Leech Lake Band of Chippewa Indians v. Cass County, Minn.

• Decision Date: 09 April 1997
• Docket Number: No. 95-4263,95-4263
• Citation: 108 F.3d 820
• Parties: LEECH LAKE BAND OF CHIPPEWA INDIANS, Plaintiff/Appellant, v. CASS COUNTY, MINNESOTA; Sharon K. Anderson, in her official capacity as Cass County Auditor; Marge L. Daniels, in her official capacity as Cass County Treasurer; Steve Kuha, in his official capacity as Cass County Assessor; James Demgen, in his official capacity as Cass County Commissioner; John Stranne, in his official capacity as Cass County Commissioner; Glen Witham, in his official capacity as Cass County Commissioner; Erwin Ostlund, in his official capacity as Cass County Commissioner; Virgil Foster, in his official capacity as Cass County Commissioner, Defendants/Appellees. United States of America, Amicus Curiae. White Earth Band of Chippea Indians, Amicus Curiae. Fond Du Lac Band of Chippewa Indians, Amicus Curiae.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 820

108 F.3d 820

LEECH LAKE BAND OF CHIPPEWA INDIANS, Plaintiff/Appellant, v. CASS COUNTY, MINNESOTA; Sharon K. Anderson, in her official capacity as Cass County Auditor; Marge L. Daniels, in her official capacity as Cass County Treasurer; Steve Kuha, in his official capacity as Cass County Assessor; James Demgen, in his official capacity as Cass County Commissioner; John Stranne, in his official capacity as Cass County Commissioner; Glen Witham, in his official capacity as Cass County Commissioner; Erwin Ostlund, in his official capacity as Cass County Commissioner; Virgil Foster, in his official capacity as Cass County Commissioner, Defendants/Appellees United States of America, Amicus Curiae White Earth Band of Chippea Indians, Amicus Curiae Fond Du Lac Band of Chippewa Indians, Amicus Curiae.

No. 95-4263.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 23, 1996.

Decided March 6, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied April 9, 1997.

John M. Schoessler, Minneapolis, MN (Steven G. Thorne and Joseph F. Halloran, on brief), argued, for Plaintiff/Appellant.

Earl E. Maus, Walker, MN, argued, for Defendants/Appellees.

Before MAGILL, BRIGHT, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

This case involves the tax status of land within an Indian reservation which was once alienated from Indian ownership and subsequently reacquired by the tribe in fee simple. In 1993 Cass County, Minnesota levied an ad valorem tax on such fee land owned by the Leech Lake Band of Chippewa Indians. The Band paid the taxes under protest and sought a declaratory judgment that the land is immune from state taxation, an injunction ending the taxation, and an order refunding the taxes already paid. Based on its interpretation of County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, 502 U.S. 251, 112 S.Ct. 683, 116 L.Ed.2d 687 (1992), the district court granted summary judgment for Cass County. The Band appeals. We affirm in part and reverse in part.

I.

The Leech Lake Band of Chippewa Indians is a federally recognized Indian tribe, whose reservation is located in northern Minnesota. The reservation was created by a series of treaties with the United States government, beginning in 1855 and ending with an executive order in 1874. See, e.g., Treaty with the Chippewas, Feb. 22, 1855, 10 Stat. 1165 (1855); Leech Lake Band of Chippewa Indians v. Herbst, 334 F.Supp. 1001, 1002 (D.Minn.1971). Although the pattern of land ownership within the reservation has varied over the years, the reservation has never been disestablished or diminished. See Herbst, 334 F.Supp. at 1002 (D.Minn.1971) (involving hunting and fishing rights); State v. Forge, 262 N.W.2d 341, 343-44 (Minn.1977) (same).

The Band's original reservation was impacted by changes in federal Indian policy. During the latter part of the nineteenth century, the United States adopted an allotment policy in order to break up reservations previously established by treaty. This policy granted allotments of land to individual tribal members and sold the often sizable remainder of reservation land to non-Indians. See Felix S. Cohen, Handbook of Federal Indian Law 127-38 (1982). The purpose of the policy was to open land to non-Indians and to assimilate the Indian people into the broader American society. Id. at 128. The overall effect was drastically to reduce the amount of land under Indian control. Id. at 138.

The legislative centerpiece of the allotment policy was the General Allotment Act (GAA), ch. 119, 24 Stat. 338 (1887), (codified as amended in scattered sections of 25 U.S.C.) (sometimes referred to as the Dawes Act). Under the GAA, parcels of land to be granted to individual Indians were initially held in trust by the United States. Section 5 of the GAA provided that after a twenty-five year trust period, the United States would convey the land in fee simple to the individual allottee. ¹ During the trust period the allottees were not permitted to convey the land. Section 6 of the GAA provided that the allottees would be subject to state civil and criminal law.

In 1906 Congress amended the GAA by the Burke Act, ch. 2348, 34 Stat. 182 (1906). The Burke Act amended § 6 of the GAA to make clear that allottees would be subject to state law only after the expiration of the trust period and issuance of a patent in fee simple. ² Yakima, 502 U.S. at 264, 112 S.Ct. at 691. The Burke Act contained a proviso which enabled the Secretary of the Interior to issue a fee simple patent before the expiration of the twenty-five year trust period to "competent and capable" allottees. Burke Act, ch. 2348, 34 Stat. 182 (1906). The proviso stated that land allotted under the GAA would be free from restrictions on "sale, incumbrance, or taxation" when a patent was issued in fee. Id.; see Yakima, 502 U.S. at 264 n. 4, 112 S.Ct. at 691 n. 4.

For the Leech Lake Band and other Minnesota Chippewa tribes, the allotment policy was carried out through the Nelson Act of 1889, ch. 24, 25 Stat. 642 (1889), which partially incorporated the GAA. The Nelson Act created a commission to negotiate with the Band for the "cession and relinquishment" of its reservation land. Id. The Leech Lake Band agreed in 1889 to have land disbursed under the Nelson Act and the agreement went into effect in 1890.

The details of the negotiations with the Leech Lake Band are unclear, but there is some evidence that representatives of the United States told other Minnesota Chippewa tribes that the land allotted to the individual tribal members would not be taxed. During the negotiations a member of the White Earth Band of Chippewa Indians asked the United States' lead negotiator, Harry M. Rice, this question: "I should like to ask whether, when the Dawes bill ³ refers to the civil and criminal laws, those provisions apply so as to make our people here subject to the taxation of the white man?" Mr. Rice responded: "I think you will come within the same rule as officers at the United States forts; their property is not taxed." The Chippewa Indians in Minnesota, H.R. Ex. Doc. No. 247, at 93 (1890). Individuals from other tribes were present during this colloquy. Id. Cases involving other bands and other legislation have suggested that the land might only be free from taxation during the original trust period, however. Mahnomen County, Minn. v. United States, 319 U.S. 474, 480, 63 S.Ct. 1254, 1258, 87 L.Ed. 1527 (1943) (Murphy, J., dissenting) (land allotted to Mahnomen County Band of Chippewa Indians under Clapp Act exempt from taxation for twenty-five years); United States v. Spaeth, 24 F.Supp. 465, 469 (D.Minn.1938) (land allotted to a White Earth Chippewa Indian under Clapp Act exempt from taxation for twenty-five years).

The Nelson Act disposed of reservation land in three ways. The allotment of land to individual Indians under § 3 of the Nelson Act was done in conformity with the GAA, and Leech Lake tribal members were allotted land either within the Leech Lake reservation or within the reservation of the White Earth Band of Chippewa Indians, which is also in northern Minnesota. The rest of the land was made available to the general public. Some was sold under §§ 4 and 5, the pine lands provisions, and the rest was sold under § 6 pursuant to the Homestead Act, ch. 75, 12 Stat. 392 (1862).

Federal Indian policy changed substantially once again in 1934 with the passage of the Indian Reorganization Act (IRA), ch. 576, 48 Stat. 984 (1934) (codified as amended at 25 U.S.C. §§ 461-479 (1996)). The IRA reestablished federal recognition of Indian tribes, and while it did not repeal allotment statutes such as the Nelson Act, it ended the allotment policy and sought to reverse the erosion of the tribal land base by extending indefinitely the trust period for all land held by the United States in trust for Indian tribes. 25 U.S.C. §§ 461-462. The Band is governed in part by a constitution adopted by the Minnesota Chippewa Tribes pursuant to the IRA. See § 476.

The Leech Lake Band managed to preserve its tribal identity despite the federal allotment policy and has maintained a continuing presence on its reservation land. During the allotment period over three quarters of the tribal members who were allotted land remained within the Leech Lake reservation boundaries. 4 Folwell, History of Minnesota 235 (1930). Nonetheless, by 1977 the Band and individual tribal members owned only 27,000 acres, or less than five percent of the reservation land. See Forge, 262 N.W.2d at 343 & n. 1 (Minn.1977). In an effort to rebuild what was lost through the allotment policy, the Band began slowly to recover its land base.

The land in question in this case consists of twenty-one parcels within the boundaries of the reservation. The legal description of each parcel is found in paragraph ten of the Band's complaint. This land was once held in trust for the Band by the United States according to terms of their treaties, but was later alienated from tribal control under provisions of the Nelson Act. Thirteen of the parcels were allotted to individual Indians under § 3 of the Act; seven parcels were sold as pine lands under §§ 4 and 5 for commercial timber harvest by non-Indians; and one parcel was distributed under § 6 as a homestead plot to a non-Indian. Subsequently, all parcels came to be held by non-Indians, but the Band reacquired each parcel in fee between 1980 and 1992.

Cass County did not impose its ad valorem tax on these parcels until 1993, one year after the Supreme Court issued its Yakima decision. The Court had held in Yakima that Indian lands originally allotted under the GAA were subject to certain types of state taxation. 502 U.S. at 270, 112 S.Ct. at 694. It found that the language of § 6 of the GAA supported an ad valorem tax on such land, but not an excise tax on its sale. Id. at 266-70, 112 S.Ct. at 692-94. The Band initially declined to pay the taxes levied by ...