(Syllabus.)
1. Licenses — Validity of Federal Statute Subjecting to State Gross Production Tax Oil and Gas Produced From Restricted Lands of Indians.
The Congress of the United States acted within its powers in passing the Act of May 20, 1928, section 3 (45 Stat. L. 495), and the Act of February 14, 1931 (46 Stat. L. 1108, 1109), subjecting to the gross production tax of Oklahoma the lessee's interest in oil and gas produced from restricted allotted hands of members of the Five Civilized Tribes.
2. Same — Holder of Oil and Gas Lease Held not Exempt From Tax Though Lease Acquired Before Passage of Statute.
The holder of an oil and gas lease on the restricted homestead allotment of a Seminole Indian is not entitled to exemption from the gross production tax of Oklahoma on its share of the oil and gas produced from such land subsequent to October, 1931, even though the lessee acquired the lease prior to May 20, 1928.
HURST, J.
This is an action by the plaintiff, Gypsy Oil Company, to recover gross production taxes paid by it, under protest, on its seven-eighths working interest in oil produced by it from five restricted homestead allotments of Seminole Indians. The oil on which the taxes were paid was produced in November and December, 1931, and January, 1932, under departmental leases acquired by the plaintiff prior to May 20, 1928. The plaintiff urges but one proposition here, and that is that the Act of Congress approved May 20, 1928, section 3 (45 St. L. 495), and the Act of Congress of February 14, 1931 (46 St. L. 1108, 1109), which authorize the state to levy such tax, violate the Fifth and Fourteenth Amendments to the Federal Constitution, in that they violate the Seminole Original Agreement (30 Stat. 567), under which said lands are "inalienable and nontaxable as a homestead in perpetuity."
The plaintiff admits in its brief that the decision in Carter Oil Co. v. Oklahoma Tax Commission (1933) 166 Okla. 1, 25 P.2d 1092, decides the question contrary to its contention, and unless that case is overruled, it is not entitled to prevail. We have carefully considered the able argument contained in the brief of the plaintiff, but are unable to agree with it that we should depart from the decision in said case.
The judgment of the trial court, holding that the petition of the plaintiff did not state a cause of action for recovery of the taxes paid, is affirmed.
OSBORN, C. J., BAYLESS, V. C. J., and PHELPS and GIBSON, JJ., concur.