The plaintiff, Sarah a. Pennock, is an Indian, and a member, by 'birth, blood, and descent,' of the confederate tribes of Sacs and Foxes of the Mississippi. At the date of the treaties of 1859 and 1867, between those tribes and the United States, she was the wife of William Whistler, a member of the same tribe. After his death she intermarried with one Henry Pennock, a white person, a citizen of the United States, and a resident of Kansas, with whom she now lives. In May, 1871, she was the owner in fee of certain lands in Franklin County in that State, which were listed and assessed by its officers for taxes in the same way as other real property in the county. The texes and charges being unpaid, the lands were sold to pay them, and certificates of sale given. The restrain the issue of deeds to the purchasers, and to set aside the tax sale as illegal, the present suit was brought. The District Court of the county held the sale illegal, and gave a decree for the plaintiff. The Supreme Court of the State reversed the decree and rendered judgment for the defendants, and the plaintiff has brought the case, on writ of error, to this court.
It is admitted in the record that the plaintiff, though residing with her husband in Kansas, Keeps up her relations with her tribe, and the question is presented whether under these circumstances her lands in Kansas are exempt from taxation by that State. With some exceptions not applicable to them, other property within its limits, real and personal, is subject to taxation. The solution of the question depends upon the construction given to the treaties between the United States and the tribes mentioned.
By the treaty concluded with them in October, 1842, they ceded to the United States all the lands west of the Mississippi River to which they had any claim or title, or in which they had any interest. In consideration of the cession it was, among other things, agreed that the United States should pay to them an annual interest of five per cent on $800,000, and discharge certain debts which they had contracted, and that the President should assign to them a tract of land on the Missouri River, or some of its waters, suitable and convenient for Indian purposes, 'for a permanent and perpetual residence for them and their descendents.' 7 Stat. 596. Pursuant to this latter provision, the President soon afterwards assigned to them a tract of land on the Missouri River, afterwards known as their reservation, situated within what are now the limits of the State of Kansas. The lands were held by them in common until 1860. In the mean time, white settlements had sprung up around them, and they had adopted many of the habits and customs of the white people. It was by comparison of their own condition with that of their white neighbors-at least we may so infer from what subsequently occurred-that they were induced to believe that the continued ownership of their lands is common was not beneficial to them, and that their prosperity would be promoted if limited quantities were held by individuals in severalty. This consideration led to a new treaty, which was concluded on the 1st of October, 1859, and ratified in July, 1860. 15 id. 467. It recited that the tribes had more lands than were necessary for their occupancy and use, and that they were anxious to promote 'habits of industry and enterprise amongst themselves by abolishing the tenure in common' by which they held their lands, and 'by assigning limited quantities thereof in severalty to the individual members of the tribes, to be cultivated and improved for their individual use and benefit,' and it stipulated, among other things, that a portion of their reservation, amounting to 153,600 acres, should be set apart and retained for that purpose; and that out of it there should be assigned to each member of the tribes, without distinction of age or sex, a tract of eighty acres. It declared that these tracts should not be aliened in fee, leased, or otherwise disposed of by the parties to whom they were assigned, except to the United States or to members of the tribes, and then under such rules and regulations as might be prescribed by the Secretary of the Interior, and that they should be exempt from taxation, levy, sale, or forfeiture, until otherwise provided by Congress.