Lummi Indian Tribe v. Whatcom County, Wash.

• Decision Date: 23 December 1993
• Docket Number: No. 91-35622,91-35622
• Citation: 5 F.3d 1355
• Parties: LUMMI INDIAN TRIBE, Plaintiff-Appellant, v. WHATCOM COUNTY, WASHINGTON; Barbara Cory, Treasurer of Whatcom County, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1355

5 F.3d 1355

62 USLW 2225

LUMMI INDIAN TRIBE, Plaintiff-Appellant, v. WHATCOM COUNTY, WASHINGTON; Barbara Cory, Treasurer of

Whatcom County, Defendants-Appellees.

No. 91-35622.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Aug. 20, 1992.

Submission Withdrawn May 3, 1993.

Resubmitted Sept. 24, 1993.

Decided Oct. 1, 1993.

As Amended on Denial of Rehearing and

Suggestion for Rehearing En Banc

Dec. 23, 1993.

Harry L. Johnsen, Office of the Reservation Atty., Lummi Indian Tribe, Bellingham, WA, for plaintiff-appellant.

Robert A. Carmichael, Sp. Deputy Pros. Atty., Bellingham, WA, for defendants-appellees.

Before: WRIGHT, BEEZER, and LEAVY, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

The Lummi Indian Tribe appeals from summary judgment denying it declaratory and injunctive relief from the assessment and collection of Washington's ad valorem property tax. The Tribe contends that its fee-patented reservation land is exempt from taxation because it was allotted to the Tribe under the Treaty of Point Elliott rather than the General Allotment Act, which permits such taxation. We disagree that reservation land should be treated differently because it was patented under a treaty. We affirm.

I

The Lummi Indian Reservation was created in 1855 by the Treaty of Point Elliott, a compact between the United States and numerous tribes and bands of Indians in northern Puget Sound. Under the terms of the Treaty, the Lummi ceded all rights to a significant section of Western Washington, in return for exclusive use of reservation lands. The Treaty also authorized the subdivision of the Reservation into parcels, which could be assigned or allotted to individuals or families.

In 1884, the government carried out the treaty terms, dividing 10,500 acres of the Reservation into 72 assignments or allotments and issuing fee patents, subject to restrictions on alienation and exempt from levy, sale and forfeiture. The taxability of four parcels, all now owned by the Tribe in fee patent status, is at issue in this case.

The first parcel is a portion of an original assignment made to Lewis Kichowilton. After his death, Kichowilton's heirs divided his allotment among themselves, with the parcel at issue deeded to Mary George, a member of the Tribe. Upon George's death, Irene Miller, a Canadian Indian, inherited the land. Because the United States had no supervisory responsibility over Miller, the Bureau of Indian Affairs issued an "Order Removing Restrictions," allowing Miller to alienate the parcel. In the 1970s, the Tribe purchased it from a non-Indian owner.

The other three parcels were originally assigned to John A. Jones. In 1916, after determining that Jones was "fully competent and capable of transacting his own business," the Secretary of the Interior issued him a "Certificate of Competency." See 25 U.S.C. Sec. 372 (1988). It removed any restrictions on Jones' ability to alienate the land. The Tribe purchased these parcels in the early 1980s.

Under state law, Whatcom County has levied and collected ad valorem property tax payments on these reservation fee lands. In May 1989, the Tribe filed suit, claiming that the tax violated federal law. It sought declaratory and injunctive relief; a refund of taxes, interest and penalties collected; and damages for civil rights violations under 42 U.S.C. Sec. 1983. The parties filed cross motions for summary judgment. A magistrate judge entered summary judgment against the Tribe, finding that the case was controlled by our decision in Confederated Tribes and Bands of the Yakima Nation v. County of Yakima, 893 F.2d 1044, modified, 903 F.2d 1207 (9th Cir.1990), aff'd, --- U.S. ----, 112 S.Ct. 683, 116 L.Ed.2d 687 (1992). The Tribe timely appealed. We have jurisdiction under 28 U.S.C. Sec. 1291.

II

In County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, --- U.S. ----, 112 S.Ct. 683, 116 L.Ed.2d 687 (1992), the Court held that the General Allotment Act of 1887 ¹ permitted Yakima County to impose an ad valorem tax on reservation land patented in fee under the Act and owned by reservation Indians or the Nation itself. The Court expressly refused to decide whether parcels patented under an act other than the General Allotment Act are also taxable. See Yakima Nation, --- U.S. at ----, 112 S.Ct. at 694. The Lummi contend that because their fee patents were issued under the Treaty of Point Elliott, rather than the General Allotment Act, Whatcom County may not tax the parcels.

We must decide one of the questions left open by Yakima Nation: whether reservation land should be treated differently because it was patented under a treaty. Because the Court in Yakima Nation focused on the Yakima's ability to alienate their land, rather than on how it was allotted, we conclude that if the Lummi land is alienable, it is taxable.

A. Alienability as a Basis for Taxation

A state cannot tax reservation lands or reservation Indians unless Congress has " 'made its intention to [authorize state taxation] unmistakably clear.' " Id. at ----, 112 S.Ct. at 688 (quoting Montana v. Blackfeet Tribe, 471 U.S. 759, 765, 105 S.Ct. 2399, 2402, 85 L.Ed.2d 753 (1985)). In Yakima Nation, the Court found an unmistakably clear intent to tax fee-patented land. It did not rely on section 6 of the General Allotment Act as Yakima County proposed, ² concluding instead that the land's alienable status determines its taxability. See id. at ---- - ----, 112 S.Ct. at 688-691. The Court made no distinction between fee land allotted by treaty and that allotted under the Act. Its interpretation of section 5 of the Act and the proviso to section 6 imply that no matter how the land became patented, it is taxable once restraints against alienation expire.

The Court found further support for this conclusion in its decision in Goudy v. Meath, 203 U.S. 146, 27 S.Ct. 48, 51 L.Ed. 130 (1906). In Goudy, a Puyallup Indian claimed exemption from real property taxation under the Treaty of December 26, 1854, which, like the Treaty of Point Elliott, was patterned after the Treaty with the Omahas. 203 U.S. at 146, 27 S.Ct. at 48. The Treaty of the Omahas allowed the President to issue a restricted patent on allotted lands. Id. at 147, 27 S.Ct. at 50. The restrictions on alienation would remain until the state legislature, with Congressional consent, removed them. Id. The Court decided that once the land allotted under the treaty became alienable, it also became taxable. See id. at 150, 27 S.Ct. at 50. In so deciding, the Court relied in part on the General Allotment Act provisions that made an Indian subject to the state laws once restrictions on the land were removed. See id. at 149, 27 S.Ct. at 50.

The Yakima Nation Court approved Goudy's holding, citing Goudy for the proposition that alienable land is taxable unless explicitly exempted:

although it was certainly possible for Congress to "grant the power of voluntary sale, while withholding the land from taxation or forced alienation," such an intent would not be presumed unless it was "clearly manifested." For "it would seem strange to withdraw [the] protection [of the restriction on alienation] and permit the Indian to dispose of his lands as he pleases, while at the same time releasing it [sic ] from taxation."

Yakima Nation, --- U.S. at ----, 112 S.Ct. at 691 (alteration in original) (citation omitted). The logic propounded by the Goudy Court and approved by Yakima Nation requires an Indian, even though he receives his property by treaty, to accept the burdens as well as the benefits of land ownership. This proposition may be hard to square with the requirement, recently approved by the Yakima Nation Court, that Congress' intent to authorize state taxation of Indians must be unmistakably clear. The strength of the language in Yakima Nation, however, makes virtually inescapable the conclusion that the Lummi land is taxable if it is alienable.

B. Alienability of the Four Parcels

Though the four parcels were at one time alienable, the Tribe argues that the Indian Nonintercourse Act, 25 U.S.C. Sec. 177, renders the land inalienable upon reacquisition by the Tribe. We disagree.

The Act provides, in pertinent part,

No purchase, grant, lease or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution.

25 U.S.C. Sec. 177. The Act has not changed materially since its passage, in 1790, at the insistence of President Washington and Secretary of War Henry Knox. See Susan C. Antos, Comment, Indian Land Claims Under the Nonintercourse Act, 44 Alb.L.Rev. 110, 111, 120 (1979). President Washington and Secretary Knox thought that only the federal government could ensure Indian lands were settled peacefully and Indians treated fairly. Id. at 111. Courts considering the Act's purpose have agreed that Congress intended to protect Indians from the "greed of other races," United States v. Candelaria, 271 U.S. 432, 442, 46 S.Ct. 561, 563, 70 L.Ed. 1023 (1926), and from "being victimized by artful scoundrels inclined to make a sharp bargain," Tuscarora Nation of Indians v. Power Authority, 257 F.2d 885, 888 (2d Cir.), cert. denied, 358 U.S. 841, 79 S.Ct. 66, 3 L.Ed.2d 76 (1958), vacated as moot sub nom., McMorran v. Tuscarora Nation of Indians, 362 U.S. 608, 80 S.Ct. 960, 4 L.Ed.2d 1009 (1960).

The Tribe relies on two lines of cases, arguing that any lands held by a tribe, even those held in fee, are inalienable under the Act. First, courts have held that the Act applies to tribal lands regardless of how it was acquired. Tuscarora Nation 257 F.2d at 887-91 (acquisition by purchase); United States v. 7405.3 Acres of Land, 97 F.2d 417, 422 (4th Cir.1938) (same). The purchases in those cases were made for or by a tribe during the 1800s and, in 7405.3 Acres, had since been...