Allen v. Trimmer, County Treasurer

1914 OK 550, 144 P. 795, 45 Okla. 83, 1914 Okla. LEXIS 244

• Court: Supreme Court of Oklahoma
• Decided: November 17, 1914
• Docket: 4806
• Status: Published

Opinions

BLEAKMORE, J.

Plaintiffs in error, plaintiffs below, began this action in the trial court to restrain the collection of taxes for the years 1909, 1910, 1911, and 1912 upon lands allotted to them from the public domain of the Chickasaw Nation as Chickasaw freedmen, claiming that said lands were exempt from taxation •by virtue of the provisions of laws under which said allotments were made. To review the judgment of the trial court sustaining a demurrer to their petition, this proceeding in error is prosecuted.

These plaintiffs are the former slaves of the Chiekasaws and their descendants. All their rights to the lands allotted to them were acquired under the provisions of certain agreements between the United States and the Choctaw and Chickasaw Tribes of Indians and congressional acts relative to such tribes and their lands.

Determination of the sole question involved — are the lands allotted to Chickasaw freedmen exempt from taxation — requires an examination of such treaties and laws; and lengthy quotations therefrom will necessarily be made.

The treaty between the United States and these tribes proclaimed July 10, 1866 (14 Stat. 769), after declaring that slavery should never exist in said nations, provides:

“Article III. The Choctaws and Chiekasaws, in consideration of the sum of three hundred thousand dollars, hereby cede to the United States the territory west of the 98° west longitude, known as the leased district, provided that the said sum shall be invested and held by the United States, at an interest not less than five per cent, in trust for the said nations, until the legislatures of the Choctaw and Chickasaw Nations respectively shall have made •such laws, rules and regulations as may be necessary to give all persons of African descent, resident in said nations at the date of the treaty of Fort Smith, and their descendants, heretofore held in slavery among said nations, all the rights, privileges, and immunities, including the right of suffrage, of citizens of said nations, except in the annuities, moneys, and public domain claimed by, or belonging to, said nations respectively; and also to give to such persons who were residents as aforesaid, and their descendants, forty acres each of the land of said nations on the same terms as the Choctaws and Chickasaws, to be selected on the survey of said land, after the Choctaws and Chickasaws and Kansas Indians have made their selections as herein provided; and immediately on the ■enactment of such laws, rules, and regulations, the said sum of three hundred thousand dollars shall be paid to the said Choctaw and Chickasaw Nations in the proportion of three-fourths to the former and one-fourth to the latter, — less such sum, at the rate of one hundred dollars per capita, as shall be sufficient to pay such' persons of African descent before referred to as within -ninety days after the passage of such laws, rules, and regulations shall elect to remove and actually remove from the said nations respectively. And should the said laws, rules, and regulations not be made by the legislatures of the said nations respectively, within two years from the ratification of this treaty, then the said sum of three hundred thousand dollars shall cease to be held in trust for the said Choctaw and Chickasaw Nations, and be held for the use and benefit of such of said persons of African descent as the United States shall remove from the said territory in such manner as the United States shall deem proper, — -the United States agreeing, within ninety days from the expiration of the said two years to remove from said nations all such persons of African descent as may be willing to remove; those remaining or returning after having been removed from said nations to have no benefit of said sum of three hundred thousand dollars, or any part thereof, but shall be upon the same footing as other citizens of the United States in the said nations.”

Prior to 1897 various acts were passed by the Chickasaw Legislature relative to their freedmen, pursuant to the treaty of 1866; ■supra, none of which became effective, not being approved by the proper authority of the United States, and therefore have no important bearing on the question here involved.

By section 29 of the agreement between the United States-and the Choctaw and Chickasaw Tribes of Indians of date April 23, 1897,' and ratified and confirmed by the act of June 28, 1898 (known as the Atoka Agreement, 30 Stat. 505, c. 517), it is provided :

“That all the lands within the Indian Territory belonging to the Choctaw and Chickasaw Indians shall be allotted to the members of said tribes so as to give'each member of these tribes so far as possible a fair and equal share thereof, considering the character and fertility of the soil and the location and value of the lands. ■‡ Í $ .

“That the Commission to the Five Civilized Tribes shall make ■a correct roll of Chickasaw freedmen entitled to any rights or benefits under the treaty made in eighteen hundred and sixty-six between the United States and the Choctaw and Chickasaw Tribes •and their descendants horn to them since the date of said treaty, and forty acres of land, including their present residences and improvements, shall be allotted to each, to be selected, held, and used by them until their rights under said treaty shall be determined, In- such manner as shall hereafter be provided by act of Congress.

“That the lands allotted to the Choctaw and Chickasaw ,f reed-men are to be deducted from the portion to be allotted under this ■agreement to the members -of the Choctaw and Chickasaw Tribes sq ,as to reduce the allotment to the Choctaws and Chickasaws by the .value of the.same. ■

; “That the said Choctaw and Chickasaw freedmen who may be entitled to allotments of forty acres each shall be entitled each to ■land equal in value to forty acres of the average land of the two nation's. * * *

“All the lands allotted shall be nontaxable while the title remains in the original allottee, but not to exceed twenty-one years from date of patent, and each allottee shall select from his alloU ■menf á homestead of 'one hundred and sixty acres, for which he shall have a separate patent, and which shall be inalienable for twepty-one years from date of patent. This provision shall also apply to the Choctaw and Chickasaw freedmen to the extent of his allotment. Selections for homesteads for minors to be made as provided herein in case of allotment, and the remainder of the lands allotted to said members shall be alienable for a price to be actually paid, and to include no former indebtedness or obligation — one-fourtb of said remainder in one year, one-fourth in three years, and the balance of said alienable lands in five years from the date of the patent.”

By the terms of the agreement between the United States and thé Choctaw .and Chickasaw Nations, made on the 21st of March, 1902, and ratified and confirmed by the act of July 1, 1902, c. 1362, 32 Stat. 641, known as the “Supplemental Agreement,” it is further provided:

“There shall be allotted to each member of the Choctaw and Chickasaw Tribes, as soon as practicable after the approval by the Secretary of the Interior of his enrollment as herein provided, land equal in value to three hundred, and twenty acres of the average allottable land of the Choctaw and Chickasaw Nations, and to each Choctaw and Chickasaw freedman, as soon as practicable after the approval by the Secretary of the Interior of his enrollment, land equal in value to forty acres of the average allottable land of the Choctaw and Chickasaw Nations; to conform, as nearly as may be, to the areas and boundaries established by the government survey, which land may be selected by each allottee so as to include his improvements. * * ' *

“13. The allotment of each Choctaw and Chickasaw freedman shall be inalienable during the lifetime of the allottee, not exceeding twenty-one years from the date of certificate of allotment. * * * '

“15. Lands allotted to members and freedmen shall not be affected or incumbered by any deed, debt, or obligation of any character contracted prior to the time at which said land may be alienated under this act, nor shall said lands be sold except as herein provided.”

The same agreement provides as follows:

“36. Authority is hereby conferred upon the Court of Claims to determine the existing controversy respecting the relations of the Chickasaw freedmen to the Chickasaw Nation and the rights of such freedmen in the lands of the Choctaw and Chickasaw Nations under the third article of the treaty of eighteen hundred and sixty-six, -between the United States and the Choctaw and Chickasaw Nations, and under any and all laws subsequently enacted by the Chickasaw Legislature or by Congress.

“37. To that end the Attorney General of the United States is hereby directed, on behalf of the United States, to file in said Court of Claims, within sixty days after this agreement becomes effective, a bill of interpleader against the Choctaw and Chickasaw Nations and the Chickasaw freedmen setting forth the existing controversy between the Chickasaw Nation and the Chickasaw ■freedmen and praying that the defendants thereto be required to interplead and settle their respective rights in -such suit. * * *

“39. The Choctaw and Chickasaw Nations, respectively, may in the manner prescribed in sections twenty-one hundred and three to twenty-one hundred and six, both inclusive, of the Revised Statutes, employ counsel to represent them in such suits ■and protect their interests therein; and the- Secretary of the_ Interior shall employ competent counsel to represent the Chickasaw freedmen in s-aid suit and to protect their interests therein; and the compensation of counsel so employed for the Chickasaw freedmen, including all costs of printing their briefsi and other incidental expenses on their pa/rt, not exceeding six thousand dollars, ■shall be paid otit of the Treasury of the United States. * * *

“40. In the meantime the Commission to the Five Civilized Tribes shall make a roll of the Chickasaw freedmen and their descendants, as provided in the Atoka Agreement, and shall make allotments to them as' provided in this agreement, which said ■allotments shall be held by the said Chickasaw freedmen, not as temporary allotments, but as final allotments, and in the event that it shall be finally determined in said suit that the Chickasaw freedmen are not, independently of this agreement, entitled to allotments in the Choctaw and Chickasaw lands, the Court of Claims shall render a decree in favor of the Choctaw and Chickasaw Nations according to their respective interests, and against the United States, for the value of the lands so allotted to the Chickasaw freedmen as ascertained by the appraisal thereof made by the Commission to the Five Civilized Tribes for the purpose of allotment, which decree shall take the place of the said lands and shall be in full satisfaction of all claims by the Choctaw and Chickasaw Nations against the United States or the said freedmen on account of the taking of the said lands for allotment to said freedmen: Provided, that nothing contained in this paragraph shall be construed to affect or change the existing status or rights of the two tribes as between themselves respecting the lands taken for allotment to freedmen, or the money, if any, recovered as compensátion therefor, as aforesaid.”

In the case of United States v. Choctaw Nation et al., 38 Ct. Cl. 558 .(the action provided for under the terms of the act of July 1, 1902, supra,) the Court of Claims, after quoting the provisions of the treaties and acts of Congress above set forth, used this language:

There is apparent reason to say that by the agreement and act of June 28, 1898 (30 Stat. 506), the previous act of Congress, by which the act of adoption was approved, was ratified by the Chickasaw Nation, wherein it is provided that the commission shall make a correct roll of the freedmen entitled to any rights under the treaty in question, and that 40 acres of land, including their present residence and improvements, shall be allotted to each of them and such lands so allotted to■ the freedmen to be deducted, so as to reduce the allotment to the Indians by the value of the same. This allotment to the freedmen is, however, qualified by the further provision that the lands so allotted shall be held and used by the freedmen until their rights under the treaty shall be determined, in such manner as shall thereafter be provided by Congress. This provision could not refer to anything but the then existing and now present controversy, and was a direct recognition by Congress of the denial of the rights of the freedmen to the lands then proposed to be allotted to them, and an express saving of the rights of the Chickasaw defendant to insist upon its present contention in that respect; and by the act of March, 1902, Congress did provide for the determination of the rights of the freedmen under the treaty, as portended in the act of June 28, 1898. It follows therefore that the rights of the parties under article 3 of the treaty of July 10, 1866, remain unaffected by subsequent legislation, either of the Chickasaw Nation or Congress, and the relations of the Chickasaw freedmen to the Chickasaw Nation, and the rights of such freedmen in the lands of the Choctaw and Chickasaw Nations under the third article of the treaty in question are to be determined and declared according to its terms.”

Again it is held in said opinion:

“The Chickasaws have not, as has already been stated, adopted the freedmen into their nation. The negroes have remained in the nation. It does not appear they, or any of them, were willing to remove from the nation, and the United States, not having obligated itself to do so, was under no duty to- remove them without their consent. We must presume the freedmen voluntarily remained, and still so remain in the nations. Their status is therefore plainly defined by the treaty itself. Their relation to the Chickasaw Nation is, as the treaty expresses, the same as citizens of the United States in the nation, and that 'being true, they have no right or interest, under the terms of the treaty, independently of the agreement of March 21, 1902, in any of the property held in common by the members of the nation. Neither are those of the freedmen who remain within the nation entitled to any part of the funds in the control of the United States.”

In the decree of the Court of Claims in said case it is held:

“It is therefore ordered, adjudged, decreed, and declared by the court that, under and by virtue of the third article of the said treaty of July 10, 1866, independently of the agreement made March 2, 1902, and ratified and confirmed July 1, 1902, the relations of the said Chickasaw freedmen to the Chickasaw Nation are that of citizens of the United States residing in the said nation, and that the said Chickasaw freedmen, under the said article of the said treaty, independently of the agreement and act aforesaid of 1902, have no rights in the lands of the Chickasaw Nation, nor are they, or any of them, under said article, entitled to allotments in the lands of the said Chickasaw Nation.”

On anpeal to the Supreme Court of the United States, in said case (United States v. Choctaw Nation et al., 193 U. S. 115, 24 Sup. Ct. 411, 48 L. Ed. 640), that court, after quoting at length from the agreements and statutes herein referred to and the decree of the Court of Claims, uses the following language:

“It is urged that the negroes became free by the emancipation proclamation and the thirteenth amendment to the Constitution of the United States, and acquired thereby all the rights of freedmen. That may be granted, but what is its 'consequence? Certainly not to invest the freedmen with any rights in the prop erty, or to participate in the affairs of their former owners. Eor such rights we must look to the treaty and subsequent legislation and, to a certain extent, to the act which gave jurisdiction of this suit to the Court of Claims. * * *

“The treaty is clear. The Indian nations were to receive the $300,000 if they conferred upon the freedmen the rights expressed in the treaty. Failing to confer those rights, that sum was to be held in trust for all such freedmen, and only such freedjnei% vas should remove from the territory. 'Tim treaty was nob complied with either by the Indians or the United States. .No rights were conferred upon the freedmen; no freedmen were removed, and the statutes were enacted and the agreements were made that we have described. But those statutes and the agreements gave no rights to the freedmen■ The only explicit provision for the freedmen was the allotment of 40 acres of land to. each of them. They claim to be beneficiaries of the $300,000, but the disposition of that under the treaty was to be in the United States, and only to be used for freedmen who should -remove from the territory. None have removed. There is an intimation in the brief of their counsel that in their memorials to Congress they expressed a willingness to remove, but Congress did not choose, and has not chosen, to remove them; indeed, had provided for the exact opposite — provided for the allotment of homes to them out of the lands of the Indians, and for payment to the Indians therefor if it should be determined, in this suit, that the freedmen were not, independently of that agreement, ‘entitled to allotments in the Choctaw and Chickasaw lands.’

“As we hold the freedmen were not so entitled, the decree of the Court of Claims is affirmed.”

By Act of Congress of May 27, 1908 (35 Stat. 312, e. 199), it is provided:

“That from and after sixty days from the date of this act the status of the lands allotted heretofore or hereafter to allottees of the Five Civilized Tribes shall, as regards restrictions on aliena-; tion or incumbrance, be as follows: All lands, including homesteads, of said allottees enrolled as intermarried whites, as freedmen, and as mixed-blood Indians having less than half Indian blood including minors shall be free from all restrictions.”

By section 4 of said act it is further provided:

“That all land from which restrictions have been or shall be removed shall be subject to taxation and all other civil burdens as though it were the property of other persons than allottees of the Five Civilized Tribes.”

Plaintiffs contend that the lands allotted 'to them are exempt from taxation by virtue of the provisions of the Atoka Agreement that:

“All the lands allotted shall be nontaxable while the title remains in the original allottee, but not to exceed twenty-one years from date of patent, and each allottee shall select from his allotment a homestead of one hundred and sixty acres, for which he ■shall have a separate patent, and which shall be inalienable for twenty-one years from date of patent. This provision shall also apply to the Choctaw and Chickasaw freedmen to the extent of his allotments.”

It is asserted that the plaintiffs are upon an equality with, and possess the same rights and immunities with regard to their lands as do Indians; that the grant to them of nontaxable lands is the same as that to the Choctaw and Chickasaw Indian allottees, founded upon the same treaty stipulations, and, if consideration is necessary, upon the same ■consideration. It is claimed that the holding of the United States Supreme Court in the case of Choate v. Trapp, 224 U. S. 665, 32 Sup. Ct. 565, 56 L. Ed. 941, is decisive of the question favorable to this contention. In that case the court, after a resume of the treaty provisions, says:

“The question in this case, therefore, is not whether the plaintiffs were parties to the Atoka Agreement, but whether they had not acquired rights under the Curtis Act which are now protected by the Constitution of the United States.

“The individual Indian had no title or enforceable right in the tribal property. But as one of those entitled to occupy the land he did have an equitable interest, which Congress recognized, and which it desired to have satisfied and extinguished. The Curtis Act was framed with a view of having every such claim satisfactorily settled. And although it provided for a division of the land in severalty, if offered a patent of nontaxable land only to those who■ would relinquish their claim in the other property of the tribe formerly held for their common use. For the Atoka Agreement, after declaring that ‘all land allotted should be nontaxable,’ stipulated further that each enrolled member of the tribes should receive a patent framed in conformity with the agreement, and that each Choctaw and Chickasaw who accepted such patent should be held thereby to assent to the terms of this agreement, and to relinquish all of his right in the property formerly held in common.

“There was here, then, an offer of nontaxable land. Acceptance by the party to whom the offer was made, with consequent relinquishment of all claim to other lands, furnished a part of the consideration, if, indeed, any was needed, in such a case, to support either the grant or the exemption. Wisconsin & M. R. Co. v. Powers, 191 U. S. 386, 24 Sup. Ct. 107, 48 L. Ed. 231; Home of the Friendless v. Rouse, 8 Wall. 437, 19 L. Ed. 497; Tomlinson v. Jessup, 15 Wall. 458, 21 L. Ed. 205. Upon delivery of the patent the agreement was executed, and the Indian was thereby vested with all the right conveyed by the patent, and, like a grantee in a deed poll, or a person accepting the benefit of a conveyance, bound by its terms, although it was not actually signed by him. Keller v. Ashford, 133 U. S. 621, 10 Sup. Ct. 494, 33 L. Ed. 672; Hendrick v. Lindsay, 93 U. S. 143, 23 L. Ed. 855.

“As the plaintiffs were offered the allotments on the conditions proposed, as they accepted the terms and, in the relinquishment of their claim, furnished a consideration which was sufficient to entitle them to enforce whatever Tights were conferred, we are brought to a consideration of the question as to what those rights were.”

From the language used in the Trapp case, it will be seen that plaintiffs’ claim that the grant to the freedmen of nontaxable land was by the terms of the Atoka Agreement made 'to them the same as to the Indian allottees is untenable. The freedmen did not have an equitable interest in the tribal property. They had no lawful claim to any of the lands or property of the tribe which it was necessary to satisfy or extinguish. The offer of a patent of nontaxable land being made “only to those who would relinquish their claim in the other property of the tribe formerly held for their common use” was not extended to these freedmen, and could not have included them. They were not embraced within the class of persons who could accept such offer by relinquishing any right in the property of the tribe formerly held in common. They had no such right. As was held by the Court of Claim's:

“Their (the Chickasaw freedmen) relation to the Chickasaw Nation is, as the treaty expresses, the same as citizens of the United States in the nation, and, that being true, they have no right or interest, under the terms of the treaty, independently of the agreement of March 21, 1902, in any of the property held in common by the members of the nation.” And “that the rights of the parties (the Chickasaw freedmen) under article 3 of the treaty of July 10, 1866, remain unaffected by subsequent legislation, either of the Chickasaw Nation or Congress.”

The freedmen were not parties to' any treaty between the United States and the Indian tribes; and no provision contained in any agreement between the United States and the Choctaw and Chickasaw Tribes was ever carried into effect by which any rights were conferred upon, or property vested in, such freedmen, save alone by the provisions for allotment of lands to them contained in the Supplemental Agreement of 1902.

Had the supplemental treaty of 1902 provided for judicial determination of the rights of such freedmen, as it did, and failed to provide for allotments of land to them, the decision of the Court of Claims, supra, would have left them without land, and certainly without their present claim of tax exemption.

The liberal rule of construction recognized by the courts, whereby the language used in treaties and laws dealing with the •affairs of Indians is never construed to their prejudice, but, if doubtful, in their favor, finds no place in the law where only the rights of persons other than Indians are to be considered. •

According to the terms of the Atoka Agreement, all lands allotted to members of the tribes shall be nontaxable for a speci fied period while the'title remains in the original allottee; and “this provision shall also apply to the Choctaw and Chickasaw freedmen to the extent of his allotment.” What was the extent of his allotment under the terms of that agreement? It is therein provided that:

“Forty acres of land including their present residences and improvements, shall be allotted to each, to be selected, held, and used by them until their rights under said treaty (1866) shall be determined, in such manner as shall hereafter be provided 'by Act of Congress.”

Clearly the extent of this proposed allotment to the freedmen was only the right to hold and use 40 acres of land dependent upon the future action of Congress. No title to such land vested in the freedmen by virtue of this provision; nor, indeed, is it urged that it was intended thereby to convey the title to such lands.

It would require a most unnatural construction of the terms of the Atoka Agreement to hold that it was the • intention ol Congress to extend the grant of tax exemption therein made to allotments other than those it contemplated and provided for. Had subsequent legislation enlarged upon the same grant of lands made to the freedmen by the Atoka Agreement, and had allotments actually been made to them thereunder (such as were made to Indian allottees), then it might with reason be said that the tax exemption granted by the terms of said agreement was continued and extended so as to embrace freedmen allotments. Rut no allotments were made to freedmen under the Atoka. Agreement. Such allotments were made under the terms of, and “as provided” in, the Supplemental Agreement. The allotments to freedmen under the provisions of the Supplemental Agreement were to an entirely different class of allottees than those contemplated by the Atoka Agreement. The freedmen allottees referred to in the Atoka Agreement are those who possessed rights to the Indian lands under the treaty of 1866. The freedmen provided for under the Supplemental Agreement are allottees to whom lands are given thereby regardless of their right under any other treaty or law. The tenure of the lands granted by the two agreements is entirely different. By the Atoka Agreement there is granted a mere tenancy at the will of Congress; by the Supplemental Agreement title in fee simple.

The Supplemental Agreement made no provision for allotments to members of the Choctaw and Chickasaw Tribes of Indians under a status different from that occupied by them under the terms of the Atoka Agreement. “As members of the tribe,” they were entitled to share in the tribal lands. Not so with the freedmen. Under the Atoka Agreement Chickasaw freedmen were to have temporary allotments of land, the title to which depended solely upon the future determination of the question as to whether they had theretofore been adopted by the Chickasaws pursuant to the provisions of the treaty of 1866. By the terms 'of the Supplemental Agreement a new and entirely different condition as to the Chickasaw freedmen was created. Allotments were to be made to them regardless of their adoption by the Indians or their rights under any former treaty or law; that question being referred to the appropriate court for determination. Had allotments been made to these freedmen under the terms of the Atoka Agreement, “to be held and used by them until their rights under the treaty of 1866 was determined,” all their right, title, and interest in and to the lands allotted to them would have been divested by the decision of the Court of Claims. Except fox the Supplemental Agreement of 1902, they would have occupied the same status as other United States citizens resident in the ’Chickasaw Nation, for whom no allotment of land has been provided. The sole right of these plaintiffs to allotments of land in the Chickasaw Nation being acquired by the provisions of the Supplemental Agreement, we must look alone to its terms for the exemption claimed. Nowhere in said act is there found, either by express language, or necessary implication, a grant of exemp tion from taxation; nor do plaintiffs assert that such grant was made under any provision of that act.

Under the terms of the Supplemental Agreement, the only authority of the Commission to the Five Civilized Tribes with reference to Chickasaw freedmen was to make a roll or census of them, as provided in the Atoka Agreement, “and to make allotments of land to them as provided in the Supplemental Agreement.” The Supplemental Agreement was ratified and confirmed by the tribes on September 25, 1902; but.no allotments were made to either Indians or freedmen until April, 1903.

The Supreme Court of the United States having said in Choate v. Trapp, supra, that “the question in this case, therefore, is not whether the plaintiffs (Choctaw and Chickasaw Indians) were parties to the Atoka Agreement, but whether they had not acquired rights under the Curtis Act which -are now proteeled by the Constitution of the United States,” and the Court of Claims in determining the controversy respecting the relations of the Chickasaw freedmen to the- Chickasaw Nation and the rights of such freedmen in the lands of the Choctaw and Chickasaw Nations under the third article of the treaty of 1866, subsequent treaties and laws, having held that “such freedmen, independently of the Supplemental Agreement of 1902, were not entitled to allotments in the Choctaw and Chickasaw lands,” it necessarily follows that these freedmen are precluded from asserting any right, title, or interest in or to their allotted lands under or by virtue of the Curtis Act or any treaty or law other than the said Supplemental Agreement. The decision of the Court of Claims, affirmed by the Supreme Court of the United States, conclusively determines the status and rights of the Chickasaw freedmen, and is binding on the courts of this state.

The rule is well established that, where land is granted by a particular act, a tax exemption asserted under a prior act will not be upheld. Armstrong v. Treasurer of Athens County, 16 Pet. 281, 10 L. Ed. 965; Lord v. Town of Litchfield, 36 Conn. 117, 4 Am. Rep. 41; Southwestern R. R. Co. v. Wright, 116 U. S. 231, 6 Sup. Ct. 375, 29 L. Ed. 626; Wilmington & Weldon R. R. Co. v. Alsbrook, 146 U. S. 279, 13 Sup. Ct. 72, 36 L. Ed. 972; Ford v. Delta & Pine Land Co., 164 U. S. 662, 17 Sup. Ct. 230, 41 L. Ed. 590; Platt v. Rice, 10 Watts (Pa.) 352.

It is also claimed that, as a consideration for obtaining a nontaxable grant of land, these freedmen, as potential taxpayers, by the terms of the Supplemental Agreement, were induced to expend their money in the litigation therein provided for in the Court of Claims.

Not so. In that litigation the fees of their counsel, all costs, and the incidental expenses were paid out of the treasury of the United States. But even if the purpose of such litigation was to determine whether these freedmen should obtain a nontaxable grant of land, the adverse decision of the Court of Claims would render their contention untenable.

It is a well-established rule that a grant of exemption from taxation is never presumed; but, on the contrary, in all cases of doubt as to the legislative intent (except,'perhaps, where the rights of Indians are involved), the presumption is in favor of the taxing power. Wells c. Savannah, 181 U. S. 531, 21 Sup. Ct. 697, 45 L. Ed. 986; Tucker v. Ferguson, 22 Wall. 527, 22 L. Ed. 805; Delaware Railroad Tax Case, 18 Wall. 206, 21 L. Ed. 888; Hoge v. Railway Co., 99 U. S. 348, 25 L. Ed. 303; Vicksburg R. R. Co. v. Dennis, 116 U. S. 665, 6 Sup. Ct. 625, 29 L. Ed. 770; Pickard v. Tennessee, 130 U. S. 637, 9 Sup. Ct. 640, 32 L Ed. 1051; Wilmington, etc., R. Co. v. Alsbrook, 146 U. S. 279, 13 Sup. Ct. 72, 36 L. Ed. 972.

In view of the foregoing, we conclude that no grant of exemption from taxation was extended or made to plaintiffs in 'error, and therefore the judgment of the trial court should be affirmed, and it is SO' ordered.

LOOFBOUBBOW and BIDDLE, JJ., concur. KANE, C. J., and TTTBNEB, J., dissent.