# Amicus Curiae Brief — Countyof Yakima v. Confederated Tribes and Bands of Yakima Nation > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0026%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1992 - **Citation:** 502 U.S. 251 ## Text OCTOBER TERM, 1991 COUNTY OF YAKIMA and DALE A. GRAY, Yakima County Treasurer, e Petitioners, CONFEDERATED TRIBES AND BANDS OF THE YAKIMA INDIAN NATION, Respondent. CONFEDERATED TRIBES AND BANDS OF THE YAKIMA INDIAN NATION, Cross-Petitioner, V. COUNTY OF YAKIMA and DALE A. GRAx, Yakima County Treasurer, Cross-Respondents. On Writs of Certiorari to the United States Court of Appeals for the Ninth Circuit BRIEF FOR LA PLATA COUNTY, COLORADO; BANNOCK COUNTY, LEWIS COUNTY AND POWER COUNTY, IDAHO; BECKER COUNTY AND MAHNOMEN COUNTY, MINNESOTA; BLAINE COUNTY, FLATHEAD COUNTY, GLACIER COUNTY, LAKE COUNTY AND ROOSEVELT COUNTY, MONTANA; THURSTON COUNTY, NEBRASKA; MOUNTRAIL COUNTY AND SIOUX COUNTY, NORTH DAKOTA; CORSON COUNTY, DEWEY COUNTY, LYMAN COUNTY, TODD COUNTY AND ZEIBACH COUNTY, SOUTH DAKOTA; DUCHESNE COUNTY, UTAH; AND FREMONT COUNTY, WYOMING, AS AMICI CURIAE IN SUPPORT OF PETITIONERS Tom D. ToBIN * TOBIN LAW OFFICES, P. C. 422 Main Street Winner, South Dakota 57580 (605) 842-2500 * Counsel of Record (Additional Counsel Listed on Inside Cover) WILSON - Erase Printing Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001 SUSAN W. PAHLKE Todd County Deputy States Attorney P.O. Box 482 Winner, South Dakota 57580 (605) 842-2551 TABLE OF CONTENTS INTEREST OF AMICI CURIAE EEgEEgz wu... SUMMARY OF ARGUMENT ee IEE I. The General Allotment Act Clearly Authorized the Taxation of Fee Patent Land ....................... II. The General Allotment Act Was Clearly Under- stood to Authorize the Taxation of Fee Patent , ̃ ꝶVVuW'„ III. The General Allotment Act Has Been Consist- ently Construed to Clearly Authorize the Taxa- tion of Fee Patent Land ESE e Page 15 22 30 1a ii TABLE OF AUTHORITIES CASES: Page Bailess v. Paukune, 344 U.S. 171 (195277 26, 27 Board of Comm'rs of Jackson County, Kansas v. United States, 308 U.S. 343 (19399 24, 26 Board of Comm'rs of Jackson County, Kansas v. United States, 100 F.2d 929 (1938), modified, / 14 Brendale v. Confederated Tribes & Bands of Yakima Indian Nation, 109 S. Ct. 2994 (1989). 2, 30 California v. Cabazon Band of Mission Indians, ,, . 30 County of Thurston v. Andrus, 586 F.2d 1212 (8th Cir. 1978), cert. denied, 441 U.S. 952 (1979) 26 Draper v. United States, 140 U.S. 240 (18917 22 Duro v. Reina, 110 S. Ct. 2058 (1990) —... 16 Goudy v. Meath, 203 U.S. 146 (1906) —............... 22 Mahnomen County v. United States, 819 U.S. 474 ES . ˙ 26 Mescalero Apache Tribe v. Jones, 411 U.S. 145 1 30 Nichols v. Rysavy, 809 F.2d 1317 (8th Cir. 1987), cert. denied, 484 U.S. 848 (1987) 15, 26 Solem v. Bartlett, 465 U.S. 463 (19843) 21 Squire v. Capoeman, 351 U.S. 1 (1956) 27 United States v. Mason, 412 U.S. 391 (1973 27, 28 United States v. McCurdy, 246 U.S. 263 (1918).......... 23, 24 United States v. Mitchell, 445 U.S. 535 (1980)..4, 28, 29, 30 United States v. Nice, 241 U.S. 591 (1916) 23, 24 United States v. Rickert, 188 U.S. 432 (1903) 22 CONGRESSIONAL MATERIALS: 11 Cong. Rec. (Excerpts) (1881777) 4 18 Cong. Rec. $211 (1882) 4 i 5 38 Cong. Rec. 2830 (1904)i!iũ: nec ceccceccececeeeeeeeee 5 67 Cong. Rec. (Excerpts) (1926)... — 8,9 C 9 74 Cong. Rec. (Excerpts) (1931) 9,11 r 2 eesumnennnue 12 86 Cong. Rec. (Excerpts) (19400))ʒ/õ 14, 15 General Allotment Act of 1887 (24 Stat. 388) passim — iii TABLE OF AUTHORITIES—Continued Page Burke Act of 1906 (34 Stat. 182) 5 S. Rep. No. 68, 61st Cong., 2d Sess. (1910)... 6 S. Rep. No. 536, 69th Cong., Ist Sess. (1926) 8 S. Rep. No. 1488, 76th Cong., 3d Sess. (1940) 13, 14 H.R. Rep. No. 1896, 69th Cong., 2d Sess. (1927) 8 H.R. Rep. No. 2269, 71st Cong., 3d Sess. (1931) 9,10 H.R. Rep. No. 669, 76th Cong., Ist Sess. (1939) 12, 13, 14 MISCELLANEOUS: 19 Op. Atty. Gen. 161, 169 (188) 15 r . eemenl 15 r ... a ee 15 , 2222... QU 15 Ee eS ae 15 Annual Report of the Board of Indian Commis- EE EEE SR ETERS TE ae . 17 Annual Report of the Board of Indian Commis- EE REISE NE PA a a 18 Annual Report of the Board of Indian Commis- a 18 Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior (1927) 17 Brief for Petitioner, Squire v. Capoeman, 351 U.S. nnn . 27 Brief for the United States, Bailess v. Paukune, e ee 26 Brief for the United States, Board of Comm'rs of Jackson County, Kansas v. United States, 308 r 25 Brief for the United States, Mahnomen County v. United States, 319 U.S. 474 (1943) 26 Brief for the United States, United States v. Mason, 412 U.S. 391 (1973) 28 Brief for the United States, United States v. McCurdy, 246 U.S. 263 (191) 24 Brief for the United States, United States v. Mitchell, 445 U.S. 535 (1980). 29 Brief for the United States, Nice v. United States, |. . 8 iv TABLE OF AUTHORITIES—Continued Brief for the United States, United States v. Rickert, 188 U.S. 482 (1903) Hoxie, Beyond Savagery, The Campaign to As- similate the American Indians, 1880-1920 Leupp, The Indian and His Problem (1910) ........... McLaughlin, My Friend the Indian (19100 Memorandum of Associate Solicitor (198997 Memorandum for the United States, Yakima Na- tion v. Yakima County, 903 F.2d 1207 (9th Cir. 11. A Ee Otis, Tùhe Dawes Act and the Allotment of Indian Lands (Prucha edition, 1973) (originally en- titled History of the Allotment Policy) ) Pfaller, James McLaughlin, The Man With the In- 2 cctctetalianenttininsciniaanbitiiaeennciamene Proceedings of the Board of Indian Commissioners at 11th Lake Mohonk Indian Conference as re- ported in Annual Report of Board of Indian Commissioners (1898) ...................-...............--..--- Proceedings of the Board of Indian Commissioners at 5th Lake Mohonk Indian Conference as re- ported in Annual Report of Board of Indian EE Prucha, The Great Father (1984) ............................ Report of the Commissioner of Indian Affairs to the Secretary of the Interior, H.R: Doc. No. 5, 59th Cong., 2d Sess. (1906)... Report of the Secretary of the Interior, H.R. Exec. Doc. No. 1, 52nd Cong., 2d Sess. (18917 Schmeckebier, The Office of Indian Affairs, Its 18 17 History, Activities and Organization (1927). 6, 7, 20 S. D. State Historical Soc’y Quarterly, Vol. 11 The Problem of Indian Administration (1928) Transcript of Oral Argument, United States v. Mason, 412 U.S. 891 (1978) .........................--...-.--- Transcript of Oral Argument, United States v. Mitchell, 445 U.S. 535 (1980) 22 20 28 INTEREST OF AMICI CURIAE The concern that prompts the filing of this Brief can be simply stated. The tax records in county court houses are being rifled. Since 1987 tribal governments across the country, with the assistance and encouragement of the United States, have challenged the validity of county ad valorem taxes on Indian fee lands. Almost without exception, the tribal arguments are loosely premised on bits and scraps of language from several unrelated opin- ions of this Court in the 1970s. As a result, members of tribes have refused to pay their taxes (everywhere), tax abatement petitions have been filed (La Plata County, Colorado), individual lawsuits have been filed against counties in State courts (Corson County, South Dakota), tribal lawsuits have been filed against counties in federal courts (two in Montana), and even worse, the United States, just a year ago, after the decision below, targeted one Amici county and sued the county and the State in federal court in the name of the United States (Todd County, South Dakota). (Federal complaint with attach- ments; one inch thick, burdensome interrogatories and re- quests for production of documents). Apart from the fact that county governments can ill afford to squander scarce resources on senseless litigation, the issue here threatens the very core of county fiscal integrity. The Counties joining in this Brief all contain areas that at one time were established as Indian Reserva- tions. They are representative of many other counties similarly situated throughout the United States. As this Court has often noted, fee lands are scattered through- out the counties, some of which are owned by Indians and Indian Tribes. The history of each area is, of course, as varied and diverse as federal Indian policy— with one exception. Historically, every county has rou- tinely taxed these fee lands and this practice has been the accepted rule for decades. To be sure, the extent of Indian fee ownership varies from reservation to reservation and reflects radically dif- ferent fact situations. As Amici States note, the precise 2 amount of lands nationally has not been determined. Locally, tribal enrollment lists are not ordinarily avail- able to county governments and even these lists do not include non-member Indians, who also own fee property. So we are not certain of the total sum involved. One thing, however, is certain. The amount is substantial— because these counties also contain large areas of other lands that are non-taxable and held in trust by the United States for Indians and Indian tribes. For exam- ple, in Todd County, South Dakota, approximately 60 percent of the entire county is held in trust by the United States for the Rosebud Sioux Tribe or its mem- bers or other Indians. Of the taxable land, Indian fee land on paper roughly constitutes more than 10 per- cent of the seven hundred and fifty thousand ($750,000) to eight hundred and fifty thousand ($850,000) dollars of total taxes collected by the county per year in recent years. In Dewey County, South Dakota, the same figure represents roughly 8 percent of the total taxes collected. In other counties the percentage could be more and in some counties it is undoubtedly less. But the exact per- centage is beside the point. Whatever the amount, county government in these areas is not some new and novel experience. It has been there for decades pursuant to Congressional Policy. That Congressional Policy has au- thorized the taxes here—and not on a case by case basis as the court of appeals has indicated. The issue in this case represents a fundamental and most basic concept in Federal Indian Law that has been resolved and relied on for decades. For this reason, Amici respectfully submit that this Court authoritatively document and set forth that concept in this case. Although the United States did not participate below except as Amicus in support of the tribal petition for re- hearing and suggestion for rehearing en banc, at that time the United States told the court of appeals that to tax Indian fee lands would “create an exception without any policy basis, from the general rule that the state may not tax Indians or their property on reservations.” Mem- orandum for the United States at 2. By Order of Janu- ary 7, 1991, this Court invited the Solicitor General to file a brief in this case expressing the views of the United States. The United States responded by now asserting in this Court that various Acts of Congress and judicial decisions “changed” the effect “that Section 6 (including its provision) otherwise would have“. Brief for the United States at 15-16, n.10 (emphasis added). This is a significant concession. What the United States still did not tell this Court Amici would submit, is even more significant. Time and time again for almost three dec- ades since the alleged change occurred, the United States has told everyone else, including this Court, a different story. * SUMMARY OF ARGUMENT Petitioners and Amici Curiae States have set forth in detail the reasons the court of appeals misconstrued Brendale, and while we agree with those important points, they are not repeated here. The argument of Amici Curiae Counties centers around the fundamental validity of the taxes in question and the support for that position in the legislative history of the General Allotment Act and in the manner in which the United States and this Court have consistently construed this most important legislation. ARGUMENT i. The General Allotment Act Clearly Authorized the Taxation of Fee Patent Land. Perhaps no other area of Federal Indian Law has been better understood than the taxing of Indian fee lands authorized by Congress in the General Allotment Act of 1887 (24 Stat. 388). In the beginning, even the general public was involved in the debate on the fundamental as- pects of the question presented. Meetings were held, memorials passed, and Congress was inundated with the pros and cons of the allotment policy. When first intro- duced in 1881, the Senate debated the overall issue day after day. In subsequent years, the debate continued, 4 bills passed the Senate, were stalled in the House, and in 1887 the measure finally passed. Some of this legis- lative history was recently submitted to this Court by the United States in United States v. Mitchell, 445 U.S. 535 (1980). A more complete index is set forth in Amici App. la-2a. The General Allotment Act documents cited there are replete with evidence that Congress clearly in- tended, after the expiration of the twenty-five year trust, that Indian fee lands would be taxed as all other fee lands. For example, in 1881, the first provision that in- corporated this concept stated: That the lands acquired by any Indian under and by virtue of this act shall not be subject to alienation, lease, or incumbrance, either by voluntary convey- ance or by the judgment, order or decree of any court, or subject to taxation of any character, but shall be and remain inalienable, and not subject to -taxation, lien, or incumbrance, for the period of twenty-five years from the date of the patent, which said restrictions shall be incorporated in the patents when issued. 11 Cong. Ree. 875 (1881). Amici App. 3a. When Senator Dawes introduced the language of the present section in related legislation, he stated “The In- dian, therefore, under the law will be to all intents and purposes the occupant of the land and enjoy all its uses and at the end of the twenty-five years the United States will be obliged by the force of this provision to give him or his heirs a patent discharged of the trust and free of incumbrance. It will be impossible to raise the question of taxation under that provision .. . 13 Cong. Rec. 3211 (1882). Amici App. 5a-6a. It was clear, as Senator Coke stated in similar debate, that “Section 5 prohibits the alienation of land by the Indians; it exempts the land from taxation, from lien or incumbrance for twenty-five years.” 11 Cong. Rec. 876- 877 (1881) (emphasis added). And thereafter, the rec- ord is replete with similar statements, “Mr. Dawes... . The bill protects the property of the Indians for twenty- 5 five years. That is the limit. That is the intent of the bill.” 15 Cong. Rec. 2242 (1884) (emphasis added). Other representative statements to this same effect are set forth in Amici App. 3a-10a. When Congress amended this provision for unrelated reasons in the Burke Act in 1906 (34 Stat. 182), this understanding was reflected in the text of the Act, as Petitioner and Amici States have discussed at length. It is also reflected in the legislative history set forth verbatim in Amici App. 16a-56a and in the related docu- mentation in Amici App. 57a-179a. As one would expect, in other instances, whenever the subject was addressed in congressional debate or in House or Senate Reports, the explanation was always the same— both before and after the Burke Act of 1906. For ex- ample, when Congressman Burke addressed the House of Representatives in 1904, he referred to the twenty-five year trust exemption twice in the same debate: The man who goes into that section of the country goes in there with a handicap of one-fifth of the land nontaxable for twenty-five years, and he has got to pay his proportionate increase of the expenses of that community for all that time. The Indians will have the benefit of the roads, of the courts, and the benefits of a county and State government without contributing a cent therefor, their lands being non- taxable for twenty-five years, as before stated, while the settler who takes a homestead and acquires title to the same must do his share in paying these expenses. 38 Cong. Rec. 2830 (1904) (emphasis added). And in 1910, when Senator Gamble submitted a Re- port for the Committee on Indian Affairs, the Report similarly reflected this understanding: Considering the fact that the Indian allotments are relieved from taxation for a period of twenty-five years and the Indians are to receive like advantages with the whites in connection with the above, it is thought by your committee that such a provision is 6 wise, equitable, and just not only to the Indians but to the prospective settlers. . .. S. Rep. No. 68, 61st Cong., 2d Sess. at 4 (1910) (em- phasis added). Although Congress continued to amend the General Pv ce Act over the course of the next two decades, none of the subsequent Amendments or supporting con- gressional documentation specifically focused on the fact that the tax exemption was tied to the twenty-five year trust period. It was presumed that this was naturally the case and there was no perceived need to ever clarify or direct any remarks to this point in any of these ma- terials. However, the adoption of a more liberal policy for the issuance of fee patents in 1917 did eventually prompt Congress to indirectly address this commonly held presumption and in so doing, thereby lay to rest any ar- gument or doubt that Congress could have ever intended or understood the exemption in any other way. In 1917, the Commissioner of Indian Affairs, with the approval of the Secretary of the Interior, adopted the more liberal policy of issuing patents in fee sooner to all In- dians.of less than half blood and issuing others on a less restrictive basis to those of larger percentage of Indian blood without individual applications. “Competency com- missions” were dispatched to several reservations to ac- complish this objective. This new declaration of policy provided in part that: The time has come for discounting guardianship of all competent Indians and giving even closer atten- tion to the incompetent that they may more speedily achieve competency. Broadly speaking, a policy of greater liberalism will henceforth prevail in Indian administration to the end that every Indian, as soon as he has been determined to be as competent to transact his own business as the average white man, shall be given full control of his property... . L. Schmeckebier, The Office of Indian Affairs, Its His- tory, Activities and Organization, at 152-153 (1927). 7 With this concerted policy as guidance, the consequences were predictably arbitrary, far reaching, and understand- ably subject to quick criticism and remedial action not at issue here. However, to the extent that premature taxa- tion was stated as one necessary result of the process, the documentation surrounding the “forced fee” policy merits attention. With this limited purpose in mind, the docu- ments are probative and unequivocal. For example, by 1921 it was apparent to the Commis- sioner of Indian Affairs that apart from those “influences which sought to hasten the taxable status of the property” by “the termination of the trust title’ and the issuance of “patents in fee”, the degree of blood should not be a deciding factor to establish competency and applications should still be required: [Als there are numerous instances of full-bloods who are clearly demonstrating their industrial ability by the actual use made of their land and who are shrewdly content with a restrictive title thereto that exempts them from taxation. .. . L. Schmeckebier, supra at 156-157 (emphasis added). Congressional attention first focused on the issue when Congressman Williamson from South Dakota was in- formed that the Department of the Interior could not take “corrective” action on a forced fee patent without express congressional direction. As a result, on January 18, 1926, the Secretary of the Interior, Dr. Hubert Work, for- warded a draft of a department bill to the Committee on Indian Affairs. As justification for the measure, Secre- tary Work explained: During the year 1919, and later, the then Secretary caused a great number of patents in fee simple to be issued to adult allottees, or to their heirs of less than one-half Indian blood, without application by the Indians for such patents, believing that such mixed-blood adult Indians were competent and capa- ble of managing their own affairs. This depart- ment canceled patents issued to two Coeur d’ Alene Indians who had refused to accept their patents or 8 to pay taxes, and suit was brought to cancel the assessments. The United States Circuit Court of Appeals, Ninth Circuit, in these two cases, United States v. County of Benewah and United States v. County of Kootenai, Idaho (290 Fed. 628), held that, the Secretary of the Interior had no authority under the act of May 8, 1906, to issue a patent in fee to an Indian allottee during the trust period without an application therefor; that a patent so issued did not pass title and such patents having been refused, the cancellation of the patent was upheld. ... [T]he department desires legislative authority to cancel such patents where there has been no voluntary sale or encumbrance of the land. S. Rep. No. 536, 69th Cong., Ist Sess. at 2-3 (1926) (emphasis added), Amici App. 63a. For the purpose of the issue here, Secretary Work shared the commonly held presumptions noted above: [Platents, prima facie, subject the lands to taxation and other liens... [I]ndians who had refused to accept their patents or to pay taxes.... Few of the Indians will or can pay taxes. Practically all these lands have been placed on the tax rolls and some have been sold for nonpayment of assessments. S. Rep. No. 536, 69th Cong., Ist Sess. at 2 (1926) (em- phasis added), Amici App. 63a. The bill was introduced on January 23, 1926. 67 Cong. Rec. 2630 (1926). In the House Report patents in fee are again equated with taxation: Under existing law it has been held by the courts that the Indians have a vested right in the tax-free status of their allotments during the trust period fixed by law.... [T]hey did not want their patents in fee on the ground that they would be unable to pay the taxes. [F]oreclosure or tax deed or dis- posed of them by sale. [A]cceptance of the fee patent and a waiver of the tax-exempt privileges of a trust patent.... H.R. Rep. No. 1896, 69th Cong., 2d Sess. at 1-2 (1927) (emphasis added). Amici App. 67a. It passed the House without debate and was reported in the Senate on April 2, 1926. 67 Cong. Rec. 6763 (1926). Shortly thereafter, on April 10, 1926, 67 Cong. Rec. 7272 (1926), the measure passed the Senate and was signed by the Presi- dent on February 26, 1927. 68 Cong. Rec. 4892 (1927). Act of February 26, 1927 (44 Stat. 1247). In 1930, in response to bill that would have created a commission to investigate the entire matter, the Depart- ment of the Interior proposed a letter of instructions to all superintendents to gather the information needed and then report back to Congress. H.R. Rep. No. 2269, 71st Cong., 3rd Sess., at 3-5 (1931). Once again, taxation of patents in fee was a stated premise in the list of the ques- tions contained in the instructions: Has any of the land been sold for debt or taxes If canceled, have tax assessments or tax sales been canceled or paid assessments refunded . . . H.R. Rep. No. 2269, 71st Cong., 3rd Sess. at 4 (1931). Amici App. 83a. After the materials from the instructions were compiled, the new Secretary of the Interior, Ray Lyman Wilbur, reported back to Congress and proposed a bill to amend the 1927 Act and address the unanswered concerns: namely, that the Department be authorized to cancel cer- tain fee patents and return the land to trust status if any portion of the allotment was not encumbered. In his letter of transmittal dated December 18, 1930, Secretary Wilbur shared the same assumptions regarding fee patents and taxation related by his predecessor, Sec- retary Work. H.R. Rep. No. 2269, 71st Cong., 3d Sess. at 3-5 (1931), Amici App. 83a. Congressman Williamson reported the bill as amended in the House of Representatives on January 14, 1931. 74 Cong. Rec. 2193 (1931). This time even the text of the bill expressly reflects the concept of the taxation of fee patents. Provided, That this act shall not apply where any such lands have been sold for unpaid taxes assessed after the date.... 10 H.R. Rep. No. 2269, 71st Cong., 3d Sess. at 1-2 (1931) (emphasis added), Amici App. 88a. The balance of the Report confirms the same under- standing in every conceivable manner: {I]t has been held by the courts that the Indians have a vested right in the tax-free status of their allot- ments during the trust period fixed by law. [T]hey did not want their patents in fee on the ground that they would be unable to pay the tazes. . . » [NJot pay the rapidly accruing taxes... . [Llands through foreclosure or tax deed or disposed of them by sale. . Placing a voluntary encum- brance upon or disposing of land so patented must in law be considered as an acceptance of the fee patent and a waiver of the tax-exempt privileges of a trust patent. Taxes, or even tax deeds can not be said to be encumbrances of a character to prevent cancellation... [A]s to the States examined pro- vision is made for reimbursement to tax-certificate holders, with interest, in all cases where taxes have been canceled. . . . All purchasers at tax sale are put upon notice as to any defect in making the tax levy and are not innocent holders for value [C]ases where the lands may have been sold for un- paid taxes assessed after the date of the encumbrance. H.R. Rep. No. 2269, 71st Cong., 3d Sess. at 2-3 (1931) (emphasis added), Amici App. 88a. On January 28, 1931, Congressman Williamson was requested to explain the bill on the floor of the House of Representatives because he had made a “special study” of the matter: Mr. Williamson: It will mean this: There are still a few hundred tracts of land for which patents in fee have been issued without the consent of the hold- ers of the trust patents, and if this bill is passed it will enable the Secretary of the Interior, upon the application of these Indians, to cance] the patents in fee to such of their lands as are unencumbered. This will have the effect of restoring their trust-patent status. In other words, this will mean that the lands 11 will no longer be subject to taxation or any other kind of encumbrance, and the Indian will then be able to hold the lands without paying taxes until the 25-year period of the trust patent has either expired or the extension has expired. . . The point is these forced fee simple patents were illegally issued. The courts have so held, and the Indians have the un- doubted right to have the lands involved restored as trust property. The courts have also held that the Indian has a vested right to the tax free status of his land; that this is a right he is entitled to insist upon Mr. Williamson. These trust patents carried a clause, which is a part of the law authorizing the trust patent, providing that they shall remain in force for a period of 25 years from the time they were issued. So if these patents are restored they would become effective from the date of the trust patent that was superceded by a patent in fee; in other words, re- stores them to the status they had before the fee patent was issued. In some cases the 25-year period has been extended either by law or by Executive order. . [Bleen filed by an Indian whose land has been restored to a trust patent status, the boards have restored the taxes to the Indian. [Mly understanding is, from the information we now have, that there are only between 300 and 400 such tracts of land in the United States. [They found their lands had been patented and assessed and that taxes had accumulated. . . . [T]o meet the tax levies and to prevent their lands from being sold for tazes. . . 74 Cong. Rec. 3412-3413 (1931) (emphasis added), Amici App. 74a-78a. At the conclusion of his remarks the bill passed the House without further discussion. 74 Cong. Rec. 3413 (1931). The Senate adopted the ertire House Report, noting that the facts were fully set forth therein and, after a short explanation and reference to the Report, passed the bill without further amendment on February 17, 1931. 74 Cong. Rec. 5195 (1931). On at least one more occasion Congress revisited the issue in detail. Neither the 1927 Act nor the 1931 Act 12 provided for reimbursement of the taxes levied on the fee patented lands during the trust periods in question. In 1937, a bill was introduced to determine the status of each patent but it was rejected because the cost was esti- mated to exceed the amount involved. The next year, a measure that would have provided relief in one state was objected to for that reason. H.R. Rep. No. 669, 76th Cong., Ist Sess. at 2 (1939), Amici App. 103a. Finally, on January 3, 1939, a comprehensive bill was introduced. 84 Cong. Rec. 34 (1939). In the most explicit materials to date, the exemption granted by the 1887 General Allotment Act trust patent was repeatedly tied to the trust period. The Secretary of the Interior, Harold L. Ickes was first to suggest the com- prehensive approach. In a letter to the Chairman of the House Committee on Claims, the Secretary stated: Patents in fee having been recorded covering lands allotted to Indians the county authorities naturally felt they were entitled to assess and collect taxes thereon. Doubtless when requests were made for reimbursement of such taxes after the patents in fee were canceled and trust patents reinstated or re- issued, the counties either did not have funds in their treasuries available for such payment or the county officials lacked legal authority to pay. Clearly the local authorities were not at fault for taxing such land while patents in fee were outstanding. ... Upon cancellation of patents in fee, county officials have been requested to remove the allotment from the tax-assessment rolls, cancel any unpaid assessments, tax sales or tax deeds, and refund any taxes paid. [N]ot subject to taxation by State authorities durin the years the invalid patents. . [R]ight to exemp- tion from taxation was vested.... [L]ands had not been sold for unpaid taxes assessed. H.R. Rep. No. 669, 76th Cong., Ist Sess. at 7-8 (1939) (emphasis added), Amici App. 10a. He also suggested that the title be changed so as to read: —ͤ—ũ⁊ — — — — — — — — 13 A bill for the relief of Indians who have paid taxes on allotted lands for which patents in fee were issued without application by or consent of the allottees and subsequently canceled, and for other purposes. H.R. Rep. No. 669, 76th Cong., Ist Sess. at 8 (1989) (emphasis added), Amici App. 103a. Later, in response to a request from the Chairman of the House Committee on Indian Affairs for an Interior report on an identical bill, the acting Secretary of the Interior, E. K. Burlew, replied in nearly identical terms. S. Rep. No. 1488, 76th Cong., 3d Sess. at 5-6 (1940), Amici App. 122a. One month before the bill was re- ported in the House of Representatives, Secretary Ickes responded directly to the Chairman of the House Com- mittee on Indian Affairs: Clearly the local authorities were not at fault for taxing these lands while such fee patents were out- standing. . . . Taxes were levied by the various counties against the lands of the Indians thus receiv- ing these “forced” fee patents. S. Rep. No. 1488, 76th Cong., 3d Sess. at 3 (1940) (em- phasis added). All three reports were then appended to the House Report from the Committee on Indian Affairs. S. Rep. No. 1488, 76th Cong., 3d Sess. at 2-8 (1940), Amici App. 122a. The Committee Report itself contains a brief history of the legislation and reflects the understanding clearly set forth in the correspondence from the Department of the Interior: The levy and collection of taxes was a duty imposed upon local units of government by statutory law and the bonds of their officials. This was not their error. The error was by the United States Government. Lands so patented naturally were taxed until the trust status was restored.... [T]he taxes logically H.R. Rep. No. 669, 76th Cong., Ist Sess. at 1 (1939) (emprasis added), Amici App. 108a. The Report fur- ther noted that the Secretary concluded that an appro- 14 priation of seventy-five thousand dollars ($75,000.00) would be sufficient to take Care of all cases, present and future. H.R. Rep. No. 669, 76th Cong., Ist Sess. at 2 (1939). Two weeks before the Report, Attorney General Frank Murphy advised the chairman that this Court had just granted a petition for a Writ of Certiorari in Board of Comm’rs of Jackson County, Kansas v. United States, 100 F.2d 929 (1938), modified, 308 U.S. 343 (1989), to resolve the question of interest in the same kind of cases present in the bill under consideration. For this reason, the Attorney General recommended that no action be taken with respect to this legislation until the Supreme Court heard and decided the Jackson County case. H.R. Rep. No. 669, 76th Cong., Ist Sess. at 4 (1939). For purposes here, it is not without significance that the cor- respondence of Attorney General Murphy, which was also appended to the House Report, reflects the same understanding found throughout all of the Congressional materials noted above: Rleimburse Indian allottees and Indian heirs of allottees for all taxes paid on so much of their al- lotted lands as, having been patented in fee prior to the expiration of the period of trust. [C]om- pensate Indian allottees for taxes erroneously col- lected from them and to relieve the political sub- divisions of States of the burden of making restitu- tion in such cases. H.R. Rep. No. 669, 76th Cong., Ist Sess. at 4 (1939) (emphasis added), Amici App. 10a. As a result of the recommendation of Attorney Gen- eral Murphy, it was not until the following year, 1940, that the House considered the bill on the merits. 86 Cong. Rec. 1628 (1940). When presented, it passed with- out amendment or debate. 86 Cong. Rec. 3007 (1940). The Senate Committee on Indian Affairs deemed the matter so fully explained in the House Report that it simply adopted and appended the Report in its entirety. S. Rep. No, 1488, 76th Cong., 3d Sess. (1940). Shortly — ————— — — 15 thereafter, the full Senate passed the measure without amendments or debate. 86 Cong. Rec. 6988 (1940). Act of June 11, 1940 (5th Stat. 298. II. The General Allotment Act Was Clearly Understood to Authorize the Taxation of Fee Patent Land. Immediately after the passage of the 1887 Act, the Secretary of the Interior requested and received an opin- ion from the Attorney General of the United States. Among other things, this opinion clearly ties the tax ex- emption to the twenty-five year trust period. I am also of opinion that the allotment lands pro- vided for in the act of 1887 are exempt from State or Territorial taxation upon the ground above stated with reference to the act of 1884, namely, that the lands covered by the act are held by the United States for the period of twenty-five years in trust for the Indians, such trust being an agency for the exercise of a Federal power, and therefore outside the province of State or Territorial authority. 19 Op. Atty Gen. 161, 169 (1888) (emphasis added). Later, opinions from the Department of the Interior re- inforeed this accepted construction. 30 L. D. 258, 266-267 (1900), 50 L.D. 591 (1924), 538 L.D. 107 (1980), 53 L.D. 133 (1930). With specifie reference to the Yakima Indian Reservation, in 1930 the Interior Solicitor char- acterized the issue as follows: The United States thus retained its hold on the lands allotted for a period of 25 years after the allotment and as much longer as the President in his discre- tion might determine, and the clearly expressed in- tent of Congress is that so long as the land remains in that status it is beyond the power of the State to tax the same for any purpose. 53 L.D. 107 (1930) (emphasis added). More recent litigation related to this issue was resolved in Nichols v. Rysavy, 809 F.2d 1317 (8th Cir. 1987), cert. denied, 484 U.S. 848 (1987). 16 This construction of the 1887 Act is repeatedly re- fleeted in every related opinion of the Department of the Interior thereafter until 1989. On April 21, 1989, the 1979 opinion that restated this position was simply re- scinded. After citing several cases decided by this Court in the 1970s, an Associate Solicitor of the Department of the Interior reasoned that: [Llanguage in some of those decisions suggests the state is on weaker ground when it attempts to tax Indian ownership of land. Memorandum at 1, BIA. IA. 0943, April 21, 1989. (This Court briefly reviewed some of these same decisions in Duro v. Reina, 110 S.Ct. 2053 (1990). In eontrast to the broad characterization of the Associate Solicitor, Duro particularly described the exemption noted there as extending to only “certain taxes on transactions of tribal members. . .” Duro, 110 S.Ct. at 2606.) On bal- ance, the prior Interior opinions are entitled to more weight than the 1989 Memorandum. See, e.g., Duro, 120 S.Ct. at 2063. Other historical sources confirm this position, The annual reports of the Secretary of the Interior, the Commissioner of Indian Affairs, and the Board of In- dian Commissioners, compiled and communicated to Con- gress each year, are replete with evidence of the histor- ical understanding that this tax exemption was intended and understood to correspond with the trust period. Rep- resentative excerpts from these reports are set forth in more detail in Amici App. 123a-179a. From the beginning, the Secretary of the Interior quoted the Commissioner of Indian Affairs’ conclusion in support of this position : Even in the cases where, by taking their lands in severalty, they are in process of becoming citizens, they are still in a state of quasi-independence, be- cause the General Government withholds from them for tweny-five years the power of alienating their lands, while by exempting them from taxation for same period. 17 Report of the Secretary of the Interior, H.R. Exec. Doc. No, 1, 52nd Cong., 2nd Sess. at 88 (1891) (emphasis added), Amici App. 131a. And the Commissioner of Indian Affairs expressed the same principle in more than one way: Under a principle of law recognized by the courts, real property held in trust by the Federal Govern- ment is not taxable by the State. At the same time, with the exception that their lands received under allotment laws will be exempt from taxation for a period of twenty-five years, and pos- sibly longer, they will be subject to the burdens borne by other citizens, and must manage their own af- fairs. ... Annual Report of the Commissioner of Indian Affairs at 13, 56 (1927) (emphasis added), Amici App. 172a. it also confers authority on the Secretary of the Interior, in his discretion, to terminate the trust period by issuing a patent in fee simple whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs. Re- port of the Commissioner of Indian Affairs, H.R. Doc. No. 5, 59th Cong., 2nd Sess. at 49 (1906) (em- phasis added), Amici App. 154a. The Board of Indian Commissioners was authorized by statute in 1869 and organized by an Executive Order of President Grant that same year. In its annual reports to the Secretary of the Interior, the Board made detailed recommendations on the broad Indian policy questions of the day. Because one-half of the members of the 1887 Board continued to serve for the next two decades, it was an informed and influential institution. Year after year the annua! reports confirm the essential principles set forth above. Any one of several examples make the point : The lands allotted to the Indians are exempt from taxation for a period of twenty-five years.... An- nual Report of the Board of Indian Commissioners at 8 (1887) (emphasis added), Amici App. 126a. 18 The reception of an allotment of land to which the title is by law protected from alienation or taxation for twenty-five ears. Annual Report of the Board of Indian Commissioners at 7 (1902) (em- phasis added), Amici App. 149a. We have understood that it was largely the wish on the part of the present Commissioner of Indian Affairs to protect allottee Indians against the evils which follow the sale and the use of intoxicants, which led him to advocate the amendment to the general severalty act known as the Burke law, by which Indians allotted after May 8, 1906, do not become citizens by virtue of allotment until after the expiration of twenty-five years, the period cov- ered by the protected title to their lands—the trust deed from the United States which keeps Indian al- lotments inalienable and untaxed for that length of time.. . Annual Report of the Board of Indian Commissioners at 7-8 (1906) emphasis added), Amici App. 155a. (T]he wise statesmanship of Senator Dawes and others who framed and carried into effect the Dawes Act of February, 1887, proposed to train Indians for citizenship by intrusting them at once, on allotment, with the duties and the conscious responsibilities of active, local citizenship, and with the manhood—stim- ulating right of suffrage, while the homestead was made inalienable and was freed from taxation by the United States trust deed for twenty-five years. . Annual Report of the Board of Indian Commissioners at 8 (1906) (emphasis added), Amici App. 155a. In addition to the annual reports, guest speakers such as the Commissioners of Indian Affairs and Senator Dawes were invited each fall to address the Board at its Lake Mohonk Conference. The proceedings were tran- scribed and appended to the annual report, and constitute yet another source that reflects this same understanding. For example, in 1893 Senator Dawes referred to “Tall- lotted Indians, not a foot of whose land can be taxed for twenty-five years” .... Proceedings of the Board of In dian Commissioners at 11th Lake Mohonk Indian Confer- 19 ence as reported in the Annual Report of the Board of Indian Commissioners at 61 (1893) (emphasis added). In 1895, Commissioner of Indian Affairs Browning similarly stated [when the lands are allotted to the Indians and they become citizens, under the law the lands are not taxable for twenty-five years”... . Proceedings of the Board of Indian Commissioners at 5th Lake Mohonk In- dian conference as reported in the Annual Report of the Board of Indian Commissioners at 37 (1895) ( emphasis added). Early texts by other authorities support this same construction. For example, F.E. Leupp, the Commissioner of Indian Affairs at the time of the 1906 Burke Act also viewed the restrictions on taxation as tied to the trust status of the land. In his 1910 text, Commissioner Leupp sum- marized the administration of the General Allotment Act from his perspective and discussed the taxation issue in the context of fee lands. Leupp, The Indian And His Problem, 34, 47, 64, 75 (1910). (Also, see Amici App. 46a, 50a, where the recommendations of Commissioner Leupp are contained in the House and Senate Reports on the Burke Act. ) James McLaughlin worked for fifty-two years, 1871- 1923, in the Indian service. As an inspector in the De- partment of the Interior, he had more experience in deal- ing with the General Allotment Act than any other in- dividual of his time. In 1910, he summarized this experi- ence in the following words: In the process of civilization, they had arrived at a stage of their progress when, as part of the usual policy, they were given their lands in severalty. To each individual was allotted one hundred and sixty acres of land, the title to which was to be held in trust by the government for twenty-five years and then patented in fee to the allottee. The allotted lands were to be free of taxes during the trust period. McLaughlin, My Friend the Indian, 106 (1910) (empha- sis added). See Pfaller, James McLaughlin, The Man With the Indian Heart, xi, 331-332 (1978). 20 Later, the Institute for Government Research pub- lished a series of authoritative monographs giving a de- tailed description of each of the more distinct services of the government. In 1927, Laurence F. Schmeckebier’s The Office of Indian Affairs, Its History, Activities and Organization, the most extensive text on the subject to that date, reflects this same understanding. [The sev- eral states are not allowed to tax Indian property held by the United States in trust. [T]ribal and allot- ments held in trust are exempt from state and local taxation... Schmeckebier, supra, at 9, 11 (1927) (em- phasis added). A year later, the Institute responded to a special re- quest of the Secretary of the Interior with the publica- tion of The Problem of Indian Administration, commonly called the Meriam Report after it’s principal author. More will be said about this Report by others, but it is important to remember here that the explanation on tax- ation confirms again the opinions on this subject set forth above. When an Indian is declared competent to manage his own property and is given a fee deed to it, his prop- erty becomes subject to state and local taxation. . . . Under the allotment act the incompetent Indian hold- ing a trust patent is generally exempt from taxation. On the day he is declared competent and is given his fee patent, he straightway becomes subject to the full burden of state and local taxation... . The Problem of Indian Administration, at 95, 477 (1928) (em- phasis added). Shortly thereafter, Dr. D.S. Otis was actually em- ployed by the Bureau of Indian Affairs to write an en- tire book on the “History of the Allotment Policy”. Through the efforts of the Commissioner of Indian Af- fairs, John Collier, Otis’ monograph was inserted in its entirety in the hearing records of the Indian Reorganiza- tion Act of 1934 (Readjustments of Indian Affairs). Once again, in the most comprehensive and fact specific text to date, described by the editor of the 1973 edi- 21 tion, Francis Paul Prucha, as “a careful study of the carrying out of allotment in the years following the enact- ment of the law”, the conclusion is the same: The Dawes Act, providing for the twenty-five-year Federal trust period during which time the land might not be encumbered, meant, it was clear, that no State could tax the allottee’s holdings. . . . Otis, The Dawes Act and the Allotment of Indian Lands, at 105 Prucha edition (1973) (originally entitled History of the Allotment Policy) (emphasis added). Citations to other scholarly works that have continued to confirm this understanding up to the present time could fill a small book. One recent thesis, by the same author cited by this Court in Solem v. Bartlett, 465 U.S. 463, at 480, n.25 (1984), F. Hoxie, entitled Beyond Savagery, The Campaign to Assimilate the American Indians, 1880-1920 states: For the remainder of his term, federal funds were used only for “restricted” non-tax-paying Indians. Patented tribesmen—who presumably paid property taxes—were usually expected to attend the public schools. This was the doctrine of guardianship. As it evolved between 1890 and 1920, the concept of federal con- trol over individual Indians was used to protect land titles, to continue tax exemptions on trust land... . The severalty law granted all allottees citizenship, but stipulated that their homesteads would be held under a trust title that prevented the sale of their land and exempted them from taxation. ... F. Hoxie, supra, at 554, 566, 568 (emphasis added}. However, the most recent example undoubtedly is the 1991 article by a Bureau of Indian Affairs historian, from Washington, D.C. Michael L. Lawson. In this fea- ture article, the author recounts: [T]he General Allotment Act provided that title to these allotments would be held in trust by the United States for at least twenty-five years during which time the land could not be sold, leased, taxed, mort- gaged, devised by will, or otherwise encumbered 22 without the consent of the federal government. It was hoped that by the end of this probationary period, the individual allottee, who would then be eligible to receive the usual fee simple title to the land, would have learned how to make productive use of the acreage, to know its market value, and to be ready to assume full responsibility for it, in- cluding the payment of the taxes. . . If this was found not to be the case, the law gave the President discretionary power to extend the trust period. . S. D. State History Soc’y Quarterly, No. 1 at 4 (1991) .° III. The General Allotment Act Has Been Consistently Construed to Clearly Authorize the Taxation of Fee Patent Land. Although this Court generally discussed the General Allotment Act in Draper v. United States, 140 U.S. 240 (1891), it was not until 1903 that a tax related issue reached this Court in United States v. Rickert, 188 U.S. 432 (1903). There, the United States correctly headed its argument with the proposition that “the lands of the Indian allottees are not taxable under the authority of the State during the trust period” and concluded that im- provements were similarly “exempt from taxation during the trust period that the land is so exempt, such improve- ments being in legal contemplation land”. Brief for the United States at 15, 42, Rickert, supra (emphasis added). The Rickert opinion reflects this representation: no power in the State of South Dakota, for state or municipal purposes, to assess and tax the lands in question until at least the fee was conveyed to the Indians. While the title to the land remained in the United States, the permanent improvements, could no more be sold for local taxes than could the land to which they belonged. Rickert, 188 U.S. at 437, 442 (emphasis added). A few years later, in Goudy v. Meath, 203 U.S. 146, (1906), a related issue was generally discussed and de- 2 See Prucha, The Great Father (1984). 23 cisively resolved. The Goudy argument, addressed in de- tail by others, need not be repeated here. In United States v. Nice, 241 U.S. 591 (1916), a case involving a federal prosecution for the sale of liquor to a tribal member with a 1902 trust patent, the United States only indirectly touched on this aspect of General Allotment Act and the status of the individual: [Clongress by this very act of 1887 expressly re- tained control over the allottee Indian’s land by re- strictions of alienation and trusteeship. ... The State, having no power to tax these Indian [trust] allotments, had no particular interest in the Indian’s welfare. ... [I]t was well established that State laws relating to taxation of his [trust] property did not apply. ... Brief of the United States at 26, 21, 12, Nice, supra (emphasis added). The Court in Nice referred to this aspect of the Gen- eral Allotment Act when it described the holding in Rickert, supra, The act of 1887 came under consideration in United States v. Rickert, 188 U.S. 432, a case involving the power of the State of South Dakota to tax allottees under that act, according to the laws of the State, upon their allotments, the permanent improvements thereon and the horses, cattle and other personal property issued to them by the United States and used on their [trust] allotments, and this court, after reviewing the provisions of the act and saying, p. 437, “These Indians are yet wards of the Nation, in a condition of pupilage or dependency, and have not been discharged from that condition”, held that the State was without power to tax the [trust] lands and other property, because the same were being held and used in carrying out a policy of the Government. Nice, supra (emphasis added). Two years later, the United States was more succinct when it argued another tax exemption issue in United States v. McCurdy, 246 U.S. 268 (1918). 24 Partial emancipation from the Federal guardianship, accompanied by restricted ownership of land for a limited period, as a method of educating and pre- paring the Indians for the duties of civilized life, was adopted by Congress at an early date and has become a settled national policy. . . . In United States v. Rickert, 188 U.S. 432, it was decided that trust allot- ments and personal property issued to Indian allot- tees could not be taxed by a State because this would be “to tax an instrumentality employed by the United States for the benefit and control of this dependent race . Brief for the United States at 9, 11, 12, McCurdy, supra, (emphasis added). In McCurdy, the United States argued that land pur- chased with trust funds for an Osage Indian, as evidenced by a restrictive deed, should not be taxable by the State of Oklahoma. The McCurdy Opinion rejected the tax ex- emption argument of the United States in no uncertain terms. At the same time, the Court clearly restated the basis of Rickert, supra: There is also a clear distinction between the present case and those like United States v. Rickert, 188 U.S. 432, 23 Sup.Ct. 478, 47 L. Ed. 532, where it was sought to tax property, the legal title of which was in the United States and which was held by it for the benefit of Indians. Brief for the United States at 266, McCurdy, supra (em- phasis added). Nothing in United States v. Nice, supra, was argued or cited by the United States and Nice did not figure in the Opinion of the Court in United States v. McCurdy, supra, and correctly so. A case more directly on point reached this Court in 1939. In Board of Comm’rs of Jackson County, Kansas v. United States, 308 U.S. 343 (1939), the United States equated a General Allotment Act trust patent with the exemption from taxation: The trust patents issued in fulfillment of that treaty and pursuant to the General Allotment Act of 1887 —— 24 Stat. 388 (sec. 5), as amended by Act of May 8, 1906, c. 2348, 34 Stat. 182] bound by the United States to convey the land “free of all charge or in- cumbrance whatever” at the end of the trust period. Such [trust] patents have uniformly been construed to grant to the Indians a broad exemption from all forms of taxation effecting the land. Brief for the United States at 6-7, Board of Comm’rs of Jackson County, Kansas, supra (emphasis added). Although Board of Comm'rs of Jackson County, Kansas only involved the question of whether interest should be awarded when taxes were erroneously assessed, the opin- ion mentions the General Allotment Act and reflects the understanding of that time: The land which gave rise to this controversy, situated in Jackson County, Kansas, was [trust] patented under the General Allotment Act of February 8, 1887, 24 Stat. 388, 25 U.S.C. § 348. In pursuance of this Act, the United States agreed to hold the land for twenty-five years under the restrictions of the 1861 Treaty, subject to extension at the President’s discretion. . .. In this legislative setting, the Secretary of the In- terior in 1918, over the objection of M-Ko-Quah-Wah, cancelled her outstanding trust patent and in its place issued a fee simple patent. This was duly re corded in the Registry of Deeds for Jackson County. In consequence Jackson County in 1919 began to sub- ject the land to its regular property taxes. It con- tinued to do so as long as this fee simple patent was left undisturbed by the United States. . . . Jackson County in all innocence acted in reliance on a fee pat- ent given under the hand of the President of the United States. Here is a long, unexcused delay in the assertion of a right for which Jackson County should not be penalized. By virtue of the most authoritative semblance of legitimacy under national law, the land of M-Ko-Quah-Wah and the lands of other Indians had become part of the economy of Jackson County. For eight years after Congress had directed attention to the problem, those specially entrusted with the intricacies of Indian law did not call Jackson County’s action into question. Whatever may be her unfortunate duty to restore the taxes which she had every practical justification for collecting at the time, no claim of fairness calls upon her also to pay inter- est for the use of the money which she could not have known was not properly hers. Board of Comm’rs, supra at 348-349, 352-353 (emphasis added). In 1943, in a most instructive case that involved a special modification of the twenty-five year trust limita- tion of the General Allotment Act, the United States re- counted to this Court that the General Allotment Act “has been uniformly construed as conferring upon the Indians a vested 25-year tax exemption. .. .” and the United States conceded that subsequent to that period, the land was legally taxable. Brief for the United States, at 17, 43, Mahnomen County v. United States, 319 U.S. 474 (1943) (emphasis added). The Mahnomen decision reflects this important concession in no uncertain terms: It is conceded that any limitation on the County’s power to tax expired in 1928 with the termination of the twenty-five year trust described below. Mahnomen, 319 U.S. at 475 (emphasis added). In 1952, the United States in Bailess v. Paukune, 344 U.S. 171 (1952), generally described two instances where it deemed taxation to be “forbidden by the General Allot- ment Act”. whether under trust patents or under fee patents with restrictions upon alienation. . . . Brief for the United States at 2, Bailess v. Paukune, supra (emphasis added). Bailess involved the taxation of land of an allegedly Indian widow, who in due course was to receive a “fee Most of the important early cases of this Court are discussed in detail in the Brief for the United States, Mahnomen, supra. Also, see Nichols v. Rysavy, 809 F.2d 1317 (8th Cir. 1987), cert. denied, 484 U.S. 848 (1987), and County of Thurston v. Andrus, 586 F.2d 1212 (8th Cir. 1978), cert. denied, 441 U.S. 952 (1979). — ett —— 27 patent“ for the interest she inherited from her husband in a trust allotment. The Court concluded her interest was taxable if she was a non-Indian and in the process noted: This allotment was made under the General Allot- ment Act of February 8, 1887, 24 Stat. 388, 389. No fee patent to the land has issued to Paukune, to his widow, or to the son. The trust period of twenty- five years has from time to time been extended. In other words, the United States still holds the land in trust for Paukune and his heirs. .. . Bailess v. Paukune, 344 U.S. at 171-172 (emphasis added). In 1956, in an income tax case that involved the Gen- eral Allotment Act, as amended by the Burke Act of 1906, supra, the United States succinctly stated that: this provision was undoubtedly intended to make it clear that Indian lands transferred in fee to the In- dians would thereafter be subject to state and local taxation Brief for the Petitioner, note 4 at 13, Sguire v. Capoeman, 351 U.S. 1. 13, n.4 (1956) (emphasis added). The opin- ion of the Court accepted the basic premise of the argu- ment: The Government argues that this amendment was directed solely at permitting state and local taxation after a transfer in fee, but there is no indication in the legislative history of the amendment that it was to be so limited... The literal language of the pro- viso evinces a congressional intent to subject an In- dian allotment to all taxes only after a patent in fee is issued to the allottee. Squire, 351 U.S. at 7-8 (emphasis added). In 1973, in United States v. Mason, 412 U.S. 391 (1973), the United States noted that the Court in Squire: relied on language in an amendment to the General Allotment Act providing for taxation of the land after the allottee receives a patent in fee... [and] held that an amendment to the General Allotment Act created a tax exemption by implication, and that it required the return of the trust property without encumbrances at the end of the trust period. and provided for taxation after the termination of the trust. Brief for the United States, at 9-10, 17, Mason, supra (emphasis added). The Court in Mason agreed: Moreover, the Squire decision rested heavily on the provision in the General Allotment Act providing for the removal of ‘all restrictions as to sale, encum- brance, or taxation’ when Indian property is granted in fee Mason, 412 U.S. at 396 (emphasis added). Even Mr. Hobbs, arguing for the tribal respondents in oral argu- ment, stated: The next thing that happens is that in 1906 Congress amends the General Allotment Act, and it says that for the first time adds the idea that the trust period can end sooner than the 25 years intended if the In- dian becomes competent sooner than that time. And it says that after he reaches the point of competency, the trust will end and he gets his land, and all re- strictions as to alienation and taxation are lifted. This implies that Congress thought that the land was free of tax up to that point and well so. Over sixty years ago this Supreme Court, in 1903, had held that a restriction on alienation added up to a tax exemption. So, Congress assumed on very good authority in 1906 that the restriction on alienation was the equivalent of a tax exemption. Tr. of Oral Argument, at 38, United States v. Mason, 412 U.S. 391 (1978) (emphasis added). Most recently, in United States v. Mitchell, 445 US. 535 (1980), the United States reviewed the entire his- tory of the General Allotment Act. Again, the United States told this Court the exemption to state taxation coincided with the trust period: The General Allotment Act . . . for the limited pur- poses of (a) restraining improvident alienation of the —— Kes ao heme ee ee ne land by the allottees and (b) affording an immunity from state taxation for the period during which the legal title remained in the United States. Brief for the United States at 24, Mitchell, supra (em- phasis added). In oral argument, Mr. Claiborne, arguing for the United States, said the same thing: That statute contemplated a scheme whereby the land of the reservation would be divided among the Indians within 25 years, and in the meantime, the United States was simply to hold title in trust solely for the purpose of preventing state taxation, it being legal title in the United States and therefore exempt from state taxation. Tr. of Oral Argument, at 14, United States v. Mitchell, 445 U.S. 535 (1980) (emphasis added). This Court agreed : [Wihen Congress enacted the General Allotment Act. it intended . . . to prevent alienation of the land and to ensure that allottees would be immune from state taxation. Mitchell, 445 U.S. at 544. At the end of this conclusion, the Court quoted at length and added emphasis to the remarks of Representative Skinner, the sponsor in the House of Representatives: “. land is made inalienable and non-taxable for a sufficient length of tim. Mitchell, 445 U.S. at 544, n.5 (emphasis as in original except for a sufficient length of time). In dissenting, Justice White described the holding of the Court in the same terms: The Court holds, however, that the ‘trust’ established by § 5 is not a trust as that term is commonly under- stood, and that Congress had no intention of impos- ing full fiduciary obligations on the United States. Congress’ purposes, it is said, were narrower: to impose a restraint on alienation by Indian allottees while ensuring immunity from state taxation during the period of the restraint. Mitchell, 445 U.S. at 546, 547 (White, J., dissenting ) (emphasis added). It is significant that the arguments the United States submitted in Mitchell were presented subsequent to the decisions of this Court that the United States now advances to undermine the same position. In addition, in many cases, this Court has addressed in detail the arguments, principles and rules of construc- tion that govern this case. See, ¢.g., Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973) and California v. Cabazon Band of Mission Indians, 480 U.S. 202, 215 n.17 (1987). The Congressional documents set forth above more than satisfy the standards of clarity required here to sanction the taxation of Indian fee lands. It is too late in the day to give serious credence to an unsubstantiated argument that this understanding and established prac- tice has been somehow repealed by implication—especially without anyone having even mentioned the fact until now. CONCLUSION The judgment of the Court of Appeals should be af- firmed, except as to real estate excise taxes and the Brendale remand. Respectfully submitted, SUSAN W. PAHLKE Tom D. TosBIn * Todd County Deputy TOBIN LAW OFFICEs, P.C. States Attorney 422 Main Street P.O. Box 482 Winner, South Dakota 57580 Winner, South Dakota 57580 (605) 842-2500 (605) 842-2551 * Counsel of Record July 1, 1991 * Even so, in the special area of state taxation, absent cession of jurisdiction or other federal statutes permitting it, there has been no satisfactory authority for taxing Indian reservation lands or Indian income from activities carried on within the boundaries of the reservation, and McClanahan v. Arizona State Tax Comm'n, supra, lays to rest any doubt in this respect by holding that such taxation is not permissible absent congres- sional consent. Mescalero Apache Tribe, 411 U.S. at 148 (emphasis added), APPENDIX APPENDIX TABLE OF CONTENTS Excerpts from the legislative history of the General Allotment Act, ch. 119, 24 Stat. 388 (1887) Excerpts from the legislative history of S. 2068, 52nd Cong., Ist Sess. (1892) The Burke Act, ch. 2348, 34 Stat. 182 (1906) Force Fee Patent Related Legislation Act of Feb. 26, 1927, ch. 215, 44 Stat. 1247 Act of Feb. 21, 1931, ch. 271, 46 Stat. 1205 Act of June 11, 1940, ch. 315, 54 Stat. 298 Annual Reports of the Secretary of the Interior, the Commissioner of Indian Affairs, and the Board of Indian Commissioners for the years 1887-1931 Report of the Secretary of the Interior, H.R. Exec. Doc. No. 1, 50th Cong., 1st Sess. (1887) Report of the Commissioner of Indian Affairs to the Secretary of the Interior, H.R. Exec. Doc. No. 1, 50th Cong., Ist Sess. (1887) Annual Report of the Board of Indian Commissioners Report of the Secretary of the Interior, H.R. Exec. Doc. No. 1, 50th Cong., 2nd Sess. (1888) Report of the Commissioner of Indian Affairs to the Secretary of the Interior, H.R. Exec. Doc. No. 1, 50th Report of the Secretary of the Interior, H.R. Exec. Doc. No. 1, 51st Cong., Ist Sess. (1889) Report of the Commissioner of Indian Affairs to the Secretary of the Interior, H.R. Exec. Doc. No. 1, 51st Cong., Ist Sess. (1889) Annual Report of the Board of Indian Commissioners Report of the Secretary of the Interior, H.R. Exec. Doc. No. 1, 51st Cong., 2nd Sess, (1890) Page ii TABLE OF CONTENTS—Continued Report of the Commissioner of Indian Affairs to the Secretary of the Interior, H.R. Exec. Doc. No. 1, 51st , ee Annual Report of the Board of Indian Commissioners %%% ͤ ——A—ͤͤ ˙-;.. ̃ U ———. Report of the Secretary of the Interior, H.R. Exec. Doc. No. 1, 52nd Cong., Ist Sess. (189177) Report of the Commissioner of Indian Affairs to the Secretary of the Interior, H.R. Exec. Doc. 1, 52nd ics .. Annual Report of the Board of Indian Commissioners / — TTT Report of the Secretary of the Interior, H.R. Exec. Doc. No. 1, 52nd Cong., 2nd Sess. (1892 Report of the Commissioner of Indian Affairs to the Secretary of the Interior, H.R. Exec. Doc. No. 1, 52nd e leasesctwnsusocsoneocs Annual Report of the Board of Indian Commissioners % Report of the Secretary of the Interior, H.R. Exec. Doc. No. 1, 53rd Cong., 2nd Sess. (1893)ÿ)))))) Report of the Commissioner of Indian Affairs to the Secretary of the Interior, H.R. Exec. Doc. No. 1, 53rd r ee ec ee Annual Report of the Board of Indian Commissioners ene Report of the Secretary of the Interior, H.R. Exec. Doc. No. 1, 53rd Cong., 3rd Sess. (1894) 0... Report of the Commissioner of Indian Affairs to the Secretary of the Interior, H.R. Exec. Doc. No. 1, 53rd e eee 1 Annual Report of the Board of Indian Commissioners 11 ̃ ̃ ↄ— ͤ ͤ— — Report of the Secretary of the Interior, H.R. Doc. No. 5, 54th Cong., Ist Sess. (1895055 Page 130a 130a 130a 131a 133a 134a 135a 135a 135a 136a iii TABLE OF CONTENTS—Continued Report of the Commissioner of Indian Affairs to the Secretary of the Interior, H.R. Doc. No. 5, 54th es I EE essensncilionasignennnicneee Annual Report of the Board of Indian Commissioners e 5 a ee a em Report of the Secretary of the Interior, H.R. Doc. No. 5, 54th Cong., 2nd Sess. (1899) Report of the Commissioner of Indian Affairs to the Secretary of the Interior, H.R. Doc. No. 5, 54th Cong., e 2 Report of the Secretary of the Interior, H.R. Doc. No. 5, 55th Cong., 2nd Sess. (1897) n Report of the Commissioner of Indian Affairs to the Secretary of the Interior, H.R. Doc. No. 5, 55th Cong., D coasaaenicbibeninnineinmacseses Report of the Secretary of the Interior, H.R. Doc. No. 5, 55th Cong., 3rd Sess. (1898)))))))) :: Report of the Commissioner of Indian Affairs to the Secretary of the Interior, H.R. Doc. No. 5, 55th Cong., r ũÜ ES Oar on Report of the Secretary of the Interior, H.R. Doc. No. 5, 56th Cong., Ist Sess. (189 9))))99)97):j:- Annual Report of the Board of Indian Commissioners D cuahdoionanisniaie Report of the Secretary of the Interior, H.R. Doc. No. 5, 56th Cong., 2nd Sess. (1900) Report of the Commissioner of Indian Affairs to the Secretary of the Interior, H.R. Doc. No. 5, 56th Cong., r ̃ũ mm AER Annual Report of the Board of Indian Commissioners a A a 8 EERE SC a ene ann ec ERECT Im Report of the Secretary of the Interior, H.R. Doc. No. 5, 57th Cong., Ist Sess. (190) 1 Report of the Commissioner of Indian Affairs to the Secretary of the Interior, H.R. Doc. No. 5, 57th Cong. , ee A ARS ̃— U BT he SE Page 142a 140a 142a 142a 142a 142a 143a iv TABLE OF CONTENTS—Continued Annual Report of the Board of Indian Commissioners 6 V Report of the Secretary of the Interior, H.R. Doc. No. 5, 57th Cong., 2nd Sess. (19020))))))))))j:ꝛ: Report of the Commissioner of Indian Affairs to the Secretary of the Interior, H.R. Doc. No. 5, 57th Cong., er Annual Report of the Board of Indian Commissioners / Report of the Secretary of the Interior, H.R. Doc. No. 5, 58th Cong., 2nd Sess. (1903))))))))) Report of the Commissioner of Indian Affairs to the Secretary of the Interior, H.R. Doc. No. 5, 58th Cong., e... Annual Report of the Board of Indian Commissioners — „F r Report of the Secretary of the Interior, H.R. Doc. No. 5, 68th Cong., rd Seas. (1906) Report of the Commissioner of Indian Affairs to the Secretary of the Interior, H.R. Doc. No. 5, 58th Cong., L a ein Annual Report of the Board of Indian Commissioners 6 Report of the Secretary of the Interior, H.R. Doc. No. 5, 59th Cong., Ist Sess. (1905) eee Report of the Commissioner of Indian Affairs to the Secretary of the Interior, H.R. Doc. No. 5, 59th Cong., ö ee Annual Report of the Board of Indian Commissioners / A Report of the Secretary of the Interior, H.R. Doc. No. 5, 59th Cong., 2nd Sess. (1906)))))))) ccececeeceeeee Report of the Commissioner of Indian Affairs to the Secretary of the Interior, H.R. Doc. No. 5, 59th Cong., r Page 147a 148a 148a 149 150a 150a 150a 153a 153a 153a 154a 154a 154a 154a —— v TABLE OF CONTENTS — Continued Annual Report of the Board of Indian Commissioners r “..... ELLE Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior (1907) Annual Report of the Secretary of the Interior Vol. 1 e ͤ ... Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior (190) Annual Report of the Board of Indian Commissioners EE ... Sr Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior (1909979 Annual Report of the Board of Indian Commissioners EE ESS TT Annual — of the Secretary of the Interior Vol. 1 (1910) * Annual 8 of the Ne. of the Interior Vol. 1 r , . Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior (1911 Annual Report of the Secretary of the Interior Vol. 1 D 7éÄ .. Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior (1917 Annual Report of the Board of indian Commissioners EE éèÄ Ä. r SSL Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior (1913) Page 155a vi TABLE OF CONTENTS—Continued Annual Report of the Secretary of the Interior Vol. 1 re ee ee ee Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior (191): Annual Report of the Board of Indian Commissioners KKK ee EE Nee COCOA TRA LA LENE, Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior (1919 Annual Report of the Secretary of the Interior Vol. 1 TUNED ciceticsiseninttnissiitlaniaptieliltaleslail iat arcade Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior (1916) Annual Report of the Secretary of the Interior Vol. 1 . C Re Pa a en Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior (19177 a Annual Report of the 1 of the Interior Vol. 1 . 0c Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior (1919 Annual Report of the Secretary of the Interior Vol. 1 „ Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior (19199 Annual Report of the Secretary of the Interior Vol. 1 RES Se 2 A RR eee Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior (1920)... Annual Report of the Secretary of the Interior Vol. 1 1 — sik ieee hata ale Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior (1921)... Page 162a 163a 163a 163a 164a 164a 164a 164a 165a 166a 166a 166a 166a 167a 167a 167a 168a vii TABLE OF CONTENTS—Continued Annual Report of the Board of Indian Commissioners 1 EE r Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior (19227222 Annual Report of the Board of Indian Commissioners TTT . — — ——ͤ—ũ—H Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior (1923)))))) Annual Report of the Secretary of the Interior Vol. 1 t PPR UL CO ee Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior (192) Annual Report of the Secretary of the Interior Vol. 1 ne SY ä—̃—— . ee Le Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior (1925 N Annual Report of the Secretary of the Interior Vol. 1 / cee Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior (1926) Annual Report of the Secretary of the Interior Vol. 1 re Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior (1927) Annual Report of the Board of Indian Commissioners — . ee n nnn Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior (192) viii TABLE OF CONTENTS—Continued Annual Report of the Secretary of the Interior Vol. 1 11. ˙·¹mAA¹˙¹⁰¹.. ü —ᷣ Ü — * ¼ seinen Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior (1929999 Annual Report of the Board of Indian Commissioners e — — ͤ—— — —tſꝗ Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior (1030)00 Annual Report of the Secretary of the Interior Vol. 1 — ee ee Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior (1931) —— ee — 1a APPENDIX INDEX TO LEGISLATIVE HISTORY OF THE GENERAL ALLOTMENT ACT The General Allotment Act or Dawes Act can be traced back to 1880 when similar bills were debated in the Sen- ate beginning with S. 1773, 48th Cong., 2nd Sess. (1880). That bill was reported in the Senate at 10 Cong. Rec. 3507. Then in the 48th Cong., 3d Sess. (1881), S. 1773 was considered and amended. See 11 Cong. Rec. 761, 778- 788, 873-882, 904-913, 933-943, 994-1003, 1026-1038, 1060-1070, 1211, 1096, and 1253. In 1882, a similar bill, S. 1445, 47th Cong., Ist Sess. (1882), was introduced in the Senate as a replacement for Senate bills 19 and 931. See 13 Cong. Rec. 1824. That bill was amended and passed the Senate. See 13 Cong. Rec. 3212. S. 48, 48th Cong., Ist Sess. (1883) was introduced next and referred to the Senate Committee on Indian Affairs. See 15 Cong. Rec. 13. It was reported back with amend- ments in 1884. See 15 Cong. Rec. 877. It was then de- bated, amended, and passed. See 15 Cong. Rec. 2240- 2242, 2277-2280. In the 48th Cong. 2nd Sess. (1884), S. 48 was referred to the House Committee on Indian Affairs. See 16 Cong. Rec. 218. It was then reported back with accompanying House Report 2247 (H.R. 2247, 48th Cong., 2nd Sess. (1884) Serial Set #2328 Vol. 1). See 16 Cong. Rec. 580. In 1885, S. 54, 48th Cong., Ist Sess. (1885) was intro- duced and referred to the Senate Committee on Indian Affairs. See 17 Cong. Rec. 123. It was reported back in 1886, see 17 Cong. Rec. 841, and was then debated, amended, and passed in the Senate. See 17 Cong. Rec. 1558, 1630-1635, 1674, 1719, 1762-1764. It was then re- ferred to the House Committee on Indian Affairs, see 17 Cong. Rec. 1959, and reported back with House Report 2a 1835. (H.R. 1835, 48th Cong., Ist Sess. Serial Set #2240 Vol. 8). See 17 Cong. Rec. 3841. S. 54 was then debated in the 49th Cong., 2nd Sess. as well. See 18 Cong. Rec. 189, 224-225. It was amended and passed the House, see 18 Cong. Rec. 226, and then referred to the Senate Committee on Indian Affairs. See 18 Cong. Rec. 247, 313. The bill was then returned to the House. See 18 Cong. Rec. 273, 285, 315. The Senate non-concurred in the House amendments, see 18 Cong, Rec. 476, and a conference was then appointed. See 18 Cong. Rec. 478, 534, 580. A conference report was made, debated, and agreed to. See 18 Cong. Rec. 772, 882, 972. The bill was then examined and signed, see 18 Cong. Rec. 1048, 1054, and approved by the President. See 18 Cong. Rec. 1577 (1887). In 1906, the Burke Act was signed, amending section 6 of the Dawes Act of 1887. The Burke Act began as House Resolution 11946, 58th Cong., Ist Sess., and was first referred to the House Committee on Indian Affairs. See 40 Cong. Rec. 1110. It was reported back with amendments, accompanied by House Report 1556, (H.R. 1558, 59th Cong., Ist Sess. Serial Set #4941 vol. 1). See 40 Cong. Rec. 2812. The bill was then debated, amended, and passed in the House. See 40 Cong. Rec. 3598, 3602. It was then referred to the Senate Com- mittte on Indian Affairs, see 40 Cong. Rec. 3638, and was reported back with amendments and Senate Report 1998. (S.R. 1998, 59th Cong., Ist Sess. Serial Set #4904 vol. 1). See 40 Cong. Rec. 4153. The bill was passed over, see 40 Cong. Rec. 5189, 5605, and was then debated, amended, and passed in the Senate. See 40 Cong. Rec. 4805. The House concurred in the Senate amendments. See 40 Cong. Rec. 5980. It was examined and signed, see 40 Cong. Rec. 6089, 6100, 6233, and was approved by the President. See 40 Cong. Rec. 7795. ͤ——äͤ— — —— i es ee 8a EXCERPTS FROM THE LEGISLATIVE HISTORY OF THE GENERAL ALLOTMENT ACT OF 1887 Mr. COKE. In section 5 of this bill it is provided: That the lands acquired by any Indian under and by virtue of this act shall not be subject to alienation, lease, or incumbrance, either by voluntary conveyance or by the judgment, order or decree of any court, or subject to taxation of any character, but shall be and remain in- alineable, and not subject to taxation, lien, or incum- brance, for the period of twenty-five years from the date of the patent, which said restrictions shall be incorpo- rated in the patents when issued. If the Senator’s amendment prevails, will not tat pro- vision be rendered nugatory? Mr. HOAR. I do not understand it so. 11 Cong. Rec. 875 (1881). Mr. COKE. _.. . . Section 5 prohibits the alienation of land by the Indians; it exempts the land from taxation, from lien or incumbrance for twenty-five years. 11 Cong. Rec. 876-877 (1881). Mr. COKE. ... In the first place, his lands are ex- empt from judgment and from execution, are exempt from taxation, which those of no citizen are 11 Cong. Rec. 877 (1881) Mr. COKE. ... There is an exemption here from taxation. There is a prohibition against alienation. One is a privilege and the other a burden. They are put there for the benefit and protection of the Indian. 11 Cong. Rec. 878 (1881) Mr. BROWN. ... It is true you exempt his land from taxes by this bill for a certain length of time 11 Cong. Rec. 880 (1881). 4a Mr. BROWN. . . I trust, Mr. President, that we shall pass this bill in a shape that will give every Indian a home on his reservation, and guarantee it to him and his children for all time to come, and that the power of alienation will be restricted until he has learned the rights and the duties of an American citizen. After that let him and his posterity take care of it or alienate it as may any one else. Fix a reasonable time; exempt their - homesteads from taxation. After that time there is no further exclusion in the fourteenth constitutional amend- ment in the way of counting them in the representative population of the States where they may reside, and no reason that I can see why they may not be full-fledged citizens and voters. 11 Cong. Rec. 882 (1881). Mr. CALL. . But the bill cautiously and carefully proceeds with a preliminary period, a probationary pe- riod of twenty-five years, which shall be a period of preparation for them before their ownership of land shall be complete. 11 Cong. Rec. 908 (1881). Mr. PLUMB. .. . If that position of the bill which provides that these lands shall not be alienated and shall not be subject to taxation for a period of twenty-five years and shall not be leased until the same period shall pass, you will find about your doors here from year to year an increasingly tumult from the communities in which you have set thesse people, exempt from the burdens of the Government and occupying lands which they can- not cultivate—a tumult which you cannot prevent and the consequences of which you cannot avoid. 11 Cong. Rec. 942 (1881). Mr. TELLER. .. . It is provided in the sixth line of the sixth section “that their lands shall not be subject to taxation or execution upon the judgment, order, or decree — — — ne ed 5a of any court.“ That ought to be qualified so that they shall not be subject to taxation, judgment, &e., for a period of twenty-five years, because that will make it in harmony with the rest of the bill. 11 Cong. Rec. 997 (1881). Mr. DAWES. The matter which is involved in the lines on the third page, beginning with the proviso in the fifty-fourth line of section 1, has been discussed several times in the Senate; and to obviate all question about it, to reach precisely what is sought for in that proviso and at the same time avoid any question about the right of the State to tax this land so held by an Indian in sev- eralty, I have prepared a substitute for the proviso, which I have shown to several members—not all, for I have not had time—of the Committee on Indian Affairs, and which I think will commend itself to the Senate. Therefore I move to strike out that proviso and insert what I send to the desk. The ACTING SECRETARY. It is proposed to strike out, after the word “act,” in line 54 of section 1, the follow- ing proviso: Provided, That the title to lands acquired by Indians under the provisions of this act shall not be subject to alienation or incumbrance, either by voluntary convey- ance or by the judgment, decree, or this order of any court, but shall be and remain inalienable and not sub- ject to taxation, lien, or incumbrance for any purpose for a period of ten years from the date of patent, and until such time thereafter as the President may see fit to re- move the restriction, which conditions shall be expressed in the patent. And in lieu thereof to insert: Which shall be of the legal effect, and declare that the United States does and will hold this land thus alloted for the period of twenty-five years in trust for the sole use and benefit of the Indian to whom such allotment 6a shall have been made; or, in case of his decease, of his heirs, according to the laws of the State of Oregon, 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, discharge of said trust and free of all charge or incumbrance whatsoever. Mr. DAWES. That, in short, Mr. President, provides that the United States shall hold the title itself to this particular severalty, but in trust for the sale use and benefit of each Indian getting his land in severalty. The Indian, therefore, under the law will be to all intents and purposes the occupant of the land and enjoy all its use, and at the end of twenty-five years the United States will be obliged by the force of this provision to give him or his heirs a patent discharged of the trust and free of incumbrance. It will be impossible to raise the question of taxation under that provision, and that will secure to the Indian his rights in severalty precisely as the other provision would. The amendment was agreed to. 13 Cong. Rec. 3211 (1882). (Umatilla Allotment Act.) Mr. DAWES. I offer the same amendment which I offered ‘o the bill that has just passed, to strike out the proviso on the fifth page, beginning at the third line of the fifth section, down to and including the eleventh line, and insert: Which shall be of the legal effect, and declare that the United States does and will hold the land thus allotted for the period of twenty-five years in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of decease, of his heirs according to the laws of the State or Territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian or his heirs aforesaid in fee discharged of said trust and free of all charge or incumbrance whatso- ever. — = : 4 4 ; | : : 7a Mr. COKE. While I do not see the necessity of that amendment, I cannot perceive that it will do any harm, and am willing as far as I am concerned, to accept it. 13 Cong. Rec. 3212 (1882). Mr. CONGER. Before the bill goes over I wish to call the attention of the committee to one point to be con- sidered before to-morrow morning. There is nothing said in the bill in regard to the taxation of this property. This alienable property of the Indians is distributed in all States and Territories where the lands lie, and there is an uncertainty in regard to the right of the State or Territory to tax the property. I think some provisions of that kind is worthy of the consideration of the committee. Mr. DAWES. The bill protects the property of the Indians for twenty-five years. That is the limit. That is the intent of the bill. Mr. CONGER. It does not say so in terms. Mr. DAWES. It says so in absolute legal effect, be- cause the United States is to hold the title. The title in fee remains in the United States for twenty-five years. Mr. CONGER. But it is not to be inalienable for twenty-five years. I merely call attention to it. It seems to me there should be some provision by which this prop- erty could all be saved to the Indians and saved to them from any attempt at taxation. 15 Cong. Rec. 2242 (1884). Mr. DOLPH. ... We propose now to allot lands to them in severalty, and to make such lands inalienable for twenty-five years, and it is supposed that at the end of twenty-five years they will become capable of taking care of themselves. 15 Cong. Rec. 2277 (1884). Mr. COKE. ... After providing that the patent shall be issued and shall convey the land in fee discharged of trusts at the end of twenty-five years, it reads: 8a Provided, That the President may withhold the issu- ance of the patent in fee in any case for such further time as he may deem to be for the interests of the In- dians. And the trust created in the original patent shall be and remain in full force until the patent in fee be issued. If the condition of affairs exists at the expiration of twenty-five years feared by the Senator from California, here is ample discretion reserved to the President of the United States to apply the proper remedy, and that is to withhold the patents. I think that is an abundant answer to the objection the Senator has made. 15 Cong. Rec. 2278-2279 (1884). Mr. DAWES. ... But as to the individual allotments the term is fixed at twenty-five years. It is fixed for several reasons. One is that the holding of land by the United States so that it can not be taxed in any com- munity, for any unnecessary period of time, is irksome and unwise, unless there be some good reason for it. The allotment patent which is to issue after twenty-five years is only to issue to such Indians as in the opinion of the Interior Department are so far advanced in the outset as to give hope and encouragement that by this process they will be self-supporting at the end of twenty-five years from that time and be able to stand upon their own feet. I know the Senator would desire that the moment an Indian, like any white man, is able to take care of him- self he should be free to dispose of his property like any white man Mr. COKE. ... The President must find these facts recited in this section of the bill to be true before he can put the machinery of this bill in motion. Then he must get the consent of two-thirds of each tribe before it op- erates upon that tribe. Then when the lands are sur- veyed patents are issued promising a fee-simple title to the Indians at the end of twenty-five years. At the ex- piration of that time, if there are any conditions sur- rounding the Indians which make it in the judgment of — ay aa an Silt : : | ; 9a the President improper that they should have the fee- simple title to the land, the President is authorized to withhold patents for an indefinite time... . 15 Cong. Rec. 2279 (1884). Mr. DAWES. ... Under a subsequent part of the bill the United States is to give him a patent, by which the United States covenants to hold for him for twenty-five years in trust this particular 160 acres, and at the end of twenty-five years to give him or his heirs a patent in fee. 17 Cong. Rec. 1630 (1886). Mr. SKINNER. ... Or shall he be converted into a civilized tax-payer, contributing toward the support of the Government and adding to the material prosperity of the country? ... In addition thereto, his land is made in- alienable and non-taxable for a sufficient length of time for the new citizen to become accustomed to his new life, to learn his rights as a citizen, and prepare himself to cope on an equal footing with any white man 17 Cong. Rec. 190 (1886). Mr. PERKINS. ... It has the warm endorsement and approval of the Secretary of the Interior, of the Com- missioner of Indian Affairs, and of all those who have given attention to the subject of the education, the Chris- tianization, and the development of the Indian race. The bill provides for the breaking up, as rapidly as pos- sible, of all the tribal organizations and for the allotment of lands to the Indians in severalty, in order that they may possess them individually and proceed to qualify themselves for the duties and responsibilities of citizen- ship.... For that reason, as I have suggested, it meets the warm approval of all the Government officers whose duties bring them in close contract with the Indians, and it has also the indorsement of the Indian rights associa- tion throughout the country, and of the best sentiment of the land.. 18 Cong. Rec. 191 (1887). 10a Mr. DOLPH. ... Do I understand that the changes made by the House amendments and the conference com- mittee permit a lien or disposition of lands that shall be allotted to Indians in severalty after the lapse of a less period than that provided in the bill as passed by the Senate—twenty-five years? Also, do I understand that the provision inserted in the bill in the Senate Mr. DAWES. Will the Senator put his first interroga- tory again? Mr. DOLPH. My question is whether such changes have been made in the bill that instead of the bill as it passed the Senate providing that the land which shall be allotted to Indians in severalty can only be disposed of or be subject to liens after a period of twenty-five years, it now allows that to be done after five years? Mr. DAWES. No, that has not been changed, except in this way, that the President may, in his discretion in any particular case, extend the time after the twenty-five years. The time limiting the power of alienation is not reduced at all, but has this further extension in the discretion of the President as to any particular case. Mr. DOLPH. According to the conference report, when are patents to issue to the individual Indians? Mr. DAWES. If the Senator will get the bill he will see. As soon as the individual Indian takes up his allot- ment he is to have a patent which shall be of the legal effect that the United States holds in trust this particu- lar tract of land for the sole use and benefit of the par- ticular Indian for the period of twenty-five years, at the end of which time the United States is to give him a patent in fee of the land; and then to that is added a provision that in any particular case the President may extend that twenty-five years’ limit so that the United States shall in that particular case hold the land in trust for the Indian a further time. 18 Cong. Rec. 973 (1887). ee ̃ ͤ¶w — ̃ ̃ ̃ ͤ 2 — 11a EXCERPTS FROM THE LEGISLATIVE HISTORY OF S. 2068, 52np CONG., Ist SESS. (1892) The Committee on Indian Affairs report back (S.2068) “a bill extending relief to Indian citizens, and for other purposes,” with the recommendation that it pass with an amendment in the nature of a substitute, which strikes out all of the bill after the enacting clause, and insert the words reported in an amended bill herewith reported, reading as follows: Be it enacted by the Senate and House of Representa- tives of the United States of America, in Congress assembled, That the lands now allotted to or which may hereafter be allotted to any Indians in severalty, or which may be the property of any Indian citizens of the United States, when such Indians under the provisions of any existing law have become or shall become entitled to the benefits of and subject to the laws of any State, and when such lands shall be em- braced in and as a part of any county or town or- ganization, so as to enjoy full and equal participa- tion in the benefits of such local government, and when the Indians enjoy their equal privileges as citi- zens, shall be subject to State and local assessment and taxation the same as any other lands similarly located in such State: Provided, however, That noth- ing herei.. contained shall authorize the sale or in- cumbrance of any such land on the account of such assessment and taxation, or in any manner interfere in the trust in which such lands are held by the United States while such trust continues: And pro- vided further, That during the continuance of said trust said taxes so assessed and levied shall be paid from the Treasury of the United States to the county treasurer, or other legally authorized officer of the county or municipality to which said taxes are pay- able, at such times as said taxes shall become due and payable: And also provided further, That said l2a taxes shall only be paid on the receipt of the sworn statement of the county treasurer, or other legally authorized officer of the county or municipality to which said taxes are payable, showing that such tax has been legally assessed and levied, and that said tax is then due and payable, accompanied by the cer- tificate of the Secretary of the Interior that said lands are within the State and county described in said statement, and that the lands therein described have been allotted in severalty, or belong to Indian citizens of the United States, and that he is satisfied, after such sufficient inquiry, that the assessment of the lands for taxation is a fair and reasonable one, and the taxes levied just and equitable, both inde- pendently and in proportion to the valuation and taxation of lands in the same county, town, or other municipal corporation: And provided further, That no moneys shall be so paid for road or highway taxes which by the laws of the State may be discharged by work, but the Indians owning such lands may be required to so discharge such taxes: And provided further, That the Secretary of the Interior shall be satisfied, and so certify, that the public expenditure of such taxes is fairly made to give the lands of such Indians their just share of benefit. Sec. 2. That from and after the passage of this act there shall be paid annually, from any moneys in the Treasury not otherwise appropriated, such sum as shall be necessay to pay said taxes so certified under section one of this act. [T]he following letter from the Commissioner of In- dian Affairs gives his views upon the bill [excerpts] : [T]he matter to which Senator Manderson refers is unquestionably an evil attendant upon the allot- ment of lands in severalty to the Indians with a title inalienable for a specified number of years, during which the land cannot be taxed... . 13a The Government . . has wisely exempted Indian allotments from taxation for a period of twenty-five years, or longer, at the discretion of the President. So far as I am able to form an opinion on the sub- ject, it seems to me that this nontaxable provision, coupled with the proviso that the land shall be inalien- able for twenty-five years, is absolutely essential for the success of the scheme of individualizing owner- ship in Indian lands. [Alnd thus hasten the day when the Indians will become citizens in fact, able and willing to bear all the burdens of citizenship. . . . This is necessary as a matter of good faith to the Indians who have ceded their lands to the government on the condition that their allotments should be in- alienable for twenty-five years and exempt from taxation [A] portion of the income of which shall be devoted to the payment of the taxes upon the allotted lands during the period wherein they are exempt from in- dividual taxation. S. Rep. No. 1003, 52nd Cong., Ist Sess. 1-4 (1892). Mr. COCKRELL. I should like to know who pays the taxes in the end? Are we to understand that the people of the United States are for twenty years to pay all the taxes out of their own funds upon the lands which are allotted in severalty to Indians 24 Cong. Rec. 1196 (1893). Mr. COCKRELL. .. and here is a proposition that these Indians, taking these lands free of all debt, drawing their annuities, able-bodied, stout, athletic fellows, are to sit upon that land for twenty years and make all the people of the United States pay their taxes. l4a . . . They have a trust fund. Let these taxes come out of that fund.... 24 Cong. Rec. 1196 (1893). Mr. DAWES. I wish to call the attention of the Senator from Missouri [Mr. Manderson] to the existing situation. It is the United States which exempts all this property from taxation 24 Cong. Rec. 1196 (1893). Mr. DAWES. The Congress has thought that the best way to make citizens, self-supporting people out of these Indians, was to give them some of the United States land and hold it for them for twenty-five years exempt from taxation... 24 Cong. Rec. 1196 (1893). Mr. COCKRELL. ... I move to amend the part of the bill which reads: ‘That the lands now allotted to or which may hereafter be allotted to any Indians in sev- eralty,’ by inserting ‘under agreements already made.’ Those lands ought not to be exempted from taxation in the States and the people of the United States made to pay taxes on them. I want it limited. I do not want a provision to be inserted whereby Indians may go specu- lating in land. . . and make the people of the United States pay taxes on it. 24 Cong. Rec. 1197 (1893). Mr. MANDERSON. ... We are in the unfortunate condition that by the act of the United States those lands are not taxable for twenty-five years 24 Cong. Rec. 1197 (1893). Under the act of February 28, 1887 [General Allot- ment Act], allotting lands in severalty to Indians on the various reservations, many Indians became citizens of the United States and of the State or Territory in which 15a said land is located, with all the rights and privileges pertaining thereto; but in doing this the act fails to lay on these Indian eitizens all of the responsibilities and bur- dens full citizenship naturally carries with it. By exempt- ing their lands from taxation for a period of twenty-five years... H.R. Rep. 2509, 52nd Cong., 2nd Sess. 1 (1893). . . clearly the Indian’s land can not pay tax for a period of twenty-five years from date of act [General Allotment Act]... H.R. Rep. No. 2509, 52nd Cong., 2nd Sess. 2 (1893). — 16a FIFTY-NINTH CONGRESS Sess. 1. CH. 2348 1906 [182] CHAP. 2348.— An Act To amend section six of an Act approved February eighth, eighteen hundred and eighty-seven, entitled “An Act to provide for the allot- ment of lands in severalty to Indians on the various res- ervations, and to extend the protection of the laws of the United States and the Territories over the Indians, and for other purposes.” Be it enacted by the Senate and House of Representa- tives of the United States of America in Congress as- sembled, That section six of an Act approved February eighth, eighteen hundred and eighty-seven, entitled “An Act to provide for the allotment of lands in severalty to Indians on the various reservations, and to extend the protection of the laws of the United States and the Terri- tories over the Indians, and for other purposes,” be amended to read as follows: “Sec. 6. That 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 five of this Act, 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 denying any such Indian within its jurisdiction the equal protection of the law. And every Indian born within the territorial limits of the United States to whom allotments shall have been made and who has received a patent in fee simple under the provisions of this Act, or under any law or treaty, and every Indian born within the territorial limits of the United States who has voluntarily taken up within said limits his residence, separate and apart from any tribe of Indians therein, and has adopted the habits of civilized 17a life, is hereby declared to be a citizen of the United States, and is entitled to all the rights, privileges, and immunities of such citizens, whether said Indian has been or not, by birth or otherwise, a member of any tribe of Indians within the territorial limits of the United States without in any manner impairing or otherwise affecting the right of any such [183] Indian to tribal or other property: 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 com- petent 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, incum- brance, 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 pat- ents all allottees to whom trust patents shall hereafter be issued shall be subject to the exclusive jurisdiction of the United States: And provided further, That the pro- visions of this Act shall not extend to any Indians in the Indian Territory.” That hereafter when an allotment of land is made to any Indian, and any such Indian dies before the expira- tion of the trust period, said allotment shall be cancelled and the land shall revert to the United States, and the Secretary of the Interior shall ascertain the legal heirs of such Indians, and shall cause to be issued to said heirs and in their names, a patent in fee simple for said land, or he may cause the land to be sold as provided by law and issue a patent therefor to the purchaser or purchas- ers, and pay the net proceeds to the heirs, or their legal representatives, of such deceased Indian. The action of the Secretary of the Interior in determining the legal heirs of any deceased Indian, as provided herein, shal! in all respects be conclusive and final. Approved, May 8, 1906. 18a CONGRESSIONAL RECORD INDEX H.R. 11946 H.R. 11946— To amend section 6 of an act approved February 8, 1887, entitled “An Act to provide for the allotment of lands in severalty to Indians on the various reservations, and to extend the protection of the laws of the United States and the Territories over the Indians, and for other purposes.“ Mr. Burke of South Dakota; Committee on Indian Af- fairs 1110.—Reported back with amendment (H.R. ReE- PORT 558) 2812.—Debated, amended and passed House 3598, 3602.—Referred to Senate Committees on Indian Affairs 3668.—Reported back with amendments (S. RE- PORT 1998) 4153.—Passed over 5189, 5605.—Debated, amended, and passed Senate 5805.—House concurs in Senate amendments 5980.—Examined and signed 6089, 6100, 6233.—Approved by President 7795. CONGRESSIONAL RECORD—HOUSE JANUARY 15 1110] By Mr. BURKE of South Dakota: A bill (H.R. 11946) to amend section 6 of an act approved February 8, 1887, entitled “An act to provide for the allotment of lands in severalty to Indians on the various reservations, and to extend the protection of the laws of the United States and the Territories over the Indians, and for other purposes“ to the Committee on Indian Affairs. * * * * FERRUARY 21 [2812] Mr. BURKE of South Dakota from the Com- mittee on Indian Affairs, to which was referred the bill 19a of the House (H. R. 11946) to amend section 6 of an act approved February 8, 1887, entitled “An act to provide for the allotment of lands in severalty to Indians on the various reservations, and to extend the protection of the laws of the United States and the Territories over the Indians, and for other purposes,” reported the same with amendment, accompanied by a report (No. 1558); which said bill and report were referred to the Committee of the Whole House on the state of the Union. MARCH 9 ALLOTMENT OF LANDS TO INDIANS [8598] Mr. BURKE of South Dakota. Mr. Speaker, I ask unanimous consent for the present consideration of the bill (H. R. 11946) to amend section 6 of an act ap- proved February 8, 1887, entitled “An Act to provide for the allotment of lands in severalty to Indians on the various reservations and to extend the protection of the laws of the United States and the Territories over the Indians, and for other purposes,” which I send to the desk and ask to have read. The Clerk read as follows: Be it enacted, etc., That section 6 of an act approved February 8, 1887, entitled “An act to provide for the al- lotment of lands in severalty to Indians on the various reservations, and to extend the protection of the laws of the United States and the Territories over the Indians, and for other purposes,“ be amended to read as follows: “Sec. 6. That at the expiration of twenty-five years or thereafter, if the period has been extended by the Presi- dent, and when the lands have been conveyed to the In- dians by patent in fee, as provided in section 5 of this act, then each and every allottee shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Terri- [3599] tory to which they may reside; 20a and no Territory shall pass or enforce any law denying any such Indian within its jurisdiction the equal protec- tion of the law. And every Indian born within the terri- torial limits of the United States to whom allotments shall have been made and who has received a patent in fee simple under the provisions of this act, or under any law or treaty, and every Indian born within the territo- rial limits of the United States who has voluntarily taken up with said limits his residence, separate and apart from any tribe of Indians therein, and has adopted the habits of civilized life, is hereby declared to be a citizen of the United States, and is entitled to all the rights, privileges, and immunities of such citizens whether said Indian has been or not, by birth or otherwise, a member of any tribe of Indians within the territorial limits of the United States without in any manner impairing or otherwise affecting the right of any such Indian to tribal or other property: Provided, That the Secretary of the Interior may, in his discretion, and he is hereby author- ized, whenever he shall be satisfied that any Indian al- lottee is competent and capable of managing his or her affairs, at any time cause to be issued to such allottee a patent in fee simple, and thereafter all restrictions as to sale, incumbrance, or taxation of said land shall be re- moved.” With the following amendments: Page 1, line 6, strike out “twenty-five years or.“ Page 2, line 1, strike out “thereafter, if the period has been extended by the President.” Page 2, line 2, before the word “and” insert “the trust period.” At the end of the bill add: “Provided further, That until the issuance of fee simple patents all allottees to whom trust patents shall hereafter be issued shall be subject to the exclusive jurisdiction of the United States.” 2la The SPEAKER. Is there objection? Mr. FINLEY. Mr. Speaker, I reserve the right to object. Mr. STEPHENS of Texas. Mr. Speaker, I desire to ask the gentleman from South Dakota if the Committee on Indian Affairs has reported this bill; and if not, what committee did it come from? Mr. BURKE of South Dakota. Mr. Speaker, I desire to say that the Committee on indian Affairs has made a unanimous report on this bill, and it has the favorable report of the Department. It provides, first, to change the present Indian allotment law, so that an Indian when he takes an allotment does not become a citizen until he gets a fee simple patent. It also provides that the Secre- tary of the Interior may grant a fee simple patent when, after investigation, he becomes satisfied that the Indian has reached such a state of advancement and civilization that he is capable of managing his own affairs, and the gentleman from Texas (Mr. STEPHENS] will recall that yesterday this matter was discussed in explanation of why there were so many of these individual cases in the Indian appropriation bill. The practice of the committee has been to put in such cases as might be recommended by the Department, and only such cases, and my recollec- tion is that this provision was in one or more appropria- tion bills and passed the House at the last session, but that it went out in the Senate. Mr. STEPHENS of Texas. Is the gentleman aware of the fact that the present Secretary of the Interior is hold- ing up numerous applications for patents at the present time and is not issuing them, no demands having been made, and the allottees are entitled to them, and does he not think this might result in indefinitely preventing these people from becoming citizens of the State in which they live if the bill passed? Mr. BURKE of South Dakota. I think not, Mr. Speaker; and as I indicated to the gentleman yesterday, I think the oiginal allotment law did not contemplate 22a that citizenship would go with the mere allotment of land. Of course this bill will not affect the status of any Indian allottees who has taken an allotment prior to this time. Mr. STEPHENS of Texas. The gentleman will admit it affects his citizenship. He can not become a citizen until the Secretary of the Interior will permit him to be- come a citizen by issuing to him a patent. Mr. BURKE of South Dakota. It does not affect the status as to citizenship of Indians who have taken allot- ments previous to the time when this becomes a law. Mr. STEPHENS of Texas. Then what reason have you that this should become law? Mr. BURKE of South Dakota. For this reason: Take it in my State, for instance, the Indians that have not yet received allotments and to whom allotments are now being made are the Indians in the remote portions and reservations that are commonly known as “blanket In- dians,” and they do not possess one single qualification entitling them to citizenship, and yet it is desirable that the lands be allotted to them. If citizenship goes with allotment, then I do not think there will be any allotment to any such Indians in the future. Mr. FITZGERALD. I would like to make an inquiry. This bill, if I understand it correctly, makes two changes in the present law. First, it gives to the Secretary of the Interior power to issue patents, regardless of the twenty-five-year restriction, whenever he deems it proper. Mr. BURKE of South Dakota. Yes, sir. Mr. FITZGERALD. And, secondly, it changes the law so that the mere allotment of land to an Indian does not confer citizenship upon him. Mr. BURKE of South Dakota. It leaves him subject only to the jurisdiction of the United States until he gets his fee simple patent. Mr. FITZGERALD. Are those the only two changes? Mr. BURKE of South Dakota. Those are the only changes, 28a Mr. CRUMPACKER. Under the law as it now stands the Secretary of the Interior does not have authority to issue fee simple patents to Indians whom he may con- clude are entitled to them? Mr. BURKE of South Dakota. That is true. Mr. CRUMPACKER. And if this bill should become a law Congress would still have the power to issue pat- ents in special cases notwithstanding the authority con- ferred upon the Secretary of the Interior. Mr. BURKE of South Dakota. Congress would cer- tainly have that power. Mr. CRUMPACKER. I observed in the Indian appro- priation bill that was up for consideration yesterday a number of pages of authority granted to the Secretary of the Interior to issue patents to numerous Indians. Those provisions occupied several pages in the bill, and it struck me that this kind of a law ought to be enacted in order to avoid the necessity of Congressional action in relation to these several cases. I suppose the recommenda- tion of the Committee on Indian Affairs is guided almost entirely by the recommendations of the Interior Depart- ment? Mr. BURKE of South Dakota. Entirely so; and all such provisions as appear in the Indian appropriation bill might go out on a point of order. Now I yield to the gentleman from Wyoming. Mr. MONDELL. Mr. Speaker, I just came into the House and did not hear the discussion on the bill. As I understand it, at the present time all Indian patents are issued with a non-alienation clause, and that for the time within which the lands are not alienable the Indians, under this bill, would not become citizens. Mr. BURKE of South Dakota. Not Indians who may take allotments after the passage of this act. It does not affect the status of any Indian who has taken an allot- ment when it has been approved by the Secretary of the Interior. 24a Mr. MONDELL. However, it will give the Secretary of the Interior power to withhold indefinitely final pat- ents in fees simple and enable him to deprive them of citizenship. Mr. BURKE of South Dakota. Not at all. Mr. Speaker, because of the absence of this change in the law they can not obtain a fee simple patent until the expira- tion of twenty-five years and unless Congress by special act grants them that privilege. The practice has been that in such cases we have granted the privilege on the recommendation of the Secretary of the Interior. Mr. MONDELL. Under existing law, Mr. Speaker, the Indian becomes a citizen, as interpreted by the court, when he receives his allotment. I believe I am correct in that statement. Mr. BURKE of South Dakota. That is the holding in the Supreme Court of the United States in the case of Heff. Mr. MONDELL. Now, under this legislation the In- dian remains the ward of the Government for twenty- five years after he takes his allotment, unless in the meantime the Secretary of the Interior sees fit to make him a citizen by granting him a patent in fee simple. Mr. BURKE of South Dakota. Except that Congress may grant that privilege if it sees fit. Mr. CURTIS. And, further, the agreement might pro- vide that the title should become absolute or a fee simple title should pass, say, in ten years. Mr. MONDELL. Yes; but— Mr. CURTIS. The main advantage of this bill is that under exisitng law the Supreme Court has held that after a patent has issued (the court said the word “patent” was not happily chosen to express the thought which, it is clear, all parts of the section being considered, Congress intended to express), notwithstanding the Indian does not secure a title in fee for twenty-five years, he becomes a citizen of the United States, and that the State courts have full jurisdiction over him, but not over his property. They can not assess and tax the lands, nor can a State enact a law which will prevent the Government, at the time agreed, conveying the allottee the land in fee. Now, this bill, if enacted, will leave him under the control of the Government until he secures a patent conveying the fee, whether he gets it under an agreement or whether it is issued to him under the law by the Secretary of the Interior. The Supreme Court held that the Indians to whom allotments were made under the act of 1887 were still wards of the nation, in a condition of pupilage or dependency. [3680] Mr. MONDELL. In other words, Mr. Speaker, this legislation retains the Indian in his condition as a ward of the nation without rights of citizenship for twenty-five years after he receives his allotment. Whereas under present conditions he becomes a citizen upon receiving his allotment. Is not that a fair statement of the situation? Mr. CURTIS. That is true, unless, as I said a moment ago, the agreement provides that the fee should pass in a shorter time. Mr. MONDELL. If there is some special provision in a particular piece of legislation. Generally this puts off for twenty-five years the time in which an Indian may become a citizen of the United States. Mr. CURTIS. Yes, sir—that is, by the mere taking of an allotment. Mr. MONDELL. I understand. Mr. CURTIS. He may become a citizen of the United States any minute he desires by leaving the reservation and taking up a residence apart from any tribe of In- dians and adopting the habits of civilized life. Mr. MONDELL. Under this law, however, if he does accept an allotment—and of course every Indian residing on a reservation will take an allotment, or ought to do so—he can not become a citizen within twenty-five years unless the Secretary of the Interior in the meantime shal! issue him a patent in fee simple. 26a Mr. BURKE of South Dakota. Mr. Speaker, let me say to the gentleman he does not become a citizen on tak- ing an allotment until it is approved by the Secretary of the Interior. So the Secretary of the Interior now has it within his power to withhold citizenship; yet the In- dian may take an allotment. Mr. MONDELL. Mr. Speaker, is a point of order pending? Mr. FINLEY. Mr. Speaker, I reserved the point of order against the bill. , Mr. BURKE of South Dakota. Mr. Speaker, I yield to the gentleman from Montana for a question. [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0026%3A13. Public record. Not legal advice.