I know no way to better express by dissent to the foregoing opinion that to file this, the opinion originally adopted by the court in this cause. These petitioners, plaintiffs below, are Chickasaw freedmen, and as such are each the owner of 40 acres of land in Garvin county, allotted and patented to them pursuant to Act July 1, 1902 (chapter 1362, 32 Stat. 641), and pursuant to the terms of the Curtis Act (Act June 28, 1898, 30 Stat. 507, c. 517). Subsequent to their allotment, Congress on May 27, 1908 (35 Stat. 312, c. 199) passed an act removing restrictions from the sale and incumbrance of land held by freedmen allottees, and providing that lands from which restrictions had been removed should be subject to taxation. After that, these lands were assessed for taxes for 1909, 1910, 1911, and 1912, and when defendant, as county treasurer of said county, advertised the same for sale for their non-payment, this suit was brought to restrain him. From a judgment sustaining a demurrer to their petition, plaintiffs bring the case here.
The sole question involved is whether these lands are exempt from taxation, as claimed by petitioners. Prior to the Emancipation Proclamation (January 1, 1863), petitioners were held in bondage by the Chickasaws. That proclamation made them citizens of the United States. During the Civil War the Chickasaws *Page 105 abjured their allegiance to the United States and allied themselves to the Confederate States of America. At its termination, the United States, looking to the best interest of all concerned, including the Chickasaw and his freedmen, made a treaty with the Chickasaws and other Indian tribes, known as the Treaty of 1866 (14 Stat. 769). Pertinent to this inquiry, article 3 of the treaty, in effect, provided that the United States should hold, for the Choctaws and Chickasaws, $300,000 belonging to them in trust until, within a certain time, their respective Legislatures should make certain provisions necessary to give "all persons of African descent," resident of those Nations at a certain time, "and their descendants heretofore held in slavery among said Nations" (which included petitioners), among other things, "40 acres each of the lands of said Nation" on equal terms with the Choctaws and Chickasaws. The article further provided that, failing to make such provision within that time, said $300,000 would cease to be so held, but would be held in trust for such of said freedmen as would remove from said territory, those remaining or returning after having been removed to have no benefit in said sum," but shall be upon the same footing as other citizens of the United States in said Nations." It is sufficient to say of this article that there was nothing done pursuant thereto to vest in the freedmen any right to said 40 acres until the passage of the Curtis Act. In the meantime, and shortly after the ratification of said treaty (that is, on November 9, 1866, and again in 1868), the Chickasaws, who deeply resented the imposition of those terms of the treaty, by act of their Legislature declared it to be their unanimous desire that the United States hold their share of said $300,000 in trust for said freedmen and remove them from said Nation. But the freedmen continued to remain and occupy the lands of the Chickasaws, claiming a right so to do under said treaty. Apparently despairing of their removal, said Legislature, on January 10, 1883, passed another act providing, in effect, for the adoption of said freedmen into the tribe, under certain restrictions, with the privilege *Page 106 only to take said "40 acres per capita provided for in the third article of the treaty of 1866" — the act to take effect on approval of the United States. It is sufficient to say of this act that before the same was approved, as was later attempted by Congress (Act Aug. 15, 1894, sec. 18), it was repealed by the Chickasaw Legislature. In October, 1876 or 1877, another act was passed by that Legislature, part of which reads:
"Sec. 3. Be it further enacted, that the provisions contained in article 3 of the said treaty, giving the Chickasaw Legislature the choice of receiving and appropriating the three hundred thousand dollars therein named for the use and benefit, or passing such laws, rules and regulations as will give all persons of African descent certain rights and privileges, be, and it is hereby, declared to be the unanimous consent of the Chickasaw Legislature that the United States shall keep and hold said sum of three hundred thousand dollars for the benefit of the said negroes, and the Governor of the Chickasaw Nation is hereby requested to notify the government of the United States that it is the wish of the Legislature of the Chickasaw Nation that the government of the United States remove the said negroes beyond the limits of the Chickasaw Nation, according to the requirements of the third article of the treaty of April 28, 1866."
And again, on October 22, 1885, said Legislature passed another act, which in part reads:
"Sec. 1. Be it enacted by the Legislature of the Chickasaw Nation, that the Chickasaw people hereby refuse to accept or adopt the freedmen as citizens of the Chickasaw Nation upon any terms or conditions whatever, and respectfully request that the Governor of our Nation notify the department of Washington of the action of the Legislature in the premises.
"Sec. 2. Be it further enacted, that the Governor is hereby authorized and directed to appoint two competent and discreet men of good judgment and business qualifications to visit Washington City, D.C., during the next session of Congress and memorialize that body to provide a means of removal of the freedmen from the Chickasaw Nation to the country known as Oklahoma, in the Indian Territory, or to make some suitable *Page 107 disposition of the freedmen question, so that they be not forced upon us as equal citizens of the Chickasaw Nation."
Viewing it, indeed, as a question and one to be settled in a general scheme of allotment by which the legal title to the tribal lands, held in fee by the tribe for the common use of its members, were intended to be divested out of the tribe and vested in its individual members, Congress passed an act for the appointment of the Dawes Commission (Act March 3, 1893, 27 Stat. 645, c. 209) and empowered it to enter into negotiations with this and other tribes to that end, and for the settlement of this and other incidental questions. On April 23, 1897, those negotiations were so far successful as to result in an agreement between the Commission and the representatives of the Choctaw and Chickasaw Nations, known as the "Atoka Agreement," which was ratified and confirmed by and embodied in the Curtis Act of June 28, 1898 (30 Stat. 505, c. 517). Pertinent to the question here involved, said act provided:
"Sec. 21. * * * It [the Dawes Commission] shall make a correct roll of Chickasaw freedmen entitled to any rights or benefits under the treaty made in 1866 between the United States and the Chickasaw and Choctaw Tribes, and their descendants born 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 be hereafter provided by Congress."
"29. * * * 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 to each member of these tribes, so far as possible, a fair and equal share thereof, considering the character and fertility of the soil and location and value of the lands. * * * The lands allotted to the Choctaw and Chickasaw freedmen are to be deducted from the portion to be allotted under this agreement to the members of the Choctaw and Chickasaw Tribe so 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 *Page 108 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 Nations. * * * All the lands allotted shall be nontaxable while the title remains in the original allottee, but not to exceed twenty-one years from the 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 allotment. * * * That as soon as practicable, after the completion of said allotments, the Principal Chief of the Choctaw Nation and the Governor of the Chickasaw Nation shall jointly execute, under their hands and the seals of their respective nations, and deliver to each of the said allottees patents conveying to him all the right, title, and interest of the Choctaws and Chickasaws in and to the lands which shall have been allotted to him in conformity with the requirements of this agreement. * * * Said patent shall be framed in accordance with the * * * agreement, and shall embrace the land allotted to such patentee and no other land, and the acceptance of his patents by such allottee shall be operative as an assent on his part to the allotment and conveyance of all the lands of the Choctaws and Chickasaws in accordance with the provisions of this agreement, and as a relinquishment of all his right, title, and interest in and to any and all parts thereof."
It will be observed, relative to the holding of this 40 acres by said freedmen that these provisions are qualified by section 21, supra, which says this 40 acres is "to be selected, held and used by them until their rights under the treaty shall be determined in such manner as shall be hereafter provided by Congress," which means that it was agreed by and between the Chickasaws and the United States that these freedmen were to be allotted upon these tribal lands precisely in the same manner as the Chickasaws, but temporarily, and when so allotted, were to have a right equal to the right of the Chickasaws to hold and use these lands until the freedmen's rights thereto under the treaty of 1866 were determined in the manner to be thereafter provided by law. Accordingly the United States and the Choctaw and Chickasaw Nations, on March 21, 1902, and after the opening *Page 109 of the land office for filing in those Nations (April 4, 1903), made another and a supplemental agreement, which was approved by act of July 1, 1902, and ratified by those Nations and became effective September 25, 1902. Section 36 of that act provides:
"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."
By section 37 the Attorney General of the United States directed to file in the Court of Claims, within a certain time, a bill against the Choctaws and Chickasaws 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." The act then provides in section 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 said lands and shall be in full satisfaction of all claims by the Choctaw and Chickasaw Nations against the United States *Page 110 or the said freedmen on account of the taking of the said lands for allotment to said freedmen. * * *"
It is sufficient to say of said suit that the same was brought, and resulted in a judgment, in effect, that the freedmen took no rights under the treaty; that they were citizens of the United States, and as such had no right to the 40 acres in controversy, except by virtue of their allotment thereon and payment therefor by the United States which the court ordered the United States to do. Now, with this patent in their hands, providing, in effect, as it does, pursuant to the statute, supra, that the land thereby conveyed to these freedmen, as stated, "shall be nontaxable while the title remains in the original allottee," the question is whether said clause does not vest in them a vested right of exemption from taxation, which cannot be abrogated by the act of Congress of May 27, 1908, removing restrictions therefrom and providing that thereafter the same should be subject to taxation. We think it does, and that such vested right is within the protection of the fifth amendment of the Constitution of the United States. Precisely the same inquiry arose in Choate etal. v. Trapp, Sec'y. et al., 224 U.S. 665, 32 Sup. Ct. 565, 56 L.Ed. 941, with reference to the allotments of the Choctaws and Chickasaws under the Atoka Agreement. There in the syllabus the court held that:
"Choctaw and Chickasaw allottees under the Atoka Agreement embodied in the act of June 28, 1898, under which, in part consideration of their relinquishment of all claim to the tribal property, they were to receive allotments of the lands in severalty, which were to be nontaxable for a specified period while the title remained in the original allottees, acquired vested rights of exemption from state taxation, protected by Const. U.S. Amend. 5, from abrogation during that period, as was attempted by the act of May 27, 1908 (35 Stat. 312, c. 199), removing the restrictions upon alienation, and providing that lands from which such restrictions had been removed should be subject to taxation."
While allotment was made to these freedmen, not only under that agreement, but also under the agreement approved by the *Page 111 act of July 1, 1902, supplementary thereto, we are of opinion that this case is ruled by the opinion in that case, since everything that was said in support of the tax exemption there is equally applicable to the tax exemption claimed here. There the court said:
"The individual Indian had no title or enforceable right in the tribal property." Neither did the freedmen. "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."
Equally anxious was Congress to give the freedmen a chance to establish his equitable interest, if any he had thereto, which he claimed therein, and, when established, to have it satisfied and extinguished. Clear it is that the common grounds upon which these contending forces stood was that each had a claim — one well and the other ill founded as it fell out, but both a claim. Continuing the court said:
"The Curtis Act was framed with a view of having every such claim satisfactorily settled. And though it provided for a division of the lands in severalty, it 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."
The same provision was made for the relinquishment of the claims of the freedmen to the other lands of the Tribe, which he did when he accepted his patent, as we have seen.
"There was here, then an offer of nontaxable land. Acceptance by the party to whom the offer was made with the consequent relinquishment of all claim to other lands furnished a part *Page 112 of the consideration if indeed, any was needed, in such a case, to support either the grant or the exemption. * * * 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. * * * 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 rights were conferred, we are brought to a consideration of the question as to what those rights were."
The court then proceeded to hold, as indicated in that part of the syllabus, supra, and declared:
"* * * The provision that the land should be nontaxable was a property right, which Congress undoubtedly had the power to grant. That right, fully vested in the Indians, was binding in Oklahoma."
It will not do to say, as urged in that case, that this tax exemption was without consideration and was a mere bounty, valuable so long as Congress chose to concede it, and which it had a right to withdraw at any time, and which it did withdraw by the act, supra, purporting to subject these lands to taxation; this for the reason that, if either grant or exemption required a consideration to support it, such is conclusively presumed, for the reason that the patent conveying both is a sealed instrument. But no consideration is required to support either, for the reason that no consideration is necessary to pass the title to land, and this exemption, being appurtenant thereto, is as much a part of the land as the land itself, and passed with the title to the land. It follows that these freedmen, on delivery and acceptance of the patent, took a vested right in both, and that Congress can divest or abrogate neither by subsequent legislation. But, if such was necessary, we would not have to look far to find a consideration to support both grant and exemption. *Page 113
In Bradley v. McAtee, etc., et al., 70 Ky. (7 Bush) 677, 3 Am. Rep. 309, the general rule is laid down, which meets our approval, that the state will never be irrevocably bound by a tax exemption, unless, among other things, by the exemption the taxpayer is induced to embark in some enterprise, or to invest his means in some adventure, which, if successful, will result advantageously to the state as well as to himself. Assuming this rule to be applicable here, we think the tax exemption should be equally irrevocable where, as here, these potential taxpayers were induced by the Atoka Agreement offering it, and the act of July 1, 1902, to embark upon a litigation, each with a view of obtaining, ultimately, a nontaxable grant of land. Looking at the case in the large, here are these freedmen, just emancipated, occupying lands patented to the Chickasaws. Then came the United States, and by the third article of the treaty of 1866 sought to provide each of them 40 acres of this land, upon which taxation was unknown, and thereby left the impression in their minds that such had been done, to the extent, at least, that the freedmen have ever since asserted a claim thereto under said treaty. Then along came allotment in severalty of these lands, at which time the United States, believing their claim to have foundation sufficient to be adjudicated, offered them in the Curtis Act a nontaxable patent therefor if they would enroll and prepare for allotment, and by the act of July 1, 1902, offered them a forum for the adjudication of their claims, and directed the Attorney General of the United States to bring suit therein against the Choctaws and Chickasaws and these freedmen, setting forth the controversy between these contending parties, and requiring them to interplead and settle their respective rights in that suit. This same act led these freedmen, still with a patent to said 40 acres of nontaxable land as an ultimate inducement, to enroll and file upon their lands and take them as their permanent allotment, with the understanding with the United States that they litigate their adversaries, and, failing in the litigation to establish their claim to the land, the United States *Page 114 would pay their adversary, the Chickasaws, therefor. They did so, and, the litigation resulting disastrously to them, a judgment went against the United States in favor of the Chickasaws for the value of the freedmen's holdings. Thereupon patent issued to and was accepted by the freedmen, as stated, containing in effect the tax exemption under construction. It goes without saying that these freedmen were induced to embark upon this enterprise of securing these patents and investing their means therein, that the arrangement contained every element of a contract with the United States. The result was both advantageous to themselves and the United States, and that the detriment to these freedmen in earning each has patent is a sufficient consideration therefor. Thompson v. Holton, 6 McLean, 386, Fed. Cas. No. 13,958; Coney v. Owen, 6 Watts (Pa.) 435; 12 Am. Eng. Enc. 385. State v. County Court,19 Ark. 360; Brooks v. Jasper County, 20 Ind. 416.
But it is urged these freedmen took their rights to the land solely under the Supplemental Agreement of July 1, 1902, and as that act provides, in section 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," and contains no exemption from taxation, none was intended. Not so, for the reason that said act is supplemental to the Atoka Agreement. Both acts provide the machinery for these allotments and the safeguards with which they are to be surrounded when made. As the former provides (section 29) that "all lands allotted shall be nontaxable while the title remains in the original allottee, but not to exceed 21 years from date of patent, * * * and which shall be inalienable for 21 years from the date of patent," this tax exemption, not being inconsistent with the latter act, must stand, because of that provision of the latter act, which reads:
"Section 68. No act of Congress or treaty provision, nor any provision of the Atoka Agreement, inconsistent with this *Page 115 agreement, shall be in force in said Choctaw and Chickasaw Nations."
I respectfully submit that it follows that these lands are not taxable, and that the judgment of the trial court should be reversed. I am authorized to state that KANE, C. J., joins me in this dissent.