N. Property of Indian Wards -- As guardian of the Indian wards, the United States has the power of management and control over lands occupied by the tribes or Indian allottees.145 Such lands prior to some division or allotment in severalty, are held by the tribe in common. 146 While strict legal title is often in the United States, under the treaties, statutes, or executive orders creating their reservations, the Indian tribes usually have a full beneficial interest, described as a "right of perpetual use and occupancy." 147 Since this right is not to be narrowly construed,148 the tribal interest has been treated for all practical purposes as equivalent to ownership of the land itself. 149 Thus when there is a taking of the whole tribal interest within the meaninf of the Fifth Amendment,150 the Government must include as part of just

145 See Sec. 9.

146 Cherokee Nation v. Hitchock, 187 U.S. 294, 297, 307 (1902); Cherokee Nation v. Journeycake, 155 U.S. 196, 207 (1894); Cherokee Trust Funds, 117 U.S. 288, 308 (1886).

147 United States v. Klamath and Moadoc Tribes, 304 U.S. 119 (1938); Shoshone Tribe v. United States, 209 U.S. 476 (1937); 34 Op. A. G. 171, 177. Cf. Chippewa Indians v. United States, 305 U.S. 479 (1939). In some instances the grant to the Indian tribe has been in fee simple. United States v. Creek Nation, 295 U.S. 103 (1935), reh. den., 295 U.S. 769 (1935); Yankton Sioux Tribe v. United States, 272 U.S. 351 (1926). Cf. United States v. Algoma Lumber Co., 305 U.S. 415 (1939).

148 See United States v. Shoshone Tribe, 304 U.S. 111, 116 (1938) and cases cited.

149 Chippewa Indians v. United States, 305 U.S. 479 (1939); United States v. Shoshone Tribe, 304 U.S. 111 (1937); United States v. Klamath and Moadoc Tribes, 304 U.S. 119 (1938). Cf. United States v. Algoma Lumber Co., 305 U.S. 415 (1939).

compensation to the tribe the value of the natural resources on the
land such as timber or minerals.<sup>151</sup> Certain profits a prendre,
such as the right to take fish or gather herbs, occasionally granted
to Indian tribes, are also regarded as property rights.<sup>152</sup>

When, by allotment, land is assigned by the Government to
individual Indian allottees so as to create vested rights in the
individual Indian, such rights cannot be taken for public use without
payment of just compensation<sup>153</sup> even though the allottee is still subject
to the guardianship of the United States.<sup>154</sup> A provision that land thus
allotted shall be exempt from taxation is such a vested right;<sup>155</sup> but
neither judgments establishing citizenship in a tribe preliminary to
allotments of tribal land,<sup>156</sup> nor the shares provided by statute of
prospective allottees in lands to be allotted<sup>157</sup> are such property

In some instances the grant to the Indian tribe has been in fee simple.
United States v. Creek Nation, 295 U. S. 103 (1935), reh. den, 295
U. S. 769 (1935); Yankton Sioux Tribe v. United States, 272 U. S. 351
(1936). Cf. United States v. Algoma Lumber Co., 305 U. S. 415 (1939).

148 See United States v. Shoshone Tribe, 304 U. S. 111, 116 (1938) and cases cited.

149 Chippewa Indians v. United States, 305 U. S. 479 (1939); United States v. Shoshone Tribe, 304 U. S. 111 (1937); United States v. Klamath and Moadoc Tribes, 304 U. S. 119 (1938). Cf. United States v. Algoma Lumber Co., 305 U. S. 415 (1939).

150 See, Sec. 9.

151 Chippewa Indians v. United States, 305 U. S. 479 (1939); United States v. Shoshone Tribe, 304 U. S. 111 (1937); United States v. Klamath and Moadoc Tribes, 304 U. S. 119 (1938). Cf. United States v. Algoma Lumber Co., 305 U. S. 415 (1939).

152 Seufert Bros. Co. v. United States, 249 U. S. 194 (1919); United States v. Winans, 198 U. S. 371 (1905). But cf. United States v. Alaska Packers' Ass'n, 79 Fed. 152 (D. Wash. 1897), app. dism., 19 Sup. Ct. 881, 43 L. Ed. 1188 (1899).

153 Choate v. Trapp, 224 U. S. 665 (1912).

154 Choate v. Trapp, 224 U. S. 665 (1912). Cf. Jones v. Meehan, 175 U. S. 1 (1899).

rights. Similarly, there is no such property right in the statutory restrictions against alienation of allotted land.<sup>158</sup>

Sometimes, after allotment, the United States retains the fee in trust for the individual allottee. In such event, "the fee of the United States is not a dry legal title divorced from substantial powers and responsibilities with relation to the land."<sup>159</sup> Not only is the United States an indispensable party to condemnation proceedings brought against such lands under state authority; but such proceedings cannot be brought without Congressional consent; and mere consent to condemn such lands will not be construed to permit the maintenance of proceedings commenced in a state court even when later removed to a federal court.<sup>160</sup>

<sup>155</sup> Choate v. Trapp, 224 U. S. 665 (1912); Morrow v. United States, 243 Fed. 854 (C.C.A. 8, 1917).

<sup>156</sup> Wallace v. Adams, 204 U. S. 415 (1907); Stephens v. Cherokee Nation, 174 U. S. 445 (1899).

<sup>157</sup> Sizemore v. Brady, 235 U. S. 441 (1914); Gritts v. Fisher, 224 U. S. 640 (1912).

<sup>158</sup> Williams v. Johnson, 239 U. S. 414 (1915); Marchie Tiger v. Western Investment Co., 221 U. S. 286 (1911). See United States v. Rowell, 243 U. S. 464, 470 (1917).

<sup>159</sup> See Minnesota v. United States, 305 U. S. 382, 386 (1939) f. n. 1 and cases cited.

<sup>160</sup> Minnesota v. United States, 305 U. S. 382 (1939).

SEC. 5. DISTINGUISHED FROM TAXING POWER.--Although the powers of taxation and of eminent domain have a common origin, and have as their object the promotion of the general welfare,¹ and although both may be exercised only for public purposes,² yet "the two things are essentially different,"³ and "each is governed by its own principles."⁴ The former is the power to require proportional contributions from persons and property for the support of the government or to meet some public expenditure authorized by it,⁵ and the only compensation which the person taxed receives for the money exacted of him is the protection which government affords or the benefits of the special expenditure;⁶ whereas the latter is the power to appropriate, upon making just compensation, a particular item or parcel of land because for public purposes there is special need of it.⁷ Thus,

¹⁰Two other activities to be distinguished from eminent domain are unlikely to be engaged in by the Federal Government. The first is the right to destroy private property without compensation when immediate action is necessary to avert great public calamity. Bowditch v. Boston, 101 U. S. 16 (1879) (fire); Short v. Pierce County, 194 Wash. 421, 78 P. (2d) 610, 614-616 (1938) (flood). See other state cases cited in I Nichols, Eminent Domain (2d ed. 1917) sec. 96. The second is the flooding of lands of others by mill owners, which, under certain state statutes authorizing such flooding on payment of just compensation, has been held not to be an exercise of the power of eminent domain. Otis Co. v. Ludlow Mfg. Co., 201 U. S. 140 (1906); Head v. Amoskeag Mfg. Co., 113 U. S. 9 (1885).

¹ See In re Meador, 16 Fed. Cas. No. 9375 at p. 1297 (D. Ga. 1869).

² Cole v. La Grange, 113 U.S. 1, 7 (1885). See Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 161 (1896). Cf. Lowell v. Boston, 111 Mass. 454, 462 (1873). Taxation may be exercised by a state only for a public purpose. Parkersburg v. Brown, 106 U.S. 497 (1882); Loan Association v. Topeks, 20 Wall. 655, 665 (1874). See Green v. Frazier, 253 U. S. 233, 238 (1920); Jones v. Portland, 245 U. S. 217, 221 (1917). It should be noted, however, that the taxpayer's interest in the funds in the general treasury of the United States has been held to be too remote to permit him to challenge their appropriation to a non-public purpose. Frothingham v. Mellon, 262 U.S. 447 (1923). As to the limitation to public purposes of the exercise of the power of eminent domain, see Sec. 17 and Sec. 2, f. n. 20. Although the term "public purposes" is for the most part employed in the same sense in the law of taxation as in that of eminent domain, it is in some instances applied more liberally to the latter than to the former. See I COOLEY, THE LAW OF TAXATION (4th ed. 1924) sec. 176.

³ County of Mobile v. Kimball, 102 U. S. 691, 703 (1880).

⁴ Houck v. Little River Drainage District, 239 U. S. 254, 264 (1915).

⁵See United States v. Butler, 297 U. S. 1, 61 (1936); Houck v. Little River Drainage District, 239 U. S. 254, 265 (1915); County of Mobile v. Kimball, 102 U. S. 691, 703 (1880); In re Meador, 16 Fed. Cas. No. 9375 at p. 1297 (D. Ga. 1869); I COOLEY, THE LAW OF TAXATION (4th ed. 1924) secs. 1, 30.

⁶See Cole v. La Grange, 113 U. S. 1, 7 (1885); County of Mobile v. Kimball, 102 U. S. 691, 703 (1880); In re Meador, 16 Fed. Cas. No. 9375 at p. 1297 (D. Ga. 1869).

"in the one case, the party bears only a share of the public burdens; in the other, he exchanges his property for its equivalent in money." 8

The provision for just compensation in the Fifth Amendment is not a limitation upon the taxing power of the Federal Government, but only upon its power of eminent domain.⁹ There is a point, however, beyond which the legislative department, when exerting the power of taxation, may not go consistently with the citizen's right of property.¹⁰ Thus, taxation may be of such a nature and so burdensome as to constitute a taking of private property for public use without just compensation ¹¹ or a violation of the due process clause of the Fifth Amendment.¹² For example, special assessments upon abutting property to pay the cost of a public improvement ¹³ cease to be a tax when the exaction is in substantial excess of the special benefits conferred, and to the extent of the excess become an uncompensated taking of private property for public use,¹⁴ in violation of the Fifth Amendment.

8. See County of Mobile v. Kimball, 102 U.S. 691, 703 (1880). Cf People v. The Mayor, 4 N.Y. 419, 425 (1851).

9. United States Trust Co. v. Anderson, 60 F. (2d) 291 (S. D. N. Y. 1932), *aff'd*, 65 F. (2d) 575 (C.C.A. 2, 1933), *cert. den.*, 290 U.S. 683 (1933). So also of the corresponding provisions of state constitutions with respect to the taxing power of the state. County of Mobile v. Kimball, 102 U.S. 691, 703 (1880); Railroad Company v. County of Oteo, 16 Wall. 667, 674 (1927). See Gillman v. Sheboygan, 2 Black 510, 513 (1862). If such provisions were construed otherwise, "then all taxation is forbidden, for "just compensation& means pecuniary recompense to the person whose property is taken equivalent in value to the property." See Railroad Company v. County of Otoe, *supra*, at 674.

10. Norwood v. Baker, 172 U.S. 269, 278 (1898).

11. Board of County Comm'rs v. United States (C.C.A. 10, Dec. 10, 1938) No. 1728) See Henderson Bridge Co. v. Henderson City, 173 U.S. 592, 614 (1899). The court is loath, however, to bring a tac within this rule merely because excessive in amount, McCray v. United States, 195 U.S. 27 (1904); Veazie Bank v. Fenno, 8 Wall. 533, 548 (1869).

12. Heiner v. Donnan, 285 U.S. 312, 326 (1932) (conclusive presumption that gifts within two years of death are in contr complation thereof); Nichols v. Coolidge, 274 U.S. 561, 542 (1927) (tax on transfer made prior to enactment of taxing statute held confiscatory). See Brushaber v. Union Pacific R. Co., 240 U.S. 1, 24-25 (1916); McCray v. United States, 195 U.S. 27, 64 (1904). It has been held that this clause is not a limitation on the taxing power where the act complained of is not so arbitrary as to amount, in substance, to confiscation. Brushaber v. Union Pacific R. Co., 240 U.S. 1, 24 (1916); Billings v. United States, 232 U.S. 261, 282 (1914); McCray v. United States, 195 U.S. 27, 61 (1904). Cf. Barclay & Co., Inc. v. Edwards, 267 U.S. 442, 450 (1925).

13. Such assessments are an exercise of the taxing power. Briscoe v. Rudolph, 221 U.S. 547, 551 (1911); *right of v*. Davidson, 181 U.S. 371, 378, 379 (1901); Bauman v. Ross, 167 U.S. 548, 588 (1897). See Norwood v. Baker, 172 U.S. 269, 277 (1898); Allman v. District of Columbia, 3 App. D.C. 8, 21 (1894).

14. Allman v. District of Columbia, 3 App. D. C. 8, 21 (1894). See Martin v. District of Columbia, 205 U.S. 135, 139-140 (1907). Cf. Norwood v. Baker, 172 U.S. 269 (1898), holding that for a municipality to condemn land for a street, and then assess back upon the abutting property the entire damages awarded, as