dissenting: I dissent from the Board’s opinion for the reasons hereinafter given. My opinion is based on the assumption that during the taxable years in question the United States had not entirely emancipated the Osages from guardianship. A development of the reasons underlying my conclusion necessitates a short *149review of various treaties and court decisions bearing on the relationship between the United States and the Indians.
In 1803 the United States acquired the land occupied by the Osage Indians through the Louisiana Purchase. Shortly thereafter, in 3808, a treaty was entered into with the Osages defining the boundary line between the two nations and receiving, on the part of the United States, the Osage Indians under its protection. In 1815 another treaty was entered into for the purpose of reestablishing peace and friendship between the United States and the Osages. In 1818 a further treaty, under which the Osages ceded certain land to the United States, again defined the boundary between the land owned by each. In 1825 another treaty was entered into “ in order to more effectually extend to the said tribes that protection of the government so much desired by them.” In 1839 and 1865 additional treaties were made, in the latter of which the Osages acknowledged their dependency on the Government of the United States and invoked its protection and care.
Shortly after the Civil War, Congress considered the Indian problem, and in the Act of March 3, 1871, 16 Stat. 566; Rev. Stats., section 2019, provided:
No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty; but no obligation of any treaty lawfully made and ratified with any such Indian nation or tribe prior to March third, eighteen hundred and seventy-one, shall be hereby invalidated or impaired.
Since that date no treaty has been made between the United States and Indian tribes, but many agreements have been negotiated with such tribes which have been subsequently enacted into law after submission to the tribes for their approval.
Just how the question of the sale of the 600 square miles constituting, after the treaty of 1865, its reservation in Kansas was submitted to the Osage tribe, does not*appear in the statutes. The Act of July 15, 1870, 16 Stat. 335, contains in section 12 a provision—
That whenever the Great and Little Osage Indians shall agree thereto, in such manner as the President shall prescribe, it shall be the duty of the President to remove said Indians from the State of Kansas to lands provided or to be provided for them for a permanent home in the Indian Territory, to consist of a tract of land in compact form * * * to be paid for out of the proceeds of the sales of their lands in the State of Kansas.
The Deficiency Act of March 3, 1873, 17 Stat. 530, 538, contains this provision:
Indian Bureau — That the Secretary of the Treasury is hereby authorized and directed to transfer from the proceeds of sale of the Osage Indian lands in Kansas, made in accordance with the twelfth section of the Act of Congress approved July 15, 1870, the sum of one million six hundred and fifty thousand *150six hundred dollars, or so much thereof as may be necessary, to pay for lands purchased by the Osages from the Cherokees, and to place the same on the books of his Department to the cerdit of the Cherokee Indians.
Pursuant to said Act, the United States, in 1883, purchased in trust for the use and benefit of the Osages, out of funds derived from the sale of their lands in Kansas, certain tracts in what was then known as Indian Territory, from which lands the tribe now receives its mineral rights.
The treaties and acts which have been referred to herein, although not covering all the treaties between 1803 and 1865, establish the dependence of the Osage tribe upon the United States and the acceptance by the latter of that guardianship as well as the trust relation which existed between the two. That relation is even more clearly defined in various court decisions affecting the Indians. In Cherokee Nation v. Georgia, 5 Pet. 1, Mr. Chief Justice Marshall said:
They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the president as their great father. They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connection with them, would be considered by all as an invasion of our territory and an act of hostility.
In La Motte v. United States, 254 U. S. 570, 575, the court, in referring to the Osages, said:
The Osages have not been fully emancipated, but are still wards of the United States. The restrictions on the disposal and leasing of their allotments constitute an important part of the plan whereby they are being conducted from a state of tribal dependence to one of individual independence and responsibility; and outsiders, such as the defendants, are bound to respect the restrictions quite as much as are the allottees and their heirs. Authority to enforce them, like the power to impose them, is an incident of the guardianship of the United States.
See also United States v. Kagama, 118 U. S. 375; United States v. Rickert, 188 U. S. 432; United States v. Sandoval, 231 U. S. 28; Winton v. Amos, 255 U. S. 373.
This historical background now brings me to the act under which the decedent received the payments which are here in controversy; namely, the Act of June 28, 1906, 34 Stat. 539, the important provisions of which are set forth in the majority opinion. It will be noted that of the three selections, one designated a homestead was made inalienable and nontaxable for 25 years or until otherwise provided by Congress; the others were known as “surplus lands” and were made inalienable for 25 years and nontaxable for three years, except that power was vested with the Secretary of the Interior to issue to any adult member, upon his petition, a certificate of competency authorizing him to sell all his surplus lands, upon the issue *151of which all of his surplus lands became taxable immediately. All minerals were reserved to the tribe for 25 years from and áfter April 8, 1906, which reservation has been subsequently extended to April 7, 1946. Act of March 3, 1921, 41 Stat. 1249. There are no provisions in the Act concerning the taxation of the reserved mineral interest or of the income therefrom upon distribution of the same to the members of the tribe, as provided for therein.
I agree that Congress may tax the income of the Indians. The courts have held that the authority of Congress over Indian tribes and their reservations is complete. In Lone Wolf v. Hitchcock, 187 U. S. 553, 565, the court said:
Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government.
The same question was raised in the United States District Court for the Western District of Pennsylvania, in the recent case of the Colonial Trust Co. v. Lewellyn, 12 Fed. (2d) 481, in which the court said:
The question of the limitation of the power of Congress to levy such a tax, if it definitely attempted to legislate for that purpose, is not involved in this controversy. Over taxation Congress has almost unlimited power, and I am not prepared to say that under such power it could not levy a tax upon the lands of its ward, or the proceeds derived from those lands.
The Board has construed the language of section 210 of the Revenue Act of 1918, wherein a tax is imposed upon the net income of every individual as being applicable to the decedent. It would seem that the words “ every individual ” are all-inclusive. Considering the provisions of the statute, however, in connection with the relation between the United States and the Osage Indians, and the court decisions affecting the Indians, it is my opinion that the income in question is not taxable thereunder. As already pointed out, the attitude of the Government toward the Indians has been that of protector or guardian and ward. The Attorney General commented on the growth of that relation in his opinion of March 20, 1925, 34 Ops. Atty. Gen. 439, on the question of the taxability of the income of Quapaw Indians, derived from their restricted lands, in the following language:
Our policy toward the Indian is one that has been gradually and carefully developed from the very beginning of our government, and is recorded in treaties, statutes and numerous court decisions as well as in departmental rules and regulations not inconsistent therewith. It results from the evolutionary process growing out of the relations between the Indian and an altruistic nation acquiring, as a matter of necessity, the domain of an uncivilized and untutored people. See The Kansas Indians, 5 Wall. 737, 752, et seq. As the Indian’s land was needed for the expansion of our nation, it was obtained from him *152by negotiation — or, in the case of extreme necessity, by the use of force. Because the Indians could not adjust themselves to our mode of living, they were made the objects of our solicitude as a weak and helpless people. As we crowded them back into the wilderness, they were concerned about, and stipulated into their treaties provisions to secure to them, a permanent home which should be free from interference by any one. During such negotiations there was always taken into account the fact that the Indian was the original proprietor of the soil. And when at the solicitation of our Government he withdrew to more remote regions, there was usually attached the condition that in his new location he should be free from the dominating influence of the white man. It was not the Indian’s policy, in removing barriers, to give the white man unconditioned admittance.
Based upon that policy and the responsibility of protecting the interests of the Indians, there has developed a line of decisions construing liberally both the treaties and statutes affecting them. Choctaw Nation v. United States, 119 U. S. 1; United States v. Choctaw, etc., Nations, 179 U. S. 494; Seufert Bros. Co. v. United States, 249 U. S. 194; Starr v. Long Jim, 227 U. S. 613; United States v. Payne, 264 U. S. 446; Cherokee Intermarriage Cases, 203 U. S. 76; United States v. Celestine, 215 U. S. 278; Choate v. Trapp, 224 U. S. 665. In the last named case, at page 675, the court reiterated the rule of construction which has been announced as to the treaties and agreements with these people, and applied it to legislation, using the following language:
The construction, 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 depend wholly upon its protection and good faith. This rule of construction has been recognized, without exception, for more than a hundred years and has been applied in tax cases.
* * * In view of the universality of this rule, Congress is conclusively presumed to have intended that the legislation under which these allotments were made to the Indiana should be liberally construed in their favor in determining the rights granted to the Choctaws and Chickasaws.
Not only have the courts favored them through a liberal construction of treaties and acts directly pertaining to them, but they have also held that, concerning Indian reservations, Indian lands and Indian affairs generally, Congress habitually acts only by legislation expressly and specifically applicable thereto. Missouri Kansas & Texas Ry. Co. v. Roberts, 152 U. S. 114, 119. This is true historically and the fact is one of necessity because Indians, and especially tribal Indians, remain a people apart, for whom it is impracticable to legislate in terms common to them and the whites. Ex parte Crow Dog, 109 U. S. 556, 571. It is well established that general acts of Congress do not apply to Indians unless so worded that they clearly manifest an intention to include them in their operation. Elk v. Wilkins, 112 U. S. 94. The Revenue Act in question is general legislation and there is no reference therein to Indians. The Allotment Act of 1906 *153carried certain definite provisions respecting the taxation of the property divided, and, had Congress intended by the Revenue Act of 1918 to change the provisions of that Act, it seems clear to me that it would have done so in express terms. Even those provisions indicate an intention not to tax the income received by the individual Indian from the tribal property. The only provisions made in said Act with reference to the taxability of segregated property were those as to the homestead allotment after 25 years and the surplus allotment after three years. No provision was made for the taxing of the tribal property or the income therefrom. Under the well established rule of law that the inclusion of certain things for a certain purpose excludes all other things for the same purpose, it seems clear that Congress did not intend at that time that the income from the tribal resources should be taxed.
The argument that the words “ every individual ” include the Indians was considered by the Attorney General in his opinion on the Quapaw Indians, 34 Ops. Atty. Gen. 439. With reference thereto, he said:
At any rate, I am unable, by implication, to impute to Congress under tbe broad language of our Internal Revenue Acts an intent to impose a tax for tbe benefit of tbe Federal Government on income derived from tbe restricted property of these wards of tbe nation; property tbe management and control of which rests largely in the bands of officers of tbe Government charged by law with tbe responsibility and duty of protecting tbe interests and welfare of this dependent people. In other words, it is not lightly to be assumed that Congress intended to tax the ward for tbe benefit of tbe guardian.
This language is equally, and for a still stronger reason, applicable to the Osages. The Quapaws hold their lands, including minerals, individually. The minerals under the Osage reservation belong to the tribe. The Quapaws Hold their land in fee; the United States holds the minerals of the Osage reservation in trust for the tribe. The Quapaw lands were largely under the control of the individual allottees. The Osage minerals are almost entirely under the control of the Secretary of the Interior. In addition to this, up to and during the year here involved, the United States held the homestead allotments of all the Osage allottees in trust for a period of 25 years after January 1, 1907. The several acts with regard to these two tribes indicate Congress considered the Quapaws much better qualified to manage their own individual business affairs than the Osages.
The majority feel that they are bound by the decision of the Supreme Court in The Cherokee Tobacco, 11 Wall. 616. I am of the opinion that that case is clearly distinguishable and not determinative of the issue here involved.. The tenth article of the treaty of 1866 with the Cherokees., 14 Stat. 799, reads:
Every Cherokee and freed person resident in tbe Cherokee nation shall have tbe right to sell any products of bis farm, including bis or her livestock, or *154any merchandise or manufactured products, and to ship and drive the same to market without restraint, paying any tax thereon which is now or may be levied by the United States on the quantity sold outside the Indian territory.
Section 107 of the Act of July 20, 1868, 15 Stat. 167, reads as follows:
That the internal revenue laws imposing taxes on distilled spirits, fermented liquors, tobacco, snuff, and cigars, shall be held and construed to extend to such articles produced anywhere within the exterior boundaries of the United States, whether the same shall be within a collection district or not.
Soon after the passage of the Act of 1868, Elias G. Boudinot and Stand Wattie, two Cherokee Indians, established on the Cherokee Indian Reservation in Indian Territory a plant for the manufacture of tobacco, bought large quantities of tobacco, sugar and licorice, and opened up a brisk trade within the Cherokee Nation without paying the tax prescribed by section 107. They also shipped some tobacco to Arkansas on which they paid the tax. The United States seized the plant with all its fixtures and the raw and manufactured materials. Boudinot and Wattie intervened in the suit, alleging that they were the sole owners of the plant and materials, that the plant was not within any collection district, that they had complied fully with article 10 of the treaty, that section 107 of the Act of July 20, 1868, was not intended to apply to tobacco manufactured on the Cherokee Indian Reservation, and that if it was so intended it was to that extent unconstitutional. The decision was that the Indians before the court in that case were properly taxed.
It will be noted, however, that the tax therein considered was more in the nature of an excise tax for the control of the manufacture of spirits and tobacco, the regulation of which presented difficulties apart from the tax question involved, which materially influenced the court’s decision as is evidenced from the following language of the opinion:
Nowhere would frauds to an enormous extent as to these articles be more likely to be perpetrated if this provision were withdrawn. Crowds, it is believed, would be lured thither by the prospect of illicit gain. This consideration doubtless had great weight with those by whom the law was framed. * * *
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* * * The frauds that might otherwise be perpetrated there by others, under the guise of Indian names and simulated Indian ownership, is also a consideration not to be overlooked.
We are glad to know that there is no ground for any imputation upon the integrity or good faith of the claimants who prosecuted this writ of error. In a case not free from doubt and difficulty they acted under a misapprehension of their legal rights.
That case involved the protection of the Government against fraud and incidentally the demoralizing influence which would be exercised *155among tlie Indians by persons who would flock to the Cherokee Reservation if the decision had been otherwise.
This proceeding deals ívith the income distributed quarterly to the individual Indians from property held in trust by the United States for the benefit of the tribe. In all the cases dealing with the taxation of Indian property in which the property has not been specifically reserved from taxation, the question of the right of the State to tax has depended on whether such property was held in trust for the Indian by the United States. When the fee to the property was vested in the sovereign for the benefit of the Indian, it was necessarily free from taxation unless by consent of the trustee. The Kansas Indians, 5 Wall. 737; United States v. Rickert, supra; United States v. Thurston County, 143 Fed. 287; United States v. Pearson, 231 Fed. 270. The Supreme Court has protected the Indians from State taxation by reason of the guardianship of the Government over them, and on the theory that this Federal agency would be entirely defeated by State taxation thereof. It would indeed be an anomalous situation to protect the income of the Indians from trust funds from State taxation and take it for purposes of the Federal Government. As said by the Attorney General, in his opinion dated March 15, 1924, 34 Ops. Atty. Gen. 275, 285, on the taxability of income from restricted lands of the members of the Five Civilized Tribes:
Is it consistent for it [the Federal Government] to guard this income from the State taxing power and surrender it to congressional authority? Would such procedure be consistent with its policy toward the Indian as protector and conservator?
In Colonial Trust Co. v. Lewellyn, supra, the last pronouncement of any Federal court on a similar question, in which it was held that the income of the decedent from a certain lease for oil and gas purposes from the Osage tribe of Indians under lands located in Osage County, Oklahoma, was not subject to the Federal income tax, the court said:
It is clear that, if the government levied a tax which the Indians were either unable or unwilling to pay, involuntary sale of the property would result. It would seem that to incumber the lands of its ward by the lien or burden of taxes would be wholly inconsistent with its trust to protect the property of the tribe from all forms of alienation and incumbrance. Under the character of the trust existing between the government and the Osage Tribe, it would seem impossible for the former to subject the lands of the latter to taxation without a clear violation of the trust which it owes to its comparatively' defenseless wards.
A more cogent reason, however, why The Cherokee Tobacco is not controlling of the issue herein involved is the wording of the *156section under which the case arose. The tax was imposed on certain commodities produced “ anywhere within the exterior boundaries of the United States,” and in order to make the geographical designation more specific the words “ whether the same shall be within a collection district or not,” were added. There is no doubt that the language was all-inclusive and as specific as it could be without a detailed enumeration of the territories intended. There were few areas within the exterior boundaries of the United States which were not within a collection district, among which were the Indian territories. The court held “the language of the section is as clear and explicit as could be employed. It embraces indisputably the Indian territories.” In my opinion, the minority view of the court in that case is not based on the proposition that general legislation does not apply to the Indians, but that a special exemption granted them can not be repealed by a subsequent general law, and particularly, when such exemption is granted by a treaty, must the exempt jurisdiction be expressly mentioned in order to be affected.
According to the foregoing views the judgment should be for the petitioner.
GReen, Lansdon, Milliken, Phillips, and Smith concur in this dissent. Marquette and Van Fossan not participating.