by Kevin Taylor & r & & r & & lt;span class= "dropcap " & T & lt;/span & he rugged eastern side of Idaho's Benewah County, the area around St. Maries and the St. Joe River, has been a reliable flash point where tensions between whites and Indians are more visible than elsewhere.
It often comes down to land ownership in a place where limited resources can make it tough to make a living. The stark economics of who owns rights to what can spark any number of battles, and the Benewah County Commissioners seem to be steering towards a big one.
Just a few days after County Assessor Teresa Jeffrey mailed out 11,000 assessment notices to property owners last month, the commissioners told her to add a few more to the list.
On June 12, commissioners directed Jeffrey to place on the tax rolls 79 parcels of land owned either by the Coeur d'Alene Tribe or individual Native Americans.
Jeffrey wasn't at the June 12 meeting, she says, and read about her new task a couple of days later on the front page of the St. Maries Gazette Record.
Facing a wave of owners challenging dramatic increases on property assessments, Jeffrey isn't looking forward to tackling tribal sovereignty as well.
"What I'm requiring from [the commissioners] is something in writing, and I don't have that yet," she says.
The commissioners' decision seems like such a small deal, arcane even. But the decision in the little brick courthouse in downtown St. Maries rushes headlong into bigger, knottier issues involving tribal sovereignty, genocide and assimilation, lies and promises ... in short, it's about the whole 500-year tangle of whites dealing with Indians over land.
More Legwork & r & Why the commissioners are taking the step to tax Indian-owned land is hard to say. Benewah County Commissioner Chairman Bud McCall and legal counsel Nancy Wolfe -- reached after many phone calls -- are skittish about discussing the issue. McCall is vague, and Wolfe says she will only answer questions submitted in writing.
"The tribe is trying to be a good neighbor," says Eric van Orden, an attorney who represents the Coeur d'Alene Tribe. Van Orden notes that the tribe already pays roughly $24,000 a year in property taxes on a number of parcels in Benewah County.
He also notes the tribe pays the county additional tens of thousands of dollars annually for dispatch and jail services, makes its Benewah Medical Center and Tribal Wellness Center open to non-Indians, and donates casino profits to all schools in the area, not just the tribal school.
Assessor Jeffrey says she doesn't have an estimate of how much money the 79 parcels would add to county coffers. It will take plenty of legwork, she says, to determine who actually owns the land and how it is legally categorized.
"I don't know if we have the resources to research all that," Jeffrey says. Preliminary research shows "I have about 17 deeded to individual Coeur d'Alene Tribal members. I have about 30 that say they are held in trust for an individual or for the Coeur d'Alene Tribe, but I don't have any trust documents to show that. I've written and called the BIA in Portland and have had no response.
"Then I have 15 that just say 'Coeur d'Alene Tribe,'" Jeffrey continues. She's finding little information to help sort out ownership. "The commissioners just instructed me they want these on the tax rolls this year." The next legal date for mailing assessment notices is Nov. 27.
A Legal Tangle & r & The commissioners have based their action on a 1998 U.S. Supreme Court decision (Cass County v. The Leech Lake Band of Chippewa Indians) that grants local governments authority to assess property taxes on what is called Indian-owned "fee land."
But even the Idaho Tax Commission has warned counties against using the Supreme Court ruling as a green light. Deputy Attorney General Carl Olsson, who is assigned to the state tax commission, says he's surprised Benewah County is pressing the issue.
"The Tax Commission some years ago sent a letter off to various elected and county officials. We noted 'Cass County says this,' ... but that there are other defenses out there," Olsson says.
Tribal lands are basically split between "trust land" and "fee land." When the federal government created reservations, it held the land in trust for Indians. Since the land is not private property that can be bought or sold, states can't tax them.
But the Dawes Act, or General Allotment Act, of 1887 gutted the reservations and created the animosity and confusion that still reigns today. It gave individual Indians allotments of "fee land" that was private property and could be bought and sold.
The Dawes Act, its supporters contended, was an attempt at assimilation by giving each Indian family 160 acres and the chance to become farmers just like their white neighbors.
The motives likely were more cynical. Even on twice- or thrice-reduced reservations, the total allotments to Indians were a fraction of reservation land. The rest was opened to white settlement.
And the little bit that Indians did own was often sold when tribal members were either ill equipped or too impoverished to hold onto it.
One North Idaho tribal leader burned with fury several years ago as she recounted stories of real-estate agents buying prime valley-bottom land "for the price of a jug of wine."
The instances of greed and misery prompted the federal government, no great friend to Indians, to repeal and repudiate the Dawes Act.
The Indian Reorganization Act of 1934 was a complete reversal as the government recognized the importance of tribal ownership of ancestral lands -- or at least a remnant of those lands.
By this time, however, reservations had become a checkerboard of fee land and trust land with a variety of owners: from federal and tribal governments to Indian and non-Indian individuals.
This leads to a description of "the former reservation" or "the old reservation" used by non-Indian residents along the southeastern reaches of Lake Coeur d'Alene.
As tribal economies improve, typically one of the first uses for available monies is to buy back land once owned by Indians.
Which has prompted counties around the nation to seek property taxes from Indians or tribes, contending the lands are no longer in trust. Six years prior to Cass County was the similar 1992 Supreme Court decision in Yakima County v. the Confederated Tribes and Bands of the Yakama Indian Nation.
In Yakima and in Cass County, the Supreme Court ruled that even though specific statutes make no mention of taxation, it is "unmistakably clear" Congress intended such.
Other Defenses & r & "I have wandered the maze of Indian statutes and case law tracing back over 100 years," Supreme Court Justice Harry Blackmun wrote in a sharp dissent to Yakima. "Unlike the Court, however, I am unable to find an 'unmistakably clear' intent of Congress to allow the States to tax Indian-owned fee-patented lands."
Blackmun, who died in 1999, wrote that "the Court ... dramatically devalues longstanding federal policies intended to preserve the integrity of our Nation's Indian tribes." The Dawes Act, which created fee land, was so thoroughly repudiated that its intent "is now orphaned" and its clauses "no longer having any force of law," Blackmun wrote.
This is one of the key "other defenses" that Olsson, the Idaho Tax Commission attorney, refers to. "There may be a deed to an individually enrolled member of a tribe, or to the tribe itself, but the deed should never have been issued in the first place" -- or so goes the argument, Olsson says.
And then there is another reality, as current Yakima County Assessor Dave Cook notes. The Yakama Nation promptly applied to the BIA for restoration of trust status on many of the parcels affected by the Supreme Court case.
"A determination was made that a whole bunch of parcels were deemed not taxable," says Cook, who was not in Yakima County at the time.
A 2004 decision by the Washington State Legislature to exempt from property taxes "tribally owned properties that provided an essential government service" are creating his headaches, says Cook. "In Yakima County, we've had 140 parcels come off the tax rolls -- that's a little under $75,000 in taxes per year," Cook says.
As in Benewah County, the seeming disparity creates tensions.
"How it's all going to play out, I have no idea. But it's not a dead issue," Cook says. "It's a big issue and it's going to get bigger as we go along."