Amicus Curiae Brief — Frank W. Bibeau, Petitioner v. Commissioner of Internal Revenue

No. 24-804

In the

Supreme Court of the United States

FRANK W. BIBEAU,

Petitioner,

v.

COMMISSIONER OF INTERNAL REVENUE,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Eighth Circuit

BRIEF OF AMICUS CURIAE

SAUK-SUIATTLE INDIAN TRIBE

IN SUPPORT OF PETITIONER

SEEKING GRANT OF CERTIORARI

Jack Warren Fiander

Counsel of Record

Dillon Louis Spiess

5318 Chief Brown Lane

Darrington, WA 98241

(360) 436-0139

jfiander@sauk-suiattle.com

Counsel for Amicus Curiae

120290

A

(800) 274-3321 • (800) 359-6859

i

QUESTION PRESENTED

May the Commissioner of Internal Revenue, apply a

federal income tax to sums paid to an enrolled Chippewa

member performing labor for the Chippewa Tribe on the

tribe’s reservation and lands within which the Chippewa

hold treaty rights where there is an express exemption

from taxation in a treaty signed by the Chippewa stating

they would not be subject to a tax of any kind, where

application of the tax constitutes taxing an activity

the United States expressly required the Chippewa

to perform in the treaty, and where nothing is in the

Fourteenth or Sixteenth Amendment nor in any federal

statute authorizing application of a tax.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv

INTEREST OF THE AMICUS CURIAE . . . . . . . . . . 1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 6

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Leaving tribal nations free from taxation

is deeply rooted in our nation’s history. The

Constitutional founders, in acknowledgment

that the Indian nations were not subject to

taxation entered treaties with the Chippewa

providing they were not, and no plain text of

Constitutional Amendment nor Congressional

Act can be read as authorizing such taxation . . . . . . 9

T reat ies a re the Supreme Law of the

Nation. Neither the 1817 Treaty with the

Chippeawa nor any subsequent treaty or act

of Congress has abrogated the treaty right

claimed by petitioner Bibeau . . . . . . . . . . . . . . . . . . . 12

iii

Table of Contents

Page

REASONS FOR GRANTING THE WRIT . . . . . . . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

iv

TABLE OF CITED AUTHORITIES

Page

Cases:

Adoptive Couple v. Baby Girl,

570 U.S. 637 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Brown v. United States,

8 Cranch 110 (1814) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Couer d’Alene Tribal Farm v. Donovan,

751 F.2d 1113 (9th Cir. 1985) . . . . . . . . . . . . . . . . . . . 15

Dobbs v. Jackson Women’s Health Organization,

597 U.S. , No. 19-1392 (June 24, 2022) . . . . . . 16, 17

Fed. Power. Comm. v. Tuscarora Indian Nation,

362 U.S. 99 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Fellows v. Blacksmith,

60 U.S. (19 How.) 366 (1857) . . . . . . . . . . . . . . . . . . . . 13

Franchise Tax Bd. of Cal v. Hyatt,

587 U.S. 230 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9

Herrera v. Wyoming,

139 S. Ct. 1686 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . 12

Lac du Flabeau v. Coughlin,

__ U.S. __, 143 S. Ct. 1689 (2023) . . . . . . . . . . . . . . . 14

Lone Wolf v. Hitchcock,

118 U.S. 553 (1903) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

v

Cited Authorities

Page

Loper Bright Enterprises v. Raimondo,

U.S. , No. 22-451 (June 28, 2024) . . . . . . . . . . . 18

Lumber Industry Pension Council v.

Warm Springs Forest Products,

730 F. Supp. 324 (E.D. Cal. 1990) . . . . . . . . . . . . . . . 14

Mcllvaine v. Coxe’s Lessee,

4 Cranch 209 (1808) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Menominee Tribe of Indians v. United States,

391 U.S. 404 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Minnesota v. Mille Lacs Band of

Chippewa Indians,

526 U.S. 172 (1999) . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Montana v. Blackfeet Tribe of Indians,

471 U.S. 759 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Pollock v. Farmers’ Loan & Trust Co.,

158 U.S. 601 (1895) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Ramsey v. United States,

302 F.3d 1074 (9th Cir. 2002) . . . . . . . . . . . . . . . . 14, 15

Squire v. Capoeman,

351 U.S. 1 (1956) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

The Kansas Indians,

72 U.S. (5 Wall.) 737 (1867) . . . . . . . . . . . . . . . . . . . . . 13

vi

Cited Authorities

Page

United States v. Brown,

777 F.3d 1025 (8th Cir. 2015) . . . . . . . . . . . . . . . . . . . 13

United States v. Dion,

476 U.S. 734 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

United States v. Holliday,

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

United v. Kagama,

118 U.S. 375 (1885) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

United States v. Rogers,

45 U.S. (4 How.) 567 (1846) . . . . . . . . . . . . . . . . . . . . . 13

United States v. Washington,

384 F. Supp. 312 (W.D. Wash. 1974), affirmed

520 F. 2d 676 (1975), cert. denied,

423 U.S. 1086 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Winans,

198 U.S. 371 (1905) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Worcester v. Georgia,

6 Pet. 615 (1832) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Other Authorities:

1855 Treaty of Point Elliott, 12 Stat. 927 (1859) . . . . . . . 1

1855 Treaty with the Chippewa . . . . . . . . . . . . . . . . . . 2, 7

vii

Cited Authorities

Page

1817 Treaty with the Chippewa . . . . . . . . . . . . 2, 6, 12, 15

1837 Treaty with the Chippewa . . . . . . . . . . . . . . . . . 7, 11

1826 Treaty with the Chippewa . . . . . . . . . . . . . . . . . . . 11

Indian Citizenship Act of 1924 . . . . . . . . . . . . . . . . . . 8, 15

Sixty-eighth Congress. Sess. 1. Chap. 233 . . . . . . . . 5, 15

U.S. Const., amend. XVI . . . . . . . . . . . . . . . . . . 5, 8, 15, 16

E. de Vattel, The Law of Nations . . . . . . . . . . . . . . . . . . . 4

United States Constitution . . . . . . . . . . . . . . . . . . . . . . . 18

Opinions of the Solicitor 57 I.D. 195 (1940) of the

U.S. Department of the Interior . . . . . . . . . . . . . . . . 10

Opinions of the Solicitor, 51 I.D. 326, No. M-17187

(Jan. 20, 1926) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

1

INTEREST OF THE AMICUS CURIAE1

Amicus Curiae is a federally recognized sovereign

tribal Nation and a signatory to the 1855 Treaty of Point

Elliott, 12 Stat. 927 (1859), with the United States. Amicus

is situated similarly to petitioner, whose homeland, or

reservation, is the result of a Treaty with the United

States.

In the Treaty, the Sauk-Suiattle, then known as the

Sah-ku-mehu, and other tribes and bands ceded millions

of acres of their territory to the United States and it was

agreed that reservations they would remove to certain

homelands reserved from the cession denominated

as reservations. In return, the United States agreed

to provide the means necessary for the Indians to

become self-sustaining within such reser vations. 2

1. All parties have been timely notified.

2. As stated in the Point Elliott Treaty:

The United States further agree to establish at the

general agency for the district of Puget’s Sound,

within one year from the ratification hereof, and to

support for a period of twenty years, an agricultural

and industrial school, to be free to children of the

said tribes and bands in common with those of the

other tribes of said district, and to provide the said

school with a suitable instructor or instructors, and

also to provide a smithy and carpenter’s shop, and

furnish them with the necessary tools, and employ a

blacksmith, carpenter, and farmer for the like term of

twenty years to instruct the Indians in their respective

occupations.

(Emphasis added).

2

Similar provisions appear in the 1855 Treaty with the

Chippewa. 3

Basically, the provisions of the 1855 Treaty with

the Sauk-Suiattle and those in the 1855 Treaty with the

Chippewa regarding the promotion of Indian labor are

similar. Consequently, amicus curiae is similarly situated

to petitioner.

INTRODUCTION

In the earliest days of our Republic, federal courts

understood that federal laws could not apply to Indians in

Indian Country. Beginning in 1885, however, this Court

began experimenting with a radically different approach,

judicially vesting the federal government with seemingly

unlimited power over separate sovereigns which was not

apparent in the Constitution. See United v. Kagama, 118

U.S. 375 (1885). Applying this new approach, judges began

rewriting history. See Lone Wolf v. Hitchcock, 118 U.S. 553

(1903). With time, the error of this approach has become

widely recognized.

Today, courts across this country continue to struggle

with this Court’s conflicting legal doctrines. Nowhere is

3. “The Mississippi bands have expressed a desire to be

permitted to employ their own farmers, mechanics, and teachers;

and it is therefore agreed that the amounts to which they are now

entitled, under former treaties, for purposes of education, for

blacksmiths and assistants, shops, tools, iron and steel, and for

the employment of farmers and carpenters, shall be paid over

to them as their annuities are paid[.]” Treaty with the Chippewa

1817 (emphasis added).

3

this conflict more apparent than when it comes to taxes.4

This case presents an ideal vehicle to return to the original

principles governing the relations of tribal nations with

the United States in the Constitution.

Congress has never abrogated tribal tax immunity. 5

Nevertheless, the Eighth Circuit maintains that Indians

are just like all Americans; and are thus, “subject to

federal incomes taxes unless a specific law or treaty

provides otherwise.” History says otherwise. As settlers

set out across Atlantic, they brought with them their own

set of legal principles. Experienced colonizers, the British,

4. Cherokee Tobacco, 73 U.S. (11 Wall.) (1870, overruled by

United States v. Forty-Three Gallons of Whiskey; The Kansas

Indians, 72 U.S. (5 Wall) 737 (1867); Choate v. Trapp, 244 U.S.

665); Ward v. Board of County Commr’s of Love County, 253 U.S.

17 (1920); Board of County Commissioner v. Seber, 318 U.S. 705

(1943); Choteau v. Burnett, 283 U.S. 691 (1931); Five Civilized

Tribes v. Commissioner, 295 U.S. (1935); Squire v. Caopeman,

351 U.S. 1 (1956); Warren Trading Post v. Arizona Tax Comm’n,

380 U.S. 685 (1965); County of Yakima v. Confederated Tribes

and Bands of Yakima Nation, 502 U.S. 251 (1992), overruled by

Upper Skagit v. Lundgren, 584 U.S. 554 (2018); Moe v. Salish

Kootenai Tribe, 425 U.S. 463 (1978); Mescalero Apache v. Jones,

411 U.S. (1973); Washington v. Confederated Tribes of Colville

Indians, 447 U.S. (1980); Merrion v. Jicarilla Apache Tribe, 455

U.S. 130 (1982); Cotton Petroleum Corp. v. New Mexico, 490 U.S.

163 (1989); Oklahoma Tax Comm’n v. Citizen Band Potawatomi

Tribe of Okla., 498 U.S. 505 (1991).

5. The word “exemption” often denotes a right to be free from

taxation which exists because it has been granted by a sovereign.

Accordingly, when referring to tribal taxes be more accurate to

use the word “immunity.” In any event, the term “exemption”

has been defined to include “immunity,” from a “general from a

general burden, tax, or charge.” Blacks Law Dictionary 681, 885

(4th ed. 1951).

4

were no strangers to The Law of Nations. Guided by

international law, the British began entering to treaties

with tribal Nations across North America. Under this

arrangement—much like the “tributary” and “feudatory”

states of Europe—tribes remained “sovereign and

independent” with the “exclusive” right to govern their

internal affairs. See, E. de Vattel, The Law of Nations,

60-61; see also, Worcester v. Georgia, 6 Pet. 615 (1832).

Following the Seven Year War—and its North

American counterpart, the French and Indian War—

Britain, strapped for cash, began taxing the colonists.

In the eyes of the colonists, these taxes were illegal.

Consequently, in 1776, the colonies—called to arms by

the rallying cry “No Taxation Without Representation”—

banded together and declared Independence.

After the Revolutionary War, the colonies emerged

as independent states under the Articles of Confederacy.

Under the Articles each State was “considered themselves

to be fully sovereign.” Franchise Tax Bd. Of Cal v. Hyat,

587 U.S. 230, 248 (2019). Accordingly, like tribes they

were entitled “to all the rights and powers of a sovereign

state” under international law. Mcllvaine v. Coxe’s Lessee,

4 Cranch 209, 212 (1808).

But with time, this arrangement proved unworkable.

Unable to impose taxes, the central government often

relied on contributions from the states. But as expenses

outpaced the contributions, the young nation convened to

come up with a solution.

In 1787, representatives from across the former

colonies gathered to come up with a solution. Well versed

in “international law,” Franchise Tax Board, and acutely

5

aware of the issues of taxation, the Founders agreed that

the federal government’s power to impose direct taxes

would be based on representatives “apportioned among

the several states.” U.S. Const. Art, I, §9, cl. 4, “excluding

Indians not taxed.” Art. I, §2, cl. 3. The Nation’s first

federal income tax was enacted in 1861 to pay for the costs

of the Civil War. However, in 1895, the Court struck down

a major portion of the 1861 tax. The Supreme Court held in

Pollock v. Farmers’ Loan & Trust Co., 158 U.S. 601 (1895),

that the provisions for a tax on property were invalid.

In 1913, in response to Pollock, the States and

Congress ratified the Sixteenth Amendment. Immediately,

thereafter, Congress enacted the Internal Revenue Code.

Since then the Code has been multiple times.

Ultimately, it was not until 1924—eight years after

the Sixteenth Amendment was ratified—that Indians even

became citizens. Tribal members are not like all other

Americans. They are members of a preexisting sovereign.

And as members of a preexisting they also have property

rights governed by contracts with the United States.

Tribal members were not considered “people” until

1924.6 They were not citizens at the time the Constitution

was ratified or when the Sixteenth Amendment was

ratified. The Constitution expressly excludes tribal

members from taxation. Unlike states, tribal Nations

never surrendered their sovereignty. To the contrary, they

expressly preserved it. How can it be said that United

States, which never had original sovereignty over tribal

members, can impose a tax upon tribal citizens?

6. Sixty-eighth Cong., Sess. 1, Ch. 233.

6

STATEMENT OF THE CASE

Amicus cur iae incorporates by reference the

Statement of the Case of Petitioner Frank Bibeau, an

enrolled member of the Chippewa tribe who is employed

by his tribe on the Leech Lake Reservation in Minnesota.

In a treaty with the United States, the Chippewa kept

the right to hunt, fish, and gather the wild rice on their

traditional lands. Bibeau incurred a tax liability for 2016

and 2017 $6,000. He has never paid this tax debt. The

services he was paid for involved researching protection

of tribal natural resources for hunting, fishing and

gathering rights and for serving as an Election Judge and

representing the tribe in election disputes in the tribe’s

court.

SUMMARY OF ARGUMENT

The United States engaged in not less than 44 treaties

with the Chippewa. In one of the first ones, the 1817

Treaty with various tribes and bands of the Chippewa,

the United States, in consideration of the cession millions

of acres of Chippewa lands, agreed to set aside certain

tracts which “shall not be liable to taxes of any kind so long

as such land continues the property of the said Indians.”

Subsequent, more detailed treaties with the Chippewa, did

not abrogate the 1817 treaty. Rather, in them the United

States bargained for the cession of described Chippewa

lands and relocated its tribes and bands to discrete tracts

distant from white settlement.7

7. Congress “renegotiated” the terms of their agreement

more than once. But none of the 44 treaties that followed expressly

abrogated the terms of the 1817 Treaty. Nevertheless, the Eighth

7

Subsequent treaties, sought to promote industrialism

among the Chippewa and encourage their engagement

in labors similar to those engaged in by their nontribal

neighbors. The 1837 and 1855 Treaties with the Chippewa,

for example, in consideration of additional land cessions

and promises by the Chippewa, provided that the United

States would provide such things as blacksmith shops, iron

and steel, seed and grain for farmers “with implements of

labor,” and “and whatever else may be necessary to enable

them to carry on their agricultural pursuits.”

In short, the United States agreed to pave the way for

the Chippewa to engage in labor within their reservation,

promised to provide the means and education for doing

so, and the Chippewa accepted those terms in the treaty

expressing their intent to be taught in labor as a means

of self-sufficiency in return for relinquishing their lands.

Consequently, application of the federal income tax to

income earned from the labor of a Chippewa working for

his or her tribe on their reservation as the United States

and the Chippewa promised to engage in constitutes

taxation of an activity which both parties to the treaty

agreed was a provision agreed to. The United States, then,

is taxing the very activity the United States required as

a term of the treaty and which the Chippewa promised to

perform according to the Treaty.

The current court-created doctrine regarding the

applicability of federal taxes and regulations to reservation

Indians is that federal laws of “general applicability”

Circuit finds that tribal members are just like all Americans and

are therefore “subject to federal tax law unless a specific law or

treaty provides otherwise.”

8

apply to Tribes unless: (a) there is an express exemption

in the federal statute; (b) application of the law infringes

upon the internal or social relations of the tribe; or (c)

application of the tax or regulation conflicts with a treaty.

This case is distinguishable from recent cases holding

that federal tax laws of general applicability apply to

reservations unless there existed an “express” exemption

from a tax in the treaty. Neither party to the Treaties

with the Chippewa could have contemplated the need to

put an express exemption from federal income taxation in

the Chippewa treaties because no such tax even existed

at the time of the treaty. The first federal income tax was

not enacted by the United States Congress until 1861 and,

presumably, could not have extended to tribal nations who

were not citizens of the United States.

Finally, as argued in the petition of petitioner, neither

the Constitution, Fourteenth or Sixteenth Amendment

nor the 1913 or 1924 Indian Citizenship Acts can be read

as authorizing application of federal income taxes to the

labor performed by reservation Indians working for their

own tribe consistent with their treaty rights.

9

ARGUMENT

Leaving tribal nations free from taxation is deeply

rooted in our nation’s history. The Constitutional

founders, in acknowledgment that the Indian nations

were not subject to taxation entered treaties with the

Chippewa providing they were not, and no plain text

of Constitutional Amendment nor Congressional Act

can be read as authorizing such taxation.

After the Revolutionary War for independence, the

Framers, who were “well versed in international law”

recognized that tribal citizens were members of another

of sovereign.. Franchise Tax Bd. of Cal v. Hyatt, 587

U.S. 230, 238-239; see, e.g. U.S. Const. Art II, §2, cl. 2.;

Art I, §8, cl.3. Specifically, the Framers, agreed that the

lower branch—which is responsible for all bills related

to revenue, Art I, §7 cl. 1—would be “apportioned among

the several states, Art. I §9, cl. 4 “excluding Indians not

taxed.” Art. I, §2 cl 3. (emphasis added).

Acting Solicitor John P. McDowell was asked by

Assistant Secretary of Interior John Edwards “as to

whether the income of Tom Pavatea, an Indian of the

Hopi Tribe, Arizona, and other Indians in a like situation,

is subject to an income tax under our Internal Revenue

laws.”8 McDowell concluded that:

The income here in question accruing to

Tom Pavatea was derived from sources

almost entirely, if not exclusively, within the

reservation set apart for the use of the tribe

of which he is a member, and for the reasons

8. Solicitor McDowell’s opinion can be found at https://thorpe.

law.ou.edu/sol_opinions/p126-150.html#m-17187

10

herein given I am of the opinion that such

income is not taxable under existing Internal

Revenue law.

Opinions of the Solicitor, 51 I.D. 326, No. M-17187 (Jan.

20, 1926). As another Solicitor of Interior later put it:

The apparent intention of the [constitutional]

convention was that representative in the

lower branch of Congress be a apportioned

according to the number of people who

constituted the community of people of the

United States….Indians [as] members of a

sovereign were outside the community of

people the United States.

Opinion of the Solicitor, 57 I.D. 195, 197 (1940). (emphasis

added). Thus, the Solicitor reasoned that even though

tribal members were located within the boundaries of the

United States, “their exclusion from the constitutional

framework at the time of its adopt[ion] exempted tribal

members from federal taxation.” Id.

The opinion of the Solicitors is consistent with that

of the Senate Judiciary Committee. When reporting

to Congress regarding the effect of enactment of

the Fourteenth Amendment upon Indian tribes in

1871, the Committee found that it was “universally

recognized” that tr ibal members by, and having

treaties with, the United States were exempt “from the

operation or our laws and the jurisdiction of our court.” 9

9. U.S. Senate, Committee on the Judiciary, “The Effect of

the Fourteenth Amendment on Indians Tribes,” Senate Report

No. 268, 41st Congress, 3d session (Washington, D.C.: Government

Printing Office, 1871).

11

As they put it:10

To maintain that the United States, by change

of its fundamental law, which was not ratified

by these tribes, and to which they were neither

requested nor permitted to assent, to annul

treaties then existing between the United State,

and Indian tribes as the other perspective,

would charge upon the United state repudiation

of [its] nations obligations.

Consequently, the report concluded that the phrase

dealing with jurisdiction specifically intended to exempt

Indians from direct taxation.

Not only did early treaties with the Chippewa express

a tax exemption, they unequivocally appear to have been

intended to promote labor among the Chippewa.11 In the

1826 Treaty with the Chippewa, the United Sates agreed

to establish a fund for the education of the Chippewa,

“In consideration of the poverty of the Chippewas, and

of the sterile nature of the country they inhabit, unfit for

cultivation, and almost destitute of game, and as a proof

10. Id.

11. “In consideration of the cession aforesaid, the United

States agree to make to the Chippewa nation, annually, for

the term of twenty years, from the date of the ratification of

this treaty, the following payments. Three thousand dollars for

establishing three blacksmiths shops, supporting the blacksmiths,

and furnishing them with iron and steel. One thousand dollars for

farmers, and for supplying them and the Indians, with implements

of labor, with grain or seed; and whatever else may be necessary

to enable them to carry on their agricultural pursuits.” Treaty

with the Chippewa, 1837, Article 2.

12

of regard on the part of the United States[.]” Article 5.

In Article 2 of the September 29, 1817 Treaty between

the United States and the Chippewa and other tribes, the

Pottawatomie, Ottowa and Chippewa ceded vast acreages

of their homeland to the United States and, in Article 15:12

The tracts of land herein granted to the chiefs,

for the use of the Wyandot, Shawnese, Seneca,

and Delaware Indians, and the reserve for the

Ottawa Indians, shall not be liable to taxes of

any kind so long as such land continues the

property of the said Indians.

Id.

Treaties are the Supreme Law of the Nation. Neither

the 1817 Treaty with the Chippeawa nor any subsequent

treaty or act of Congress has abrogated the treaty right

claimed by petitioner Bibeau.

“Treaty analysis begins with the text,” and treaties

“are construed as they would naturally be understood by

the Indians.” Herrera v. Wyoming, 139 S. Ct. 1686, 1701

(2019) (citation omitted). A court is to “look beyond the

written words to the larger context that frames the Treaty,

including ‘the history of the treaty, the negotiations, and

practical construction adopted by the parties. Minnesota

v. Mille Lacs Band of Chippewa Indians, 526 U.S.

172, 196 (1999) (citation omitted). Treaties are to be

interpreted “liberally, resolving uncertainties in favor

12. The tracts of land herein granted to the chiefs, for the use

of the Wyandot, Shawnese, Seneca, and Delaware Indians, and the

reserve for the Ottawa Indians, shall not be liable to taxes of any

kind so long as such land continues the property of the said Indians

13

of the Indians[.]” United States v. Brown, 777 F.3d 1025,

1031 (8th Cir. 2015) (citing Mille Lacs, 526 U.S. at 200).

Statutes, likewise, are to be “construed liberally in favor

of the Indians, with ambiguous provisions interpreted to

their benefit[.]” Montana v. Blackfeet Tribe of Indians,

471 U.S. 759, 766 (1985).

In the earliest days of our Republic, the Court,

often recognizing the delicate balance between the two

nations, was very careful to defer to the political branch

to resolve any issues that may arise involving Indians

in Indian Country. See, e.g., Brown v. United States 8

Cranch 110, 129 (1814) (Marshall, C.J., for the Court); The

Kansas Indians, ; United States v. Rogers, ; Fellows v.

Blacksmith, ; United States v. Holliday. After all, they

are confined to “interpreting” treaties, rather abrogating

them.

The current Internal Revenue Code states that income

tax applies to “every individual” and to “all income from

whatever source derived.”13 Similarly, other provisions of

the Code speak in terms of “any person.” This appears

irreconcilable with the 1817 treaty with the Chippewa.

See, e.g., United States v. Dion, 476 U.S. 734, 739 (1986)

(treaty abrogation requires “clear evidence that Congress

actually considered the conflict between its intended

action on the one hand and Indian treaty rights on the

other, and chose to resolve the conflict by abrogating the

treaty “ . . . We do not construe statutes as abrogating

treaty rights in a ‘backhanded way’.”) (quoting Menominee

Tribe of Indians v. United States, 391 U.S. 404, 412 (1968))

(emphases added).

13. 26 U.S.C. §§ 1, 61.

14

The Supreme Court has said that the prevailing rule

by which we are bound is that general acts of Congress,

apply to Indians unless a statue or a treaty expressly

exempts them.14 Fed. Power. Comm. v. Tuscarora Indian

Nation, 362 U.S. 99, 115–16, 80 S.Ct. 543, 4 L.Ed.2d 584

(1960). But whether there is an express exemption is just

one of a three-part test, and whether an exemption is

“express” need not be couched in terms of federal taxation.

There is no express exemption for tribes in Title 26

of the United States Code statutes, but language in a

treaty, construed in favor of a tribe, can be considered an

“express exemption.” See Ramsey v. United States, 302

F.3d 1074 (9th Cir. 2002):

The applicability of a federal tax to Indians

depends on whether express exemptive

language exists within the text of the statute or

treaty. The language need not explicitly state

that Indians are exempt from the specific tax

at issue; it must only provide evidence of the

federal government’s intent to exempt Indians

from taxation. Treaty language such as “free

14. The courts have legislated a test that laws of general

applicability apply to tribes unless (1) there is an express

exemption in the federal statute, (2) application of the federal law

intrudes on internal tribal social relations, or (3) conflicts with

treaty rights. The test is in Lumber Industry Pension Council

v. Warm Springs Forest Products, 730 F. Supp. 324 (E.D. Cal.

1990). The federal bankruptcy act, an act of general applicability,

applied to tribes in Lac du Flabeau v. Coughlin because none of

the three factors was involved and tribes fell within the definition

of governmental unit in the bankruptcy act. __ U.S. __, 143 S. Ct.

1689 (2023). However, as to the federal income tax, the federal

income tax code statutes are silent.

15

from incumbrance,” “free from taxation,” and

“free from fees,” are but some examples of

express exemptive language required to find

Indians exempt from federal tax.

In Ramsey and Couer d’Alene Tribal Farm v.

Donovan, 751 F.2d 1113 (9th Cir. 1985) there was no

treaty exemption or treaty language whose ambiguity

could be construed as an exemption. The 1817 Chippewa

Treaty, however, has an exemption. Neither that or any

other Chippewa treaty would have been understood by the

Indians15 as subjecting them to federal income tax at the

time of the treaties because there was no such thing as a

federal income tax until 1861 when Congress passed the

short-lived Revenue Act of 1861 which was later repealed

in 1872—which was after the Chippewa treaties were

executed, so it could not have been understood as possibly

applicable at treaty-time.16

Article 10 of the 1817 treaty with the Chippewa

provided inter alia that a superintendent or agent shall

be employed to teach Indians in the industries such as

blacksmithing or running a grist-mill. This is saying under

the treaty the Indians agreed by treaty to learn about and

to perform “labor.” It is taxing a treaty right.

Treaties which are similar to the Chippewa treaties

have been held to not require or limit the tribes to

15. See, United States v. Winans, 198 U.S. 371 (1905).

16. Nor can the Sixteenth Amendment, ratified in 1913, be

reasonably read as subjecting Indians to taxation. Tribal Indians

were not citizens of the United States until enactment of the Indian

Citizenship Act of 1924. Sixty-eighth Congress. Sess. I. Chap. 233

(Indians born in U.S. declared citizens), p. 253

16

exercising their treaty rights in manners that existed only

at the time of the treaty such exercising treaty-reserved

hunting rights only with bows and arrows or fishing only

with nets made out of hemp. United States v. Washington,

384 F. Supp. 312, 407 (W.D. Wash. 1974), affirmed 520

F. 2d 676 (1975), cert. denied, 423 U.S. 1086 (1976). This

is pertinent because Frank W. Bibeau may not be earning

pay from his tribe for performing labor as a blacksmith or

growing grain but, rather, as a professional attorney, he

is still being taxed for engaging in treaty-rights-related

activities.

REASONS FOR GRANTING THE WRIT

The principle of leaving Indian tribes free from

taxation is deeply rooted in our nation’s history.

Notwithstanding that nothing in the plain text of the

Constitution, nothing in the Fourteenth nor Sixteenth

Amendments, and nothing in the 1913 Citizenship Act

or the 1924 act extending citizenship to Indians—nor

the Internal Revenue Service Code—can be read as

expressing intent to tax the income of Indians paid for

working for their own tribe in Indian Country, the courts

have once again fashioned an artificial penumbra of such

authority. This case presents an ideal vehicle to return

to the original constraints on the authority of the United

States over Indians in Indian Country in the Constitution.

In Dobbs v. Jackson Women’s Health Organization,

597 U.S. ___, No. 19-1392 (June 24, 2022), this Court

noted that historical inquiries are essential whenever the

Court is asked to review the constitutionality of a law. In

Dobbs, the Court determined that, since the Constitution

made no express reference to the right claimed, the party

17

asserting it—in this case the Commissioner of Internal

Revenue Service—must show that the right is somehow

implicit in the constitutional text. In this case, leaving

reservation Indians free from taxation is deeply rooted

in our nation’s history. Nevertheless, the Government

claims the right to impose such taxes upon petitioner in

the absence of such authority in the text of the Constitution

or in any a statute by cobbling together an assemblage

of vague phrases such as plenary authority, domestic

dependency, or regulating commerce17 with the Indians.

In Dobbs, the Court unequivocally held that assembling

such multiple phrases in support of an implied right which

does not appear in the constitutional text fails to meet

constitutional muster, just as it does in this case.

The writ sought by petitioner should also be granted

in order to bring decisions of the Circuit courts of appeal

in conformity with Constitutional intent. Both the 8th

Circuit in this case, and the 9th Circuit in Ramsey, in an

effort to extend Squire v. Capoeman18 beyond its facts,

have legislated a court-created test requiring that in order

for an Indian treaty or statute to provide an exemption

17. As stated in Adoptive Couple v. Baby Girl, 570 U.S. 637

(2013), “the Clause does not give Congress the power to regulate

commerce with all Indian persons any more than the Foreign

Commerce Clause gives Congress the power to regulate commerce

with all foreign nationals traveling within the United States. A

straightforward reading of the text, thus, confirms that Congress

may only regulate commercial interactions—‘commerce’—taking

place with established Indian communities—‘tribes.’ That power

is far from ‘plenary.’” (Thomas, J., concurring).

18. In Squire v. Capoeman, 351 U.S. 1 (1956), the court held

that, for an Indian tax exemption to be recognized it need not be

“expressly couched in terms of nontaxability.”

18

from federal taxation there must be express language

appearing in text exempting tribes from such taxes.

In the late Nineteenth Century, the courts of this

nation took it upon themselves to depart from the

Founders’ intentions regarding the relationship of the

United States with tribal nations, resulting in judicial

amendment of the Constitution and Congressional acts

which make no mention of them. As was correctly stated

in Loper Bright Enterprises v. Raimondo, ___ U.S. ___,

No. 22-451 (June 28, 2024), the weight to given to prior

decisions depends “upon the quality of its reasoning, its

consistency with related decisions, its workability, and

reliance interests that have formed around it” (Gorsuch,

J., concurring):

The first factor recognizes that the primary

power of any precedent lies in its power to

persuade—and poorly reasoned decisions

may not provide reliable evidence of the law’s

meaning. The second factor reflects the fact

that a precedent is more likely to be correct

and worth of respect when it reflects the timetested wisdom of generations than when it sits

unmoored from surrounding law.

Id. Generations ago, at a Constitutional Convention, the

originators of the United States Constitution exercising

the wisdom of Elders determined that taxes were not

to be applied to tribal nations in their territory since,

by agreeing to make peace, learn new ways, and convey

millions of acres of lands to enable expansion of this

Nation, they have surrendered an amount which far

exceeds what might have been required as taxes.

19

CONCLUSION

The federal taxation of Chippewa Indians under the

specific facts of this case has not been authorized by an

express act of Congress. Petitioner asks this Court to

grant review for the purpose of allowing this court the

opportunity to thoroughly review the ruling of the Circuit

Court below and find that Congress never authorized

the federal taxation of the income of Indians; or, in the

alternative, to find that federal taxing authority cannot tax

income derived from specific, treaty-protected activities

arising from a treaty in which the United States can be

deemed to have bargained for a cession from the Chippewa

of millions of acres of land as payment in lieu of taxes to

the United States for as long as the rivers in their territory

shall flow.

Amicus Curiae respectfully urges the Court to grant

the petition.

Respectfully submitted,

Jack Warren Fiander

Counsel of Record

Dillon Louis Spiess

5318 Chief Brown Lane

Darrington, WA 98241

(360) 436-0139

jfiander@sauk-suiattle.com

Counsel for Amicus Curiae