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

In THE .

Supreme Court of the United States

OCTOBER TERM, 1997

Cass County, et al.,

v.

LEECH LAKE BAND OF CHIPPEWA INDIANS,

Petitioners,

BRIEF OF THE HOOPA VALLEY TRIBE,

THE NEZ PERCE TRIBE,

THE QUINAULT INDIAN NATION, AND

THE SPOKANE TRIBE OF INDIANS

AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

MICHAEL J. WAHOSKE

Counsel of Record

Dorsey & WHITNEY LLP

Pillsbury Center South

220 South Sixth Street

Minneapolis, MN 55402

(612) 340-8755

Counsel for Amici Curiae

Winson - Epss Prurine Co., Inc. - 789-0086 - WasHINGTON, D.C. 2000!

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QUESTION PRESENTED

Whether the mere fact that land owned by an Indian tribe

within its reservation is freely alienable evidences clear

congressional intent to grant jurisdiction to states and

their political subdivisions to tax that land.

(i)

TABLE OF CONTENTS

QUESTION PRESENTED ...............-.-2--c--0-ec-e-neeeseeneeo-0es

TABLE OF AUTHORITIES. ............--2.-.----c0-c-cceceseeeeeee=s:

INTERESTS OF AMICI CURIAE .......

SUMMARY OF ARGUMENT .................-..-..----.---0-0------

ARGUMENT ...... — ciienemstemmnaecs

I,

Il.

CONGRESSIONAL AUTHORIZATION OF

STATE TAXATION ON RESERVATION

LANDS OWNED BY INDIAN TRIBES

MUST BE EXPRESS OR EXPLICIT ..............

A. Cases Prior to Yakima Consistently Required

Explicit Congressional Intent to Allow State

Taxation in Indian Country ~........................

B. The Court’s Indian Tax Jurisprudence Since

Yakima Confirms the Necessity of Express

Congressional Intent ................ +

DIFFERING LAND ALIENATION PROVI-

SIONS IN INDIVIDUAL ALLOTMENT STAT-

UTES LACK THE UNMISTAKABLY CLEAR

INTENT TO TAX TRIBAL LANDHOLDERS

FOUND BY THIS COURT IN SECTIONS 5

ge

A. Indian Land Alienation Occurred Through a

Number of Allotment Statutes, Not Only Sec-

tions 5 and 6 of the GAA .........

B. The Taxability of Reservation Lands Alien-

ated Under Statutes Other Than Sections 5

and 6 of the GAA Is Not Defined by the

Alienation Provisions Set Forth in Sections

TO a ae ee

11

11

iv

TABLE OF CONTENTS—Continued

C. The Various Allotment Laws Contain Taxa-

tion Provisions That Differ From Those

Deund Se Ge GAS qantas

Ill. ADOPTION OF CASS COUNTY’S RULE

THAT ALIENABILITY EQUALS TAXABIL-

ITY WOULD SUBSTANTIALLY THWART

THE INTENT OF CONGRESS AND FRUS-

TRATE THE ABILITY OF THE EXECUTIVE

BRANCH TO IMPLEMENT THE INDIAN

REORGANIZATION ACT OF 1934

A. The Assimilation and Allotment Policies of

the 19th Century Envisioned the End of

Tribal Autonomy ot SS te SEE lee een ae

B. Congress Passed the IRA in Recognition of

the Failure of the Assimilation and Allotment

Policies, and Intended in the IRA That Tribes

Regain Land To Be Placed Into Trust _..

C. Adoption of the Rule Sought by Cass County

Would Unduly Burden the IRA Fee to Trust

Process and Unlawfully Place the Burden of

the Tax on Indian Tribes —..........................

2. If the “alienability equals taxability” rule

is adopted, tribes could risk post-purchase

loss of land before trust status is granted.

ee

15

16

17

18

19

v

TABLE OF AUTHORITIES

CASES Page

Appeal of Municipality of Penn Hills, 519 A.2d

1090 (Pa. Cmwith. 1987), aff'd, 546 A.2d 50

ee ee 10

Bryan v. Itasca County, 426 U.S. 373 (1976)... 7,8

California v. Cabazon Band of Mission Indians,

480 U.S. 202 (1987) 6

Cass County, et al. v. Leech Lake Band of Chip-

pewa Indians, 108 F.3d 820 (8th Cir. 1997)... 2,14

Coulter v. Gough, 454 P.2d 969 (N.M. 1969)... 10

County of Yakima v. Confederated Tribes and

Bands of Yakima Indian Nation, 502 U.S. 251

0 Ee .2, 5, 9, 10

Dillman v. Foster, 656 P.2d 974 (Utah 1982) ..._... 10

Garcia v. Santa Clara County, 151 Cal. Rptr. 80

DR rr 10

Kennerly v. District Court, 400 U.S. 423 (1971)... 7

Lummi Indian Tribe v. Whatcom County, 5 F.3d

fF 17

Mattz v. Arnett, 412 U.S. 481 (1973) 17, 18

McClanahan v. State Tax Comm'n of Arizona, 411

U.S. 164 (1978) . ' 6,7

Moe v. Confederated Salish & Kootenai Tribes of

the Flathead Reservation, 425 U.S. 463 (1976) ... 8

Montana v. Blackfeet Tribe, 471 U.S. 759 ( 1985) . zo &S

New Mezico v. Mescalero Apache Tribe, 462 U.S.

EL LD Se 19

Oklahoma Tax Commission v. Chickasaw Nation,

EET i)

Oklahoma Tax Commission v. Citizen Band Pota-

watomi Indian Tribe of Oklahoma, 498 U.S. 505

(1991) oe Tee ea nee eee ae iy

Oklahoma Tax Commission v. Sac and Foz Nation,

CG ETNIES dita 10, 11

Solem v. Bartlett, 465 U.S. 463 (1984)... 13, 17, 18

United States v. Kopp, 110 F. 160 (D. Wash.

TS ae we ene ee ae 12, 14

United States ez rel. Saginaw Chippewa Indian

Tribe v. Michigan, 106 F.3d 130 (6th Cir. 1997),

petition for cert. filed, 66 U.S.L.W. 3085 (June

80, 1997) (No. 97-14) adpategset 12, 14

vi

TABLE OF AUTHORITIES—Continued

Page

Washington v. Confederated Tribes of Colville In-

dian Reservation, 447 U.S. 134 (1980)... =

White Mountain Apache Tribe v. Bracker, 448 U.S.

136 (1980) 8,19

Witt v. United States, 681 F.2d 1144 “(9th Cir.

ee 12

Yellowstone County v. Pease, 96 F.3d 1169 (oth

Cir. 1996), cert. denied, 117 S.Ct. 1691 (1997)... 14

CONSTITUTION, STATUTES, TREATIES

AND RULES

eth eh) Ss | 3

Bp ieee 7

a bi TS): 14

ee eee a Le Oe ee 12

i a 13

Pe ee Sees Sane 16

ss RIE aR 16

te ee Se se cen sae 16

25 U.S.C. § 378 cidiedinienetiane ities 16

Me kL BO 16

25 U.S.C. § 391a em 8 lhe a ale ll 16

25 U.S.C. § 398 FRR sical RT 6,7

le i a es EG 16

Sa eee ee ee a 16

EE ee ee lek MD 15

hl a la tl a Mlb ll ant 15

te a + eS ee 18

26 U.S.C. § 468... Dee tae Md tbh 0 =. man 18, 19

re ee ee 15, 18

SEE eed oa le A Rtas 15

I, ie Ss ee Ee 15

EE Di a ae Rd Bcc Tan 15

re a eee es 7

a eS ee eee 7

ES Re cease ae A Crees ah x

ee 19, 22, 23, 24

Pub. L. 280, § 4, 67 Stat. 589, codified at 28 U.S.C.

§ 1360 pablo +

Act of Mar. 3, 1817, ch. 88, § 1, 3 Stat. 380... 12

vii.

TABLE OF AUTHORITIES—Continued

Page

Act of Mar. 3, 186\' ch. 127, § 4, 13 Stat., pt. 2

(Public Acts 541 (Stockbridge-Munsees) .......... 15

Act of Mar. 3, 1873, ch. 332, §3, 17 Stat. 631

RET EP TES ee ee Y-Sey cana 15

Act of June 15, 1880, ch. 223, § 4, 21 Stat. 199 a

(0 Ee eee eee ee

Act of Jan. 18, 1881, ch. 23 § 5, 21 Stat. 315 (Win- a

Ee ae ee ne a ee oe

Act of Apr. 11, 1882, ch. 74, §1, 22 Stat. 42

(Crows) a) 15

Act of June 28, 1898, ch. 517, § 29, 30 Stat. 495... Fa 15

Act of July 1, 1898, ch. 542, 30 Stat. 567 (Sem-

| LAST ST SN SL S25 OY 15

Act of Mar. 1, 1901, ch. 676, para. 7, 31 Stat 861

(Creeks) 15

Act of June 30, 1902, ch. 1328, para. 16, $2 Stat.

ne Ee Gen see ee ee ee ees eee 15

Act of July :, 1902, ch. 1875, § 13, 32 Stat. 716

ARES SS St En ee 15

Se

Osages ) fiicnns 15

YY. RE a See ee 13

Act of May 29, 1924, ch. 210, 43 Stat. 244 .......... 5

Act of Mar. 2, 1981, ch. 8374, 46 Stat. 1471 (codified

as amended at 25 U.S.C. § 409a) —...................... 15

Act of June 20, 1986, ch. 622, 49 Stat. 1542 (codi-

fied as amended at 25 U.S.C. § 412a) ... 15

Act of June 26, 1936, ch. 831, § 1, 49 Stat. 1967

(codified at 25 U.S.C. § 501)... e.. 15

TE 7

Crow Allotment Act of 1920, 41 Stat. 751 ............. 14

General Allotment Act of February 8, 1887, ch. 119,

ft lu, ae een ee passim

Hayden-Cartwright Act, 4 U.S.C. § 104 re ee ee i)

Indian Mineral Leasing Act of 1938 _...................... 5, 6

Indian Nonintercourse Act, 25 U.S.C. § 177 .......... 3

Indian Reorganization Act, 48 Stat. 984, amended

and codified as 25 U.S.C. §§ 461 et seq. .............. 4, 18, 19

vii

TABLE OF AUTHORITIES—Continued

Page

Nelson Act of 1889, ch. 24, 26 Stat. 642 (1889) ...... 138

Treaty with the Chickasaws, Sept. 20, 1816, 7 Stat.

SS a a ee ee ee 12

Treaty with the Chippewas, July 16, 1859, art. 1,

12 Stat. 1105 16

Treaty with the Creeks, Aug. 9, 1814, 7 Stat. 120.... 12

Treaty with the Miamies, Oct. 6, 1818, 7 Stat. 189.. 12

Treaty with the Nez Percés, June 9, 1863, art. 3,

SS OR aes a 16

Treaty with the Omahas, Mar. 6, 1865, art. 4, 14

PO a SS Pa Fe 16

Treaty with the Piankishaws, Dec. 30, 1805, 7 Stat.

100 vicinal | 12

Treaty with the Winnebagoes, Apr. 15, 1859, art. 1,

eres es ; 16

Treaty with the Wyandots, Seneca, Delawares,

Shawanese, Potawatomees, Ottawas, and Chippe-

ways, Sept. 29, 1817, 7 Stat. 160 12

MISCELLANEOUS

BIA-77, Justification for the Bureau of Indian

Affairs Fiscal Year 1998 Budget Request to

ee Oe a oe 21

Bureau of Indian Affairs “Corrected Fact Sheet,”

Division of Real Estate Services, June 25, 1997.. 20

Felix S. Cohen, Handbook of Federal Indian Law

(1982 ed.) Bs Os eS Oe 12, 15-17

Letter from the Deputy Commissioner of Indian

Affairs to Ernest J. Istook, Jr. dated July 16,

Pe 8 es ee ee 20

D. Otis, The Dawes Act and the Allotment of In-

dian Lands 428-89 (F. Prucha, Ed., University

of Oklahoma Press, 1973) ..................c.cccceeesccenee- 17

Monroe E. Price, Law and the American Indian

RES, ee ee See ee 14

Judith V. Royster, The Legacy of Allotment, 27

Be Ga Be E GD cchitcncditihcetcintitttiicennsinlinibiibin 13

S. Rep. No. 1080, 73d Cong., 2d Sess. 2 (1934)........ 19

IN THE

Supreme Court of the United States

OcTOBER TERM, 1997

No. 97-174

Cass Counrvy, et al.,

Vv.

Leecu LAKE BAND OF CHIPPEWA INDIANS,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

Petitioners,

BRIEF OF THE HOOPA VALLEY TRIBE,

THE NEZ PERCE TRIBE,

THE QUINAULT INDIAN NATION, AND

THE SPOKANE TRIBE OF INDIANS

AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

INTERESTS OF THE AMICI CURIAZE

Amici are four federally recognized Indian tribes that

have a compelling interest in the determination of the

question presented to this Court: whether the mere fact

that land owned by an Indian tribe within its reservation

is freely alienable evidences clear congressional intent to

grant jurisdiction to states and their political subdivisions

to tax that land.’ A reversal by this Court of the decision

1 The parties have consented to the filing of this brief amicus

curiae. Letters of consent have been filed with the Clerk of Court.

Pursuant to Rule 87.6, amici state that no counsel for a party has

2

of the Court of Appeals for the Eighth Circuit in Cass

County, et al. v. Leech Lake Band of Chippewa Indians,

108 F.3d 820 (8th Cir. 1997), would have a significant

detrimental impact on amici.

Amici are the Hoopa Valley Tribe, the Nez Perce

Tribe, the Quinault Indian Nation and the Spokane Tribe

of Indians. Amici all own property in fee within the

boundaries of their respective reservations, property which

was allotted under various federal statutes and/or treaties

in the 19th Century and that has subsequently been re-

acquired by amici. Petitioner Cass County contends that

state and local governments can tax such property merely

by showing that the reservation land is freely alienable by

the tribal owner and without regard to the statute or treaty

under which the property was originally conveyed. Cass

County’s position, however, is in direct conflict with this

Court’s “consistent practice of declining to find that Con-

gress has authorized state taxation unless it has made its

intention to do so unmistakably clear.” County of Yakima

v. Confederated Tribes and Bands of Yakima Indian

Nation, 502 U.S. 251, 257 (1992) (internal quotation

marks omitted). The Court of Appeals for the Eighth

Circuit correctly ruled in this case that Congress has

never explicitl ted jurisdiction to states or

their ire ee m= | arom lands owned by tribal

governments if those lands were not allotted to individual

Indians pursuant to the General Allotment Act of Febru-

ary 8, 1887, ch. 119, 24 Stat. 388 (1887) (“GAA”).

Resp. App. at A-9-A-15. Reversal of that decision would

harm amici and other similarly situated tribes by permit-

ting the taxation of reservation land restored to tribal

possession, and by unduly burdening the fee to trust proc-

ess which Congress intended in part to repair the damage

of the allotment era.

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 monctary contribution to the preparation or submission

of the brief.

3

Amici are gravely concerned over Cass County’s at-

tempt to persuade this Court to adopt a new rule of law

that directly contradicts this Court’s previous cases and

federal policy. Amici support Respondent Leech Lake

Band of Chippewa Indians (“Leech Lake” or “Respond-

ent”) in seeking affirmance of that portion of the Eighth

Circuit’s decision before this Court.

SUMMARY OF ARGUMENT

Petitioner Cass County proposes a new rule of law to

control the outcome of this case that would replace well-

settled precedent. This Court has long recognized that

state taxation of land owned by Indians and Indian tribes

in Indian Country® is allowed only where Congress has

made its intention to do so unmistakably clear. Cass

County concedes it cannot meet this standard, and in-

stead urges this Court to create a new rule that “alien-

ability equals taxability,” under which states and their

political subdivisions can tax all fee land in Indian

Country so long as the land is “freely alienable.”* As

? Amici use the terms “Indian Country” and “reservation land”

where appropriate throughout this brief. Reservations, which are

at issue here, are a subset of “Indian Country” as defined in 18

U.S.C. § 1151 (1994):

. . . (a) all land within the limits of any Indian reservation

under the jurisdiction of the United States Government, not-

withstanding the issuance of any patent, and, including rights-

of-way running through the reservation, (b) all dependent

Indian communities within the borders of the United States

whether within the original or subsequently acquired territory

thereof, and whether within or without the limits of a state,

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

not been extinguished, including rights-of-way running through

the same.

* As demonstrated in Respondent’s brief, there is serious debate

as to whether tribally owned land in Indian Country is “freely

alienable,” due to the constraints of the Indian Nonintercourse Act,

25 U.S.C. § 177.

4

Respondent Leech Lake demonstrates in its brief, the

“unmistakably clear intent” rule should determine whether

Cass County can tax reservation lands owned by Indian

tribes. Amici support this argument, and demonstrate

herein that this Court has consistently required an “ex-

press” or “explicit” statement of congressional intent.

In addition, the Court should reject Cass County’s pro-

posed general rule that “alienability equals taxability” be-

cause “alienability” cannot be determined generally by

reference to Sections 5 and 6 of the General Allotment

Act. Indian land was alienated through a number of in-

dividually negotiated allotment statutes and treaties, not

only through Sections 5 and 6 of the GAA. These other

statutes and treaties differ from the GAA; some have no

provisions regarding taxation, some do, and all are sepa-

rate and distinct from the GAA in their particular word-

ing and history.

Finally, amici demonstrate that adoption of Cass

County’s “alienability equals taxability” rule would sub-

stantially thwart the intent of Congress and frustrate the

ability of the Executive Branch to implement the Indian

Reorganization Act of 1934, 25 U.S.C. §§ 461 ef seq.

(1994) (“IRA”). Congress passed the Indian Reorgani-

zation Act in recognition of the miserable failure of the

assimilation and allotment policies of the 19th Century,

and intended in the IRA that tribes and/or the federal

government purchase land and that such land be taken

into trust. Adoption of the rule sought by Cass County

would unduly burden the fee to trust transfer process

envisioned by the IRA, and would wrongfully place the

burden of the tax on Indian tribes. Statistics from the

Bureau of Indian Affairs demonstrate that the fee to trust

process is already overly-attenuated and that adoption of

the proposed “alienability equals taxability” rule would

likely result in fewer fee to trust transfers.

5

ARGUMENT

I. CONGRESSIONAL AUTHORIZATION OF STATE

TAXATION ON RESERVATION LANDS OWNED

BY INDIAN TRIBES MUST BE EXPRESS OR

EXPLICIT.

The Respondent’s Brief ably demonstrates that in

Yakima this Court recognized the longstanding rule that

state taxation of Indians and Indian land in Indian Coun-

try is allowed only where Congress has made “its inten-

tion to do so unmistakably clear.” Yakima, 502 U.S. at

258 (quoting Montana v. Blackfeet Tribe, 471 U.S. 759,

765 (1985)). This Court in Yakima allowed taxation

only after it accepted Yakima County’s “threshold assess-

ment” that Section 6 of the GAA, as amended, provided

the necessary “express authority” for taxation by the state

of the lands there at issue. /d.

This Court has consistently required an “express” or

“explicit” statement of congressional intent as a condition

of state taxation of Indian tribes, tribal members, or res-

ervation land in Indian Country. A survey of this Court’s

cases, before and after Yakima, confirms the consistency

of that requirement, which should be applied here.

A. Cases Prior to Yakima Consistently Required Ex-

plicit Congressional Intent to Allow State Taxation

in Indian Country.

The Yakima Court cited two examples of the rule that

congressional intent to permit state taxation of tribally-

owned land within Indian Country must be “unmistakably

clear.” In Blackfeet Tribe, the Court held that state taxes

on oil and gas leases signed with tribes after the passage

of the Indian Mineral Leasing Act of 1938 were im-

permissible. 471 U.S. at 768. The 1938 Act was enacted

subsequent to a 1924 Act which provided that such leases

“may be taxed by the State in which said lands are located

in all respects the same as production on unrestricted

lands.” Id. at 763 (quoting Act of May 29, 1924, ch.

6

210, 43 Stat. 244, 25 U.S.C. § 398). After noting that

congressional intent to allow state taxation of Indians or

their land must be “unmistakably clear,” the Blackfeet

Tribe Court found that the 1924 Act contained “such an

explicit authorization,” id. at 765 (emphasis added), but

went on to hold that the 1938 Act did not. In fact, the

silence of the 1938 Act on the issue, coupled with the

canons of construction favoring Indians, was sufficient to

effect a repeal of the 1924 taxation language with respect

to leases after 1938. Id. at 765-66.

The second citation in Yakima to the “unmistakably

clear” rule was to California v. Cabazon Band of Mission

Indians, 480 U.S. 202 (1987). While the issue of taxa-

tion was not before the Cabazon Court, the majority set

out a lengthy footnote to emphasize that although many

tribal/state issues are resolved by balancing the respective

interests, state taxation of Indians is precluded by a per

se rule absent “unmistakably clear” congressional consent.

480 U.S. at 215 n.17. The Court explained, “[w]Je have

recognized that the federal tradition of Indian immunity

from state taxation is very strong and that the state in-

terest in taxation is correspondingly weak.” Id.

Tracing the evolution of this Court’s Indian tax juris-

prudence back even further leads to the Court’s unani-

mous decision in McClanahan v. State Tax Comm'n of

Arizona, 411 U.S. 164 (1973). Quoting a Department

of the Interior publication on federal Indian law, the

McClanahan Court adopted the ew summary of the

“relevant law”:

State laws generally are not applicable to tribal In-

dians on an Indian reservation except where Con-

gress has expressly provided that State. laws shall

apply. It follows that Indians and Indian property

on an Indian reservation are not subject to State taxa-

tion except by virtue of express authority conferred

upon the State by act of Congress.

7

Id, at 170-71 (citation omitted, emphasis added). Analyz-

ing the applicable treaties and statutes, the Court con-

cluded that imposition of the income tax which Arizona

sought to impose in that case was impermissible. The

Court observed that other legislation proved that Congress

must have “assumed that the States lacked the power to

impose the taxes without special authorization.” Id. at

177 (emphasis added) .*

In Bryan v. Itasca County, 426 U.S. 373 (1976), the

Court considered a question reserved in McClanahan:

whether the grant to some states of civil jurisdiction over

Indians on Indian reservations by § 4 of Pub. L. 83-280,

*The Court referred to two acts of Congress of general applica-

tion as examples of congressional understanding that “reservation

Indians” are presumably not taxable. First, it cited the Buck Act,

4 U.S.C. $105 et seq., which governs taxation in federal areas.

After discussing specific provisions, the Court explained that

it should be obvious that Congress would not have jealously

protected the immunity of reservation Indians from state

income taxes had it thought that the States had residual power

to impose such taxes in any event. Similarly, narrower statutes

authorizing States to assert tax jurisdiction over reservations

in special situations are explicable only if Congress assumed

that the States lacked the power to impose the taxes without

special authorization.

McClanahan, 411 U.S. at 177 (footnotes omitted). The “narrower

statutes” to which the Court referred included 25 U.S.C. § 398

(congressional authorization for states to tax mineral production

on unallotted tribal lands); the Court also made a comparison to

18 U.S.C. § 1161 (state liquor laws may be applicable within reser-

vations), and to 25 U.S.C. § 231 (state health and education laws

may be applicable within reservations). See 411 U.S. at 177 n.16.

Second, the Court observed that 25 U.S.C. §§ 1322 and 1324 require

tribal consent before a state can assume civil jurisdiction in Indian

Country. “[WJe cannot believe that Congress would have required

the consent of the Indians affected and the amendment of those

state constitutions which prohibit the assumption of jurisdiction if

the States were free to accomplish the same goal unilaterally by

simple legislative enactment. See Kennerly v. District Court, 400

U.S. 423 (1971).” McClanahan, 411 U.S at 178.

8

67 Stat. 589, codified at 28 U.S.C. § 1360 (“Pub.

280”), also conferred the power to tax. Pub. L.

contains no specific reference to taxation. While exam-

ining the legislative history of Pub. L. 280, the Bryan

Court observed “the total absence of mention or discus-

sion regarding a congressional intent to confer upon the

States an authority to tax Indians or Indian property on

reservations.” Jd. at 381. After analyzing the history

and structure of the statute, the Court explained that

the congressional policy in more recent, related legislation

also supported the conclusion of nontaxability. Jd. at

384-86. The Court stated that Congress knows how to

write explicit language allowing taxation of reservation

Indians and land, cited examples, and therefore con-

cluded, “if Congress in enacting Pub. L. 280 had intended

to confer upon the States general civil regulatory powers

over reservation Indians, it would have expressly said

so.” Id. at 390 (emphasis added). The Court sought an

express statement of congressional intent, instead found

silence, and therefore held that taxation of Indians had

not been authorized.

Thus, while some decisions of this Court allow state

taxation of sales of goods to non-tribal members living

within Indian reservations,® this Court has not allowed

the taxation of a tribe or tribal members located on a

reservation and engaged in on-reservation activity absent

an express authorization by Congress. See Colville, 447

U.S. at 162-64 (motor vehicle tax on members invalid):

Bryan, 426 U.S. at 393 (personal property tax on mobile

home invalid); Moe, 425 U.S. 480-81 (various taxes on

tribal members invalid). Cf. White Mountain Apache

5 See, e.g., Oklahoma Tax Comm. v. Citizen Band Potewatomi

Indian Tribe of Oklahoma, 498 U.S. 505, 512 (1991) (cigarette

taxes); Washington v. Confederated Tribes of Colville Indian

Reservation, 447 U.S. 134, 158-60 (1980) (same); Moe v. Confed-

erated Salish & Kootenai Tribes of the Flathead Reservation, 425

U.S. 468, 483 (1976) (same).

9

Tribe v. Bracker, 448 U.S. 136 (1980) (state taxation

of nonmembers’ on-reservation logging activities pre-

empted because overly burdensome on federal Indian

logging policy ).

B. The Court’s Indian Tax Jurisprudence Since Yakima

Confirms the Necessity of Express Congressional

Intent.

The Indian tax cases decided by this Court since Yak-

ima support the conclusion that congressional intent to

allow state taxation must be explicit. In Oklahoma Tax

Commission v. Chickasaw Nation, 515 U.S. 450 (1995),

the Court considered a motor fuel tax which Oklahoma

attempted to impose on tribal retailers. The State argued

for the first time to this Court that the Hayden-Cartwright

Act, 4 U.S.C. § 104, authorized taxation of motor fuel

sales on “United States military or other reservations.”

Invoking the rule that issues not presented prior to briefing

on the merits will only rarely be heard, the Court refused

to consider the statutory claim, 515 U.S. at 456-57, and

put the question before it in these terms: “[{a]ssuming,

then, that Congress has not expressly authorized the

imposition of Oklahoma's fuels tax on fuel sold by the

Tribe, we must decide if the State’s exaction is nonetheless

permitted.” Jd. at 457 (emphasis added). Absent express

authorization, the Court determined that the tax would

only be allowed if the legal incidence fell not on the tribe

or tribal members but on non-Indians. /d. at 458-59. As

the incidence of the fuel tax at issue was held to fall on

tribal retailers, the categorical approach and the lack of

“express authorization” led to the conclusion that the fuel

tax was impermissible. Jd. at 461-62.*

* As described in Chickasaw, where the legal incidence of a tax

falls on a tribe or tribal members in Indian country, “absent a

cession of jurisdiction or other federal statutes permitting it, we

have held, a State is without power to tax reservation lands and

reservation Indians.” 515 U.S. at 461 (quoting Yakima). Unlike

the cases in which the Court has previously considered where the

10

Another attempt by Oklahoma to impose income taxes

and motor vehicle taxes on tribal members also confirms

the express congressional authorization necessary to make

such taxes permissible in Indian Country. In Oklahoma

Tax Comm. v. Sac and Fox Nation, 508 U.S. 114 (1993),

this Court concluded that a motor vehicle tax was not

tailored to cover only off-reservation use and remanded the

matter to determine whether the tribal members poten-

tially subject to the income tax resided in Indian Coun-

try. For present purposes, the conclusion to the unani-

mous opinion is sufficient to state the rule:

Absent explicit congressional direction to the con-

trary, we presume against a State’s having jurisdic-

tion to tax within Indian country, whether the par-

ticular territory consists of a formal or informal res-

legal incidence falls, there is only one potential taxpayer of a

property tax. As a practical matter, therefore, the incidence of a

real property tax falls on the owner of the land, and it is the owner

who will lose the property through a tax sale if the taxes are not

paid.

A formalistic application of the incidence test could conceivably

suggest that the incidence falls on the land itself, as may in fact be

implied by Yakima. 502 U.S. at 266. Such a result, however, would

not only be highly formalistic, it would also create another level of

complexity in Indian taxation. In some states, including Washing-

ton, property taxes attach solely to the land. See id. In others,

property taxes also create personal liability for the owner. Sve, ¢.¢.,

Appeal of Municipality of Penn Hills, 519 A.2d 1090, 1091 (Pa.

Cmwith. 1987), aff'd, 546 A.2d 50 (Penn. 1988); Dillman v. Foster,

656 P.2d 974, 978 (Utah 1982) ; Coulter v. Gough, 454 P.2d 969, 970

(N.M. 1969).

In at least one state, the situation is even more complex. In

California, property is considered “secured” so long as the state

can, if necessary, foreclose on the property itself if taxes go unpaid.

Owners of property on the secured roll are not personally liable for

property taxes. Garcia v. Santa Clara County, 151 Cal. Rptr. 80

(Cal. App. 1978). But if the land is transferred into trust or a

tax lien otherwise becomes unenforceable or disappears, the land

is transferred to the “unsecured roll,” and the taxpayer becomes

personally liable. /d.

11

ervation, allotted lands, or dependent Indian com-

munities.

Id. at 128 (emphasis added).

IL DIFFERING LAND ALIENATION PROVISIONS IN

INDIVIDUAL ALLOTMENT STATUTES LACK THE

UNMISTAKABLY CLEAR INTENT T@ TAX

TRIBAL LANDHOLDERS FOUND BY THIS COURT

IN SECTIONS 5 AND 6 OF THE GAA.

Cass County’s “ali i ity equals taxabili ity” argument

tion land being uniform, evidencing a uniform congres-

sional intent. More particularly, Cass County’s theory

requires that “alienability” be defined by Sections 5 and

6 of the GAA, as this is where this Court found an “un-

mistakably clear congressional intent” that land alienated

thereunder could be subject to state tax. The historical

ae Oe eee, Sena Ge sie

12

for some time.” Felix S. Cohen, Handbook of Federal

Indian Law 129 (1982 ed.) (footnotes omitted) (here-

after “Cohen”). Moreover, these early allotment agree-

ments did not have uniform alienation terms; the allot-

ments “were commonly known as ‘reservations,’ and vari-

ous forms of tenure were imposed upon them. Some lands

were held in trust, others granted in fee simple.” /d. (cit-

ing Treaty with the Chickasaws, Sept. 20, 1816, 7 Stat.

150; Act of Mar. 3, 1817, ch. 88, § 1, 3 Stat. 380, 380-

81 (implementing Treaty with the Creeks, Aug. 9, 1814,

7 Stat. 120); Treaty with the Miamies, Oct. 6, 1818, 7

Stat. 189; Treaty with the Wyandots, Seneca, Delawares,

Shawanese, Potawatomees, Ottawas, and Chippeways,

Sept. 29, 1817, 7 Stat. 160; Treaty with the Piankishaws,

Dec. 30, 1805, 7 Stat. 100). The GAA did not alter the

substantive rights of Indian land owners under these

agreements. United States ex rel. Saginaw Chippewa In-

dian Tribe v. Michigan, 106 F.3d 130, 135 (6th Cir.)

(citing United States v. Kopp, 110 F. 160, 165-66 (D.

Wash. 1901), petition for cert. filed, 66 U.S.L.W. 3085

(June 30, 1997) (No. 97-14).

In addition to the allotment statutes and treaties en-

tered into prior to enactment of the GAA, the GAA spe-

cifically excluded certain other allotment statutes from

its provisions. Section 8 of the GAA (25 U.S.C. § 339,

as amended) noted that “[t]he provision of this act shall

not extend to the territory occupied by the Cherokees,

Creeks, Choctaws, Chickasaws, Seminoles, and Osage,

Miamies and Peorias, and Sacs and Foxes, in Oklahoma,

nor to any of the reservations of the Seneca Nation

of New York Indians in the State of New York, nor to

that strip of territory in the State of Nebraska adjoining

the Sioux Nation on the south added by Executive order.”

Separate allotment statutes were enacted for these tribes,

Witt v. United States, 681 F.2d 1144, 1147 (9th Cir.

1982), and they “included specific tax exemption provi-

sions.” Cohen at 394 n.36.

13

As a result of tribe-by-tribe negotiations, numerous

other allotment statutes specific to individual tribes were

enacted to alienate what the United States deemed to be

“surplus” Indian land. The GAA specifically provided

for such separately negotiated agreements in section 5

(25 U.S.C. § 348, as amended) :

[I]t shall be lawful for the Secretary of the Interior

to negotiate with such Indian tribes for the purchase

and release by said tribe, in conformity with the

Treaty or statute under which such reservation is

held, of such portions of its reservation not allotted

as such tribe shall, from time to time, consent to sell,

on such terms and conditions as shall be considered

just and equitable between the United States and said

tribe of Indians, which purchase shall not be com-

plete until ratified by Congress, and the form and

Such land was not alienated under the terms of sections

5 and 6 of the GAA but rather under individually nego-

tiated agreements with each tribe. See Solem v. Bartlett,

465 U.S. 463, 467 (1984) (“Initially, Congress legislated

its Indian allotment program on a national scale . . . but

at the time of the Act of May 29, 1908, Congress was

dealing with the surplus land question on a reservation-

by-reservation basis, with each surplus land act employing

its own statutory language, the product of a unique set of

tribal negotiation and legislative compromise.”) (foot-

note omitted). See also Judith V. Royster, The Legacy

of Allotment, 27 Ariz. St. L.J. 1, 29 (1995) (“While

the GAA authorized the sale and homesteading of the

surplus lands, the program was implemented through

specific lands acts for particular reservations.”).

Indeed, the Nelson Act at issue in this case is an ex-

ample of a negotiated agreement that only partly incor-

porates provisions of the GAA. As recognized by the

Eighth Circuit, “[fjor the Leech Lake Band and other

14

Minnesota Chippewa tribes, the allotment policy was car-

ried out through the Nelson Act of 1889, ch. 24, 25 Stat.

642 (1889), which partially incorporated the GAA... .

The allotment of land to individual Indians . . . was done

in conformity with the GAA. . . . The rest of the land

was made available to the general public .. . under...

the pine lands provisions [or] the Homestead Act... .”

108 F.3d at 823. See, e.g., Yellowstone County v. Pease,

96 F.3d 1169, 1171 (9th Cir. 1996) (“The property was

allotted and patented in fee to Pease’s father under the

Crow Allotment Act of 1920, 41 Stat. 751.”), cert. de-

nied, 117 S.Ct. 1691 (1997). See also Monroe E. Price,

Law and the American Indian 546 (1973) (“In 1890

the Commissioner reported, ‘In numerous instances,

where clearly desirable, Congress has by special legisla-

tion authorized negotiations with the Indians for portions

of their reservations without waiting for the slower process

of the general allotment law.’”).

B. The Taxability of Reservation Lands Alienated

Under Statutes Other Than Sections 5 and 6 of the

GAA Is Not Defined by the Alienation Provisions

Set Forth in Sections 5 and 6 of the GAA.

No provision of the GAA purports to govern all tribes

or all other allotment statutes. The GAA merely em-

powers the President to make allotments under certain

circumstances, such as for lands which “may be advan-

tageously utilized for agricultural or grazing purposes.”

25 U.S.C. § 331. GAA provisions simply do not “govern

land grants that are not made pursuant to the Act.” Sag-

inaw Chippewa, 106 F.3d at 135; see also United States

v. Kopp. 110 F. at 165-66 (holding that the GAA did

not change the substantive rights of Indian land owners

whose land was alienated according to agreements pre-

dating the GAA).

15

C. The Various Allotment Laws Contain Taxation Pro-

visions That Differ From Those Found in the GAA.

Section 6 of the GAA, as amended, contains a provi-

sion explicitly providing for the taxation of Indian fee

lands patented pursuant to that section. Another allot-

ment statute, 25 U.S.C. § 379, contains a provision for

the taxation of property alienated thereunder: “All allotted

lands so alienated by the heirs of an Indian allottee and

all land so patented to a white allottee shall thereupon be

subject of taxation under the law of the State or Terri-

tory where the same is situated.”

Other allotment acts, however, explicitly provide that

the land alienated under those acts is not to be taxed.

Cohen at 391 & n.17, 418 n.129 (citing Act of June 26,

1936, ch. 831, § 1, 49 Stat. 1967 (codified at 25 U.S.C.

§ 501); Act of June 20, 1936, ch. 622, 49 Stat. 1542

(codified as amended at 25 U.S.C. § 412a); Act of Mar.

2, 1931, ch. 374, 46 Stat. 1471 (codified as amended at

25 U.S.C. § 409a); Act of June 28, 1898, ch. 517, § 29,

30 Stat. 495, 507 (“shall be nontaxable”); 25 U.S.C.

§§ 409a, 412a, 465, 487(c), 501, 955; Act of June 28,

1906, ch. 3572, § 2, 34 Stat. 539, 541 (Osages): Act of

July 1, 1902, ch. 1375, § 13, 32 Stat. 716, 717 (Chero-

kees); Act of June 30, 1902, ch. 1323, para. 16, 32 Stat.

500, 503 (Creeks); Act of Mar 1, 190i, ch. 676, para.

7, 31 Stat. 861, 863 (Creeks); Act of July 1, 1898, ch.

542, 30 Stat. 567, 568 (Seminoles); Act of Apr. 11,

1882, ch. 74, § 1, 22 Stat. 42 (Crows); Act of Jan. 18,

1881, ch. 23, § 5, 21 Stat. 315, 317 (Winnebagos); Act

of June 15, 1880, ch. 223, § 4, 21 Stat. 199, 204 (Utes);

Act of Mar. 3, 1873, ch. 332, §3, 17 Stat. 631, 632

(Miamis); Act of Mar. 3, 1865, ch. 127, § 4, 13 Stat.,

pt. 2 (Public Acts) 541, 562 (Stockbridee-Munsees).

In addition to these allotment statutes which clearly

state that the alienated lands are not taxable, some treaties

require that allotted land not be taxed. See Cohen at 418

16

& n:129 (“A number of treaties . . . have specified that

allotments shall not be taxable.”) (citing Treaty with the

Omahas, Mar. 6, 1865, art. 4, 14 Stat. 667, 668; Treaty

with the Nez Percés, June 9, 1863, art. 3, 14 Stat. 647,

649; Treaty with the Chippewas, July 16, 1859, art. 1, 12

Stat. 1105, 1107; Treaty with the Winnebagoes, Apr. 15,

1859, art. 1, 12 Stat. 1101, 1102).

Still other allotment statutes and treaties are silent with

regard to the taxability of the alienated land. See Cohen

at 410 n.54 (citing 25 U.S.C. §§ 357, 372, 373, 378,

379, 391a, 404, 405).

Consistent with the history of Indian law, alienation of

Indian land was a complex process accomplished through

a number of statutes and treaties, not only through sec-

tions 5 and 6 of the GAA. Many of these allotment stat-

utes and treaty provisions addressed a single tribe’s land

as the result of individual negotiations between the United

States and that tribe. It is no accident that the various

alienation laws contained differing provisions concerning

taxation of the alienated land. For these reasons, the

requisite “unmistakably clear intent” for the taxation of

land alienated under other allotment laws cannot be found

in sections 5 and 6 of the GAA.

Ill. ADOPTION OF CASS COUNTY’S RULE THAT

ALIENABILITY EQUALS TAXABILITY WOULD

SUBSTANTIALLY THWART THE INTENT OF

CONGRESS AND FRUSTRATE THE ABILITY OF

THE EXECUTIVE BRANCH TO IMPLEMENT THE

INDIAN REORGANIZATION ACT OF 1934.

Cass County would have the Court disregard its nu-

merous prior holdings, extend Yakima beyond its limits,

and hold that states can tax all fee land in Indian Coun-

try so long as the land is freely alienable, regardless of

ownership and origin of the land, and regardless of

whether there is unmistakably clear intent by Congress

17

for such land to be taxed.’ Adoption of Cass County's

Position not only would disregard the “unmistakably clear

intent rule, it would also create an obstacle for the proper

and necessary implementation of current federal policy re-

garding the recapture of trust land lost by Indians and

Indian tribes during the allotment period.

A. The Assimilation and Allotment Policies of the 19th

Century Envisioned the End of Tribal Autonomy.

Allotment was an assimilationist policy that prevailed in

the latter half of the 19th Century. Cohen at 127-43. The

goal of allotment and assimilation was to absorb Indians

into the mainstream of American life and to destroy the

Savagery” created by tribal autonomy. /d. at 128-29.

The GAA, passed in 1887, was enacted to further this

tion system would cease to exist.* See Solem v. Bartlett

465 U.S. at 468; see also Mattz v. Arnett, 412 USS. 481,

496 (1973). The destruction of the tribal system was

* “There is an appealing simplicity to the proposi

able land is taxable land position that alien-

does not he ae le Unfortunately, federal Indian law

not have a simple history; no amount of wishi j

give it a simple future.” * wishing wil

Lummi Indian Tribe v. Whatcom County, 6 F.3d

Cir. 1993) (Beezer, J., dissenting). eee

* Between 1887 and 1934, more than 90 million

acres of land

passed out of Indian ownership under the allotment policies of the

United States following the end of the treaty-making period in

1871. Cohen at 138, citing D. Otis, The Dawes A

ment of Indian Lands (1973). Poe a

18

B. Congress Passed the IRA in Recognition of the Fail-

ure of the Assimilation and Allotment Policies, and

Intended in the IRA That Tribes Regain Land To

Be Placed Into Trust.

For several decades after passage of the GAA, federal

policy was aimed at assimilating Indians into society and

eliminating tribal autonomy. After it became apparent to

Congress in the 1920's that the allotment and assimila-

tion policies had not succeeded and could not succeed,

Congress adopted a new policy, which is embodied in the

Indian Reorganization Act of 1934 (“IRA”), 25 U.S.C.

§§ 461 et seq.

Through passage of the IRA, Congress recognized that

its earlier policies of assimilation and allotment had failed.

Solem v. Bartlett, 465 U.S. at 468 n.9. As this Court has

noted, “the policy of allotment and sale of surplus reserva-

tion land was repudiated in 1934 by the Indian Reorgani-

zation Act, 48 Stat. 984, now amended and codified as

25 U.S.C. § 461 et seq.” Mattz v. Arnett, 412 US. at

496 n.18. While the issuance of allotments had been dis-

continued by administrative order prior to enactment of

the IRA, Congress in the IRA expressly prohibited any

further allotments and created a mechanism by which the

Secretary of the Interior could restore lands to tribal own-

ership. 25 U.S.C. §§ 461, 463. Congress further au-

thorized the Secretary, in his discretion, to acquire and

transfer fee lands into trust on behalf of Indians and

Indian tribes. 25 U.S.C. § 465.°

The IRA and its progeny demonstrate congressional

intent to rebuild the tribal land base, in large part through

the transfer of fee land within reservations to trust status.

Reservation lands which had been deemed “surplus” by

prior allotment and other acts were to be restored to the

® Amici note that the lands at issue in this case, like the lands

regained by amici, are lands held in fee as an interim step in the

process of being transferred into trust pursuant to 25 U.S.C. § 465.

opment.” New Mexico v. Mescalero Apache Tribe, 462

U.S. 324, 335 (1983). See also White Mountain A;

Tribe v. Bracker, 448 US. at 143. ae

_Congress recognized in the IRA that a land base under

tribal control, is the foundation of tribal vitality. The

unique status of Indian-held lands is a central and indis-

gressional intent in the enactment of the IRA.

C. Adoption of the Rule Sought by Cass Count

y Would

Unduly Burden the IRA Fee to Trust Process and

Unlawfully Place the Burden of the Tax on Indian

1. The fee to trust process established under

IRA is already overly-attenuated. 0s

The Department of Interior has established policies and

procedures governing the acquisition of land by the United

States in trust status for individual Indians and tribes.

25 C.F.R. Part 151. Authority for these policies and

e ‘

al 25 ge § 463. The Senate Committee explained this section

When allotment was carried out on various rese tracts

of surplus or coded land remained unalictiod and were placed

— the Land Office of the Department of the Interior for sale,

proceeds to be paid to the Indians. Some of these tracts

remain unsold and by section 3 of the

4, bill they are restored to

S. Rep. No. 1080, 73d Cong., 2d Sess. 2 (1934).

20

procedures is principally found in the Indian Reorganiza-

tion Act of 1934. Land may be put into trust for a tribe

when the Secretary determines that “the acquisition of the

land is necessary to facilitate tribal self-determination,

economic development or Indian housing.” 25 C.F.R.

§ 151.3(a)(3).

The Department of the Interior holds approximately 54

million acres of land in trust or restricted status for either

Indian tribes or Indian individuals.“ Since 1992, however,

the amount of land being placed in trust has dropped

precipitously. For the six year period from 1986 to 1991,

2,485,000 acres were placed into trust status, at an annual

average rate of 414,166 acres per year.” From 1992 to

1996, only 215,000 acres were placed in trust, at an an-

nual average rate of 55,000 acres per year, a seven-fold

reduction in the amount of land being accepted into trust

within one decade. The impact of this sudden and sub-

stantial reduction in fee-to-trust acquisitions is magnified

by the fact that, in 1996 alone, 130,000 acres of Indian

land were removed from trust status, resulting in a net

decrease in trust acreage for that year.“

There is a growing backlog of pending applications

from Indian tribes and individuals who have asked the

ent of the Interior to transfer into trust status

Indian lands held in fee. In 1997, the Department esti-

mated there were approximately 1,570 pending applica-

tions for approximately 275,000 such acres.” Yet, for fis-

11 Bureau of Indian Affairs “Corrected Fact Sheet,” Division of

Real Estate Services, June 25, 1997 (copies of this document have

been lodged with the Clerk).

12 Jd.

18 Jd.

14Jd. The Department estimates that the acreage taken into

trust in 1996 was 55,000, the same rate for each of 1992, 1993, 1994

and 1995. Id.

15 July 16, 1997 letter to U.S. Representative Ernest J. Istook, Jr.

from the Deputy Commissioner of Indian Affairs, Bureau of Indian

Affairs, Department of the Interior, and report enclosed there-

21

cal 1998, the Bureau of Indian Affairs (“BIA”) has pro-

posed to continue to review the 1,570 pending applications

at a pace of just 150 applications per year.* In addition

to the acreage included in pending applications, the Nav-

ajo Area Office, one of twelve such regional offices of the

Bureau of Indian Affairs, reported in mid-1997 that there

are an additional 480,000 acres which it considers likely

to be the subject of “potential” applications.”

Amici each have applications pending with the Depart-

ment for tribal fee lands to be accepted into trust status.

As of mid-1997, amicus Nez Perce Tribe had ten applica-

tions pending for a total of approximately 14,200 acres,

nearly half of which are within its Reservation. Some of

the Nez Perce Tribe’s applications have been pending with

the Department of the Interior since February 1989. In

addition, there are two pending applications filed by In-

dian individuals for approximately one acre of land each

located on the Nez Perce Reservation.

As of mid-1997, the BIA reported that amicus Spokane

Tribe of Indians had six applications pending for a total

of approximately 1,210 acres, all of which are for lands

within the Tribe’s Reservation.” One of the applications

with. (“Istook Report”) (copies of this document have been

lodged with the Clerk). According to the detail supplied to the

Congress by the Bureau of Indian Affairs, approximately 675 of

the applications were from individual Indians and approximately

900 of the applications were from Indian tribes. Approximately

1,300 of the applications are for fee land located within reservation

boundaries.

%¢“Major functions [of the BIA Real Estate Services branch]

have annually required the review of . . . 150 land acquisition re-

quests... .” BIA-77, Justification for the Bureau of Indian Affairs

Fiscal Year 1998 Budget Request to Congress (copies of relevant

portions of this document have been lodged with the Clerk).

1 Jd. Another of the twelve regional offices, the Juneau Area

Office, reported no applications pending.

%8Istook Report. Curiously, amicus Spokane Tribe of Indians’

records show that there are in fact nine applications pending which

cover 1,640 acres. Similarly, the BIA reported only seven pending

22

has been pending since December 1969; another since

March 1981. In addition, there are 24 pending applica-

tions filed by Indian individuals for approximately 1,241

acres of land within the Tribe’s Reservation. Four of

these pending applications by Indian individuals were filed

as long ago as April 1977. Amicus Spokane Tribe of

Indians holds additional lands in fee within the Reserva-

tion for which it is preparing,” but has not yet filed, ap-

plications to the Department of the Interior to place the

land in trust under 25 C.F.R. § 151. The Spokane Tribe

of Indians is also the beneficial owner of a tely

100,221 acres held in trust for it by the United States.

An additional 29,614 acres are in restricted status as

allotments within the Tribe’s Reservation.

As of mid-1997, the BIA reported that amicus Quinault

Indian Nation had seven applications pending for a total

of approximately 3,594 acres, all of which are for lands

located within the Nation’s Reservation. One of the ap-

plications has been pending since February 1992. In

addition, there are five pending applications filed by In-

dian individuals for less than one acre of land within the

Quinault Indian Reservation. One of these pending ap-

plications by Indian individuals was filed as long ago as

April 1990.

As of mid-1997, amicus Hoopa Valley Tribe had 42

applications pending for a total of approximately 474

acres, all of which are for lands located within the Tribe’s

Reservation. Forty of these applications have been pend-

applicetions filed by amicus Quinault Indian Nation, whose records

show that an eighth application for over 10,000 acres is also cur-

rently before the BIA. The BIA thus failed to report nearly a

quarter of the pending applications, and those omissions under-

stated the total acres outstanding for the two amici by over 300

percent. Copies of the reports from amici Quinault Indian Nation

and Spokane Tribe of Indians have been lodged with the Clerk.

19 An applicant must furnish title evidence to the Secretary meet-

ing the Standards For The Preparation of Title Evidence In Land

Acquisitions by the United States, issued by the U.S. Department

of Justice. 25 C.F.R. § 151.18 (1997).

assess and collect ad valorum taxes on the fee lands held

,

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Cass County in this case, amici and

similarly situated tribes will be faced with mounting

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Seattle, WA 98101

(206) 654-5400

January 20, 1998