The opinion of the court was delivered by: QUACKENBUSH
MEMORANDUM OPINION AND ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT IN PART
The dispute concerns the interpretation of PL-772 which provides:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the undisposed-of lands of the Colville Indian Reservation, Washington, dealt with the Act of March 22, 1906 (34 Stat. 80), are hereby restored to tribal ownership to be held in trust by the United States to the same extent as all other tribal lands on the existing reservation, subject to any existing valid rights.
Sec. 2. For the purpose of effecting land consolidations between the Colville Indians and non-Indians in Ferry and Okanogan Counties, the Secretary of the Interior is hereby authorized with the consent of the tribal council as evidenced by a resolution adopted in accordance with the constitution and bylaws of the tribe, under such regulations as he may prescribe, to sell or exchange tribal lands in connection with the acquisition of lieu lands, and to acquire through purchase, exchange or relinquishment, lands or any interest in lands, water rights, or surface rights. The acquisition of lands pursuant to this Act shall be limited to lands within the boundary of the reservation. Exchanges of lands, including improvements thereon, shall be made on the basis of approximate equal value. In carrying out the provisions of this Act, if non-Indian lands are involved the board of county commissioners of counties in which land is located shall by proper resolution consent before such non-Indian land is acquired for the tribe or an individual Indian. No lands or interests in lands owned by the Confederated Tribes of the Colville Reservation shall be subject to disposition hereafter without the consent of the duly authorized governing body of the tribes, and no lands or interests in lands shall be acquired for the tribes without the consent of the said governing body.
Sec. 3. Title to lands or any interest therein acquired pursuant to this Act shall be taken in the name of the United States of America in trust for the tribe or individual Indian and shall be nontaxable as other tribal and allotted trust Indian lands of the Colville Reservation.
Sec. 4. The agreement entered into by the Confederated Tribes of the Colville Reservation and Okanogan and Ferry Counties of the State of Washington on April 21, 1954, is hereby ratified and approved.
Sec. 5. The Business Counsel of the Confederated Tribes of the Colville Reservation shall, in accordance with the resolution numbered 1955-33, dated April 8, 1955, of the Colville Business Council, submit to the Secretary of the Interior within five years from the date of enactment of this Act proposed legislation providing for the termination of Federal supervision over the property and affairs of the Confederated Tribes and their members within a reasonable time after the submission of such proposed legislation.
The original Colville Indian Reservation was created by Executive Order in 1872 and consisted of 2,886,000 acres of land. In 1892 Congress restored what is referred to as the "northern half" (1,500,000) acres of the Reservation to the public domain. Act of July 1, 1892, 27 Stat. 62. Title to the balance, the 1,300,000 "diminished Colville Indian Reservation", remained in the United States for the use and occupancy of the Indians.
In 1906, Congress directed allotments of 80 acres each on the diminished Reservation to members of the Tribes with the opening up of the remaining "surplus" lands within the diminished reservation to entry and settlement. Act of March 22, 1906, 34 Stat. 80 (implemented by Presidential Proclamation, 1916, 39 Stat. 1778.) The result was a reduction in the Colville land base to 200,000 acres.
A major reversal of governmental policy regarding Indian affairs was effectuated by the enactment of the Indian Reorganization (Wheeler-Howard) Act of 1934 (hereinafter referred to as the I.R.A.), 25 U.S.C. § 461 et seq. Comment, Tribal Self-Government and the Indian Reorganization Act of 1934, 70 Mich.L.Rev. 955 (1972). The I.R.A. provided for the restoration of the remaining surplus lands to tribal ownership, which lands had been opened to disposal to non-Indians by the public lands laws. There were 818,000 acres of such land. The I.R.A. provided that the Act would not apply to any reservation if the Indians voted against its application. The Colville Tribes voted against application of the I.R.A. Thus, the 818,000 acres remained open to acquisition by non-Indians in which event said acquired lands would be subject to taxation by the Counties.
In 1956, at the request of the Colville Tribes, Congress enacted PL-772, the subject of this litigation, which provided for restoration of the 818,000 acres to the Tribes and authority for acquisition of ceded lands within the Colville Reservation. Generally, Section 1 of PL-772 provided that the "undisposed-of lands" (818,000) of the diminished Reservation were restored to the United States to be held in trust for the Tribes in the same manner as other trust lands were held. Section 2 sets out the manner in which the Secretary of the Interior could acquire other lands within the diminished Reservation for the benefit of the Tribes. The section provided that the county commissioners shall consent to the acquisition of non-Indian lands before such acquisition takes place. Section 3 instructs that lands taken into trust pursuant to PL-772 are to be non-taxable. Section 4, which is not relevant to the disposition of this matter, "ratifies" a 1954 agreement between the Tribes and Okanogan and Ferry Counties.
Section 5 requires the Tribal Council to submit within five years of the enactment of PL-772 proposed legislation providing for the termination of federal supervision over the affairs of the Tribes.
The Okanogan County Commissioners, in 1961, gave general consent to the acquisition of lands by the United States in trust for plaintiff Tribes and individual Indians; additional general consent was given by Okanogan in 1962. In 1971 Okanogan revoked the 1961 general consent resolution and thereafter considered requests for the acquisition of lands by the United States in trust for the Tribes and individual Indians as the individual parcels were purchased. Beginning in latter 1975, the Okanogan County Commissioners refused to consent to further land acquisitions by the United States. After the refusal to consent, the Secretary of the Interior continued to make such acquisitions, which acquisitions have been taxed by the county.
Prior to 1970, the Board of Ferry County Commissioners gave its consent to the purchase of land within Ferry County by the United States in trust for the plaintiff Tribes and individual Indians on an individual basis. In 1970, Ferry County gave consent to the acquisition of land by the United States in trust unless the Colville Tribes were notified that the Commissioners objected to a transfer within 30 days after receiving notice of the intention to purchase land. On September 11, 1972, the Ferry County Commissioners revoked their consents to the acquisitions retroactive to April 6, 1970, and have since, with one exception (1.94 acres), refused to consent to further land acquisitions by the United States. The Secretary of the Interior continued to make acquisitions. Since September 11, 1972, Ferry County, retroactive to 1969, has taxed those tracts acquired by the United States.
The issues in this action have been significantly distilled since the early pleading stages of the lawsuit. The broad issue now is whether PL-772 allows the counties to tax lands purchased by ...