Cass County Wins 9-0 at Supreme Court

On June 8, 1998 the United States Supreme Court issued a unanimous decision in favor of Cass County Minnesota. The ruling, which will impact hundreds of tribes and local governments across the country, upheld the Counties right to collect property taxes on land the Leech Lake Band of Chippewa has purchased in the Northern Minnesota county. The Band had claimed that the land purchased by the tribe and individual band members was Indian Country and therefor not subject to state and local taxation and jurisdiction. The case hinged on the meaning of the 1887 General Allotment Act and the 1889 Nelson Act, two acts of Congress intended to end an apartheid reservation system by giving individual Indians title to their own parcels of land, and selling any excess lands to non-Indians with the proceeds going to the benefit of the Indians. The Supreme Court concluded that it was Congress's intent that the land allotted under these acts would cease to be Indian Country and as such is subject to state jurisdiction, even if at a later point in history, it is repurchased by the tribes or its members. The Court cited the fact that the land is now classified as fee simple land and is freely alienable. This land status can not be changed unless the tribes successfully apply for and obtain trust status from the federal government, with the consent of the state government.

Although not specifically saying so, the Court implied that Indian rights and jurisdiction are directly tied to land status and ownership. Countless Indians and non-Indians who own fee simple property within existing and former reservation boundaries now have reason to believe that they are no longer under the threat of tribal jurisdiction with the prospect of taxation and regulation by governments in which they have no voice.

This is good news to folks like Keck Melby of Grand Portage Minnesota. He is currently being sued by the Grand Portage Band of Chippewa for failing to comply with tribal zoning laws concerning a pole shed he built at his marina on Lake Superior. While obtaining and complying with all state and county regulations and building codes, the tribe says he must tear down his shed because his fee simple land was once part of the tribe's reservation and the building does not meet their set back requirements. His case is currently pending in both federal and tribal court.

Experts feel that the court's line of reasoning in Cass leads to the next logical conclusion. That is, that off reservation treaty rights are based on property rights and land status. Just as the ability to avoid paying county taxes can not be re-established by the mere fact that the tribes now own a piece of property, nor can a treaty harvest privilege be re-established once the land has been sold off by the federal government as fee simple land. All land in the 1837 Mille Lacs Treaty area is fee simple except for about 3,000 acres that the Mille Lacs Band has in trust and national wildlife areas. Either the treaty privilege applies to all land both state owned and private, or it does not apply to any land in the treaty area.

The question is, will the Supreme Court take this opportunity to apply this reasoning in the Mille Lacs Case?