Thurston County, State of Neb. v. Andrus

Decision Date04 December 1978
Docket NumberNos. 77-1790,77-1808,s. 77-1790
Citation586 F.2d 1212
PartiesCOUNTY OF THURSTON, STATE OF NEBRASKA, Plaintiff-Appellant, v. Cecil ANDRUS, Secretary of Interior, United States of America, Wyman A. Babby, Area Director, Bureau of Indian Affairs, Department of Interior, and Floyd R. Thieman, Acting Superintendent, Winnebago Agency, Bureau of Indian Affairs, Defendant-Appellees, The Omaha Tribe of Indians and the Winnebago Tribe of Indians, Intervenor- Appellees and Cross-Appellants.
CourtU.S. Court of Appeals — Eighth Circuit

Robert G. Scoville, Ryan, Scoville & Uhlir, South Sioux City, Neb., for County of Thurston; Albert E. Maul, County Atty., Pender, Neb., on the brief.

Nancy B. Firestone, Atty., Dept. of Justice, Washington, D. C., for Cecil Andrus, Secretary of Interior, et al.; James W. Moorman, Asst. Atty. Gen., Washington, D. C., Daniel E. Wherry, U. S. Atty., Omaha, Neb., and Jacques B. Gelin, Atty., Dept. of Justice, Washington, D. C., on the brief.

Jeanne S. Whiteing, Native American Rights Fund, Boulder, Colo., for Omaha Tribe of Indians et al.; Daniel H. Israel and Elizabeth M. Morse, Boulder, Colo., on the brief.

Before LAY and BRIGHT, Circuit Judges, and HANSON, Senior District Judge. *

HANSON, Senior District Judge.

This is an appeal from the judgment of the district court 1 in a mandamus action brought pursuant to 28 U.S.C. § 1361. Jurisdiction in this Court is predicated on 28 U.S.C. § 1291. The case involves the collection of taxes by Thurston County, Nebraska (the County) assessed on certain Indian lands held in trust by the United States under so-called trust patents of allotment for individual allottees of the Omaha and Winnebago tribes. Collection of real property taxes on the land in question is made possible under a special uncodified statute, the Brown-Stephens Act, 2 which permits the County to appraise and assess the Indian land on which the original trust period has expired and been extended. If local taxes are not paid thereon within a year, the County may certify a list of unpaid taxes to the Secretary of Interior (the Secretary) who is authorized to pay the taxes from funds in his control belonging to the Indian allottee or allottees owning the land and arising from the rent of such land. Under the Brown-Stephens Act, Indian land cannot be levied against by the County and if the Secretary has no funds to pay the taxes, his certification of that fact discharges the tax liability.

Thurston County brought this action against the Secretary and other federal appellees to recover $359,598.15 in certified unpaid and delinquent taxes on trust patent lands leased to non-allottees. The taxes were due for the years 1965-1972, inclusive. The County also sought an order compelling future payments of unpaid taxes by the Secretary from rental receipts in the Secretary's control. The district court permitted the Omaha and Winnebago tribes to intervene as defendants.

After trial the district court found that the Indian allottees and their heirs had a "right to hold the trust lands as tax exempt property during the period of the trust," and could not be compelled to pay tax assessed on their land without their consent or compensation. In order to avoid constitutional difficulty, the district court viewed the Brown-Stephens Act as including an implied right to consent or object to payment of the tax assessment. The district court further held that prior to 1972 the allottees consented to taxation by providing for the payment of real property taxes by the lessee in leases of their land, and that the Secretary had a mandatory duty, enforceable through mandamus, to pay the overdue taxes. Accordingly, the district court issued a writ of mandamus requiring payment of the taxes from the Indians' present funds in the hands of the Secretary but only, however, for taxes due for 1969, 1970, and 1971 since the statute of limitations applied by the district court barred recovery for earlier years, and taxes for 1972 were unavailable because of the allottees' revocation of consent. In view of the fact that the Brown-Stephens Act did not limit actions, the district court utilized what it deemed the most analogous state rule, and held that the three-year Nebraska limitations period for liability created by a federal statute governed. See Neb.Rev.Stat. § 25-219 (Reissue 1975). The County appeals, challenging the district court's ruling that the Indians have the right to consent or object to the payment of tax assessments, and the consequent denial of tax money for 1972 and mandamus relief going to subsequent tax years. The County also argues that the district court erred in its choice of the appropriate Nebraska statute of limitations. The intervenors, the Omaha and Winnebago tribes, cross-appeal from the district court's holding that the Secretary had a ministerial duty under the Brown-Stephens Act to pay over allottee funds in his possession upon the County's certification of delinquent taxes the allottees had consented to payment of. The tribes also maintain that the district court's remedy was beyond the scope of the Brown-Stephens Act. The Secretary and other federal defendants do not appeal. Upon review, we affirm the major substantive holdings of the district court, but for reasons explained below, vacate the judgment and remand the cause with directions to deny the mandamus relief sought.

I.

Approximately 34,000 acres of land in Thurston County are held in trust by the United States for the benefit of individual members of the Winnebago and Omaha tribes. The land so held is divided into individual allotments, with designated Indian allottees holding the beneficial interest therein. In many instances, a large number of individuals have come to presently own an interest in a single piece of allotted land through descent and devise from the original allottees. For the purposes of this opinion, an allottee refers to any Indian owning an interest in allotted land.

Much of the trust patent land is leased to renters other than allottees, and it is this land the County seeks to collect taxes on. See 25 U.S.C. § 393. The Winnebago Agency, operating under the auspices of the Aberdeen Area Office of the Bureau of Indian Affairs (BIA), approves leases of trust patent land, collects rent due thereunder, and disburses the funds to Indians.

Most leases prior to 1972 provided for a cash rent or a share of the crops, and the payment of state and local taxes by the lessee. Most of the leases at issue here provided for the payment of rental and tax money by the lessee to the Winnebago Agency. The district court viewed these lease provisions as a consent to the imposition of taxes. In the years 1965 through 1971 rental money received by the Agency was credited to either of two types of accounts. Special Deposit (SD) accounts contained money set aside from rentals for the payment of County real estate taxes and was ultimately paid to Thurston County. Rents not directed to the SD accounts were credited to Individual Indian Money (IIM) accounts. IIM accounts were maintained in the name of each allottee or his heirs to whom the rental receipts belonged. See 25 C.F.R. Part 104. Subject to some restrictions, adult Indians have the right to withdraw funds held by the Secretary in an IIM account. 25 C.F.R. § 104.3.

In 1971 the Omaha and Winnebago Tribal Councils requested the BIA to stop paying the County taxes on trust patent lands. 3 No payments were made thereafter. In 1972 the Winnebago Agency discontinued the use of SD accounts. No such accounts were established for that year or subsequent years and what funds had previously been in the SD accounts were, beginning in 1972, transferred to the IIM accounts. This action appears to have followed a survey of allottees by the BIA in 1972 to determine whether they wished to consent to County taxation. Silence from an allottee was construed as a lack of consent. Only a handful of allottees consented to taxation. The district court found that affirmative refusal to consent or silence in response to the BIA survey was effective as a revocation of any consent theretofore given. Some money remained in the SD accounts until 1974, though the total amount steadily dwindled as individual allottees were located and their share of the SD funds transferred to their IIM account.

Since 1972 new leases of allotment land have not provided for the payment of County taxes, and there has been no other manifestation of consent to taxation on the allottees' part. Moreover, it appears that no rental income from which the allottees had consented to the payment of taxes remains in the possession of the Secretary.

The County treasurer, pursuant to the Brown-Stephens Act, certified overdue taxes to the Secretary for the years 1965 through 1972 as follows: 4

                Date of Certification  Years Taxes  Total Overdue
                      by County            Due          Taxes
                ---------------------  -----------  -------------
                May 30, 1972             1965-68      $ 49,565.00
                March 10, 1972           1969-70       112,344.00
                January 19, 1973          1971          95,511.78
                January 8, 1974           1972         102,177.37
                

With respect to overdue taxes for the years 1965-70, the Secretary failed to either pay the taxes or certify the non-availability of funds for payment. On March 20, 1973, the Secretary certified that there were no funds in his possession for the payment of 1971 County taxes, and on March 4, 1974 he similarly certified non-availability of funds for the payment of 1972 taxes. However, the district court found that in fact the Secretary did have rental funds in his possession when the County originally certified overdue taxes. Consequently, the district court held that the Secretary's certifications of non-availability were not effective to discharge the tax liability.

The County filed its complaint in this action after unsuccessful...

To continue reading

Request your trial
10 cases
  • Bordeaux v. Hunt
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • 14 Noviembre 1985
    ...... of the United States and subject to the laws of the state or territory in which they resided. .         In ...Andrus, 483 F.Supp. 240, 242 (D.S.D.1980). It is fundamental that ...Benewah County, 290 F.628, 631-32 (9th Cir.1923), seems to state that the ...Thurston County, 143 F. 287 (8th Cir.1906). At issue there was the ...          9 See County of Thurston, State of Neb., 586 F.2d 1212, 1219 (8th Cir.1978): The Burke Act "and ......
  • US v. Wilson
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • 4 Septiembre 1981
    ...See, 25 U.S.C. § 348; Tooahnippah v. Hickel, 397 U.S. 598, 90 S.Ct. 1316, 25 L.Ed.2d 600 (1970); County of Thurston, State of Nebraska v. Andrus, 586 F.2d 1212 (8th Cir. 1978), cert. denied, 441 U.S. 952, 99 S.Ct. 2181, 60 L.Ed.2d 1057 (1978). It follows that the allotted tracts remain trus......
  • Cherokee Nation v. Nash
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 30 Agosto 2017
    ...Indians evolved as a distinct policy of the federal government in the latter half of the 19th century," Thurston Cnty., Neb. v. Andrus , 586 F.2d 1212, 1217 (8th Cir. 1978), and, in the years after the 1866 Treaty, as the Cherokee Nation's lands continued to be ceded to the United States pu......
  • Nichols v. Rysavy, 593
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 25 Febrero 1987
    ...trust period and the benefits derived therefrom for Indians determined to be competent." County of Thurston, State of Nebraska v. Andrus, 586 F.2d 1212, 1219 (8th Cir.1978), cert. denied, 441 U.S. 952, 99 S.Ct. 2181, 60 L.Ed.2d 1057 From 1906 to 1916, the Secretary of the Interior granted e......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT