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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0111%3A22

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1998
- **Citation:** 524 U.S. 103

## Text

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!

<
,

-
%,
p<

BESTAVAILABLE COPY "os

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

,

:
eS

z
i
:
£
:
E

Cass County in this case, amici and
similarly situated tribes will be faced with mounting

pty
Hl
BE

2

i

i
:
28 8
5
A
i

Seattle, WA 98101
(206) 654-5400

January 20, 1998

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0111%3A22. Public record. Not legal advice.