TAXATION ‑- INDIANS ‑- LIENS, TAX

TAXATION ‑- INDIANS ‑- LIENS, TAX

Land purchased with trust funds from white man by Indian, title being taken by U. S. in trust, is tax exempt, and while existing tax liens are unenforceable, subsequent grantees take subject to such liens.

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                                                                    July 10, 1957

Honorable Don J. Clark
Prosecuting Attorney
Yakima County
102 County Court House
Yakima, Washington

                                                                                                                Cite as:  AGO 57-58 No. 96

Dear Sir:

            You have requested our opinion as to whether real estate sold by a white man to an Indian, title being taken by the United States in trust, is subject to general property taxation.  You also state that the transfer was made after the tax lien for 1957 taxes became fixed and ask what effect, if any, this fact would have on the problem.

            We conclude that the real estate is not subject to taxation and that the 1957 lien is unenforceable.

                                                                     ANALYSIS

            In a former opinion of this office to the Prosecuting Attorney of Mason County, dated January 10, 1945, it was held that land sold to an Indian by a white man, payment therefor being made from trust funds, and the deed containing a provision against alienation without the consent of the Secretary of the Interior, was subject to ad valorem taxation.  That opinion is in accord with the general rule that in the absence of an express enactment by Congress, the purchase of taxable lands with trust funds by an Indian ward of the government does not exempt such lands  [[Orig. Op. Page 2]] from taxation, and the restriction against alienation does not in itself have that effect.  Shaw v. Gibson-Zahniser Oil Corp., 276 U.S. 575, 48 S.Ct. 333, 72 L.Ed. 709;McCurdy v. United States, 246 U.S. 263, 38 S.Ct. 289, 62 L.Ed. 706.

            However, the facts here under consideration show title was taken by the United States in trust for the Indian, the government holding the legal title while the Indian has the right of possession without the right to sell or contract in respect to the lands.

            We are aware that RCW 84.36.010 provides there shall be exempt from taxation "All property belonging exclusively to the United States."  However, the entire title, both legal and equitable, is held by the government and its ward, the Indian, and to all intents and purposes and within the meaning of the statute belongs exclusively to the United States.  To tax this property until at least the fee is conveyed to the Indian is to tax an instrumentality employed by the United States for the benefit and control of a dependent race.  United States v. Rickert, 188 U.S. 432, 23 S.Ct. 478, 47 L.Ed. 532.

            While the tax lien on the property cannot be enforced during the period title remains in the United States, the lien for 1957 taxes is valid, and any subsequent grantee will take the property subject to that lien.  United States v. Alabama, 313 U.S. 274, 61 S.Ct. 1011, 85 L.Ed. 1327.  See OAG 51-53 404 [[Opinion No. 51-53-404 to Ronald R. Hull, Prosecuting Attorney, Yakima County]], September 12, 1952, for the distinction between a tax lien upon property acquired by the state and on that acquired by the Federal government.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

HENRY W. WAGER
Assistant Attorney General