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

FILED

JUN 2 7 1991

Nos. 90-408 and 90-577

7 Trte"

In The Loa

Supreme Court of the United States

October Term, 1990

COUNTY OF YAKIMA, ct al., PETITIONERS

V.

CONFEDERATED TRIBES AND BANDS OF THE

YAKIMA NATION, RESPONDENT

CONFEDERATED TRIBES AND BANDS OF THE

OF THE YAKIMA NATION, CROSS-PETITIONER

Vv.

COUNTY OF YAKIMA, et al.,

CROSS-RESPONDENTS

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

BRIEF OF AMICI CURIAE STATES OF MONTANA,

COLORADO, MINNESOTA, NORTH DAKOTA,

AND SOUTH DAKOTA IN SUPPORT OF

PETITIONERS/CROSS-RESPONDENTS

Marc Racicot

Attorney Gencral

Clay R. Smith*

Solicitor

State of Montana

Justice Building

215 North Sanders

Helena MT 59620-1401

(406) 444-2026

*Counsel of Record

(Additional counscl listed on inside cover.)

Gale A. Norton

Attorney General

State of Colorado

Department of Law

110 16th Street,

10th Floor

Denver, Colorado 80202

(303) 620-4511

Hubert H. Humphrey III

Attorney General

State of Minnesota

102 State Capitol

St. Paul, Minnesota

55155

(612) 296-6196

Nicholas Spaeth

Attorney General

State of North Dakota

State Capitol

Bismarck, North Dakota

58505

(701) 224-2210

Mark Barnett

Attorney General

State of South Dakota

500 East Capitol

Pierre, South Dakota

57503-5070

(605) 773-3215

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ............

SUMMARY OF ARGUMENT ..............

(jj Sieh eieuekSeavseseseccececes

I. SECTION 6 OF THE GENERAL

ALLOTMENT ACT, AS AMENDED IN

1906, EXPRESSLY CONSENTS TO

STATE TAXATION OF ALLOTTED

LANDS UPON ISSUANCE OF A

DT CRs eaeeeeebesccscceccscs

Il. THE PLURALITY OPINION IN

BRENDALE HAS NO RELEVANCE TO

Dt sckeseebesevedeeseccecs

hee bees as sb bbb d 06 0% bee 6's

TABLE OF AUTHORITIES

Page

CASES

Affiliated Ute Citizens v. United States,

Gee. Ds oc dmahabboe eres cdeen 5

Board of Commissioners v. United States,

GP Fae Ge Ce Ga BD cbc cbeecrccccccce 14

Brendale v. Confederated Tribes and Bands

of Yakima Nation,

nite 2c... 6s bh Sede oe bee « Wes Passim

Bryan v. Itasca County,

Ce ee kbs oensdvanbéuacecd es 18

California v. Cabazon Band of Mission Indians,

Gp Vas ED Ov dh se coeeeeseues 18, 21, 25

Chatterton v. Lukin,

ee ee PS ED kc cecsecencesenue 15

Choate v. Trapp,

Se ED db 60s 6h eueenees 13, 14, 20

Confederated Tribes and Bands of Yakima

Nation v. County of Yakima,

903 F.2d 1207 (9th Cir. 1990) ........... oo

County of Thurston v. Andrus,

586 F.2d 1212 (8th Cir. 1978),

cert. denied, 441 U.S. 952 (1979) ............ 15

DeCoteau v. District County Court,

See ey GE 8 860 006664660 86 eb 68 21

TABLE OF AUTHORITIES - Continued

Page

General Motors Acceptance Corporation v.

Chischilly, 628 P.2d 683 (N.M. 1981) .........- 21

Glacier County v. United States,

99 F.2d 733 (9th Cir. 1938) ........---2 00s 14

Housing Authority of Seminole Nation v. Harjo,

790 P.2d 1090 (Okla. 1990) .........-52205- 21

In re Heff,

ff ree ee 3, 8, 9

Love v. Board of County Commissioners,

, fi a, Perr Tr rer er er 14

Mahnomen County v. United States,

- , FL. PTET Teer Passim

McClanahan v. Arizona State Tax Commission,

8 & rrr errr rrr re rer 18

Mescalero Apache Tribe v. Jones,

je SB SS OT errr errre re 18

Moe v. Confederated Salish and Kootenai Tribes,

Ge Es Ge CUTE fn occ ce nesisea’s ones 4, 18, 22

Montana v. Blackfeet Tribe,

Ce EE wee na dcceccecccesssee 24

Morton v. Mancari,

og YY Fo re ree err ee ee 23

iv

TABLE OF AUTHORITIES - Continued

Page

Northern Cheyenne Tribe v. Hollowbreast,

Ge Ss PEED Oo oS Cewee newer auccceden 6

Pittsburgh & Lake Erie Railroad Company

v. Railway Labor Executives’ Association,

ee SRS is dw adiewows sec cess 23

Squire v. Capoeman, 351 U.S. 1 (1956) .... 16, 17, 20

Sweet v. Schock, 245 U.S. 192 (1917) ....... 13, 14

Traynor v. Turnage, 485 U.S. 535 (1988) ........ 23

United States v. Benewah County,

ee ee EG I oc ccccccesecccces 14

United States v. Dewitt,

Oe Ne I OED nccccccsecccceeses 8

United States v. Glacier County,

74 F. Supp. 745 (D. Mont. 1947) ............ 15

United States v. Lewis County,

CE ee 14

United States v. Montana,

CPE he bdeeoescccccecesser 7

United States v. Nez Perce County,

Se ee ee ES ED Svc c ccc ccccccecs 14

Vv

TABLE OF AUTHORITIES - Continued

Page

United States v. Nice,

nT. 66 es esse bes bee} 8 Ol x

United States v. Rickert,

te ¢ncesae eee vibeuweled 11, 12

Washington v. Confederated Tribes of Colville

Indian Reservation, 447 U.S. 134 (1980) ....... 18

CONGRESSIONAL HEARINGS

Hearings on H.R. 7902 Before House

Committee on Indian Affairs,

poe Ne 6, 19

Hearings on S. 2755 and S. 3645 Before

Senate Committee on Indian Affairs,

fe MD eee eee 20

CONGRESSIONAL REPORTS

H.R. Rep. No. 1558, 59th Cong.,

EE Du Gbus baud dv cevecscceveds 9

H.R. Rep. No. 306, 80th Cong.,

EO gl a 21

S. Rep. No. 1998, 59th Cong.,

ss pe wb be eee weeks 1]

vi

TABLE OF AUTHORITIES - Continued

Page

DEPARTMENT OF THE INTERIOR OPINIONS

ec cctevsthnavesenes 17

ae . . cenevbdedieehect 17

FEDERAL INDIAN TREATIES

March 24, 1832 Treaty with Creek Tribe,

7 Sent. 366 (1B3Z) ww cece ccc cece ccevens 5

December 29, 1835 Treaty with Cherokee

Tele, 7 Gent. 478 (1G9B) ow wcrc ccccncccccee 5

FEDERAL STATUTES

Act of February 8, 1887,

24 Stat. 388 (codified as amended

at 25 U.S.C. §§ 331-334, 339, 341,

SER, FER, Fy FOE) ccc ccc cece cseveces Passim

Act of February 28, 1891,

26 Stat. 795 (codified at 25 U.S.C. § 397) ...... 24

Act of January 30, 1897, 29 Stat. 506 ............ 8

Act of June 28, 1898, § 29, 30 Stat. 495 ........ 12

Act of May 8, 1906, 34 Stat. 182 (codified

in part as amended at 25 U.S.C. § 349) .... Passim

Act of June 21, 1906, 34 Stat. 325 ............ 15

vii

TABLE OF AUTHORITIES - Continued

Page

Act of May 27, 1908, 35 Stat. 312............. 18

Act of May 29, 1924, 43 Stat. 244

(ommeeee Gt ZS UB. © FUR) oc ccc ccc cece 24

Act of June 18, 1934, 48 Stat. 984

(codified as amended at 25 U.S.C.

DPT SCC Ee NCCEGS CEs ck seacccese 4, 18

Act of June 25, 1948, 62 Stat. 683

(codified as amended at Title 18,

decease vecen 24

MISCELLANEOUS AUTHORITIES

Comment, Tribal Self-Government and the

Indian Reorganization Act of 1934,

oe 19

F. Cohen, Handbook of Federal Indian Law

a Passim

F. Prucha, The Great Father (1984) .......... 6, 20

Furber, Two Promises, Two Propositions:

The Wheeler-Howard Act as a Reconciliation

of the Indian Law Civil War, 14 U. Puget

SS ee 19

Institute for Government Research,

The Problem of Indian Administration (1928) .... 20

viii

TABLE OF AUTHORITIES - Continued ~

Page

N. Singer, Statutes and Statutory

Construction § 47.09 (4th ed. 1984) .........-.. 23

United States Department of Interior,

Federal Indian Law (1958) .....--25000 800s 17

Amici curiae States of Montana, Colorado, Minnesota,

Montana, North Dakota and South Dakota, through their

respective Attorneys General, respectfully submit pursuant

to S. Ct. R. 37.5 a brief in support of the petitioners/cross-

respondents’ position with respect to the authorization

under section6 of the General Allotment Act,

25 U.S.C. § 349, for states to impose property taxes on

lands patented in fee thereunder and the inapplicability of

Brendale v. Confederated Tribes and Bands of Yakima

Nation, 492 U.S. 408 (1989), to determining the scope of

such authorization.

+

INTEREST OF AMICI CURIAE

Each amicus curiae State contains one or more Indian

reservations in which land was allotted and eventually

patented in fee under the General Allotment Act of 1887.

All currently impose, or desire to impose, ad valorem

taxes on such land even if owned by tribes or their

members. Three amici States are presently involved in

judicial or administrative proceedings seeking to invalidate

such taxation.' While the aggregate amount of affected

taxes in the amici States has not been calculated, it is

almost certainly substantial.

Beyond the very practical fiscal interest the amici

States possess in maintaining or expanding present

property tax bases, they have a more generalized concern

‘United States v. South Dakota, No. 90-301 (D.S.D.);

Assiniboine and Sioux Tribes v. Montana, No. CV-89-271-BLG (D.

Mont.); Blackfeet Tribe v. Adams, No. CV-89-100-GF (D. Mont.);

Cook v. LaPlata County Bd. of Comm'rs, No. 12825 (Colo. St.

Bd. of Assessment Appeals).

2

in the development of coherent decisional law relating to

the taxation powers of state and local governments on

Indian reservations. This matter involves an instance in

which, as the Court of Appeals concluded, Congress has

expressly authorized the taxation of lands within such

reservations. The court below nonetheless remanded the

proceeding for further preemption analysis under the

plurality opinion in Brendale v. Confederated Tribes and

Bands of Yakima Nation, 492 U.S. 408 (1989), to

determine whether such "taxation would affect [the

Yakima Nation] in a demonstrably serious way[.]"

Confederated Tribes and Bands of Yakima Nation v. County

of Yakima, 903 F.2d 1207, 1218 (9th Cir. 1990); Petition

at 28a. The Court of Appeals’ analysis in the latter

regard contemplates at Jeast the possibility of judicially

developed principles superseding an explicit statement of

congressional will in an area where Congress has

unquestioned supremacy. Aside from the manifest

impropriety of arrogating such power to the courts, the

proposed Brendale analysis would embroil states, tribal

taxpayers and, more than likely, the federal government in

complicated, repetitive litigation.

¢

SUMMARY OF ARGUMENT

The General Allotment Act embodied an effort to

dissolve the political relationship between tribes and their

members. The touchstone of this effort was allotment in

severalty of lands to individual members for a 25-year

trust period, after which fee patents were to be issued.

Under section 6 of the Act as originally adopted, allottees

were given upon completion of the allotment and

patenting process the benefit of, and made subject to, "the

laws, both civil and criminal of the State or Territory in

which [they] may reside" and made citizens of the United

3

States. Act of Feb. 8 1887, § 6, 24 Stat. 388, 390. In

response to In re Heff, 197 U.S. 488 (1905), Congress

amended section 6 in 1906 to substantially its present form

and rendered allottees subject to state or territorial law

only upon issuance of fee patents. The 1906 amendment

additionally gave the Secretary of the Interior the power

to issue a fee patent "whenever he shall be satisfied that

any Indian allottee is competent and capable of managing

his or her affairs" and provided that, upon the patent's

issuance, “all restrictions as to sale, incumbrance, or

taxation of said land shall be removedj.]" Act of May 8,

1906, 34 Stat. 182, 183 (codified in part at

25 U.S.C. § 349).

Over the 40 years following the 1906 amendment, a

significant body of decisional law developed concerning

whether land patented in fee could be taxed by state and

local governments. The issue in that litigation, however,

was not whether section 6 constituted congressional

consent to such taxation -- since no one disputed that it

did -- but whether allottees had consented to such taxation

during that portion of the original trust period remaining

after the fee patent issued. Cases involving the identical

question also arose under other reservation-specific

legislation comparable to the amended section 6, the most

important of which was Mahnomen County v. United States,

319 US. 474 (1943). Mahnomen County, like the

section 6 cases, assumed the existence of congressional

consent to the challenged state tax and dealt only with the

consent issue.

The purposes attendant to the General Allotment

Act’s passage and subsequent amendment, the literal

language of the 1906 amendment itself, and the ensuing

litigation over whether allottee consent to taxation during

the original trust period had occurred all point to the

conclusion that section 6 as amended authorizes states to

4

tax allotted lands upon issuance of a fee patent

irrespective of the taxpayer's status as a tribe or tribal

member. This conclusion is not altered by termination of

the allotment process in the Indian Reorganization Act,

Act of June 18, 1934, 48 Stat. 984 (codified as amended

at 25 U.S.C. §§ 461-479), the 1948 recodification of

Title 18 of the United States Code in which a definition

for Indian country was added, or Moe v. Confederated

Salish and Kootenai Tribes, 425 U.S. 463 (1976). The

Court of Appeals therefore correctly held that section 6

permitted the petitioners/cross-respondents to impose the

challenged property tax.

The Court of Appeals, however, erred in remanding

the proceeding for further consideration in light of the

plurality opinion in Brendale v. Confederated Tribes and

Bands of Yakima Nation, 492 U.S. 408 (1989). Brendale

involved the question whether a tribe had inherent power

to impose its zoning ordinance on nonmember-owned

properties. No issue concerning such power is implicated

by the taxation here, whose propriety all parties and amici

curiae agree must be determined by whether section 6

contains a requisitely clear congressional authorization to

tax. The lower court accordingly should have remanded

the proceeding with instructions to dismiss the

respondent/cross-petitioner’s claim directed to the

Washington property tax.

ebeemeneed |

5

ARGUMENT

I. SECTION 6 OF THE GENERAL ALLOTMENT ACT,

AS AMENDED IN 1906, EXPRESSLY CONSENTS

TO STATE TAXATION OF ALLOTTED LANDS

UPON ISSUANCE OF A FEE PATENT.

A.

Individual treaties have provided for the allotment’ of

reservation or other lands to tribal members,’ but the

General Allotment Act of 1887 was the first statute of

general application to authorize individual allotments. Act

of Feb. 8, 1887, 24 Stat. 388 (codified as amended at

25 U.S.C. §§ 331-334, 339, 341, 342, 348, 349, 354). The

Statute was viewed at the time of its enactment as

reformist legislation, designed to remedy past wrongs to

Indians by making it possible for them to become

economically self-sufficient and thereby independent of

their tribes:

The supreme aim of the friends of the Indian was

to substitute white civilization for his tribal cuicure,

and they shrewdly sensed that the difference in

*Allotment is a term of art in Indian law. ... It means a

selection of the specific land awarded to an individual allottee from

a common holding." Affiliated Ute Citizens v. United States, 406

U.S. 128, 142 (1972) (citation omitted).

‘See generally F. Cohen, Handbook of Federal Indian Law

63-64 (1942) (discussing allotment provisions in treaties negotiated

between 1854 and 1861). Several removal-related treaties also

authorized allotment to individual members of lands ceded under

their provisions. E.g., Dec. 29, 1835 Treaty with Cherokee Tribe,

art. 12, 7 Stat. 478, 483-84 (1836); Mar. 24, 1832 Treaty with Creek

Tribe, arts. Il, V, 7 Stat. 366 (1832).

6

the concepts of property was fundamental in the

contrast between the two ways of life. That the

white man’s way was good and the Indian’s way

was bad, all agreed. So, on the one hand,

allotment was counted on to break up tribal life.

tk

On the other hand, the allotment system was to

enable the Indian to acquire the benefits of

civilization. The Indian agents of the period

made no effort to conceal their disgust for tribal

economy.

D. Otis, History of the Allotment Policy, reprinted at

Readjustment of Indian Affairs: Hearings on H.R. 7902

Before House Committee on Indian Affairs, 73d Cong., 2d

Sess. 430 (1934) ("Readjustment of Indian Affairs"); see also

I] F. Prucha, The Great Father 659 (1984) ("II F. Prucha”)

("Allotment of land in severalty ... was part of the drive to

individualize the Indian that became the obsession of the

late nineteenth-century Christian reformers and _ their

friends in government and did not stand by itself. The

breakup of tribalism, a major goal of this Indian policy,

had been moved forward by the abolition of the treaty

system and would be carried on by a government

educational system and by the extension of American law

over the Indian communities. Yet for many years the

dissolution of communal lands by allotment, together with

the citizenship attached to private landowning, was the

central issue"). The Court has thus commented that "[t}he

objects of [the allotment] policy were to end tribal land

ownership and to substitute private ownership, on the view

that private ownership by individual Indians would better

advance their dissimilation as self-supporting members of

our society and relieve the Federal Government of the

need to continue supervision of Indian affairs." Northen

Cheyenne Tribe v. Hollowbreast, 425 U.S. 649, 650 n.1

7

(1976); see also United States v. Montana, 450 U.S. 544,

559 n.9 (1981) (observing that "[t}he policy of the [various

allotment acts] was the eventual assimilation of the Indian

population ... and the ‘gradual extinction of Indian

reservations and Indian titles'" and that, "throughout the

congressional debates, allotment of Indian lands was

consistently equated with the dissolution of tribal affairs

and jurisdiction").

The General Allotment Act accomplished these

purposes by directing the President, "whenever in his

Opinion any reservation or any part thereof ... is

advantageous for agricultural and grazing purposes," to

allot specified quantities of reservation land to tribal

members. Act of Feb. 8, 1887, § 1, 24 Stat. 388 (codified

as amended at 25 U.S.C. § 331). Upon approval of an

allotment, a trust patent issued "declar[ing] that the

United States does and will hold the land thus allotted,

tor 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 his 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 as aforesaid, in fee, discharged

of said trust and free of all charge or incumbrance

whatsoever[.]" /d., § 5, 24 Stat. 389 (codified as amended

at 25 U.S.C. § 349). Section 6 of the original statute

granted citizenship, wer alia, to allottees “upon the

completion of said allotments and the patenting of the

lands” and, at such time, made them subject "to the laws,

both civil and criminal, of the State or Territory in which

they may reside[.]" /d., § 6, 24 Stat. 390.

Although there was some ambiguity over whether

section 6, as enacted in 1887, conferred citizenship upon

issuance of the trust patent or issuance of the fee patent,

8

the Court held in 1905 that an allottee became a citizen,

and therefore subject to state or territorial law, upon

receipt of the trust patent. In re Heff, 197 US. 488

(1905). In so holding, the Court reversed a conviction

under federal law for selling alcohol to an allottee who

had received only a trust patent.' The congressional

response to Heff was the 1906 amendment to section 6.

Act of May 8, 1906, 34 Stat. 182 (codified in part at 25

U.S.C. § 349).° The House report accompanying the bill

‘The involved federal statute, Act of Jan. 30, 1897, 29 Stat.

attempted through exercise of federal police power to regulate

** the internal trade of the States'*. 197 U.S. at 507 (quoting from

United States v. Dewitt, 76 U.S. (9 Wail.) 41, 45 (1869). tt further

States v. Nice, 241 U.S. 591, 601 (1916).

‘In relevant part the 1906 amendment read:

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, 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

(continued...)

9

adopted without substantive modification as_ the

amendment stated that, since Heff, "there has been more

or less demoralization among the Indians, as most of them

have taken allotments and liquor has been sold to them,

regardless of the fact that they are Indians" and deemed

it “advisable that all Indians who may hereafter take

allotments be not granted citizenship during the trust

period, and that they shall be subject to the exclusive

jurisdiction of the United States." H.R. Rep. No. 1558,

59th Cong., Ist Sess. 2 (1906). The report continued on:

*(...continued)

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 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 authorized, whenever he shall be satisfied that

any Indian allottee is competent and capable of

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

issued to such allottee a patent in fee simple, and

thereafter ali restrictions as to sale, incumbrance, or

taxation of said lands shall be rernoved and said land

shall not be liable to the satisfaction of any debt

contracted prior to the issuing of such patent: Provided

further, That until the issuance of fee-simpie patents 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 provisions of this

Act shall not extend to any Indians in the indian Territory.

34 Stat. 182-83.

10

The bill also provides and authorizes that the

Secretary of the Interior, in his discretion,

whenever he shall be satisfied that any Indian

allottee is competent and capable of managing

his or her own affairs, may cause to be issued to

such allottee a patent in fee simple, and

thereafter all restrictions as to sale, encumbrance,

or taxation of said lands shall be removed, and if

that should be done it would follow as a matter

of course, under the provisions of this bill, that

the allottee would then become a full citizen and

no longer subject to the exclusive jurisdiction of

the United States.

The latter aspect of the amendment was viewed by the

Commissioner of Indian Affairs as “perhaps the most

important in the bill":

It is a long step in the right direction, and the

great need of such a provision is apparent under

existing law, and it would become all the more

urgent if the other provisions of the pending bill

should be enacted. There are many members of

Indian tribes, full bloods, mixed bloods, and in

some instances adopted white men, who are

entirely competent to transact their own business

and take their places in the ranks of our common

citizenship. If such allottees are given full control

of their property they will be absorbed into the

community in which they reside and bear their

share of its burdens, while at the same time the

number of "wards of the Government” will be

gradually reduced. The process, however, is well

safeguarded. Before a fee-simple patent is issued

the bill makes it the duty of the Secretary of the

Interior to satisfy himself of the civic competency

of the allottee concerned.

a |

1]

Id. at 4. Removal of the restrictions against alienation,

encumbrance and taxation was thus viewed by both the

House Committee on Indian Affairs and the Department

of the Interior as an adjunct to the status of a fee-

patented allottee as a citizen who, having been deemed

capable of managing his affairs like other citizens, not only

possessed the right to control disposition of his land but

also was expected to bear the ordinary obligations, such as

taxation, attendant to property ownership. Accord

S. Rep. No. 1998, 59th Cong., Ist Sess. (1906).°

“The provision for removal of restrictions on alienation and

taxation simply made explicit what had otherwise been established

in United States v. Rickert, 188 U.S. 432 (1902). There the Court

determined that state taxes could not be assessed against lands

allotted under the General Allotment Act while still held in trust by

the United States:

if, as is undoubtedly the case, these lands were he'd by

Cp Wiese Cae & cuaeien of Gs plans seluting to

Indians, -- without any right in the Indians to make

contracts in reference to them, or to do more than

occupy and cultivate them, -- until a regular patent

conveying the fee was issued to the several allottees, it

would follow that there was no power in the state of

South Dakota, for state or municipal purposes, to assess

and tax the !ends in question until at least the fee was

United States; and the holding of them by the United

States under the act of 1887, and the agreement of 1889,

ratified by the act of 1891, is part of the national policy

by which the indians are to be maintained as well as

prepared for assuming the habits of civilized life, and

ultimately the privilege of citizenship. To tax these lands

is to tax an instrumentality employed by the United States

for the benefit and control of this dependent race{.]

(continued...)

|?

There can thus be no legitimate dispute over

Congress’s objective with respect to the first proviso to

section 6: Once a fee patent issued for certain land, it

became both capable of conveyance at the owner's

discretion and subject to taxation. That the proviso

constituted congressional consent to taxation is retlected

vividly in a long series of decisions concerned with

whether state taxes could be applied during that portion

of the original 25-year trust period remaining after

issuance of a fee patent.

Under an 1897 agreement incorporated into statute,

Choctaw and Chickasaw tribal members were allotted

shares of land set aside tor their benefit in the Oklahoma

Territory. Act of June 28, 1898, § 29, 30 Stat. 495, 505.

The agreement provided that all such land was nontaxable

for a period of 21 years while in the allottee’s ownership

but permitted alienation of specified portions of the land

at various intervals. /d., 30 Stat. 507. Congress later

enacted legislation removing all restrictions as to alienation

*(...continued)

Id. at 437; see also United States v. Mitchell, 445 U.S. 535, 544

(1980) (*[ijt is plain ... that when Congress enacted the General

Allotment Act, it intended that the United States ‘hold the land ...

in trust’ ... because it wished to prevent alienation of the land and

to ensure that allottees would be immune from the state taxation’).

This aspect of Rickert was referred to during the House debate

on the section 6 amendment. 40 Cong. Rec. 3599 (1906) (remarks

of Rep. Curtis). The notion that the privilege of alienability

normally carried with it the obligation to pay state taxes was

reiterated shortly after the 1906 amendment's adoption in Goudy

v. Meath, 203 U.S. 146, 149 (1906), where the Court in part

sustained application of Washington property taxes to on-

reservation land owned in fee by a tribal member on that basis.

13

and taxation of lands of the type subject to allotment

under the 1897 agreement. Act of May 27, 1908, 35

Stat. 312. When Oklahoma attempted to tax those lands

on the basis of the subsequent statute, the Court held in

Choate v. Trapp, 224 U.S. 665 (1912), that the agreement's

immunity against taxation was a property right vested

within the various allottees which was not diminished by

the more general statute:

Restrictions on alienation were removed by lapse

of time. [The allottee] could sell part after one

year, a part after three years, and all except

homestead after five years. The period of

exemption was not coincident with this five-year

limitation. On the contrary, the privilege of

nontaxability might last for twenty-one years, thus

recognizing that the two subjects related to

different periods and that neither was dependent

on the other. The right to remove the restriction

was in pursuance of power under which Congress

could legislate as to the status of the ward and

lengthen or shorten the period of disability. But

the provision that the land should be nontaxable

was a property right, which Congress undoubtedly

had the right to grant. That right fully vested in

the Indians and was binding upon Oklahoma.

Id. at 673. Choate did not address whether a restriction

against taxation could be removed by an allottee taking

affirmative action to have a fee patent issued or whether

an allottee could recover taxes voluntarily paid on fee land

otherwise subject to such a restriction. However, in Sweet

v. Schock, 245 U.S. 192 (1917), the Court indicated that a

tax exemption could be forfeited upon application for

14

issuance of a fee patent,’ and in Love v. Board of County

Commissioners, 253 U.S. 17 (1920), it recognized that state

taxes voluntarily paid by an allottee on fee land subject to

a restriction against taxation could not be recovered.* The

reasoning in Choate, Sweet and Love was thereafter

extended expressly or implicitly to situations where,

pursuant to his section 6 authority, the Secretary issued

fee patents to allottees before expiration of the 25-year

trust period, with courts resolving the taxation issue by

reference to whether the allottee had consented to

issuance of the fee patent or voluntarily paid the state

taxes. Compare Glacier County v. United States, 99 F.2d

733 (9th Cir. 1938) (finding no consent and therefore no

state taxation authority); United States v. Lewis County, 95

F.2d 236 (9th Cir. 1938) (sam “led States v. Nez Perce

County, 95 F.2d 232 (9th Cir 2558) (same); Board of

Commissioners v. United States, 87 F.2d 55 (10th Cir. 1936)

(same); and United States v. Benewah County, 290 F. 628

‘The specific issue in Sweet was the taxable status of land

allotted to a member of the Creek Tribe and later conveyed to

nonmembers. Prior to the first of these conveyances, the allottee

requested removal of the restriction against alienation. 245 U.S. at

193-94. At the time of this request a statute, Act of Apr. 26, 1906,

§ 19, 34 Stat. 137, 144, provided that removal of the alienation

restriction would render the affected land taxable. The Court held

the conveyed land subject to taxation, remarking in part that the

Creek member, in accepting the fee land free of restrictions, "did

so under the conditions imposed by [applicable] laws[.]" /d. at

196.

‘Love involved members of the Choctaw Tribe who had paid

property taxes on allotted lands subject to the same restrictions at

issue in Choate. Although the Court "accepted so much of the

{Oklahoma} Supreme Court's decision as held that, if the payment

was voluntary, the moneys could not be recovered in the absence

of a permissive statute," it found the “decision that the taxes were

paid voluntarily ... without any fair or substantial support." 253 U.S.

at 22, 23.

15

(9th Cir. 1923), with United States v. Glacier County, 74 F.

Supp. 745 (D. Mont. 1947) (finding consent and therefore

State taxation authority); and Chatterton v. Lukin, 154 P.2d

798 (Mont. 1945) (same); see also County of Thurston v.

Andrus, 586 F.2d 1212, 1219-20 (8th Cir. 1978), cert.

denied, 441 U.S. 952 (1979) (collecting various federal and

State cases on the consent question).

The Court itself addressed the consent issue in

Mahnomen County v. United States, 319 U.S. 474 (1943),

under a 1906 statute applicable in part only to the White

Earth Reservation. Act of June 21, 1906, 34 Stat. 325.

The statute, enacted six weeks after the section 6

amendment, stated "[t}hat all restrictions as to the sale,

encumbrance or taxation for allotments with the White

Earth Reservation in the State of Minnesota, now or

hereafter held by adult mixed-blood Indians, are hereby

removed, and the trust deeds heretofore or hereafter

executed by the Department for such allotments are

hereby declared to pass the title in fee simple, or such

mixed bloods upon application shall be entitled to receive

a patent in fee simple for such allotments[.]" 34 Stat. 353.

Pursuant to this statute restrictions against alienation and

taxation were removed when an allottee, on whose behalf

the United States sued, reached majority in 1911, and she

commenced paying state property taxes. Because her trust

patent had issued in 1902 with a 25-year trust period

contemplated, the United States initiated an action in

1940 to recover only tax payments made between 1911

and 1927, conceding that any limitation on the county’s

power to tax the property expired in 1928 with the

termination of the 25-year trust period. 319 U.S. at 475.

The Court concluded that all of the challenged taxes had

been paid voluntarily, observing that 1911-1921 payments

had been made without protest and that the allottee had

entered into a settlement agreement with respect to 1922-

1927 taxes, "for which tax exemption is claimed, [and] for

16

the years 1928-34, for which there is no conceivable claim

of exemption." /d. at 478. Justice Murphy dissented on

the consent question, but he also recognized the 1928-

1934 taxes were “admittedly due." /d. at 483 (Murphy, J.,

dissenting). There was, in sum, unanimity among the

parties and on the Court that the challenged taxes could

be assessed outside the 25-year trust period -- and even

within such period if consent existed.

Thirteen years after Mahnomen County the Court

again acknowledged the evident purpose of section 6's first

proviso. In Squire v. Capoeman, 351 U.S. 1 (1956), the

issue was whether federal capital gain taxes for the year

1943 were required to be paid on proceeds from the sale

of timber harvested from allotted lands still held in trust.

The Court determined that "the promise to transfer the

fee ‘free from all charge or incumbrance'" in section 5 of

the General Allotment Act precluded even federal

taxation. In reaching this conclusion, it remarked that the

first proviso in section 6 "gave additional force" to the

allottee’s claimed exemption and reasoned:

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 proviso evinces a

congressional intent to subject an Indian allotment

to all taxes only after a patented fee is issued to

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

time as the patent is issued, the allotment shall be

free from all taxes[.]

Id. at 7-8 (footnote omitted). The Court further stated

that two Attorney General's opinions and Felix Cohen's

1942 Indian law treatise, all of which supported the

17

federal tax’s inapplicability, were "entitled to consideration"

as "relatively contemporaneous official and unofficial

writings[.J" Jd. at 9. Here, both a 1924 Department of

the Interior opinion’ and the Cohen treatise” support the

validity of the Washington tax’s application to lands

allotted under the General Allotment Act and now held

in fee by the respondent/cross-petitioner or its members.

The Court’s analysis in Squire, finally, is singularly ironic

since it specifically rejected the United States’ position

that the proviso applied only to state and local taxation --a

position which the Government now argues directly

— Brief for United States as Amicus Curiae at 11-

13.

“50 LD. 691, 694 (1924) ("{[w]hen an allottee voluntarily

applies for a removal of restrictions [by requesting issuance of a

fee patent] prior to the expiration of the period of exemption

originally provided for, the granting of such application subjects

those lands to taxation even in the hands of the original allottee’);

accord §3 \.D. 133 (1930).

"F. Cohen, supra note 3, at 259 ("[s]hould [an allottee] ...

apply for the issuance of a fee patent and be accorded one [under

the General Allotment Act), there seems no reason to believe that

his lands would not thereby be subject to state taxation"); accord

United States Dep't of Interior, Federal Indian Law 859 (1958).

18

Cc.

That the section 6 proviso satisfies the decisionally-

developed principle that state taxation of reservation-based

activities Or property of tribes and their members must be

clearly authorized by Congress’ would therefore seem

incontrovertible. The — respondent/cross-petitioner

nonetheless argues that the adoption of the Indian

Reorganization Act ("IRA"), Act of June 18, 1934, 48

Stat. 984 (codified as amended at 25 U.S.C. §§ 461-479),

the 1948 addition of a definition for Indian country in 18

U.S.C. § 1151, and Moe v. Confederated Salish and

Kootenai Tribes, 425 U.S. 463 (1976), counsel against the

"continued viability" of the proviso. Cross-Petition at 7;

Memorandum of Respondent at 3-5. However, nothing in

the IRA, the 1948 recodification of Title 18 of the United

States Code, or Moe suggests that the taxation

authorization in the first proviso has been repealed

impliedly.

Although the IRA terminated further allotment of

reservation lands and extended indefinitely trust periods as

to allotments previously made but as to which fee patents

had not issued (25 U.S.C. $§ 461, 462), the statute

contained no provision affecting the status of allotted

lands previously patented in fee. Since Congress knew

the effect of a fee patent’s issuance on the taxable status

of the involved land, it thereby elected to maintain the

then-existing distinction between fee and trust lands for

"E.g., California v. Cabazon Band of Mission Indians, 480

U.S. 202, 215 n.17 (1987); Washington v. Confederated Tribes of

Colville Indian Res., 447 U.S. 134, 163-64 (1980); Bryan v. Itasca

County, 426 U.S. 373, 375-77 (1976); McClanahan v. Arizona

State Tax Comm'n, 411 U.S. 164 (1973); Mescalero Apache Tribe

v. Jones, 411 U.S. 145, 148 (1973).

19

State and local taxation purposes, providing only that land

acquired in trust by the Secretary for tribes or individual

members would be exempt from such taxation. 25

U.S.C. § 465." Thus, the IRA’s termination of the

"As initially proposed by the Department of the Interior, the

IRA would have made significantly more substantive changes in

existing law than the finally enacted statute. See, e.g, Furber, Two

Promises, Two Propositions: The Wheeler-Howard Act as a

Reconciliation of the Indian Law Civil War, 14 U. Puget Sound

L. Rev. 211, 240-52 (1991); Comment, Tribal Self-Government and

the Indian Reorganization Act of 1934, 70 Mich. L. Rev. 955, 961-

69 (1972). Yet, even under the original bill there was implicit

recognition of the taxable status of previously allotted lands as to

which fee patents had issued and no provision for modifying such

Status. H.R. 7902, 73d Cong., 2d Sess., title ill, § 7 (1934),

reprinted in Readjustment of Indian Affairs at 9 (authorizing the

Secretary, “in the case of trust or other restricted lands or lands to

which fee patents have hitherto been issued to Indians and which

are unencumbered, to accept voluntary relinquishments of, and to

cancel the patent or patents or any other instrument removing

restrictions from the land"). Another provision of the bill would

have permitted the Secretary to establish new reservations or

expand existing ones, with the newly acquired lands not subject to

taxation “so long as title to them is held by the United States or by

an Indian tribe or community[.)" /d., title Ill, § 16, reprinted in

Readjustment of Indian Affairs at 11. The latter provision,

recognizing the fiscal impact of removing such lands from the tax

base, further obligated the United States to ‘assume ail

governmental obligations of the State or county in which such

lands are situated with respect to the maintenance of roads across

such lands, the furnishing of educational and other public facilities

to persons residing thereon, and the execution of proper measures

for the control of fires, floods, and erosion, and the protection of

the public health and order in such lands” or to enter into

agreements with state or local governments for such services

under which those governments would be compensated for their

expenses. The absence of any reference to the taxable status of

allotted land subsequently patented in fee was hardly an oversight,

since the Meriam Report submitted to the Secretary of the Interior

(continued...)

20

allotment process did not impliedly repeal the removal of

restrictions against taxation in the first proviso of

section 6; indeed, finding such a repeal would be directly

inconsistent with Mahnomen County and Squire which both

indicated the continuing validity of the proviso after the

IRA’s passage in 1934. See Brendale v. Confederated

Tribes and Bands of Yakima Nation, 492 U.S. 408, 423

(1989) (plurality opinion) ("[A]lthough the [IRA] may have

ended the allotment of further lands, it did not ... prevent

already allotted lands for which fee patents were

subsequently issued from thereafter passing to non-

Indians"). The voluntary nature of IRA coverage, finally,

would mean that the proviso is inoperative on only those

reservations accepting the statute’s provisions -- a result

hardly consonant with common sense. 25 U.S.C. § 478;

see Il F. Prucha at 964-65 (258 IRA elections held, with

181 tribes voting for and 77 tribes voting against coverage;

"*(...continued)

had identified state and local property taxes as ‘without douDt ...

an important factor in causing the loss of indian lands by so large

a proportion of those indians who have been declared competent."

institute for Gov. Research, The Problem of Indian Administration

477 (1928). Indeed, Senator Wheeler -- the chairman of the

Senate Committee on Indian Affairs and a sponsor of the

legislation eventually enacted as the IRA -- evinced substantial

knowledge of Choate and later section 6 consent decisions during

questioning of the Department of the Interior's acting Solicitor. To

Grant to Indians Living Under Federal Tutelage the Freedom to

Organize for Purposes of Local Self-Government and Economic

Enterprise: Hearings on S. 2755 and S. 3645 Before Senate

Committee on Indian Affairs, 73d Cong., 2d Sess. 185-91 (1934);

see alsu id. at 270 (legal analysis submitted by Commissioner of

indian Affairs discussing congressional power to subject Indian

property to state taxation); id. at 320-21 (1934 Washington Posi

article authored by Commissioner of Indian Affairs describing

operation of the General Allotment Act and its effect on

landownership).

21

14 other tribes did not hold elections and therefore were

deemed covered).

The 1948 recodification of Title 18 of the United

States Code also says nothing about the continuing validity

of the first proviso. Even if one assumes that the

definition of Indian country in 18 USC. § 1151

determines the geographical area in which special federal

Indian law preemption principles apply,” those principles

were used by the Court of Appeals in determining that

the proviso constitutes an express authorization for

application of the ad valorem tax. Neither the language

of § 1151 nor its legislative history“ remotely hints that by

inclusion of all reservation lands, whether fee patented or

not, within the definition of Indian country Congress

intended to undo the explicit consent to state taxation in

the proviso. The Court of Appeals was wholly correct,

"See Cabazon, 480 U.S. at 207 n.5; DeCoteau v. District

County Court, 420 U.S. 425, 427 n.2 (1975). Cabazon and

DeCo.eau involved civil regulatory or adjudicatory issues arising

within tne boundaries of admitted or claimed reservations; whether

federal indian law preemption principles apply in full force in non-

reservation indian country is an issue which has not been

addressed by the Court and which has caused some difficulty to

State courts. See Housing Authority of Seminole Nation v. Harjo,

790 P.2d 1090 (Okla. 1990); General Motors Acceptance Corp. v.

Chischilly, 628 P.2d 683 (N.M. 1981). Presently, of course, only

ns oP on Tee GR Of wetnIEN

“The only legislative history associated with the definition of

Indian country is an explanation for the proposed addition of

§ 1151 in the House report accompanying the recodification bill.

H.R. Rep. No. 306, 80th Cong., 1st Sess. A91-A92 (1947). The

report commented that ‘[t]his section consolidates numerous

conflicting and inconsistent provisions of law into a concise

Statement of applicable law’ and identified the decisions from

which the several elements of the definition were derived. /d.

22

therefore, in deeming § 1151 irrelevant to the validity of

the Washington property tax. 903 F.2d at 1215; Petition

at 20a - 2la.

The last contention -- that Moe held the first proviso

impliedly repealed -- finds no support in the text or logic

of the decision. The Court rejected there the quite broad

claim that section 6, insofar as it made allottces subject to

all state civil and criminal law upon receipt of a fee

patent, sanctioned application of state personal property

taxes On property owned by Indians within the reservation,

state vendor license fees applied against Indians

conducting cigarette businesses on reservation land, and

State cigarette sales taxes with respect to on-reservation

transactions between Indians. 425 U.S. at 480-81. Moe is

inapposite for several reasons. First, the state appellants

in that case were attempting to tax all Indians and not

merely allottees, and their reliance on the first sentence in

section 6 was accordingly overbroad at best. The

petitioner/cross-respondent here seeks to tax lands

specifically referred to in the first proviso. Second, as the

Court observed, giving literal application to the first

sentence proved too much since later legislation had in

specific instances, such as criminal jurisdiction, clearly

superseded application of state law. No such legislation,

however, even tangentially touches upon the proviso’s

removal of restrictions against taxation of allotted

fee-patented lands. Third, and most important, because

Moe was concerned only with the first sentence in

section 6 and because taxation of allotted fee lands was

not germane, the Court had no cause to address the

proviso. Its general comments concerning the post-

allotment period congressional approach to civil regulatory

matters can thus hardly be elevated to judicial repeal of

23

a provision which Congress itself has left unaltered and

which was not implicated by the questioned state taxes.”

"The courts are not at liberty to pick and choose

among congressional enactments, and when two statutes

are capable of co-existence, it is the duty of the courts,

absent a clearly expressed congressional intention to the

contrary, to regard each as effective." Morton v. Mancan,

417 U.S. 535, 551 (1974); accord Pittsburgh & Lake Erie

Railroad Company v. Railway Labor Executives’ Association,

491 U.S. 490, 510 (1989); Traynor v. Turnage, 485 US.

"in urging the cross-petition be granted, the United States

argued that, “if the principal clause of Section 6 is insufficient to

authorize state taxation of indian property and transactions within

a reservation’s boundaries ..., it is reasonable to assume that a

mere proviso to the principal clause likewise is insufficient to permit

state taxation." Brief for the United States as Amicus Curiae at 11.

24

535, 551 (1988). Even though "the standard principles of

statutory construction do not have their usual force in

cases involving Indian law" (Montana v. Blackfeet Tribe,

471 U.S. 759, 766 (1985)), there must be at least some

textual support in later statutory enactments for implied

repeal of an earlier statute." No decisional authority

suggests the anomalous concept -- upon which the

respondent/cross-petitioner’s attack on the property tax is

ultimately premised -- that a mere change in general

congressional approach, like termination of the allotment

process, automatically invalidates all statutory provisions

associated with the earlier policy. Absent the necessary

textual predicate for implied repeal of section 6's first

proviso, the Washington ad valorem tax must be sustained

insofar as it has been or will be applied to allotted lands

for which the patents have issued, irrespective of whether

those lands are owned by the respondent/cross-petitioner

or its members. No such textual predicate has been

identified here.

“The Court did not reach the question of implied repeal in

Blackfeet, holding only that the authorization to tax in the Act of

May 29, 1924, 43 Stat. 244 (codified at 25 U.S.C. § 398), did not

extend to leases executed under the Omnibus indian Mineral

Leasing Act, Act of May 11, 1938, 52 Stat. 347 (codified as

amended at 25 U.S.C. §§ 396a-396g). 471 U.S. at 766-68. It left

open the issue whether the later statute, by virtue of its general

to leases issued under the 1924 Act or the Act of February 28,

1891, 26 Stat. 795 (codified at 25 U.S.C. § 397). 471 U.S. at 767

n.6. The IRA contained no repealer provision, while the Title 18

recodification statute specified those provisions of Title 25, which

did not include 25 U.S.C. § 349, repealed or amended by its

enactment. Act of June 25, 1948, §§ 3, 21, 62 Stat. 683, 859, 862.

25

Il. THE PLURALITY OPINION IN BRENDALE HAS

NO RELEVANCE TO THIS MATTER.

There is no dispute among the parties and amici

curiae that resolution of the statutory construction issue

relating to section 6 should end the inquiry here. E.g.,

Memorandum of Respondent at 2-3; Brief for the United

States as Amicus Curiae at 18. Their agreement in this

regard is well founded.

The demonstrably serious impact-test in Brendale v.

Confederated Tribes and Bands of Yakima Nation, 492 U.S.

408, 430-31 (1989) (plurality opinion), recognized

administrative or judicial recourse for a tribe to vindicate

a "protectible interest" allegedly prejudiced by state

regulation of nonmember-owned property. As an ordinary

matter, however, the interest-balancing standard

articulated first in White Mountain Apache Tribe v. Bracker,

448 US. 136, 144-45 (1980), governs when a state

attempts to regulate on-reservation affairs of tribes or

their members. The interest-balancing standard, in turn,

is superseded by the clearly authorized requirement if the

regulation involves state taxation of tribal or tribal

member property or transactions. California v. Cabazon

Band of Mission Indians, 480 U.S. 202, 215 n.17 (1987).

Consequently, if the petitioners/cross-respondents prevail

with respect to the section 6 proviso issue, the Washington

ad valorem tax may be applied and, if the

respondent/cross-petitioner prevails on such issue, the tax

will be preempted. In either instance there is no room

for Brendale-type analysis.

26

CONCLUSION

The amici curiae States respectfully request that the

Washington ad valorem tax be deemed applicable to all

lands allotted pursuant to the General Allotment Act as

to which fee patents have issued. They further request

that the Court of Appeals’ judgment be reversed to the

extent it remanded for further evidentiary hearings the

question whether application of such tax imperils the

respondent/cross-petitioner’s political integrity, economic

security, health or welfare.

Respectfully submitted,

MARC RACICOT

Attorney General

CLAY R. SMITH*

Solicitor

State of Montana

Justice Building

215 North Sanders

Helena MT 59620-1401

(406) 444-2026

* Counsel of Record

June 199]