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United States. Office of Indian Affairs / Annual report of the Commissioner of Indian Affairs, for the year 1892
61st ([1892])

Decision of Supreme Court of Michigan regarding taxation of certain Indians,   pp. 756-759 PDF (2.2 MB)

Page 758

regulation necessary for securing the title in such soil to the bona fida
thereof. That the restriction against alienation contained in the patent
is rea- 
sonable, and one which the Government had a right to reserve when making
primary disposition of the land to the Indian of the class known as "those
so competent," we have no doubt. And it may well be inferred that this
was understood by the high contracting parties to the compact, relating to
admission of Michigan to the Union to have been inherent in the United States,
and one which States subsequently established within the limits of the North-
west Territory would be bound in honor to maintain, fornt is provided in
3 of the ordinance of 1787, that "The utmost good faith shall always
be observed 
toward the Indians; their lands and property shall never be taken from them
without their consent; and in their property rights and liberty they shall
be invaded or disturbed unless in just and lawful wars, authorized by Congress,
but laws founded in justice and humanity shall from time to time be made
preventing wrongs being done them." 
In the case of Goodell vs. Jackson (20 Johns, 715) Chancellor Kent says that
the early days of the Republic the Government watched with great anxiety
the property of the Indians intrusted to its care, whether owned by tribes,
families, or individuals. If it was Indian property in land it had a right
to pro- 
tection from us against our own people. And the Supreme Court of the United
States, in United States vs. Kagama (118 U. S., 375), asserted, as they have
practically done in many other cases, that the Indians are wards of the nation
and under the paternal superintendence of the Government. 
It was in the faithful observance of this duty that the Government made a
distinction between the Indians, denominating some as" competent,"
and others 
as "those not so competent," and in order to protect the latter
class from their 
own folly, inexperience and weakness, as well as to guard them against the
schemes of designing men, it placed a restriction against the alienation
of the 
interest in the land conveyed by the patent. 
It is contended that while this restriction is a proper exercise of power
for the 
protection of the helpless class in whose behalf it is exercised, and that
it is effectual to prevent the patentee from making a disposition of the
land un- 
less authorized by the Secretary of the Interior to do so, yet that the alienation
can be accomplished through the machinery of State taxation. If this is so,
the whole purpose and object of the restriction will count for nothing, for
neglecting to pay the tax assessed against the land, either through his own
lack of capacity to comprehend that his land may be taken away from him by
tax sale if he does not pay, or because he may be advised by interested parties
not to pay them, so that the same result may be accomplished, the alienation
which the Government, by the restriction placed in the patent, has sought
avoid, is as certainly affected as though made by a deed given by the Indian
der his own hand, and he would thus be able to perform by indirection that
which he could not directly do. 
The case of Pennock vs. Commissioners (.103 U. S., 44) is unlike this, for
reason that in that case there was no restriction against alienation, and
though the patentee was an Indian and kept up her relation with the confeder-
ate tribes of the Sacs and Foxes, of which she was a member, the court held
inasmuch as her title was absolute the land was subject to taxation under
laws of Kansas, and in rendering the opinion Mr Je  Fildsa th tu der 
her patent she took "Not an imperfect title to be held under the guardianship
of the Secretary of the Interior, to be disposed of only to the United States
regulations to be prescribed by him, but a title carrying with it absolute
ship with a right of free disposition at her will," and it was therefore
held that 
under those circumstances her property had com6 under the control of the
and subject to its laws entitled to its protection, and bound to bear a portion
its burdens. 
For the reasons stated the same rule could not apply as was applied in the
of the Kansas Indians reported in 5 Wall., 737, where it was held that the
of Kansas has no right to tax land held in s3veralty by individual Indians
of the 
Shawnee, Wea, and Miami tribes under patents issued to them by virtue of
treaties made by those tribes respectively in 1854. The tribal organization
these tribes had to a certain extent been broken in upon by intercourse with
the whites, in the midst of whom the Indians were, and by their enjoyment
some extent of the social and other advantages of the white people. 
The patents issued in severalty to individual members of the Shawnee and
Wea tribes, like the one in this case, contained a restriction against alienation
unless with the consent of the Secretary of the Interior, and those issued
to the 
Miamis also contained the same restriction, and in addition a provision exempt-
ing the lands from levy, sale, execution, and forfeiture. Although the facts

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