204 F. 943 | 8th Cir. | 1913
Judge. The decree of which the appellants complain avoided two deeds made on March 5, 1909, by Howard Buffalo, the sole heir of Cena June, of certain lands allotted to her, prior co her decease, under the act for the division of the lands and funds of the Osage Indians, approved June 28, 1906, 34 Stat. 539, 541, 542, c. 3572, § 2, pars. 4 and 7, on the ground that these lands were then inalienable. Cena June and Howard Buffalo were full-blood. Osage Indians, neither of whom- had ever procured a certificate of competency. The question in the case is: Were the lands selected by a full-blood Osage Indian, divided by her into a homestead and surplus land and allotted to her before her decease, alienable by her full-blood Osage heir on March 5, 1909, when neither of them had obtained a certificate of competency? The answer is found in the act of June 28, 1906. The second section of that act provides that the lands of the Osage tribe shall be divided as follows: First, that each member of the tribe shall be permitted to select 160 acres of land as a first selection; third, that after each member has made liis or her first selection he or she shall be permitted to make a second selection of another 160 acres of land; fourth, that after each member has made his second selection he or she shall be permitted to make a third selection of 160 acres, and that—
“eacli member of said tribe shall be permitted to designate which of his three selections shall be a homestead, and his certificate of allotment and deed shall designate the same as a homestead, and the same shall be inalienable and nontaxable until otherwise provided by act of Congress. The other two selections of each member, together with his share of the remaining lands allotted to the member, shall be known as surplus land and shall be inalienable for twenty-five years, except as hereinafter provided.”
“That the Secretary of the Interior, in his discretion, at the request, and upon the petition of any adult member of the tribe, may issue to such member a certificate of competency, authorizing him to sell and convey any of the lands deeded him by reason of this act, except his homestead, which shall remain inalienable and nontaxable for a period of twenty-five years, or during the life of the homestead allottee: * * * Provided, that upon the issuance of such certificate of competency the lands of such member (except his or her homestead) shall become subject to taxation, and such member, except as herein provided, shall have the right to manage, control, and dispose of his or her lands the same as any citizen of the United States: Provided, that the surplus lands shall be nontaxable for the period of three years from the*946 approval of tbis act, except when certificates of competency are issued, or in case of the death of the allottee, unless otherwise provided by Congress.”
Neither Cena June nor. Howard Buffalo, as' has been stated, ever obtained a certificate of competency. The chief subject of the seventh paragraph of section 2 is the permissible alienation and taxation of the lands of that class of Osage allottees who obtain certificates of competency from the Secretary of the Interior. The subject of paragraph 4 is the permissible alienation and taxation of the lands of Osage Indians generally, regardless of the question whether they, have certificates of competency or not. Under familiar rules these provisions of the two paragraphs must be read together, the former as the special law of the particular-class of lands there treated, and the latter as the general law applicable to all classes of lands of the Osage Indians. Counsel for the appellants argue, however, that the exception in the paragraph which treats of the lands of that class of Osage Indians who obtain certificates of competency, paragraph 7, to the effect that the homestead lands shall remain inalienable for the period of 25 years, or during the lifetime of the allottee, so amends and modifies the provision of the fourth paragraph that all the lands of Osage Indians shall be inalienable and nontaxable until otherwise provided by act of Congress,' that the lands of those allottees who obtain no certificates of competency are also rendered alienable at the end of 25 years, or upon the death of the respective allottees. In support of this position they cite the second proviso of paragraph 7, urge that it has the effect to render the surplus lands of Osage allottees who obtain no certificates of competency taxable upon the death of the respective allottees, and argue by analogy that the exception under consideration in the first part of paragraph 7 renders the homesteads of such allot-tees alienable upon their death, or at the end of 25 years. This argument is not persuasive. Paragraph 4 does not declare that the surplus lands shall be nontaxable, so that the second proviso of paragraph 7 does not treat of a subject treated in paragraph 4, and it presents no question of amendment or modification of or conflict with any of the provisions of that paragraph; while counsels’ construction of the exception in the body of paragraph 7, that it renders the homestead lands of that class of Osage allottees who obtain no certificates of competency taxable and alienable at the end of 25 years, or on the death of the respective allottees, modifies the' declaration of paragraph 4 that they “shall be inalienable and nontaxable until otherwise provided by act of Congress.” Again, the construction that the exception in paragraph 7 renders all the homestead lands of Osage al-lottees alienable arid taxable at the end of 25 years, or on the death of the respective allottees, renders the provision of the fourth paragraph; that they shall be nontaxable and inalienable until otherwise provided by act of Congress, ineffective and idle and flies in,the face of the rule that “all the words of a law must have effect, rather than that part should perish by construction.” And, finally, this interpretation violates the cardinal canon of construction that an exception or proviso in a statute affects and relates to the paragraph or clause in which it is found, or to which it is annexed, only, and not to the en
It is so ordered.