Glacier County v. Frisbee , 117 Mont. 578 ( 1945 )

I concur in holding the procedure attempted under section 2214, Revised Codes of Montana, invalid because of the insufficiency of the affidavit and I concur in remanding the cause to the district court with instructions to vacate and set aside (a) the order to show cause, (b) the order for the deposit of money, (c) the appellant's default, and (d) the decree herein.

I am of the opinion that under the facts shown by the record herein and in the absence of any application by the Indian allottee for a fee patent that the 160 acres in question were immune from taxation during the trust period of 25 years from and after February 28, 1918, the date of the issuance of the trust patent to the United States in trust for the appellant who is an Indian ward of the United States enrolled as a member of the Blackfeet Tribe and residing upon the Blackfeet Indian Reservation.

The fact that on June 11, 1918, being but three months and eleven days after the issuance of the trust patent, without application made therefor, the United States issued the fee patent does not relieve the federal government of its obligation, at the expiration of the trust period, to convey the land to said Indian free from all charges and encumbrances whatsoever. "The authorities are uniform to the effect that this right of exemption is a vested right, as much a part of the grant as the land itself, and the Indian may not be deprived of it by the unwanted issuance to him of a fee patent prior to the end of the trust period." United States v. Nez Perce County, Idaho, 9 Cir.,95 F.2d 232, 235. When the fee patent for which she had never made application was thrust upon this Indian, Glacier county promptly placed her land upon its tax rolls and when she failed to pay the taxes levied the county assumed to take title to the land for the delinquent taxes. By such proceedings the county claims it acquired and the Indian lost title to the 160 acres here involved but, as was said by the Supreme Court of the United States in Board of Com'rs of Jackson County v. United States,308 U.S. 343, 60 S.Ct. 285, 288, 84 L.Ed. 313: "The state will not be allowed to invade the immunity of Indians, no matter how skilful its legal manipulations."

At no time did the Indian transfer any part of the 160 acres involved and the fact that in 1920 she assumed to convey to her stepfather 80 acres which constitute no part of the 160 acres claimed by the respondents certainly does not evidence any consent to the issuance to her in the year 1918 of the unsolicited fee patent.

"Consent" in law is more than a mere formal act of the mind, and is an act unclouded by error or mistake, since consent is vitiated by error. Pan American Production Co. 1. Robichaux,200 La. 666, 8 So.2d 635; Butler v. Collins, 12 Cal. 457. "Consent" implies something more than mere acquiescence in a state of things already in existence. Builders Supply Co. v. North Augusta Elec. Imp. Co., 71 S.C. 361, 51 S.E. 231. "Consent" means a voluntary agreement by a person in the possession and exercise of sufficient mental faculty to make an intelligent choice to do or allow some lawful thing. If a person is divested of the power of refusal by reason of total or partial want of mental faculties, the damage cannot be excused on the ground of consent given, and consent given by a person in such a condition is equivalent to no consent at all; more especially so when the state of mind is well known to the party doing him the injury. McCue v. Klein, 60 Tex. 168, 48 Am. Rep. 260.

"It must be remembered that great care should be taken in dealing with the Indians where there are so many treaties, statutes, and regulations to be considered which were entered into, enacted, and adopted with the intent, in most instances, of properly caring for a helpless and dependent people. To provide every reasonable safeguard for the protection of the Indians and the security of their possessions is the plain duty of the government." United States v. Glacier County, D.C., 17 F. Supp. 411,412.

"The situation is not the ordinary one involving persons under no disability; we are dealing with Indians in a condition of wardship. These people had neither knowledge of their rights nor adequate means of safeguarding them. The fee title had been thrust upon them without consulting their wishes, and they had been given to understand by those in charge of their affairs that they could not lawfully resist the procedure throwing their lands open to taxation. * * * Under all the circumstances, there is no justification for holding that the elements of duress were not present." Glacier County v. United States, 9 Cir.,99 F.2d 733, 735.