Leading Fighter v. County of Gregory

230 N.W.2d 114, 89 S.D. 121, 1975 S.D. LEXIS 125

Opinions

BIEGELMEIER,

* Justice

(on reassignment).

Plaintiffs’ action challenges the tax deed title of defendant county issued by reason of failure to pay the real estate taxes assessed and levied against the lots involved. The facts were not in dispute and are set forth in a stipulation. No question is raised as to the procedures followed that led to the issuance of the tax deed, except claim is made that the property is exempt from any taxes of the State of South Dakota. The circuit court held that the property was taxable and that the deed to the county was valid; therefore, it entered a judgment dismissing the action.

Nanette Leading Fighter and David Leading Fighter, her husband, are duly enrolled members of the Rosebud Sioux Indian Tribe. Nanette was the original allottee of a parcel of reservation land, the title to which was in the name of the United States as trustee for her. On April 7, 1960, this allotment was sold in due course, and the proceeds of $4,400 were received and held in trust by the United States by depositing the same in her account in the Rosebud Indian Agency. On June 24, 1960, Nanette purchased the lots here involved from Avery H. Webster. An agreement was executed on a Rosebud Indian Agency form wherein Webster agreed to furnish an abstract of title and a deed conveying the lots to Nanette, and she authorized the Agency Superintendent to make payment to Webster of $1,300 “from money” paid her as her share from the sale of the allotment on deposit in the Agency account. The agreement was approved by an official of the B.I.A. (Bureau of Indian Affairs). Webster then conveyed the four lots he owned to plaintiff Nanette and Nicodemus Leading Fighter, her son, by warranty deed.¹ The lots are in the Town of Herrick, South Dakota, and are not part of any Indian reservation.

Plaintiffs contend that as title to the original allotment² to Nanette and the proceeds of the sale of said allotment were held in trust by the United States they were not taxable by the state, and therefore the lots thereafter purchased, as here related, were also tax exempt. The several theories and the statutes, constitutional provisions and decisions cited in support thereof are now examined.

The trial court held that 25 U.S.C.A. § 349 did not grant immunity from state taxation even under the argument of plaintiffs that United States v. Glacier County, D.C.Mont., 17 F.Supp. 411, extended such claim to require consent of the allottee to permit state taxation. That section provides:

“* * * the Secretary of the Interior may, in his discretion, and he is authorized, whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs at any time 'to cause to be issued to such allottee a patent in fee simple, and thereafter all restrictions as to sale, incumbrance, or taxation of said land shall be removed * * (emphasis supplied)

This section does not apply to the facts shown by this record, as it grants power under certain circumstances to the Secretary to “cause to be issued to such allottee a patent in fee simple * * * (emphasis supplied) Patents are issued only by sovereign powers (see “Patent — Of Land,” 31A Words And Phrases, and “patent,” Webster’s Third New International Dictionary) and deeds are executed by persons and private corporations. Section 349 is expressly limited to a “patent” to an “allottee” over which the United States or its Secretary of the Interior has certain powers or authority. No such powers of authority exists over a deed to property executed by a private citizen, and § 349 does not purport to grant such authority. Plaintiff Nanette did not acquire title to the Herrick lots by virtue of a patent from the United States, nor was Nanette Leading Fighter an allottee. She was a grantee in a deed from a private citizen to lots outside a reservation for which she paid a valuable consideration — the same as any such transaction. The Glacier County opinion, supra, while not binding on this court, limits its application so as to exclude the consent theory from the transfer of title here.

Assuming that § 349, 25 U.S.C.A. applied, some claim is made that § 194, 25 U.S.C.A. places the burden of proof to show Nanette’s consent to the taxation as expounded in the Glacier County opinion. While that opinion and § 349 have been held inapplicable here, § 194 places such burden only in “trials about the right of property in which an Indian may be a party on one side, and a white person on the other * * *.” That section and cases cited under it are thus inapposite.

Plaintiffs assert that §§ 464 and 465, 25 U.S.C.A. grant immunity from taxation. Section 464 states that no exchange of restricted Indian lands shall be made or approved except as provided in § 465 and other sections cited therein. These two sections, so far as pertinent here, are:

§ 464.

“Except as provided in sections * * 464, 465 * * * of this title, no * * exchange * * * of restricted Indian lands * * * shall be made or approved: * * * Provided further, That the Secretary of the Interior may authorize voluntary exchanges of lands of equal value * * * whenever such exchange, in his judgment, .is expedient and beneficial for or compatible with the proper consolidation of Indian lands * *

§ 465.

“The Secretary of the Interior is hereby authorized * * * to acquire, through * * * exchange, * * * any interest in lands * * * within or without existing reservations * * * for the purpose of providing land for Indians.

******

“Title to any lands * * * acquired pursuant to sections * * * 464, 465 * * * of this title shall be taken in the name of the United States in trust for the * * * individual Indian for which the land is acquired, and such lands * * shall be exempt from State and local taxation.” (emphasis supplied)

There was no exchange involved here that the Secretary could or did approve, rather, there was an outright sale of land and a later independent purchase of lots — not of equal value and not in the “name of the United States in trust for” Nanette, which § 465 requires.

Further, in connection with these and other sections mentioned in this opinion, it appears there were two independent transactions not within the purport of the sections cited by plaintiffs; first, the sale of land by Nanette alone, and later a payment out of the sale proceeds to Webster and the transfer of the lots to Nanette and Nicodemus, her son, personally. This amounts to a gift or sale of part of the lots to Nicodemus which could not have been done if title had been taken in the name of the United States as required by § 465. This transaction was not one permitted or envisioned by these statutes.

It is further argued that the lots are tax exempt under 25 U.S.C.A. § 409a.³ Originally, § 409a applied only to the Five Civilized Tribes. 46 Stat. 1471. At the time the bill was introduced which amended § 409a to include all Indians, the following explanation was given:

“It is now the law in the Five Civilized Tribes in Oklahoma that lands can be condemned for water supply and other public purposes. It is the law in the Five Civilized Tribes that where land is sold the money derived from the sale can be used for buying' other lands, and such other lands may be placed under restriction, and thereby exempt from taxes.

“At Pawnee, Okla., outside of the Five Civilized Tribes, the Indian Department wants to secure some Indian lands for public purposes, and the bureau wants to take the money and buy other lands, so that such lands when purchased for Indians will be restricted and not be subject to taxation.

“This measure extends the Five Civilized Tribes law relating to Indian lands to Indian tribes generally. It is a departmental bill and is an emergency matter.” 75 Cong.Rec. 12319 (June 8, 1932) (remarks of Senator Thomas)

From the plain reading of § 409a; which clearly states the restrictions shall appear in the conveyance, and from this explanation, it would appear that tax exemption under § 409a is dependent upon the land being placed under restrictions by the Secretary of the Interior.

Plaintiffs urge that Pourier v. Board of County Com’rs of Shannon Co., 83 S.D. 235, 157 N.W.2d 532, supports their claim of tax immunity, and they quote a clause from the opinion referring to an extension of this immunity to property purchased from the proceeds of sale or the increase (of livestock) or the exchange of property. At times, opinions include general statements that precede the determination of the issue presented, and they must be read as applied to that issue. In Pourier, plaintiffs were Oglala Sioux Indians who had received allotments and used them to buy cattle; they resided on the Pine Ridge Indian Reservation and the cattle were all maintained within the reservation. The court, clearly referring to that personal property, stated the law applicable thereto as follows:

“ ‘Indians and Indian property on an Indian reservation are not subject to State taxation except by virtue of express authority conferred upon the State by act of Congress.’ ”

The requirement that the property be on a reservation excludes real estate outside its boundaries.

Expressly asserted, though woven through many of the plaintiffs’ arguments, is the claim that as the original tract of land to which the United States held title in trust for allottee Nanette was then exempt from state taxation the proceeds from the sale thereof and later purchase of the Herrick lots therefrom continued this tax exemption. Johnson v. Board of Com’rs of Yankton County, 61 S.D. 372, 249 N.W. 683, an opinion not cited by either counsel, involved a similar situation and claim of the trust fund theory. There, Johnson was an incompetent World War veteran who was awarded compensation under the World War Veterans’ Act (38 U.S.C.A. § 421 et seq.). His sister as guardian received this compensation and used part of it to purchase real estate on which the veteran lived and was cared for by her. Taxes were levied on it by Yankton County, and application was made to abate them claiming, as in the case at bar, that as the compensation was exempt from taxation it was “in the nature of trust funds” used for the purchase of the real estate and it therefore was exempt from taxation under 38 U.S.C.A. § 454. That section provided the compensation was not subject to claims of creditors and “shall be exempt from all taxation.”

This court in the Johnson opinion on July 7, 1933, decided that even though the compensation was exempt from taxation the real estate purchased from it was not exempt. Later, when that same issue was presented to' the United States Supreme Court, it came to the same conclusion. Trotter v. Tennessee, December 4, 1933, 290 U.S. 354, 54 S.Ct. 138, 78 L.Ed. 358, and Lawrence v. Shaw, March 1, 1937, 300 U.S. 245, 57 S.Ct. 443, 81 L.Ed. 623, 108 A.L.R. 1102. The Lawrence opinion stated its holding in the Trotter appeal as “that land .purchased by the guardian with such moneys (the tax exempt compensation received from the government as a World War veteran) was not exempt” from taxation.

In the Trotter opinion, Justice Cardozo, for a unanimous court, wrote:

“Exemptions from taxation are not to be enlarged by implication if doubts are nicely balanced. * * * we think it very clear that there was an end to the exemption when they lost the quality of moneys and were converted into land and buildings.”

See also United States v. Mummert, 8 Cir., 15 F.2d 926, and Work v. Mummert, 8 Cir., 29 F.2d 393.

Plaintiffs’ claim of exemption under Article XXII of the South Dakota Constitution has no merit. It follows that the judgment appealed from should be and is affirmed.

DUNN, C. J., and WOLLMAN and DOYLE, JJ., concur. WINANS, J., dissents. BIEGELMEIER, Retired Justice, who at the time of oral argument was a member of the court, sitting for COLER, J., who was not a member of the court at the time this case was orally argued and did not participate.

Retired Supreme Court Justice acting pursuant to SDCL 16-1-5.

1 . In the unsatisfactory state of the record, Nicodemus was not made a party to the action and David is not shown to have any title or interest therein; thus, the judgment as to David must be affirmed. However, as the parties refer to “the plaintiffs” as such in their briefs, that term will be used throughout the opinion.

2 . Title to the original allotment of the land within the Rosebud Indian Reservation was held in trust by the United States for plaintiff Nanette Leading Fighter. As such, it was exempt from state taxation. Ch. 405, 25 Stat. 888; 25 U.S.C.A. § 462; Lebo v. Griffith, 42 S.D. 198, 173 N.W. 840. See also United States v. Rickert, 188 U.S. 432, 23 S.Ct. 478, 47 L.Ed. 532.

3 . “Whenever any nontaxable land of a restricted Indian of the Five Civilized Tribes or of any other Indian tribe is sold to any State, county, or municipality for public-improvement purposes, or is acquired, under existing law, by any State, county, or municipality by condemnation or other proceedings for such public purposes, or is sold under existing law to any other person or corporation for other purposes, the money received for said land may, in the discretion and with the approval of the Secretary of the Interior, be reinvested in other lands selected by said Indian, and such land so selected and purchased shall be restricted as to alienation, lease, or incumbrance, and nontaxable in the same quantity and upon the same terms and conditions as the non-taxable lands from which the reinvested funds were derived, and such restrictions shall appear in the conveyance. Mar. 2, 1931, c. 374, 46 Stat. 1471; June 30,1932, c. 333, 47 Stat. 474.”