Round House Talk: Did they give us anything we didn’t already have?

In 1887, the U.S. Congress enacted the General Allotment Act (“Act”), Act of Feb. 8, 1887 (24 Stat. 388, ch. 119, 25 USCA 331). Congress believed that individual ownership of private property was an essential part of civilization that would give Indian people a reason to stay in one place, cultivate land, and adopt the habits, practices and interests of the non-Indian population.

In other words, Congress wanted to make good Indians out of us. The Act was another form of termination of life as the Indian people knew it. The Act didn’t “give” Indians land but the United States would hold the land “in trust for the sole use and benefit of the Indian” (or his heirs if the Indian landowner dies) for a period of 25 years.

Tribal historical territory would be reduced thereby making a huge portion of our lands available for homesteading by non-Indians. Congress even drove us like cattle across state and territorial boundaries to places we were strangers in. Congress actually gave us nothing that we didn’t already have, just less of it.

Section 5 of the Act also authorized the President to extend this period of trust wherever deemed appropriate. This section states further that:

Any contract made that involves the land before the end of the trust period is null and void; after patents have been issued to Indians for their allotments, the laws of descent and partition of the State in which the allotments are located replace tribes’ inheritance laws and are applied to the allotment; and, if there is any land on the reservation that has not been allotted, the Secretary of the Interior is authorized to negotiate with the tribe for the purchase of this surplus land by the United States. These purchases have to be ratified by Congress and will be sold to white settlers in tracts not exceeding 160 acres. Money that is earned by selling the land to white settlers is to be held in trust by the government for the sole use of tribes to whom the reservation belonged but subject to appropriation by Congress for the education and civilization of the Indians.

There are two Indian-specific tax exemptions available for individual tribal members on restricted land: (1) income derived directly from restricted lands and (2) income derived from treaty fishing-rights activity. There are questions regarding tribal per-capita payments and some federal entitlement programs. Recently the Internal Revenue Service issued revised instructions to delineate what is taxable and what is exempt.

The General Allotment of Act of 1887 contained language to evidence a congressional intent to grant such an exemption.

This is why it amazes me so much city and state governments continue to try and dictate and litigate matters related to tribal or individually-owned Indian lands. They continue to attempt to assess taxes on tribal land and improvements. In Seminole Tribe of Florida v. Florida Department of Revenue, a three-judge panel of the 11th U.S. Circuit Court of Appeals said Florida was barred from imposing a real-estate rental tax on non-Seminole businesses that operate at tribal casinos in Tampa and Hollywood.

Permanent improvements, defined at 25 U.S.C. § 465 explicitly exempts Indian trust land from state and local taxation. In Mescalero Apache Tribe v. Jones, it was held that Section 465 exempts not only tribal land from state and local taxation, but any tax that the Court deems to be an equivalent to a tax on land, including any “permanent improvements” thereon. 411 U.S. 145, 158 (1973).

Gabe Galenda wrote an article entitled “So What Is a “Permanent Improvement to Indian Land?” (April 28, 2014) Which identified six factors in determining what is a permanent improvement. Factor #6 states “What is the manner of fixation of the property to the land?” It would seem that if the improvement is anchored and attached to the land it is a permanent improvement. Some lease terms provide an option and a timeframe to remove improvements if consented to by both parties. Simple enough.

Cities and states attempt to tax permanent improvements in property valuation, as well as tobacco taxes, gasoline taxes, lodging taxes, fees on hunting and fishing, etc. Congress and Courts have exempted some of these taxes and fees including the use of compact agreements for revenue sharing. The Act gave us nothing we didn’t already have, except less land and fewer rights.

Some federal entitlements are “passed through” states rendering ineffective our autonomy and sovereignty. They oppose our every effort to become self-sufficient. The very essence of their reasoning in the Act gave us nothing more but less than what we already had. Many tribes have clearly demonstrated that they can manage their own lands, community and public services, and achieve self-sufficiency. Our gaming funds cover state governmental funding shortfalls. Our economic developments have enhanced the states economy and assisted in providing public safety through tribal law enforcement, incarceration and sexual abuse programs. Some tribes own water systems and utility companies. Tribal Public Works programs repair water delivery systems. Our Roads Construction and Maintenance programs manage our road system. All of the funds used for these purposes aren’t generated from township, city or state funds. What is their burden created by gaming operations?

The General Allotment Act was motivated by those who could never be satisfied with enough, but wanted more. King David had his choice of any of 1,000 handmaids, but that wasn’t enough. He wanted another man’s wife. If he could manage 1,000 handmaids then have at it. But leave the other man’s one wife alone.

In the end, tribes have demonstrated they can manage their governments far better than non-Indians can manage their governments. They would be wise to follow us rather than force us to follow them.

 
Jay Daniels has 30 years of experience working in Indian Country, managing trust lands and is a member of the Cherokee Nation of Oklahoma. You can find resources and information at http://roundhousetalk.com.