Bailess v. Paukune/Opinion of the Court
In 1901 an Apache Indian, Paukune, was issued a trust patent to land in Caddo County, Oklahoma. This allotment was made under the General Allotment Act of February 8, 1887, 24 Stat. 388, 389.  Paukune died testate in 1919, leaving a wife Juana and a son Jose. By his will he devised an undivided one-third interest in the allotment to his widow and an undivided two-thirds interest to his son. No fee patent to the land has issued to Paukune, to his widow, or to the son. The trust period of twenty-five years has from time to time been extended. In other words, the United States still holds the land in trust for Paukune and his heirs.

In 1947 Juana's undivided one-third interest was assessed for ad valorem taxes in the amount of $21.33 and was advertised for sale for failure to pay. She thereupon instituted this suit in the Oklahoma courts to enjoin the sale and any further levy of ad valorem taxes on the theory that the land was exempt from state taxation. The petitioners answered, alleging that Juana was a non-Indian and therefore not exempt from the taxes. The trial court, without determining whether the widow was an Indian, held her interest nontaxable by the state; and the Supreme Court of Oklahoma affirmed, Okl., 244 P.2d 1137, saying it mattered not under federal law whether the widow was Indian or non-Indian. The case is here on certiorari.

Levindale Lead & Zinc Mining Co. v. Coleman, 241 U.S. 432, 36 S.Ct. 644, 60 L.Ed. 1080, dealt with restrictions on alienation attached to land under the Osage Indian Allotment Act of June 28, 1906, 34 Stat. 539. The Court held that the policy of that Act did not embrace person who were not Indians, since the Congress sought to protect only those toward whom it owed the duties of a guardian. The same answer must be given here. If Juana is not an Indian, the United States has no interest of hers in the land to protect.  True, the United States holds the legal title to the land. But nothing in the Act prevents the devolution of the quitable interest to the widow. If she is not within the class whom Congress sought to protect, the trust is a dry and passive one; there remains only a ministerial act for the trustee to perform, namely the issuance of a fee patent to the cestui.

The judgment of the Supreme Court of Oklahoma is reversed and the cause is remanded to that court for proceedings not inconsistent with this opinion. So ordered.

Judgment reversed and cause remanded with directions. 

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