Could an Idaho county levy property tax on land inside an Indian reservation when the land is owned in fee by an individual Indian, not held in trust by the United States?

Plain-English summary

Lewis County Commissioner Laurine Nightingale asked whether her county could tax reservation land owned by individual Indians. Deputy AG Steven W. Strack, writing for AG Alan G. Lance, said yes, with one critical condition: the land had to be alienable. If the United States held the land in trust, or if the patent retained restrictions on sale, the county could not tax it. Once a fee patent issued and removed those restrictions, the land was taxable, regardless of whether the owner was a tribal member or even the tribe itself.

The opinion built its conclusion on County of Yakima v. Yakima Indian Nation, 112 S. Ct. 683 (1992), where the U.S. Supreme Court read section 5 of the General Allotment Act of 1887 as impliedly subjecting allotted, fee-patented lands to state ad valorem taxation. The Burke Act of 1906 reinforced that reading by removing "all restrictions as to sale, encumbrance, or taxation" of prematurely patented land, treating taxation as independent of the General Allotment Act's broader jurisdictional grant.

The trickier question was whether the rule reached lands patented under statutes other than the General Allotment Act. The Supreme Court left that open in Yakima but the Ninth Circuit answered it in Lummi Indian Tribe v. Whatcom County, 5 F.3d 1355 (9th Cir. 1993): the trigger is alienability, not the particular statute under which the land was patented. Once federal alienability restrictions are lifted, the land is taxable per se. The Eastern District of Michigan in United States v. Michigan and the District of Minnesota in Leech Lake Band of Chippewa Indians v. Cass County reached the same result. Only the District of Colorado in Southern Ute Indian Tribe disagreed, and the Idaho AG declined to follow it.

The opinion also worked through whether Idaho law independently barred taxation. Article 21, section 19 of the Idaho Constitution (the "disclaimer clause") forever disclaims state right and title to "lands lying within said limits owned or held by any Indians or Indian tribes" and prohibits state taxation of property belonging to or reserved for the federal government. State v. Marek, 112 Idaho 860, 736 P.2d 1314 (1987) held that the disclaimer clause cannot prevent Congress from ceding control to the state, and the General Allotment Act's removal of alienability restrictions counted as such a cession. Similarly, the disclaimer's bar on taxing federally owned lands had no application after a fee patent issued, because the United States no longer owned or reserved the land. Idaho's Public Law 280 statute (Idaho Code § 67-5103) explicitly disclaims authority to tax property "held in trust by the United States or . . . subject to a restriction against alienation imposed by the United States," but that disclaimer left fee-patented lands taxable.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What was the alienability test, and why did the AG find it dispositive?

The alienability test asked whether federal restrictions prevented the owner from selling the land. In the opinion’s analysis, land without those restrictions was taxable; land still held in trust or subject to federal alienation restrictions was not. The AG took this directly from the Ninth Circuit's decision in Lummi Indian Tribe, which held that "Indians holding lands in fee must accept the burdens as well as the benefits of land ownership." The AG also drew support from the Supreme Court's observation in Yakima that ad valorem tax liability "flows exclusively from ownership of realty" and creates "a burden on the property alone," meaning the federal interest in the land disappears once federal restrictions on transfer are lifted.

Why did the AG reject the District of Colorado's contrary decision in Southern Ute?

Southern Ute had held that for allotments made under statutes other than the General Allotment Act, taxation required some additional expression of congressional intent beyond mere removal of alienability restrictions. The AG found this inconsistent with how Yakima itself read the General Allotment Act: the Supreme Court treated section 5's bare conveyance "in fee, discharged of said trust and free of all charge or encumbrance whatsoever" as sufficient to imply taxability, even though it took the Burke Act's explicit reaffirmation to make that clear. Reading the same logic into other patenting statutes was the natural extension.

Did the Idaho Constitution's "disclaimer clause" change the answer?

No, on either of its potential grounds. First, the clause says Indian lands remain "under the absolute jurisdiction and control of the congress of the United States," but State v. Marek had already held that Congress can cede control back to the state, and the General Allotment Act and similar patenting statutes constituted exactly that kind of cession. Second, the clause prohibits state taxation of "lands or property therein belonging to . . . the United States, or reserved for its use," but a fee patent extinguishes the federal ownership interest, so the prohibition no longer applies.

What about Public Law 280?

Public Law 280 (67 Stat. 588 (1953)) authorized states to assume civil and criminal jurisdiction over reservation Indians, and Idaho did so in 1963 (Idaho Code § 67-5101). But Idaho's implementing statute, Idaho Code § 67-5103, specifically disclaims any authority to tax property "held in trust by the United States or . . . subject to a restriction against alienation imposed by the United States." The opinion read that prohibition as limited to land with federal restrictions on alienation. It also noted that Public Law 280 itself supplied no independent authority to tax Indians or Indian property on reservations.

Did the rule depend on whether the owner was a tribal member?

No. The opinion concluded that "so long as a parcel within an Indian reservation is alienable, the state may tax it, regardless of whether the owner is a member of the tribe, or even the tribe itself." The federal courts cited (Lummi, United States v. Michigan, Leech Lake Band) all applied the alienability rule across owner categories. What matters is the parcel's federal legal status, not the identity of the present holder.

Background and statutory framework

Federal allotment policy began with the General Allotment Act of February 8, 1887, 24 Stat. 388. The Act authorized the United States to "allot" reservation lands to individual tribal members and hold the allotted parcels in trust for at least 25 years before issuing a fee patent. Section 6 of the Act made allottees "subject to the laws, both civil and criminal, of the State or Territory in which they may reside." Section 5 declared that at the end of the trust period the United States would convey the land "in fee, discharged of said trust and free of all charge or encumbrance whatsoever."

The Burke Act of May 8, 1906, 34 Stat. 182 (codified at 25 U.S.C. § 349), let the Secretary of the Interior issue patents to allottees before the 25-year trust period expired. These "premature" patents removed "all restrictions as to sale, encumbrance, or taxation," language the U.S. Supreme Court in Yakima read as confirming what section 5 of the General Allotment Act had implied: alienable Indian lands are taxable.

The Indian Reorganization Act of June 18, 1934, 48 Stat. 984, ended further allotment but did not rescind patents already issued. As a result, large quantities of reservation land are now held in fee by member and nonmember Indians and by non-Indians who acquired the land through later sale or surplus-land programs.

Beyond allotment, the surplus lands acts of the late nineteenth and early twentieth centuries sold "surplus" reservation lands to non-Indians as part of Congress's effort to break up the reservation system. The Supreme Court in Solem v. Bartlett, 465 U.S. 463, 468 (1984), observed that this policy was thought to "hasten the integration of tribal members into 'traditional American society.'" Some of those non-Indian-acquired lands have since been reacquired by tribal members and nonmember Indians, and the alienability test treats those lands the same way as originally allotted lands: alienable equals taxable.

Citations

• Idaho Const. art. 21, § 19
• Idaho Code §§ 67-5101, 67-5103
• 25 U.S.C. § 349
• General Allotment Act, 24 Stat. 388 (1887)
• Burke Act, 34 Stat. 182 (1906)
• Indian Reorganization Act, 48 Stat. 984 (1934)
• Public Law 280, 67 Stat. 588 (1953)
• County of Yakima v. Yakima Indian Nation, 112 S. Ct. 683 (1992)
• Goudy v. Meath, 203 U.S. 146 (1906)
• Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973)
• Lummi Indian Tribe v. Whatcom County, 5 F.3d 1355 (9th Cir. 1993)
• United States v. Michigan, 882 F. Supp. 659 (E.D. Mich. 1995)
• Leech Lake Band of Chippewa Indians v. Cass County, 908 F. Supp. 689 (D. Minn. 1995)
• Southern Ute Indian Tribe v. Bd. of County Comm'rs, 855 F. Supp. 1194 (D. Colo. 1994)
• State v. Marek, 112 Idaho 860, 736 P.2d 1314 (1987)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP96-02.pdf

Original opinion text

ATTORNEY GENERAL OPINION NO. 96-2
To: Ms. Laurine Nightingale
Lewis County Commissioner
Route 2, Box 1M
Reubens, ID 83548
Per Request for Attorney General’s Opinion
QUESTION PRESENTED
Whether lands within the boundaries of an Indian Reservation owned by Indians are exempt from ad valorem taxation by the county. CONCLUSION We conclude that lands within the boundaries of an Indian reservation, owned by Indians, are subject to ad valorem taxation by county governments, unless such lands are held in trust by the federal government or otherwise subject to restrictions on alienation. ANALYSIS As originally established, all lands within Indian reservations were held in common for the use of all tribal members, with legal title to the lands being held by the United States, as trustee for the tribe. In the mid-nineteenth century, however, the federal government began to “allot” reservation lands to tribal members, so that each Indian family would own an individual farm. Conference of Western Attorneys General, American Indian Law Deskbook 16 (1993). This policy was embodied in the General Allotment Act, enacted on February 8, 1887. 24 Stat. 388. The United States was to hold allotted lands in trust for a period of at least 25 years. Id. at 389. At the end of the 25-year period, the allottee could receive a patent to the land, and become subject to the laws of the state. Id. at 390. The policy of issuing patents to allottees continued until 1934, when the Indian Reorganization Act was enacted. Act of June 18, 1934, 48 Stat.

984. The Act ended the practice of issuing patents to allottees, but did not rescind patents
     issued prior to 1934.
     As a result of the General Allotment Act and related statutes, tribal members acquired fee title to many lands within Indian reservations. Nonmember Indians have since acquired some of these lands through sale and devise. Such lands are not held in trust, and are therefore freely alienable.

Another method by which lands came to be patented to member and nonmember Indians was through surplus land acts. Congressional policy in the latter part of the nineteenth century and early twentieth century was to do away with the reservation system by allotting reservation lands and selling the remaining or “surplus” lands to non- Indians. It was thought that such policies would hasten the integration of tribal members into “traditional American society.” Solem v. Bartlett, 465 U.S. 463, 468 (1984). Some of the lands patented to non-Indians have since been acquired by member and nonmember Indians. The taxation of lands patented to tribal members under the General Allotment Act was the subject of a recent Supreme Court opinion, County of Yakima v. Yakima Indian Nation, 112 S. Ct. 683 (1992). The Court first reiterated the general principle that “[a]bsent cession of jurisdiction or other federal statutes permitting it,” states are “without power to tax reservation lands and reservations [sic] Indians.” Id. at 688, quoting Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148 (1973). It then undertook a detailed examination of the General Allotment Act to determine if the Act embodied an intent to allow taxation of allotted lands. The Court first examined section 6 of the General Allotment Act, which provides that Indians receiving patents for land are thereafter “subject to the laws, both civil and criminal, of the State or Territory in which they may reside.” 24 Stat. at 390. The Court concluded, however, that the in personam jurisdiction imposed by section 6 applied only to the original allottee of the land. Subsequent Indian owners are not automatically subject to state jurisdiction. 112 S. Ct. at 690. The Court then examined section 5 of the General Allotment Act, which provides in part as follows: That upon the approval of the allotments provided for in this act by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect, and declare that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made . . . and that at the expiration of said period the United States shall convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or encumbrance whatsoever . . . . 24 Stat. at 389. The Court found that in providing for the issuance of fee patents to Indian allottees Congress impliedly subjected such lands to assessment and taxation by state authorities. The Court referred back to its earlier decision in Goudy v. Meath, 203 U.S. 146 (1906), wherein the Court stated as follows:

That Congress may grant the power of voluntary sale while withholding the land from taxation on forced alienation may be conceded. . . . But while Congress may make such provision, its intent to do so should be clearly manifested, for the purpose of the restriction upon voluntary alienation is protection of the Indian from the cunning and rapacity of his white neighbors, and it would seem strange to withdraw this protection and permit the Indian to dispose of his lands as he pleases, while at the same time releasing it from taxation,---in other words, that the officers of a state enforcing its laws cannot be trusted to do justice, although each and every individual acting for himself may be so trusted. 203 U.S. at 149. The Court found confirmation for its conclusions in the Burke Act, which amended section 6 of the General Allotment Act to allow the Secretary of the Interior to issue patents to allottees before the expiration of the 25-year trust period. Act of May 8, 1906, 34 Stat. 182 (codified at 25 U.S.C. § 349). The “premature” patents authorized by the Burke Act did not expressly subject the allottee to plenary state jurisdiction. They did, however, remove “all restrictions as to sale, encumbrance, or taxation of said land,” implying that such taxation was independent of the general jurisdictional grant found in section 6 of the General Allotment Act. The Court interpreted this as reaffirming “for ‘prematurely’ patented land what § 5 of the General Allotment Act implied with respect to patented land generally: subjection to state real estate taxes.” 112 S. Ct. at 691. The one question left open by the Yakima decision was whether lands patented pursuant to statutes other than the General Allotment Act are also subject to ad valorem taxes. 112 S. Ct. at 694. This question was answered by the Ninth Circuit Court of Appeals in Lummi Indian Tribe v. Whatcom County, 5 F.3d 1355 (9th Cir. 1993). The court concluded that the key factor permitting taxation of reservation land patented in fee was not the jurisdictional provisions of the General Allotment Act, but the parcel’s status as alienable or inalienable. Id. at 1357. Once restraints against alienability are lifted, lands are per se taxable because Indians holding lands in fee must “accept the burdens as well as the benefits of land ownership.” Id. at 1358. Other courts examining the issue have also concluded that so long as a parcel within an Indian reservation is alienable, the state may tax it, regardless of whether the owner is a member of the tribe, or even the tribe itself. United States v. Michigan, 882 F. Supp. 659 (E.D. Mich. 1995); Leech Lake Band of Chippewa Indians v. Cass County, 908 F. Supp. 689 (D. Minn. 1995). The only reported decision to the contrary is Southern Ute Indian Tribe v. Bd. of County Comm’rs, 855 F. Supp. 1194 (D. Colo. 1994). We do not, however, find its reasoning persuasive. The court in Southern Ute

believed that allotments made pursuant to acts other than the General Allotment Act must contain some expression of intent other than the removal of restrictions on alienability to make such lands liable to taxation. Such a holding, however, imposes a standard much stricter than that employed in Yakima where the Court found the dispositive language was section 5 of the General Allotment Act, which simply conveys the patent to the Indian allottee “in fee, discharged of said trust and free of all charge or encumbrance whatsoever.” 25 U.S.C. § 348 (1988). This language, although “reaffirmed” by other statutes, was deemed sufficient to imply an intent to render such lands taxable. It thus follows that all similar conveyances of fee patents to members of Indian tribes imply an intent to allow taxation of the patented lands. Further, the in rem nature of ad valorem taxation implies that alienability is the key feature distinguishing taxable and nontaxable lands. As the Supreme Court noted in Yakima, liability for ad valorem taxes “flows exclusively from ownership of realty” and such a tax “creates a burden on the property alone.” 112 S. Ct. at 692. With the removal of federal restrictions on alienation, federal interests in the land itself are minimized, if not altogether eliminated. Thus, state taxation of the land does not thwart federal interests and is not preempted. Although federal law does not prohibit states from imposing ad valorem taxes on reservation lands owned in fee by individual Indians, it is necessary to examine Idaho law to determine whether it embodies an independent barrier to taxation of lands owned in fee by Indians. Article 21, section 19 of the Idaho Constitution (the “disclaimer clause”), provides in part as follows:
[T]he people of the state of Idaho do agree and declare that we forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indians or Indian tribes; and until the title thereto shall have been extinguished by the United States, the same shall be subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States
. . . . That no taxes shall be imposed by the state on the lands or property therein belonging to, or which may hereafter be purchased by, the United States, or reserved for its use. The disclaimer clause presents two potential barriers to state taxation of reservation lands: the recognition that Indian lands are under the “absolute control and jurisdiction of the United States,” and the prohibition on taxation of property belonging to the United States or reserved for its use. Neither barrier withstands scrutiny. In State v. Marek, 112 Idaho 860, 736 P.2d 1314 (1987), the Idaho Supreme Court found that the disclaimer clause could not prevent Congress from ceding control and jurisdiction over

Indian lands to the state. Id. at 866, 736 P.2d at 1320. Such cession is found in the General Allotment Act and other acts providing for the conveyance of fee patents to Indian lands. As the Supreme Court found in Yakima, the removal of restrictions on alienation is sufficient indication of Congress’ intent to cede to the states taxation authority over such lands. Likewise, the disclaimer clause’s prohibition on taxation of lands owned by the United States or reserved for its use has no application to ad valorem taxation of fee patented lands. By issuing a fee patent to lands, the United States disclaims all interests in such lands. Even where fee lands remain within the boundaries of an Indian reservation, they are not specifically reserved for the use of the United States, and therefore may be taxed. A search of the Idaho Code does not disclose any statutory barriers to state taxation of lands held in fee by Indians. In 1963, Idaho, pursuant to Public Law 280, 67 Stat. 588, (1953), assumed civil and criminal jurisdiction over certain matters within Indian reservations. Idaho Code § 67-5101 (1995).i The statute specifically disclaims, however, any authority to tax “any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States.” Idaho Code § 67-5103 (1995) (emphasis added). The prohibition on taxation is limited to those lands for which alienability is restricted. Thus, it does not affect the ability of the state to tax reservation lands held in fee by Indians.ii The only other state statute addressing taxation of Indian lands is Idaho Code
§ 63-1223 (1989), which provides as follows:
All taxable improvements on government, Indian, state, county, municipal, or other lands exempt from taxation, and all improvements on all railroad rights of way owned separately from the ownership of the rights of way upon which the same stands or in which nonexempt persons have possessory interests shall be assessed as personal property and entered upon the personal property assessment roll. The statute addresses the taxation of improvements on “Indian lands . . . exempt from taxation.” Nothing in the section implies what land may or may not be taxable or exempt. Absent a statute specifically broadening the tax exemption of Indian lands beyond that required by federal law, it must be assumed that the legislature intended to recognize the tax-exempt status of Indian lands only to the extent required by federal treaties and statutes.

Thus, we conclude that counties may impose ad valorem taxes on real property owned in fee by individual Indians, regardless of whether such property is within the boundaries of a federally recognized Indian reservation. AUTHORITIES CONSIDERED

1. Idaho Constitution:
   Art. 21, § 19.
2. Idaho Code:
   § 63-1223 (1989).
   § 67-5101 (1995).
   § 67-5103 (1995).
3. Idaho Cases:
   State v. Marek, 112 Idaho 860, 736 P.2d 1314 (1987).

4. Federal Cases:
   Bryan v. Itasca County, 426 U.S. 373 (1976).
   County of Yakima v. Yakima Indian Nation, 112 S. Ct. 683 (1992). Goudy v. Meath, 203 U.S. 146 (1906). Leech Lake Band of Chippewa Indians v. Cass County, 908 F. Supp. 689 (D. Minn. 1995). Lummi Indian Tribe v. Whatcom County, 5 F.3d 1355 (9th Cir. 1993). Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973). Southern Ute Indian Tribe v. Bd. Of County Comm’rs, 855 F. Supp. 1194 (D. Colo. 1994). United States v. Michigan, 882 F. Supp. 659 (E.D. Mich. 1995).

5. Other Authorities:
   25 U.S.C. § 348 (1988).
   25 U.S.C. § 1323(b) (1988).
   Act of February 8, 1887, 24 Stat. 388 (codified at 25 U.S.C. § 331 et seq.). Act of June 18, 1934, 48 Stat. 984 (codified at 25 U.S.C. § 461 et seq.). Act of May 8, 1906, 34 Stat. 182 (codified at 25 U.S.C. § 349). American Indian Law Deskbook (1993). Public Law 280, 67 Stat. 588 (1953). DATED this 18th day of April, 1996. ALAN G. LANCE Attorney General Analysis by: STEVEN W. STRACK Deputy Attorney General i The provisions of Public Law 280 allowing states to assume jurisdiction over Indians within Indian reservations were repealed in 1968, but such repeal did not affect jurisdiction assumed prior to that time. 25 U.S.C.
   § 1323(b) (1988).
   ii
   It should be noted that Public Law 280 cannot be used as an independent source of authority for states to tax Indians or Indian property on reservations. Bryan v. Itasca County, 426 U.S. 373, 381 (1976).