                                   ___________

                                   No. 95-4263
                                   ___________

Leech Lake Band of Chippewa             *
Indians,                                *
                                        *
     Plaintiff/Appellant,               *
                                        *
           v.                           *
                                        *
Cass County, Minnesota; Sharon          *
K. Anderson, in her official            *
capacity as Cass County Auditor;        *
Marge L. Daniels, in her                *
official capacity as Cass County        *
Treasurer; Steve Kuha, in his           *
official capacity as Cass County        *
Assessor; James Demgen, in his          *
official capacity as Cass County        *
Commissioner; John Stranne, in          *   Appeal from the United States
his official capacity as Cass           *   District Court for the District
County Commissioner; Glen               *   of Minnesota
Witham, in his official capacity        *
as Cass County Commissioner;            *
Erwin Ostlund, in his official          *
capacity as Cass County                 *
Commissioner; Virgil Foster, in         *
his official capacity as Cass           *
County Commissioner,                    *
                                        *
     Defendants/Appellees.              *
                                        *
_______________________                 *
                                        *
                                        *
United States of America,               *
                                        *
     Amicus Curiae.                     *
                                        *
White Earth Band of Chippewa            *
Indians,                                *
                                        *
     Amicus Curiae.                     *
                                        *
Fond Du Lac Band of Chippewa            *
Indians,                                *
                                        *
     Amicus Curiae.                     *

                                   ___________

                      Submitted: October 23, 1996

                          Filed:    March 6, 1997
                                       ___________

Before MAGILL, BRIGHT, and MURPHY, Circuit Judges.
                               ___________


MURPHY, Circuit Judge.

        This   case   involves   the    tax    status   of   land   within   an   Indian
reservation which was once alienated from Indian ownership and subsequently
reacquired by the tribe in fee simple.             In 1993 Cass County, Minnesota
levied an ad valorem tax on such fee land owned by the Leech Lake Band of
Chippewa Indians.       The Band paid the taxes under protest and sought a
declaratory judgment that the land is immune from state taxation, an
injunction ending the taxation, and an order refunding the taxes already
paid.    Based on its interpretation of County of Yakima v. Confederated
Tribes and Bands of the Yakima Indian Nation, 502 U.S. 251 (1992), the
district court granted summary judgment for Cass County.             The Band appeals.
We affirm in part and reverse in part.


                                              I.
        The Leech Lake Band of Chippewa Indians is a federally recognized
Indian tribe, whose reservation is located in northern Minnesota.                    The
reservation was created by a series of treaties with the United States
government, beginning in 1855 and ending with an executive order in 1874.
See, e.g., Treaty with the Chippewas, Feb. 22, 1855, 10 Stat. 1165 (1855);
Leech Lake Band of Chippewa Indians v. Herbst, 334 F. Supp. 1001, 1002 (D.
Minn. 1971).    Although the pattern of land ownership within the reservation
has varied over the years, the reservation has never been disestablished
or diminished.    See Herbst, 334 F. Supp. at 1002 (D. Minn. 1971) (involving
hunting and fishing rights); State v. Forge, 262 N.W.2d 341, 343-44 (Minn.
1977) (same).
        The Band’s original reservation was impacted by changes in federal
Indian policy.        During the latter part of the nineteenth century, the
United States adopted an allotment policy in order to break up reservations
previously established by treaty.         This policy granted allotments of land
to individual tribal members and




                                          -2-
sold the often sizable remainder of reservation land to non-Indians.      See
Felix S. Cohen, Handbook of Federal Indian Law 127-38 (1982).      The purpose
of the policy was to open land to non-Indians and to assimilate the Indian
people into the broader American society.    Id. at 128.    The overall effect
was drastically to reduce the amount of land under Indian control.     Id. at
138.


        The legislative centerpiece of the allotment policy was the General
Allotment Act (GAA), ch. 119, 24 Stat. 338 (1887), (codified as amended in
scattered sections of 25 U.S.C.) (sometimes referred to as the Dawes Act).
Under the GAA, parcels of land to be granted to individual Indians were
initially held in trust by the United States.         Section 5 of the GAA
provided that after a twenty-five year trust period, the United States
would convey the land in fee simple to the individual allottee.1       During
the trust period the allottees were not permitted to convey the land.
Section 6 of the GAA provided that the allottees would be subject to state
civil and criminal law.


        In 1906 Congress amended the GAA by the Burke Act, ch. 2348, 34 Stat.
182 (1906).        The Burke Act amended § 6 of the GAA to make clear that
allottees would be subject to state law only after the expiration of the
trust period and issuance of a patent in fee simple.2      Yakima, 502 U.S. at


        1
      Section 5 of the GAA provides the actual authorization for
issuing fee patents to individual Indian allottees. Section 5 of
the GAA states, in part:
        [A]t the expiration of said [trust] period the United
        States will convey [the allotted lands] by patent to said
        Indian . . . in fee, discharged of said trust and free of
        all charge or incumbrance whatsoever. . . . And if any
        conveyance shall be made of the lands set apart and
        allotted as herein provided, or any contract made
        touching the same, before the expiration of the time
        above mentioned, such conveyance or contract shall be
        absolutely null and void. . . .
25 U.S.C. § 348 (1996).
         2
             After the Burke Act amendments, § 6 provides in pertinent
part:
     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 criminal, of the State or Territory in which
they may reside. . . . Provided, That [sic] the Secretary of the

                                      -3-
264.   The Burke Act contained a




Interior may, in his discretion, and he is authorized, whenever he
shall be satisfied that any Indian allottee is competent and
capable of managing his or her affairs at 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.
25 U.S.C. § 349 (1996).

                                   -4-
proviso which enabled the Secretary of the Interior to issue a fee simple
patent before the expiration of the twenty-five year trust period to
"competent and capable" allottees.                   Burke Act, ch. 2348, 34 Stat. 182
(1906).       The proviso stated that land allotted under the GAA would be free
from restrictions on "sale, incumbrance, or taxation" when a patent was
issued in fee.          Id.; see Yakima, 502 U.S. 264 n.4.


        For the Leech Lake Band and other Minnesota Chippewa tribes, the
allotment policy was carried out through the Nelson Act of 1889, ch. 24,
25 Stat. 642 (1889), which partially incorporated the GAA.                   The Nelson Act
created a commission to negotiate with the Band for the "cession and
relinquishment" of its reservation land.                  Id.   The Leech Lake Band agreed
in 1889 to have land disbursed under the Nelson Act and the agreement went
into effect in 1890.
        The details of the negotiations with the Leech Lake Band are unclear,
but there is some evidence that representatives of the United States told
other Minnesota Chippewa tribes that the land allotted to the individual
tribal members would not be taxed.                During the negotiations a member of the
White     Earth Band of Chippewa Indians asked the United States' lead
negotiator, Harry M. Rice, this question:                  "I should like to ask whether,
                                3
when    the     Dawes    bill       refers   to   the   civil   and   criminal   laws,   those
provisions apply so as to make our people here subject to the taxation of
the white man?"          Mr. Rice responded:            "I think you will come within the
same rule as officers at the United States forts; their property is not




          3
       Section 3 of the Nelson Act incorporated the Dawes Act.
Nelson Act, ch. 24, 25 Stat. 642, 643 (1889)

                                                  -5-
taxed."    The Chippewa Indians in Minnesota, H.R. Ex. Doc. No. 247, at 93
(1890).    Individuals from other tribes were present during this colloquy.
Id.   Cases involving other bands and other legislation have suggested that
the land might only be free from taxation during the original trust period,
however.   Mahnomen County, Minn. v. United States, 319 U.S. 474, 480 (1943)
(Murphy, J., dissenting) (land allotted to Mahnomen County Band of Chippewa
Indians under Clapp Act exempt from taxation for twenty-five years);
United States v. Spaeth, 24 F. Supp. 465, 469 (D. Minn. 1938) (land
allotted to a White Earth Chippewa Indian under Clapp Act exempt from
taxation for twenty-five years).
      The Nelson Act disposed of reservation land in three ways.         The
allotment of land to individual Indians under § 3 of the Nelson Act was
done in conformity with the GAA, and Leech Lake tribal members were
allotted land either within the Leech Lake reservation or within the
reservation of the White Earth Band of Chippewa Indians, which is also in
northern Minnesota.    The rest of the land was made available to the general
public.    Some was sold under §§ 4 and 5, the pine lands provisions, and the
rest was sold under § 6 pursuant to the Homestead Act, ch. 75, 12 Stat. 392
(1862).
      Federal Indian policy changed substantially once again in 1934 with
the passage of the Indian Reorganization Act (IRA), ch. 576, 48 Stat. 984
(1934) (codified as amended at 25 U.S.C. §§ 461-479 (1996)).         The IRA
reestablished federal recognition of Indian tribes, and while it did not
repeal allotment statutes such as the Nelson Act, it ended the allotment
policy and sought to reverse the erosion of the tribal land base by
extending indefinitely the trust period for all land held by the United
States in trust for Indian tribes.      25 U.S.C. §§ 461-462.    The Band is
governed in part by a constitution adopted by the Minnesota Chippewa Tribes
pursuant to the IRA.    See § 476.
      The Leech Lake Band managed to preserve its tribal identity despite
the federal allotment policy and has maintained a continuing presence on
its reservation land.    During the allotment period over three quarters of
the tribal members who were allotted land remained within the Leech Lake
reservation boundaries.    4




                                     -6-
Folwell, History of Minnesota 235 (1930).                Nonetheless, by 1977 the Band
and individual tribal members owned only 27,000 acres, or less than five
percent of the reservation land.            See Forge, 262 N.W.2d at 343 & n.1 (Minn.
1977).       In an effort to rebuild what was lost through the allotment policy,
the Band began slowly to recover its land base.
        The land in question in this case consists of twenty-one parcels
within the boundaries of the reservation.                The legal description of each
parcel is found in paragraph ten of the Band’s complaint.                 This land was
once held in trust for the Band by the United States according to terms of
their    treaties,     but    was   later    alienated    from   tribal   control   under
provisions of the Nelson Act.           Thirteen of the parcels were allotted to
individual Indians under § 3 of the Act; seven parcels were sold as pine
lands under §§ 4 and 5 for commercial timber harvest by non-Indians; and
one parcel was distributed under § 6 as a homestead plot to a non-Indian.
Subsequently, all parcels came to be held by non-Indians, but the Band
reacquired each parcel in fee between 1980 and 1992.
        Cass County did not impose its ad valorem tax on these parcels until
1993, one year after the Supreme Court issued its Yakima decision.                   The
Court had held in Yakima that Indian lands originally allotted under the
GAA were subject to certain types of state taxation.              502 U.S. at 270.     It
found that the language of § 6 of the GAA supported an ad valorem tax on
such land, but not an excise tax on its sale.                Id. at 266-70.    The Band
initially declined to pay the taxes levied by Cass County, but eventually
paid under protest in order to avoid foreclosure.                By July 1, 1995 it had
paid a total of over $64,000 in taxes.
        In    June 1995, the Band filed suit in federal court seeking a
declaratory judgment that the lands are not taxable by the County.                    The
district court granted summary judgment in favor of Cass County, holding
that all land alienated from tribal control under the Nelson Act was
taxable.       Leech Lake Band of Chippewa Indians v. Cass County, 908 F. Supp.
689 (D. Minn. 1995).         The court interpreted Yakima to mean that land held
by Indian tribes is taxable by the state if it is freely alienable and
dismissed the




                                             -7-
Band's case.4


                                               II.
        On appeal the Band contends that Yakima can be distinguished from the
present case both factually and legally.              The Band asserts that Yakima was
concerned primarily with fee land owned by individual tribal members rather
than the tribe itself.              The principle of tribal sovereignty can defeat
state taxation here it says.


        Yakima cannot be so easily distinguished, however.            The land involved
in that case was held both by individual Indians and the tribe itself.                  502
U.S. at 256, 270.          Although tribal sovereignty can be an impediment to the
exercise of state jurisdiction over Indians and their property, see, e.g.,
Montana v. United States, 450 U.S. 544, 565-66 (1981), considerations of
inherent sovereignty may not prevent certain forms of taxation.                     Yakima,
502 U.S. at 257-58 (noting that “platonic notions of Indian sovereignty .
.   .       have,   over    time,      lost   their   independent    sway.”   (citations
omitted)(internal quotations omitted)).
        In Yakima, the county had imposed an ad valorem tax on all real
property and an excise tax on the sale of such property.5              It believed that
these taxes applied to all land within the county, even land patented in
fee under the GAA and owned by the Yakima Indian Nation or individual
tribal       members   within    the    reservation    boundaries.    When    the    county
threatened to foreclose on certain parcels for which taxes had not been
paid, the tribe brought suit for declaratory and injunctive relief.                     The
Supreme Court held that the GAA authorized the ad valorem tax levied by
Yakima County, but




      4
        Although judgment was entered in favor of the County, the
court also provided an "alternative holding" under which the pine
land and homestead parcels would be found not taxable since only §
3 of the Nelson Act incorporated the GAA. 908 F. Supp. at 697.
The district court indicated that this would be its conclusion if
Yakima should be read as reaffirming the long-standing principle
that Congress must provide unmistakably clear intent to permit
state taxation of Indian lands.
        5
        In contrast, Cass County has only imposed an ad valorem tax.

                                              -8-
not the excise tax.     502 U.S. at 270.      The ad valorem tax was acceptable
because the Burke Act proviso permitted the "taxation of . . . land," and
this was sufficient to overcome the Court's per se rule against state
taxation of Indians or their land.         Id. at 267-68.     The language of the
proviso was not sufficient to indicate Congress had authorized an excise
tax on the sale of such land, however.           Id. at 268-69.
       The meaning of Yakima as precedent is crucial to the outcome of the
case before this court.         The Band argues that Yakima is consistent with
many other cases requiring an “unmistakably clear” congressional intent to
allow any form of state taxation.       According to the Band, the Court found
unmistakably clear congressional intent for the ad valorem tax by examining
the text and effect of both § 5 and § 6 of the GAA.6              Section 5 made the
land to be transferred alienable, a necessary precondition to state
taxation of Indian lands.       It was § 6, however, as amended by the Burke Act
proviso, that provided the unmistakably clear intent to allow such taxes.
The Band points out that this is the reading of Yakima adopted in Southern
Ute Indian Tribe v. Board of County Comm’rs, 855 F. Supp. 1194 (D. Colo.
1994), vacated, 61 F.3d 916 (10th Cir. 1995) (on ripeness grounds).
Southern Ute read Yakima to mean that the alienability established in § 5
"was   not   an   independent    justification    for   taxation,"   but   rather   an
implication of taxability, while the specific language of § 6, as amended
by the Burke Act proviso provided the “unmistakably clear” congressional
intent to allow such taxation.        Southern Ute, 855 F.Supp. at 1200.
       Cass County, on the other hand, argues that Yakima stands for the
proposition that if Indian lands are made alienable in any way, they are
taxable by the state.     Section 5 of the GAA, making allotments alienable,
is seen as the key to the validity of the ad




     6
      As discussed above, § 5 of the GAA provides that after a 25
year period during which the United States would hold allotments in
trust for individual Indians, fee patents would be issued to the
allottees.   Section 6 of the GAA provides that the individual
Indian allottee with a fee patent would be considered a citizen
subject to the laws of the state or territory in which he or she
resided.

                                        -9-
valorem tax in Yakima.     The County finds support in two cases which have
interpreted Yakima to mean "alienability equals taxability." Lummi Indian
Tribe v. Whatcom County, Wash., 5 F.3d 1355 (9th Cir. 1993), cert. denied,
114 S.Ct. 2727 (1993); Saginaw Chippewa Tribe v. Michigan, 882 F. Supp. 659
(E.D. Mich. 1995), rev'd, Nos. 95-1574, 95-1575, 1997 WL 20402 (6th Cir.
Jan. 22, 1997).    Both Lummi and the district court in Saginaw seized on the
relatively brief discussion of § 5 in Yakima as evidence that an act of
Congress can subject Indian lands to state taxation by doing nothing more
than making them alienable.      Lummi, 5 F.3d at 1357-58; Saginaw, 882 F.
Supp. at 672.


     Subsequent to oral argument in this case the Sixth Circuit reversed
the Saginaw district court.    Saginaw Chippewa Tribe v. Michigan, Nos. 95-
1574, 95-1575, 1997 WL 20402 (6th Cir. Jan. 22, 1997).     The Sixth Circuit
concluded that Yakima was consistent with the general rule requiring
unmistakable congressional intent to permit taxation of Indian land and
that making land alienable does not in itself show the requisite intent.
It stated the Court's holding as follows:


     In Yakima, the Supreme Court held that "by specifically
     mentioning immunity from land taxation as one of the
     restrictions that would be removed upon conveyance in fee,
     Congress in the Burke Act proviso manifested a clear intention
     to permit the state to tax such Indian lands."
Saginaw, 1997 WL 20402, at *4, citing Yakima, 502 U.S. at 259.   Despite the
Sixth Circuit's thorough discussion of Yakima and earlier precedent on
which the dissent relies in this case, the dissent mentions this decision
only in passing.
     The County’s theory that alienability always equals taxability is
unsatisfactory because it fails to consider the language and context of the
entire   Yakima opinion.      First, as the County concedes, its reading
conflicts with the Yakima opinion itself and with Supreme Court precedent
requiring Congress to provide unmistakably clear intent before allowing
state taxation of Indians or their property.    See Yakima, 502 U.S. at 258
(citing Montana v. Blackfeet Tribe, 471 U.S. 759, 765 (1985); California
v. Cabazon




                                     -10-
Band of Mission Indians, 480 U.S. 202, 215 n.17 (1986)).


     Second, in order to support its argument, the County must read
Yakima as resting its conclusion solely on the effect of the alienability
section of the GAA.    This reading disregards the significance given by the
Court to the language of § 6 of the GAA.           It repeatedly pointed to the
Burke Act proviso in § 6 as the primary source of clear congressional
intent to allow the ad valorem tax levied by Yakima County.            502 U.S. at
258-59.


     Third, the County’s reading of Yakima also disregards the language
and analysis in section III of the opinion.           In section III, the Court
separately analyzed each type of tax at issue and concluded that the § 6
Burke Act proviso authorized the ad valorem tax, but not the excise tax
levied by Yakima County.     502 U.S. at 268.     As the Sixth Circuit noted in
Saginaw,


     Rather than finding that alienable Indian lands are subject to
     excise taxes on the general policy grounds advocated by the
     defendants, the [Yakima] Court carefully parsed the language of
     the General Allotment Act to determine whether or not Congress
     expressed an unmistakably clear intention to subject the land
     to such taxes.


Saginaw, 1997 WL 20402, at *5.       If alienability always equals taxability,
it should be the nature of the property right, not the nature of the tax,
that matters.   If that were the rule, the Court should have upheld both the
ad valorem and the excise taxes levied by the County since the land was
made alienable by the GAA.    Instead, the Court refused to uphold the excise
tax because it found that the language of the Burke Act proviso could not
justify the imposition of such a tax.        Id. at 268-70.     Under the County’s
reading of Yakima, section III of the opinion would be superfluous and the
Court would have reached a different result.
     Finally,   if    alienability    were    equivalent   to   taxability,   it   is
difficult to explain the terms of the remand in Yakima.           That remand left
open the question of whether land allotted under a




                                       -11-
different act might be taxed or not.7   If alienability equaled taxability
it should not have mattered under which act the land was made alienable --
the mere fact of alienability should have been enough to allow state
taxation.


     To determine if a state may tax Indians or their property, the
Supreme Court has consistently asked whether Congress has made its intent
to allow state taxation unmistakably clear.   The Court in Yakima stated the
rule strongly:
     [S]tate jurisdiction over the relations between reservation
     Indians and non-Indians may be permitted unless the application
     of state laws "would interfere with reservation self-government
     or impair a right granted or reserved by federal law."
     (citation omitted) In the area of state taxation, however,
     Chief Justice Marshall’s observation that "the power to tax
     involves the power to destroy," McCulloch v. Maryland, 17 U.S.
     (4 Wheat.) 316, 431, 4 L. Ed. 579 (1819), has counseled a more
     categorical approach: "[A]bsent cession of jurisdiction or
     other federal statutes permitting it," we have held, a State is
     without power to tax reservation lands and reservation Indians.
     Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S. Ct.
     1267, 1270, 36 L. Ed. 2d 114 (1973). And our cases reveal a
     consistent practice of declining to find that Congress has
     authorized state taxation unless it has "made its intention to
     do so unmistakably clear." Montana v. Blackfeet Tribe, 471
     U.S. 759, 765, 105 S. Ct. 2399, 2403, 85 L. Ed. 2d 753 (1985);
     see also, California v. Cabazon Band of Mission Indians, 480
     U.S. 202, 215, n. 17, 107 S. Ct. 1083, 1091, n.17, 94 L. Ed. 2d
     244 (1987).

502 U.S. at 258.   Both sides in the case also framed the proper inquiry as
whether the GAA evinced an unmistakably clear congressional intent to
permit state taxation.   Id. at 258-60.   Yakima inquired whether Congress
had made its intent to allow state




     7
         The scope of the Yakima remand was as follows:
     The Yakima Nation contends it is not clear whether the
     parcels at issue in these cases were patented under the
     General Allotment Act, rather than under some other
     statutes in force prior to the Indian Reorganization Act
     (citations omitted). We leave for resolution on remand
     that factual point, and the prior legal question whether
     it makes any difference.
502 U.S. at 270.

                                   -12-
taxation unmistakably clear and found that Congress had for the ad valorem
tax, but not for the excise tax.        Id.8


     The Burke Act amendment to § 6 of the GAA was identified after
inquiry as the main source of the unmistakably clear congressional intent
to allow the state ad valorem tax.      For example, in the third paragraph of
section II, the Court states:
     Yakima County persuaded the Court of Appeals, and urges upon
     us, that express authority for taxation of fee-patented land is
     found in § 6 of the General Allotment Act, as amended [by the
     Burke Act proviso] (emphasis added) (footnote omitted).      We
     have little doubt about the accuracy of that threshold
     assessment. . . . And we agree with the Court of Appeals that
     by specifically mentioning immunity from land taxation "as one
     of the restrictions that would be removed upon conveyance in
     fee," Congress in the Burke Act proviso "manifest[ed] a clear
     intention to permit the state to tax" such Indian lands.
     (emphasis added) (citation omitted).

502 U.S. at 259.
     The Burke Act proviso was also seen as the main source of statutory
ambiguity where the state excise tax levied by Yakima County was concerned.
“While the Burke Act proviso does not purport to describe the entire range
of in rem jurisdiction States may exercise with respect to fee-patented
reservation   land,   we   think   it   does   describe   the   entire   range   of
jurisdiction to tax.”      Id. at 268 (emphasis added).     The Court concluded
that the language of the proviso did not clearly permit a state excise tax,
noting that "the short of the matter is that the General Allotment Act
explicitly authorizes only 'taxation of . . . land,' not 'taxation with
respect to land,' 'taxation of transactions involving land,' or 'taxation
based on the value of land.'    Id. at 269.    “It is quite reasonable to say,
in other words, that though the object of the sale here is land, that does
not make land the object of the




       8
         The Band argues that even if alienability were always to
equal taxability, the lands in this case would not be taxable
because they are not alienable under the Non-Intercourse Act, 25
U.S.C. § 177 (1996).       Since this case turns on whether an
unmistakably clear congressional intent has been expressed to allow
state taxation of the parcels, it is not necessary to consider any
issue related to the Non-intercourse Act.

                                        -13-
tax, and hence does not invoke the Burke Act proviso [which only authorizes
the ‘taxation of . . . land’].”          Id. at 268-69.


       The County counters by pointing to one particular sentence for the
strongest evidence that Yakima should be read to mean alienability equals
taxability.      The dissent also describes this sentence as the specific
holding of Yakima.         The sentence states: “Thus, when § 5 rendered the
allotted lands alienable and encumberable, it also rendered them subject
to assessment and forced sale for taxes.”           Id. at 263-64.      As the Sixth
Circuit points out, however:


       When read out of context, this statement seems to support the
       defendants' claim that any congressional act making Indian land
       alienable is sufficient to show a clear intention to make the
       land subject to property tax. Within the context of the Yakima
       opinion, however, this statement was merely part of an
       explanation of the structure of the General Allotment Act.
Saginaw, 1997 WL 20402, at *2 (citations omitted) (internal quotation
omitted) (emphasis added).
       In the very next sentence to the one relied on by the County, the
Court noted that “the Burke Act proviso, enacted in 1906, made this
implication of § 5 explicit, and its nature more clear.”            Id. at 264.      The
import of this latter sentence is that § 5 only implied taxability.               This
reading is confirmed four sentences later when the Court states that the
Burke Act proviso “reaffirmed for such ‘prematurely’ patented lands what
§ 5 of the General Allottment Act implied with respect to patented land
generally: subjection to state real estate taxes.”            Id.
       The Yakima Court thus understood § 5 to be only an implication of
taxability, and § 6, as amended by the Burke Act proviso, was needed to
show the necessary clear intent to tax.           No court has taken the position
that an implication alone is sufficient to provide unmistakably clear
congressional     intent    to   allow   state   taxation,   and    Yakima   found   an
unmistakably clear congressional intent to allow state taxation on land by
relying on both the language and effect of §§ 5 and 6, as amended, of the
GAA.   Without




                                         -14-
alienability there would be no taxability, but it does not follow that
alienability alone is sufficient to provide the requisite unmistakable
intent.   Something like the language of the Burke Act proviso in § 6 is
needed to find unmistakably clear intent to allow state taxation.      Id. at
259.


       The history of the Burke Act also demonstrates that § 6, as amended,
is the source of the necessary clear intent to allow state taxation of land
(but not its sale).    The proviso was passed in reaction to the Supreme
Court’s decision in In re Heff, 197 U.S. 488 (1905),      which held that § 6
of the GAA subjected an Indian allottee to the personal jurisdiction of the
state the moment the allotment in trust was made.     Yakima, 502 U.S. at 264.
Since the land was still being held in trust by the United States, it was
presumably not taxable by a state even though personal jurisdiction existed
over the titular owner of the land.9     Heff, 197 U.S. at 509 (distinguishing
personal jurisdiction from jurisdiction over the land).       In re Heff thus
created a situation where the state could have jurisdiction over the Indian
allottee, but not over his or her land.


       The purpose of the Burke Act legislation was, at least in part, to
clarify the post-Heff reach of state jurisdiction over Indians receiving
allotments.   Yakima, 502 U.S. at 264.    The Burke Act amendment accomplished
two things.   First, it changed the point at which state law would apply to
an allottee Indian from the time when a trust patent was first issued to
the time when a patent was




     9
      In the debates preceding the enactment of the Burke Act, Rep.
Curtis stated:
       The main advantage of [the Burke Act] is that under [its
       decision in In re Heff] the Supreme Court has held that
       after a patent has issued [in trust], notwithstanding the
       Indian does not secure a title in fee for twenty-five
       years, he becomes a citizen of the United States, and
       that State courts have full jurisdiction over him, but
       not over his property. . . . Now, this bill, if enacted,
       will leave him under the control of the [federal]
       Government until he secures a patent conveying the fee .
       . . .
40 Cong. Rec. 3599 (1906).

                                    -15-
issued in fee.       Id.   Second, it made clear that an allottee could be
subject to taxation upon issuance of a fee patent.      Id. at 259.   The Burke
Act proviso to § 6 of the GAA is thus the primary source of the requisite
clear congressional intent to allow state ad valorem taxes on Indian lands.


        The Yakima Court discussed § 5 and alienability in a single paragraph
of section II of its opinion.       That paragraph addressed the relevance of
Goudy v. Meath, 203 U.S. 146 (1906), to the arguments of the Yakima Nation
and the United States as amicus.10     Goudy had held that an Indian allottee
could be personally liable for delinquent real estate taxes on fee land
allotted under the GAA.      The Goudy Court found liability for two reasons.
First, the Court noted that it would be strange for Congress to remove
restrictions on alienation of the land and not subject it to taxation.      Id.
at 149.      Second, the Court found that the language of § 6 extended the laws
of the state or territory to the Indian allottee, including the state tax
laws.     Id. at 149-50.


        Yakima characterized the Goudy decision as one in which alienation
was of central significance to the finding of liability.      502 U.S. at 263.
The Court never suggested that Goudy relied exclusively on the alienability
of the land.      Instead, the Goudy decision premised liability on both the
alienability of the land and the specific language of § 6 of the GAA.
Goudy, 203 U.S. at 149-50.       Goudy is therefore analogous to Yakima where
the Court




        10
       The Court discussed alienability and Goudy to distinguish
Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 462
(1976), from the case of Yakima Nation. Moe had held that § 6 of
the GAA did not give a state general personal jurisdiction over
Indians within a reservation. 425 U.S. at 478. In Yakima the
tribe and the United States argued that Moe meant a state could not
impose an ad valorem tax on Indian land, 502 U.S. at 262, but the
Court felt that this interpretation of Moe amounted to an implied
repeal of § 6 and it was not willing to read Moe that broadly. Id.
Instead the Court concluded that, as in Goudy, a contributing
factor to the taxability of the land was that it had been made
alienable under § 5.        The Yakima Court raised Goudy and
alienability, not to depart from its precedent requiring an
unmistakably clear congressional intent to allow state taxation,
but in order to distinguish Moe and to demonstrate that § 6
remained a viable source of unmistakable intent for in rem taxing
jurisdiction.

                                       -16-
relied on both the express language of § 6, as amended by the Burke Act
proviso,11 and the § 5 alienability of the land, which created the
necessary conditions for taxation.


      In sum, the County’s reading of Yakima conflicts with other language
in the opinion itself, and with strong Supreme Court precedent espousing
an   unmistakably   clear   congressional   intent   rule.   While   the   Court
considered alienability as one factor contributing to the taxability of the
land, alienability alone was not sufficient to allow state taxation.         The
express language of the Burke Act proviso in § 6 of the GAA was needed to
make sufficiently clear the intent of Congress to allow state ad valorem
taxes.


                                     III.


      The parcels of land involved in this case were alienated from tribal
control by the Nelson Act and subsequently reacquired by the Band in fee.
State taxation of Indian land is not authorized unless Congress "has made
its intention to do so unmistakably clear."          Yakima, at 258, quoting
Montana v. Blackfeet Tribe, 471 U.S. at 765.    The question in this case is
whether the Nelson Act evinces an “unmistakably clear” congressional intent
to allow an ad valorem tax on these parcels.
      Eight of the 21 lots were sold as pine lands or distributed as
homestead lands under § 4, § 5, or § 6 of the Nelson Act.      These sections
of the Act, unlike § 3, did not incorporate the GAA or include any mention
of an intent to tax lands distributed under them which might become
reacquired by the Band in fee.    These parcels are therefore not subject to
state taxation.
      Section 3 of the Nelson Act allotted certain lands on the




      11
         The district court suggested that the Burke Act amendment
reaffirmed the Supreme Court decision in Goudy. That amendment
actually predated the Goudy decision, however. The Burke Act was
passed on May 8, 1906, and Goudy was decided on November 19, 1906.
Although the Goudy opinion does not specifically mention the
language of the Burke Act proviso, that language was presumably
available for the consideration of the Court.

                                     -17-
Leech Lake reservation by incorporating the mechanisms of the GAA.         The
Band argues that the GAA itself does not evince an unmistakably clear
intent to allow ad valorem taxes on tribally held land because §§ 5 and 6
of the GAA only address the allotment of land to individual Indians, but
that argument cannot be reconciled with the holding of the Supreme Court
in Yakima.    Yakima held12 that after the addition of the Burke Act proviso,
lands allotted under the GAA are subject to state ad valorem taxes when
they are patented in fee.        502 U.S. 266-70.   This is true for both lands
allotted to individual Indians and lands subsequently reacquired by a
tribe.    See id. at 256, 270.    For these reasons the land which passed under
§ 3 of the Nelson Act is taxable if it was patented after the passage of
the Burke Act proviso in 1906, but not if it were patented before then.13




     12
          The Court specifically stated:
     We hold that the General Allotment Act permits Yakima
     County to impose an ad valorem tax on reservation land
     patented in fee pursuant to the Act, but does not allow
     the county to enforce its excise tax on the sale of such
     land.
502 U.S. at 270. This explicit statement of the holding follows
the Court's discussion in section III describing how the language
of the Burke Act proviso provides the unmistakably clear
congressional intent to allow the state ad valorem tax, but not the
excise tax.    The dissent locates what it views as the holding
elsewhere in a paragraph discussing the Court's previous decision
in Goudy. We follow the explicit holding as stated by the Supreme
Court.
      13
         In theory, every parcel in dispute here should have been
patented in fee after 1906. The Nelson Act was passed in 1890.
Given a twenty-five year trust period, the earliest a fee patent
should have issued was 1915. The administration of the allotment
policy was not always smooth or consistent, however. See Felix S.
Cohen, Handbook of Federal Indian Law 132-34 (1982) (describing
“piecemeal process” of amending and developing the allotment
program after the passage of the GAA). The record does not reveal
when these parcels were patented in fee, and it is possible, if not
likely, that some were patented before 1906. See, e.g., United
States v. Thurston County, Neb., 143 F. 287, 288 (8th Cir. 1906)
(noting 1902 amendment to the GAA allowed Indian devisee to sell or
convey inherited allotment before expiration of trust period);
Nat’l Bank of Commerce v. Anderson, 147 F. 87, 90 (9th Cir. 1906)
(same); see also LeAnn Larson LaFave, South Dakota's Forced Fee
Indian Land Claims: Will Landowners be Liable for Government's
Wrongdoing?, 30 S. D. Law Rev. 59, 65 & n.42 (1984) (noting
congressional practice of issuing premature fees through special
legislation before 1906); Delos Sacket Otis, The Dawes Act and the
Allotment of Indian Lands 150-51 (F. Prucha ed., University of
Oklahoma Press 1973) (same).

                                       -18-
     In sum, the judgment in favor of the County is vacated.            The district
court is affirmed in its determination that the County may apply its ad
valorem tax to land allotted under § 3 of the Nelson Act, unless any parcel
is shown to have been patented in fee before the passage of the Burke Act.
The judgment is reversed as to the parcels which passed under the pine
lands or homestead sections of the Act and the case is remanded for
consideration of that portion of the Band’s claim for refunds which is
still relevant and for any necessary proceedings consistent with this
opinion.


MAGILL, Circuit Judge, concurring in part and dissenting in part.


     I concur in section III of the majority opinion to the extent that
it affirms the district court's conclusion that the allotted lands in this
case were properly taxed by Cass County.         I respectfully dissent from the
remainder of the majority's decision.


     In 1993 Cass County, Minnesota, (County) began imposing ad valorem
taxation on lands held in fee simple by the Leech Lake Band of Chippewa
(Band),    a    federally    recognized    Indian   tribe,   on   the   Leech   Lake
               14
Reservation.        The Band brought this action in the district court seeking
injunctive relief from future taxation by the County and a judgment for the
$64,000 in taxes which it has




      14
         This case involves twenty-one parcels of land which were
originally held in common by the Band under aboriginal title and
which were subsequently held in trust by the United States. In
1889 Congress enacted the Nelson Act, ch. 24, 25 Stat. 642, which
allotted land held in common by the Band to individual Indians.
Thirteen of the parcels in this case were so allotted and
eventually became alienable.     The Nelson Act also disposed of
surplus lands, including lumbering lands (pine lands) and
homesteads, to non-Indians. Seven of the parcels were originally
sold as pine lands, and the remaining parcel was originally sold as
a homestead. The twenty-one parcels were reacquired by the Band
after 1980.     Some of the land is undeveloped, while there are
tribal facilities on other parcels. Although the Band successfully
converted other reacquired lands--including a casino--to trust
status, see Summ. J. Tr. at 9; see also 25 U.S.C. § 465 (statutory
procedure for placing lands in trust with the United States), the
title to the twenty-one parcels at issue in this case are held by
the Band in fee simple.

                                          -19-
paid, under protest, to the County.    Relying on County of Yakima v. Yakima
Indian Nation, 502 U.S. 251 (1992), the district court held that the
taxation had been proper, and granted summary judgment to the County.     I
would affirm.


     In Goudy v. Meath, 203 U.S. 146 (1906), the United States Supreme
Court held that alienable lands held by a member of the Puyallup Tribe were
subject to state taxation.   The Court reasoned:
     That Congress may grant the power of voluntary sale, while
     withholding the land from taxation or forced alienation, may be
     conceded. . . . But while Congress may make such provision, its
     intent to do so should be clearly manifested, for the purpose
     of the restriction upon voluntary alienation is protection of
     the Indian from the cunning and rapacity of his white
     neighbors, and it would seem strange to withdraw the protection
     [of the restriction on alienation] and permit the Indian to
     dispose of his lands as he please, while at the same time
     releasing it from taxation. . . . Among the laws to which the
     plaintiff as a citizen became subject were those in respect to
     taxation.    His property, unless exempt, became subject to
     taxation in the same manner as property belonging to other
     citizens, and the rule of exemption for him must be the same as
     for other citizens--that is, that no exemption exists by
     implication but must be clearly manifested.
Id. at 149.   Relying on this reasoning, the United States Supreme Court in
Yakima County held that lands originally allotted to Yakima Indians
pursuant to the General Allotment Act of 1887, also known as the Dawes Act,
ch. 119, 24 Stat. 388, codified in part as amended at 25 U.S.C. § 331, and
which were subsequently held by individual Indians and the tribe in fee
simple were subject to county ad valorem taxation.   The Yakima County Court
specifically held that
     when § 5 [of the General Allotment Act] rendered the allotted
     lands alienable and encumberable, it also rendered them subject
     to assessment and forced sale for taxes.
507 U.S. at 263-64.
     In Lummi Indian Tribe v. Whatcom County, Wash., 5 F.3d 1355 (9th Cir.
1993), cert. denied, 114 S. Ct. 2727 (1994), the Ninth Circuit accepted
this clear pronouncement by the Supreme Court that alienability of land
allowed taxation of the land, and held that:




                                      -20-
      The logic propounded by the Goudy Court and approved by Yakima
      Nation requires an Indian, even though he receives his property
      by treaty, to accept the burden as well as the benefits of land
      ownership. This proposition may be hard to square with the
      requirement, recently approved by the Yakima Nation Court, that
      Congress' intent to authorize state taxation of Indians must be
      unmistakably clear. The strength of the language in Yakima
      Nation, however, makes virtually inescapable the conclusion
      that the Lummi land is taxable if it is alienable.
Id. at 1358 (allowing county taxation of alienable land held by tribe).
But see United States on Behalf of Saginaw Chippewa Tribe v. Michigan, 1997
FED   App.   0026P   (6th     Cir.   Jan.   22,     1997)    (rejecting    Lummi   court's
interpretation of Yakima County and holding that alienability does not
necessarily allow taxation).
      Rather than accept the clear rule propounded by the Yakima County
Court that alienability allows taxation, the majority declares that the
homestead lands and pine lands in this case are exempt from taxation, and
engages   in   a   strained    analysis     of     the   Yakima   County   decision   that
eviscerates its holding.         For example, because the Yakima County Court
supported its conclusion that the land in question was taxable by noting
that "[t]he Burke Act proviso, enacted in 1906, made this implication of
§ 5 explicit, and its nature more clear," 507 U.S. at 264, the majority
concludes that the Burke Act analysis was necessary to the Yakima County
Court's conclusion.15    See Maj. Op. at 12-13.             The majority insists that §
5's grant of alienability did not allow taxation, asserting that "[n]o
court has taken the position that an implication alone is sufficient to
provide unmistakably clear congressional intent to allow state taxation .
. . ."    Id. at 13.    This statement simply




      15
         It is clear that the Yakima County Court's analysis of the
Burke Act was nothing more than additional support for its holding
that alienability resulted in taxability. As the Court stated:
      [T]he   [Burke  Act]   proviso   reaffirmed  for  such
      "prematurely" patented land what § 5 of the General
      Allotment Act implied with respect to patented land
      generally: subjection to state real estate taxes.
Yakima County, 507 U.S. at 264 (emphasis added). I note that, as
a matter of plain logic, a "reaffirmation" supports, rather than
controls, a conclusion. In addition, rather than being limited by
the Burke Act's provision for the taxation of only prematurely
patented land, the Yakima County Court allowed taxation over all
land allotted under the General Allotment Act. See id. at 270.

                                            -21-
disregards the Yakima County Court's treatment of § 5, and is strongly
reminiscent of the Yakima County dissent:


     The majority concedes that § 5 only "implied" this conclusion.
     In my view, a "mere implication" falls far short of the
     "unmistakably clear" intent standard.


507 U.S. at 273 (Blackmun, J., dissenting) (citations omitted).16
     While I can understand the majority's disinclination to accept Yakima
County's holding, it is nevertheless binding precedent, and should have
been followed in this case.   Under the clear language of Yakima County,
alienability of land allows taxation of land.   Because all of the lands in
this case are fully alienable by the Band,17 the district court properly
followed the Supreme Court's clear holding in Yakima County and held that
the lands are subject




     16
      In reaching its decision to disregard Yakima County's clear
holding, the majority also relies on the Yakima County Court's
remand for a factual determination of "whether the parcels at issue
in these cases were patented under the General Allotment Act,
rather than under some other statutes in force prior to the Indian
Reorganization Act," and the legal determination of "whether it
makes any difference."    507 U.S. at 270.     I suggest that this
remand was either an effort to avoid creating needless dicta, or a
reference to the unusual situation noted in Goudy, where Congress
could explicitly exempt land from taxation, despite making it
alienable. See Goudy, 203 U.S. at 149. In any event, I do not
believe that the remand, particularly considering the phrasing of
"whether it makes any difference," can override the clear statement
that a statute making land alienable also makes it taxable.
     17
      Before both the district court and this appellate panel, the
Band argued that the Nonintercourse Act, 25 U.S.C. § 177, limited
the alienability of all lands held by an Indian tribe, including
recently acquired lands held in fee simple. The district court
rejected this argument, see Order at 14, as have most courts which
have considered it.    See, e.g., Lummi Indian Tribe v. Whatcom
County, Wash., 5 F.3d 1355, 1359 (9th Cir. 1993) ("No court has
held that Indian land approved for alienation by the federal
government and then reacquired by a tribe again becomes
inalienable. To the contrary, courts have said that once Congress
removes restraints on alienation of land, the protections of the
Nonintercourse Act no longer apply.       Moreover, the statutory
authorization for the sale of Indian land following proper
government approval makes no mention of reimposing restrictions
should a tribe reacquire the land. Rather, the broad statutory
language suggests that, once sold, the land becomes forever
alienable." (citations omitted)), cert. denied, 114 S. Ct. 2727
(1994). The majority has declined to consider this issue. See
Maj. Op. at 12 n.8.

                                   -22-
to taxation by the County.


     I agree with the majority’s conclusion in section III of its   opinion
that the lands originally allotted to Indians are taxable by the County.
I disagree, however, with its conclusion that the pine lands and homestead
parcel are not.    Accordingly, I would affirm the district court's judgment
in its entirety.



     A true copy.


           Attest:


                   CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                    -23-
