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property exempt from taxation by virtue of the treaties and Federal laws shall so remain during the force and effect of such treaties or laws. When Oklahoma became organized as a State, the governments of the Five Tribes had ceased to exist. The State sent to Congress a delegation of five members of the House and two Senators. Oklahoma contained a population of approximately 1,500,000, of which 100,000 were enrolled members of the Five Tribes. This delegation. in Congress representing the State of Oklahoma, aided by powerful influences, secured the passage of an act on May 27, 1908, removing the restrictions upon the sale of a large class of Indian lands, including many homesteads, so that these lands became subject to sale the same as lands of white people. Previously the restrictions on the sale of some other classes of land had been removed so that after the Act of 1908 a very large percentage of Indian lands was subject to sale. In the act above referred to, it was provided "that all land from which restrictions have been or shall be removed, shall be subject to taxation, and all other civil burdens as though it were the property of other persons than allottees of the Five Civilized Tribes." Directly after the passage of this act removing restrictions upon alienation and undertaking to subject to taxation lands which were secured to the Indians as non-taxable, the State of Oklahoma began at once to assess these lands in the hands of the members of the tribes and to levy taxes thereon; and later, many Indians, having failed to pay the tax through ignorance of this refined method of confiscation, because of inability to pay, or because of their determination not to submit to this flagrant violation of their rights, State officials proceeded to advertise this exempted land for sale to satisfy the unpaid taxes, a proceeding of the law looking to the forfeiture of the land.

The effort of the State to subject these lands to taxation was justified on the ground that it was a proper exercise of governmental authority of the

State, the Federal government having undertaken to withdraw its protection of tax exemption, the motive and policy of which action the State was not called upon to investigate or question. But the Indians took the position that the act was a violation of a contract made between them and the government of the United States for a valuable consideration; that they were to be required against their will to contribute of their property secured to them to equalize the handicap under which they were entering upon a new life, to maintain a State government organized in their land without their consent. That the exemption of their lands from taxation was a property right of value the same as the land itself, and that it was proposed by this act of Congress to divest them without consideration and without process of law of this property right.

This act made taxable more than 13,000 Creek homesteads. The members of the Creek Tribe were the first to organize for the purpose of appealing to the courts to prevent this invasion of their rights. Their council, while in existence nominally for the purpose of discussing matters of common interest, but practically divested of all powers it formerly possessed, in meeting assembled at Okmulgee in October, 1908, passed a resolution providing for the institution of suits to resist the taxing of their homesteads. This resolution was made effective upon January 2, 1909, by the approval of President Roosevelt. This course was taken upon the advice of the National Attorney for the Creek nation, Mr. M. L. Mott, a clear headed champion of the Indians' rights of whom the Indians stood in great need. He took the position that the act of Congress attempting to make taxable the homesteads of the Creeks was unconstitutional, as an attempt to take from these Indians without consideration, and without due process of law, valuable vested property rights.

The same views were entertained by members of the other tribes, which had agreements with the government simi

THE U. S. COURT AND THE INDIAN.

lar in spirit but different in details from the Creek agreement. In the Choctaw and Chickasaw nations, for instance, the exemption from taxation was impressed upon all the lands of the allottees, but only while owned by them. Individuals of these tribes authorized the bringing of suits whereby the approval of the President was not needed.

The trial courts and the Supreme Court of Oklahoma held against the contentions of the Indians, who thereupon submitted their case to the final arbiter, the Supreme Court of the United States.

This court in an opinion handed down by Mr. Justice Lamar on May 13, 1912, overruled the contentions of the lower courts, and sustained the Indians in every particular, holding that they had a vested right of property in the exemption which prevented the State from taxing the lands under discussion. In announcing its conclusion the court repeated a doctrine that has always aided in arriving at exact justice to the Indian by declaring that the construction of Indian treaties, instead of being strict, is liberal, doubtful expressions instead of being resolved in favor of the United States, are to be resolved in favor of a weak and defenseless people, who are wards of the nation, and dependent wholly upon its protection and good faith. This rule of construction, the

court

said, had been recognized without exception, for more than one hundred years.

It had been contended below that as the restriction upon alienation and exemption from taxation were for one and the same purpose, by removing one the reason for the other automatically ceased.

The court denied this proposition; it held that the restriction against alienation was a question of policy which Congress might determine for itself, and the restrictions might be removed

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without violating any rights of the Indian, but that the exemption from taxation was a property right which became vested in the Indian, and could not be taken from him without his consent. It was found by the court that Congress had made certain of the lands allotted to the Indians non-taxable for a given period in consideration of the Indians' relinquishment of all claim to the common property, that this grant gave the Indians as good title to the exemption as it did to the land itself, and that under the constitution there was no more power to deprive him of the exemption than of any other right in the property. The court said that if the Indian was bound by the agreement, the government was likewise bound and was powerless to deprive the Indian of this property right.

Under the agreements with the Five Tribes, six and one-half million acres of land were allotted as homesteads to one hundred thousand Indian citizens. Nearly 4,000,000 acres were allotted to 38,000 Choctaws and Chickasaws, 1,672,000 acres to 41,800 Cherokees, 748,000 acres to 18,716 Creeks, and 125,000 acres to 3,124 Seminoles. The amount of money which will be saved to these Indians by the decision of the United States Supreme Court is enormous, and difficult to state, because there is no way of determining the amount of this restricted land that has been sold by the Indians, but it has been estimated that the amount is between thirty and thirty-five million dollars. Under ordinary conditions it is not to be tolerated that a property owner may enjoy the benefits of government affording him and his family an orderly state of society, schools and other advantages, without contributing to the expense of this most necessary institution. But Oklahoma presents a situation that is not an ordinary one, and is probably without parallel in the history of the United States.

The Expiation

By Mervyn Wadsworth Jackson

T

HE LAST day of autumn was waning. Summer had reigned supreme with that perfection of northern mildness, lingering far into autumn with a soft, mellow warmth, departing with a selfish reluctance which had allowed winter to creep in so stealthily that its approach was unobserved.

The red rays of the late afternoon sun, as it sank rapidly towards the western edge of the prairie colored the rugged crests of the blue eastern ridges with crimson until they appeared as a molten casting just poured from the Great Melting Pot, cooling as the rays faded, and casting dark, dreary shadows, deepening into black, at their base, for night lurked in the valleys and low lands, and extended northward along the horizon, blending with the gray clouds which gathered threateningly in the northern sky, their outer edges faintly tinged with red.

A dusty, well-beaten road meandered across the dry prairie, lost at intervals in the hollows only to appear again deeply cut into the summit of some further knoll. Eastward it ended abruptly in the fertile foothills of the distant ranges, now black, at “Mojon Rancho."

Within a league of the ranch, two figures, hand in hand, tramped slowly along its course. As they mounted to the top of a knoll, the ranch lay plainly visible, a sight that caused a feeling of relief and renewed vigor.

They paused in their stroll and their eyes wandered over the desolate demesne, marked with occasional lifeless patches of stunted brush, dried and burnt by the summer sun, for the

winds that swept the prairie were blistering and dry.

A feeling of awe crept over the girl as she drank in the novelty of the scene. The great northwest was new to her—fresh from the south—and she admired the strangeness of it all. A fascination for the scene thrilled her very soul. They were the only visible living things upon this unfinished work of Nature.

Affectionately she clasped her hands. about her companion's arm, a sense of loneliness had caused her to be drawn nearer to him and their eyes met in a loving glance.

"Oh, isn't it impressive!" she breathed.

The man gazed apprehensively towards the north. A sudden chill came into the air and he shuddered.

"We must return," he said, halfanxiously; "it will be dark before we reach the ranch."

"Must we hurry?" she asked, following in his strides as he started to descend. "It is all so vast, so serene here-so grand: I love the north!"

Again her eyes wandered over the peaceful setting.

"Besides," and she looked lovingly up at him, "I'm very tired."

His reply was to increase their gait. "We can come again to-morrow," he said.

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They descended hand in hand, as they had come. The sun's last rays had disappeared, and only a faint reddish glow remained, soon fading, leaving the mountains' black images against a dreary sky. When they reached the level road the girl hesitated.

THE EXPIATION.

"Kiss me," she half-whispered.

The man bent and pressed his lips upon her rosy, up-turned mouth, her cheeks flushing with excitement.

"You love me, Ernest, don't you?" "Yes," he murmured, and led her onward.

sweet

face,

A sudden breeze sprang gently from the north which wafted the girl's brown locks about her radiant with the joy and happiness of living. Deeply she inhaled the cool, fragrant air, and it seemed to refresh and invigorate her physical spirit, for she walked more jauntily and erect.

"Isn't it splendid!" she cried.

The man made no answer. His gaze traveled northward.

The clouds gradually spread over the sky, and darkness approached with a suddenness peculiar to the region. A light twinkled faintly through the dusk from the ranch house. A gust of wind swept ominously above their heads, and little flakes of white fluttered in eerie circles about them.

"Snow!" cried the man in vague alarm. "The first we've had—it's going to be a storm. We must hurry!"

In his eagerness he took her hand and started off briskly.

"Snow? I've never seen it before -what fun!" she cried in joyous tones. "This really is the north: how different from the south!"

"How different from the south," thought the man, and hurried faster.

The wind and darkness increased. The girl shivered slightly, for her wraps were light. Suddenly the wind raised from a whine to a gale. Faster and faster came the snow, covering the landscape.

The man and the girl strove bravely ahead, guided by the unsteady light twinkling in the darkness.

The storm had broken, and the gale ceased for a moment as suddenly as it had begun. The girl faltered.

"Wait!" she called; "let me restsee, it is stopping."

The man knew better, and for answer dragged her along, taking advantage of the lull.

Again the wind charged screaming

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at them, tearing at their garments. The chill became more intense as the snow pressed closer about them, the man cowering before it. He looked at his side for the girl. She sat moaning in the soft snow.

"My ankle!" she sobbed. "I've sprained it!"

"Get up!" he said gruffly, dragging her forcibly to her feet.

She sank to the ground again in pain. "I can't walk-it hurts . . . I'm afraid!"

"I can't carry you

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Carry her! Fright seized him. If he carried her! He couldn't carry her: it was impossible-they would both perish. She clutched tightly at his knees.

"Don't leave me," she entreated, but the storm drowned her words. She felt her utter helplessness and clung desperately to him.

"Don't leave-don't leave me!" she panted. "Help me, Ernest-help me! Oh, if you love me, don't leave me― I'll die. I'll die!"

He did not hear her-he was afraid of the storm.

"Die!" The wind took up the word. He shook in terror. "Die!" He was afraid to die! Yes, he loved the girl, but it was different now; he was going to die. He must not die-he must save himself!

The girl sobbed at his feet. He listened. No, the wind wasn't shrieking-it was laughing at him-it was taunting him.

"You'll die, you'll die!" it mocked; "you'll die if you attempt to save her -leave her: no one will ever know. You're afraid, you're afraid," it laughed.

It goaded him. He was afraid, afraid to die. Terror and fear overcame him. "You'll die, you'll die," still rang in his ears. He tried to run but the wind was holding him-no, not the wind-it was the girl! He kicked himself free and faced the stormalone! Above the wind's voice he heard another-the girl's. "You coward!" she shrieked. The man stumbled, muttering, curs

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re

ing, into the blizzard. The road lay buried in the snow before him-the way to warmth and shelter, but now it was as if it never existed-so near, yet impossible to attain! Instinct mained his only guide. Vainly he peered into the impenetrable night for the light. At intervals he imagined he saw it, twinkling, sparkling cheerfully in the darkness-a beacon to guide him safely to the ranch, but always it danced about uncertainly. At times he saw many lights darting merrily about him.

Miles he seemed to travel. His limbs became numb, his hands were frozen. Slowly his steps face and lagged as he staggered blindly against the cutting wind which penetrated his flimsy garments. He no longer felt the cold, he was conscious of nothing save one agonizing thought which terror and fear of death had blazed deeply in his mind, "He was going to die!"

A violent gust of sleet blinded him, and, stumbling, he fell into the snow. With difficulty he managed to regain his feet. A drowsiness was creeping over his exhausted body; he staggered a few yards, stumbled, and lurched into a drift, collapsing into a stupor.

The wind gradually subsided, and the snow, white, inviting, never-ending, pitiless, covered the prostrate figure, a dark blemish upon its immaculate surface.

The night passed; daylight came, and still the endless white carpet iniar mark of location beneath a frozen creased in depth, burying every familcrust.

From out of the dawn, two men' ice-coated corral bars and loped out astride saddled horses, lowered the onto the prairie. With the aid of day they hoped to find them. Keen and alert they rode, far out over the monotonous rolling drifts stretched before them.

Hours they rode and searched, but the monotonous, rolling drifts revealed nothing. Within a day's walk they traversed their ground in a fruitless

search.

newly fallen snow was marked with a At last as the day declined, and the tessellated design of pony tracks, they ranch-perhaps when the snow melted, turned their weary horses toward the but not before.

riders, side by side, jogged slowly Within a league of the ranch, the along. As they mounted to the top of mound shaped like a cross in drifted a knoll, there lay below them a low white.

"Madre de Dios!" ejaculated one rider, making the sign of the Cross.

Slowly they descended to the drift covering. There lay the girl, and and kicked aside the downy white across her lay the frozen body of the man!

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