Lummi Indian Tribe v. Whatcom County, Washington Barbara Cory, Treasurer of Whatcom County

The Lummi Indian Tribe appeals from summary judgment denying it declaratory and injunctive relief from the assessment and collection of Washington’s ad valorem property tax. The Tribe contends that its fee-patented reservation land is exempt from taxation because it was allotted to the Tribe únder the Treaty of Point'Elliott rather than the General Allotment Act, which permits such taxation. We disagree that reservation land should be treated differently because it was patented under a treaty. We affirm.

I

The Lummi Indian Reservation was created in 1855 by the Treaty of Point Elliott, a compact between the United States and numerous tribes and bands of Indians in northern Puget Sound. Under the terms of the Treaty, the Lummi ceded all rights to a significant section of Western Washington, in return for exclusive use of reservation lands. The Treaty also authorized the subdivision of the Reservation into parcels, which could be assigned or allotted to individuals or families.

In 1884, the government carried out the treaty terms, dividing 10,500 acres of the Reservation into 72 assignments or allotments and issuing fee patents, subject to restrictions on alienation and exempt…

dissenting:

In Oklahoma Tax Comm’n v. Sac & Fox Nation, — U.S. ——, —, 113 S.Ct. 1985, 1993 , 124 L.Ed.2d 30 (1993), Justice O’Connor, writing for a unanimous court, stated:

While Sac & Fox Nation focused on income and motor vehicle taxes, its broad, strong language reiterates our duty to find explicit congressional permission whenever we allow state taxation. The opinion filed today concludes that County of Yakima v. Yakima Indian Nation, — U.S. —, 112 S.Ct. 683 , 116 L.Ed.2d 687 (1992) holds that if the Lummi land is alienable, it is taxable. I believe this analysis is incomplete.

As a threshold matter, certain canons of construction apply in the area of federal Indian law. The Supreme Court has stated:

Yakima Indian Nation , — U.S. at —, 112 S.Ct. at 689 (emphasis added).

*1360 The crux of the analysis in the opinion filed today can be succinctly stated in three steps. First, a state cannot tax reservation lands unless Congress has made this intention unmistakably clear. Second, Yakima Indian Nation found such clarity in the General Allotment Act (“GAA”) sections on alienability. Third, Yakima Indian Nation holds that where Congress provides that Indian lands are alienable,…

5 F.3d 1355 62 USLW 2225 LUMMI INDIAN TRIBE, Plaintiff-Appellant, v. WHATCOM COUNTY, WASHINGTON; Barbara Cory, Treasurer of Whatcom County, Defendants-Appellees. No. 91-35622. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 20, 1992. Submission Withdrawn May 3, 1993. Resubmitted Sept. 24, 1993. Decided Oct. 1, 1993. As Amended on Denial of Rehearing and Suggestion for Rehearing En Banc Dec. 23, 1993. Harry L. Johnsen, Office of the Reservation Atty., Lummi Indian Tribe, Bellingham, WA, for plaintiff-appellant. Robert A. Carmichael, Sp. Deputy Pros. Atty., Bellingham, WA, for defendants-appellees. Before: WRIGHT, BEEZER, and LEAVY, Circuit Judges. EUGENE A. WRIGHT, Circuit Judge: 1 The Lummi Indian Tribe appeals from summary judgment denying it declaratory and injunctive relief from the assessment and collection of Washington's ad valorem property tax. The Tribe contends that its fee-patented reservation land is exempt from taxation because it was allotted to the Tribe under the Treaty of Point Elliott rather than the General Allotment Act, which permits such taxation. We disagree that reservation land should be treated differently because it was patented…