Buster & Jones v. Wright

5 Indian Terr. 404

• Court: Court Of Appeals Of Indian Territory
• Decided: October 19, 1904
• Status: Published

Opinions

Townsend, J.

The appellants have filed assignments of error as follows: “(1) The court erred in dismissing plaintiffs’ bill, and not complying with the mandate of the court of appeals (2) The court erred in holding that the defendants had a right to collect the taxes imposed by the Creek Nation upon the plaintiffs and others similarly situated. (3) the court erred in holding that the defendants had a right to close up the places of business of the plaintiffs, and remove them from the Indian Territory if they attempted to reopen. (4) The court erred in refusing to obey the mandate of the Court of Appeals of the Indian Territory, and, in effect, attempting to overrule the Court of Appeals. (5) The court erred in passing on the merits of the case when there was nothing before it that was not in the case as previously submitted to the Court of Appeals, and the Court of Appeals had directed it to proceed with the case in accordance with law, and not inconsistent with the opinion of the Court of Appeals.”

Article 15 of the treaty of 1856 between the United States and the Creek Nation (11 Stat. 703) provides as follows: “Treaty of 1856. Art. 15. So far as may be compatible with the Constitution of the United States, and the laws made in pursuance thereof, regulating trade and intercourse with the Indian tribes, the Creeks and Seminóles shall be secured in the unrestricted right of self-government, and full -jurisdiction over persons and property, within their respective limits; excepting, however, all white persons with their property, who are not, by adoption or otherwise, members of either the Creek or Seminole tribe; and all persons not being members of either tribe, found within their limits, shall be considered intruders, and be removed from and kept out of the same by the United States agents for said tribes, respectively (assisted, if necessary, by the military); with the following exceptions, viz: Such individuals with their families as may be in the employment of the government of the United States; all persons peaceably traveling, or temporarily sojourning in the country, or trading therein under license from the proper authority of the United States; and such persons as may be permitted by the Creeks or Seminóles, with the assent of the proper ‘authority of the United States, to reside within their respective limits without becoming members of either of said tribes.”

In Maxey et al vs Wright, 3 Ind. Ter. Rep. 243, (54 S. W. 807), this court, in affirming the judgment of Judge Thomas, quoted as follows (page 809): “Article 7 of the treaty between the United States and the Choctaw and Chickasaw Nations (11 Stat. 613) is, upon the question here involved, identical with article 15 of the Creek treaty; and the question as to whether these nations had the power to enforce their permit laws was passed upon by Atty. Gen. Wayne McVeagh in 1881. He says: ‘The validity of such permits is recognized by the concluding clause of article 7 of the treaty of June 22, 1855, which is not inconsistent with the terms of the later treaty. 17 Ops. Attys. Gen. 134. Upon the same subject, Atty. Gen. Phillips, in 1884, says: ‘In the absence of treaty or statutory provision to the contrary, the Choctaw and Chickasaw Nations have power to regulate their own rights of occupancy, and to say who shall participate, and upon what conditions, and hence may require permits to reside in the nations from citizens of the United States, and levy a pecuniary exaction therefor. The clear result of all the cases, as restated in Beecher vs Wetherby, 95 U. S. 526, 24 L. Ed. 442, is, ‘The right of the Indians to their occupancy is as sacred as that of the United States to the fee.' * * * We fully agree with these opinions, and hold, therefore, that unless since the ratification of the treaty of 1856 there has been a treaty entered into, or an act of Congress passed, repealing it, the Creek Nation had the power to impose this condition or occupation tax, if it may be so called, upon attorneys at law (white men) residing and practicing their profession in the Indian Territory. * * * We are of the opinion, however, that the Indian agent, when directed by the Secretary of the Interior, may collect this money for the Creeks. The intercourse laws (Rev. St. U. S. § 2058; Ind. Ter. St. 1899,§ 4268) provide that 'each Indian agent shall, within his agency, manage and superintend the intercourse with the Indians, agreeably to law, and execute and perform such regulations and duties, not inconsistent with law, as may be prescribed by the President, the Secretary of the Interior, the Commissioner of Indian Affairs, or Superintendent of Indian Affairs.' In this case the Indian agent was acting in strict accordance with directions and regulations of the Secretary of the Interior, in a matter clearly relating to intercourse with the Indians. And when it is remembered that up to the time that the United States courts were established in the Indian Territory the only remedy for the collection of this tax was by removal, and that the Indian nations had no power to collect it, except through the intervention of the Interior Department, it is quite clear that if, in the best judgment of that department, it was deemed wise to take charge of the matter and collect this money and turn it over to the Indians, it had the power to do so, under its superintending control of the Indians, and the intercourse of white men with them granted by various acts of Congress; and, in our opinion that power has not been taken' away by any subsequent act of Congress or treaty stipulation. The decree of the court below, sustaining the demurrer to the complaint and dismissing the case, is affirmed.”

In Buster et al vs Wright et al., 4 Ind. Ter. Rep. 300 (69 S. W. 822) this court, in reversing the judgment of Judge Gill on the former appeal of this case, says: “As to the power of the Interior. Department of the United States government to remove white men from the Indian Territory who refuse to pay such amounts as may be required by the laws of the Creek Nation for the privilege of being permitted to come into that nation and to engage in business therein, we simply refer to the case of Maxey vs Wrigbt (heretofore decided by us, and which was affirmed by the United States Circuit Court of Appeals for the Eighth Circuit,) 3 Ind. Ter. Rep. 243, (54 S. W. 807). In that case we decided the question against the contention of the plaintiffs, and, if this were the only ground alleged in the complaint for an injunction, the action of the court below in sustaining the demurrer would be upheld. But the threat to remove plaintiffs from the Indian Territory -was not the principal ground set up in the complaint. It was “that unless they (plaintiffs) paid a certain sum demanded, * * * by one o'clock of that day, they would close up their place of business, and, if they attempted to open up their said places of business, that they (plaintiffs) would be reported by the Indian inspector to the Secretary of the Interior, and an order asked for their removal from the Indian Territory, to prevent them from doing business any further until they paid the sum demanded.’ * * * While by the treaty and the statutes the Secretary of the Interior may find the fact that a man is an intruder in the Creek Nation, because he fails to comply with the conditions upon which he was permitted to enter, and put him out, he cannot collect the debt by closing his place of business. The one is the enforcement of a penalty for being an intruder; the other, if allowed, would be the means of collecting a debt. The one, the law provides for; the other, it does not. We know of no provision of treaty or statute law providing or such a remedy to be enforced by the Interior Department of the government. * * * Since the entry of the decree in the court below, Congress, by act approved May 27, 1902, c. 888, 32 Stat. 259, has provided ‘that it shall hereafter be unlawful to remove or deport any person from the Indian Territory who is in lawful possession of any lots or parcels of land in any town or city of the Indian Territory which has been designated as a town site under existing laws or treaties.' The complaint, in effect, alleges that Wagoner has been so designated, and that the plaintiffs are in lawful possession of lots therein; and as we hold that the property of the plaintiffs cannot be seized, and the doors of their business houses closed, and as the act referred to provides that the plaintiffs cannot be removed or deported from the Indian Territory, it follows that the only method left for the collection of the debt is through the ordinary channels of the courts.”

It thus appears that, while this court sustained the right of the Secretary of the Interior ‘to remove white men from the Indian Territory who refuse to pay such amounts as may be required by the laws of the Creek Nation for the privilege of being permitted to come into that nation and to engage in business therein, we held in Buster et al vs Wright et al., supra, that the Secretary of the Interior ‘cannot collect the debt by closing his place of business.”' It would seem, upon reflection, that, perhaps, when we spoke of this license fee for this privilege of doing business as a debt, we were inaccurate, as it is not a debt. In Crabtree vs Madden, 54 Fed. 431, 4 C. C. A. 408, the court say: “The counsel for plaintiffs attempts to escape from this conclusion by the argument that this tax is a debt; that it arises upon an implied contract; that the court has jurisdiction to enforce such contracts, and hence of this action. This position is not tenable. Taxes are not debts. They do not rest upon contract, e-xpress or implied. They are imposed by the legisa-tive authority, without the consent and against the will of the persons taxed, to maintain the government, protect the rights and privileges of its subjects, or to accomplish some authorized special purpose. They do not draw interest, are not subject to set-off, and do not depend for their existence or enforcement upon the individual assent of the taxpayers. Meriwether vs Garrett, 102 U. S. 472, 513, 26 L. Ed. 197; Lane County vs Oregon, 7 Wall. 71, 80, 19 L. Ed. 101; In re Duryee (D. C.) 2 Fed. 68; Peirce vs Boston, 3 Metc. (Mass.) 520; Perry vs Wash-burn, 20 Cal. 318; Webster vs Seymour, 8 Vt. 135, 140; Johnson vs Howard, 41 Vt. 122, 125, 98 Am. Dec. 568.”

The appellees in this case were acting under the orders of the Secretary of the Interior in closing the stores of appellants, who were “traders in the Creek Nation without license.” They show that they were violating the treaty between the government of the United States and the Creek Nation, and the Secretary was endeavoring to enforce the treaty by requiring them to comply with its terms. In thus acting, was he not within the scope of his authority? In United States vs Mullin (D. C.) 71 Fed. 682, 689, Judge Shiras says: “Nearly all judicial writs and process addressed to the marshal issue in the name of the President of the United States. The judicial branch hears, decides,' and declares its judgment upon the questions brought before it; * but when action is needed to enforce the judgment of the court, ordinarily, the appeal is to the executive powers of the government. The power to issue writs in the name and by the authority of the President of the United States is not because, in any sense, the President is a member of the judicial branch, but because he is the head and chief of the executive department of the national government. Therefore the fact that in a particular instance a writ is not based upon an order or judgment of a court or judge does not tend to show that it may not be a legal writ. Whenever, by.the provisions of the Constitution, or of a treaty made in pursuance thereof, or of an act of Congress, the executive department of the government is charged with the performance of some duty or obligation, and, to secure due performance thereof, it becomes necessary that certain action be taken, and the executive department, acting through the proper channel, issues a written order or mandate requiring the doing of the appropriate act, and directing a proper pei’son to execute such mandate, or command, such writing is, in my judgment, a legal writ, * ‡ ‡ tand an order in writing by him, issued to secure the performance of the duty thus imposed upon him as an executive officer of the government, being an order requiring obedience upon the part of all within its terms, is therefore a legal writ, and any one who willfully obstructs or resists an officer of the United States in the service or execution of such an order is guilty of the offense defined in section 5398, Rev. St. U. S. (U. S. Comp. St. 1901, p. 3655), to wit, of obstructing or resisting the service or an execution of a legal writ.”

If these orders of the Secretary of the Interior in the exercise of his control and supervision of this Indian tribe, and for the enforcement of the provisions of the treaty, had the force and effect of a* legal writ, then it would seem that we misapprehended the authority under which appellees were acting; that, instead of acting unlawfully, they were engaged in the lawful performance of a duty. In deciding said case of Buster et al. vs Wright et al., supra, we say, after quoting the act of Congress approved May 27, 1902, and stating that it is by said act made unlawful to remove the purchaser in possession of a lot, that the property of plaintiffs cannot be seized and the doors of their business houses closed. “It follows that the only method left for the collection of the debt is through the ordinary channels of the courts.” We were unquestionably mistaken in this suggestion, for the identical question had been passed upon in Crabtree vs Madden, 54 Fed. 431, 4 C. C. A. 408; this being the decision of the Circuit Court of Appeals for the Eighth Circuit, and a case appealed from the Indian Territory. Judge Sanborn, in delivering the opinion of the court, says: “The considerations to which we have adverted, and especially the conviction that, if Congress had intended to confer on the court in the Indian Territory a jurisdiction so extraordinary in its character and so far-reaching in its effects as that here claimed, it would not have failed to clearly and unmistakably express that intention, have forced us to the conclusion that it never did intend to confer that jurisdiction. Nor do we find in this case any foundation on which to base the conclusion that the Creek tribe itself has either expressly or by implication prescribed or consented to so unique a method of enforcing its revenue laws. * * * Our conclusion is that the court below had no jurisdiction of this action, and the judgment below is affirmed, with costs.” It was thus expressly held in 1893 that the courts of this territory had no jurisdiction to collect taxes for the Creek Nation.

For the errors committed by this court in the former decision, we are of the opinion that said ease should be overruled. We have at this term decided the same question presented by this record in the case of J. W. Zevely et al., Appellants, vs W. G. Weimer et al., Appellees, 5 Ind. Ter. Rep. (-) (82 S. W. 941), on appeal from the Central District, Ind. Ter., in which we have endeavored to present the views of the court more at length than in this decision. Reference is respectfully made to the decision in that case.

It is our opinion that the court below did not err in dismissing the complaint and refusing the injunction, and its judgment is therefore affirmed.