States Now May Tax Indian Land
Supreme Court ruling allows states to tax privately owned land on Indian reservations as treaties from 19th century create legal uncertainties
BOSTON — THE high-pitched arguing over legal issues on Indian reservations in the United States may have just jumped an octave. In a case of no small significance, the US Supreme Court decided late last month that states and counties can collect property taxes on reservation land that is privately owned by Indians.
In a case brought by the Yakima tribe in Washington, the high court ruled that part of the 1887 Indian General Allotment Act still remains law. This law states that tribal reservation land conveyed to individual Indians could be taxed after 25 years.
The court's decision reverses the direction of previous Supreme Court decisions which generally favored no taxation.
"This decision," says an attorney with an Indian-rights organization, "is a direct challenge to tribal sovereignty."
In recent years Indian tribes on reservations have increasingly asserted their historical sovereignty. Because of treaties signed with the US, tribes regard themselves as nations.
Tribes have forged compacts with states, reasserted their treaty rights, established accredited tribal colleges, and strengthened tribal courts. Some tribes have launched successful businesses, including gaming. At the same time many reservations have unemployment rates as high as 50 percent. Taxing reservation land
Down through the years some states have taxed privately held Indian land, known as fee land, while others have not. m sure a lot of counties are going to wave this decision in the air and say, 'We can tax, we can tax, says Patrice Kunesh, a staff attorney for the Native American Rights Fund, "but they will have to prove that it is allotment land."
Doing that may be no easy task because no organization, including the US Department of the Interior (the trustee for Indian lands) knows how much Indian land is held by individual Indians. In many cases the land could have been obtained as surplus land or possibly through homesteading as well as from allotments.
Indians throughout the US were alloted land in 1887, usually 160 acres to each Indian to encourage farming. At the time few Indians understood the concept of ownership or wanted to be farmers. Many lost land through deception or outright theft.
"The Supreme Court's Yakima decision," says a Washington, D.C., attorney active in Indian issues, "hinged on allotted lands placed in fee status, land given to Indians at the turn of the century. Historically there has never been a distinguishing between fee and trust lands. There aren't any absolutes here, so much is in a gray area. A lot depends on the state the tribe is in, the tribe's relationship with the state and the state's policy of collecting taxes." Trust land
The Supreme Court's decision could result in a concerted effort by Indian tribes to request that all reservation land be put in trust by the Department of Interior and therefore be exempt from taxes.
"The Department of Interior has it within its power," says an attorney for a government agency in Washington, D.C., "to effectively negate the Supreme Court decision by simply taking the land involved into trust.
But if this were to happen in some states, it might undermine the tax base of the county [by withdrawing land from property taxation]."
"I know there is going to be a movement toward doing this," says Wayne Bjur, the Yakima lawyer who argued before the Supreme Court on behalf of the Indians.
"The reason there is so much litigation in the Indian law field is because nothing is clear. Congress has the authority to remedy these situations," he says.
Congress has not been active in efforts to resolve longstanding Indian issues. Each passing year increases the complexity of resolution because tribes are growing and coming in conflict with local jurisdictions over many issues.
Historically, it has been quite common for Indian problems to be solved by litigation. "But the problems now are multifaceted," says the attorney from a government agency. "For instance, on this question, if a bill were proposed to Congress to exempt Indian lands from taxation, all the state and local governments that filed amicus curiae briefs in the Yakima decision would surely lobby Congress to not pass such a law." Back to the courts
Jeff Sullivan, the prosecuting attorney for Yakima County, sees the land issue in the Yakima case now fully resolved.
"We have collected taxes on those deeded lands since the beginning of statehood," he says. "It wasn't until 1988 that the tribal members decided they shouldn't be paying taxes and asked the federal district court for relief from the burden. The issue has now been decided by the Supreme Court."
Beyond Yakima the issue of deciding the status of lands could be time-consuming and difficult.
"I can foresee the situation where counties start asserting a taxing authority," says Ms. Kunesh, "and they will have to prove they have the right land. It's going to be a title search in each case. The Supreme Court did not make a decision on the basis of the facts in the Yakima case, but in fact this is what (counties) will have to do on a case by case determination."