Amicus Curiae Brief — Cass County v. Leech Lake Band of Chippewa Indians

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QUESTION PRESENTED

Given that the Nelson Act is silent on the issue of

tribal tax immunity, does it evidence the requisite

“unmistakably clear” congressional intent to grant tax

jurisdiction to county governments?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...............0.cceeeeeees i

INTEREST OF THE AMICI CURIAE................ 1

SUMMARY OF ARGUMENT...............0.0ee0:- 1

pe ES 2 4

I. IN RECOGNITION OF THE PLENARY

AUTHORITY OF THE FEDERAL GOVERN-

MENT OVER TRIBES AND TRIBAL SOVER-

EIGNTY, TRIBES ARE IMMUNE FROM STATE

TAXATION OF RESERVATION LANDS...... 4

A. The Tax-exempt Status of Reservation

Lands Arises Out Of The Unique Political

Status of Tribes... .... 2.6.66. cc cece eeees 5

B. Tribes Are Separated From The Tax Juris-

diction Of The State Because The Constitu-

tion Vests The Federal Government With

Exclusive Authority Over Relations With

RE PE ns dnivcshdavetseeecsonsece: 10

Il. THE NELSON ACT DID NOT DIMINISH THE

LEECH LAKE RESERVATION OR ALTER THE

TAX-EXEMPT STATUS OF RESERVATION

LANDS OVER WHICH THE FEDERAL GOV-

ERNMENT AND THE TRIBE HAVE ALWAYS

RETAINED JURISDICTION ................5. 13

GUE 660 vb 8 oc ebncdns ceenccssccccccccccses 17

iii

TABLE OF AUTHORITIES

Page

Feperat Cases

Choctaw, Oklahoma & Gulf R. Co. v. Mackey, 256

Ee Bee es a etehis we ek be elec 8

County of Yakima v. Yakima Nation, 502 U.S. 251

a cbitetah soiun ales ombe oe cbbeeesh sede sbsb ve ote 2, 4

DeCoteau v. Tenth Judicial District, 420 U.S. 425

TN tin, bid dainnhtn ttdteed Wh nbn ba adsogee 6 13, 15, 16

Goudy v. Meath, 203 U.S. 146 (1906) ..............645. )

Hagen v. Utah, 510 U.S. 399 (1994) ............. 0055. 15

Leech Lake Band v. Cass County, 108 F.3d 820 (8th

ins Kean wdak 00 anne os cicetodes 9, 11, 14, 15

Leech Lake Band v. Herbst, 334 F. Supp. 1001 (D.

NS ab de ediiew se bhctddebud edocs sver 14, 15, 16

Mattz v. Arnett, 412 U.S. 481 (1973) ................. 16

McClanahan v. Arizona State Tax Comm'n, 411 U.S.

Death dcccdededécdecedediéssebedseles 5, 6, 11

Menominee Tribe v. United States, 391 U.S. 404

DI adddeetdddedddsedouséééccccnveetreese 11, 12

Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973)

LPM he ddt6ccdddad idbcssecedssddvsced 4, 6, 8, 11

Montana v. Blackfeet Tribe of Indians, 471 U.S. 759

chs .uesbhbadasihh idnenwen se cannestescvcces 5, 11

Oklahoma Tax Comm'n v. United States, 319 U.S. 598

Dutch tc dikh aoc nctdvchabestabadnweseercescecs 4

Oneida Indian Nation v. County of Oneida, 414 U.S.

Sr Pen chicks cuaes ogeecuedndasbatihnsssececes 14

Seymour v. Superintendent, 368 U.S. 351 (1962)... 13, 15, 16

iv

TABLE OF AUTHORITIES — Continued

Page

The Kansas Indians, 72 U.S. (5 Wall.) 737 (1866) ..5, 6, 7, 8

The New York Indians, 72 U.S. (5 Wall.) 761 (1866). . 5, 6, 7

Thomas v. Gay, 169 U.S. 264 (1889) .................. 10

United States v. Celestine, 215 U.S. 278 (1909) ........ 13

United States v. Rickert, 188 U.S. 432 (1902)........ 8, 10

Washington v. Confederated Tribes of Colville Indian

Reservation, 447 U.S. 134 (1980) ................45. 11

Williams v. Lee, 358 U.S. 217 (1959)...........2220 eee. 4

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)..... 5, 6

Strate Cases

State v. Forge, 262 N.W.2d 341 (Minn. 1977) ......... 14

Statutes, Copes AND RuLEs

Oe Te En a nn, wn cnc eathaiiiedbue 13

Menominee Termination Act of 1954, 25 U.S.C.

Tt ff eee Sea 11

Nelson Act of January 14, 1889, ch. 24, 25 Stat. 642

GEE db 640 e0edatueéddnseucedtouethe 9, 14, 15, 16, 17

MISCELLANEOUS

Felix S. Cohen, Handbook of Federal Indian Law, 514

GEE GE db cacdeeusccodues chedducoudctedsectan 13, 14

INTEREST OF THE AMICI CURIAE

Amici are three federally-recognized Indian tribes.

Two of the tribes, the Grand Portage Band of Chippewa

and the Red Lake Band of Chippewa, are located in

northern Minnesota. The third, the Sisseton-Wahpeton

Sioux Tribe, is located in northeastern South Dakota and

southeastern North Dakota.

All three tribes lost substantial landholdings by oper-

ation of the General Allotment Act and similar federal

laws. Many parcels on Grand Portage Reservation were

sold or forfeited to non-Indians under the Nelson Act -

the same statute under which the Leech Lake Band lost

the lands at issue in this matter.

Fortunately, the tribes have been able to re-purchase

a portion of their lost homelands, and they currently hold

some of those lands in fee. The tribes have been subjected

to state property taxes on their re-purchased fee lands by

the surrounding counties, and have thus suffered the

same imposition on their tribal tax immunity as has the

Leech Lake Band with respect to Cass County.

*

SUMMARY OF ARGUMENT

Cass County cannot identify any unmistakably clear

statutory language granting it jurisdiction to impose its

ad valorem property taxes on lands owned in fee by the

Leech Lake Band within the boundaries of its reservation,

which were originally sold as pine and homestead lands

under the Nelson Act.! The unmistakable intent rule,

which is rooted in the cannons of construction applicable

in Indian law, recognizes the exclusive authority of the

federal government over Indian affairs. In light of the

rule, the removal of restrictions on alienation under the

Nelson Act and the act of selling lands to non-Indian

settlers cannot be construed as a grant of state tax juris-

diction. Moreover, the exercise of state tax jurisdiction

over the prior non-Indian owners of such lands did not

terminate federal and tribal jurisdiction, or the Band’s tax

immunity.

Federal preemption is not the sole source of the tax-

exempt status of reservation lands. The tax-exempt status

of reservation lands is derived from treaties and the

unique political status of tribes. Thus, the absence of

federal control over reservation lands combined with the

exercise of state jurisdiction over non-Indians within the

reservation cannot alter the tax-exempt status of reserva-

tion lands. Furthermore, this Court has refused to apply a

preemption analysis to determine the tax-exempt status

of reservation lands. County of Yakima v. Yakima Nation,

502 U.S. 251, 258 (1992).

1 Pursuant to Rule 37.3 of the Rules of this Court, the

parties have consented to the filing of this brief amicus curiae.

Their letters of consent have been filed with the Clerk of Court.

Pursuant to Rule 37.6 of the Rules of this Court, amici state

that no counsel for a party has authored this brief in whole or in

part, and that no person or entity, other than the amici, their

members, or their counsel, has made a monetary contribution to

the preparation or submission of this brief.

= —

Pursuant to treaties between the Band and the federal

government, all lands within the Leech Lake Reservation

were separated from the tax jurisdiction of the State.

There is no convincing language in the Nelson Act evi-

dencing an intent by Congress to diminish the reserva-

tion, restore reservation lands to the public domain, or to

end federal responsibility for such lands, and thereby

separate these lands from the reservation. Thus, the State

has never been granted exclusive tax jurisdiction over the

lands in question.

The Nelson Act served a limited purpose - to permit

surplus unallotted lands to be sold as pine lands or

subject to entry under the homestead laws. The Nelson

Act itself did not terminate tribal ownership of reserva-

tion lands. The sale of surplus unallotted lands within the

Leech Lake Reservation was uncertain, and thus there

was a possibility that tribal ownership would continue.

Knowing that tribal ownership could continue, had Con-

gress intended the Nelson Act to grant states exclusive

tax jurisdiction over the lands in question it would have

included language in the Act to that effect. Under the

cannons of construction applicable in Indian law, state

taxation of surplus unallotted lands was invalid before

the sale of such lands, and for the same reasons cannot be

permitted now that the Band has reacquired ownership of

such lands.

ARGUMENT

I. IN RECOGNITION OF THE PLENARY AUTHOR-

ITY OF THE FEDERAL GOVERNMENT OVER

TRIBES AND TRIBAL SOVEREIGNTY, TRIBES

ARE IMMUNE FROM STATE TAXATION OF RES-

ERVATION LANDS.

State taxation of reservation lands created by treaty

and executive order cannot be justified using a preemp-

tion analysis, notwithstanding the National Association

of Counties and the National Governors’ Association's

(“Associations”) argument that preemption is the sole

source of the tax-exempt status of reservation lands.

Thus, the removal of a federal restriction, or the absence

of federal control with respect to reservation land does

not impliedly subject such land to state taxation. If this

were the law, state and local governments could chal-

lenge the tax-exempt status of any reservation land on

preemption grounds, whenever the federal government

fails to exercise sufficient control.

Essentially, the Associations have asked the Court to

apply the jurisdictional test set forth in Williams v. Lee, 358

US. 217 (1959). In that case, the Court held that state laws

applied within the boundaries of an Indian reservation,

unless preempted by federal law or unless such laws

infringed upon tribal self-government. This Court has

refused to apply the Williams test to determine the tax-

exempt status of reservation lands, however. County of

Yakima, 502 U.S. at 258. In the area of taxation, the Court has

adopted a categorical approach: states are without jurisdic-

tion to tax reservation lands absent congressional consent.

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

Cass County fails to recognize that the tax-exempt

status of reservation lands derives from treaties. The Kan-

sas Indians, 72 U.S. (5 Wall.) 737 (1866); The New York

Indians, 72 U.S. (5 Wall.) 761 (1866). Consequently, state

taxation of reservation lands is not preempted in the

usual sense, i.e. by over-riding federal control or laws,

because the tax-exempt status of such lands was already

secured by treaty. Rather, state tax jurisdiction is said to

be preempted only in the sense that state taxation of

reservation lands is barred unless Congress has expressed

its consent. McClanahan v. Arizona State Tax Comm'n, 411

U.S. 164, 172 (1973). That is, until Congress explicitly

grants jurisdiction to state governments to tax reservation

lands, state taxation is forbidden. Congressional consent

is required because the federal government has exclusive

jurisdiction over reservation lands. Montana v. Blackfeet

Tribe of Indians, 471 U.S. 759, 764 (1985).

A. The Tax-exempt Status of Reservation Lands

Arises Out Of The Unique Political Status of

Tribes.

Generally, Indian treaties contemplated that reserva-

tions would not be included within the territorial limits

or jurisdiction of the states. Worcester v. Georgia, 31 U.S. (6

Pet.) 515, 557 (1832). The Court found that this implied

guarantee prohibited state taxation of reservation lands.

The Kansas Indians, 72 U.S. (5 Wall.) at 752; The New York

Indians, 72 U.S. (5 Wall.) at 766-67. Chief Justice Marshall

resolved that the federal government had completely

excluded state jurisdiction over Indian reservations

through the treaty-making process:

6

The Cherokee Nation, then, is a distinct commu-

nity, occupying its own territory, with bound-

aries accurately described, in which the laws of

Georgia can have no force, and which the citi-

zens of Georgia have no right to enter, but with

the assent of the Cherokees themselves, or in

conformity with treaties, and with acts of Con-

gress.

Worcester, 31 U.S. at 561. This policy of federal preemp-

tion has been modified to allow some state regulatory

and adjudicatory jurisdiction over activities on reserva-

tion lands, but remains in full force with respect to the

taxation of reservation lands. Mescalero Apache Tribe, 411

U.S. at 148 (summarizing McClanahan, 411 U.S. 164).

In the late 1800s, the Court found that reservation

lands set aside during the treaty period were exempt

from state taxation. Lands held in common, severalty, and

fee were exempt from state taxation based on the unique

political status of the tribes: “As long as the United States

_ fecognizes their national character they are under the

protection of treaties and the laws of Congress, and their

property is withdrawn from the operation of state laws.”

The Kansas Indians, 72 U.S. at 757.

In The New York Indians, land was conveyed by the

Seneca Nation by treaty to non-Indians (hereafter

“grantees”), but the Seneca Nation was permitted to

occupy the reservation for a period of five years before

removal to the West. 72 U.S. at 767. The treaty provided

that the Seneca Indians would hold title to the reservation

in fee as joint tenants for a period of five years. Id. Once

the Senecas were removed from the reservation, the

whole title in fee was to pass to the grantees. Id. Under a

new treaty, however, the conveyance was cancelled, and a

new deed executed between the Seneca Nation and the

grantees under which it was agreed that the Seneca

Nation would remain in possession of the reservation,

and the grantees would retain a “right of pre-emption.”

Id. at 763. The Court held that taxation of the reservation

lands was “premature and illegal,” including those taxes

imposed when title to reservation lands was held in fee

by the grantees. Id. at 770. The right to occupy the reser-

vation by the Seneca Nation, which had been guaranteed

by treaty, provided the basis for the tax-exempt status of

all lands within the reservation. The Court stated: “[T]he

right of occupancy creates an indefeasible title to the

reservation that may extend from generation to genera-

tion, and will cease only by dissolution of the tribe. .. . ”

Id. at 771.

Likewise, in The Kansas Indians it was the political

status of the Tribe of Shawnee Indians and its right of

occupancy that rendered reservation lands tax-exempt,

regardless of whether reservation lands were held in

severalty or in common. 72 U.S. at 755. There, the treaties

with the Shawnee did not address whether division of the

reservation into separate estates changed the tax-exempt

status of such lands. Id. The Court recognized that, even

in the absence of explicit treaty guarantees regarding

taxation, reservation lands originally set aside by treaty

would remain tax-exempt:

If the tribal organization of the Shawnees is

preserved intact, and recognized by the political

department of the government as existing, then

they are a “people distinct from other,” capable

8

of making treaties, separated from the jurisdic-

tion of Kansas, and to be governed by the gov-

ernment of the Union. If under the control of

Congress from necessity there can be no divided

authority. If they have outlived many things,

they have not outlived the protection afforded

by the Constitution, treaties and laws of Con-

gress.

Id. at 755-756. The continued political existence of the

Shawnees and their treaty guarantees precluded state

taxation of reservation lands.

Tribes do not enjoy immunity from state real prop-

erty taxes “only derivatively from federal tax immunity”

as suggested by the Associations. (Associations’ Brief, at

18) This Court has already held that the federal immu-

nity-or-instrumentality doctrine no longer applies to

Indians or their lands. Mescalero Apache Tribe, 411 U.S. at

150. Under that doctrine, the federal government was

viewed as owning tribal and individual lands, so it

shared its tax immunity with tribes. See United’ States v.

Rickert, 188 U.S. 432, 438-39 (1902) (holding that states

may not interfere with the powers vested in Congress

under the Property Clause). In Mescalero Apache Tribe, the

Court recognized that tribal tax immunity actually arises

out of the unique political status of tribes, and that fed-

eral ownership of tribal lands was irrelevant. Hence, “the

‘mere fact that property is used among others, by the

United States as an instrument for effecting its purpose

does not relieve it from state taxation.’ ” Mescalero Apache

Tribe, 411 U.S. at 151, citing Choctaw, Oklahoma & Gulf R.

Co. v. Mackey, 256 U.S. 531, 536 (1921).

=

a=

That tribal tax immunity arises out of the unique

political status of tribes is illustrated by a case in which

the Court held that Indians of the Five Civilized Tribes

lacked tribal autonomy, because there was little to distin-

guish them from other state citizens. Oklahoma Tax

Comm'n v. United States, 319 U.S. 598 (1943). Conse-

quently, the restricted lands owned by tribal members

and the proceeds derived from such lands were not

assumed to be tax-exempt, and the members were

required to establish that state taxes had been explicitly

exempted by Congress.? By holding that the tribal mem-

bers in that case no longer belonged to tribes having a

separate political existence, the Court implied that tribes

having a visible existence should and would enjoy immu-

nity from state taxation.

For tribes maintaining a separate political existence,

the tax-exempt status of reservation lands is preserved

until extinguished by Congress. The tribal organization of

the Leech Lake Band and its reservation was created by a

series of treaties dating from 1854 and by an executive

order in 1874, and has remained intact. Leech Lake Band v.

Cass County, 108 F.3d 820, 821 (8th Cir. 1997). Therefore,

Cass County must show that Congress has unmistakably

granted authority to the County to tax reservation lands

originally sold to non-Indians under the Nelson Act of

January 14, 1889, ch. 24, 25 Stat. 642 (1989) (hereafter

“Nelson Act”).

2 Similarly, in Goudy v. Meath, 203 U.S. 146 (1906), an

express exemption from tax was required because Goudy had

severed his tribal relations and lost his inherent right as an

Indian to be free from state taxation.

10

The tax-exempt status of reservation lands excluded

from the territorial jurisdiction of the state does not

extend to non-Indians. With respect to non-Indian lands,

tax-exemptions may not be implied. In Thomas v. Gay, the

Court held that the state’s taxing jurisdiction was coex-

tensive with its legislative and territorial jurisdiction.

Under Oklahoma’s Organic Act, the state was granted

legislative power over “all rightful subjects of legisla-

tion.” 169 U.S. 264, 271-272 (1889). Unlike the tribe or its

members, non-Indian cattle owners were “rightful sub-

jects” of taxation, and were thus subject to state taxation.

In Rickert, the Court held: “All subjects over which the

sovereign power of the state extends are objects of taxa-

tion; but those over which it does not extend are, upon

the soundest principles, exempt from taxation.” 188 U.S.

at 438.

The Nelson Act did not expressly exempt non-

Indians, who were “rightful subjects” of legislative

power, from state taxation. Therefore, Congress’ failure to

exempt non-Indian ownership of reservation lands from

state taxation does not mean that Congress authorized

the County to tax tribal ownership of the lands in ques-

tion here.

B. Tribes Are Separated From The Tax Jurisdiction

Of The State Because The Constitution Vests

The Federal Government With Exclusive

Authority Over Relations With Indian Tribes.

Cass County’s assertion of tax jurisdiction over lands

held by the Leech Lake Band within its reservation is

11

ultimately restrained by Article I, § 8, cl 3 of the Constitu-

tion, which grants the Federal government exclusive

authority over relations with Indian tribes. Montana v.

Blackfeet, 471 U.S. at 764. As a result, states lack jurisdic-

tion to tax reservation lands. Only Congress has the

power to modify or remove restrictions on the taxability

of tribal lands. Washington v. Confederated Tribes of Colville

Indian Reservation, 447 U.S. 134 (1980) (holding tribal sov-

ereignty dependent and subordinate to only the federal

government, not the states). In deference to the exclusive

authority of the federal government over Indian affairs,

the Court has never found that Congress has abdicated its

exclusive authcrity over tribal lands in the absence of a

clear expression of intent to relinquish such jurisdiction.

Montana v. Blackfeet, 471 U.S. at 765. Thus, the Court has

consistently held that “absent cession of jurisdiction or

other federal statutes permitting it, there has been no

satisfactory authority for taxing Indian reservation lands

... absent Congressional consent.” Mescalero Apache Tribe,

411 U.S. at 148, citing McClanahan, 411 U.S. 164.

In a case analogous to Leech Lake Band, the Court held

that statutes relinquishing federal jurisdiction to the

states will be narrowly construed as relinquishing juris-

diction only with respect to those laws specifically identi-

fied in the statute. Menominee Tribe v. United States, 391

U.S. 404 (1968). There, the Court held that treaty rights to

hunt and fish free from state regulation were not abro-

gated by a termination Act that contained no “explicit

statement” demonstrating unmistakable intent to extin-

guish such rights.

The Menominee Termination Act of 1954, 25 U.S.C.

§ 899 (1954), provided that “all statutes of the United

12

States which affect Indians . . . shall no longer be applica-

ble to members of the tribe.” Id. at 412. Because the term

“treaty” was not expressly mentioned as one of the fed-

eral laws no longer applicable to members of the Tribe,

however, the Court declined to infer that Congress had

terminated the Tribe’s treaty rights. Id. at 412-413.

The Nelson Act should be construed in the same

manner as the Menominee Termination Act. The Court

cannot imply that the Leech Lake Band's tax immunity

within its reservation was extinguished, absent any refer-

ence to taxation in the Nelson Act.

The tax-exempt status of reservation lands is not

dependent upon whether the federal government

retained or exercised exclusive jurisdiction over Indian

allottees or the prior non-Indian owners of the lands at

issue. What matters is that the Nelson Act did not

expressly terminate the Leech Lake Band's treaty-based

tax immunity with respect to lands within its reservation.

The Court in Menominee applied the unmistakable intent

rule of construction ewen though the statute terminated

the federal trust relationship with the Tribe. Thus, the

removal of federal protection and relinquishment of juris-

diction to the state did not preclude the Menominee Tribe

from exercising its treaty rights free from state regulation.

Similarly, the removal of restrictions on alienation under

the Nelson Act should not bar the Leech Lake Band from

asserting its tax immunity, derived from treaties with the

Band, with respect to lands that still remain a part of its

reservation.

ica aia i

13

Il. THE NELSON ACT DID NOT DIMINISH THE

LEECH LAKE RESERVATION OR ALTER THE

TAX-EXEMPT STATUS OF RESERVATION LANDS

OVER WHICH THE FEDERAL GOVERNMENT

AND THE TRIBE HAVE ALWAYS RETAINED

JURISDICTION.

Although Congress clearly intended to remove

restrictions on alienation with respect to the lands at

issue, it did not unmistakably intend to terminate all

federal control and protection of such lands by passing

the Nelson Act. Once a reservation is established all lands

within remain a part of the reservation until Congress

unequivocally removes them. United States v. Celestine,

215 U.S. 278, 285 (1909). The Nelson Act was a regulatory

act that interfered with tribal possession, but did not

diminish or disestablish the Leech Lake Reservation.®

Because allotted and fee lands within the Leech Lake

Reservation remain “Indian country”, federal supremacy

and tribal jurisdiction was never terminated with respect

to such lands. Seymour v. Superintendent, 368 U.S. 351

(1962) (holding that land owned by non-Indians in fee is

still “Indian country”).*

3 Restraints on alienation and exclusive control over lands

subject to original Indian title constitute federal regulatory

action under the Indian Commerce Clause. See Felix S. Cohen,

Handbook of Federal Indian Law, 514 (1982 ed.).

* “If the lands in question are within a continuing

‘reservation,’ jurisdiction is in the tribe and the Federal

Government ‘notwithstanding the issuance of any patent....° ”

DeCoteau v. Tenth Judicial District, 420 U.S. 425, 421 n.2 (1975),

quoting 18 U.S.C. 1151(a).

14

Congressional power over tribal lands is not depen-

dent upon “either federal claims to an interest in land

owned by tribes or the tenure by which the tribal land is

held.” Handbook of Federal Indian Law at 515. In Oneida

Indian Nation v. County of Oneida, the fact that the United

States never held fee title to the lands at issue “did not

alter the doctrine that federal law, treaties, and statutes

protected Indian occupancy and that its termination was

exclusively the province of federal law.” 414 U.S. 661, 670

(1974). Thus, the right of a tribe to occupy lands origi-

nally set aside by treaty must be expressly terminated

and is not affected by the manner in which tribal land is

held. The transfer of title and possessory rights to non-

Indians under the Nelson Act does not relieve Cass

County of the need to identify express congressional

language in the Nelson Act that unmistakably shows the

Leech Lake Band would be subject to state tax jurisdiction

if it regained title and asserted its rights of occupancy to

the lands originally sold under that Act.

Only if the Nelson Act had diminished or disestab-

lished the Leech Lake Reservation, would Cass County be

able to justify its assertion that the Nelson Act impliedly

subjected tribal ownership of surplus unallotted lands to

state taxation. The Eighth Circuit Court of Appeals and

Minnesota courts, however, have consistently recognized

that the Nelson Act did not diminish or disestablish

reservations of the various bands of the Minnesota Chip-

pewa Tribe. Leech Lake Band v. Cass County, 908 F. Supp.

689, 691 (D. Minn. 1995), aff'd in part, 108 F.3d 820, 821-22

(8th Cir. 1997), citing with approval, Leech Lake Band v.

Herbst, 334 F. Supp. 1001, 1002 (D. Minn. 1971), and State

v. Forge, 262 N.W.2d 341, 343-44 (Minn. 1977). The Eighth

15

Circuit determined that “[aJlthough the pattern of land

ownership within the reservation has varied over the

years, the reservation has never been disestablished or

diminished.” Leech Lake Band, 108 F.3d at 821-22.

In the most recent diminishment and disestablish-

ment case, the Court applied a three-part test to deter-

mine whether Congress expressed its unequivocal intent

to change or abolish reservation boundaries. Hagen v.

Utah, 510 U.S. 399 (1994). The Court examined (1) “the

statutory language used to open the Indian lands,” (2)

“the historical context surrounding the passage of the

surplus land Acts,” and (3) “subsequent demographics,”

or “who actually moved onto opened reservation lands.”

Id. at 411. This is precisely the test that was applied in

Herbst.

In He¥bst, the court held: (1) As in Seymour v. Superin-

tendent, there is no language in the Nelson Act “vacating

the reservation and restoring the land to the public

domain,” (2) “it is apparent in light of events before and

after the passage of the Nelson Act that its purpose was

not to terminate the reservation or end federal respon-

sibility for the Indian,” and (3) “[lJess than one-fourth of

the [Leech Lake] Indians actually moved off the reserva-

tion. The rest remained and many of them accepted allot-

ments on the Leech Lake Reservation where they and

their descendants continue to live.” Herbst, 334 F. Supp. at

1004-5.

Finally, the Nelson Act does not provide for a “sum

certain” payment in exchange for lands, another require-

ment for diminishment. Compare DeCoteau v. District

Court, 420 U.S. at 448 (citing “gross differences” between

16

congressional acts that open land for settlement and

agreements that “vest in the tribe at sum certain — $2.15 —

per acre.”).5 The Nelson Act merely anticipated that the

reservation would be opened for the purpose of selling

unallotted surplus lands on behalf of the Leech Lake

Band. Herbst, 334 F. Supp. at 1004. This Court has consis-

tently held that such an arrangement does not diminish

or disestablish reservation boundaries. Mattz v Arnett,

412 U.S. 481 (1973); Seymour v. Superintendent, 368 U.S. at

351.

Not only did the Nelson Act fail to diminish or

disestablish the Leech Lake Reservation, but it did not

terminate the Leech Lake Band’s tax immunity with

respect to pine and homestead lands sold to non-Indians

under the Act. Congress could not have intended the

removal of restrictions on alienation under the Nelson

Act to apply to tribes or subject tribal ownership of lands

to state taxation, because there was a possibility that such

lands would never be sold. Sections 4, 5 and 6 of the

Nelson Act permitted surplus lands to be sold as pine

lands or subject to entry under the homestead laws. As

was the case in Mattz, 412 U.S. 481, the sale of surplus

lands within the Leech Lake Reservation was uncertain.

Due to this uncertainty, the Court in Mattz concluded that

the Tribe had not ceded all of its claim, right, title and

interest in the surplus lands. See DeCoteau, 420 U.S. at 448.

5 The Nelson Act provides for an appropriation of one-

hundred and fifty-thousand dollars, or “so much thereof as may be

to fulfill the purposes of the Act. 25 Stat. 612, ch. 24,

§ 8. This is not a bilateral agreement providing for a sum certain

per acre for each reservation.

17

The Nelson Act could not have subjected surplus

lands to state taxation in light of the fact that tribal

ownership of such lands could continue. Given that tribal

ownership of surplus lands within the Leech Lake Reser-

vation would continue unless sold, this Court cannot

allow state taxation unless it finds that the Nelson Act

expressly authorized state taxation of tribally-owned

lands.

¢

CONCLUSION

For the foregoing reasons, Amici Curiae, the Grand

Portage Band of Chippewa, the Sisseton-Wahpeton Sioux

Tribe, and the Red Lake Band of Chippewa respectfully

request that the Court affirm the judgment of the Eighth

Circuit Court of Appeals.

Respectfully submitted,

Vanya S. Hocen-Kinp,

Counsel of Record

Susan L. ALLEN

BiueDoc, Otson & Smatt, P.L.L.P.

Southgate Office Plaza, Suite 500

5001 West 80th Street

’ Minnesota 55437

Minneapolis

Telephone (612) 893-1813

Attorneys for Amici Curiae