2 Wyo. 8 | Wyo. | 1878
The questions, presented for our consideration, are raised by the pleadings and the agreed statement of facts, (which latter was filed on May 4th, 1877, in the district court,) to avoid the prolixity of re-statement, our opinion is formed with reference to an abstract of the pleadings and to the agreed facts as accompanying it, and therefore in the assumption and trust that they will be inserted by the reporter, the pleadings by abstract, and the agreement verbatim in the reported statement of facts for the correct understanding of the decision.
■ The taxes in question were collected under the statute of December 10, 1869, entitled, “An act to provide a Territorial and County Revenue,” Compiled Laws, 549. The act was amended by the two statutes of December 16th, 1871, and December 11th, 1875; but in particulars which do not affect the question. Section 1 of the original act declares that there shall be annually levied and assessed upon the taxable real and personal property within the territory, territorial and county taxes, and a poll tax for school purposes; section 2d specifies what property shall be exempted, but does not embrace any of that on which the taxes in question were collected; section 3d declares that all other property, real and personal, within this territory, is subject to taxation, in the manner prescribed in the act; all the other sections relating to the listing assessment, levy and collection, either in terms or by clear implication, contemplate the taxing of all property within the territory except such as is exempted by section 2d; provision is made for taking an annual poll list or census for the poll tax; personal taxes are enforeable by warrant, distress and sale, and the use of the posse comitatus ; lands may be sold for taxes, and tax-titles passed to the purchaser by certificate and deed. If this statute is to operate according to its intent,
The right to impose a tax, and, as preliminary to it, to take a list and valuation of the property intended to be taxed, depends not upon the consent of the party taxed, but upon the power of the government, which assumes to exercise the right, and upon the functions of the officers, through whom it assumes to exercise it. Hence the fact that Moore furnished the lists and valuations, on which the taxes were levied and collected, conferred no power, not independently existing, nor was necessary to a power already existing, and is therefore immaterial. His furnishing the lists and valuations were the ordinary acts of a party threatened with taxation and desirous to avoid forcible proceedings to obtain them. The act of December 10, 1869, subjected him to penalties for refusal to permit them. The matter stands therefore, precisely as it would have stood, had the lists and valuations been compulsorily taken; and Moore stands as an involuntary party in respect to them. His payments of the taxes rest upon the same consideration. If enforced collections of them, would have been illegal for want of power to tax, the unenforced collections were not legal, and the protests which accompanied the payments, were unnecessary to the preservation of his rights.
The British crown established its limits upon this continent under a principle, recognized between it and other civilized governments, and which became fixed in public law, that the jurisdiction of the crown was within those limits exclusive of all other nationalities, except the Indian nations or tribes, which were located within those limits; that the soil therein belonged exclusively to such Indian nations or tribes, except so far as the crown should acquire it from them by cession, purchase and lawful conquest; that, as an incident to the ownership of the soil, the separate dominion and sovereignty of the soil belonged to them: that they were independent political communities, nations
This principle, never abandoned by the colonies after they declared their independence, was fully incorporated into the federal constitution, which confers on the United States the exclusive power to make treaties, and to regulate commerce with foreign nations and the Indian tribes. The expressions “ to regulate commerce,” “ nations,” “ tribes,” had become definite, fixed, and technical, before the constitution was adopted; to make treaties, and to regulate commerce, are things predicable only of relation and action between sovereignties; are not and have -never been predicated of relation or action between a government and its subjects: the terms, “ nations,” “ tribes,” are identical, so far as they express a sovereign status ; and it is clear that these terms, so identical in public law and in the government dealings with the tribes prior to the constitution, are .employed by that instrument in accordance with the original principle, which treated nations who were without, and Indian tribes, which were within out limits, as sovereign, but the latter qualified by sovereign. It is not open to reasonable doubt that, as the instrument was adopted after the tribal states had become defined and fixed, it intended to treat them according to that status. Allowing that a tribe may dissolve itself, and its members become subjects of the United States, yet, as long as it sees fit to preserve its organization, it may do so. It results that these tribes have territorial boundaries, separating them from the states and territories ; that within those boundaries their authority is exclusive, except so far as they choose to relinquish it; that they own
Pursuing the constitution and a treaty of' the United States with certain Indian tribes, which latter established a boundary between . that government and those tribes, congress passed the act of March 30th 1802, 2 U. S. S. at L. 139, which recognized that line, and provided for the regulation of trade and commerce with those tribes, and the preservation of peace on the frontier ; also the amendatory act of May 6th, 1834, 3 lb., 628: the boundary having been changed by intermediate treaties, congress passed the act of dune 30th, 1834, 4 lb., 729, which recognized the boundary as so defined, and provided for the regulation of trade and intercourse with the Indians, and the preservation of peace on the frontier; also the amendatory act Of March 15th, 1864, 13 lb., 29. These statutes treat all the lands, lying beyond those lines, as owned by the tribes, and designate them as Indian territory or Indian country. By these and other acts the United States have assumed, under the constitution, the exclusive regulation of all commerce with the tribes, whether residing on reservations, located within states and territories, or on lands lying without them.
From the first the government has recognized, as facts, that the North American Indian has persistently resisted the attractions of civilization, and adhered to the savage
We are to presume that the Indian reservation, described in the agreed facts, is a reservation established and maintained under this system: that the plaintiff, described in the agreement as residing on it as an Indian trader and a post trader, was there during the period in question in those capacities, in virtue of a power conferred upon the government in the treaty, creating the reservation, to legislate for the wants of the tribe: we are also to presume that the general government has no power to enter upon it, except for reservation purposes, and that the political and municipal status of all its officers, agents and servants, who are located there in accordance. If the municipal power of the territory could tax the plaintiff in one particular, it could tax him in another; if it could tax his property, it could tax his poll; if it could tax his property, it could tax his official licenses: as the taxing power is unlimited, it could exhaust his assets. If that power could tax one party, placed, stationed or resident, upon the reservation under the treaty, it could tax any other party, so placed, stationed or resident there; every military officer, private soldier, other federal agent or servant, or Indian in respect to poll, property and industry. The taxing power stands upon a principle, which embraces all municipal authority. If that authority could extend itself over the reservation in one particular, it could extend itself over it in every other particular: it could carry over it its Sunday, its sumptuary, its sanitary, its militia,
It is clear that by the constitution, the acts of congress, and the treaty that the reservation, geographically within, is municipally without the territory of Wyoming; that the residents of the former are non-residents of the latter; consequently that neither the territory, nor any of its subordinate municipalities can have a taxing power within, because neither can send its taxing officers into the reservation. We should unhesitatingly have arrived at this conclusion, unaided by adjudication; but it is sustained by the cases of Jackson v. Graham; Lapeer v. McIntosh, 8 Whea., 573; The American Fur Co. v. The United States, 2 Pet., 358; The Cherokee Nation v. Georgia, 5 Pet., 1; Wooster v. Georgia, 6 Pet., 514; United States v. Rogers, 4 How., 570; Fellows v. Blacksmith, 19 How., 366; United States v. Holliday, 3 Wall., 409; The Kansas Indians, 5 Wall., 767; The New York Indians, 5 Wall., 767; United States v. Forty-three Gallons of Whiskey, 3 Otto, 188 ; Bates v. Clark, 5 Otto, 204. No principle could be more explicitly presented, or steadfastly maintained by any court, than this one has been by the supreme court of the United States. In The United States v. Rogers, Taney, C. J., delivering the opinion, said: “ The native tribes, who were found on this continent at the time of its discovery, have never been acknowledged or treated as independent nations by the European governments, nor regarded as owners of the territory they respectively occupied. On the contrary the whole continent was divided and parcelled out by the governments of Europe, as if it had been vacant and unoc-
This remark of the judge is in direct conflict with the principle, as recognized b}r the Crown, the United Colonies and the Confederation ; in direct conflict with the constitution, statutes and treaties of the federal government, including its numerous treaties with the Cherokee Nation, under which it held its Georgia reservation; also its treaty of New Ecbota of 1830, 7 U. S. S., at section 478, with that nation, under which it accepted its Arkansas reservation, in lieu of< its former one — the very, treaty, which was under consideration in the case. So long as our government defines its dealings with the tribes by the terms “ compacts,” “treaty,” “trade,” “intercourse,” “commerce,” and the like, it is concluded from saying that those tribes do not own their unrelinquished soil, and with the soil its political incidents. The remark of the judge was also in direct conflict with the principle, on which the Rogers case was decided, and foreign to its point. The defendant was in-' dieted under the 25th section of the statute of June 30th, 1834, for murder, as committed by him, a white man, upon another white man in the Cherokee Indian .county in Arkansas : he plead to jurisdiction that, before the alleged murder he was a citizen of the United States, had renounced his allegiance to it, removed to the Cherokee country, and became a Cherokee Indian and a member of the Cherokee nation by incorporation into it, — and was such member and Indian, and, as such, domiciliated in that country, when the alleged offense was committed; and that the party, on whom it was committed, was in like manner then a member of that nation, a Cherokee Indian, and there domiciled. By this plea the case came before the supreme court of the United States. That court assumed the validity of the statute, held that the act conferred jurisdiction, and that the plea was bad. To treat the act as valid, was to recognize its principle. The plea, conceding the principle, sought
When listed, the laws of the property was the reservation. It is not clear by the agrément but is rather its import that it was then actually there ; but, whether all actually within the reservation, or apart temporarily beyond it and within the county at the time, is immaterial, because the locus governs.
Moores voting as a citizen of Wyoming is immaterial. If he had not the right to vote, his voting did not confer the the right, nor could confer the power to tax.
As the taxes Avere illegally collected, it follows that they must be restored by the county with interest from the several dates of collection, namely: $116.39 with interest from October 8, 1873, $93.43 with interest from September 25, 1874, $232.25 with interest from November 10, 1875. The judgment of the district court is reversed; and it is directed to proceed with the case according to the opinion.
Judgment reversed.