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, 502 U.S. 251, 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. Idaho Code § 63-1223 addresses improvements on Indian lands "exempt from taxation" but does not itself create or expand any exemption.

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 one question: can the owner sell the land freely, without federal restriction? If yes, the land is taxable; if no, it is 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 Public Law 280 cannot itself authorize taxation of trust lands or restricted lands; the U.S. Supreme Court held that in Bryan v. Itasca County, 426 U.S. 373 (1976). Idaho Code § 67-5103 codifies that limit by disclaiming authority to tax property "held in trust by the United States or . . . subject to a restriction against alienation." Read together, Public Law 280 and Idaho's implementing statute leave fee-patented Indian lands subject to ordinary state taxation.

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 (Dawes 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 § 63-1223
• Idaho Code §§ 67-5101, 67-5103
• 25 U.S.C. §§ 348, 349, 1323(b)
• 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, 502 U.S. 251, 112 S. Ct. 683 (1992)
• Goudy v. Meath, 203 U.S. 146 (1906)
• Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973)
• Bryan v. Itasca County, 426 U.S. 373 (1976)
• 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 nonIndians. 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.

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.

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. Such cession is found in the General
Allotment Act and other acts providing for the conveyance of fee patents to Indian lands.

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). 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). The prohibition on taxation is limited to those
lands for which alienability is restricted.

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.

DATED this 18th day of April, 1996.
ALAN G. LANCE
Attorney General

Analysis by:
STEVEN W. STRACK
Deputy Attorney General