Blue-Jacket v. Commissioners of Johnson County

3 Kan. 299

• Court: Supreme Court of Kansas
• Decided: February 15, 1865
• Status: Published

Opinion

By the Court,

Crozier, C. J.

The questions involved in this case have been twice ably and fully argued at the bar, and the court ha's given to them much anxious reflection. They are in their nature very important and delicate, involving the ascertainment of the boundary between the powers and functions of the national and state governments. The case itself is sui generis. The books, so far as the research of counsel, and a thorough examination by the court have enabled them to determine, disclosing nothing like it; some of the principles involved have been adjudicated, and may be considered as settled and fixed, while others have never undergone judicial discussion and still remain to be decided from a mass of disquisitions extending over the whole period from the adoption of the federal constitution to the present time. Under such circumstances, and considering the great pecuniary interest, both state and individual, to be affected by the decision, it would be the purest affectation on the part of the court to disclaim all embarrassment in coming to a conclusion. However much courts may have been disposed to avoid a determination of grave questions by seeking for technical grounds upon which to place decisions in other cases, such a course in this instance would be wholly inexcusable. The main question is fairly put and no matter what the embarrassment, must be answered. "We shall endeavor to do so.

All the property in the state, except such as is specifically exempted by the state constitution, and such as is exempt under the federal constitution and the laws and treaties made in pursuance thereof is subject to taxation. It is not claimed that the property in question is within the former exemption, but it is claimed that it is within the latter. The language of the state constitution and of the act of the legislature made to carry into effect its provisions, is broad enough to include this land as taxable property, and does include it, unless controlled by paramount law. Tiie claim is that it is so controlled. The federal constitution, the laws of the United States made in pursuance thereof, and alí treaties made under the authority of the United States are the supreme law of the land; and any state law, whether organic or legislative, which shall be in conflict with any of them, must yield to and be controlled by them, as the paramount law; such is the national compact, and no considerations of local policy or notions of state sovereignty can operate to dissolve it. If, in the case at bar, it shall appear that the state authorities are attempting to defeat the constitutional action of the general government, it is as clearly the duty of this court to arrest the farther prosecution of such attempt as it would be for the national court so to do, had the suit been brought therein. If, by the constitution or laws of the United States, or by the treaty with the Shawnees the property in question is exempted from taxation, such exemption must be adjudged to be effectual. The law of the state is, to that extent, controlled thereby. It was the purpose of counsel for the plaintiffs to show that the property was so exempted ; and the argument was devoted to the establishing of these two propositions: First, the title to the laud is in the United States ; and second, the state has no power to tax the property of the Shawnee Indians. These will be considered in the order stated.

First, If the title to the lands be in the United States, they are not taxable. Not only are the lands of the general government exempted from taxation by express stipulation on the part of the state, but without such agreement they would not be liable to be taxed. The rrevocable ordinance of the legislature is merely the expression of what the law would have been without it. What, then, 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 ?

The patent in terms conveys the lands in fee simple, and contains a restriction “ that said lands shall never be sold or conveyed by the grantee or his heirs without the consent of the Secretary of the Interior for the time being.” It is contended that this gives to the Shawnees nothing more than the ordinary Indian title, i. e. the right of perpetual use and possession, the ultimate fee remaining in the government. Where a district of country is held in common by an Indian tribe with or without a patent in fee simple, issued in pursuance of a treaty which does or does not provide that the government alone shall have the right to purchase from them, it has been repeatedly determined that all the title the Indians have to the land is the mere right of perpetual possession and enjoyment, The technical words of the patent or treaty, although sufficient as between individuals, or as between individual white men and the government to convey the absolute fee simple, have in the case indicated the effect stated. The Shawnees, prior to the treaty of May 10th, 1854, held the land ceded by that instrument under a patent containing as strong words of grant as could be found in the legal vocabulary, had the intention been to vest in them the most complete title known to the law; yet under the decision, they took but the mere usufruct, and this much they could not legally convey except to the government, or by the consent of the government. Hence it is argued, although these lands are held in severalty, that because there is a restriction upon the power of alienation by the patentee, without the assent of the gov-. eminent, expressed through the Secretary of the Interior, that the title is the same that the Shawnees have, the mere Indian title, the fee being still in the government. If the fact that these lands are held in severalty cannot affect the question, the position of the counsel is invulnerable. But this would be assuming the very question in controversy.

. It is not material to inquire whether the title of the Shawnees would be correctly described by the technical terms, “ fee simple.” It may be that some of the essential requisites as applied to conveyances from one individual to another, are wanting. The true test is, what was the intention of the parties, as derivable from the treaty and the provisions of the patent, all taken together, considered with reference to circumstances existing at the time they were made and issued. If that can be ascertained from these sources, it must prevail. Let us see then if it can be discovered. The j>olicy of the government has been to induce the Indians to abandon their mode of life as hunters and warriors, and to cultivate in them a taste for, and aid them in adopting the pursuits and manners of civilization. To this end enlightened missionaries have been encouraged to live among them as teachers, and the vicious of the white race, have, so far as was practicable, been excluded from their country. They have been furnished with agricultural implements and taught the use of them. Traders and merchants have been permitted to live among them and furnish them with supplies, so that they need not depend upon the spoils of war, or rely upon the uncertain success of the chase for the necessaries of life. The white race became too strong for them to cope with in war, and it was inevitable that it would soon spread itself over the country occupied by the Indians, thereby destroying its characteristics as hunting grounds, the result of which would be, that the red men must either learn to extract a subsistence from the soil or become a race of squalid paupers. Hence the propriety of the course pursued by the government in regard to these people. The effect 'of this policy is seen in many instances. The nationalities of some of the tribes most ferocious in history has become extinct, the members thereof constituting a worthy portion of the great body politic, undistinguishable from the great mass, except in color of texture. They may, with many keen regrets, look back to the palmy days of their national glory, when they were the owners and independent rulers of a continent, deploring witli deep sorrow their present hmnble condition; yet however much we may honor such patriotic emotions, we cannot wish the situation otherwise.

The same policy is still being pursued by the government ; and who can doubt its object or result. Its earmarks are distinctly visible in the treaty with the Shawnees. They constitute no exception to the general rule. Their rise in civilization, is surely at best, slowly working the destruction of their nationality. Nationally considered they are being “ killed with kindness.” Can it be doubted that the treaty of May 10th, 1854, was intended as a step forward in the business ?

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 thorn 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. Attrition with the white race has not operated to polish down the roughness of their original rude character. Labor is their horror, and thrift and comfort are alike despised. 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. If suffered to remain in its then condition, it must continue to be a vast waste in the most desirable part of the territory the government was then about to open to settlement, unrelieved but by the scattering improvements of the more thrifty. Good policy dictated that the portion of these lands which under the circumstances must soon become wholly useless to the Indians as a home, 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 immediate steps were taken for an amicable arrangement. It was the opinion of the Shawnees that one-eighth of the lands they were occupying, would -under the circumstances then surrounding them, and in view of the inevitable condition of things in the immediate future, be sufficient for their purposes. This would be about two hundred acres for each member of the tribe. Some of them desired to hold their portions in severalty, others in common; and others still, who were incompetent to determine for themselves, or absent, were to be provided for. The remaining fourteen hundred thousand acres they were willing the government should have at a fair price, and to carry into effect these views the treaty of May 10th, 1854, was made.

By that treaty the Shawnees cede to the United States the whole of their reservation containing about sixteen hundred thousand acres, in consideration, of which the government re-cedes to them two hundred thousand acres, and promises to pay them eight hundred and twenty-nine thousand dollars in money. These two hundred thousand acres were to be selected, except in a few instances, within thirty miles of the Missouri line. It was competent for the Indians, had they seen proper so to do, to have selected the whole in a compact body and held them in common. Had they done so, no patents would have been issued to them, and their title would have been at least the Indian title as above defined. But it was not expected that course would be taken by them. It is apparent from the provision of the treaty, that some of them desired to hold their shares in severalty, and that such arrangement was in accordance with the views of the government, and the sequel shows that result to have been realized. Among the more civilized and thrifty of them such a desire was a very natural one. If they by their skill and industry should make, or had made the portion they occupied more desirable and more valuable, they, as against the trifling and indolent portion of the tribe, would be equally entitled to the resulting benefits. This could but be accomplished by their holding their shares in severalty, and such was the course they pursued. When the Indian, in pursuance of the treaty, made his selection of lands to be held by himself in severalty, the title of the tribe, so far as the lands selected were concerned, vested in him. That is, he took the right of perpetual use and occupation. Had it been the intention of the framers of the treaty that he should not acquire a greater title, further provision was wholly unnecessary, but further provision was in fact made. The tribe agreed that under proper restrictions for the protection of the patentees, the government might issue patents for the lands. What was the object of this provision ? It was hot to enable the government to convey the ultimate title. That it would have a right to do without the consent of the tribe. It was competent, however, for them to agree that when it should be done, it should be done in such manner as to afford proper protection to the Indian in the enjoyment of his lands. It was feared, probably, that some of the patentees might be overreached by their more shrewd and better educated white neighbors, and be deprived of their lands without adequate compensation. Hence the propriety of the stipulation referred to. No time was fixed for the issuing of the patents. The government could select its own time. It was bound to nothing except, that when it did take action in the premises, it should see that tbe Indians were properly protected. In a little less than five years from'the date of the treaty, viz : on the 3d of March 1859, Congress provided for issuing the patents ; we have already found that from the time the selections in severalty were made, the individual Indians had the Indian title to the lands so selected; patents were not necessary to vest in them that title, something else must have been intended. It'cannot be presumed that nothing whatever was intended to be accomplished by the solemn act of Congress in providing for the issuing of patents, and the equally solemn action of the executive department of the government in issuing them. Nothing remained in the government but the ultimate titles and the ordinary mode adopted by tbe 'government for conveying that to individuals is by patent in fee simple. Must not the conclusion then, be irresistible and 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 consent of the government, the whole consideration of 'the sale goes to the Indian.

In all this, the general policy of the government as hereinbefore indicated, is exemplifiéd in a striking manner. Those of the Shawnees who had become partially civilized, were to be placed in'situations favorable to further advancement, it not being doubted on the part of the government that they would still pi’ogTess in that direction and soon be in a condition to dispense wholly with its guardianship.

The effect of the restrictions in the patent remain to be considered. It need not be argued that it does not operate as a condition; an attempt by tbe 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,'hot affecting his title'in any way. It is'not a limitation upon the title, because we have seen that the whole title of the government passed when the patent issued. In a like case Justice McLean held that the restriction operated to place upon the Indian a personal disability similar to that imposed by law upon a minor. (Lowry v. Weaver, 4 McLean, 82.) Were it not for this restriction there being no other prohibition, Charles BlueJacket might convey his land and his grantee would take the absolute title. (Doe v. Wilson, 28 How., 457.) To deprive him of that power with reference to his individual property, an express prohibition was necessary, and it was competent for the government to provide that it might be inserted in the patent. The government having so provided, and the patents having been issued accordingly the prohibition is effectual The conclusion of the court upon the first point is that the 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 that they belong to Shawnees ? The record shows that for some purposes at least the tribal organization of the Shawnees is still maintained, but it no where appears neither from the treaty nor the record that as a tribe they have a right to, or that they attempt to control in any manner the lands held in severalty by the patentees. The record also shows that the lands not only do not lie in a compact body, but that they are widely scattered, being thickly interspersed with the lands and settlements of white persons, nor did the treaty require or contemplate that the selection of lands to bo held in severalty should be contiguously made. Those who already had made for themselves homes were authorized to make selections including them, but were not compelled to do so; only those who desired to hold their lands in common were required to make contiguous selections. It may have been the result of design that the selected lands came so nearly forming a compact body, but it was not in consequence of any requirement to that end, and had it been so, it was not contemplated that it would so remain. What has in fact occurred, must have been expected to transpire, to-wit: that some of the grantees would desire to dispose of some of their lands, which when permitted, must inevitably break the continuity. But it is no matter now what the intention was, the fact is that the lands owned by the Indians in severalty do not lie in a compact form.

Having premised this much, we will proceed to an examination of the legal question involved.

There is no express prohibition against taxing these lands, or the personal property of the Indians residing upon them. The treaty does not contain it, nor is it contained in any act of Congress to which our attention has been directed. In disposing of these lands to the Indians, it doubtless was competent for the proper branch of the government, under the powers to make needful rules respecting the territory of the United States, and to regulate commerce with the Indian tribes, conferred by the federal constitution, to have prohibited their taxation 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 has been referred to judicial decisions in the state of New York, as establishing and illustrating the proposition contended for, and especially to that in the case of Goodall v. Jackson, 20 Johnson, 693. The opinion of Chancellor Kent in that ease is a very elaborate, and doubtless exhaustive one upon the questions hé discussed. But there is no similarity between that case and the one at bar. The ultimate title to the lands occupied by the Indians in New York never was in the general government, but from the adoption of the , federal constitution until disposed of by state regulations, remained in that state. It alone had the right to extinguish the Indian title. Various constitutional and statutory provisions had been made and enacted upon the subject of acquiring this title, and in relation to the conduct of the whites towards the Indians; and the argument of Chancellor Kent was for the purpose of showing the policy of that state with reference to the lands and other affairs of the Indians within its limits. The case arose under, and was governed exclusively hy the constitution and laws of the state of New York. The constitution and laws of the United States had nothing whatever to do with it, so that, so far as the case at bar is concerned, very little can. be learned from a perusal of his opinion. He demonstrates very conclusively that the Indians had always been left perfectly free to regulate their own internal affairs in their own way, and that the state had never attempted to make its laws applicable to them or their affairs in their homes, but he does not show how far the state might legally have gone, had she chosen to exercise her powers in that direction. Upon that subject the opinion is perfectly silent. Because the State of New York did not attempt to make her laws applicable to the Indians or their affairs there, it can not follow that, under some circumstances, this state might not lawfully do so here; we do not, therefore, regard this case as being at all in point. The court has also been referred to a number of cases decided by the Supreme Court of the United States, among which are the Cherokee Nations. Georgia, 5 Pet., 1, and Worcesterv. Georgia, 6 Id., 515. We should feel bound by the decisions in these cases, and would implicitly follow them, did we conceive them to be applicable to the case at bar. That they are not, must be apparent from even a hasty examination. The Cherokees held their lands in common. They, occupied a district of country, the boundaries of which were accurately and distinctly defined; and in the exclusive occupancy thereof, the general government by treaty stipulations had guaranteed them its protection; it was not alone because the Oherokees were an Indian tribe that it was held that the laws of Georgia could have no application to them or their affairs. But it was so held because they were recognized by the general government occupying exclusively a district of country, in the enjoyment of which they were promised the protection of the United States. In the latter case the court say (pago 557,) the treaties and the laws of the Hnited States contemplate th^ Indian territory as completely separate from that of the states.”

In the case at bar some of these conditions are wholly wanting. 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. Two independent governments, in the same sphere, existing in the same locality, would be rather anomalous. 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 they occupied. 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 intercourse laws were made to apply to them only as Indians belonging to a tribe recognized and treated as such by the government which presupposes their existence as a distinct race, owning and governing 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, if instead of giving them two hundred acres of land apiece, the government had given each 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. In such a case it must be apparent, that the decisions referred to could have no applicability.

Again, it is claimed that upon consideration of the treaty itself it is apparent these lands were not to be taxable. It has been already observed that there is no express provision exempting them. But it is argued that because these were ceded to be occupied as homes for the Shawnees, and were not to be sold without the consent of the government, the manifest intention was that they should not be subject to taxation. An examination of treaties made with other tribes by the same commissioner on the part of the United States, and about the same time, may throw some light upon the subject.

Between the 15th of March 1851, and the 21th of February 1855, George W. Manypenny, Esq., as commissioner on the part of the United States, made treaties with the Otoes and Missourios, the Ornabas, the Shawnees, the Iowas, the Sacs and Foxes, the Kickapoos, the Kaskaskias, the Miamis, the Wyandottes, the Chippewas and the Winneb^goes, all of them, as will be apparent from a perusal thereof, must have been written by one person, or the subsequent ones copied from the first one. The language used is similar in all of them, and they all contain provisions with reference to the issuance of patents for land in severalty. In the treaties with the Otoes and Missouries, and with the Omahas, the language is, “ The President may * * * issue a patent to such person or family for such assigned land, conditioned that the tract shall not be aliened or leased for a longer term than two years, and shall be exempt from sale or forfeiture.”

With the Shawnees, “ Congress may hereafter provide for issuing to such of the Shawnees as make separate selections, patents for the same with such, guards and restrictions as may seem advisable for their protection therein.” With the Iowas, “ Congress may hereafter provide for the issuing to such persons patents for the same, with guards and restrictions for their protection in the possession and enjoyment thereof.”

With the Kickapoos and the Sacs and Eoxes, “ The lands thus assigned may hereafter be confirmed by patent to the parties or their representatives, under such regulations and restrictions as Congress may prescribe.”

With the Kaskaskias, “ Patents for the lands selected by or for individuals or families may be issued subject to such restrictions respecting leases and alienation as the President or Congress of the United States may prescribe.”

With the Miarais, “The President may cause patents to issue to single persons or heads of families for the lands selected by br for them, subject to such restrictions respecting leases and alienation as the President or Congress of the United States may impose, and the, lands so patented shall not be liable to levy, sale, execution or forfeiture.”

With the Wyandottes, “None of the lands thus assigned and patented to the Wyandottes, shall be subject to taxation for a period of five years from and after the organization of a state government over the territory where they reside, and those of the incompetent classes shall not be aliened or leased for a longer period than two years, and shall be exempt from levy, sale or forfeiture, until otherwise provided by state legislation, with the assent of Congress.”

With the Chippewas, the President may “ issue patents to them for the tracts so assigned to them, respectively; said tracts to be exempt from taxation, levy, sale or forfeiture, and not to be aliened or leased for a longer period than two years at one time, until otherwise provided by the legislature of the state in which they may be situated, with the assent of Congress.' They shall not be sold or aliened in fee, for a period of five years after the date of the patents, and not then without the assent of the President of the United States being first obtained.”

With the Winnebagoes, the same as with the Chippewas, except that the time within which the lands may not be sold, is extended to fifteen years»

Within the time above mentioned* treaties were made with the Calapooias and Willamettes, and although not negotiated by Mr. Manypenny, yet executed while he was Commissioner of Indian Affairs, which contain provisions similar to that contained in the treaty with the Miamis. The congressional action contemplated by the treaties with the Shawnees, the Iowas, the Kaskaskias, the KiCapoos and the Miamis, is found in the act of March 3d, 1859, and is in these words t

“ That in all cases where, by the terms of an Indian treaty in Kansas territory, said Indians arp entitled to separate selections of lands, and tó a patent therefor under guards, restrictions, or conditions for their benefit, the Secretary of the Interior is hereby authorized to cause patents therefor to issue to such Indian or Indians, and their heirs, upon such conditions and limitations, and under such guards or restrictions as may be prescribed by said Secretary.”

.The treaties may be divided into four classes: 1st. Treaties which contain no restrictions whatever; 2d. Those which prohibit alienation by the Indians without the assent of the government; 3d. Those-which exempt the lands from liability to levy, sale, execution or forfeiture; and 4th. Those which in addition to all this, expressly exempt lands from taxation. Now, in the first class mentioned, it is very plain the treaties contain no exemption of the lands from taxation. Whether that should be done was left wholly in the discretion of Congress, and was by Congress transferred to the Secretary of the Interior. In the second class the treaty itself contains a prohibition against alienation by the grantee. In the third class the prohibition,’ in terms goes further, extending to levy, sale or forfeiture ; and in the fourth class the word “ taxation ” is added to the terms in the preceding class. Now is it at all probable that Mr. Manypenny meant no more by the expression used in the fourth class than those employed in the second and third classes % The treaties of the first three classes had been negotiated by him ánd executed when those of the fourth class were drawn. Can it be that he meant nothing by the deliberate addition of the word “taxation,” dr is it to be presumed that the President and Senate of the United States regarded it as an idle word ? If the Commissioner, the President and the Senate understood the terms of these treaties which prohibit alienation to impart an exemption from taxation, is it likély the one would have deliberately inserted it, and that the others wo’tild have sanctioned its use ? We think not. Mr. Máriypénhy manifestly intended to prohibit what ho supposed had not been provided agairist in the, second class at least. If he had considered a prohibition against aliénation by the Indians á Sufficient guaranty ágainst taxation, he would not have added the exemption in terms. That such was his understanding is very manifest from the provisions of the treaty with the Wyandottes. The Wyandottes were divided into two classes; those that were competent to take charge of their own affairs, constituted oiie class, and those not so competent were included in the other class. Patents conveying the absolute title, without restriction were to be issued to the first class. The patents to be issued to the other class were to contain an express condition that' the lands were not to be sold for five years, and not then without the' express consent of the President. The treaty further provides that the lands of neither class should be taxed for five years after the organization of the state government which should include them. A special prohibition was necessary to exempt the lands of the first class, but it was not necessary to extend it to those of the second class if they had considered the restrictions upon the power of alienation sufficient to that end. And more than that: he very manifestly intended that notwithstanding the restriction might continue longer than five years after the organization of the state, the lands were not for a greater; length of time to be exempt from taxation, so that, taking the whole provision together, the commissioner did not consider the restriction upon the power of alienation, sufficient to exempt the property from taxation. Again: under the authority vested in him by the act of Congress, it was competent for the Secretary of the Interior in issuing the patents to the Shawnees to have exempted the lands from taxation. He was given the absolute control of the subject. He was doubtless familiar with the treaty stipulations we have been considering, and must have been convinced that there was at least room for a doubt as to the efficacy of a simple restriction upon the power of' alienation as an exemption from taxation. Being so convenient, had he intended that these lands should not be subject to taxation, he would probably have removed all doubt by inserting a provision to that éffect in the patent, not having done so, the inference under the circumstances that he did not intend the lands to be exempt, is a fair one.

If the lands of the Shawnees are not exempt from taxation, it is unnecessary to argue that the personal property of the Indians residing thereon is not. ¥e think, therefore, that the correctness of the second proposition, to-wit: that the state has no power to tax the property of these Shawnees, is not vindicated by the decision of the courts of New York or of the Supreme Court of the United States. We also think that the treaty with the Shawnees, the act of March 3d, 1854, and the action of the Secretary of the Interior in pursuance thereof, were considered in the light of the contemporaneous action of the government, and show that it was not the intention that these lands should be exempt from taxation.

Our conclusion then, upon the whole case is, that the Shawnees who hold their lands in severalty under patents from tbe government, bave the abstract title thereto; 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.

In tbis conclusion we are sustained by the decision of Justice McLean, in the case of Lowry v. Weaver, already referred to. That was a" proceeding to subject to sale for the payment of bis debt, the lands of an Indian chief who beld them under a patent containing, a restriction that they should never be aliened by the grantee or bis heirs without tbe consent of the President of the United States. In bis opinion the judge said that by tbe restriction “ tbe land was not withdrawn from the sovereign action of tbe state. Like others it may be taxed by tbe state. * * * Tbis belongs peculiarly to state powers. - * * * Except by compact or the voluntary legislative action of tbe state, lands within its limits cannot be withdrawn from its ordinary action.”

Tbe judgment of tbe court below will be affirmed.