Wisconsin Cannot Tax Ojibwe Tribes After Win in 7th Circuit Tax Appeal

LCO Tribal Government

Press Release

In a win for four Ojibwe tribes in northern Wisconsin, the Seventh Circuit Court of Appeals ruled on Monday that Wisconsin can’t impose state property taxes on lands owned by the tribes or their members within the permanent homelands (reservations) recognized in the Treaty of 1854. The Lac Courte Oreilles, Bad River, Red Cliff, and Lac du Flambeau Bands of Lake Superior Chippewa had appealed a 2021 ruling by federal district court Judge James Peterson to the contrary.

Following the Supreme Court’s rule that Congress must explicitly authorize a tax that falls on Indians on Indian land, the Court of Appeals found that Congress never authorized property taxes on the Tribes’ reservations. The Court rejected the State’s argument that any time land passed from non-Indian ownership to Indian ownership, it remained taxable.

Vanya Hogen, who argued the case on behalf of the Tribes, said “We are very pleased that the Court of Appeals acknowledged the Tribes’ unbroken Treaty rights and recognized that Congress never authorized the State to impose these property taxes. This is an important victory for the Tribes and their members who have long been subjected to unauthorized taxes—and in some instances, threatened with the loss of their homes.”

“This is a reaffirmation of our sovereign right over our land, including the land our tribe has reacquired that was taken from our people since the 1854 Treaty”. said Lac Courte Oreilles Tribal Chairman Louis Taylor. The Tribal Governing Board is reviewing the Court’s decision to detail the impact this will for the Tribe and our tribal members.

Additional Story from Milwaukee Journal Sentinel

Wisconsin Cannot Tax Ojibwe Lands

The state of Wisconsin cannot tax Ojibwe lands that have returned to tribal ownership after a period of non-tribal possession, a federal appeals court has ruled.

The 7th Circuit Court of Appeals reversed a lower court ruling in the long-running tax immunity case, which was brought against the state and several towns in 2018 by four Ojibwe tribes with reservations in northern Wisconsin.

The tribes — the Bad River, Lac Courte Oreilles, Lac du Flambeau and Red Cliff bands of Lake Superior Chippewa — sued after some of their members were told they owed property taxes on lands they owned that had passed through non-Native hands at some point.

Under an 1854 treaty that promised the Ojibwe a permanent home, tribes and tribal members are immune from taxes on land within their reservations. But the state argued tribal lands forever lose that tax immunity when sold to non-Natives, even if those lands later come back under tribal ownership.

1854 treaty protects tribal owners, appeals court says

In a ruling issued Monday, a three-judge panel of the 7th Circuit disagreed with the state, and found that Congress never authorized the state to tax Ojibwe lands. The panel found that the 1854 treaty protects tribal owners of reservation land from taxation.

The court drew parallels between the tribes' situation and that of religious organizations also exempt from property taxes. Judge Michael Y. Scudder, Jr. wrote that if a church sells its property to a secular bookstore, that land becomes taxable. But if the church buys the space back and uses it for religious purposes, it becomes tax exempt again.

A spokesperson for the Wisconsin Office of the Attorney General said the state is reviewing the court's decision and did not say whether the state would try to appeal the decision to the U.S. Supreme Court.

Taxation threat was a "huge threat"

Mike Wiggins Jr., chairman of the Bad River Band of Lake Superior Chippewa, praised the appellate court's decision as upholding the tribes' treaty rights.

"It's an incredible decision that affirms what we knew all along in terms of our claim of ownership and right to home over our lands and waters here in Bad River," he said. "This is a historic day for Bad River."

Wiggins estimated at least 50 citizens of Bad River have land that would have been subject to property taxes had the court ruled differently. The tribe has also spent more than $3 million reacquiring land on the Bad River reservation since 2009, Wiggins said.

"We've been busy nation building, and that taxation threat as it manifested was a huge threat to our tribal sovereignty and our future land base," he said.

The Associated Press contributed to this story.

Sarah Volpenhein is a reporter who focuses on news of value to underserved communities. You can support such work through the our newsroom's Report for America effort. More information can be found at JSOnline.com/RFA. Email her at svolpenhei@gannett.com.