Some marry according to the p. 746old custom, and some marry by the minister. Charles Bluejacket is our minister. The more enlightened portion go to him to perform the ceremony. He has a ceremony of his own. Some are still married according to the old custom. Each mode of getting married is considered by the Shawnees as valid. I never was present at an Indian marriage according to the old custom. The Charles Bluejacket who is minister is the same who is complainant in this case, and head chief. We are a church body alone. We are not connected to any other church. Charles Bluejacket is an exhorter, but nothing more. We sell head-rights to white men, according to the rules prescribed by the Secretary of the Interior. White men have bought parts of head-rights, made farms, and planted orchards on the lands they have bought. I know of two or three cases of this kind. I never voted but once, that I recollect of. A number of Shawnees voted at the election for county-seat in 1858. Shawneetown was a candidate. I was judge of township election in 1863. There are state and county roads and town roads leading out through Shawnee lands. There is a road laid out by the county through my land. I sent my children, at one time, to Mr. Bladget to school.”
Blue Jacket himself testified: “ The sheriff of the Shawnees executed the sentence of death for the murder referred to by the last witness. This was in the year 1856 or 1857. They are still in the habit of punishing Shawnees for offences against Shawnees. We have a nationa school fund and a school fund of our own. The interest on t e national school fund is about $5000 per annum. We have what is called the mission school, carried on under the direction o the Society of Friends or Quakers. There is a Sunday schoo for the Shawnees still kept up at the Quaker Shawnee mission. The United States have a Shawnee Indian agent for the Shawnees, who resides amongst us. The Shawnees have a treaty now pen ing with the United States. In 1863 the Shawnees, by theii ea men, signed a treaty with the United States, and it was sen Washington City. It was signed by the men who were appom by the nation to make a treaty. It has never been acte the Senate. This treaty was drawn up in 1864, and is sti pe ing. I was one of the delegates from the Shawnee natio make the treaty.”
Dec. 1866.] The Kansas Indians. 747
So in regard to The We a and Miami Tribes, it appeared that each tribe had its “ head men,” who represented it and transacted its business; receiving funds from the United States and disbursing them for tribal purposes; the government of the United States having an Indian agent for both tribes, who transacted business with them through their chiefs and head men at his office.
On the cases coming from the County Court to the Supreme Court of Kansas, the principal case, that of the Shawnees, was twice fully argued. And the court, through its chief justice, gave an extended and able opinion. Ko more of it can be here presented than short and much-mutilated extracts. Even these, however, will serve to convey some idea of the line of view had by that tribunal:
“What is the nature of the plaintiffs’ title ? Have the patentees but a portion of the title, the remainder being in the government, or have they the whole title ?
It is not material to inquire whether the title of the Shawnees would be correctly described by the technical term ‘ fee-simple. The true test is, what was the intention of the parties, as derivable from the treaty and the provisions of the patent, a 1 taken together, considered with reference to circumstances existing at the time they were made and issued.
he policy of the government has been to induce the Indians
0 a andon their mode of life, as hunters and warriors, and to eu tivate in them a taste for and aid them in adopting the pursuits and manners of civilization. To this end enlightened mis°“ailes have been encouraged to live among them as teachers, vicious of the white race have, so far as was practicable, with eX°\Uded fr°m their country. They have been furnished Trad a^r'eu^urai implements and taught the use of them, and f P8 mercilani;8 have been permitted to live among them upon with supplies, so that they need not depend chas f 6 war> Or rely upon the uncertain success of the in ma °r^e nece8saries of life. The effect of this policy is seen feroeio^ ln8^ai^ees' The nationalities of some of the tribes most e°U8titUf’ln hi81iOry have become extinct, the members thereof tjingui^R a W°l poi’tion of the great body politic, undisa e from the great mass, except in color or texture.
“ The Shawnees, for the last third of a century, have lived upon the very borders of civilization, and much of the time in actual contact with the white race. Many of them have been gradually losing the distinctive characters of the red man, adopting the habits and modes of life of their fairer-skinned neighbors, and are, and have been for years, thrifty, substantial, industrious husbandmen. On the other hand, others of them still live the nomadic lives of their fathers, preferring to remain in habits, mode of life, and in name, Indians. In the country ceded by them by the treaty of 1854, the former class, under tribal regulations, were occupying particular portions of their country, having made thereon farms and other improvements pertaining to a fixed mode of life. Their reservation would soon be surrounded by white settlements, and be useless to the nomadic portion as hunting-grounds. There was vastly more of it than would be necessary for agricultural purposes if every member of the tribe were to become an independent tiller of the soil. Good policy dictated that the portion of these lands, which, under the circumstances, must soon become wholly useless to the Indians as homes, should be placed in a situation to be occupied by the whites. Upon consultation with the Indians, it was ascertained that their views and those of the government coincided, and immmediate steps were taken for an amicab e arrangement.
“ It was competent for the Indians, had they seen proper so to do, to have selected the whole in a compact body and e them in common. Had they done so no patents woul ave been issued to them, and their title would have been at lea® ‘Indian title.’ But it was not expected that course wou taken by them. It is apparent from the provision of the rea* J that some of them desired to hold their shares in severa Among the more civilized and thrifty of them such a was a very natural one. When the Indian, in pursuance o treaty, made his selection of lands to be held by himse eralty, the title of the tribe, so far as the lands se ec e concerned, vested in him; that is, he took the right ope use and occupation. Had it been the intention o e of the treaty that he should not acquire a greater ti, $ provision was wholly unnecessary, but further for fact made. The tribe agreed that, under proper res 11 . the protection of the patentees, the government mig p. 749Dee. 1866.] The Kansas Indians. 743
ents for the lands. It was feared, probably, that some of the patentees might be overreached by their more shrewd and bet« ter-educated white neighbors, and be deprived of their lands without adequate compensation. Hence the stipulation. Nothing remained in the government but the ultimate titles, and the ordinary mode adopted by the government for conveying that to individuals is by patent in fee-simple. Must not the conclusion be that the object of these patents was to convey to the Indians the ultimate title ? It seems so to the court. But the correctness of this conclusion is confirmed by the fact that, when any of these lands are sold by the grantees with the con- ■ sent of the government, the whole consideration of the sale goes to the Indian.
“ The effect of the restrictions in the patent remains to be considered.
“ It need not be argued that it does not operate as a condition. An attempt by the Indian to convey without the assent of the Secretary of the Interior does not forfeit his right to the land.
“ His act would be wholly void, not affecting his title in any way. It is not a limitation upon the title, because the whole title of the government passed when the patent issued.
“ The conclusion of the court upon the first point is that tho absolute title to the lands in question was intended to be, and is, in the Indians and not in the government, and that they must be held to be taxable if there be no other reason for adjudging them exempt.
‘ Second. Are these lands exempt from taxation on the ground t at they belong to the Shawnees ? For some purposes at least the tribal organization of the Shawnees is still maintained, but it nowhere appears that as a tribe they have a right to or that t ey attempt to control in any manner the lands held in severalty by the patentees. The lands not only do not lie in a compact body, but they are widely scattered, being thickly interspersed with the lands and settlements of white persons.
here is no express prohibition against taxing these lands or the personal property of the Indians residing upon them, e treaty does not contain it, nor is it contained in any act of ongress to which our attention has been directed. In disposing of these lands to the Indians, it doubtless was competent for 0 proper branch of the government to have prohibited their p. 750taxation by the State, at least so long as they might remain the property of the members of an Indian tribe. The exercise of such power in this instance must be sought elsewhere than in express provisions of law or treaty.”
The court then distinguished the case from Goodell v. Jackson* decided by Chancellor Kent, and from The Cherokee Nation v. Georgia, and Worcester v. Georgia, in this court;! which last cases went, the court below observed, on the ground that the Indians concerned were recognized by the general government as occupying exclusively a district of country, in the enjoyment of which they were promised the protection of the United States; the court, in the latter case, said (page 557): “ The treaties and the laws of the United States contemplate the Indian Territory as completely separate from that of the States.” His honor proceeded:
“ The Shawnees do not hold their lands in common, nor are they contiguously located. It is difficult to conceive of a national existence without a national domain upon which to maintain it. It may be competent for the general government, for some purposes, to recognize the continued tribal existence of the Indians, but it never has recognized them as distinct nationalities, except in connection with the country thej- occu pied. It never has treated with them, or legislated in regard to their affairs, except as the owners and exclusive occupants of a particular district of country. The Shawnees who own and occupy these selected and patented lands are in precisely the same situation they would have been in if, instead of giving them two hundred acres of land apiece, the government had given eac two hundred dollars, which they had used in purchasing each a quarter of a section of the public lands wherever it could be found within the State.”
On the whole case the conclusion of the Supreme Coi
□f Kansas was:
“That the Shawnees who hold their lands in severalty und patents from the government have the abstract tit e t
* 20 Johnson, 693. t 5 Peters, 1; 6 Id- f'16-
Opinion of the court: In the case of the Shawnees.
that the lands are subject to taxation, unless exempted specifically by the constitution of this State, or by some paramount law, and that they are not so exempt.”
As respected the Miamis, that learned tribunal, on a comparison of the treaty made with them with treaties with other Indians made at about the same time and penned by the same person—in which last treaties it was stipulated that the lands should “ not be liable to levy, sale, or execution or forfeiture,” and at the same time stipulated that they should not be taxed for a certain term of years, &c.,—held that the words above quoted had reference to “judicial proceedings alone.”
On the cases coming here, the whole three were argued by Mr. T. A. Hendricks, for the plaintiffs in error, and by Mr. E. P. Stanton, contra; the latter counsel enlarging upon and enforcing the arguments presented in the opinion of the Supreme Court of Kansas, and as respected the case of the Shawnees, more prominently, calling attention to the fact that there was no provision in the treaty of 1854, as there had been in that of 1831, exempting these lands from taxation, or withdrawing them from the State or Territorial jurisiction; and so argued that it was plain, when the Indians ceded all their lands back to the United States, that the ands were divested of all conditions which had previously attached to them; and that when the government afterwards conveyed a part of them to the Indians in severalty, they were subject only to such conditions as were stipulated by e new treaty, or expressed on the face of the patents.
ll^b ^U8^ce DAVIS delivered the opinion of the court in t ree of the cases; a separate opinion in each.
In the Case of the Shawnees.
la que8ti°n presented by this record is, whether the •?. 8 .e ong* ng to the united tribe of Shawnee Indians, rein Kansas, are taxable ?
752 The Kansas Indians. [Sup* Ct
The authorities of the county of Johnson asserting the right, and the highest court of the State having sustained it, the question is properly here for consideration. The solution of it depends on the construction of treaties, the relations of the general government to the Indian tribes, and the laws of Congress. In order to a proper understanding of the rights of these Indians, it is necessary to give a short history.of some of the treaties that have been made with them.
In 1825 the Shawnee tribe was divided—part being in Missouri and part in Ohio. The Missouri Shawnees were in possession of valuable lands near Cape Girardeau, and in that year* ceded them, by treaty, to the United States, and, in consideration of the cession, received for their use, and those of the same nation in Ohio, who chose to join them, a tract of country in Kansas, embracing fifty square miles. In pursuance of the favorite policy of the government to persuade all the Indian tribes east of the Mississippi to migrate and settle on territory, to be secured to them, west of that river, in 1831,f a convention was concluded with the Ohio Shawnees—they being willing to remove West, in order to obtain “ a more permanent and advantageous home for themselves and their posterity.” In exchange for valu able lands and improvements in Ohio, they obtained, y patent, in fee-simple to them and their heirs forever, so long as they shall exist as a nation, and remain upon the same, one hundred thousand acres of land, to be located un er the direction of the President of the United States, wit in the tract granted in 1825 to the Missouri Shawnees.
This treaty contained words of promise that the sam care, superintendence, and protection, which had been ex tended over them in Ohio, should be assured to them in country to which they were to remove, and also & guaran that their lands should never be within the boun s o $ State or Territory, nor themselves subject to t e thereof. In obedience to the obligations of this trea y,
* 7 Stat, at Large, 284.
Opinion of the court: In the case of the Shawnees.
removed and united with their brethren, who had preceded them from Missouri, but were soon met by the advancing tide of civilization. In view of the rapid increase of population in the Kansas country, and the small number of Shawnees—the tribe does not now contain over twelve hundred souls—it was deemed advisable to lessen their territorial limits.
Accordingly another treaty was concluded with them on the 2d day of November, 1854.* By this treaty the ‘united Shawnee nation ceded to the United States all the large domain granted to them by the treaty of 1825. In consideration for this cession, two hundred thousand acres of these same lands were receded to them, and they also obtained annuities and other property. This treaty was peculiar in some of its provisions. It did not contemplate that the Indians should enjoy the whole tract, as the quantity for each individual was limited to two hundred acres. The unselected lands were to be sold by the government, and the proceeds appropriated to the uses of the Indians. It also iecognized that part of the lands selected by the Indians could be held in common, and part in severalty. If held in common, they were to be assigned in a compact body; if in severalty, the privilege was conceded of selecting anywhere in the tract outside of the common lands.
The Indians who held separate estates were to have patents issued to theih, with such guards and restrictions as ongiess should deem advisable for their protection. Congress afterwardsf directed the lands to be patented, subject o such restrictions as the Secretary of the Interior might impose, and these lands are now held by these Indians, un-er patents, without power of alienation, except by consent t e Secretary of the Interior. This treaty was silent about the guarantees of the treaty of 1831; but the Shawnees of th68?/ .ac^now^e(^Se(i their dependence on the government e nited States, as formerly they had done, and invoked
8 protection and care. Prior to the ratification of this treaty
10 Stat, at Large, 1063.
f 11 Id. 430
Vol. y.
(although not before it was signed) the organic act for the Territory of Kansas was passed, and on the 29th of January, 1861, Kansas was admitted into the Union; but the rights of the Indians, the powers of Congress over them, their lands, and property, and the stipulations of treaties, were fully preserved, and in the same words, both in the organic act and the act for the admission of Kansas.
The Ohio Shawnees, when they ceded their lands in Ohio, did it in pursuance of an act of Congress of May 28, 1830,* which assured them the country to which they were translated should be secured and guaranteed to them and their heirs forever. The well-defined policy of the government demanded the removal of the Indians from organized States, and it was supposed at the time the country selected for them was so remote as never to be needed for settlement. This policy was deemed advantageous to their interests, as it separated them from the corrupting influences of bad white men, and secured for them a permanent home. It is plain to be seen, that the covenants with the Shawnees in the treaty of 1861, that they should not be subject to the laws of organized States or Territories, nor their lands included within their boundaries, unless with their own consent, signified to the President, must have materially in u enced their decision to part with their Ohio possessions an join their brethren in Kansas. They, therefore, remove under the assured protection of the government, to enjoy, as they expected, in perpetuity, free from encroachment, home adapted to their habits and customs. But these ex pectations were not to be realized, for the spirit of America enterprise, in a few years, reached their country, an same white population that pressed upon them in io a Missouri followed them there. , The present and future wants of this population ciea
the necessity for the treaty of 1854, and the segrega io lands allowed by it, in connection with the powei o these unselected tracts, invited what followed a mixe
* 4 Stat, at Large, 411.
cupancy of the same territory by the red and white men—the very matter which dictated the removal of the Indians from the older States.
It is insisted, as the guarantees of the treaty of 1831 are not, in express words, reaffirmed in the treaty of 1854, they are, therefore, abrogated, and that the division of the Indian territory into separate estates, so changes the status of the Indians that the property of those who hold in severalty is liable to State taxation. It is conceded that those who hold in common cannot be taxed. If such are the effects of this treaty, they were evidently not in the contemplation of one of the parties to it, and it could never have been intended, by the government to make a distinction in favor of the Indians who held in common, and against those who held in severalty. If the Indians thus holding had less rights than their more favored brethren, who enjoyed their possessions in common, and in compact form, would not good faith have required that it should have been so stated in the treaty ? The general pledge of protection substantially accorded in this treaty, as in all the other treaties with this tribe, forbids t e idea that government intended to withdraw its protection from one part of the tribe and extend it to the other.
But, it is not necessary to import the guarantees of the treaty of 1831 into that of 1854, in order to save the property of the entire tribe from State taxation. If the necessities of the case required us to do so, we should hesitate to ec are that, in the understanding of the parties, the promises under which the treaty of 1831 were made, and the guaiantees contained in it, were all abandoned when the was conclU(Ied. If the tribal organization of liti awnees *8 preserved intact, and recognized by the po$ ca ^epartment of the government as existing, then they tre r People distinct from others,” capable of making ies, separated from the jurisdiction of Kansas, and to If if°Jernt^ excHsively by the government of the Union, be n d,r \-i 6 control of Congress, from necessity there can thev h 1V1 authority* H t^ey have outlived many things, ave not outlived the protection afforded by the Con«
756 The Kansas Indians. [Sup. Ct.
stitution, treaties, and laws of Congress. It may be, that they cannot exist much longer as a distinct people in the presence of the civilization of Kansas, “ but until they are clothed with the rights and bound to all the duties of citizens,” they enjoy the privilege of total immunity from State taxation. There can be no question of State* sovereignty in the case, as Kansas accepted her admission into the family of States on condition that the Indian rights should remain unimpaired and the general government at liberty to make any regulation respecting them, their lands, property, or other rights, which it would have been competent to make if Kansas had not been admitted into the Union. The treaty of 1854 left the Shawnee people a united tribe, with a declaration of their dependence on the National government for protection and the vindication of their rights. Ever since this their tribal organization has remained as it was before. They have elective chiefs and an elective council; meeting at stated periods; keeping a record of their proceedings, with powers regulated by custom; by which they punish offences, adjust differences, and exercise a general oversight over the affairs of the nation. This people have their own customs and laws by which they are governed. Because some of those customs have been abandoned, owing to t e proximity of their white neighbors, may be an evidence o the superior influence of our race, but does not ten to prove that their tribal organization is not preserved. T ere is no evidence in the record to show that the Indians wi separate estates have not the same rights in the tn e a those whose estates are held in common. Their mac inery of government, though simple, is adapted to their in e gence and wants, and effective, with faithful agents to wa over them. If broken into, it is the natural result o * nees and whites owning adjoining plantations, an i and trafficking together as neighbors and friends. u action of the political department of the goveinmen 8,e. beyond controversy, that the Shawnees are as ye^a ' people, with a perfect tribal organization. Wit in a recent period their head men negotiated a treaty w
Opinion of the court: In the case of the Weas.
United States, which, for some reason not explained in the record, was either not sent to the Senate, or, if sent, not ratified, and they are under the charge of an agent who constantly resides with them. While the general government has a superintending care oyer their interests, and continues to treat with them as a nation, the State of Kansas is estopped from denying their title to it. She accepted this status when she accepted the act admitting her into the Union. Conferring rights and privileges on these Indians cannot affect their situation, which can only be changed by treaty stipulation, or a voluntary abandonment of their tribal organization. As long as the United States recognizes their national character they are under the protection of treaties and the laws of Congress, and their property is withdrawn from the operation of State laws.
It follows, from what has been said, that the Supreme Court of Kansas erred in not perpetuating the injunction and granting the relief prayed for.
In the Case of the Weas.
The opinion just rendered in the case of Blue Jacket, representing the united tribe of Shawnee Indians, controls t e decision of this case. The relations of the general government to the Wea tribe, and their relations to the State of ansas, are settled by the agreed statement of facts in the record, in connection with the treaty of 10th August, 1854.* is tiibe being weak in numbers, united with three other es, equally weak, and ceded to the United States large possessions obtained under former treaties, reserving for and ln<^V^ual onV one hundred and sixty acres of land, a J:en sections for the common property of the united tribes, one section in addition, for the American Indian Misfor1 reservation of the limited quantity eac individual was not to be in a compact body. Indi«
* 10 Stat, at Large, 1082.
Opinion of the court: In the case of the Weas.
viduals and heads of families had the right of selection, aa in the Shawnee treaty, and the lands were to be patented, with restrictions upon alienation, as the President or Congress should prescribe. The unselected lands were to be sold, and the proceeds paid over to the Indians. This policy produced, as in the case of the Shawnees, a mixed occupancy of the original Indian territory, and, in consequence, the same difficulties. These difficulties must have been foreseen by the people of Kansas and the general government, but could not have, been within the apprehension of the limited intelligence of the Indians. The basis of the treaty, doubtless, was, that the separation of estates and interests, would so weaken the tribal organization as to effect its voluntary abandonment, and, as a natural result, the incorporation of the Indians with the great body of the people.
But this result, desirable as it may be, has not yet been accomplished with the Wea tribe, and, therefore, their lands cannot be taxed. It is conceded, that the tribal organization is kept up and maintained in the county of Miami, where they live, and where the annuities are paid to them, under the supervision of the Indian agent of the tii e. And it is further conceded, that the chiefs and head men of the tribe, represent it and transact its business, receive fun s from the United States for tribal purposes and disburse it, and that an agent for the tribe resides in the county, wheie he transacts the business of the United States with the tri e through their chiefs and head men. These concessions place the Wea Indians in the same category with the Shaw nees.
It is argued, because the Indians seek the courts o an sas for the preservation of rights and the redress of sometimes voluntarily, and in certain specified cases J rection of the Secretary of the Interior, that they su m themselves to all the laws of the State. But the con uc Indians is not to be measured by the same standar, w we apply to the conduct of other people. Kansas is obliged to confer any rights on them. Because a so policy may dictate the wisdom of treating them, in
Opinion of the court: In the case of the Miamis.
respects, as she treats her own citizens, and thereby weaning them from the ancient attachment to their own customs, they are none the less a separate people, under the protection of the general government. This policy may eventually succeed in disbanding the tribe, but until it does, the Indians cannot look to Kansas for protection, nor can the general laws of the State taxing real estate within its limits reach their property.
But, it is said, the protection promised the Shawnees is not accorded to the Weas, in the treaty of August, 1854. Not so, for in the tenth article, they agree “ to commit no wrong on either Indian or citizen ; and if difficulties should arise, to abide by the laws of the United States in such cases made and provided, as they expect to be protected and have their rights vindicated by those laws.” Did not the government accord to them the protection invoked, by executing the treaty ? It surely did not need that the United States should say in words, we agree to protect you and vindicate your rights. But the 11th article fixes beyond dispute the reciprocal relations of the general government and these Indians. It declares the object of the treaty is to advance the interests of the Indians; and if it should prove ineffectual, “ it was agreed that the President, with the advice and consent of the Senate, should adopt such policy in the management of their affairs as in his judgment should be proper, or Congress might make such provision by law as experience should prove to be necessary.” How far the powers of the President or Congress extend under this article, it is unnecessary to discuss or decide. It is sufficient to say, that eaves the Indians most clearly under the protection of the general government, and withdraws their property from the jurisdiction of Kansas.
In the Case of the Miamis.
We 6 ?^lnciple ^ie Poreg°ing cases of the Shawnee and Th w eS- ^ndian8’ i8 a^so decisive of this controversy, lami tribe hold their head rights in severalty, by vir-
Opinion of the court: In the case of the Miamis.
tue of the provisions of the treaty which was proclaimed by the President on the 4th of August, 1854.*
It is unnecessary to pursue the history of this tribe through the various treaties which have been concluded between them and the United States. It is sufficient to state that they are a nation of people, recognized as such by the general government in the making of treaties with them, and the relations always maintained towards them, and cannot, therefore, be taxed by the authorities of Kansas. Their tribal organization is fully preserved, and they are under the supervision of an agent, who resides in the county where their lands are situated. It is not necessary to decide, until the question arises, what powers have been conferred on Congress, or the President, by virtue of the Uth article of the treaty of 1854, being the same as the 11th article of the Wea treaty. There is, however, one provision in the Miami treaty—being in addition to the securities furnished the Shawnees and Weas—which, of itself, preserves the Miami lands from taxation. This particular provision exempts the lands from “ levy, sale, execution, and forfeiture.” It is argued, that these words refer to a levy and sale under judicial proceedings, but such a construction would be an exceedingly narrow one, whereas enlarged rules of construction are adopted in reference to Indian treaties. In speaking of these rules, Chief Justice Marshall says: “The language used in treaties with the Indians shall never be construed to their prejudice, if words be made use of which are suscepti ble of a more extended meaning than their plain import as connected with the tenor of their treaty.”!
Applying this principle to the case in hand, is it not evi dent that the words “levy, sale, and forfeiture are susceptible of a meaning, which would extend them to the or maij proceedings for the collection of taxes ? Taxes must e levied, and they cannot be realized without the powei sale and forfeiture, in case of non-payment. The posti j it seems to us, is too plain for argument. The objec o
* 10 Stat, at Large, 1093. t 6 Peters’ p. 761treaty was to hedge the lands around with guards and restrictions, so as to preserve them for the permanent homes of the Indians. In order to accomplish this object, they must be relieved from every species of levy, sale, and forfeiture—from a levy and sale for taxes, as well as the ordinary judicial levy and sale.
The judgment of the Supreme Court of Kansas in all three cases was reversed, and the causes remanded, with directions to enter a judgment in conformity with the opinions above given in the several cases.
The New York Indians.
1- Where Indians, being in possession of lands, their ancient and native homes, the enjoyment of which, “without disturbance by the United States,” has been secured to them by treaty with the Federal government, with the assurance that “the lands shall remain theirs until they choose to sell them,” the State in which the lands lie has no power to tax them, either for ordinary town and county purposes or for the special purpose of surveying them and opening roads through them.—The case of The Kansas Indians (supra, p. 737), approved. A statute of a State authorizing a sale of such lands for taxes so laid, is void, even though the statute provide that “ no sale, for the purpose of collecting the tax, shall, in any manner, affect the right of the Indians to occupy the land.” Where Indians, under arrangements approved by the United States, agree osell their lands to private citizens, and to give possession of them at t e expiration of a term of years named, a taxation of the lands before the efflux of the term is premature; even though a sale for the non-payment of the taxes might not take place until after the time when, i they fulfilled their agreements, the Indians would have left the land; and even though any sale would be subject to the proviso named in the preceding paragraph. deed under a sale for taxes, and purporting to convey the lands to the purchaser, even with the qualification of such a proviso as that in the lr paragraph, would, in law, be a disturbance of the Indian tribe.
RRor to the Court of Appeals of New York; the case beingthus: '
I’1 1786, and before the adoption, therefore, of the p. 762Federal Constitution, the State of Massachusetts, which laid claim to four tracts of land in Western New York then occupied by native Indians (Senecas, chiefly), and known respectively as the Alleghany, Cattaraugus, Buffalo Creek, and Tonawanda reservations, entered, at the conclusion of some disputes, into an agreement with the State of New York by which New York ceded to Massachusetts, and her grantees, in fee, the right of pre-emption from those Indians and all estate in the reservations, except jurisdiction and sovereignty, which it was agreed should belong to the State of New York. By the fourth article of this compact New York stipulated thus:
“The said Indian reservations, so long as they shall remain the property of Massachusetts, shall be exempt from all taxes whatever, and no general or State tax shall be charged on the lands o the said reservations thereafter to be granted by Massachusetts, or on the occupants or proprietors of such lands, until fifteen years after the confirmation of such grants in the manner mentioned in the compact; but the said lands, and the occupants thereof, during the said period shall be subject to town and county charges or taxes only.”
Before the adoption of the Constitution, the then United States, and after its adoption, the Federal government, ma e several treaties with these Indians;* the Treaty of Canan daigua, November 11, 1794, being one,| by which the I an in those reservations were acknowledged to belong tot en, the said Indians, and by which it was agreed that the me States would “never claim” the same, nor disturb t e n dians, and that the land should “ remain theirs unti t ey c to sell the same to people of the United States. . .
In 1791 Massachusetts parted with her rights in these r ervations, and the same had, in 1838, become veste den & Fellows. In that year, 1838, a treaty wasmade^- p. 763tween the United States and the Indians, providing for the removal of the latter to the west of the Mississippi River \ and at the same treaty a deed of conveyance was executed between the Seneca nation and Ogden & Fellows in fee, as joint tenants of the four reservations. The treaty provided for the removal of the Indians within five years. It was to become obligatory on the parties only after being proclaimed by the President. And as this proclamation was not made till April 4, 1840, no right (as the treaty was construed by the officers of the Federal government, a construction in which Ogden & Fellows acquiesced) accrued to Ogden & Fellows till April 4, 1845.
Before the expiration of these five years, differences arose between the Indians and Ogden & Fellows, and in order to settle them, a new treaty was made in 1842 between the United States and the Indians; and a deed was executed between Ogden & Fellows and the Indians, by which it was agreed that the Indians should remain in possession of two of the reservations, to wit, the Alleghany and Cattaraugus, with the same right and title in all things that they had possessed before the sale. The tw’o others (the Buffalo Creek and Tonawanda) being, by the deed, ceded to Ogden & Fellows.
The Indians remained in possession accordingly of the two retained reservations.
In 1840, May 9th, the legislature of New7 York passed an act, by which it authorized a highway tax to be assessed upon the Alleghany and Cattaraugus reservations (the two !1 in possession of, and subsequently agreed to be retained y> t e Indians); and the tax was assessed. auth year, May 4th, 1841, the same legislature u 01^zed the assessment of other taxes for making roads pon t ose same two reservations, and on one of the others also’ the Buffalo Creek.
Th^8 contained eight sections.
Count auth°rized the board of supervisors of Erie structy commissioners to lay out, open, and con-the c 8 acros8 ^ie Cattaraugus reservation lying within unty, and the same in respect to the supervisors of the p. 764764 The Kew York Indians. [Sup. Ct.
county of Cattaraugus, over the Alleghany reservation in that county.
The second provided for the survey of these roads by the commissioners, and conferred upon the supervisors the power to direct the repair and improvement of them.
The third provided for raising money to defray the expenses of constructing and repairing the roads, and for the building of bridges, and repairing the same, by levying for the years 1841, 1842, and 1843, on the lands in the Cattaraugus reservation, lying in the county of Erie, the sum of $4000, and on the Alleghany $4000, and on the Cattaraugus, lying within the county of Cattaraugus, $1000 each year.
The fourth provided for the survey and maps of the reservations, with a view to the taxation.
The fifth section provided for the sale of the lands in case of default in the payment of the taxes. It contained, however, this proviso:
“ Provided, That no sale for the purpose of collecting said taxes shall in any manner affect the right of the Indians to occupy sai lands.”
The eighth or last section was thus:
“ The taxes hereby authorized may be imposed, assessed, lev ied, and collected as directed by this act, notwithstanding occupation of the said lands, or parts or portions thereof, by t e dians, or by any other person or persons; and the failure oe tinguish the right of the Indians, or to remove them from sion thereof, shall not impair the validity of said taxes, or pre the collection thereof.”
The act of 1840 did not contain the proviso, above given, to the fifth section of this act of 1841.
Under these acts, the county supervisors assesse ax® the amount of $16,000, or more. One of the trac s wards retained by the Indians (the Cattaraugus), an ’ those agreed at the expiration of the five years to e to Ogden & Fellows, were, in addition to the be cial tax, assessed; also, in 1840, 1841, 1842, an ’ . ordinary town and county taxes. The taxes o no paid, the lands were sold.
Argument in support of the tax.
A case being agreed on, Fellows and others (Ogden being dead) brought suit in the Supreme Court of New York against the controller of the State and the purchaser at the tax sales praying that the assessments might be declared void. That court gave judgment for the defendants; a judgment which the Court of Appeals of the State affirmed. This judgment was now here for review; the question being whether the State of New York had power to tax the Indian reservations in that State, especially the Cattaraugus and Alleghany.
Mr. Martindale, Attorney-General of New York, for the appellees, and in support of the right to tax:
The Indians’ title is a right of occupancy, use, and enjoyment, and not of alienation.* It does not include the whole property in the land. The “ ultimate fee ” to these reservations which carries with it the right of pre-emption, is the real property, and this has hitherto proved far more valuable, in market and in treaties, than the Indian right of occupancy.
Now the assessment of taxes authorized by the law of 841 does not relate to, or affect the Indians’ title. On the contrary, that title—the right of occupancy—is by the 111 section expressly excepted from the operation of the statute.
he taxes were not authorized by the legislature until er t e lands were conveyed by the Indians to our own 1 izens, and after the. purchase had been approved by the g nera government. Under these circumstances, the inim ^le8Uma^ie’ n°t le88 than the intent expressed, was to pose and enforce the tax in respect to the interests rightfully
°Ur G^zens-> an(i it is only on that assumption that the plaintiff has any standing in court.
asaiie ^8e8?ments complained of are made then, in fact, ie right and property of Fellows, to which the treaty
». Nati°n V‘ The State Of Georgia> & deters, 1 ; Worcester p. 766of Canandaigua, 1794, had no relation. His title is, without doubt, liable to taxation by State authority.*
1
In addition, the fourth article of the compact of 1786, between New York and Massachusetts, admits the right to impose town and county taxes, of which class the taxes here laid are.f
Mr. J. H. Reynolds, contra.
Mr. Justice NELSON delivered the opinion of the court.
The principal authority to tax is derived from two acts of the legislature, passed May 9, 1840, and May 4, 1841. As the act of 1840 was held by the court below void as respects these reservations, we will, for the present, dismiss it.
The act of 1841 contains eight sections.
[His honor here stated the first five sections of the act in the words already given on pages 763-4.]
The eighth section provides that the taxes may be assessed, levied, and collected as directed by the act, notwithstanding the occupation of the lands by the Indians. The failure to extinguish the right of the Indians, or to remove them from the possession, shall not impair the validity of said taxes or prevent the collection.
This last section furnishes, doubtless, a solution of what we must otherwise regard as a very free, if not extraor i-nary, exercise of power over these reservations and the rig ts of the Indians, so long possessed and so frequently guaran teed by treaties. These treaties are historical and need no be referred to, beginning in 1784 and coming down to 18 That of 1794, entered into at Canandaigua, New York, may be cited as a specimen. Third article, “ The United ta es acknowledge all the land within the aforementioned onn aries (which include the reservations in question) to e property of the Seneca nation, and the United States never claim the same nor disturb the Seneca nation, • ~ p. 767in the free use and enjoyment thereof; but it shall remain theirs until they choose to sell the same to the people of the United States, who have the right to purchase.”
*
McCulloch v. The State of Maryland, 4 Wheaton, 429; People v. Mayor, &c., of Brooklyn, 4 New York, 426, 427. f See Opinion of Denio, J., in Fellows v. Denniston, 23 Ne Kansas Indians; supra, p. 737; the last preceding case. T0U 49
We will now refer to the explanation of this law, which, it is admitted, is the first (except that of 1840) ever passed by the legislature of New York to tax these Indian reservations.
By the treaty of 1838 the Seneca nation on these reservations agreed to remove to the west of the Mississippi River, and, at the same time, with the consent of the United States, sold their lands to Ogden & Fellows, who held the pre-emp-tive right, derived from Massachusetts, and executed a conveyance of the same. The treaty provided for the removal within five years. It was proclaimed April 4,1840. Before the expiration of the five years, difficulties arose between the grantees and the Indians, which resulted in a new treaty, 20th May, 1842, between the United States and the Seneca nation, when it was agreed that the deed embracing these two reservations should be cancelled, and the Indians remain as before with all their original rights. The words are:
The said nation shall continue in the occupation and enjoyment of the whole of the said two several tracts of land, called the Cattaraugus reservation and the Alleghany reservation, w ith the same right and title in all things as they had and possessed therein immediately before the sale of said reservation.”
Now, it will be seen that this act of New York, which was passe in 1841, was passed at a time when the grantees, under the treaty of 1838, had taken the title in fee, but be-ore t e expiration of the five years. And it was doubtless assume, which we think a mistake, that the whole title ng in the grantees, the State, notwithstanding the posses-ion o t e Indians, might enter upon the reservations in the -- of its internal police powers, and deal with them as tio yny. r portion of its territory. Hence the eighth sec-and tuxes may be imposed, assessed, or levied or th° notwitJ18taoding the occupation of the Indians, ui uie to extinguish their right, or to remove them p. 768from the possession, and declaring that the neglect should not impair the validity of the taxes or prevent the collec tion.
This explanation is due to the character of the State, and removes the inference that might otherwise be drawn, that the legislature were encouraging, if not authorizing, a direct interference by the owners of the right of pre-emption with these ancient possessions and occupations, secured by the most sacred of obligations of the Federal government.
It is provided, however, that the execution of these laws shall not disturb or affect the right of the Indians in their occupation of the reservations, and a clause in the fifth section is referred to as conclusive of this position. “But no sale for the purpose of collecting said taxes shall in any manner affect the right of the Indians to occupy said lands. It is true that this clause undertakes to save this right, which the act of 1840 did.not; but the rights of the Indians do not depend on this or any other statutes of the State, but upon treaties, which are the supreme law of the land; it is to these treaties we must look to ascertain the nature of these rights, and the extent of them.
It has already been shown that the United States have acknowledged thé reservations to be the property of the Seneca nation—that they will never claim them nor distui this nation in their free use and enjoyment, and that they shall remain theirs until they choose to sell them. These are the guarantees given by the United States, and w nc her faith is pledged to uphold. Now we have seen t a this law, taxing the lands in the reservations, authorizes the county authorities to enter upon them, survey an ay out roads, construct and repair them, construct an reP^ bridges, assess and collect taxes to meet the expenses, a survey the lands for the purpose of making the assessme and in pursuance of these powers the proper officers o counties have assessed upon them large sums for t e y 1840, 1841, 1842, and 1843. .
The answer to all this interference with t e pos^e' ’ and occupation, and exercise of authority is, t a
of the lands in default of payment of the taxes shall not “affect the right of occupancy of the Indians.” We are of opinion that this is not a satisfactory answer.
We have looked througho all the treaties from 1784 down to the present time, and find but one of them in which any right is stipulated to enter upon the lands reserved to construct roads. That is the treaty of 1794, in which the Seneca nation cede to the United States the right to make a wagon-road from Fort Schlosser to Lake Erie, as far south as Buffalo Creek.
A clause in the adjustment of the dispute between New York and Massachusetts, in respect to these and other lands, has been referred to, which provides that no general or State tax shall be charged or collected from the lands thereafter to be granted by Massachusetts, or on occupants or proprietors of such lands until fifteen years have elapsed after con-
firmation, &c., “ but that the lands so granted, and the occu-
pants thereof, shall, during the said period, be subject to
town and county charges, or taxes only.” We suppose this
provision had no relation to the Indian occupation, or Indian
occupants, for the two States possessed no power to deal
with Indian rights or title. They were dealing exclusively
with the pre-emption right after the Indian title was extin-
guished, aud with the government and jurisdiction over the
territory. The clause doubtless related to the condition of
e8e lands in case the Indian title should be extinguished
as to the whole or any part of them within the fifteen years’
exemption. At all events, whatever may be the true con-
8 ruction, it can in no way affect the Indian occupants. The
commissioners had no power over them.
he question of the taxation of Indian lands, while in eir tribal organization, by the State authorities, has been and°rf U8term *n 8everal cases from the State of Kansas, ter a very full consideration of the subject the power 38 enied.* We refer to the opinions in these cases as p. 770rendering any further examination of the subject unnecessary.
The tax imposed on the Buffalo reservation in 1840,1841, 1842, and 1843, is not distinguishable from that imposed on the Alleghany and Cattaraugus reservations. The Indians were still in their ancient possessions and occupancy, and till removed by the United States were entitled to the undisturbed enjoyment of them.
On looking into the record it appears that these reservations, besides the special taxation referred to, have been taxed for the years 1840, 1841, 1842, and 1843, for the ordinary town and county charges in each year.
If I understand the opinion of the learned judge of the Court of Appeals, these taxes, as it respects the Buffalo reservation, are sustained on the ground that the Indians had parted with their title to Ogden & Fellows by the treaties and conveyances of 1838 and 1842, and that the whole title wTas in the grantees, though the period for the removal of the Indians had not expired, but would before the sales could take place for default in payment or the purchaser be entitled to the possession.
We have already given the answer which we think satis factory to this ground in support of the judgment below. Until the Indians have sold their lands, and removed from them in pursuance of the treaty stipulations, they are to e regarded as still in their ancient possessions, and are in un der their original rights, and entitled to the un disturb© en joyment of them. This was the effect of the decision in t e case of Fellows v. Blacksmith.* The time for the surren e of the possession, according to their consent given 111 treaty, had not expired when these taxes were levie. period within which the removal was to take place, un the treaty of 1838, was five years from the time it wen in effect. It was not proclaimed till 1840, and under a 1842 the time did not expire till 1846. The taxation o lands was premature and illegal.
It will be seen on looking into the general laws of the State imposing taxes for town and county charges, as well as into the special acts of 1840 and 1841, that the taxes are imposed upon the lands in these reservations, and it is the lands which are sold in default of payment. They are dealt with by the town and county authorities in the same way in making this assessment, and in levying the same, as other real property in these subdivisions of the State. We must say, regarding these reservations as wholly exempt from State taxation, and which, as wTe understand the opinion of the learned judge below, is not denied, the exercise of this authority over them is an unwarrantable interference, inconsistent with the original title of the Indians, and offensive to their tribal relations.
The tax titles purporting to convey these lands to the purchaser, even with the qualification suggested that the right of occupation is not to be affected, may well embarrass the occupants and be used by unworthy persons to the disturbance of the tribe. All agree that the Indian right of occupancy creates an indefeasible title to the reservations that may extend from generation to generation, and will cease only by the dissolution of the tribe, or their consent to sell to the party possessed of the right of pre-emption. He is t ie only party that is authorized to deal with the tribe in respect to their property, and this with the consent of the government. Any other party is an intruder, and may be proceeded against under the twelfth section of the act of 30th June, 1834.*
We are gratified to find that in 1857 the legislature of ew ork passed a law declaring, in substance, that no tax (All i eiea^er assessed on either of the two reservations as th^ ai^ Cattaraugus), or on any part of them, so long all T r^.ma^u ^ie property of the Seneca nation, and that RftnpC 8 ° ^ie ^ate conflicting with the provisions of this action are hereby repealed.]-r conclusion is, that the whole of the taxes assessed upon
* 4 Stat. at Large, 730.
f 1 E. 8. P., 907, ‘i 10.
772 Supervisors v. Schenck. [Sup. Ct
the three reservations (Buffalo Creek, Alleghany, and Cattaraugus), are illegal, and void as in conflict with the tribal rights of the Seneca nation as guaranteed to it by treaties with the United States.
The judgment must therefore be reversed, and the cause remanded, with directions to enter a judgment in conform - ity WITH THIS OPINION.