TAXATION ‑- PERSONAL PROPERTY LOCATED ON INDIAN LANDS ‑- PERSONAL PROPERTY OF COMMUNITY COMPOSED OF INDIAN WOMAN AND WHITE MAN ‑- LAND WITHIN COLVILLE INDIAN RESERVATION OWNED BY NON-INDIANS ‑- PERMAN

TAXATION ‑- PERSONAL PROPERTY LOCATED ON INDIAN LANDS ‑- PERSONAL PROPERTY OF COMMUNITY COMPOSED OF INDIAN WOMAN AND WHITE MAN ‑- LAND WITHIN COLVILLE INDIAN RESERVATION OWNED BY NON-INDIANS ‑- PERMANENT IMPROVEMENTS ON INDIAN LANDS

(1) Personal property (farm machinery) is subject to property taxation where an Indian resides within the Colville Indian Reservation and cultivates land on an allotment for which he holds a fee patent.

(2) Personal property (farm machinery) of an Indian is subject to property taxation where such Indian resides on an allotment for which a trust patent was issued, regardless of whether such land is located inside or outside the boundaries of the Colville Indian Reservation.

(3) In the case of intermarriage between an Indian woman and a white man, nonissue personal property acquired by the parties after marriage is subject to property taxation, even though such personalty is sued upon trust patent land.  Issue property acquired by the Indian prior to marriage, which is subsequently identifiable, and that acquired by the Indian after marriage which has not lost its identity as issue property, is not subject to property taxation.

(4) Land located within the Colville Indian Reservation which is owned by nonIndians is subject to property taxation.

(5)  Permanent improvements upon land being held by Indians under trust patents are not subject to property taxation as personalty.

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                                                                    July 24, 1953

Honorable E. C. Huntley
Chairman
Tax Commission of the State of Washington
Insurance Building
Olympia, Washington                                                                                                              Cite as:  AGO 53-55 No. 101

Dear Sir:

            We acknowledge receipt of your letter dated June 25, 1953, wherein you request our opinion upon certain questions dealing with the taxability of personal property belonging to Indians.  Your questions are as follows:

             [[Orig. Op. Page 2]]

            (1) Is personal property (farm machinery) of an Indian subject to property taxation where he resides within the Colville Indian Reservation and cultivates land on an allotment for which he holds a fee patent and where the machinery is free of any lien in favor of the United States?

            (2) Is personal property (farm machinery) of an Indian subject to property taxation where he resides on an allotment for which a trust patent was issued and where such machinery has been purchased with funds originating from wages and other sources?

            (3) In the case of marriage between an Indian woman and a white man, is the personal property acquired after such marriage and the personal property belonging to such Indian prior to marriage subject to property taxation?

            (4) Is land located within the Colville Indian Reservation which is owned by non-Indians subject to property taxation?

            (5) Are permanent improvements upon land located within the Colville Indian Reservation, said land being held by Indians under trust patents, subject to ad valorem taxation as personal property?

            We conclude that the first four questions set forth above should be answered in the affirmative; the fifth question is answered in the negative.

                                                                     ANALYSIS

            I.WHERE A FEE PATENT HAS BEEN ISSUED TO INDIAN.

            The General Allotment Act of 1887 (24 Stat. 388), as amended by the Act of May 8, 1906 (34 Stat. 182), provides in part as follows:

            "That at the expiration of the trust period and when the lands have been conveyed to the Indians by patent in fee, * * * then each and every allottee shall have the benefit of and be subject to the laws, both civil and  [[Orig. Op. Page 3]]criminal, of the State or Territory in which they may reside; * * *Provided, That the Secretary of the Interior may, in his discretion, and he is hereby authorized, whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs in any time to cause to be issued to such allottee a patent in fee simple, and thereafter all restrictions as to sale, incumbrance, or taxation of said land shall be removed * * *."  (Emphasis supplied)

            In this particular instance the government has issued a fee patent to the Indian.  The Indian now has unrestricted title to the land in question and is a citizen of the United States and the state in which he resides.  Where an Indian by statute, becomes a citizen of the United States, and such statute makes him "subject to the laws * * * of the State or Territory in which they may reside," his property is taxable unless otherwise provided by legislation.  Goudy v. Meath, 203 U.S. 146, 38 Wash. 126 (1905).

            And Article XXVI, Section 2 of our State Constitution, which provisions were taken from the Enabling Act of February 22, 1889 (25 Stat. 676), under which the State of Washington was admitted to the Union, provides in part as follows:

            "* * * That nothing in this ordinance shall preclude the state from taxing as other lands are taxed any lands owned or held by any Indian who has severed his tribal relations, and has obtained from the United States or from any person a title thereto by patent or other grant, * * *."

            It follows, therefore, that the issuance of a fee patent to an Indian subjects him to state taxation.  See 15 Minn. L. Rev. 200.  The issuance of a fee patent operates by implication to emancipate an Indian from federal guardianship and jurisdiction.  Dickson v. Luck Land Company, 242 U.S. 371 (1917).  In this connection it has been held that personal property belonging to Indians who have been issued a fee patent is subject to property taxation.  Keokuk v. Ulam, 4 Okla. 5, 38 Pac. 1080 (1894); 42 C.J.S. Indians, § 88.  The conclusion that fee patent allottees are amenable to state tax laws applies to those Indians residing within the Colville Reservation as well as those outside the boundaries of the Reservation.  SeePeople v. Pratt, 26 Cal. App. (2d) 618, 80 P. (2d) 87, (1938).

             [[Orig. Op. Page 4]]

            II.WHERE INDIAN RESIDES ON TRUST PATENT LAND.

            It is well established that land held by Indians in severalty under the General Allotment Act of 1887,supra, is not subject to state ad valorem taxation.  United States v. Rickert, 188 U.S. 432 (1903).  The court in the last cited case also held that personal property issued by the United States to the Indians residing on trust patent land and used by them on their allotments was not subject to assessment and taxation by the state.  And inUnited States v. Pearson, 231 Fed. 270 (D.C. S. Dak. 1916), the immunity from state taxation of property issued to the Indians was extended to the increase of issue property.  On the other hand, personalty issued to an Indian and used by him outside the reservation is taxable by the state.  United States v. Porter, 22 F. (2d) 365 (C.C.A. 9, 1927).  Personal property owned by non-Indians which is held on an Indian Reservation is subject to state ad valorem taxation.  Thomas v. Gay, 169 U.S. 264 (1898); Wagoner v. Evans, 170 U.S. 588 (1898).

            The question, however, of the right of a state to tax nonissue personal property of Indians residing on trust patent land where it is not directly traceable to issue property is unsettled.  This proposition was considered in this state in an opinion of the attorney general dated July 1, 1953, directed to the prosecuting attorney of Okanogan County.  The writer of that opinion concluded that such personal property was taxable.  In order to amplify our earlier ruling with respect to this question, we are setting forth herein additional reasons for holding such property taxable.

            The United States Constitution makes but few references to Indians.  The 14th Amendment, Section 2, provides for the appointment of representatives among the states according to numbers "excluding Indians not taxed;" and Art. I, Section 8, Par. 3, gives Congress power "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes."  Our State Constitution in Article XXVI, Section 2 exempts Indian lands from taxation where title thereto is in the United States.  Also, Article VI, Section 1, as amended by the second and fifth amendments, provides "that Indians not taxed shall never be allowed the elective franchise; * * *."  The power of the Federal Government, however, to govern and protect the Indians has been amplified by the United States Supreme Court.  A leading case announcing the general policy of the government toward the Indians isUnited States v. Kagama, 118 U.S. 375 (1886).  The court in defining the relationship between the Federal Government and the Indians, stated at page 383:

             [[Orig. Op. Page 5]]

            "* * * These Indian tribes are wards of the Nation.  They are communitiesdependent on the United States; dependent largely for their daily food; dependent for their political rights.  They owe no allegiance to the States, and receive from them no protection.  * * *  From their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power.  This has always been recognized by the Executive and by Congress, and by this court, whenever the question has arisen."

            It is true that in early times the status of the Indians justified a Federal plan to provide for their welfare in every respect.  The policy of the United States with reference to the Indians was such as to intimately control their conduct with respect to their person and property.  The ultimate goal, however, was to provide for the assimilation of the Indians into society.  The policy of Congress has been to encourage the Indians to abandon their tribal relation and to adopt the customs, habits, and manners of civilized life.  One important step in this direction was the passage by Congress in 1887 of the General Allotment Act,supra.  As the court stated at page 290 in Tiger v. Western Investment Co., 221 U.S. 286 (1911):

            "The breaking up of tribal interests in the lands and their allotment in severalty, ushered in a new policy in dealing with the Indian.  This new policy sought to localize and individualize the Indian.  * * *"

            This policy of transition by the federal government has continued unabated to the present day.  For example, the General Allotment Act, supra, was amended May 8, 1906 (34 Stat. 182), to provide for the issuance of patents in fee simple whenever the Secretary of the Interior was satisfied that any Indian allottee was competent and capable of managing his or her affairs, thereby emancipating the Indian for most purposes and conferring citizenship upon him.  Again, the Citizenship Act of 1924 (43 Stat. 253), conferred citizenship upon those Indians who had not acquired citizenship by marriage to white men, by military service, by receipt of allotments, or through special treaties or through special statutes.

             [[Orig. Op. Page 6]]

            As the result of the change that has taken place during the past three‑quarters of a century in the conditions under which Indians live, they are in most respects wards of the government in name only.  Boundaries of Indian Reservations are, for most purposes, obliterated.  Indians and non-Indians live side‑by-side on reservations.  The Indians have been provided with the right to take a portion of that reservation in severalty, and to become, in time, the owner of the land in fee simple.  They have become citizens of the United States and of the state in which they reside.  They no longer depend upon the support of their tribe for the preservation of their rights of person and property.  They are now surrounded with the protections of the law provided for by the state.  Their children often attend our public schools.  They vote in our elections.  When roads and bridges are built, they are for their use.  They may look to our courts for the redress of any wrongs which may be inflicted against them.  They may sue and be sued in our state courts.  If the personal property which the state here seeks to tax should be stolen, the Indians may apply to the legally constituted authorities for its recovery, and for the punishment of the offender.

            Since the Indians residing on trust patents, whether within or without Indian Reservations proper, have most of the rights of other citizens, it is only fair that they should also have corresponding duties.  They must not throw all of the burden of paying for these benefits upon their fellow citizens.  In upholding the right of Oklahoma to tax estates of deceased Indians, the Supreme Court inOklahoma Tax Commission v. United States, 319 U.S. 598 (1943), brought into focus the foregoing principle, when at page 610 it states:

            "Recognizing that equality of privilege and equality of obligation should be inseparable associates, we have recently swept away many of the means of tax favoritism.  Graves v. New York ex rel. O'Keefe, 306 U.S. 466, * * * permitted States to impose income taxes upon government employees andHelvering v. Gerhardt, 304 U.S. 405, * * * permitted the federal government to impose taxes on state employees.  O'Malley v. Woodrough, 307 U.S. 277, * * * overruled a previous decision which held that judges should not pay taxes just as other citizens, andHelvering v. Mountain Producers Corp., supra, repudiated former decisions seriously limiting state and federal power to tax.  See also Metcalf & Eddy v. Mitchell, 269 U.S. 514, * * * andJames v. Dravo Contracting Co., 302 U.S. 134.  * * * The trend of these cases should not now be reversed."

             [[Orig. Op. Page 7]]

            And with reference to tax exemptions, the court at page 606, et seq., had this to say:

            "This Court has repeatedly said that tax exemptions are not granted by implication.  United States Trust Co. v. Helvering, 307 U.S. 57, 60, * * * It has applied that rule to taxing acts affecting Indians as to all others.  * * * If Congress intends to prevent the State of Oklahoma from levying a general non-discriminatory estate tax applying alike to all its citizens, it should say so in plain words.  * * *"

            Congress has not declared that the personal property here sought to be taxes shall be exempt.

            It should be recognized in this connection that the successful operation of our federal system can be accomplished only if the states have reasonable latitude in providing for the collection of revenue from those who are indebted to the state for a measure of protection.  The decisions of the Supreme Court of the United States indicate an increasing disinclination to strike down tax laws of the states merely on the basis of implied constitutional restrictions.  Illustrative of this tendency are such cases as Oklahoma Tax Commission v. United States, supra; Helvering v. Producers Corp., 303 U.S. 376 (1937) and Oklahoma Tax Commission v. Texas Company, 336 U.S. 342 (1949), the latter two cases overruling earlier decisions of the court.  These decisions, we think, are illustrative of a general policy of noninterference with the effort of the states to collect taxes from sources within their boundaries.

            In view of the compelling considerations discussed above and not being unmindful of the arguments to the contrary, it is our conclusion that the personal property in question is subject to taxation.

            The above reasoning applies with even greater force to Indians who reside upon trust patents in what was formerly known as the north half of the Colville Indian Reservation.  The Colville Reservation was first set apart by Executive Order on July 2, 1872 (Indian Affairs ‑ Laws and Treaties, Vol. 1, p. 916 (1902)).  By the Act of July 1, 1892 (27 Stat. 62), a specified portion of the reservation was "vacated and restored to the public domain."  Certain exceptions, however, were made by Congress in order to care for the Indians residing on that portion of the reservation.

             [[Orig. Op. Page 8]]

            It has been judicially determined that these Indian allotments in severalty in "open reservations" are considered Indian Reservations as long as the United States retains an interest in them for the purpose of its guardianship over the Indians.  United States v. Pelican, 232 U.S. 442 (1914); 39 Yale Law Journal 308.  There is no substantial distinction between Indians residing on trust patent land in these "spot reservations" and non-Indians and wholly emancipated Indians residing in the same area.  Washington supplies for these Indians and their children schools, roads, courts, police protection and all the other benefits of an ordered society.  The personal property of these Indians is likewise taxable.

            III.WHERE INDIAN WOMAN MARRIES WHITE MAN AND THEY RESIDE ON TRUST PATENT LAND.

            The principles set forth in II above apply with equal force to issue property received by an Indian woman from the federal government, it being her separate property and her white husband having no interest therein.  See 25 U.S.C.A. §§ 181, 182.  However, personal property acquired by the parties subsequent to their marriage which is nonissue property and which is not directly traceable to issue property is subject to taxation by the state.  Such property is taxable if it is used on trust patent land.  The reasoning outlined in II above applies to this question.

            Of course, as pointed out above, if such issue property is situated on fee patent land or on private land outside of the reservation, it is subject to taxation.

            IV.WHERE LAND IS OWNED BY A NON-INDIAN

            It appears that there are a considerable number of non-Indians who own land located within the Colville Indian Reservation and in some instances questions have arisen with respect to the taxation of these lands by the county.

            In order to cast all doubt aside, we merely point out that these lands and the personalty thereon are subject to property taxation.  The fact that this land is located within an Indian Reservation does not affect its status relative to taxability.  There is no constitutional provision, statute, or court decision exempting such property in private ownership from taxation, and RCW 84.40.010 provides that

            "All property now existing, or that is hereafter created or brought into this state, shall be subject to assessment and taxation for state, county, and other taxing district purposes, * * *."  (Emphasis supplied)

             [[Orig. Op. Page 9]]

            V.PERMANENT IMPROVEMENTS LOCATED ON TRUST PATENT LAND.

            RCW 84.04.080 provides in part, that:

            "'Personal property' includes, but without limitation, * * * all improvements upon lands the fee of which is still vested in the United States, or in the state; * * *."

            Under the General Allotment Act of 1887, supra, these allotments in severalty are held in trust by the government for the Indians.  Legal title is in the United States.  SeeUnited States v. Rickert, supra.  Our statute quoted above would indicate that the improvements on these trust patent lands are considered to be personalty for tax purposes.  This precise question was before the Supreme Court in the Rickert case, supra.  In construing a similar South Dakota statute the court clearly pointed out the futility of exempting the lands and not the improvements thereon, when at page 442 it stated:

            "Looking at the object to be accomplished by allotting Indian lands in severalty, it is evident Congress expected that the lands so allotted would be improved and cultivated by the allottee.  But that object would be defeated if the improvements could be assessed and sold for taxes.  The improvements to which the question refers were of a permanent kind.  While the title to the land remained in the United States, the permanent improvements could no more be sold for local taxes than could the land to which they belonged.  Every reason that can be urged to show that the land was not subject to local taxation applies to the assessment and taxation of the permanent improvements.

            "* * * The fact remains that the improvements here in question are essentially a part of the lands, and their use by the Indians is necessary to effectuate the policy of the United States."

             [[Orig. Op. Page 10]]

            We conclude, therefore, that these permanent improvements are not subject to property taxation.

Very truly yours,

DON EASTVOLD
Attorney General

CARL L. LOY
Assistant Attorney General