Queets Band of Indians v. The State of Washington, Muckleshoot Indian Tribe v. The State of Washington

EUGENE A. WRIGHT, Circuit Judge,

dissenting:

The majority concludes that tribal ordinances providing for the licensing of tribal vehicles preempt the state’s authority to require state licenses and registration when the vehicles travel off reservation. I dissent because the state motor vehicle licensing scheme is nondiscriminatory and hence may be applied to tribal activities off reservation, including the operation of motor vehicles, absent Congressional action evincing a contrary intent.

The majority notes that “there is apparently no federal law which would require us to give broad federal preemptive effect to the Tribes’ ordinances.” However, it cites Crow Tribe of Indians v. Montana, 650 F.2d 1104, 1109 (9th Cir.1981), amended 665 F.2d 1390 , cert. denied, 459 U.S. 916 , 103 S.Ct. 230 , 74 L.Ed.2d 182 (1982), for the proposition that in the area of Indian preemption express federal statements are unnecessary. However, both Crow Tribe and the case it relied upon, White Mountain Apache Tribe v. Bracker, 448 U.S. 136 , 100 S.Ct. 2578 , 65 L.Ed.2d 665 (1980), involved state attempts to exert taxing authority over on reservation activities by non-Indians.

In White Mountain, the Court in a footnote to the passage acknowledging that application of state law to on reservation activity may be preempted without express *1410 Congressional statements to that effect said: “In the case of ‘Indians going beyond reservation boundaries,’ however, a ‘nondiscriminatory state law’ is generally applicable in the absence of ‘express federal law to the contrary.’ ” Id., 448 U.S. at 144 n. 11, 100 S.Ct. at 2584 n. 11 (quoting Mes-calero Apache Tribe v. Jones, 411 U.S. 145, 148-149 , 93 S.Ct. 1267, 1270-1271 , 36 L.Ed.2d 114 (1973)).

Applying the presumption of preemption applicable when a state attempts to enforce its laws on reservation here, ignores the fact “that there is a significant geographical component to tribal sovereignty, a component which remains highly relevant to the pre-emption inquiry____” White Mountain Apache Tribe, 448 U.S. at 151 , 100 S.Ct. at 2587 . The dichotomy between a state’s authority to enforce otherwise nondiscriminatory regulations off reservation and on is evidenced by the results in two companion cases decided by the Supreme Court in 1973.

In Mescalero Apache Tribe v. Jones, the Court upheld New Mexico’s rights to collect a nondiscriminatory gross receipts tax from a ski resort owned and operated by the tribe but located off reservation. However, on the same day, in McClanahan v. Arizona State Tax Commission, 411 U.S. 164 , 93 S.Ct. 1257 , 36 L.Ed.2d 129 (1973), the Court held that Arizona’s personal income tax was “unlawful as applied to reservation Indians with income derived wholly from reservation sources.” Id. at 165 , 93 S.Ct. at 1259.

What is really at issue here is the authority of the state to require the tribes to purchase state license plates, without a reduced fee, in order to operate tribal vehicles on public highways off reservation. The only significant burden on the tribe is the cost of securing state license plates. Cf. Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 156 , 100 S.Ct. 2069, 2082 , 65 L.Ed.2d 10 (1980) (Washington cigarette tax does not infringe rights of tribal sovereignty merely because its result is to deprive the tribes of revenue).

As the majority notes, “[tjribal reservations are not States,” infra p. 1408 (quoting White Mountain, 448 U.S. at 143 , 100 S.Ct. at 2076 ). The decision whether to accord tribal licensing schemes the same status as sister states rests with the legislature. While there may be policy arguments in favor of offering reciprocity or providing reduced fee license plates to tribes as other states have done, see infra pp. 1403-1404, 1 it is inappropriate for us to substitute our judgment for that of the state’s elected representatives.

In the absence of contrary Congressional intent, I would uphold the state’s right to apply its nondiscriminatory licensing scheme to tribal vehicles operating off reservation. I dissent.

. Of the states noted by the majority, only Minnesota offers reciprocity. The others register and license tribal vehicles through the state for a reduced fee or at no charge.