Petitioners Brief — Countyof Yakima v. Confederated Tribes and Bands of Yakima Nation

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FILED

Nos. 90-408 and 90-577 :

CONSOLIDATED ; WUE 1 yg)

In THE OFFICE OF THE ame

Supreme Court of the United States

OCTOBER TERM, 1991

COUNTY OF YAKIMA and DALE A. GRAY,

Yakima County Treasurer,

¥, Petitioners,

CONFEDERATED TRIBES AND BANDS OF THE

YAKIMA INDIAN NATION

Respondent,

CONFEDERATED TRIBES AND BANDS OF THE

YAKIMA INDIAN NATION

Cross-Petitioner,

COUNTY OF YAKIMA and DALE A. GRAY,

Yakima County Treasurer,

Cross-Respondents.

On Writs of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF PETITIONERS/CROSS-RESPONDENTS,

COUNTY OF YAKIMA AND DALE A. GRAY,

YAKIMA COUNTY TREASURER

JEFFREY C. SULLIVAN R. WAYNE Bur

Prosecuting Attorney TIM WEAVER

Yakima County, Washington COCKRILL, WEAVER & Bur, P.S.,

JOHN V. STAFFAN * 316 North Third Street

Deputy Prosecuting Attorney P.O. Box 487

Room 329, Courthouse Yakima, Washington 98907

Yakima, Washington 98901 (509) 575-1500

(509) 575-4141 Counsel for Respondent /Cross-

Counsel for Petitioners/ Petitioner

Cross-Respondents,

Yakima County, et al.

* Counsel of Record

WILSON - Eres Printinc Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

1/4

QUESTIONS PRESENTED

1. Has the authority for state taxation of Indian

owned fee lands, granted by Congress in Section 6 of the

General Allotment Act (25 U.S.C. 349), been withdrawn.

2. In light of Brendale v. Confederated Tribes, 109

S.Ct. 2994, does the validity of state property taxes,

upon Indian-owned fee lands within an Indian reserva-

tion, as authorized by Congress in 25 U.S.C. 349 (In-

dian General Allotment Act, Section 6), depend upon a

case by case analysis of the economic, political, health and

welfare effects of such tax upon the resident tribe?

3. Is the grant of authority in 25 U.S.C. 349 for the

taxation of reservation Indians and their fee lands lim-

ited to ad valorem taxes, or does it extend to excise taxes

on the sale of such fee lands?

(i)

TABLE OF CONTENTS

QUESTION PRESENTED .................... .

TABLE OF AUTHORITIES ..................... iSinccienigitliiaiaee

OPINIONS BELOW ............... a iN ai ticienats ae

JURISDICTION .......

STATUTE INVOLVED ..............

STATEMENT OF THE CASE...

SUMMARY OF ARGUMENT ......... arelibiisbaieenpintsones iis

ARGUMENT .......... i iiaesiiaieeiinetaadiensanen Siidiastiaekedithinginin |

Congress has the power to authorize these taxes

Congress has authorized the taxation of the

lands involved in this case. That authority has

not been withdrawn and subsequent acts of Con-

gress are consistent with such taxation _.

The United States has repeatedly affirmed the

view that reservation Indian fee lands, such as

those involved in this case, are taxable...

The decision of this Court in Moe v. Salish &

Kootenai Tribes, 425 U.S. 463 (1976) is not

inconsistent with the tax authority asserted by

Yakima County in this case...

Other relevant cases from this Court support

the taxation of these reservation Indian fee

The decision of this Court in Brendale v. Confed.

Tribes of Yakima, 109 S.Ct. 2994 (1989), should

not be taken as limiting or qualifying the state

taxing authority of 25 U.S.C. 349 _.. a

(iii)

TABLE OF CONTENTS—Continued

7. The inclusion of reservation Indian fee land

within “Indian country” for purposes of crimi-

nal jurisdiction or otherwise does not negate

the taxability of the subject lands under Sec.

SURES EI A A Nee eT ne aaa

8. Relevant decisions of this Court support the

application of excise taxes to the sale of other-

wise taxable reservation Indian lands ............

9. A synthesis of applicable decisions of this Court

affords a satisfactory test for state taxing power

i etucinaiiseslen aieainaieiicemainnsiinden

CONCLUSION ............. sncsnieiltaniaaiahashiaiennaianiainiaiaeniniiiinaiaen lassie

BEE csvcsccsccnsesctcssresesncsneesnssemnnnenniin sacuedasgiaideininitiaiatin

Page

TABLE OF AUTHORITIES

CASES: Page

Administrator of FAA v. Robertson, 95 §.Ct. 2140,

45 L.Ed.2d 164, 422 U.S. 255 (1975) . 24

Brendale v. Confed. Tribes, —— US. —, - 109

BE 4, 5, 7, 27-32

Bryan v. Itasca County, 426 U.S. 373 (1976)... 21, 37

Cherokee Tobacco v. United States, 78 U.S. (11

EE a a a eR 8

Cotton Petroleum v. New Merico, Us. ——,

RE ee ee 29

DeCoteau v. District County Court, 420 U. S. 423

SEER SR CSE ee .. $4-35

Goudy v. Meath, 203 U.S. 146 (1906) _.... feat passim

Kennerly v. District Court, 400 U.S. 423 (1971)... 35

Mattz v. Arnett, 412 U.S. 481 (1973) 000... 34

Mescalero Apache Tribe v. Jones, 411 U.S. 145

EE EERE ers ene aa 9, 26

McClanahan v. Ariz. Tax Comm., 411 U.S. 164

Ee a ee ee ae _..... passim

Moe v. Confederated Salish & Kootenai Tribes,

RECESS Sema es or ere nee vase, 7, 22, 37

Morton v. Mancari, 417 U.S. 535 (1974) areeee ho 16, 24

Oklahoma Tax Commission v. Potawatomi Tribe,

US. , 111 S.Ct. 905 (1991)... a 37

Oklahoma Tax Commission v. United States, 319

lit 7, 35-36, 37

Rice v. Rehner, 463 U.S. 713 (1983) . ceseceeereeeeee OD], 37

Roff v. Burney, 168 U.S. 218 (1897) A tora 31

Santa Clara Pueblo v. Martinez, 436 U.S. 1670

ET a ee ee 9,31

Squire v. Capoeman, 351 U.S. 1 (1956) _....... 26, 36, 37

Solem v. Bartlett, 465 U.S. 463 (1984)... 34

United States v. McGowan, 302 U.S. 535 (1938) 8

U.S. v. Wheeler, 435 U.S. 313 (1978) _.................... 9

U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) 15

Washington v. Confederated Bands and Tribes of

the Yakima Indian Nation, 439 U.S. 463

RRR a EGE Je OA aI SENSE - AE See oe) 25

TABLE OF AUTHORITIES—Continued

Page

Washington v. Confederated Tribes of Colville,

ESTE EARS STROSS Oo e 37

Williams v. Lee, 358 U.S. 217 (1959) ............ anaes 10, 35

UNITED STATES CONSTITUTION:

U.S. Constitution, Article I, Section 8,Clause3 x

U.S. Constitution, Article VI, Clause 2 0... x

UNITED STATES TREATIES, STATUTES, AND

REGULATIONS:

Nez Perce Treaty (14 Stat. 647) 0... 19

U.S. Treaty with the Yakimas (12 Stat.951) 3

aR SIC Ee RI 5 IR le ce 32-33, 34-35

General Allotment Act of 1887, 25 U. S.C. 331, et

RR GEESE PE eo nT Mn SAE a 4, 6,11

SIRE SES aa OTS. 11-12, 33

EEE ene eee mmo es Neos 12, 33

| TEE aT TSE passim

Indian Reorganization Act of 1934, 25 U.S.C. 461,

f RRSERRREEEL Soa A | EES SI ae aE passim

i cacaiaaant ae a reo 14

I a 14

EE ES eee 14, 17, 26

25 U.S.C. 608, 608(c) (Act of August 31, 1964;

P.L. 88-640, Sec. 1, 78 Stat. 747).......................... 17

Indian Land Consolidation Act of 1983, 25 U.S.C.

ES A Ie St a a aS a a 17-19

LS see CRONE rah AEE 21

RRR SP SSSR UO ne 20-21

WASHINGTON STATE STATUTES:

i SLR Sie RSS ae 36

RCW 82.45.080 secatedeaeiceenonpeeuaiatiansunteieiiiinnbitctapmeineutah 36

vil

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES: Page

50 1.D. 691 (Dec. 24, 1924) eae 19

51 I.D. 188 (June 30, 1980) .....................cccc ce. ji 19

Cohens Handbook of Fed. Indian Law, 1942 ed... 15

Rutgers Law Review, Vol. IX... 15

Brief of United States for Petitioner, Supreme

Court Docket No. 55-134... a

Brief of United States for Petitioner, Supreme

Court Docket No. 78-1756 ...................0.....000000.... . 19, 20

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

Nos. 90-408 and 90-577

Consolidated

COUNTY OF YAKIMA and DALE A. GRay,

Yakima County Treasurer,

y Petitioners,

CONFEDERATED TRIBES AND BANDS OF THE

YAKIMA INDIAN NATION

Respondent,

CONFEDERATED TRIBES AND BANDS OF THE

YAKIMA INDIAN NATION

¥ Cross-Petitioner,

COUNTY OF YAKIMA and DALE A. GRAY,

Yakima County Treasurer,

Cross-Respondents.

On Writs of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF PETITIONERS /CROSS-RESPON DENTS,

COUNTY OF YAKIMA AND DALE A. GRAY,

YAKIMA COUNTY TREASURER

OPINIONS BELOW

The amended opinion and judgment of the Court of

Appeals for the Ninth Circuit is reported at 903 F.2d

1207, (1990) and is reprinted in the Appendix to the

County’s Petition for Writ of Certiorari (Cert. Pet.

390-408 at pp. la-30a).

The opinion of the United States District Court for the

Eastern District of Washington was not published. It is

reproduced in the Appendix to the County’s Petition for

Writ of Certiorari (Cert. Pet. 90-408 at pp. 34a-39a).

The District Court’s Judgment is reprinted in the same

Apendix at pp. 32a-33a.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

The first opinion of the Court of Appeals was issued

on January 9, 1990. On January 25, 1990, the

Appellants Yakima County and Yakima County Treas-

urer (Petitioners/Cross-Respondents herein) filed Peti-

tion for Rehearing with the Court of Appeals. On

February 21, 1990, the Appellee Confederated Tribes

(Respondent /Cross-Petitioner herein) filed Petition for

Rehearing with the Court of Appeals.

On May 16, 1990, the Court of Appeals issued its

Amended Opinion and Judgment, the amendment relat-

ing to matter not directly addressed in the Rehearing

Petitions and without disposing of the Rehearing Peti-

tions.

On June 7, 1990, the Court of Appeals entered its Or-

der Denying both the Petitions for Rehearing.

The Petition for Writ of Certiorari (#90-408) of the

Petitioners/Cross-Respondents Yakima County and the

Yakima County Treasurer was filed in this Court on

September 5, 1990. The Cross-Petition for Writ of Cer-

tiorari (+90-577) of the Respondent /Cross-Petitioner,

Confederated Tribes and Bands of the Yakim Indian Na-

tion, was filed in this Court on October 3, 1990.

STATUTE INVOLVED

This case involves Section 6 of the Act of February 9,

1887 (24 Stat. 390), as amended by the Act of May 8,

1906 (34 Stat. 182), now codified as 25 U.S.C. 349, which

reads as follows:

349. Patents in fee to allottees

At the expiration of the trust period and when the

lands have been conveyed to the Indians by patent

in fee, as provided in section 348 of this title, then

each and every allottee shall have the benefit of and

be subject to the laws, both civil and criminal, of

the State or Territory in which they may reside;

and no Territory shall pass or enforce any law de-

nying any such Indian within its jurisdiction the

equal protection of the law: Provided, That the Sec-

retary of the Interior may, in his discretion, and he

is authorized, whenever he shall be satisfied that any

Indian allottee is competent and capable of managing

his or her affairs at any time to cause to be issued

to such allottee a patent in fee simple, and there-

after all restrictions as to sale, incumbrance, or

taxation of said land shall be removed and said land

shall not be liable to the satisfaction of any debt

contracted prior to the issuing of such patent: Pro-

vided further, That until the issuance of fee simple

patents all allottees to whom trust patents shall be

issued shall be subject to the exclusive jurisdiction

of the United States: And provided further, That

the provisions of this Act, shall not extend to any

Indians in the former Indian Territory.

STATEMENT OF THE CASE

The Yakima Indian Reservation was established by the

Treaty with the Yakimas in 1855. (12 Stat. 951) The

Reservation encompasses approximately 1.3 million acres

in southeastern Washington State, almost all in Yakima

County. (Appendix to Cert. Pet. +90-408, p. 6a) On

February 8, 1887, Congress passed the Indian General

Allotment Act, also known as the Dawes Act, but re-

ferred to hereinafter simply as the Allotment Act. The

Allotment Act authorized the Secretary of Interior to

allot parcels of Reservation land to individual Indians,

in trust, for a period of 25 years. Following the trust

period the allottee could be granted a patent to the al-

lotted land in fee with all restrictions on alienation re-

moved, which then made the allottee subject to the gen-

eral laws of the state with respect to the land. (25

U.S.C. 349, Clause 1) By the Act of May §&, 1906, also

known as the Burke Act, the Allotment Act was amended

to permit the Secretary to shorten or waive the 25-year

allotment trust period and proceed directly to issue fee

patents.

Under the authority of the Allotment Act there has

been extensive allotment and patenting of lands from

within the Yakima Reservation to individual Yakima

Indians. As noted by this Court in the recent case of

Brendale v. Confederated Tribes, 109 S.Ct. 2994 (1989),

involving the same reservation and principal litigants as

this case, fee patented lands from within the Yakima

Reservation now comprise about 20% (or roughly a

quarter million acres) of the total. The fee lands are

scattered throughout the Reservation area in checker-

board fashion, with substantial clusters in three incor-

porated towns. (J.A. p. 43; 109 S.Ct. at 3000). Some

of the fee lands are still owned by Yakima Indians or

have been reacquired, by individual members or the Tribe,

from intervening owners.

For decades, prior to this lawsuit, Yakima County im-

posed the Washington general property tax on the fee

lands inside the Reservation, whether owned by the

Yakima Tribe or its meinbers or (as most of the fee

lands now are), by non-Indians. (Affidavit of Ralph

Huck; J.A. pp. 29-30) Likewise, prior to this lawsuit,

Yakima County imposed and collected real estate excise

tax on the sale of those lands which were themselves

taxed. (Affidavit of Nancy Davidson; J.A. pp. 27-28).

In 1987, Yakima County commenced its annual, gen-

eral tax foreclosure proceeding in state court against

those real properties throughout the County with 3-year-

past-due taxes, including several properties owned in fee

by the Yakima Tribe or individual Yakima members.

(Complaint of Confederated Tribes, J.A. pp. 2-7; An-

swer of Yakima County, J.A. pp. 31-35). Thereafter on

November 9, 1987, the Yakima Tribe, for itself and its

members, brought this action in the District Court seek-

ing injunctions against; 1) the foreclosure sale of those

tribal-owned and member-owned fee properties within

the Reservation; 2) continued imposition of the ad

valorem taxes on these lands; and 3) collection of state

excise tax on sales of these properties by the Tribe or its

members. (/d.) The Tribe’s substantial theory was that

the Congressional authorization for state taxation of In-

dian fee lands, found in 25 U.S.C. 349, was no longer the

law, in view of this Court’s decision in Moe v. Salish &

Kootenai Tribes, 425 U.S. 463 (1976). Following an

agreed order temporarily restraining the foreclosure

sales of the Indian properties, the case came before the

District Court on cross-motions for summary judgment.

(J.A. pp. 17, 25-26) The District Court granted sum-

mary judgment to the Tribe, accepting the Tribe’s theory

that, according to Moe, the authority for state taxation

contained in 25 U.S.C. 349 had been effectively made

void. (Appendix to cert. Pet. #90-408, pp. 34a-39a)

On January, 1990, the Ninth Circuit Court of Appeals,

in a generally well-reasoned opinion, reversed the Dis-

trict Court, holding that 25 U.S.C. still provides author-

ity for state taxation of Indian-owned fee lands inside

the boundaries of the Reservation. However, based on

the checkerboard pattern of iand ownership within the

Reservation and on a passage concerning tribal zoning

rights from Justice White’s plurality opinion in the re-

cent case of Brendale v. Confederated Tribes, 109 S.Ct.,

2994 (1989) at pg. 3008, it remanded the case for trial

on what it called “the Brendale test” (i.e. whether the

taxes would seriously impact and imperial the political

integrity, economic security, health or welfare of the

Tribe). (Jd. at pp. la-30a) Both parties filed timely

petitions for rehearing. (Court of Appeals Docket No.’s

22 and 23) The Tribe’s petition also requested rehear-

ing en banc. (/d.) Thereafter, not having previously

participated in the case, the United States filed an amicus

curiae brief in support of the Tribe’s rehearing petition

and en bane request. (Jd. Docket Nos. 24 and 27) While

the rehearing petitions were pending, the Court of Ap-

peals amended its previous opinion as to the excise tax

issue, ruling that real estate excise taxes are not within

the scope of Sec. 349. (Id. Docket Nos. 33 and 34) The

cross-petitions for rehearing were denied by Order en-

tered on June 7, 1990. (Jd. Docket No. 36)

SUMMARY OF ARGUMENT

Congress, pursuant to its plenary power over Indian

Commerce, adopted the General Allotment Act of 1887 to

permit the allotment in trust of tribal lands to individual

tribe members.

The Act provided for the issuance, after a period of

trust protection, of an unrestricted fee patent for the

land to the member, and that the member then became

subject to general state laws. In 1906, it was held by

this Court that those general laws included property tax

laws vis-a-vis the land. (Goudy v. Meath, 203 U.S. 146)

The same year, while Goudy was pending, Congress

amended the statute to permit the shortending of the

trust period and providing that, upon the issuance of the

fee patent, “all restrictions as to the sale, encumbrance

or taxation of said land shall be removed.” (25 U.S.C.

349)

After several decades of allotments and patents, Con-

gress changed its policy regarding reservations and

tribes and stopped the allotments and patents with the

Indian Reorganization Act of 1934. The IRA, however,

ON a em tte +

can easily be reconciled with the tax provision of the

Allotment Act so as to give effect to both, and neither

the Allotment Act nor 25 U.S.C. 349 has ever been

repealed.

Moe v. Salish & Kootenai Tribes, 425 U.S. 463 (1976)

represents this Court’s refusal, in light of the aforemen-

tioned policy change, to grant general tax authority over

all reservation Indians’ property and activities, regard-

less of their connection to trust or fee lands. It should

not be considered (as contended by the Tribe below and

as ruled by the District Court) a declaration of the im-

plied repeal of state taxing authority under 25 U.S.C.

349. This conclusion is supported by other applicable

cases, executive pronouncements, and modern statutes,

especially a 1964 amendment to the Yakima Nation land

acquisition statute of 1955. This 1964 statute, clearly

recognized the taxability of reservation Indian fee lands.

The Court of Appeals decision, that the state’s power

to tax under 349 was limited by Brendale v. Confeder-

ated Tribes, is not supported by a proper reading of

Brendale nor by good policy. Applying the “Brendale

test” to this tax question, would engender the kind of

confusion which was, according to the same opinion, to

be avoided. Instead, applicable legal principals as well

as good policy call for a decision based on the language

used by Congress in 25 U.S.C. 349.

The real estate excise tax of the County herein, in light

of Oklahoma Tax Commission v. United States, 319 U.S.

598 (1943), should be considered one of the taxes the

restrictions as to which are removed by the issuance of

a fee patent to a particular parcel of land. Like the

property tax it should be upheld, at least as to sales of

land to non-Indians.

ARGUMENT

1. Congress has the power to authorize these taxes.

Congress has plenary power over Indian affairs. This

power flows from the United States Constitution, Art. I,

Sec. 813) and the Supremacy Clause of Article VI.

This power has been long and consistently recognized

by this Court.’ Exercise of this power overrides prior

conflicting acts or treaties. As stated in the Cherokee

Tobacco, supra at p. 621:

The effect of treaties and acts of Congress, when in

conflict, is not settled by the Constitution. But the

question is not involved in any doubts as to its proper

solution. A treaty may supersede a prior act of Con-

gress (citation omitted) and an act of Congress may

supersede a prior treaty. (citation omitted)

In United States v. McGowan, 302 U.S. 535 (1938)

the status of the lands in the Reno Indian Colony as

“Indian country” for purposes of Indian liquor prosecu-

tions and the power of Congress as to the establishment

and maintenance of the Colony were examined. Justice

Black, for the Court, explained that in such a jurisdic-

tional inquiry, two factors were important: legislative

history and traditional U.S. policy on the subject (in this

case Indian liquior regulation). (302 U.S. 536) Based on

the apparent congressional purpose of protecting the In-

dians in the colony, the superintendence of the Colony for

that purpose, and the tradition of extensive Indian liquor

regulation by the United States the Colony was held to

be “Indian country” for purposes of the criminal prose-

cution. More importantly, the Court observed:

1 Cherokee Nation v. Georgia, 30 U.S. 1 (1831) ; Cherokee Tobacco

v. United States, 78 U.S. (11 Wall) 616 (1871) ; Head Money Cases,

112 U.S. 580 (1884); Lone Wolf v. Hitchcock, 187 U.S. 553 (1903) ;

United States v. Sandoval, 231 U.S. 28 (1913); Williams v. Lee,

358 U.S. 217 (1959); U.S. v. Wheeler, 435 U.S. 313 (1978); Santa

Clara Pueblo v. Martinez, 436 U.S. 1670 (1978).

Congress alone has the right to determine the man-

ner in which this country’s guardianship over the

Indians shall be carried out...

302 U.S. at 536.

More recently, in Santa Clara Pueblo v. Martinez, supra,

the principle was explained in the civil context:

Indian tribes have long been recognized as possessing

the common-law immunity from suit traditionally

enjoyed by sovereign powers. (citations omitted)

This aspect of tribal sovereignty, like all others, is

subject to the superior and plenary control of

Congress.

436 U.S. at 48. Accord, U.S. v. Wheeler, 435 U.S. 313,

323.

While true to the principle of plenary Congressional

power over Indian commerce, a series of modern decisions,

beginning with Mescalero Apache v. Jones, 411 U.S. 145

(1973) and McClanahan v. Ariz. Tax Comm., 411 U.S.

164 (1973), testing the powers of states to tax Indians

«* to their reservation activities and property, have given

a negative formulation to the same rule. According to

this later formulation, states can not tax Indians, their

reservation activities and property, withoui the authori-

zation of Congress.

Justice White, writing for a divided court in Mescalero

put it this way:

[I}n the special area of state taxation, absent cession

of jurisdiction or other federal statutes permitting

it, there has been no satisfactory authority for tax-

ing Indian reservation lands or Indian income from

activities carried on within the boundaries of the

reservation, and McClanahan v. State Tax Commis

sion of Arizona, supra, lays to rest any doubt in

this respect by holding that such taxation is not

permissible without congressional content.

411 U.S. at 148.

Justice Marshall writing for a unanimous court in

McClanahan gave a slightly more flexible formulation,

describing the new trend as one of pre-emption.’

{T]he trend has been away from the idea of inherent

Indian sovereignty as a bar to state jurisdiction and

toward reliance on federal pre-emption. (citing

Mescalero) The modern cases thus tend to avoid

reliance on platonic notions of Indian sovereignty

and to look instead to the applicable treaties and

statutes which define the limits of state power. (cita-

tions omitted)

411 U.S. at 172. Justice Marshall went on to say that

the relevant treaties and statutes are to be read against

the “backdrop” of Indian sovereignty. But against this

“backdrop” it is still the applicable treaties and statutes

which define the limits of state power.

The existence of a sphere of tribal sovereignty had

earlier been recognized. See, e.g., Williams v. Lee, 358

U.S. 217, 223 (1959). The contribution of McClanahan

was to position this sovereignty as a background reference

for the analysis of all cases such as the present one where

state taxing authority over tribal Indians, their reserva-

tion activities and property are at issue.

The problem of how to identify and weigh the McClana-

han tribal sovereignty element in a pre-emption case was

treated in Rice v. Rehner, 463 U.S. 713 (1983).

When we determine that tradition has recognized a

sovereign immunity in favor of the Indians in some

2 By this time (1973) the doctrine of federal pre-emption was

already well developed and had been employed to resolve a question

of state taxes on a licensed Indian trader several years earlier, based

on the extensive federal regulation of the subject. Warren Trading

Post v. Ariz. Tax Comm., 380 U.S. 685 (1965). Reservation Indian

land tenure and taxation had also been the subject of much federal

legislation, so pre-emption was a natural way to approach this and

other similar cases which followed it. It was less suitable for

Mescalero inasmuch as the subjects of taxation in that case were off

the reservation.

respect, then we usually are reluctant to infer that

Congress has authorized the assertion of state au-

thority in that respect “ ‘except where Congress has

expressly provided that state laws shall apply.’”

(citations omitted) Repeal by implication of an es-

tablished tradition of immunity or self-governance is

disfavored. (citation) If, however, we do not find

such a tradition, or if we determine that the balance

of state, federal, and tribal interests so requires, our

pre-emption analysis may accord less weight to the

“backdrop” of tribal sovereignty. (citations omitted)

463 U.S. at 719-720.

In this case (1) there is no established tradition of In-

dian immunity from taxes on their reservation fee lands;

indeed, the long-established tradition is that these lands

are taxable; (2) the applicable acts of Congress contain

unmistakable authorization for taxing these lands; far

from withdrawing or repealing that authorization, Con-

gress consistently acknowledged it in the intervening

years; (3) there is no genuine ambiguity in the appli-

cable statutes as they relate to Yakima County’s taxes

on Indian-owned reservation fee lands and the sale

thereof.

The established tradition as to taxation of fee lands

within the reservation grows directly out of 25 U.S.C.

349 and the other statutes made with reference to it.

Therefore, before discussing the tradition, we will first

turn to examine the applicable acts of Congress bearing

directly or indirectly on the challenged Washington taxes.

2. Congress has authorized the taxation of the lands involved

in this case. That authority has not been withdrawn and

subsequent acts of Congress are consistent with such

taxation.

The General Allotment Act of 1887, 24 Stat. 388, c. 119,

Act of Feb. 8, 1887, is now embodied in 25 U.S.C. 331

et seq. Section 1 of the Act (now 25 U.S.C. 331) provides

for Presidential allotments of reservations lands to in-

dividual Indians. Section 5 of the original Act (now

25 U.S.C. 348) provided for an initial trust allotment

of 25 years duration (the period being extendable by the

President) after which the trust was to be terminated

and the land patented to the allottee in fee. 25 U.S.C.

348 reads, in pertinent part:

Upon the approval of the allotments provided for in

this Act by the Secretary of the Interior, he shall

cause patents to issue therefore in the name of the

allottees, which patents shall be of the legal effect,

and declare that the United States does and will

hold the lands thus allotted, for the period of twenty-

five years, in trust for the sole use and benefit of

the Indian to whom such allotments shall have been

made, or, in case of his decease, to his heirs .. .

and that at the expiration of said period the United

States will convey the same by patent to said Indian,

or his heirs as aforesaid, in fee, discharged of said

trust and free of all charge or encumbrance what-

soever: Provided, that the President of the United

States may in any case in his discretion extend the

period. ...

Section 6 of the original 1887 Act, now embodied in 25

U.S.C. 349, defined the consequences for the allottee of

the issuance of the fee patent, in place of the original

trust patent. The pertinent portion of the original Sec-

tion 6 is still a part of the statute and reads as follows:

That' upon the completion of said allotments and

the patenting of the lands to said allottees, each and

every member of the respective bands or tribes of

Indians to whom allotments have been made shall

have the benefit of and be subject to the laws, both

civil and criminal, of the State or Territory in which

they may reside...

Act of Feb. 8, 1887, c. 119, Sec. 6, 24 Stat. 390. It was

against this statutory background that the case of Goudy

v. Meath, 203 U.S. 146 (1906), arose.

et!

The issue of Goudy was whether the civil laws to which

James Goudy, was subject, as an Indian patent grantee,

included the Washington real property tax laws. The

answer of this Court was yes. Earlier in 1906, shortly

before the Goudy case was decided, Congress amended

Section 6 of the 1887 Act, adding, among other language,

this proviso:

Provided, That the Secretary of the Interior may, in

his discretion, and he is hereby authorized, when-

ever he shall be satisfied that any Indian allottee is

competent and capable of managing his or her affairs

at any time to cause to be issued to such allottee a

patent in fee simple, and thereafter all restrictions

as to sale, encumbrance, or taxation of said land

shall be removed .. .

34 Stat. 182, Act of May 8, 1906, c. 2348 (emphasis

added). This proviso had two substantive effects: one

was to allow the 25 year trust allotment period of Sec-

tion 5 to be shortened or dispensed with completely; the

other was to make plain what was only implicit in the

1887 version of Section 6, that issuance of the fee patent

to an Indian land allottee subjected the land to state

taxation. Thus Congress cleared up this issue for all

cases arising after 1906, and, for the interim, provided

guidance for the Court in its resolution of the Goudy

issue.

A full understanding of the present case and the Dis-

trict Court’s decision herein also requires a close look at

the Indian Reorganization Act of 1934, June 18, 1934, ec.

576, 48 Stat. 984. This Act has been cited as “incon-

sistent” with the General Allotment Act, but more im-

portantly it was cited in the decision of the Supreme

Court in Moe, 425 at 463, 479, which was the ultimate

authority relied on by the District Court. (Appendix to

Cert. Pet. +90-408, pp. 34a-39a).

The Indian Reorganization Act (IRA) halted the break-

up of the reservation, by allotment, which had been occur-

ring under the Allotment Act, provided for replacement of

lost tribal lands and for reorganization of tribal govern-

ments, elections,® and the like. Sections 1, 2 and 5 of the

Act deserve mention. Sec. 1 (25 U.S.C. 461) put an

end to the issuance of individual] fee patents and Sec. 2

(now 25 U.S.C. 462) indefinitely extended the trust re-

strictions on lands already allotted but still in trust (.e.,

whose trust period had not expired) as of June 18, 1934.

Section 5 (25 U.S.C. 465) authorizes the Secretary of

Interior to re-acquire reservation lands and to acquire

off-reservation lands for the Indians, and provides that

those lands acquired under the provisions of this Act shall

be exempt from state and local taxation. The pertinent

portions of 25 U.S.C. 465 are:

The Secretary of the Interior is hereby authorized,

in his discretion, to acquire through purchase, gift,

exchange, or assignment, any interest in lands .. .

within or without existing reservations . . . for the

purpose of providing land for Indians. . . Title to

any lands or rights acquired pursuant to [this Act]

shall be taken in the name of the United States in

trust ..., and such lands or rights shall be exempt

from State and local taxation. 48 Stat. 985, c. 576,

Section 5. (emphasis added; infra, App. p. 1a)

It is clear from the foregoing passage that lands ac-

quired under authority of the Reorganization Act of 1934

by the United States (in trust) for Indians would be-

come, by virtue of such acquisition, exempt from the kind

of taxes at issue in our present case. However, it is also

clear that any lands otherwise subject to state taxation

(i.e., those previously patented to Indians in fee and

% Section 18 (25 U.S.C. 478 contains a provision for elections for

the acceptance or rejection of tribal coverage under the Act. Due to

rejection of IRA coverage by some tribes, executive orders were

used for a time to extend the trust status of allotments on some

reservations. See 25 C.F.R. Ch. I, Appendix Subchapter 0 (94-1-90

Ed.) at p. 746 et seq.

therefore taxable under Section 6 of the Allotment Act)

and not re-acquired by the U.S. for Indians according to

the new 1934 Act, would by implication, remain taxable.

By providing state tax exemption for re-acquired fee

lands, on an acquisition-by-acquisition basis, Congress re-

vealed its own understanding that, absent re-acquisition

of these lands, they remain taxable. This is quite con-

trary to the view of the Tribe and the District Court that

the Reorganization Act impliedly repealed the state prop-

erty tax provision (Section 6) of the Allotment Act. On

the contrary, this treatment of state property tax liability

in the Reorganization Act is perfectly harmonious with

the Allotment Act’s treatment of the same subject.

This analysis is consistent with the rule that statutes

are to be interpreted with regard to their historical and

legal context. U.S. v. Wong Kim Ark, 169 U.S. 649

(1898). 25 U.S.C. 349 has as its salient historical and

legal context, the case of Goudy v. Meath, supra. The

context of the Indian Reorganization Act of 1934 includes

25 U.S.C. 349, the many Indian fee patents which had

already been granted by 1934, and the consequent in-

corporation of reservation fee lands into the state and

county tax base.

One of the drafters of the IRA of 1934 was Felix S.

Cohen. Rutgers Law Revision, Vol. IX, pp. 345 et seq.

Cohen was appointed to head the Indian Law Survey of

the Department of Justice in 1939. Jd. He wrote the

Handbook of Federal Indian Law, published in 1942. Jd.

In Chapter 13, Sec. 3.B, of the Handbook he addresses the

property tax question involved in this case, together with

that of “forced fee patents” (discussed in the Brief of

Amicus Curiae LaPlata County, et al., herein, at pp. 9-

21). Cohen says:

Therefore, it would appear that the allottee under the

General Allotment Act obtains a vested right to tax

exemption which cannot be taken from him without

his consent. Should he, on the other hand, apply for

the issuance of a fee patent and be accorded one pur-

suant to law, there seems no reason to believe that

his lands would not thereby become subject to state

taxation. (footnotes omitted)

Cohen Ist ed. p. 259.

This case does not involve the forced, or non-consentual

patents referred to in this passage.‘ Rather, it involves

only those lands as Cohen describes as “subject to state

taxation”, a mere eight years after his own work on the

Act itself.

In sum then, the keys to exemption from state property

tax on any reservation Indian land, as based on the Re-

organization Act, are: (1) property was continued in

trust status, by virtue of the Act, or (2) the property has

been re-acquired in trust under the authority of the Act.

The lands involved in this case are in neither category.

In enacting the IRA, Congress clearly abandoned the

assimilation policy which had been the basis for the Al-

lotment Act of 1887 and its 1906 amendment. But the

effect of the IRA was not to erase at one stroke the

tax effects of 47 years of allotment history. Rather, it

was to preserve the’ 1934 status quo and allow for step-

by-step restoration of the tax exempt tribal land base.

The IRA and 25 U.S.C. 465 implicitly recognize the con-

tinued taxability of reservation Indian fee lands, so long

as they remain in unrestricted status, and the statutes

do not conflict on this point. In the Indian law juris-

prudence of this Court, the implied repeal of statutes

is not favored. Morton v. Mancari, 417 U.S. 535 (1974).

If, as the District Court believed, the tax exemption of

all reservation Indian lands is restored by force of the

4 None are alleged in the record, and in any event, the relief pro-

vided by Congress from a forced fee patent, not accepted by the

grantee, is tender to the Secretary of Interior, for cancellation,

within the applicable trust period (25 U.S.C. 352a) and application

thereto for reimbursement of any tax payments made in the interim

(25 U.S.C. 352c).

IRA generally and its repudiation of the old policy, then

the specific tax exemption language of Sec. 465 is with-

out effect. By the same logic, the termination acts, by

which many Indian reservations were dissolved in the

1950’s,° could be deemed to have been repealed and the

reservations restored by operation of the Indian Land

Consolidation Act, which was based on the same Indian

land consolidation policy as the IRA and indeed which

incorporated the IRA’s mechanism (25 U.S.C. 465), by

specific reference,® for this purpose. (Act of January 12,

1983, 25 U.S.C. 2201, et seq.)

Of particular relevance to this case is the Act of August

31, 1964, PL 88-540, §1, 78 Stat. 747, which amended

the Act of July 28, 1955 (25 U.S.C. 608), governing pur-

chases of land for the Yakimas. The 1955 Act, PL — -188,

was one of several during the 1950’s which, in apparent

response to the tribal elections which left many tribes

out of IRA coverage,’ authorized the Interior Secretary

to re-acquire for the Yakima’s, from within the Reserva-

tion, lands previously allotted to members and still in

trust or restricted status. It also authorized sale of

tribally owned trust lands to members and in kind ex-

changes of land.

The 1964 amendment incorporated the 1955 statement

of purpose * and authorized the purchase of fee lands or

5 See e.g., Menominee Termination Act of June 17, 1954, 68 Stat.

250, P.L. 83-399; Klamath Termination Act of August 13, 1954,

P.L. 83-587.

®The ILCA, P.L. 97-459, Title II, § 202, 96 Stat. 2517 (now 25

U.S.C, 2202) brings some tribes, who earlier rejected coverage of

IRA in tribal elections, under the IRA’s Sec. 5, the land reacqui-

sition provision.

7Cohens Handbook of Federal Indian Law, 1982 ed. Ch. 11, Sec.

Bl, p. 614, n.19.

’ For the purpose of effecting consolidations of land, situated

within the Yakima Indian Reservation in the State of Washington,

restricted lands for the Tribe, from anywhere in the

area ceded by the Tribe to the United States, Sec. (a) (1)

(25 U.S.C. 608(a) (1)). Section (c) of the Act (codified

as 25 U.S.C. 608(c)), addressed the tax status of the

lands acquired for the Yakimas as follows:

“(e@) In all cases in which the Secretary is acquiring

for the Yakima Tribes lands or interests in lands

presently held in trust or under restrictions for the

benefit of an individual Indian, title shall be taken

in the name of the United States in trust for the

Yakima Tribes. In all cases in which land being pur-

chased is presently held by the grantor in fee simple,

title shall be taken for and held by the Yakima Tribes

in fee and such land shall not, by reason of its being

owned by the tribes, be exempt from taxation in ac-

cordance with the laws of the State of Washington.

(emphasis added )

What is abundantly clear from this passage is that (1)

the tax status of these lands follows their alienability (fee

lands are taxable—trust lands are not) and (2) the

Yakima legislation was not to be used to return fee lands

to trust status. The first point is merely a recognition of

the state of the law, regarding taxation of reservation

Indian lands, as of 1964. The second point was changed

by the Acts of November 1, 1988, PL 10-581, § 213, 102

Stat. 2941 and May 24, 1990, PL 101-301, § 1(a) (3), 104

Stat. 206, so that now any lands acquired for the Yakimas

under See. 608 or 465 must be acquired in trust. This

has the effect of restoring tax exemptions to new acqui-

sitions, one by one,® in accord with the principal estab-

between the Yakima Tribes of Indians and individual members of

the tribes and other Indians, for the mutual benefit of the tribes

and the individual members thereof, the Secretary of the Interior

is authorized in his discretion to—

% Indeed this is the inferable prupose of the legislation, the 1964

Act having been brought sharply to the attention of the Tribe

with the briefs of the County to the District Court in April, 1988

(Dist. Ct. Docket Nos. 20 and 25).

lished by Congress, that fee liens are t ;

lands are not. axable, while trust

3. The United States has repeated!

y affirmed the view that

reservation Indian fee lands, such as those in i i

ps a volved in this

This principle was frequently supported in the actions

and pronouncements of the United States Interior De-

partment, and attorneys advising and representing the

Government from 1924 until 1980. By opinion of Decem-

ber 24, 1924, Solicitor Edwards interpreted the 1906

amendment to Sec. 6 (the First Proviso of 25 U.S.C

349) to mean that upon the issuance of a voluntary fee

patent to an Indian of the Colville Reservation before

the expiration of the original 25-year period of the trust

patent, the property became subject to state taxation

50 I.D. 691. Solicitor Finney, by opinion of June 30,

1930, interpreted Section 6 in the case of a fee patent

issued after the passage of the full 25 years, as provided

for in the original 1887 Act, and against the contention

that the “permanent home” and “perpetual use” language

of the Nez Perce Treaty (14 Stat. 647) carried with it a

tax exemption which survived the patent. The Solicitor

concluded that the fee lands were taxable. 51 I.D. 133.

The Brief of the United States for Petitioner in Squire

v. Capoeman, S.Ct. 455-134 at p. 13, n.4, and the Brief

of the United States in U.S. v. Mitchell, S.Ct. 478-1756

at Pp. 23-24, both support the position of the County

in this case, In the Brief of the United States as Peti-

tioner in Squire v. Capoeman, Supreme Court No. 55-134

the Solicitor discussed the effect of 25 U.S.C. 349 as

viewed by the United States: )

Although not relied on by the courts below, it may

be pointed out that Section 6 of the General Allot-

ment Act, as amended by the Act of May 8, 1906

(App. pp. 42-43), empowered the Secretary of the

Interior, in certain circumstances, to issue a fee

patient to competent allottees and provided that

“thereafter all restrictions as to sale, incumbrance,

or taxation of said land shall be removed.” Since it

had never been the policy of the United States to levy

direct taxes on lands because of the constitutional

requirement of apportionment, this provision was un-

doubtedly intended to make it clear that Indian

lands transferred in fee to the Indians would there-

after be subject to state and local taxation.

In the Brief of the United States, as Petitioner, in

United States v. Mitchell, Supreme Court No. 78-1756,

the Solicitor discussed the purpose and effect for the

holding in trust of Indian lands allotted under the Gen-

eral Allotment Act:

The General Allotment Act thus did not, as the

Court of Claims implicitly concluded, anticipate the

United States would undertake broad management re-

sponsibilities as a statutory trustee for the allotted

lands. The allottees were expected to occupy and

manage the land, enjoying all its use in agricultural

and grazing activites. The United States undertook

to “hold the land * * * in trust” not with the ob-

jective of overriding or controlling the Indians’ right

to exclusive use and possession of the land, but

instead for the limited purposes of (a) restraining

improvement alienation of the land by the allottees

and (b) affording an immunity from state taxation

for the period during which legal title remained in

the United States. 13 Cong. Rec. 3211 (1882) (Sen-

ator Dawes). (Brief of Petitioner at p. 24.) (em-

phasis added ; footnote omitted )

From the Brief of the United States as Amicus Curiae

supporting certiorari in these cases, it appears the posi-

tion of the Government on this issue has undergone a

recent change, one which Yakima County believes is

unwarranted.

Finally 25 C.F.R. 151.10(e), adopted in 1980, requires

certain factors to be weighed by the Interior Depart-

ment before Indian fee lands are taken into trust status,

including the tax effects on local governments. Unless the

fee lands are taxable, such trust taking would have no

tax effects on local government.

4. The decision of this Court in Moe v. Salish & Kootenai

Tribes, 425 U.S. 463 (1976) is not inconsistent with the tax

authority asserted by Yakima County in this case.

In 1976, the Court decided two significant state tax

cases under the Mescalero/McClanahan standard. The

issue in Bryan v. Itasca County, 426 U.S. 373 was whether

28 U.S.C. 1360 subjected to Minnesota property taxes the

mobile home of an enrolled Chippewa Indian situated on

trust land in the Chippewa Reservation. 28 U.S.C. 1360,

was enacted August 15, 1953 as a part of what is popu-

larly known as Public Law 280 (67 Stat. 589). Section

4 of the Act, the portion at issue in Bryan, gave Minne-

sota “jurisdiction over civil causes of action involving

reservation Indians and arising in Indian country” (de-

fined in the statute so as to include the Chippewa Reser-

vation) ; and it applied to such Indians and their prop-

erty “those civil laws . . . that are of general applica-

tion to private persons or private property”. The Court,

in deciding against the taxing authority, interpreted the

statute as only a grant of jurisdiction to hear and de-

cide, in state court, lawsuits involving reservation In-

dians. This conclusion was based on the context and

legislative history of PL-280 and the long-standing canon

of construction taken from Indian treaty law, that am-

biguities in Indian statutes are resolved in favor of In-

dians (citing McClanahan) because:

“Indians stand in a special relation to the federal

government from which the states are excluded unless

the Congress has manifested a clear purpose to ter-

minate [a tax] immuity and allow states to treat

Indians as part of the general community.” (cita-

tion omitted)

426 U.S. at 392.

1° Bracketed passage in original.

The other 1976 case, Moe v. Confederated Salish &

Kootenai Tribes, 425 U.S. 463, followed the approach of

McClanahan in holding that the State of Montana lacked

taxing authority over the cigarette sales and personal

propetry of reservation Indians, despite the clause of 25

U.S.C. 349 (Act of Feb. 8, 1987, ch. 119, Sec. 6, 24 Stat.

390), which subjects Indian allottees to the civil laws of

the state, generally.

The issue in Moe most relevant to this case is whether

25 U.S.C. 349 authorized the State of Montana to tax

the motor vehicle of an Indian merely because the In-

dian resided within the reservation. The State of Mon-

tana did not distinguish between Indians residing on fee

land and those residing on trust land but did rely on 25

U.S.C. 349, apparently taking the view that since con-

siderable reservation lands had been patented in fee,

that the property of all reservation residents was subject

to taxation. Since real property taxes were not involved,

the proviso relied on by the County here was not referred

to."' In effect, Montana asked the Court to extend Sec.

349 beyond its terms and beyond the rule of Goudy in

furtherance of the assimilation policy, already since

repudiated with the IRA in 1934. The Court, reasonably

enough, concluded that the statute’s grant of general civil

jurisdiction over a fee patentee did not include power

to tax the personal property of an Indian who may or

—

11 Since Montana did not limit its asserted taxes to sales by or

property of Indian patentees under 349, or their successors, even

the connection with the first clause of Sec. 349 was a tenuous one.

In general, Montana’s position was that since some reservation

Indians were subject to Montana laws and some reservation Indian

property was taxable, all reservation Indians and all their property

should be so. Indeed, the main argument of Montana in the case

was one of equal protection. See briefs of Montana in Supreme Court

#74-1656/75-50, generally. It is significant that the Court ex-

cerpted this part of Sec. 349 in its opinion at 425 U.S. 477 and

omitted any reference to the proviso relied on by Yakima County

in this case.

may not have been even a successor in interest to any

patentee. Thus the holding in Moe did not represent the

repeal or nullification of Sec. 349 and its authorization

to tax. Rather it is a sensible refusal to go beyond its

plain terms, in view of the change in federal policy which

occurred after the enactment of the statute.

Despite the factual differences between Moe and the

present case, an examination of the reasoning and prin-

ciples of Moe may also shed light on the problem pre-

sented here. Let us then examine the grounds upon which

the Moe decision was based. They were: Clear congres-

sional consent for state taxation is required (id. at 476) ;

the statute relied on does not clearly refer to personal prop-

erty or sales taxes (id. at 477); the treaty and statutes

used in resolving McClanahan and those relevant to Moe

were “essentially the same” (id. at 477); there was no —

case authority for the extension of Section 6 to these par-

ticular taxes, while there was a body of complex juris-

dictional statutes adopted after Section 6 which limited

the reach of state law within reservations (id. at 479);

the policy of assimilation, on which the Allotment Act

was based, was repudiated by the adoption of the Indian

Reorganization Act of June 18, 1934, 25 U.S.C. 461, et

seq. (id. at 479); the checkerboard pattern of mixed

state/federal jurisdiction in reservations is impractical

and undesirable and “eschew[ed]” by both the Congress

and the Court (id. at 478); and the challenged Montana

taxes conflict with the controlling federal statutes and

therefore must give way under the Supremacy Clause

(id, at 480-481, n.17).

None of these reasons should be a barrier to Yakima

County’s taxes in this case. Sec. 349 specifically refers to

taxation of fee patented lands, and Congress’ consent is

unmistakable. The statutory context of this case is thus

different from that of McClanahan where the applicable

statute (the Buck Act) was neutral as to income taxes

upon reservation Indians. There is clear case authority

for at least the property tax involved in this case. Goudy

v. Meath, supra. The statutes adopted since 1887, at least

as they relate to this case, are in harmony, not conflict,

with the County’s position. (pp. 13-19, supra). In particu-

lar, the IRA, though it reflected a change in congressional

policy during the 1930’s toward Indian tribes and reser-

vations, recognized the status quo in regard to what we

now call the “checkerboard pattern” and its tax aspects.

Implied repeal of statutes is disfavored in the law. In

the absence of a clear, affirmative showing of an inten-

tion to repeal, the only permissible justification for im-

plied repeal of one statute by another is that the two

are irreconcilable. When two statutes are capable of co-

existence, the courts must give effect to both unless Con-

gress has clearly expressed a contrary intention. Morton

v. Mancari, 417 U.S. 536 (1974) ; Administrator of FAA

v. Robertson, 422 U.S. 255 (1975). The Allotment Act

and its taxability-of-fee-lands rule (25 U.S.C. 349) are

easily and properly reconciled with the Reorganization

Act by allowing state taxation of those reservation lands

patented in fee before 1934 (and not yet re-acquired ac-

cording to IRA Sec. 5), by preserving the trust status

(and consequent tax exemption) of reservation lands

never patented in fee, and by restoring the trust status

(and tax exemption) of those lands reacquired accord-

ing to the terms of the Act by the United States for those

Indians and tribes covered by the IRA.

Yakima County respectfully submits that there is no

implied repeal of the power of states and counties to

tax reservation Indians’ fee lands. Moreover, such re-

peal, if found by this Court, would raise a set of other

imponderable questions related to overlapping Indian

and non-Indian interests created in the post-Allotment

Act era. E.g., lands owned by partnerships of Indians

with non-Indians or by marital communities of mixed

status, mortgagors, mortgagees, contract buyers, contract

sellers, holders of easements, ete. These problems need not

and ought not be thrust on the County or the courts.

Since this Court’s ambiguous 1976 reference to “ -

erboard” jurisdiction in Moe, it has decided yn

of Washington v. Confederated Tribes of the Yakima In-

dian Nation, 439 U.S. 463 (1979) in which the Yakima

Nation had challenged the legality of Washington’s as-

sumption of fairly broad civil and criminal jurisdiction

over Indian reservation lands in Chapter 36, 1963 Wash-

ington Laws (RCW 37.12). Just as the statutes authoriz-

ing the taxes at issue in this case, those at issue in Wash-

ington v. Confederated Tribes had a “checkerboard” ef-

fect because they resulted in state jurisdiction over mat-

ters on fee lands, but not over matters on trust lands.

=a bape i. yd se thee disposed of the Tribe’s argu-

ent agai rd jurisdicti wate

ious ounaeaiinee jurisdiction, stating in per-

“The lines the State has drawn may well be di

to administer. But they are no a or less yw

many of the classifications that pervade the law of

Indian jurisdiction. [citations] . . . The land-tenure

classification made by the State is neither an irra-

tional nor arbitrary means of identifying those

areas within a reservation in which tribal members

have the greatest interest in being free of state

police power. Indeed, many of the rules developed

in this Court’s decisions in cases accommodating the

sovereign rights of the tribes with those of the States

are strikingly similar. [citations] In short, check-

erboard jurisdiction is not novel in Indian law, and

does not, as such, violate the Constitution.

439 U.S. 502.

A more detailed analysis of Moe was done by the Court

of Appeals and appears at Cert. Pet. #90-408 App. 15a-

27a. Beyond that analysis the County will only urge this

Court not to expand the narrow holding into this markedly

different case.

5. Other relevant cases from this Court support the taxation

of these reservation Indian fee lands.

Goudy v. Meath, 203 U.S. 146 (1906), holding that

reservation Indian fee lands are properly subject to taxa-

tion under Sec. 6, has never been overruled by this Court.

Indeed the observations and rulings of this Court in sub-

sequent cases are consistent with and support this rule.

Squire v. Capoeman, 351 U.S. 1, considered the question

of whether the sale of timber from allotted reservation

lands held in trust for a Quinault Indian could be taxed

under Internal Revenue laws. The Court, per Chief

Justice Warren, resolved the question by reference to 25

U.S.C. 349, reasoning that by subjecting allotted lands

to taxation upon the issuance of the fee patent, Congress

revealed its intent to shield the trust allotment (includ-

ing timber harvested therefrom) from taxation until the

termination of the trust. The Chief Justice made spe-

cific reference to the proviso of Sec. 349, saying:

The literal language of the proviso evinces a con-

gressional intent to subject an Indian allotment to

all taxes only after a patent in fee is issued to the

allottee. This, in turn, implies that, until such time

as the patent is issued, the allotment shall be free

from al] taxes, both those in being and those which

might in the future be enacted. (emphasis added)

351 U.S. 7-8.

Mescalero Apache Tribe v. Jones, supra, involved the

validity of the two state taxes, one being a use tax on

ski lift equipment owned by the Tribe and permanently

attached to trust land acquired by the United States for

the Tribe under 25 U.S.C. 465 (IRA Sec. 5) but located

off the Reservation. After observing that states generally

have full authority over Indians outside the reservation

(411 U.S. at 148), the Court nevertheless held the fixtures

exempt from the state taxes based on their connection

with the underlying trust land, because:

[U]se of permanent improvements upon land is so

intimately connected with use of the land itself that

an explicit provision relieving the latter of state

tax burdens must be construed to encompass an ex-

emption for the former. “Every reason that can be

urged to show that the land was not subject to local

taxation applies to the assessment and taxation of

the permanent improvements.” United States v.

Rickert, supra, 188 U.S. at 442, 23 S.Ct. at 482.

(quotation marks in original)

411 U.S. 158-159. This supports the position of Yakima

County that, under the Allotment Act and the IRA, it is

the trust or fee character of the land title, rather than

the on or off-reservation location, which determines the

taxability of Indian-owned property.

6. The decision of this Court in Brendale v. Confed. Tribes

of Yakima, 109 S.Ct. 2994 (1989), should not be taken as

limiting or qualifying the state taxing authority of 25

U.S.C. 349.

In Brendale v. Confed. Tribes of Yakima, 109 S.Ct.

2994 (1989), was initially brought by Respondent/Cross-

Petitioner Yakima Tribe against the Petitioners/Cross-

Respondents Yakima County, et al., to obtain a declaration

of the Tribe’s exclusive power as against the County to

zone non-member-owned fee lands inside the Reservation

boundaries. 109 S.Ct. at 3062. This Court was divided on

the issue, with four Justices of the view that the power

to zone these fee lands belonged to the County and not

the Tribe, three Justices of the view that the Tribe had

the exclusive power, and two Justices holding that the

power to zone any particular parcel of property depended

on the pattern and prevalence of fee or trust land status

in that portion of the Reservation where the subject

property was situated. 109 S.Ct. at 3015-3017. As a re-

sult the Tribe was held to have exclusive authority to

zone in the large “closed area” of the Reservation where

fee lands are very sparse, but the County to have the

power in the balance of the Reservation (the “open area”’)

because of the large percentage of lands therein owned in

fee by the non-members of the Tribe. 109 S.Ct. at 3016.

The White plurality view was that the issuance of

each fee patent under the Allotment Act had thereby

divested the Tribe of the power to zone that parcel and

that therefore such lands were subject to county zoning.

109 S.Ct. 3003-3004. However, he went on to say that

the County’s power over these was not unlimited, where

particular land uses would have demonstrably serious

impacts which would imperil the political integrity, eco-

nomic security or the health and welfare of the Tribe.

109 S.Ct. 3008. The political integrity, economic security,

health and welfare of an Indian tribe, as such, is a gen-

eral description of those matters recognized within the

notion of tribal sovereignty. It is a federally protected

interest of the tribe, enforceable by injunction, which, as

Justice White says “the Supremacy Clause requires state

and local governments, including Yakima County zoning

authorities, to recognize and respect ...” 109 S.Ct.

3008. However, as observed by Justice White, this tribal

sovereignty is limited to matters of tribal self-govern-

ment and internal affairs. Yakima County submits that

taxation of fee lands within the Reservation is not such

a matter, according to Justice White’s Brendale analy-

sis. As he says at 109 S.Ct. 3005-3006:

A tribe’s inherent sovereignty, however, is divested

to the extent it is inconsistent with the tribe’s

dependent status, that is, to the extent it involves

a tribe’s “external relations.” Wheeler, supra, 435

U.S. at 326, 98 S.Ct. at 1087. Those cases in which

the Court has found a tribe’s sovereignty divested

generally are those “involving the relations between

an Indian tribe and nonmembers of the tribe.” bid.

For example, Indian tribes cannot freely alienate

their lands to non-Indians. . . . ‘quotation marks in

original; citations omitted)

Alienation of tribal trust lands by the United States,

alienation by individual patentees of their own lands, and

liability of these lands to involuntary alienation through

tax enforcement are very specifically addressed by Con-

gress in 25 U.S.C. 348 and 349. Indeed, this case was

brought because of the tax relations between Indians and

non-member tax collectors, and to prevent such an in-

voluntary alienation of 139 specific properties. Prayer

of Tribes Complaint, J.A. p. 6; Fact Stipulation, para. 3,

J.A. p. 37. It thus follows that Yakima County’s chal-

lenged property taxes do not implicate tribal sovereignty

nor give rise to any injunction remedy as set forth by

Justice White, because they are “external”, rather than

“internal” matters.

The fundamental differences between zoning and taxa-

tion counsel against application of a “Brendale test” to a

tax case. The essence of zoning is the prevention of uses

with negative effects on nearby properties. It is thus

preventive in nature and local in effect. Property taxa-

tion, by contrast, operates directly on the individual prop-

erty owner, via his property, so as to finance governmental

benefits which are not local but enjoyed throughout the

taxing entity’s jurisdiction. It is essentially remedial,

rather than preventive, in nature and non-local in effect.

Moreover, if state (or county) and tribal governments

have inconsistent zoning schemes, each is destructive of

the other. This was recognized implicitly by both the

White plurality and the Blackmun minority in Brendale.

Multiple and differing taxation schemes operating on the

same property or activity, however, are common and are

legally compatible, as recently recognized by this Court in

Cotton Petroleum v. New Mezxico, 109 S.Ct. 1698 (1989).

Whatever logic there may be to judging county zoning

according to its effect on a neighboring tribal property,

there is no such logic to judging county taxes according

to their indirect effect on the tribal body politic.

The White plurality opinion also counsels against case-

specific tests for zoning authority which could result in

shifting, transitory powers, engendering uncertainty as

to the incidents of land ownership to the detriment of both

governments and private land owners. 109 S.Ct. at 3007-

3008. Due to the many factual variables in the property

tax equation, the “Brendale test” as conceived by the

Court of Appeals would create just the kind of chaos

which Justice White sought to avoid. Such a test for

county tax authority would subject county revenue and

budgeting, in reservation areas, to an ever-shifting analy-

sis of numerous facts with taxation of these lands switch-

ing on or off like an electric light.

In no two cases will the consequences of taxing reserva-

tion lands be the same for the home tribe. Consider the

many factors to be weighed, including: (1) The relative

amounts of fee and trust lands within the reservation;

(2) the relative amounts of tribal-owned and member-

owned fee lands; (3) the rates of tax within the reserva-

tion; (4) frequency of tax defaults by tribe members;

‘S) availability of tribal tax assistance programs for

members; (6) the extent to which the lands to be taxed,

or their owners, generate income for the tribe: and (7)

the extent to which the lands to be taxed are actually

used for tribal purposes. Each of these factors will not

only vary from place to place, but also over time, so that

if the Court of Appeals decision in this case becomes the

law, these same fact questions may have to be litigated

every few years as to most if not all the Indian reserva-

tions still existing in the United States. If the judgment

of the Court of Appeals on this point is allowed to stand,

tribes and their members may or may not benefit. But

we can be certain that the rights and burdens of land

ownership in large portions of the American West will

be thrown into doubt which can only be mitigated through

complex and costly litigation, county-by-county, reserva-

tion-by-reservation and, year-by-year. The sensible alter-

native to these accumulating years of lawsuits is to give

25 U.S.C. 349 its plain and intended meaning unless and

until it is repealed by Congress and to reject any attempt

to cut back its effect with a “Brendale test.”

Ironically, several of the above factors could be in-

fluenced if not controlled by the tribes to the detriment

of tribal members and county government.”

It is worth noting here that tribal powers rightly in-

clude control over standards for membership. Roff v.

Burney, 168 U.S. 218 (1897); Santa Clara Pueblo v.

Martinez, 436 U.S. 72, n.82 (1978). There are many rea-

sons why a tribe may wish to relax the blood-quantum

standard or other criteria for membership."* If tribal

membership is held to create a blanket property tax ex-

emption within reservation boundaries, internal tribal

affairs could, especially in some counties, cause unpredict-

able disturbances in county tax revenues. Such a rule

could create additional and undesirable political tension

between county and tribal governments. Moreover, re-

gardless of any change in membership standards or num-

bers within the reservation, if the tax exemption inheres

12 For illustration, consider a tribe with ample corporate funds

with which it carries on tribal welfare programs including loans to

members which may be used to meet tax obligations. Such a thriv-

ing tribe should be practically unaffected by taxes on member-owned

lands and thus, under the Circuit Court’s reasoning would therefore

itself be denied a tax exemption for its fee lands. If this same tribe

depleted its available funds in the acquisition of fee lands within

the reservation, cut back welfare and tax loan programs and stood

by for the inevitable member defaults, the increasing relative im-

pacts of state taxes on tribal welfare would likely result in valuable

tax exemption for the tribe and those members still holding reserva-

tion lands, but at the expense of other tribal benefits, not to mention

the general public purse.

13 The widely publicized 1990 census results included a marked

increase in the number of persons identifying themselves as Indians,

an apparent reflection of the increasingly high value placed on

ethnicity in our society. It would not be unreasonable for a given

tribe to lower its blood-quantum requirement from, e.g. 1/4 to 1/8

or from 1/8 to 1/16, in furtherance of a similar sociological value,

in the Indian owner (the Tribe’s view), rather than the

property (the County’s view), the well-known tax plan-

ning device of sale-leaseback acquires a new dimension—

as a device by which non-Indian property owners on the

reservation can share the tax immunity of their Indian

neighbors. Yakima County believes that reservation peo-

ple should not be induced to collude in this way for the

avoidance of taxes.

It is also important that, though for different reasons,

the County and the Tribe in their Petitions for Certiorari

and the United States as Amicus Curiae in its Brief to

the Court supporting those petitions, are unanimous in

the view that this case should not be decided under Jus-

tice White’s “Brendale testi”.

7. The inclusion of reservation Indian fee land within

“Indian country” for purposes of criminal jurisdiction

or otherwise does not negate the taxability of the subject

lands under Sec. 349.

18 U.S.C. 1151 reads:

$1151. Indian country defined

Except as otherwise provided in section 1154 and

1156 of this title [18 U.S.C. §§ 1154 and 1156],

the term “Indian country”, as used in this chapter

[18 U.S.C. $$ 1151 et seg.], means (a) all land

within the limits of any Indian reservation under the

jurisdiction of the United States Government, not-

withstanding the issuance of any patent, and, includ-

ing rights-of-way running through the reservation,

(b) all dependent Indian communities within the

borders of the United States whether within the

original or subsequently acquired territory thereof,

and whether within or without the limits of a state,

and (c) all Indian allotments, the Indian titles to

which have not been extinguished, including rights-

of way running through the same.

(Act of June 25, 1948, ch. 645, $1, 62 Stat. 757; as

amended by Act of May 24, 1949, ch. 139, § 25, 63 Stat.

94.)

a ——

It has been argued by the Tribe in this case that by

defining “Indian Country” in 1151 to include reservation

fee lands, Congress deprived the states and counties of

the suthority previously granted under Sec. 349 to tax

these fee lands (if owned by Indians). After the rejec-

tion of this theory by the Court of Appeals (Appendix to

Cert. Pet. +90-408, pp. 21la-22a, 24a). The United

States, Amicus Curiae, in its Brief to this Court on cer-

tiorari refa‘hivned it. The United States now argues

(Brief, pp. 15-16, n. 10) that 1151 simply “changed the

effect” of Sec. 349 so as to forbid state taxes on Indian

fee lands inside, but not outside, the reservation bound-

aries; And that it does so by “codif|ying] the pre-emptive

principal embodied in the “many and complex intervening

jurisdictional statutes” enacted since the 1906 revision of

Section 6 of the General Allotment Act, that are “directed

at the reach the state and within reservation lands.”

Moe, 425 U.S. at 479 (footnote omitted)”. This theory

still does not withstand scrutiny.

Section 1 of the General Allotment Act (25 U.S.C. 331)

provides the basic authority for the making of the allot-

ments referred to in 25 U.S.C. 348 and 349. These al-

lotments are of lands from inside the reservation. Sec.

331, the first sentence, reads:

In all cases where any tribe or band of Indians has

been or shall be located upon any reservation created

for their use by treaty stipulation, Act of Congress,

or executive order, the President shall be authorized

to cause the same or any part thereof to be sur-

veyed or resurveyed whenever in his opinion such

reservation or any part may be advantageously uti-

lized for agricultural or grazing purposes by such

Indians, and to cause allotment to each Indian lo-

cated thereon to be made in such areas as in his

opinion may be for their best interest not to exceed

eighty acres of agricultural or one hundred and

sixty acres of grazing land to any one Indian.

It is too well established to require citation that the pur-

pose of the Allotment Act was to dismantle the reserva-

tions to be then absorbed into the surrounding states and

counties. For the United States now to argue that Sec.

349 should have two different applications, one outside and

one inside the reservation, is disingenuous.

As noted by the Court of Appeals in this regard, 18

U.S.C. 1151 and its definition of “Indian country” are

criminal provisions, and do not designed as such for ap-

plication in a civil context. Sec. 1151 was inserted in the

Indian portion of the United States Criminal Code as a

part of a large scale criminal code revision in 1948 and

its 1949 amendments. Act of June 25, 1948, Ch. 646,

P.L. —-773; Act of May 24, 1949, Ch. 139, P.L. — -72.

However, as the United States has asserted, this section

and the term “Indian country” as used there have been

resorted to for guidance in resolving some civil cases

where the primary civil statute was not sufficiently spe-

cific. Therefore the cases cited by the United States for

this theory may deserve mention.

In Solem v. Barlett, 465 U.S. 463 (1984), the issue was

whether the 1908 opening of the Cheyenne River Sioux

Reservation to non-Indian settlement had the effect of

diminishing the size of the Reservation. Resort was had

to § 1151 in answering this question because, as the Court

explained, in adopting the 1908 settlement statute, Con-

gress did not anticipate the question raised in the case

and therefore failed to provide an answer to it. 465 U.S.

468.

Mattz v. Arnett, 412 U.S. 481 (1973) likewise involved

the continued reservation status of another area which

had been opened to non-Indian settlers by an act in which

clear language of termination for the reservation could

not be found. Section 1151 again provided a helpful ref-

erence which was used together with other collateral stat-

utes 412 U.S. 505-506. DeCoteau v. District County

Court, 420 U.S. 423 (1975) was another termination

te eee mo

case. The question was whether cession of a large portion

of the reservation to the United States, followed by mesne

transfer thereof to non-Indians, left the state with juris-

diction over acts occurring on these fee lands. The Court

there held that the state did possess the questioned juris-

diction, based on the plain meaning of the applicable stat-

ute and its surrounding circumstances and legislative his-

tory. 420 U.S. 444-445.

McClanahan v. Ariz. Tax Comm., 411 U.S. 164, 177

(1973) was another case in which the statute (the Buck

Act) which addressed the subject matter of the litigation

(state income taxes on federal reservation residents) was

neutral as to its application to reservation Indians. Again,

the customary resort to Sec. 1151 as an analogous source.

Kennerly v. District Court, 400 U.S. 423 (1971), in-

volved the issue of the effectiveness of a tribal grant of

state jurisdiction (held ineffective), and neither Sec. 1151

nor the term “indian country” was relied on. In Williams

v. Lee, 358 U.S. 217, 220-222 (1959), the Court cited Sec.

1151 as illustrative of federal criminal jurisdiction prin-

cipals 358 U.S. at 220.

In all these cases, either the Sec. 1151 definition of

“Indian country” was not used to resolve the case, or it

was used due to lack of sufficient detail for the Court’s

purposes in the primary statute on the subject. In 25

U.S.C. 349 we have very clear congressional assent to

state taxation of fee lands, and resort to the criminal code

for its definition of “Indian country” is simply not war-

ranted. Indeed, to do so would be, in the language of

Rice v. Rehner, 463 U.S. 733, to convert a canon of con-

struction into a license for the disregard of congressional

intent.

8. Relevant decisions of this Court support the application

of excise taxes to the sale of otherwise taxable reservation

Indian lands.

This Court has dealt at least twice with the issue of an

excise tax on the transfer of Indian property. Oklahoma

Tax Commission v. United States, 319 U.S. 598 (1943)

involved Oklahoma estate taxes on the transfer through

probate of lands and other property. Some of the lands

had been taxable in the hands of the decedent and some

had been exempt. It was held that transfer of the lands

which were taxable before the owners death was there-

fore subject to the estate tax, while transfer of the exempt

lands was not.

Squire v. Capoeman, 351 U.S. 1 (1956) concerned capi-

tal gains tax on the sale of timber harvested from Indian

trust land in the Quinault Reservation. The Court held

that such sale was not taxable, but said with reference

to Sec. 349:

The literal language of the proviso evinces a con-

gressional intent to subject an Indian allotment to

all taxes only after a patent in fee is issued to the

allottee. (emphasis added) |

351 US. 7-8.

Though the tax was not upheld in Squire, this passage is

a very plain endorsement for the application of Yakima

County’s state excise tax on the fee-patented lands in-

volved in this case.

In addition to the personal obligation imposed by the

Washington real estate excise statute on the seller, the

sale of reality also creates a lien upon the property

(82.45.070, Appendix, infra, p. 2a) which can then be

enforced in the hands of the buyer. (RCW 82.45.080,

Appendix, infra, p. 2a) If the Court determines that

Yakima Indians cannot be required to pay the tax as

called for in 82.45.080, the further question is presented

whether the lien of 82.45.070 can properly be enforced

in the hands of the buyer if the buyer is a non-Indian.

The Moe case itself, in addition to the personal property

tax discussed supra, involved the Montana tax on sales

of cigarettes by reservation Indians from reservation

smoke shops. It was held that the Indian sellers could

lawfully be required to collect the sales tax on sales to

non-Indians because the burden of the tax fell on the non-

Indian buyer. In Washington v. Confed. Tribes of Colville,

447 U.S. 134 (1980), the Court considered and upheld the

authority of Washington to impose both a cigarette excise

and general personal property tax on reservation sales of

cigarettes by Indians to non-Indians. Recently, in Okla-

homa Tax Commission v. Potawatomi Tribe, US.

——, 111 S.Ct. 905 (1991), the Court considered state

sales tax on tribal sales of cigarettes from an off-reser-

vation trust land location. In holding the sales to Indians

were exempt and those to non-Indians were taxable, the

Court followed Moe and Colville and rejected the argu-

ment, now made by the United States here, that the

location of the subject being taxed (whether inside or

outside a reservation) was determinative.

Yakima County submits that the applicable rules of

Oklahoma, Moe, Colville, and Potawatomi, as well as the

dicta in Squire, support the real estate excise tax at

issue here, at least where the buyer is non-Indian.

9. A synthesis of applicable decisions of this Court affords

a satisfactory test for state taxing power in this case.

A suitable approach to resolving the present case can

be extracted from McClanahan, Bryan, Rehner and Moe:

(1) determine whether there is a recognized tradition of

Indian immunity from the challenged taxes (Rehner),

(2) determine whether the applicable acts of Congress

authorize the challenged taxes (McClanahan), and, where

an established tradition of Indian immunity exists,

whether the authorization is unmistakably clear (Mc-

Clanahan, Bryan), (3) where genuinely ambiguities exist

in the acts of Congress, resolve them in favor of the

Indians, but without disregarding clear expressions of

intent."* (Rehner)

4 “We give this rule [resolving ambiguities in favor of Indians}

the broadest possible scope, but it remains at base a canon for

constrving the complex treaties, statutes, and contracts which define

CONCLUSION

Yakima County respectfully prays that this Court

affirm the Court of Appeals as to county authority to

tax the lands in this case and reverse the Court of Ap-

peals as to the “Brendale test” qualification of such au-

thority and as to authority to impose its real estate excise

tax on sales of reservation Indian fee lands, at least

those to non-Indian buyers.

Respectfully submitted,

JEFFREY C. SULLIVAN R. WAYNE BJuR

Prosecuting Attorney Tim WEAVER

Yakima County, Washington COCKRILL, WEAVER & BJur, P.S.

JOUN V. STAFFAN * 316 North Third Street

Deputy Prosecuting Attorney P.O. Box 487

Room 329, Courthouse Yakima, Washington 98907

Yakima, Washington 98901 (509) 575-1500

(509) 575-4141 Counsel for Respondent /Cross-

Counsel for Petitioners / Petitioner

Cross-Respondents,

Yakima County, et al.

* Counsel of Record

the status of Indian tribes. A canon of construction is not a license

to disregard clear expressions of tribal and congressional intent.”

463 U.S. at 733-734, quoting from DeCoteau v. District County

Court, 420 U.S. 425, 447 (1975).

APPENDIX

(United States Code, Title 25)

§ 465. Acquisition of lands, water rights or surface

rights; appropriations; title to lands; tax exemp-

tion

The Secretary of the Interior is hereby authorized, in

his discretion, to acquire, through purchase, relinquish-

ment, gift, exchange, or assignment, any interest in lands,

water rights, or surface rights to lands, within or without

existing reservations, including trust or otherwise re-

stricted allotments, whether the allottee be living or de-

ceased, for the purpose of providing land for Indians.

For the acquisition of such lands, interests in lands,

water rights, and surface rights, and for expenses inci-

dent to such acquisition, there is authorized to be ap-

propriated, out of any funds in the Treasury not other-

wise appropriated, a sum not to exceed $2,000,000 in any

one fiscal year: Provided, That no part of such funds

shall be used to acquire additional land outside of the

exterior boundaries of Navajo Indian Reservation for

the Navajo Indians in Arizona, nor in New Mexico, in

the event that legislation to define the exterior bound-

aries of the Navajo Indian Reservation in New Mexico,

and for other purposes, or similar legislation, becomes

law.

The unexpended balances of any appropriations made

pursuant to this section shall remain available until ex-

pended.

Title to any lands or rights acquired pursuant to sec-

tions 461, 462, 463, 464, 465, 466 to 470, 471 to 473,

474, 475, 476 to 478, and 479 of this title or sections

608 to 608¢ of this title shall be taken in the name of the

United States in trust for the Indian tribe or individual

Indian for which the land is acquired, and such lands

or rights shall be exempt from State and local taxation.

(June 18, 1934, c. 576, $5, 48 Stat. 985; as amended

Nov. 1, 1988, Pub.L. 100-581, Title II, § 214, 102 Stat.

2941.)

(Revised Code of Washington)

82.45.070 Tax is lien on property—Enforcement. The

tax herein provided for and any interest or penalties

thereon shall be a specific lien upon each piece of real

property sold from the time of sale until the tax shall

have been paid, which lien may be enforced in the man-

ner prescribed for the foreclosure of mortgages. [1969

ex.s. ¢ 223 § 28A.45.070. Prior: 1951 1st ex.s. ¢ 11 § 9.

Formerly RCW 28A.45.070, 28.45.070. }

82.45.080 Tax is seller’s obligation—Choice of reme-

dies. The tax levied under this chapter shall be the obli-

gation of the seller and the department of revenue may,

at the department’s option, enforce the obligation through

an action of debt against the seller or the department

may proceed in the manner prescribed for the foreclosure

of mortgages and resort to one course of enforcement

shall not be an election not to pursue the other. [1980

e 154 §3; 1969 ex.s. ec 223 § 28A.45.080. Prior: 1951

Ist ex.s. c. 11 § 10. Formerly RCW 28A.45.080, 28.45.080. |

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.