In Choate v. Trapp, 224 U.S. 665, the history of the Atoka Agreement was reviewed by this Court. It was there held that the provision for the exemption conferred, upon the allottees, property rights which were within the protection of the Fifth Amendment and hence it was not subject to repeal by later Congressional legislation; that the restriction, being one imposed in the exercise of the plenary power of Congress over the Indian tribes and tribal lands and in the performance of its duty as the guardian of its Indian wards, see Lone Wolf v. Hitchcock, 187 U.S. 553, 565, and having been accepted by the State of Oklahoma in its constitution upon admission to statehood, was a limitation upon the taxing power of the state. See also Ward v. Love County, 253 U.S. 17. Until the removal by the Act of May 27, 1908, of existing restrictions on alienation of the allotted lands, state taxation even more remotely affecting the interests of allottees than the present tax, would concededly have been forbidden as a tax upon an instrumentality of the national government.
(a) This Court's precedents demonstrate the traditional legal analysis appropriate for determining Florida's constitutional duty to provide retrospective relief to McKesson for its payment of an unlawful tax. Atchison, T. S. F. R. Co. v. O'Connor, 223 U.S. 280, 285-286; Ward v. Love County Board of Comm'rs, 253 U.S. 17, 24; Carpenter v. Shaw, 280 U.S. 363, 369; MontanaNational Bank of Billings v. Yellowstone County, 276 U.S. 499, 504, 505; Iowa-Des Moines National Bank v. Bennett, 284 U.S. 239, 247. Pp. 32-36.
The government's original complaint included additional claims against Mahnomen and other counties, but these other claims are not involved in the case as it reaches us. In its petition for certiorari, the County claimed that Garden was an emancipated Indian who had paid the taxes voluntarily, and that hence the judgment granting a refund conflicts with Ward v. Love County, 253 U.S. 17. The County also contended that it was wholly within an Indian reservation; that it had long been dependent on taxation of allotted lands; that after the passage of the first Clapp Amendment in 1906, 34 Stat. 325, 353, which emancipated the Mahnomen County Indians, and lifted "all restrictions as to the sale, incumbrance, or taxation for allotments," the County had assumed that the Indians could voluntarily contribute to the support of county institutions; and that while the instant judgment is small. the aggregate amount of such judgments which might be obtained in similar actions would adversely affect the solvency of the County and imperil the continuance of county institutions. On these representations of the public importance of the case, we granted certiorari.
On the contrary, by the General Allotment Act, such exemption extended until the termination of the trust period, which was duly extended until 1938, and later for an indefinite period by Act of June 18, 1934. Caddo County Case, supra, 87 F.2d 55, and cases therein cited, Choate v. Trapp, 224 U.S. 665, 32 S.Ct. 565, 56 L.Ed. 941, and Ward v. Love County, 253 U.S. 17, 40 S.Ct. 419, 64 L.Ed. 751. "The existing periods of trust placed upon any Indian lands and any restriction on alienation thereof are hereby extended and continued until otherwise directed by Congress. (June 18, 1934, c. 576, Β§ 2, 48 Stat. 984.)" 25 U.S.C.A. Β§ 462.
See Madison County v. Foxx, 636 So.2d 39, 48 (Fla. 1st DCA 1994). Had the Florida courts declared the Liquor Tax invalid either because (other than its discriminatory nature) it was beyond the State's power to impose, as was the unapportioned tax in [ Atchison, Topeka Santa Fe Ry. v. O'Connor, 223 U.S. 280 (1912)], or because the taxpayers were absolutely immune from the tax, as were the Indian Tribes in[ Ward v. Board of County Commissioners, 253 U.S. 17 (1920); and Carpenter v. Shaw, 280 U.S. 363 (1930)], no corrective action by the State could cure the invalidity of the tax during the contested tax period. The State would have had no choice but to "undo" the unlawful deprivation by refunding the tax previously paid under duress, because allowing the State to "collect these unlawful taxes by coercive means and not incur any obligation to pay them back . . . would be in contravention of the Fourteenth Amendment."
Nicholl contends that money damages are not barred because if the court were to rule in his favor, the Board would merely be returning money that it never lawfully owned, and "recovered" money, as opposed to "taken" money, may be awarded as damages. Citing Ward v. Bd. of Cty. Comm'rs of Love Cty., Okl., 253 U.S. 17 (1920), Nicholl asserts that when a political subdivision acquires money unlawfully, it remains obligated to return that money. Under the Eleventh Amendment, states are immune from money damages in Β§ 1983 suits.
Act of June 28, 1898, 30 Stat. 495, 507; Act of May 27, 1908, 35 Stat. 312. United States v. Thurston County, 8 Cir., 143 F. 287; United States v. Rickert, supra; Carpenter v. Shaw, 280 U.S. 363, 50 S.Ct. 121, 74 L.Ed. 478; Choate v. Trapp, supra; Ward v. Board of County Com'rs of Love County, 253 U.S. 17, 40 S.Ct. 419, 64 L.Ed. 751; Bryan County v. United States, 10 Cir., 123 F.2d 782. But unlike lands allotted in severalty to members of the Five Civilized Tribes, under an agreement or treaty, providing for immunity from taxation until removed by the terms of the agreement or treaty, tax immunity here depends upon the express will of Congress, and must be found within the plain terms of the legislation relied upon to effect the exemption.
But the example provides no authority for the application of state statutes of limitation in state tax proceedings adjudicating federal rights. ΒΆ 10 In Ward v. Board of Commissioners of Love County, 253 U.S. 17, 40 S.Ct. 419, 64 L.Ed. 751 (1920) a suit was brought to recover taxes paid by Indians on exempt lands, and the Supreme Court explained that no statutory authority was essential to enable or require the county to refund the money. Id. 253 U.S. at 21.
In the Jack Case we overruled one of the reasons, but not the principal one, for holding acts of this class not violative of section 59, art. 5, of the Constitution. That the claim of plaintiff in the present action is a pre-existing obligation is made plain in Ward v. Board of County Com'rs of Love County, 253 U.S. 17, 40 S.Ct. 419, 64 L.Ed. 751. Therein it is pointed out that the right of members of the Choctaw Tribe of Indians to have their allotted lands exempted from taxation was guaranteed under the provisions of the Act of Congress of June 28, 1898, c. 517, 30 Stat. 495 (the Atoka Agreement), and that the Act of June 16, 1906, c. 3335, 34 Stat, 267, enabling Oklahoma to become a state made it plain that no impairment of the right pertaining to the Indians was intended.
"No good reason is suggested for saying that the claim of a private person against the state should not be subject to the same statute of limitation that the same claim against another private person would be. On the contrary, the rule that the government may plead such statutes prevails generally." See, also, Ward v. Love County, 253 U.S. 17, wherein the Supreme Court of the United States recognized the right of the state of Oklahoma, or of Love county, to plead the statute of limitation in an action by an Indian citizen to recover taxes paid. While it may be true that in their beginning statutes of limitations were not received and looked upon favorably by the courts (17 R. C. L. 664), and in some jurisdictions in the past the defense of the statute of limitations has not been treated with the same favor as ordinary defenses (17 R. C. L. 668), yet undoubtedly the rule is now well recognized to be that: