Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1957 No. 97 -
Attorney General John J. O'Connell


County commissioners may include nontaxable Indian lands within a drainage improvement district if federal government agrees to pay the district the sums of money which would be assessed against such property if it could be assessed.

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                                                                    July 11, 1957

Honorable Tom A. Durham
Prosecuting Attorney
Whatcom County Court House
311 Grand Avenue
Bellingham, Washington                                                                                                                Cite as:  AGO 57-58 No. 97

Dear Sir:

            You have requested the opinion of this office as to whether the county commissioners may include nontaxable Indian lands on a reservation within a drainage improvement district if the federal government agrees to pay to the district the sums of money which would be assessed against such property if the property were subject to assessment or taxation.

            We answer your question in the affirmative.


            You have advised us that the property owners of the Ferndale area in your county propose to initiate and form a drainage improvement district under the terms of chapter 85.08 RCW.  A portion of the lands involved is enclosed within the Lummi Indian Reservation, which is a federal reservation, although some of the lands on the reservation are owned by non-Indians who pay taxes on the land.

             [[Orig. Op. Page 2]]

            The difficulty arises out of the fact that the land held by the Indians on the reservation is not liable for taxes or assessments.  You have advised us, however, that the federal government has indicated a willingness to pay the Indians' share of the assessment.

            In answer to your question, it appears to us that the problem is basically a question of fact, rather than one of law, inasmuch as the primary matter to be determined is whether a binding contract or agreement can be entered into between the county commissioners and the proper agent or agency of the federal government so that the cost of the drainage improvement district which would normally be assessed against the land held by the Indians will be paid.

            An examination of the provisions of chapter 85.08 RCW fails to disclose any specific authorization by the legislature for the inclusion of federal lands within the local improvement district.  RCW 85.08.370 provides, however, that if the system of improvement benefits any of the public lands of the state, a fair share of the cost of the improvement based upon the benefits is to be apportioned against the state or the proper political subdivision or district.  However, RCW 85.08.550 refers to additional powers of drainage improvement districts which are to be found in RCW 85.04.610 through RCW 85.04.630.  Under those provisions, when drainage improvement district commissioners decide that the general plan of improvement can be more effectively carried out, they are authorized to make certain alterations in the plan.

            Under the specific provisions of RCW 85.04.615, the district is authorized to "contract with any person, any diking, drainage, or flood control district,or the United States, or the state or any political subdivision thereof to share the expense of the district improvement or the protection thereof."  (Emphasis supplied.)

            It appears to us that since that section specifically authorizes the district to enter into a contract with the United States government for the payment of costs of improvements, we can see no conflict in permitting the district to contract initially with the United States government, through any of its agencies, to authorize the necessary formation and establishment of the drainage improvement district.

            Although this office has officially ruled in an opinion of March 23, 1938, to the prosecuting attorney of Cowlitz  [[Orig. Op. Page 3]] County, that land belonging to Indian wards of the government is exempt from local assessments such as those involved here, a previous opinion of July 24, 1937, to the state tax commission held that although the United States government is not liable for assessments on federal lands, such assessments may be collected from the government if Congress makes provision for the payment of such assessments.

            Accordingly, it is our opinion that there is no legal objection to an agreement between the federal government and the county commissioners of your county whereby the federal government undertakes to pay the amount of money to the improvement drainage district which would be assessed by the district if the land involved were subject to assessment.

            We trust this opinion will be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General