It is not open to dispute that the removal by the later Act of Congress that we have cited of the restriction upon alienation previously imposed is valid. Williams v. Johnson, 239 U.S. 414, 420. Egan v. McDonald, 246 U.S. 227, 229. Fink v. County Commissioners, 248 U.S. 399, 404. It is admitted that if we follow the decisions of the Supreme Court of Oklahoma, both those that we have cited and others, the guardian did not have to follow the procedure prescribed for the sale of a ward's real estate. Duff v. Keaton, 33 Okla. 92. Papoose Oil Co. v. Swindler, 95 Okla. 264.
Jones v. Prairie Oil Gas Co., 273 U.S. 195, 199, 47 S.Ct. 338, 339, 71 L.Ed. 602 (1927), took the issue to be so well settled that the court made the statement that it "is not open to dispute that the removal by the later act of Congress . . . of the restriction upon alienation previously imposed, is valid." In fact, in Fink v. Board of County Commissioners, 248 U.S. 399, 404, 39 S.Ct. 128, 130, 63 L.Ed. 324 (1919), the Court actually took the view that the removal of restrictions on alienation, far from constituting a taking of a property right, actually added to the value of the land: We may here invoke the commonplace, for it is commonplace to say that we only know the value of a thing by that which makes its worth.
United States v. Rickert, 188 U.S. 432, 23 S.Ct. 478, 47 L.Ed. 532; United States v. Thurston County, 8 Cir., 143 F. 287, and the necessary governmental assent is signified by the Brown-Stephans Act. Or perhaps defendants' failure in this respect is due to their recognition that even if the lessors' alleged right to tax immunity is premised upon the theory of a binding agreement, an assumption neither claimed nor shown, Choate v. Trapp, 224 U.S. 665, 32 S.Ct. 565, 56 L.Ed. 941; Morrow v. United States, 8 Cir., 243 F. 854, 856, such immunity is personal unto the lessors alone, Fink v. County Commissioners, 248 U.S. 399, 403, 39 S.Ct. 128, 63 L.Ed. 324. But whatever theory underlies defendants' claim that the lessors have an immunity in the use of these lands free from taxation, it does not lie in the mouth of the defendants to assert such immunity.
They state again that exemption from taxation is not a property right but a personal right of the allottee which does not run with the land. On that point, they cite Fink v. Board of Com'rs of Muskogee County, 248 U.S. 399, 404, 39 S.Ct. 128, 63 L.Ed. 324; United States v. Board of Commissioners, McIntosh County, D.C., 271 F. 747, 748, 763; Stewart v. Keyes, 295 U.S. 403, 410, 411, 55 S.Ct. 807, 79 L.Ed. 1507. Having thus attempted to distinguish this case from the cases upon which the plaintiff relies and the other cases to which reference has been made, defendants conclude that the right of taxation in the County and the right to title in John Daniels are vested rights and that, insofar as the Act of February 26, 1927, U.S.C.A. Title 25, Section 352a, might be used so as to divest them of their rights, it is in violation of the "due process of law" clause of the Fifth Amendment of the Constitution of the United States.
This contention would be true if the plaintiff and those similarly situated as lessees had any existing tax exemption and a vested right in any tax exemption. But this the plaintiff and those similarly situated did not have. The treaties did exempt the land of certain allottees, but such exemption is not available to the grantee of an Indian allottee, as was held in Sweet v. Shock, 245 U.S. 192, 62 L.Ed. 237, and in Fink v. Board of Com'rs of Muskogee Co., 248 U.S. 399, 63 L.Ed. 324. There was never any specific tax exemption to oil and gas lessees by any treaty provision or congressional act. "Tax exemptions are never lightly to be inferred," as was said by the Supreme Court of the United States in Heiner v. Colonial Trust Co., 275 U.S. 232, 72 L.Ed. 256. There the Supreme Court held: "Income derived by a non-Indian lessee from leases of Indian lands is within the operation of the provisions of the revenue acts that a tax shall be paid upon entire net income."
"Under Act May 27, 1908, secs. 1, 2, 4, 6. 9, relating to restriction on alienation of lands allotted to Indians, and declaring that death of any allottee removed restrictions, held that on the death of a half-blood allottee and descent of lands to heirs of less than half Indian blood the lands became subject to taxation prior to their sale through the Oklahoma probate court; the provisions as to minority not changing the matter." See Rogers et al. v. Rogers et al., 263 Fed. 160; Hudson v. Hopkins, 75 Okla. 260, 183 P. 507; Fink et al. v. Board of County Commissioners of Muskogee County et al. (U.S.) 63 L.Ed. 398. The second proposition is:
The plaintiff below, H.U. Bartlett, has filed no brief. It was held by this court in the case of Board of County Commissioners of Muskogee County et al. v. Fink et al., 60 Okla. 67, 159 P. 470 (affirmed, 248 U.S. 399, 63 L. Ed. 188), par. I of syllabus: "Grantees of a Creek homestead allotment, conveyed under authority of the act of Congress of May 27, 1908, chap. 199, 35 Stat. 312, take their title to such allotment under the terms of said act, and cannot go behind it and claim the exemption of such allotment from taxation under the provisions of the act of Congress of June 30, 1902, chap. 1323, 32 Stat. 500."
" The Supreme Court of the United States in the case of Fink et al. v. Board of County Commissioners of Muskogee County, decided January 13, 1919, reported in 248 U.S. 399, 39 Sup. Ct. 128, 63 L.Ed. ___, stated as follows: "But for that act, they could not have purchased the lands in question.