Leech Lake Band of Chippewa Indians v. Cass County

• Decision Date: 05 December 1995
• Docket Number: No. 5-95 CIV 99.,5-95 CIV 99.
• Citation: 908 F. Supp. 689
• Parties: LEECH LAKE BAND OF CHIPPEWA INDIANS, Plaintiff, v. CASS COUNTY, MINNESOTA and, in their official capacities, Sharon K. Anderson, Cass County Auditor; Marge L. Daniels, Cass County Treasurer; Steve Kuha, Cass County Assessor; and John Stranne, James Demgen, Glenn Witham, Erwin Ostlund and Virgil Foster, Cass County Commissioners, Defendants.
• Court: U.S. District Court — District of Minnesota

908 F. Supp. 689

LEECH LAKE BAND OF CHIPPEWA INDIANS, Plaintiff, v. CASS COUNTY, MINNESOTA and, in their official capacities, Sharon K. Anderson, Cass County Auditor; Marge L. Daniels, Cass County Treasurer; Steve Kuha, Cass County Assessor; and John Stranne, James Demgen, Glenn Witham, Erwin Ostlund and Virgil Foster, Cass County Commissioners, Defendants.

No. 5-95 CIV 99.

United States District Court, D. Minnesota, Third Division.

December 5, 1995.

Jacobson, Buffalo, Schoessler & Magnuson, Ltd. by James M. Schoessler, Minneapolis, Minnesota, appeared on behalf of Leech Lake Band of Chippewa Indians.

Earl E. Maus, Cass County Attorney by Earl E. Maus, Walker, Minnesota, appeared on behalf of Cass County.

Cannon, Kunz & Fischer by Peter W. Cannon, Mahnomen, MN, for amicus curiae White Earth Band of Chippewa Indians.

Department of Justice by Judith Rabinowitz, Washington, DC, for amicus curiae United States of America.

ORDER

ALSOP, Senior District Judge.

This matter comes before the Court on Plaintiff Leech Lake Band of Chippewa Indians' motion for summary judgment. The Leech Lake Band of Chippewa Indians (hereinafter the "Band") argues that the ad valorem tax recently imposed by Cass County on land owned by the Band violates principles of Native American sovereignty and is impermissible under existing case law. Cass County argues that, pursuant to recent United States Supreme Court precedent, taxation of these lands is proper. The Court has determined, and all parties have agreed, there are no factual disputes, the issue presented is solely one of law, and the case is ripe for summary disposition. Pursuant to Burlington Northern R.R. v. Omaha Public Power District, 888 F.2d 1228 (8th Cir.1989), the Court now decides this issue on summary judgment.¹

I. BACKGROUND

A. Factual History

The Leech Lake Band of Chippewa Indians is a federally recognized Indian Tribe. The land currently recognized as the Leech Lake Reservation (hereinafter the "Reservation") was initially established by the Treaty of February 22, 1855, 10 Stat. 1165. Three reservations were created by the Treaty of 1855 but were subsequently augmented and connected by treaties with the Mississippi Bands of Chippewa dated May 7, 1864, 13 Stat. 693, and March 19, 1867, 16 Stat. 719. Executive Orders in 1873 and 1874 further enlarged the land constituting the Reservation which continues to exist within the same boundaries notwithstanding the patenting of land to individuals.²

In 1889 Congress passed the Nelson Act, pursuant to which the United States conveyed millions of acres of land in Leech Lake and other Chippewa reservations in Minnesota to individual Indians and non-Indians. Act of January 14, 1889, ch. 24, 25 Stat. 642. The Nelson Act took effect in 1890 after agreement was reached with Minnesota's Chippewa Indian population and approved by the President. See Folwell, supra note 1, at 219-235. Three different methods of conveyance in the Nelson Act are relevant to this lawsuit: § 3 allotments, pine land sales, and homestead sales. Under § 3, the Nelson Act provided that allotments to individual Indians were to be made "in conformity with the act of February eighth, eighteen hundred and eighty-seven, entitled `An act for the allotment of lands in severalty to Indians on the various reservations, and to extend the protection of the laws of the United States and the Territories over the Indians, and for other purposes....'" This reference is to the General Allotment Act of 1887, ch. 119, 24 Stat. 388 (codified as amended at 25 U.S.C. § 331 et. seq.) (hereinafter "GAA"). Conveyance procedures for both pine lands and homestead lands are enumerated in the Nelson Act but do not incorporate or make reference to the GAA. Thirteen of the land parcels at issue were initially allotted to individual Indians under § 3, seven were originally sold pursuant to the pine land sales provisions (§§ 4 and 5 Nelson Act), and one was sold pursuant to the homestead provision (§ 6 Nelson Act). The land at issue has been bought and sold since the original issuance of fee patents under the Nelson Act and was reacquired by the Band between 1980 and the present.

Prior to 1993, the land at issue had not been taxed. However, beginning with the 1993 tax year, Cass County began assessing taxes on all of the properties involved. The Band protested the taxes and, after refusing to pay, the Band began to receive delinquent tax notices. The Band eventually paid the taxes on all of the properties and, as of July 1, 1995, had paid Cass County more than $64,000 in taxes, interest, and penalties. The Band seeks: a declaration that the land at issue is not subject to property taxes imposed by Cass County; a refund of all monies paid for taxes, interest and penalties on the properties; an injunction against Cass County and its administrators prohibiting future taxation of this and similarly situated property and ordering the removal of the properties from the Cass County list of properties subject to taxation.

B. Legal History

In Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832), Chief Justice Marshall's premise was that the "several Indian nations constitute distinct political communities, having territorial boundaries, within which their authority is exclusive...." Id. at 556-57. Justice Marshall and the Worcester Court determined it was the national government, and not the states, that would negotiate and interact with the Indian tribes and bands. Id. at 557. Although the "platonic notions of Indian sovereignty" no longer stand on their own, in the taxation context, "`absent cession of jurisdiction or other federal statutes permitting it,' ... a State is without power to tax reservation lands and reservations sic Indians." County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, 502 U.S. 251, 257-58, 112 S.Ct. 683, 687-88, 116 L.Ed.2d 687 (1992) (quoting Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114 (1973)). Further, as the Yakima Court recognized, United States Supreme Court precedent indicates a "consistent practice of declining to find that Congress has authorized state taxation unless it has `made its intention to do so unmistakably clear.'" County of Yakima, 502 U.S. at 258, 112 S.Ct. at 688 (quoting Montana v. Blackfeet Tribe, 471 U.S. 759, 105 S.Ct. 2399, 85 L.Ed.2d 753 (1985)).³ These principles of Indian sovereignty are the backdrop for the United States Supreme Court decision in 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). Because the Court finds the Yakima decision controlling, the Court's decision hinges on the interpretation and application of Yakima.

II. DISCUSSION

A. The Yakima Decision

In 1992, the United States Supreme Court addressed the question of whether the GAA, as amended by the Burke Act of 1906, authorized states to tax land originally allotted to individual Indians and currently owned by either individual Indians or the Indian Tribe or Band. The Supreme Court held that such land is subject to taxation by the State of Washington because Congress deemed it fully alienable.

The Yakima Indian Reservation was established by Treaty in 1855. See Treaty between the United States and Yakima Nation of Indians. 12 Stat. 951. Some of the Reservation land was owned in fee as a result of allotments made pursuant to the GAA. Under the GAA, land was to be allotted to individual Indians but held in trust by the United States government for 25 years. Accordingly, the land held in trust was not alienable nor encumberable and, upon expiration of the 25 year trust period, the land would be conveyed to the individual Indian in fee. Yakima, 502 U.S. at 254, 112 S.Ct. at 686. GAA § 5. The original § 6 of the GAA provided that "each and every member of the respective bands or tribes of Indians to whom allotments have been made shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside." 24 Stat. 390.

In reaction to In re Heff, 197 U.S. 488, 25 S.Ct. 506, 49 L.Ed. 848 (1905), in which the Supreme Court held that § 6 subjected Indian allottees to plenary state jurisdiction, Congress passed the Burke Act of 1906, 34 Stat. 182 (1983) (codified at 25 U.S.C. § 349) (hereinafter the "Burke Act Proviso"). The Burke Act Proviso amended § 6 of the GAA to provide that state criminal and civil jurisdiction would lie "at the expiration of the trust period ... when the lands have been conveyed to the Indians by patent in fee." It further gave the President the authority to prematurely terminate the trust period by prematurely patenting the land. Upon premature patenting and conveyance in fee to individual Indians, the Burke Act Proviso provided that "all restrictions as to sale, incumbrance, or taxation of said land shall be removed." 34 Stat. 183.

In holding the Yakima Nation land subject to state taxation, the Supreme Court discussed §§ 5 and 6 of the GAA and its prior decision in Goudy v. Meath, 203 U.S. 146, 27 S.Ct. 48, 51 L.Ed. 130 (1906). However, it appears the Court relied on § 5 and the Goudy decision. In Goudy, the Supreme Court held that an Indian who was himself an allottee of land under the Treaty of December 26, 1854, 10 Stat. at L. 1132, was personally liable for property taxes assessed by the State of Washington. Goudy, 203 U.S. at 150, 27 S.Ct. at 50. According to the Yakima court, it was the alienability of the Indian land in Goudy which rendered it subject to taxation. Yakima, 502 U.S. at 263, 112 S.Ct. at 690. In Yakima, the court held that alienability was a consequence of § 5 of the GAA and, as a result, "when § 5 rendered the allotted lands alienable and encumberable, it also rendered them subject to assessment and forced sale for taxes." Id. at 263-64, 112 S.Ct. at 690-91. Despite the Supreme Court's general rule that...