(specially concurring in part and dissenting in part).
I concur in the result reached in the majority opinion because plaintiff’s petition shows on its face that it is barred by the statute of limitations, 12 O.S.1951 § 93. The trial court therefore properly sustained the demurrer to plaintiff’s petition. In my opinion that is all that needs to be said in this case. The majority opinion, however, goes ahead to determine that the land in question became taxable for the year 1930 and was taxable for the years 1939, 1940 and 1942, and further, that plaintiff is barred from maintaining this action by reason of subsection (b) of section 6 of the Act of Congress of August 4, 1947, 61 Stat. 731. In my opinion these conclusions are not only unnecessary to the proper disposition of this case, but are completely erroneous.
The land in question was a part of the surplus allotment of plaintiff, Winnie Colbert, a %ths blood Chickasaw Indian. The effective date of the allotment patent was December 5, 1908. Plaintiff’s allotment was therefore not effective until after the effective date of the Act of Congress of May 27, 1908, 35 Stat. 312, which provided in pertinent part as follows:
“That from and after sixty days from the date of this Act the status of the lands allotted heretofore or hereafter to allottees of the Five Civilized Tribes shall, as regards restrictions on alienation or incumbrance, be as follows: * * * all allotted lands of enrolled full-bloods and enrolled mixed-bloods of three-quarters or more Indian blood, including minors of such degrees of blood, shall not be subject to alienation, contract to sell, power of attorney, or any other incumbrance prior to April twenty-sixth, nineteen hundred and thirty-one, * *
Since plaintiff is an enrolled, mixed blood of more than three-quarters Indian blood, the effect of this act was to make her entire allotment absolutely restricted and tax exempt until April 26, 1931. Marcy v. Board of Com’rs of Seminole County, 45 Okl. 1, 144 P. 611; Board of Com’rs of Marshall County v. U. S., 10 Cir., 152 F.2d 540; United States v. Rickert, 188 U.S. 432, 23 S.Ct. 478, 47 L.Ed. 532; Zweigel v. Webster, D. C., 32 F.Supp. 1015.
The first time that any restricted land was made taxable while at the same time remaining restricted was on April 26, 1931, by virtue of the provisions of the Act of Congress of May 10, 1928, 45 Stat. 495, which provides in pertinent part as follows:
“That the restrictions against the alienation, lease, mortgage, or other encumbrance of the lands allotted to members of the Five Civilized Tribes in Oklahoma, enrolled as of one-half or more Indian blood, be, and they are hereby, extended for an additional period of twenty-five years commencing on April 26, 1931: * * *.
“Sec. 4. That on and after April 26, 1931, the allotted, inherited, and devised restricted lands of each Indian of the Five Civilized Tribes in excess of one hundred and sixty acres shall be subject to taxation by the State of Oklahoma under and in accordance with the laws of that State, and in all respects as unrestricted and other lands * *
Thus it may be- seen that this act extended the restricted and tax exempt character of plaintiff’s allotment to April 25, 1956, except that it removed the tax exemption from that portion of plaintiff’s allotment in excess of 160 acres on April 26, 1931. The record reveals, however, that on April 26, 1931, plaintiff only owned 125 acres of restricted allotted land, including that portion of her allotment in controversy here. All of this land therefore remained tax exempt under the Act of Congress of May 10, 1928, supra, and could not *356have been subjected to taxation for the years 1939, 1940 and 1942 as held in the majority opinion. Board of Com’rs of Marshall County v. U. S., supra [152 F.2d 542], In that case the court said:
“Congress gave its consent to the state to tax restricted lands of Indians of the Five Civilized Tribes in excess of 160 acres. Where such an Indian owned only 160 acres or less of restricted land, Congress did not consent to the taxation of any part thereof.”
I further dissent from the holding of the majority that the Act of Congress of August 4, 1947, 61 Stat. 731, bars plaintiff’s action here. There is nothing in that act which in any way changes the tax-exempt character of the land in question for the years 1939, 1940 and 1942, even if such a thing could constitutionally be done, which I doubt. The pertinent part of this act is section 6(b) thereof, which provides:
“All tax-exempt lands owned by an Indian of the Five Civilized Tribes on the date of this Act shall continue to be tax-exempt in the hands of such Indian during the restricted period: Provided, That any right to tax exemption which accrued prior to the date of this Act under the provisions of the Acts of May 10, 1928 (45 Stat. 495), and January 27, 1933 (47 Stat. 777), shall terminate unless a certificate of tax exemption has been filed of record in the county where the land is located within two years from the date of this Act.”
Thus it may be seen this act specifically continued the tax-exempt character of plaintiff’s allotment, but- made the continuance of such tax exemption past August 4, 1949, contingent upon the filing of a tax exemption certificate by that time. The act specifically says that such tax exemption shall terminate. It does not say that the tax exemption of the land prior to that time shall be lost or changed in any way. Neither does it say anything which could be construed as a sort of statute of limitations on the right of plaintiff to contend that the land in question was tax exempt for years prior to the passage of the act. The only effect that this act had on plaintiff’s allotment was to terminate the tax exemption thereof on August 4, 1949, because of plaintiff’s failure to file a tax exemption certificate by that time. It has no bearing on the question of the taxability of the land in question for the years 1939, 1940 and 1942 at all.
I am of the opinion that the trial court’s judgment was correct because plaintiff’s petition shows on its face that defendant had been in the adverse possession of the property for more than five years, even though only claiming under a void ta.x deed, and plaintiff’s cause of action is therefore barred by the statute of limitations. This is true because section 2 of the Act of Congress of April 12, 1926, 44 Stat. 239, specifically provides that the statutes of limitations of the State of Oklahoma are applicable to restricted Indians of the Five Civilized Tribes. To that extent I therefore concur in the majority opinion, but otherwise, I respectfully dissent.