The American Indian in the United States, Period 1850-1914 / ... The Present Condition of the American Indian; His Political History and Other Topics; A Plea for Justice

by Warren K. Moorehead

“The Oklahoma trial court held against the contention of the Indians and the Supreme Court of Oklahoma said that as the lands involved in the Tiger case were inherited, Congress did not intend to restrict the sale of them, and that therefore the constitutionality of the Act was not drawn in question; but the attorneys were convinced that the local courts did not see this Indian question in the light with which grave considerations of public policy and conscience illuminated it before the nation, and they appealed the case to the United States Supreme Court. This court reversed the holding of the Oklahoma courts and established the force and effectiveness of the McCumber amendment, for the much-needed protection of the 40,000 full-blood Indians of the Five Civilized Tribes as to all their lands; the court said that it rests with Congress to say when its guardianship of the Indians shall cease and that it had not surrendered this right by creating the State of Oklahoma. This decision established the power of Congress in the future to impose such additional safeguards for the protection of the Indians in Oklahoma as their necessities may require. On the strength of the principle established in this case, the Government in behalf of the Indians brought suits involving 30,000 causes of action against white people who had taken deeds from Indians who were restricted under the McCumber amendment, the most of which are now settled favorably to the Indians.

“Oklahoma with 1,500,000 population, became a State on November 16, 1907, upon a pledge contained in her constitution that she would never question the jurisdiction of the Federal Government over the Indians and their lands or its power to legislate by law or regulation concerning their rights or property. Immediately she had a delegation in Congress and at once began a determined campaign for further repeal of the laws enacted for the protection of the Indians. The main argument employed was that the Indians were competent to care for their property and needed no legislative protection against improvidence; that the State could be trusted to afford them all the protection they required and that Federal guardianship and supervision should cease, as an interference with the personal privileges and rights of citizens of Oklahoma. And they made much of the fact that among the mixed-bloods there are a few individuals who are quite shrewd enough to look out for themselves.

“This fight was highly successful to the white contenders and resulted in the enactment of a law on May 27, 1908, executive July 27, 1908, repealing the restrictions on the sale of a large class of land including all homesteads of freedmen and of mixed-bloods of less than half blood, freeing from restrictions all told, over 9,720,000 acres. It provided also that all homesteads, as well as all other lands from which restrictions against sale were removed, should become taxable the same as lands of white people, whether sold by the allottee or not. This late act violated the terms of the agreements made with the Indians under which the homesteads of the Creeks and the allotments, or parts thereof, of the Choctaw and other tribes were exempted from taxation for a given period.

“While this measure was being opposed before the House Committee on Indian Affairs, in illustrating the disastrous policy toward the Indians that Congress was entering upon, Mr. Mott referred to the 8th day of August, 1907, when restrictions automatically expired on all lands in the Creek Nation, except homesteads, of all allottees of less than full blood. He stated that by one o’clock of the morning of the 8th day of August, deeds conveying one-half of the lands of the Creek Nation so affected were executed and delivered to well-organized land buyers, in many cases for inadequate considerations, and that these considerations were frittered away in a few weeks. This statement was not controverted.

“The part of this Act which undertook to subject to taxation the homesteads and other lands of the Indians was regarded as destructive of their property rights. The Indians had agreed to the allotment of their lands upon the condition contained in their treaties that certain exemptions from taxation should be observed. The Choctaw and Chickasaw lands were to be exempt while owned by the allottees. It was provided that in the Creek, Cherokee and Seminole tribes, a homestead of forty acres should be reserved from each allotment, which should be non-taxable for twenty-one years. This arrangement was favored by the Government as a wise policy of equalizing to the Indians the handicap under which they were about to enter upon a new method of living. It was seen that the destruction of this safeguard would bring disaster to the Indians as it would introduce a most insidious agency for divesting the Indians of their land under the power to sell for delinquent taxes; and it was realized that withdrawing the exemption was the arbitrary taking of property without due process of law, which the courts should be asked to prevent.

“These considerations were presented to the Creek Council by their attorney soon after the passage of the Act and upon his advice they again took an advanced position and decided to test the power of Congress to take away from them the right of tax exemption. A resolution to that effect was passed by the Creek Council in October, 1908, but it needed the approval of the President of the United States to make it effective. And here arose a peculiar situation.

“When Mr. Mott presented the resolution to Mr. Garfield, the Secretary of the Interior, and the President, they stated that they had approved and the President had signed the bill removing restrictions and making the unrestricted homesteads taxable. It was represented to the latter in reply that the Indians believed they were wronged by the Act, and that if the President refused to aid them in getting into court to have their rights measured and determined, the Indians would feel that the Government was not acting in good faith toward them and was afraid to have its actions inquired into by the courts. President Roosevelt admitted the force of their position and approved the resolution.

“Mr. Sturdevant again was retained to present this question to the courts, together with a similar question arising in the Choctaw Nation, the question being common to all the tribes. As in the Marchie Tiger restriction case the Oklahoma trial and Supreme courts held against the contention of the Indians. They decided that the Indians must pay taxes on homesteads as well as on all other land from which restrictions against sale were removed. Mr. Sturdevant, confident of his position, appealed to the United States Supreme Court and argued the novel question to an interested bench which handed down an opinion on May 13, 1912, reversing the courts below. It held that the Indians’ exemption from taxation was a property right that had become vested in exchange for a valuable consideration, to wit, the consent of each allottee to take his portion of land and yield any claim to all other tribal property, and that Congress had no more power to destroy, impair or withdraw that exemption than it had to take the land itself.

“In the opinion the Supreme Court stated a rule by which the rights of Indians should always be measured, whether in the courts or in Congress. It was said that ‘the construction (of statutes) instead of being strict, is liberal; doubtful expressions, instead of being resolved in favor of the United States, are to be resolved in favor of a weak and defenseless people, who are wards of the nation, and dependent wholly upon its protection and good faith.’