Once a reservation had been allotted, and all family heads had received their 160-acre trust patent (eighty acres to single persons over eighteen and adult orphans, and forty acres to those under eighteen years old), the title to the allotment was to be held in trust for twenty-five years by the government and could not be sold by the Indians. This would be ample time, it was thought, to allow the allottees to adjust to a new lifestyle and be able to manage their own affairs without federal oversight. After the end of the twenty-five-year period, the restrictive trust patent would be lifted and replaced with a fee patent—an ownership deed allowing individual Indians to do whatever they wanted with their lands.203
The ultimate goal of the allotment policy was the cultural extinction of tribalism, with the individualized Indians joining the broader American citizenry as self-supporting citizens. These detribalized individuals, even before receiving their fee patent title, were to “have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they reside . . .” since federal citizenship accompanied their trust allotment. As we saw in the discussion of the Nice case, the issue of Indian citizenship was widely debated, notwithstanding the clear language of the 1887 law. It was not until the Supreme Court decided Matter of Heff in 1905 that the question was, at least temporarily, put to rest. In this case, the Court forcefully held that Indian allottees became American citizens instantly as soon as they accepted their land allotment. In other words, they were enfranchised from the beginning of the twenty-five-year trust period, not at the end of that period.
Congress and the Bureau of Indian Affairs, however, were infuriated at the Heff decision, though it seemed to support what they themselves had been advocating since the 1880s—namely, the assimilation of Indians. A year later Congress responded by enacting the Burke Act, introduced by South Dakota Representative Charles Burke.204 This amendment to the Allotment Act effectively postponed the bestowal of either federal or state citizenship until the end of the twenty-five-year trust period. In addition, it gave the secretary of the interior the authority to prematurely issue fee patents to “competent” allottees when the secretary determined that they were capable of “managing their own affairs.” So-called competent Indians were effectively on their own and were immediately subject to the full array of state laws and regulations. The remaining and derisively labeled “non-competent” Indians were to remain under federal tutelage for the duration of the trust period.
In April 1917, hastening the issuance of fee patents to satisfy both Euro-American land hunger and as a last gasp to “speed up” the Indian assimilative process, Commissioner of Indian Affairs Cato Sells issued his “Declaration of Policy.” Sells proclaimed that “[b]roadly speaking, a policy of greater liberalism will henceforth prevail in Indian administration to the end that every Indian, as soon as he has been determined to be as competent to transact his own business as the average white man, shall be given full control of his property and have all his lands and money turned over to him, after which he will no longer be a ward of the Government.”205
This policy was steeped in the popular eugenics paradigm of the day. Sells indicated as much when he declared:
While ethnologically a preponderance of white blood has not heretofore been a criterion of competency, nor even now is it always a safe standard, it is almost an axiom that an Indian who has a larger proportion of white blood than Indian partakes more of the characteristics of the former than of the latter. In thought and action, so far as the business world is concerned, he approximates more closely to the white blood ancestry.206
In short, Indians with one-half or more white blood were to be “released” from federal supervision with or without Indian consent. Legally, they were no longer recognized as Indians to whom the United States had a trust responsibility. State tax departments, non-Indian land speculators, and other interested parties prepared for a feeding frenzy as the lands of such newly declared “competent” Indians became purchasable and taxable.
As the new policy was implemented, Congress harangued the Bureau of Indian Affairs, arguing that the commissioner of Indian affairs was not issuing fee patents quickly enough. The tribes complained of just the reverse. For example, Indians on the Yakima as well as Umatilla and Flathead reservations “refused to accept fee patents issued under the declaration of policy because they believed the government had no right to issue such patents unless they applied for them.”207
Such opposition culminated in the congressional law of February 26, 1927,208 in which the secretary of the interior was authorized to cancel any fee patents which had been issued to individual Indians without their consent, provided the allottee had not already mortgaged or sold any part of the allotment. The remaining land would revert to its preexisting trust and, by extension, non-taxable status. “Therefore,” said Felix S. Cohen, “it would appear that the allottees under the General Allotment Act obtained a vested right to tax exemption which cannot be taken . . . without [their] consent.”209 However, if an allottee voluntarily applied for a fee patent and was properly accorded one, “there seems no reason to believe that his lands would not thereby become subject to state taxation.”210
The General Allotment Act was formally repudiated on June 18, 1934, with the passage of the Indian Reorganization Act (IRA).211 Section I of the IRA said that “hereafter no land of any Indian reservation, created or set apart by treaty or agreement with the Indians, Act of Congress, Executive order, purchase, or otherwise, shall be allotted in severalty to any Indian.” The IRA effectively stopped the action of allotting tribal lands and indefinitely extended the trust period of previously allotted lands. The trust periods were specifically extended on the Yakima reservation by executive orders numbered 3630, 4168, 5746, and 7036.212
The damage caused by the allotment policy throughout Indian Country was grossly evident, however. Collectively, tribal lands had been reduced from 138 million acres in 1887 to 52 million acres in 1934. This 86-million-acre loss had transpired in four ways—“38 million acres of surplus land ceded after allotment, 22 million acres of surplus land opened to white settlement, 23 million acres of fee patented land loss, and 3.4 million acres of original and heirship allotments sold.”213 Yakima, along with the Colville Reservation in Washington, the Fort Bert-hold in North Dakota, the Klamath in Oregon, and the Rosebud in South Dakota, experienced the most allotments of any reservations around the turn of the century.214
THE YAKIMA RESERVATION TODAY
The Yakima Reservation had approximately 7,600 enrolled members in 1992. Of the 1.3 million acres within the reservation, 1.04 million (eighty percent) are held in trust by the United States. A majority of this acreage is unallotted timber and range land. The remaining twenty percent, 260,000 acres, is owned in fee-simple by Indians and non-Indians. Less than one percent of the fee land is owned by the tribe or its members.215
The Yakima Reservation is divided into a restricted or “closed” area and an “open” area. The “restricted” area comprises some 807,000 acres of mostly forest and range lands. Permanent structures are prohibited in this area. Most Yakima live in the “open” area, mostly on trust land. This acreage is predominately agricultural and is irrigable. The “open” area has four small towns—Toppenish, Wapato, Harrah, and White Swan.216 In addition, 104 members of the Yakima Nation own 139 fee land parcels. These are generally home sites and average about ten acres each. Thirty-seven of these Indian-owned parcels, held by thirty-one Yakima families, were the point of contention in this case.
PROCEDURAL HISTORY: THE MASKING BEGINS
According to county records, Yakima County has “routinely levied and collected ad valorem taxes” on the fee-patented parcels “for some time.”217 But there was an important difference of opinion and confusion of fact on how long tribal members had been paying these taxes. The county contended that the tribe’s members had been paying taxes on the fee lands for “decades.”218
The Yakima’s attorney main
tained, to the contrary, that the Indians’ “land ownership and fee . . . had developed to an appreciable degree in recent times.”219 This important discrepancy was apparently left unresolved because of the 1988 Federal District Court’s granting of summary judgment in favor of the tribe. A summary judgment meant that no information or data were presented to the court as to when members of the tribe began to secure fee title to the lands in question.
Although this critical issue was not factually determined at the district court level, both the Court of Appeals and the Supreme Court accepted the county’s version of the taxation history of the Yakima. However, the information presented earlier—from the 1927 law which authorized the secretary of the interior to cancel any fee patents which had been issued without Indian consent, to the 1934 IRA—would tend to support the county’s view only insofar as it was lawfully entitled to tax the fee lands of non-Indians in the area.
In 1987, Yakima County instituted foreclosure proceedings on properties throughout the county to which ad valorem220 and excise taxes221 were past due. This included the parcels owned by thirty-one Yakima families who were unable or unwilling to pay the county taxes. In November of that year, the Yakima Nation’s government, on its own behalf as a landowner of some of the parcels and on behalf of its members, filed an action in the Federal District Court for the Eastern District of Washington to prevent the county from imposing or collecting taxes.
The tribe sought a declaratory judgment and injunctive relief, asserting that the county’s imposition and collection of property taxes and efforts to sell the foreclosed land at a tax sale violated federal law. District Judge Allan McDonald began, appropriately enough, with the United States Commerce Clause which, he said, “cloaks the Federal Government” with exclusive authority over Indian matters. And citing the Supreme Court’s well-known precedents—Warren Trading Post, McClanahan, Moe v. Salish, and Montana v. Blackfeet—he noted that the case law generally affirmed that tribes and their members were exempt from state taxation within the exterior boundaries of their reservations.
Judge McDonald did acknowledge that section 6 of the General Allotment Act authorized the state to tax allotted lands after fee patents had been issued. However, he unequivocally stated that the policy was inconsistent with the subsequent IRA of 1934 “which was designed to rehabilitate the tribes by ending allotment and indefinitely extending the federal trust protection over all Indian lands save for the exceptions noted earlier.” He added that “similarly, the Supreme Court has repeatedly found that Congress repudiated the policy of the General Allotment Act with the passage of the Indian Reorganization Act.” For support he cited Mattz v. Arnett222 and Moe v. Confederated Salish and Kootenai Tribes, which had been written by Justice Rehnquist two years earlier in 1976.223 In fact, McDonald asserted that, standing alone, Moe‘s reasoning was compelling enough to deny the state tax. In that case, Montana had also tried to rely on section 6 of the Allotment Act and an early Supreme Court case, Goudy v. Meath, to justify taxing Indians who had accepted lands in fee simple. Justice Rehnquist, however, had stated for the unanimous Moe Court, that Montana’s reliance on Goudy, and the fact that the General Allotment Act had never been expressly “repealed,” were “untenable” arguments. Basically, the Moe court was concerned that the “checkerboard jurisdiction” which would result if Montana were found to have jurisdiction would significantly diminish the size of the Flathead reservation. Quoting from United States v. Mazurie224 in the Moe ruling, Rehnquist had said this was determined to be “contrary to the intent embodied in the existing federal statutory law of Indian jurisdiction.” In Moe, Rehnquist had also dismantled Montana’s argument that the General Allotment Act had never been repealed. Notwithstanding Goudy, said Rehnquist, “the State has referred us to no decisional authority—and we know of none—giving the meaning for what it contends to Section 6 of the General Allotment Act in the face of the many and complex intervening jurisdictional statutes directed at the reach of State law within reservation land. . . .”225 Rehnquist conclusively stated that “Congress by its more modern legislation has evinced a clear intent to eschew any such ‘checkerboard’ approach within an existing Indian reservation, and our cases have in turn followed Congress’ lead in this area.”226
McDonald drew heavily from, and was constrained by, Rehnquist’s precedential opinion in Moe. He was also abiding by congressional policy and Felix S. Cohen’s informed articulation of the federal Indian law. He awarded summary judgment for the tribe and its members and extended an injunction prohibiting the imposition or collection of the taxes on fee-patented lands of the Yakima Nation or Yakima individuals “who have not severed tribal relations, within the exterior boundaries of the Yakima Indian reservation.”227
Importantly, none of the Yakima involved had severed tribal affiliations, the one exception specified under the Washington Constitution that would have allowed the state or its agencies to tax Indians. Nor, apparently, had any individual Yakima voluntarily sought a fee patent, which, if granted by the secretary of the interior, would terminate the trust relationship between the Indians and the federal government. There was, in fact, no evidence that the individual Yakima or the tribe had sought to have the trust relationship terminated. The county’s attorney admitted as much in oral testimony before the Supreme Court on November 5, 1990. Jeffery Sullivan, Yakima County’s attorney, was asked by a justice: “Now, when did the trust period expire here? Do we know that?” Sullivan responded: “We don’t know that. The record in the stipulation would be that all of these lands were patented under title, under this Amendment 6 or Section 6 [of the General Allotment Act].” The justice again asked, “Well, were the patents issued during the trust period or after the trust period? And does the record tell us that?” Sullivan again had to admit: “The record does not tell us that. We submit that it makes no difference whether it was during the trust period or whether it was after the trust period.”228
It does make a difference, however. If there was no evidence that the trust relationship had expired or been terminated by either individual, tribal, or federal action, how could the county claim it had legitimate authority to tax Indians? This directly contradicts the basic tenet governing the trust relationship regarding Indian property located within a reservation, particularly since the 1934 IRA.
On appeal, while the 9th Circuit Court of Appeals agreed that the county’s excise tax was disallowed, it held that the ad valorem property tax was permissible. In the Court’s opinion, the property tax was not considered a “demonstrably serious” threat to the political, economic, or health integrity of the tribe despite the checkerboard jurisdiction which would result. The Court arrived at this conclusion—that the actual loss of land was somehow not a threat to a tribe’s integrity—by declaring that section 6 of the General Allotment Act had “not been superseded or otherwise rendered void by subsequent statutes.”229 Although openly acknowledging that the IRA “repudiated the allotment policy,” the Appeals Court said that notwithstanding this repudiation, section 6 still had “proper legal effect.”
The Court of Appeals in essence found that later law—the 1934 IRA and subsequent revolutionary changes in federal policy, from the assimilation of Indians during the period of 1890–1920 to cultural revitalization and land restoration in the 1930s, accompanied by the indefinite extension of trust status on Indian land—had not effectively recloaked Indian allottees’ lands with federal protection against state taxation efforts. The curious logic through which they had arrived at this conclusion defies understanding, but their decision constituted a hammering blow to the Yakima Nation, and especially to the Yakima allottees. The 9th Circuit Court remanded the case back to District Judge McDonald to determine in light of Brendale‘s “demonstrably serious” test, whether the county’s ad valorem tax posed such a threat. The Circuit Court did acknowledge that the Yakima Nation had already presented enough evidence showing that the county’s taxation scheme would indeed “affect it in a demonstrably ser
ious way”; however, it still insisted that the District Court had not made its decision based on this evidence. Judge McDonald, in essence, was being chided for failing to apply the Brendale test, which was developed two years after his decision! McDonald’s opinion reflected a clear understanding of exactly what the “effect” would be on the Yakima families if they were to lose their lands under foreclosure proceedings. Both Yakima County and the Yakima Nation filed for a rehearing at the 9th Circuit Court. This was rejected. The county then filed a writ of certiorari to the Supreme Court, fearing that the Yakima Nation would win on remand since it could easily meet the “demonstrably serious” test. The Yakima Nation filed a cross-petition with the High Court arguing that the district court’s judgment was correct and should be reinstated.
MASKING WITHIN THE DECISION: THE OPINION
Scalia and an eight-to-one230 majority, over the objections of the Yakima Nation and the United States as a supporting respondent, cross petitioner, and amicus curiae, affirmed the Court of Appeals ruling that the General Allotment Act did indeed permit a county to impose property taxes on fee-patented Indian lands. The majority, however, also affirmed that the county was disallowed from enforcing an excise tax on the sales of such lands.
In the seminal constitutional law decision McCulloch v. Maryland,231 John Marshall had delivered what would become one of his most famous lines: “The power to tax involves the power to destroy.” This evocative statement and the attendant arguments Marshall developed were sufficient to preclude the State of Maryland’s taxing an operation of the federal government which it had not created by its own constitution and over which it exercised no control. This theory is even more germane to the situation under discussion. The State of Washington’s power to tax could certainly lead to the “destruction” of the Yakima Nation since Indian/tribal sovereignty is based not on ideas, or material, or military power, but is rooted in the land that nurtures the people. Thus, an irrefutable argument can be made that to the extent a tribal nation loses land, to that degree it loses its very sovereignty and cultural identity.
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