AGO 1979 No. 19 - Oct 5 1979
TAXATION ‑- PROPERTY ‑- INDIANS ‑- TAXATION OF PROPERTY SITUATED ON FEDERALLY-RECOGNIZED INDIAN RESERVATIONS
(1) Neither real nor personal property, even though located on a federally-recognized Indian reservation, is for that reason alone exempt from state ad valorem property taxation where the subject property is, nevertheless, in non-Indian ownership.
(2) Personal property located within the boundaries of a federally-recognized Indian reservation and owned either by the tribe to which the reservation belongs or by a member of that tribe living on the reservation is, for that reason, exempt from state ad valorem property taxation.
(3) Real property held in trust status by the United States or otherwise subject to a restriction against alienation, and situated on a federally-recognized Indian reservation, is also, for that reason alone, exempt from state ad valorem property taxation.
(4) In a case of fee patent land situated on a federally-recognized Indian reservation, where such land is owned by the tribe or by a reservation Indian (rather than by a non-Indian) the taxability thereof can only be determined on a parcel-by-parcel basis after an examination of the particular federal statutes which apply in a given case.
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October 5, 1979
Honorable Greg M. Devlin
P.O. Box 390
Colville, Washington 99114
Cite as: AGO 1979 No. 19
By letter previously acknowledged you requested our opinion on a question which we paraphrase as follows:
[[Orig. Op. Page 2]]
To what extent, if at all, are the following types of property, the tax situs of which is within the boundaries of a federally-recognized Indian reservation, thereby exempt from state ad valorem taxation:
(1) Personal property owned either by a tribal member residing on the reservation or by the tribe itself;
(2) Personal property owned by a non-Indian;
(3) Real property owned either by a tribal member residing on the reservation or by the tribe itself;
(4) Real property owned by a non-Indian?
We answer your question in the manner set forth in the following analysis.
I.Scope of Opinion:
Let us, at the outset, carefully delineate the scope of this opinion. As evidenced by the various provisions of chapter 84.36 RCW, there are numerous statutory exemptions from ad valorem property taxation which apply without regard to the tax situs of the property or the ancestral or political status of its owner. In all likelihood, some such statutorily exempt property will be found on most, if not all, federally-recognized Indian reservations within this state. If so, that property will be exempt from taxation just as if it were located anywhere else within the state. But it will not, in such cases, be exempt from taxation only by reason of its Indian ownership or because of its on-reservation tax situs.
In this opinion we will not be concerned with such statutorily tax exempt property. Rather, the sole question here to be considered is one limited to an identification of the extent to which property (real or personal) that would otherwise be subject to ad valorem taxation in this state must be deemed to be exempt from such taxation solely by reason of its tax situs on an Indian reservation and/or its ownership by a tribal member [[Orig. Op. Page 3]] residing on the reservation;1/i.e., without regard to any other possible statutory or constitutional basis for finding an exemption to be applicable.
II.Property Owned by a Non-Indian:
Next, this time within the confines of the specific question here presented, we may rather quickly limit the major thrust of this opinion even further. By and large, neither real nor personal property, even though located on a federally-recognized Indian reservation, will for that reason alone be exempt from taxation where the subject property is, nevertheless, in non-Indian ownership. The reason for this is quite simple; namely, that the critical legal rationale which supports non-taxation is predicated upon the dual elements of (1) on-reservation tax situs and (2) ownership by a reservation Indian or Indian tribe. If one or the other of those two elements is lacking, the underlying basis for a claim of exemption ceases to be present. Thus, property held by an Indian outside an Indian reservation is exempt only to the extent that it is declared so by statute or as a federal instrumentality. See,Pennock v. Commissioners, 103 U.S. 44, 26 L.Ed. 367 (1880); Mescalero Apache Tribe v. Jones, 411 U.S. 145, 36 L.Ed.2d 114, 93 S.Ct. 1267 (1972); Cohen, Federal Indian Law, 258 (1942). And reservation-situated property owned by non-Indians has historically been subject to state taxation. Utah & Northern Ry. v. Fisher, 116 U.S. 28, 29 L.Ed. 542, 6 S.Ct. 246 (1885) (real property);Thomas v. Gay, 169 U.S. 264, 42 L.Ed. 740, 18 S.Ct. 340 (1898) (personal property).2/
III.Property Owned by the Tribe or a Reservation Indian:
We turn, now, to the question of whether, and to what extent, state property taxes may be imposed on (1) personal property or (2) real property, the tax situs of which is within the boundaries of a federally-recognized Indian reservation, [[Orig. Op. Page 4]] where such property is owned either by a reservation Indian or by the tribe itself. In the case of any suchpersonal property we must conclude, on the basis of several recent rulings by the United States Supreme Court, that the property is exempt from ad valorem taxation. See,Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 48 L.Ed.2d 96, 96 S.Ct. 1634 (1976); Bryan v. Itasca County, 426 U.S. 373, 48 L.Ed.2d 710, 96 S.Ct. 2102 (1976); andMcClanahan v. Arizona Tax Commission, 411 U.S. 164, 36 L.Ed.2d 129, 93 S.Ct. 1257 (1973). Similarly, with regard to real property which is held in trust status by the United States or is subject to some other type of federal restriction on alienation, the answer, likewise, is that the property is, thereby, nontaxable. But finally, in the case of what is commonly referred to as "fee patent" land, it is entirely possible, and even quite likely, that the parcel will be subject to ad valorem taxation even though it happens to be owned by a reservation Indian or an Indian tribe.
We will now explain the underlying reasons for these three separate conclusions in greater detail.
(1)Personal Property in Indian Ownership:
In theMcClanahan case, supra, the Supreme Court held that the Arizona state income tax could not be applied to the income of a Navajo Indian living and earning her income on the Navajo reservation. Three years later, inMoe v. Salish and Kootenai Tribes, supra, the Court relied on its reasoning in McClanahan in similarly holding that a Montana ad valorem property tax could not be applied to personal property (specifically, motor vehicles) located on the tribal reservation and owned by tribal members living on that reservation.3/ Then finally, during that same year, the Court in Bryan v. Itasca County, supra, squarely extended its rulings in McClanahan and Moe to encompass a state, such as Washington, which has obtained "full" jurisdiction over certain Indian reservations within its boundaries pursuant to PL 83-280.4/ In so doing the Court, in Bryan, explainedMcClanahan and its progeny, Moe, as follows:
[[Orig. Op. Page 5]]
"Principles defining the power of States to tax reservation Indians and their property and activities on federally established reservations were clarified in McClanahan v Arizona State Tax Comm'n, supra, 36 L.Ed.2d 129, 93 S.Ct. 1257. As summarized in its companion case, Mescalero Apache Tribe v Jones, 411 U.S. 145, 36 L.Ed.2d 114, 93 S.Ct. 1267 (1973), McClanahan concluded:
"'[I]n the special area of state taxation, absent cession of jurisdiction or other federal statutes permitting it, there has been no satisfactory authority for taxing Indian reservation lands or Indian income from activities carried on within the boundaries of the reservation, and McClanahan . . . lays to rest any doubt in this respect by holding that such taxation is not permissible absent Congressional consent.' Mescalero Apache Tribe v Jones, supra, at 148, 36 L.Ed.2d 114, 93 S.Ct. 1267.
"McClanahan held that Arizona was disabled in the absence of congressional consent from imposing a state income tax on the income of a reservation Indian earned solely on the reservation. On the authority of McClanahan, Moe v Salish & Kootenai Tribes, 425 U.S. 463, 48 L.Ed.2d 96, 96 S.Ct. 1634 (1976), held this Term that in the absence of congressional consent the State was disabled from imposing a personal property tax on motor vehicles owned by tribal members living on the reservation, or a vendor license fee applied to a reservation Indian conducting a business for the Tribe on reservation land, or a sales tax as applied to on-reservation sales by Indians to Indians." 426 U.S. at 375-377.
[[Orig. Op. Page 6]]
Additionally, in a highly significant footnote, the Court in Bryan, supra, further expanded upon its explanation ofMcClanahan by saying
"The McClanahan principle derives from a general pre‑emption analysis, 411 U.S., at 172, 36 L.Ed.2d 129, 93 S.Ct. 1257, that gives effect to the plenary and exclusive power of the Federal Government to deal with Indian tribes, United States v. Mazurie, 419 U.S. 544, 554 n 11, 42 L.Ed.2d 706, 95 S.Ct. 710 (1975); Morton v Mancari, 417 U.S. 535, 551-552, 41 L.Ed.2d 290, 94 S.Ct. 2474 (1974); Board of Comm'rs v Seber, 318 U.S. 705, 715-716, 87 L.Ed. 1094, 63 S.Ct. 920 (1943), and 'to regulate and protect the Indians and their property against interference even by a state,' id., at 715, 87 L.Ed. 1094, 63 S.Ct. 920. This pre‑emption analysis draws support from 'the "backdrop" of the Indian sovereignty doctrine,' Moe v Salish & Kootenai Tribes, 425 U.S. 463, 475, 48 L.Ed.2d 96, 96 S.Ct. 1634 (1976); '"[t]he policy of leaving Indians free from state jurisdiction and control [which] is deeply rooted in the Nation's history,"' McClanahan, 411 U.S., at 168, 36 L.Ed.2d 129, 93 S.Ct. 1257; and the extensive federal legislative and administrative regulation of Indian tribes and reservations, id., at 173-179, 36 L.Ed.2d 129, 93 S.Ct. 1257, 'Congress has . . . acted consistently upon the assumption that the States have no power to regulate the affairs of Indians on a reservation,' Williams v Lee, 358 U.S. 217, 220, 3 L.Ed.2d 251, 79 S.Ct. 269 (1959), and therefore '"State laws generally are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply."' McClanahan, supra, at 170-171, 36 L.Ed.2d 129, 93 S.Ct. 1257 (quoting United States Department of the Interior, Federal Indian Law 845 (1951)).
"Of course, this pre‑emption model usually yields different conclusions as to the applicability of state laws to tribal Indians [[Orig. Op. Page 7]] who have left or never inhabited federally established reservations, or Indians 'who do not possess the usual accoutrements of tribal self-government,' McClanahan, supra, at 167-168, 36 L.Ed.2d 129, 93 S.Ct. 1257; see Mescalero Apache Tribe, 411 U.S., at 148-149, 36 L.Ed.2d 114, 93 S.Ct. 1267." 426 U.S. at 376, note 2.
Thus, the United States Supreme Court has established the rule that a state may not tax an Indian tribe or its members with respect to property or activities located on an Indian reservation, absent express congressional consent. In effect, Congress has preempted the field of taxation of Indians on Indian reservations, and the search is for congressional consent to state taxation. In the case of personal property owned by a tribe or a reservation Indian and located on the tribal reservation,Moe,supra, and Bryan, supra, tell us there is no existing congressional consent. Accordingly, such property may not be taxed by the state.
Moreover, underMoe it makes no difference where personal property is located within the reservation. Thus, it makes no difference whether the land on which the personal property is located is in Indian ownership or non-Indian ownership. Further, it also makes no difference whether that land, if in Indian ownership, is "fee patent" land‑-free from any federal restrictions on alienation‑-or, on the other hand, is land held in a trust or otherwise restricted status. Still further, it makes no difference whether the personal property itself is owned in a trust or restricted status or, instead, is owned free of any such federal restrictions.
And finally, as above indicated, it makes no difference whether the state involved has obtained "full" jurisdiction under PL 83-280‑-which means, in turn, that our conclusions herein, based upon Moe, are equally applicable to all federally-recognized Indian reservations within this state regardless of the extent of PL 83-280 jurisdiction which currently exists, under state law, over those various reservations.
Our conclusion, however, is confined to personal property located within the reservationand owned by either the tribe to whom the reservation belongs or by a member of that tribe living on the reservation. It does not extend to property owned by Indians who live on a given tribal reservation but are not members of that tribe‑-nor to property owned by Indians who are tribal members but live off the tribal reservation. Those questions are beyond the scope of your immediate request and we herein express no opinion thereon.
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(2)Real Property in Indian Ownership:
Unlike personal property, there is no "blanket" exemption from state taxation for real property owned by a tribe or its members and located on the tribe's reservation. The legal analysis is the same in both cases, however; i.e., a search for congressional consent to state taxation. Nevertheless, the result is quite likely to be different in the case of real property since, in many instances, Congress has consented to state taxation of Indian-owned real property. Because of this, the tax status of on-reservation real property in Indian ownership must be determined on a parcel-by-parcel basis.
In this opinion we will deal separately with the two major categories of on-reservation property in Indian ownership‑-trust or otherwise restricted land, on the one hand and "fee patent" land on the other. And, in the case of the latter, we will here only attempt to provide guidance as to what to look for in examining each such parcel.
(a)Land Held in Trust Status by the United States or Otherwise Subject to a Restriction Against Alienation:
The first category of land commonly held in Indian ownership is land held in trust by the United States or subject to a federal restriction against alienation. This pattern of ownership is quite common in Washington and results from congressional policy in the late 19th and early 20th centuries of dividing tribal lands in severalty to individual Indians. This policy was largely accomplished by the General Allotment Act of 1887, 24 Stat. 388. Additionally, there are numerous statutes authorizing the allotment of tribal lands to individual Indians on a reservation-by-reservation basis.
Under the General Allotment Act and its progeny, the President was authorized to allot plots of land to individual Indians and the Secretary of Interior was then authorized to issue patents to those Indians under which the land was to be held in trust by the United States for a period of 25 years‑-at the end of which period the land would be conveyed to the Indian or his heirs in fee, discharged of the trust and free of all encumbrances. 25 U.S.C. § 348. Subsequent acts of Congress, however, have extended this trust period indefinitely. See, generally, Cohen, Federal Indian Law, 257-259. In terms of your question, if a parcel is held in trust by the [[Orig. Op. Page 9]] United States or is subject to a restriction against alienation imposed by the United States, that parcel isipso facto, non-taxable. The underlying reason for this result derives from the supremacy clause of the federal constitution. Because the federal government either holds a parcel in trust or has imposed a restriction on its alienation or encumbrance, the encumbrance of that land by a tax lien and any resulting attempt to foreclose that lien would be contrary to federal law. United States v. Thurston County, Nebraska, 143 F. 287 (8th Circuit, 1906); See also United States v. Rickert, 188 U.S. 432, 47 L.Ed. 532, 23 S.Ct. 478 (1903). Moreover, in recognition of this rule, RCW 37.12.060 (a section of our state law assuming PL 83-280 jurisdiction over Indian reservations within the State of Washington) expressly provides as follows:
"Nothing in this chapter shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights and tidelands, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any federal treaty, agreement, or statute or with any regulation made pursuant thereto, or shall confer jurisdiction upon the state to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of such property or any interest therein, or shall deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under federal treaty, agreement, statute, or executive order with respect to Indian land grants, hunting, trapping, or fishing or the control, licensing, or regulation thereof."
Thus, as a matter of both federal and state law, reservation land owned by an Indian and held in trust by the United States or subject to a restriction against alienation is exempt from ad valorem taxation.5/
[[Orig. Op. Page 10]]
(b)Land Held in "Fee Patent" Status by an Indian or Indian Tribe:
The second category of real property commonly held in Indian ownership is fee patent land held in fee simple. This land presents a more difficult problem. At first blush, it might seem that even reservation real property owned in fee by an Indian tribe or its members would be exempt from ad valorem taxation under the rule ofMoe, supra, and Bryan, supra. For given the proposition that the characterization of property as real or personal is not, per se, a basis for distinguishing between taxability and nontaxability, it could be argued that Moe andBryan‑-both of which involved a property tax exemption for personal property owned in fee by reservation Indians‑-automatically require a tax exemption for real property as well where owned by reservation Indians.
That approach, however, ignores two historical facts which, in combination, render the reasoning and result of Moe and Bryan inapplicable. First, it is highly probable that most reservation land now in "fee patent" status was once in trust or restricted status. And, second, it is also highly probable that such land was relieved of its trust or restricted status pursuant to federal legislation expressly providing that the land would become subject to taxation upon losing its trust or restricted status. In those circumstances, the result is that Congress has given its consent to taxation of such land‑-a consent which is effective through all changes of ownership until tax immunity is again conferred pursuant to some other federal statute;e.g., where the land is taken back into trust or restricted status.
Let us next expand upon the foregoing analysis. As noted earlier, during the late 19th and early 20th centuries, the federal government pursued an "assimilationist" policy. The means chosen to accomplish this policy included the allotment of tribal land to individual Indians and the "opening up" of Indian reservations for settlement by non-Indians. See,Collins,Implied Limitations on the Jurisdiction of Indian Tribes, 54 Wash. Law Review 479, 500-501, 506-507 (1979). The General Allotment Act of 1887,supra, and related acts provided that individual Indian allotments were to be held in trust by the United States for a period of twenty-five (25) years, after which the allottee would receive a patent in fee and could alienate the land. The land would thereupon become subject to taxation, and the Indian allottee would himself become subject to the full range of state law. SeeGoudy v. Meath, 203 U.S. 146, 51 L.Ed. 130, 27 S.Ct. 48 (1906).
[[Orig. Op. Page 11]]
Then, in 1906 Congress amended § 6 of the General Allotment Act to permit, in certain circumstances, issuance of fee patents to allottees prior to the expiration of a twenty-five (25) year trust period:
". . . and thereafter all restrictions as to sale, incumbrance or taxation of said land shall be removed and said land shall not be liable to the satisfaction of any debt contracted prior to the issuing of such patent. . . ." Act of May 8, 1906, PL 149, 34 Stat. 182 (currently codified at 25 U.S.C. § 349).
Similarly, where reservation land has been allotted on a reservation-by-reservation basis, the specific statutes authorizing such allotments frequently provide that the allotted lands lose their tax exempt status upon conveyance to the allottee in fee simple. For example, see the Act of July 1, 1892 (27 Stat. 62), authorizing allotments on the north half of the Colville Indian Reservation, which provides:
". . . That such allotted lands shall be subject to the laws of eminent domain of the State of Washington, and shall, when conveyed in fee simple to the allottees or their heirs, be subject to taxation as other property in said State."6/
Thus, in sum, reservation "fee patent" lands in Indian ownership typically attained that status pursuant to congressional statutes which authorized taxation of such lands. In many cases these lands were sold to non-Indians, thus continuing to be subject to state taxation. But once tax immunity is removed pursuant to statutes of this type, the "fee land" remains subject to taxation until the immunity is conferred again pursuant to some other federal statute. Thus, if such a parcel is sold to a non-Indian and then is subsequently acquired by an Indian that parcel does not then, without more, become tax exempt again. Simply stated, it would be illogical to conclude that Congress intended "fee patent" land acquired by an Indian from a non-Indian to be exempt from taxation while a neighboring parcel of land held in "fee patent" Indian ownership in an unbroken chain of title since the issuance of the initial patent to an Indian allottee would be subject to taxation.
[[Orig. Op. Page 12]]
We recognize that the assimilationist policy embodied in the early statutes has since been abandoned by Congress through adoption of the Indian Reorganization Act (IRA) of 1934, 48 Stat. 984 (codified as 25 U.S.C. §§ 461,et seq.). Mattz v. Arnett, 412 U.S. 481, 37 L.Ed.2d 92, 93 S.Ct. 2245 (1973). Specifically, in § 1 of the Act (25 U.S.C. § 461) the allotment process was brought to a halt for reservation lands, and in § 2 (25 U.S.C. § 462) all existing restrictions on alienation were indefinitely extended. But the effect of these provisions was simply to "preserve the status quo," and thus prevent any more parcels of land from coming into fee patent, taxable, status. They did not, however,by themselves reinstate the tax immunity previously lost in accordance with the terms of earlier statutes embodying the assimilationist policy.
We emphasizeby themselves, however, because other parts of the 1934 IRA do set forth a procedure for reinstating that immunity through reacquisition of land in a trust or restricted status. See, 25 U.S.C. § 465. Additionally, numerous special statutes govern reacquisition of land on a reservation-by-reservation basis. These statutes specify in what circumstances land so acquired shall be taxable or nontaxable, as the case may be. For example, the land reacquisition program on the Spokane Indian Reservation is set forth in 25 U.S.C. § 487, subsection (c) of which provides:
"Title to lands, or any interests therein, acquired pursuant to this section for the Spokane Tribe or individual enrolled members thereof, shall be taken in the name of the United States of America in trust for the tribe or individual Indian,and shall be nontaxable as other tribal and allotted Indian trust lands of the Spokane Reservations." (Emphasis supplied)
On the other hand, the land reacquisition law applicable to the Yakima Reservation provides:
"In all cases in which the Secretary is acquiring for the Yakima Tribes lands or interests in lands presently held in trust or under restrictions for the benefit of an individual Indian, title shall be taken in the name of the United States in trust for the Yakima Tribes. In all cases in [[Orig. Op. Page 13]] which land being purchased is presently held by the grantor in fee simple, title shall be taken for and held by the Yakima Tribes in feeand such land shall not, by reason of its being owned by the tribes, be exempt from taxation in accordance with the laws of the State of Washington." 25 U.S.C. § 608(c) (Emphasis supplied)
Finally, a third pattern is found in the land acquisition program of the Swinomish Tribe, the relevant statutory provision reading:
"Title to any land acquired pursuant to sections 610-610e of this title shall be taken in the name of the United States in trust for the Swinomish Indian Tribal Communityand shall be nontaxable if the land is within the boundaries of the Swinomish Indian Reservation, and title shall be taken in the name of the Community subject to no restrictions on alienation,taxation, management, or use if the land is outside such boundaries." 25 U.S.C. § 610(b) (Emphasis supplied)
Thus, it will be seen that Congress itself recognizes that the IRA did not automatically confer a tax exempt status upon "fee patent" land owned by an Indian or Indian tribe within the boundaries of an Indian reservation. Additionally, as the above statutes show, Congress has adopted a policy of consenting to taxation of "fee patent" land acquired by tribes and individual Indians on a reservation-by-reservation basis.
In summary, we therefore must advise you that the taxability of fee patent reservation lands owned by a tribe or an individual Indian can only be determined on a parcel-by-parcel basis. And, because Congress, in implementing various reacquisition programs, has chosen to proceed on a reservation-by-reservation basis insofar as taxability of such lands is concerned, no general rule can be stated which will apply to all Indian reservations.
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This concludes our consideration of your questions. We trust that the foregoing will be of some assistance to you.
Very truly yours,
TIMOTHY R. MALONE
Assistant Attorney General
MATTHEW J. COYLE
Assistant Attorney General
*** FOOTNOTES ***
1/We will hereinafter use the phrase "reservation Indian" to describe such a tribal member.
2/Conceivably, however, that the fact that the property is situated on an Indian reservation could constitute a basis for exemption under some specific federal statutory provision even where owned by a non-Indian. See,e.g., 25 U.S.C. §§ 261-264 and Warren Trading Post v. Arizona Tax Commission, 380 U.S. 685, 14 L.Ed.2d 165, 85 S.Ct. 1242 (1965) regarding a non-Indian trader licensed and regulated by the Bureau of Indian Affairs.
3/The Salish and Kootenai Tribes were deemed by the Court to be a single tribe, occupying a single reservation, the Flathead.
4/See, State of Washington, et al. v. Confederated Bands and Tribes of the Yakima Indian Nation, . . . . U.S. . . . . , 58 L.Ed.2d 740, 99 S.Ct. . . . . (1979), for an explanation of Washington's system for implementing PL 83-280, as found in chapter 37.12 RCW.
5/This result, however, obtains only to the extent that the land, or any interest therein, is held by an Indian. Where a non-Indian has a fractional interest in the land (e.g., a tenant in common with an Indian) the non-Indian's interest is subject to ad valorem taxation. Bailess v. Paukune, 344 U.S. 171, 97 L.Ed. 197, 73 S.Ct. 198 (1952).
6/The above‑cited statutes are discussed and applied in 50 I.D. 691 (1924). See, also,Sweet v. Schock, 245 U.S. 192, 62 L.Ed. 237, 38 S.Ct. 101 (1917); andGoudy v. Meath