Amicus Curiae Brief — Board of County Commissioners v. United States

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Office - Supreme Gourt,

( FILWD

JAN 18 1945

CHARLES ELMORE OR

In the | ove

Supreme Court of the United States

OCTOBER TERM, 1944

No 786 3

77> —

THE BOARD OF THE COUNTY COMMISSION-

ERS OF THE COUNTY OF FREMONT, WYO-

MING; GEORGE C. McRAE, Treasurer of Fre-

mont County, Wyoming; and ERNEST H.

HARTMAN, Assessor of Fremont County,

Wyoming,

Petitioners and Appellees Below,

vs.

UNITED STATES OF AMERICA,

Respondent and Appellant Below.

ane

BRIEF OF AMICI CURIAE

OPPOSING PETITION FOR WRIT OF CERTIORARI

Georce M. Tunison,

Omaha, Nebraska

Cuartes J. Kappuer,

Washington, D. C.

Amici Curiae

Counsel for the Shoshone Tribe

of Indians of the Wind Reserva-

tion in Wyoming.

COCKLE PRINTING COMPANY, LAW BRIEFS, OMAHA

INDEX

Page

Preliminary Statement 1

Opinions of Courts Below 4+

Jurisdiction 4

Statement of the Case ; 4

PE ic ccingiinscintcbiccisinns alas cla tdenaeak ante iain Core aia 4

1. Petitioner’s Erroneous Concept +

2. The Wind River Reservation is a Treaty Reservation 5

3. The 1868 Treaty. Absolute and Undisturbed Use... 6

4. Constitution and Treaty Supreme Law of the Land 9

5. Reservation Lands are Immune from Taxation........ 11

The Lands Taxed are a part of the Indian Reserva-

tion 15

7. Interior Department Solicitor’s Opinion of Feb. 12,

1943 19

8. Exemption vs. Immunity 24

Conclusion 25

CASES

Arizona vy. California, 283 U. S. 423 25

Ash Sheep Company v. United States, 252 U. S. 159.000. 15

Forty-three Cases of Cognac Brandy, 14 Fed. 539 .cccccooo 21

Heckman v. United States, 224 U. S. 413 2

Johnson v. Maryland, 254 U. S. 51 25

Kansas Indians—Blue Jacket v. Johnson County, 5 Wall.

72 :U. S. 737 11

Marchie Tiger v. Western Investment Co., 221 U. S. 286.... 10

INDEX (Continued)

Page

M’Culloch v. Maryland, 4 Wheat. 316, 17 U. S. 316.......... 13, 14, 25

McCurdy v. United States, 264 U. S. 484 13

Minnesota v. Hitchcock, 185 U. S. 373 21

New York Indians, 5 Wall. 761 11

Northern Pacific Ry. Co. v. Wismer, 246 U. S. 283 .2-n-nue 21

Oklahoma Tax Commission v. United States, 319 U. S. 598 13

Penn Dairies and the United States v. Milk Control Com-

mission of Pennsylvania, 318 U. S. 261 24-25

Shoshone Tribe v. United States, 299 U. S. 476 2,8

State v. Shepard, 239 Wisc. 345, 300 N. W. 905 ....ccccccmnensnnne . 22

United States v. Board of Com’rs. of Fremont County, 53 F.

Supp. 395 4

United States v. Board of Com’rs. of Fremont County, 145

F. 2d 329 4,12

United States v. Creek Nation, 295 U. S. 103 8

United States v. Hellard (U. S. S. Ct. 1944) 88 L. ed. 929... 5

United States v. Kagama, 118 U. S. 375 10

United States v. McGowan, 302 U. S. 535 21

United States, Mesta Machine Co. v. Allegheny County,

Si. «& Bee 12, 14

United States v. Midwest Oil Co., 236 U. S. 459 ccenemnnnnnene 23

United States v. Rickert, 188 U. S. 432 13

United States v. Sandoval, 231 U. S. 28 10

United States v. Shoshone Tribe, 304 U. S. 111 2,19

Van Brocklin v. Tennessee, 117 U. S. 151 12

iii

INDEX (Continued)

TEXTS AND AUTHORITIES

Page

51 American Jurisprudence, Taxation, Section 229.000. 11

31 Corpus Juris, Indians, Sections 38-39 5

Section 107 9

Handbook of Federal Indian Law, U. S. Government Print-

ing Office, 1942, p. 256 11

Hearings Senate Committee on Indian Affairs 16

Hearings Senate Committee on Public Lands 23

Solicitor’s Opinion, Interior Department, February 12, 1943 19

CONSTITUTION, TREATIES AND STATUTES

Constitution of United States, Article VI 9

Article IV, Sec. 3 12

Article I, Sec. 8, Clause 3 9,12

Shoshone Treaty of 1863, 18 Stat. 685 6

Shoshone Treaty of 1868, 15 Stat. 673 2

Indian Peace Commission Act of 1867, 15 Stat. 17... ey

Act of March 3, 1905, 33 Stat. 1016 15

Act of Feb. 14, 1923, 42 Stat. 1246, 25 U. S. C. 335... a

Act of March 3, 1927, 44 Stat. 1347, 25 U. S. C. 398... 23

Act of JunéT8> 1934, 48 Stat. 984, 25 U. S.C. 463.0... 20

Act of July 27, 1939, 53 Stat. 1128, 25 U. S. C. 571-577...

2, 4, 15, 18

28 U. S.C. A. Sec. 347 4

In the

Supreme Court of the United States

Ly.

OCTOBER TERM, 1944

enero,

THE BOARD OF THE COUNTY COMMISSION-

ERS OF THE COUNTY OF FREMONT, WYO-

MING; GEORGE C. McRAE, Treasurer of Fre-

mont County, Wyoming; and ERNEST H.

HARTMAN, Assessor of Fremont County,

Wyoming,

Petitioners and Appellees Below,

vs.

UNITED STATES OF AMERICA,

Respondent and Appellant Below.

LY.

“

BRIEF OF AMICI CURIAE

OPPOSING PETITION FOR WRIT OF CERTIORARI

4).

PRELIMINARY STATEMENT

The Shoshone Tribe of Indians of the Wind River

Reservation in Wyoming respectfully states to the Court:

1. It is a tribe of Indians formerly and now in

treaty relations with the United States and is a resident

of the State of Wyoming. Its members oceupy lands in

common and in severalty on the Wind River Reservation

in Wyoming and the Tribe is the owner of an undivided

half interest in the unallotted lands of said reservation.

2. The Shoshone Tribe formerly owned the whole of

said reservation (Treaty of July 8, 1868, 15 Stat. 673, 2

Kappler 1020). In 1878 the United States wrongfully

appropriated an undivided one-half of the reservation for

the use of the northern Arapahoe Tribe of Indians (299

U. S. 476). In 1938 the Shoshone Tribe recovered judg-

ment against the United States for over four million

dollars for said appropriation (304 U. 8. 111). This

judgment was paid. Pursuant to the Act of Congress of

July 27, 1939, 53 Stat. 1128, one million dollars of the

Shoshones’ money was made available to purchase pri-

vately owned lands, formerly a part of the reservation,

and restore same to tribal use, title being taken by the

United States as trustee for the tribes. The Shoshones

loaned this money for the joint use and benefit of the two

tribes.

3. The lands sought to be taxed by Petitioner herein

are lands bought with the Sheshones’ judgment fund

money. The debt has not as yet been paid. Some of the

lands so purchased are used by the Shoshone Tribe and

its members and the remainder by the Arapahoe Tribe

and its members. The Shoshone Tribe has a direct in-

terest in the outcome of the cause.

4. George M. Tunison, Attorney at Law of Omaha,

Nebraska, and Charles J. Kappler, Attorney at Law of

Washington, D. C., are members of the bar of the Su-

preme Court of the United States, and represented the

Shoshone Tribe in the recovery above mentioned. They

are, and for many years have been, attorneys for the

said Shoshone Tribe, under contract approved by the

Secretary of Interior and Commissioner of Indian Affairs.

Said contract contains, among others, the following pro-

vision:

“It shall be the duty of the attorney to counsel

with, advise, and represent the tribe in connection

with matters concerning its tribal property and funds,

and any other matters affecting the rights and inter-

ests of said tribe. It shall be the duty of said attor-

ney to advise and counsel with the tribe at their

agency at Fort Washakie, Wyoming, and to repre-

sent the tribe before all Departments, tribunals, Com-

mittees of Congress, and other officers of the Govern-

ment having any duty to perform in connection with

the tribal affairs of the tribe at the request of the

Shoshone Tribal Business Counceil.’’

5. Following the decision of this cause in the United

States District Court for the District of Wyoming, the

Shoshone Tribal Business Council, same being the official,

elected, representative body of the Tribe, requested its at-

torneys, said Tunison and Kappler, to participate in its

behalf in the further proceedings in said cause. The

Shoshones believe that because of the familiarity of the

Tribe’s attorneys with the Treaties, Acts of Congress,

and Executive Orders relating to said reservation, said

attorneys may be of assistance to the Court in resolving

the issues presented,

6. Upon the appeal to the United States Circuit

Court of Appeals, Tenth Circuit, on application to the

Court and leave granted, Messrs. Tunison end Kappler,

as counsel for the Shoshone Tribe, filed a brief amici

curiae and Mr. Tunison participated in the oral argu-

ment at Denver on September 7, 1944 (R. 39).

Il.

OPINIONS OF COURTS BELOW

The opinion of the District Court of the United

States for the District of Wyoming (R. 26-32) is reported

in 53 F. Supp. 395. The opinion of the United States

Circuit Court of Appeals for the Tenth Cireuit (R. 39-

44) is reported in 145 F. 2d 329.

Ill.

JURISDICTION

The judgment sought to be reviewed was entered

October 10, 1944 (R. 44). Petition for Writ of Certiorari

was filed December 27, 1944. Jurisdiction of this Court

is invoked under Section 240 (a) of the Judicial Code as

amended, 28 U. 8S. C. A. See. 347; also under the Act of

July 27, 1939, 53 Stat. 1128, 25 U. S. C. A. Sees. 571-577.

IV. S

STATEMENT OF THE CASE

The case is fairly stated in the opinion of the Cireuit

Court of Appeals (R. 39-41). Under See. 4 of Rule 27

of the Court further statement is unnecessary.

¥.

ARGUMENT

1. Petitioner's Erroneous Concept.

The basic weakness in petitioners’ argument is the

failure to recognize that the Wind River Reservation is a

treaty reservation; that the lands sought to be taxed are

an integral, component part of that reservation; that the

whole reservation, now restored to practically its size

prior to the 1905 cession, is an instrumentality of the

United States used in the performance of its constitu-

tional duty and treaty obligation and that the lands here

involved are no more subject to taxation than original

tribal lands never alienated from the reservation. Peti-

tioners’ whole argument revolves within the narrow orbit

of a technical title in trust as exhibited in the common

situation of guardian and ward or trustee and cestui que

trust. Such is not the ease.

The United States has a national, governmental in-

terest in the functioning of the restored reservation; in .

preventing the alienation of any part thereof whether by

tax sale or otherwise and in preserving it for the ‘‘abso-

lute and undisturbed use and ocecupation’’ of the Indians

pledged by the treaty. As this Court has held within the

year, in United States v. Hellard (decided May 15, 1944)

88 L. ed. Adv. Op. 929:

‘This national interest is not to be expressed in

terms of property, or to be limited to the assertion

of rights incident to the ownership of a reversion or

to the holding of a technical title in trust. Heckman

v. United States, 224 U. 8. 413, 437, 56 L. ed. 820, 830,

32 8S. Ct. 424.”’

2. The Wind River Reservation is a Treaty Reservation.

Prior to 1871 the United States dealt with Indian

Tribes through treaties. The fact and rule are stated in

31 Corpus Juris, Indians, as follows:

See. 38. ‘‘Until the year 1871 the United States

conceded to the Indian tribes the right to treat with

the United States upon terms of national equality,

and numbers of treaties were made in reference to

lands, supplies, edueation, intercourse, and other

te]

‘=

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matters. The act of March 3, 1871, however, pro-

vided that no Indian nation or tribe within the terri-

tory of the United States should be acknowledged or

recognized as an independent nation, tribe, or power,

with which the United States might contract by

treaty, it being further provided that no obligation

of any treaty lawfully made and ratified with any

such Indian nation or tribe prior to the date of the

act, should be thereby invalidated or impaired.’’

See. 39. ‘‘A treaty with an Indian tribe has the

same dignity and effect as a treaty with a foreign

nation. It is a part of the law of the land, to be

enforced by the courts, and cannot be disregarded

by state legislation.’’

Numerous decisions of this Court established the

above rule. The Wind River Reservation in Wyoming is

one of the last of the treaty reservations.

3. The 1868 Treaty.

Prior to the Fort Bridger treaty of 1868 the Sho-

shone Tribe held under Treaty (18 Stat. 685, 2 Kappler,

848), 44,672,000 acres of land in Colorado, Utah, Idaho

and Wyoming. Their right thereto was not disputed.

Upon the close of the Civil War the transcontinental

railroads, authorized by act of Congress, were in course

of construction from the Missouri River westward to the

Pacific. They were obliged to cross vast tracts in pos-

session of Indian tribes, one of such tracts being the

above-mentioned Shoshone Treaty lands. To meet this

situation Congress enacted the Indian Peace Commission

Act of July 20, 1867 (15 Stat. 17). It was necessary

under the land-grant to the Union Pacifie Railroad to

clear title to a strip of land through the heart of the

Shoshone domain 40 miles wide and over 400 miles long.

The Peace Commission met with the Shoshones at Fort

Bridger.

The United States did not ‘‘send boys to mill’’ as its

treaty commissioners to the Shoshones. Nathaniel Green

Taylor of Tennessee was a distinguished lawyer and

Commissioner of Indian Affairs. John B. Henderson

was a lawyer, United States Senator from Missouri and

Chairman of the Senate Committee on Indian Affairs.

John B. Sanborn, lawyer and soldier from Minnesota,

was a brother of W. H. Sanborn, formerly Judge of the

C. C. A. 8th Cireuit and father of the present Federal

Judge. These men well knew the force and effect, the

legal and equitable import, of the words they placed in

the Shoshone Treaty. The army members were Generals

Sherman, Harney, Augur and Terry. They knew and

respected Chief Washakie and the Shoshones and appre-

ciated the invaluable assistance rendered in keeping open

the Overland road. Henry M. Stanley accompanied the

Commission as correspondent for the New York Tribune

and the Missouri Democrat. There is every reason to

believe that when this Commission sought and received

from the Shoshones a cession of forty-four million acres

of land they intended to and did vest in the Shoshones

the absolute and undisturbed use and occupation of the

three million acres granted in exchange.

When the Senate ratified the treaty and same was

duly proclaimed, whereby there was vested in the Sho-

shones the ‘‘absolute and undisturbed use’’ of the lands

forever, the United States had granted the greatest pos-

sible use consistent with retaining in the sovereign the

title and authority requisite for its beneficent purposes

and constitutional duty in the administration of Indian

affairs.

We quote from the opinion of this Court, by Mr.

Justice Cardozo, in Shoshone Tribe v. United States, 299

U. S. 476-485:

‘“‘By treaty of July 3, 1868 (15 Stat. 673), the

Shoshone Tribe of Indians relinquished to the United

States a reservation of 44,672,000 acres in Colorado,

Utah, Idaho and Wyoming, and accepted in ex-

change a reservation of 3,054,182 acres in Wyoming,

with other benefits not now important. The United

States agreed that the territory described in the

treaty now generally known as the Wind River Res-

ervation, would be ‘set apart for the absolute and

undisturbed use and occupation of the Shoshone In-

dians . . . and for such other friendly tribes or indi-

vidual Indians as from time to time they may be

willing, with the consent of the United States, to ad-

mit amongst them.’ Reinforcing this covenant, there

was a solemn pledge of faith by the United States

that no persons, except a few specially enumerated,

and governmental agents engaged in the discharge

of duties enjoined by law, should ‘ever be permitted

to pass over, settle upon, or reside’ in the territory

so reserved. The loyalty of the Shoshone tribe to the

people of the United States has been conspicuous and |

unfaltering. A fidelity at least as constant and in-

flexible was owing in return.”’

Further in the opinion the Court stated, p. 496:

Se eee eee

‘‘Confusion is likely to result from speaking of

the wrong to the Shoshones as a destruction of their

title. Title in the strict sense was always in the

United States, though the Shoshones had the. treaty

right of oceupancy with all its beneficial incidents.

United States v. Creck Nation, 295 U. S. 103, 110.”’

4. The Constitution and Treaty. Supreme Law of the Land.

The Constitution of the United States provides, Art.

‘This Constitution, and the Laws of the United

States which shall be made in Pursuance thereof, and

all Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme

Law of the Land’...

The right of the Indians of the Wind River Reser-

vation to the ‘‘absolute and undisturbed use’’ of their

reservation lands, immune from State taxation, is guar-

anteed to them by the ‘‘supreme law of the land.’’

Ee RO PEE 9 OD 2

The Constitution also provides, Art. I, See. 8, Clause

‘The Congress shall have Power to regulate

commerce . . . with the Indian Tribes ;’’

In 31 Corpns Juris, Indians, Sec. 107, we find the

rule:

“Under the constitution of the United States,

congress has the exclusive and unfettered power to

regulaie commerce with the Indian tribes. * * * The

Indians and the territory which may have been

specially set apart for their use are subject to the

: jurisdiction of the United States, and the power of

congress to deal with Indians and their property is

of the most sweeping character. * * * The power of

congress is superior and paramount to the authority

of the state within whose limits are Indian tribes.

Such power does not cease when the Indians become

citizens of the United States, when they become

electors under state law, or when their lands are

allotted in severalty.’’

The foregoing statement is supported by a long line

of decisions of this Court. As was well stated in United

States v. Sandoval, 231 U. S. 28, 45; 58 L. ed. 107, 114,

opinion by Mr. Justice Van Devanter (an acknowledged

authority on Indian law):

‘“‘Not only does the Constitution expressly au-

thorize Congress to regulate commerce with the In-

dian tribes, but long-continued legislative and execu-

tive usage and an unbroken current of judicial de-

cisions have attributed to the United States as a

superior and civilized nation the power and the duty

of exercising a fostering care and protection over all

dependent Indian communities within its borders,

whether within its original territory or territory sub-

sequently acquired, and whether within or without

the limits of a state. As was said by this court in

United States v. Kagama, 118 U. S. 375, 384, 30 L.

ed. 228, 230, 6 Supp. Ct. Rep. 1109: ‘The power of the

general government over these remnants of a race

once powerful, now weak and diminished in numbers,

is necessary to their protection, as well as to the

safety of those among whom they dwell. It must

exist in that government, because it never has ex-

isted anywhere else, because the theater of its ex-

ercise is within the geographical limits of the United

States, because it has never been denied, and because

it alone can enforce its laws on all the tribes.’ In

Marchie Tiger v. Western Invest. Co., 221 U. S. 286,

315, 55 L. ed. 738, 749, 31: Sup. Ct. Rep. 575, prior

decisions were carefully reviewed and it was further

said: ‘Taking these decisions together, it may be

taken as the settled doctrine of this court that Con-

gress, in pursuance of the long-established policy of

the government, has a right to determine for itself

when the guardianship which has been maintained

over the Indian shall cease. It is for that body, and

not the courts, to determine when the true interests

of the Indian require his release from such condition

of tutelage.’ ’’

sian aac

It is believed the foregoing sufficiently establish that

the Wind River Reservation is an instrumentality em-

ployed by the United States, pursuant to the Constitution

and Treaty, for the benefit and control of the Indians.

5. Reservation Lands are Immune from Taxation.

The rule is fairly stated in 51 American Jurispru-

dence, 1944, Taxation, See. 229:

‘‘As a general rule, lands in possession of an

Indian tribe are exempted from taxation by a state,

since such taxation would amount to the taxation of

an instrumentality employed by the United States

for the benefit and control of a dependent race.’’

(Citing numerous decisions of this Court) :

In Handbook of Federal Indian Law, U. S. Govern-

ment Printing Office, 1942, under the subject State Taxa-

tion of Tribal Lands, p. 256, we find:

‘Lands which are occupied by a tribe or tribes

of Indians have always been regarded as not within

the jurisdiction of the state for purposes of. state

property taxation. The principal reason for this

immunity has been the fact that the tribes have been

regarded as distinct political communities exercising

many of the attributes of a sovereign body.”

The author quotes from The Kansas Indians, 5 Vall.

737, and the New York Indians, 5 Wall. 761, and later

decisions of this court, illustrating the point that tribal

reservations are federal instrumentalities. He concludes:

“‘There seems little doubt in view of the fore-

going that the validity, if not the scope, of the in-

strumentality doctrine, in so far as it relates to In-

dians, their property and their affairs, remains un-

changed.’’

& 12

Little ean be added to the authorities relied upon by

the Court below in its opinion (R. 41-42), viz.:

‘*Article 4, Section 3, of the Constitution of the

United States, vests in Congress the power of dispo-

sition of property belonging to the United States.

Article 1, Section 8, authorizes Congress to enact all

laws necessary and proper for carrying into exeeu-

tion all powers vested in the Government or in any

department or officer thereof. And Article 6 pro-

vides that the laws of the United States enacted pur-

suant to the Constitution shall be the supreme law of

the land, notwithstanding constitutions and laws of

the states to the contrary. Manifestly Congress is

vested with the absolute right to designate the per-

sons to whom real property belonging to the United |

States shall be transferred, and to preseribe the con-

ditions and mode of the transfer; and a state has no

power to interfere with that right or to embarrass

the exercise of it. Property owned by the United

States is immune from taxation by the state or any of

its subdivisions. Van Brocklin v. Tennessee, 117 U.

S. 151, 6S. Ct. 670, 29 L. Ed. 845; Irwin v. Wright,

258 U. S. 219, 42 S. Ct. 293, 66 L. Ed. 573; Lee v.

Osceola Improvement District, 268 U.S. 648, 45 S. Ct.

620, 69 L. Ed. 1123; Mullen Benevolent Corp.. v.

United States, 290 U. S. 89, 54 S. Ct. 38, 78 L. Ed.

192; United States et al. v. Allegheny County, Pa.,

S22 UL S. 174, 64S. Ct. 908. Congress may in its dis-

cretion waive the immunity and expressly consent

that real or personal property belonging to the United

States shall be subject to taxation under state au- |

thority. Mayo v. United States, 319 U. S. 441, 63 |

S. Ct. 1137, 87 L. Ed. 1504.) But it has not done so

in this instance,

“These lands were acquired with funds belong-

ing to the Indians; and under section 6, supra, the

title is held in trust for the Tribes. But the legal |

title is in the United States. Generally, the posses-

—————

Ee CO ga ig) Ee ae Bee Ted

sion of the legal title by the United States deter-

mines the fact and right of ownership in respect of

immunity from taxation under state authority. Wis-

consin Railroad Co. v. Price County, 133 U. S. 496,

10 S. Ct. 341, 33 L. Ed. 687. And where the legal

title is in the United States, lands are not subject to

state or county taxes even though the United States

holds them in trust for an Indian or a tribe. United

States v. Rickert, 188 U. S. 432, 23 S. Ct. 478, 47

L. Ed. 532; MeCurdy v. United States, 264 U. S. 484,

44S. Ct. 345, 68 L. Ed. 801. In Shaw v. Gibson-

Zahniser Oil Corp., 276 U. S. 575, 48 S. Ct. 333, 72 L.

Ed. 709, it was held that oil taken from restricted

land of an Indian was subject to a production tax

levied under state law. In Oklahoma Tax Com-

mission v. United States, 319 U. S. 598, 63 S. Ct.

1284, 87 L. Ed. 1612, it was determined that a state

may impose an inheritance tax upon the transfer of

restricted land belonging to the estate of a deceased

Indian, except as to land exempt from direct taxa-

tion. In United States v. Mummert, 8 Cir., 15 F.

2d 926, it was held that land purchased with re-

stricted funds of an Indian is subject to county ad

valorem taxes. And in United States v. Hester, 10

Cir. 187 F. 2d 145, it was determined that restricted

but taxable land belonging to an Indian is subject to

sale in accordance with state law to enforee collee-

tion of delinquent taxes. But in all of those cases

title to the land was in the Indian, not the United

States.”” (Emphasis supplied.)

Perhaps it is as well to go back to the great landmark

decision in M’Culloch v. Maryland, 4 Wheat. 316, 428-

482, 17 U.S. 316, 424-432, 4 L. ed. 579, where Chief Jus-

tice Marshall in invalidating the tax sought to be im-

posed by the State of Maryland, said:

“When a state taxes the operations of the gov-

ernment of the United States, it acts upon institu-

tions created, not by their own constituents, but by

people over whom they claim no control. It acts

upon the measures of a government created by others

as well as themselves, for the benefit of others in

common with themselves. The difference is that

which always exists, and always must exist, between

the action of the whole on a part, and the action of a

part on the whole—between the laws of a government

declared to be supreme, and those of a government

which, when in opposition to those laws, is not

supreme.

“The court has bestgwed on this subject its

most deliberate consideration. The result is a con-

viction that the states have no power, by taxation or

otherwise, to retard, impede, burden, or in any man-

ner control the operations of the constitutional laws

enacted by Congress to carry into execution the

powers vested in the general government. This is,

we think, the unavoidable consequence of that su-

premaey which the constitution has declared.”’

M’Culloch v. Maryland is as good law today as it was

in 1819. In United States and Mesta Machine Co. vs.

County of Allegheny, decided by this Court May 1, 1944,

322 U.S. 174, 88 L. ed. Adv. Op. 845, 847, we find:

“Since 1819, when Chief Justice Marshall in the

M’Culloch Case expounded the principle that prop-

erties, functions, and instrumentalities of the Ped-

erated Government are immune from taxation by its

constituent parts, this Court never has departed from

that basie doctrine or wavered in its application. In

the course of time it held that even without explicit

congressional action immunities had become com-

munieated to the income or property or transactions

of others because they in some manner dealt with or

acted for the Government. In recent years this Court

has curtailed sharply the doctrine of implied dele-

gated immunity. But unshaken, rarely questioned,

and indeed not questioned in this case, is the prin-

_ <<

eS eee:

ciple that possessions, institutions, and activities of

the Federal Government itself in the absence of ex-

press congressional consent are not subject to any

form of state taxation.’’

6. The Lands Taxed are a Part of the Indian Reservation.

The lands in question were formerly part of the In-

dians’ treaty reservation. In 1904 the Reservation was

thought to be-larger than the Indians needed, resulting in

a cession agreement and the Act of March 3, 1905, 33

Stat. 1016. Some of the ceded lands were eventually dis-

posed of to white settlers and placed on the tax rolls of

Fremont County (R. 26-27).

By far the larger part of the so-called ‘‘ceded por-

tion’? of the reservation remained unsold and was being

used by the holders of the comparatively small acreage of

sold lands along the watercourses. The Act of 1939 re-

quired the Secretary of Interior to restore these lands

also to tribal ownership. The Indians had, throughout,

remained the beneficial owners of these unsold lands. In

the case of Ash Sheep Company v. United States, 252 U.

S. 159, 64 L. ed. 507, the Court construed a similar agree-

ment, made in 1904, relating to a like cession of lands on

the Crow reservation in the adjoining state of Montana.

The Court said:

‘Taking all of the provisions of the agreement

together, we eannot doubt that while the Indians by

the agreement released their possessory right to the

government, the owner of the fee, so that, as their

trustee, it could make perfect title to purchasers,

nevertheless, until sales should be made, any benefits

which might be derived from the use of the lands

would belong to the beneficiaries, and not to the

trustee, and that they did not become ‘public lands’ in

OLSEN OTT AY

REP SSO:

LORIN HR MAOH WETORE

the sense of being subject to sale or other disposition,

under the General Land Laws. * * * Thus, we con-

clude that the lands described in the bill were ‘Indian

lands’ when the company pastured its sheep upon

them, in violation of See. 2117 of Revised Statutes.”’

As time went on it became apparent that an error

had been made and that the so-called ceded portions of

the original reservation were needed by the United States

for Indian use. Sale of lands on the ceded portion was

discontinued in 1915. In the printed report of the Hear-

ing before the Senate Committee on Indian Affairs on

the Judgment Fund Act of July 27, 1939, 25 U. S.C.

571-577, we find, in the letter from the Seeretary of In-

terior, to the Chairman of the Senate Committee, report-

ing on the pending Bill, S. 1878, the following:

“The future of the Shoshone and Arapaho

Tribes is in the livestock industry. Range is, of

course, essential. Now there are intermingled Indian

and non-Indian land holdings on the reservation.

The Indians desire to consolidate their holdings in

the vicinity of the communities in which they live.

The non-Indians wish to do likewise. The provisions

of this bill will permit a readjustment of land hold-

ings to this end. The bill authorizes the creation of

land-use districts, and the progressive consolidation

of Indian and white holdings by districts. One of

the main reasons for the creation of such districts is

to facilitate an orderly acquisition for the Indians

of the white-owned lands within the reservation. The

Seeretary of the Interior is authorized to restore to

the Indians the ceded lands in any land-use district

as soon as the white owners have been properly pro-

tected, as provided in section 5. Undisposed of ceded

lands within land-use districts, if not under lease or

permit to non-Indians, will be restored at once, but

the ceded lands now used by permittees may be re-

stored progressively only as non-Indian-owned lands

are acquired by the United States for the benefit and

use of the Indians. * * * The purchased lands will

be used for the benefit of both tribes.’’

In the evidense at the Senate Committee Hearing on

July 10, 1939, officially printed for use of the Committee,

we find, pp. 7-8:

‘Senator O'Mahoney. What land is it proposed

to purchase?

“Mr. Zimmerman. It is proposed to purchase

principally white-owned lands within the ceded por-

tion of the reservation.

‘Senator O'Mahoney. In other words, it is pro-

posed to repurchase for the Indians some of those

lands which years ago the Indians ceded to the Gov-

ernment in trust for settlement by whites?

‘““Mr. Zimmerman. That is correct. The lands

that were purchased by the whites were, naturally,

the best lands. I think that in some cases it is true

that the water and the river bottom have been pur-

chased by the white settlers, and they have used the

rest of the ceded portion for grazing. The purchase

of those white holdings was essential for proper use

of the ceded area.’’

The picture is clear. White settlers came in, under

the Act of 1905, settled upon and purchased a compara-

tively small acreage along watercourses. This gave

them a distinet advantage in the use of adjoining range.

In the meantime the Indian Office encouriged the de-

velopment of the livestock industry among the Indians.

Soon it was apparent the Indians needed all the land of

the so-called ceded portion. As Senator O’Mahoney

stated at the above hearing, p. 6:

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‘“‘When a portion of this reservation, known as

the ceded portion, was yielded to the Federal Govy-

ernment by the Indians and opened to seitlement,

settlers came on and had the understanding that they

would be permitted to graze their livestock on the

reservation. Permits have been issued during a long

period of years to these settlers. The livestock busi-

ness of the Indians, however, has been fostered by

the Indian Office and is being expanded. The result

has been a gradual reduction in the number of au-

thorizations for grazing permits, making it rather

difficult for the settlers.”’

The recovery of the Shoshone Judgment Fund made

available a sufficient sum of money with which to buy

back the comparatively small amount of land which had

been settled upon and patented. The United States

agreed that as capidly as these patented lands were

bought back and restored to tribal ownership it would

return to tribal ownership the remaining unsold lands

within the respective districts (See. 5, Act of 1939).

Congress specifically directed the Secretary of Interior so

to restore said lands and the mandate is being progres-

sively carried out.

It is apparent that the Act of 1939 was a compre-

hensive Act by which the United States in the perform-

ance of its constitutional duty and its treaty obligation

undertook to prudently manage the more than four million

dollars belonging to the Shoshones and representing the

original reservation lands of which they had been wrong-

fully deprived. One may not read the hearings before

the Senate Committee and the language of the Act and

escape the conviction that the Interior Department and

the Congress of the United States were functioning, in

their respective constitutional spheres, to restore this

governmental instrumentality to a balanced working unit.

Having so restored it, there is only one standard by which

to measure the estate of the Indians in the restored

reservation. That standard is the language of the 1868

treaty:

‘‘absolute and undisturbed use and occupation.”’

7. The Interior Department Solicitor’s Opinion of February 12, 1943.

In view of the pending return of the ceded portion to

the reservation a question arose about jurisdiction to

regulate hunting and fishing on what was formerly known

as the ceded portion. Under date of February 12, 1943

Warner W. Gardner, Solicitor for the Department of In-

terior, rendered a scholarly opinion on the subject. While

that opinion is not relied upon, in and of itself, as an

authority in the instant case, and is no part of the ree-

ord, yet the law is so clearly set forth therein that Amici

Curiae are pleased to adopt same as a part of their

argument herein and acknowledge their debt to the

Solicitor for the abie statement, viz.:

‘“‘There are, however, special circumstances appli-

‘able to the Wind River Reservation that will com-

plicate the problem of jurisdiction over hunting and

fishing upon the ceeded lands. Congress in 1939

enacted the Shoshone Judgment Act already men-

tioned. The act set aside $1,000,000 of the fund re-

sulting from the judgment in U. S. v. Shoshone Tribe,

304 U. S. 111, for the acquisition of lands in the

ceded as well as the diminished portion of the reser-

ration. Land-use districts were to be established in

both portions of the reservation, and the Secretary

of the Interior was authorized under such rules and

regulations as he might prescribe ‘to effect the con-

solidation of Indian and privately owned lands within

said districts’ through a land acquisition program.

Title to all lands so acquired was to be taken by the

United States in trust for the Shoshone and Arapa-

hve Tribes of Indians of the Wind River Reserva-

tion. The statute further directed the Secretary of

the Interior ‘to restore to tribal ownership all undis-

posed of surplus or ceded lands within the land-use

districts which are not at present at lease or permit

to non-Indians; and further to restore to tribal

ownership the balance of said lands prégressively as

and when the non-Indian owned lands within a given

land-use district are acquired by the Government for

Indian use.’

‘‘Although the Shoshone Judgment Act did not,

in any technical sense, repeal the act of March 3,

1905, it arrested the process of alienating the ceded

lands. The sale of the lands under this act of cession

had already been indefinitely postponed by the de-

partmental action of 1915. Moreover, unlike section

3 of the Indian Reorganization Act of June 18, 1934

(48 Stat. 984, 25 U. S. see. 463 (a), which only au-

thorized the Seeretary of the Interior to restore to

tribal ownership the remaining surplus lands of any

Indian reservations-‘if he shall find it to be in the

public interest, section 5 of the Shoshone Judgment

Act contained an express directive requiring the res-

toration of the vacant ceded lands. The program of

reacquisition and resteration has already been ful-

filled in large measure.

‘‘So far as concerns the lands already restored

to tribal ownership under the Shoshone Judgment

Act, the jurisdiction of the tribal councils must be

deemed to be the same as over other tribal lands

within the exterior boundaries of the diminished por-

tion of the reservation, and they may therefore regu-

late hunting and fishing on the restored lands. There

would seem to be no basis for distinguishing between

such lands and lands whieh have been formally desig-

nated as ‘reservations’ by Executive order, treaty, or

act of Congress. An Indian reservation is simply a

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part of the public domain set apart by proper au-

thority for use and occupation by a group of Indians.

Forty-three Cases Cognac Brandy, 14 Fed. 539 (C. C.

D. Minn.). The United States holds the title, and the

right of use and occupancy is in the Indians. This

is precisely the state of the title under the Shoshone

Judgment Act, since it provided that title is to be

taken by the United States in trust for the Indians.

It is true that the Shoshone Judgment Act does not

expressly provide for the formal incorporation of the

‘restored lands in the reservation, but no particular

form of words is necessary to create a reservation.

‘It is enough that from what has been done there

results a certain defined tract appropriated to certain

purposes.’ Minnesota v. Hitchcock, 185 U. 8S. 373,

390. See also Spalding v. Chandler, 160 U. S. 394;

Northern Pacific Railway Company v. Wismer, 246

U. S. 283; United States v. Payne, 8 Fed. 883 (D. C.

W. D. Ark.) In the Wismer case the court recognized

as a reservation a tract of land that had been set

aside for Indian occupancy by the Commissioner of

Indian Affairs with the tacit approval only of the

Secretary of the Interior rather than by an Execu-

tive order of the President. In the recent case of

United States v. McGowan, 302 U. 8S. 535, the court

applied the Federal Indian liquor laws to the Reno

Indian Colony located on land purchased by the

United States in order to settle the Indians upon

them. The court held that it was immaterial that

these lands were not designated as a ‘reservation.’

‘“‘These cases establish that there is no peculiar

virtue in the word ‘reservation,’ and that there is no

magic formula nor special ceremony by which a ‘reser-

vation’ must be conjured into existence. It is no

more necessary to deposit a piece of parchment in

the archives than to smoke a pipe of peace. To be

sure, these cases do not establish that a reservation

must necessarily be deemed to be created whenever

the United States takes title to land in trust for In-

dians, or for their benefit. If the United States were

to purchase isolated tracts for individual Indians, or

a tract for a group of Indians who no longer main-

tained tribal relations, or were not subjected to the

supervisory authority and guardianship of the United

States, there might be no basis for contending that

such lands constituted a reservation. Such is the

purport of the decision in the case of State vs.

Shepard, 300 N. W. 905 (Wise.), in which the State

Supreme Court held that various noncontiguous

tracts, purchased for the Pottawatomie Indians by

the United States were not reservation lands and

that, therefore, a tribal Indian could be arrested for

violating the conservation laws of the State. The

Court distinguished the McGowan ease on the ground

that these Indians were not subject to the supervision

of the United States. Assuming the validity of this

distinction, the ease is entirely in harmony with the

eurrent of authority.

‘When, however, looking to what has been done,

it can be perceived that lands have been set apart

for Indian tribal use and oceupaney, and that the

Indians for whom the lands have been acquired are

to come or to remain under the superintendence of

the United States, such lands are not distinguishable

from any other reservation lands. Certainly this is

true of the lands acquired for the Shoshone Indians.

The moneys with which they were to be purchased

were appropriated by way of compensatiop to the

Indians for the wrong they had suffered when their

tribal use and oceupaney had been disturbed. By

directing that the lands were to be restored to ‘tribal

ownership,’ Congress indicated that they were to be

open to tribal use and oeeupancy. By providing for

the consolidation of Indian lands in both the dimin-

ished and ceded portion of the reservation, Congress

plainly indicated its intention of creating a solid

reservation tract. A reservation so designed would,

indeed, be superior to the cheekerboarded reserva-

HERE renee enn eel ney ees mena

tions of other Indian tribes. Thus would needed lands

be provided for the Shoshone Indians at the same

time that the integrity of tribal life was restored.

That such was the whole objective of the program

appears clearly from the testimony of various repre-

sentatives of the Indian Office before the Committee

on Publie Lands (Hearings, 77th Cong., Ist sess.,

pursuant to S. Res. 241, pp. 602 ff.)

‘“‘T ean find no act of Congress, moreover, which

is inconsistent with these general principles. Indeed,

the act of February 14, 1923 (42 Stat. 1246, 25 U.S.

C. see. 335), provides that the provisions of the Gen-

eral Allotment Act, as amended, ‘are extended to all

lands heretofore purchased or which may be pur-

chased by authority of Congress for the use and bene-

fit of any individual Indian or band or tribe of In-

dians.?. The Supreme Court has declared that the

reference to Executive order reservations contained

in section 1 of the General Allotment Act should be

taken to confirm by implication the practice of estab-

lishing reservations by Executive order. In re Wil-

son, 140 U. S. 575; United States v. Midwest Oil

Company, 236 U. S. 459; Mason v. United States, 260

U. S. 545. It may therefore be argued that by ex-

tending the provisions of the General Allotment Act

to purchased lands the creation of reservations by

purchase was sanctioned, at least when the purchase

was specifically authorized by act of Congress. In

any event, it could not be contended that, by sub-

jecting purchased lands to the provisions of the Gen-

eral Allotment Act, Congress made the formal proc-

lnmation of a reservation, a sine qua non of reserva-

tion status.

‘It is true that it is provided by section 4 of the

act of Mareh 3, 1927 (44 Stat. 1347, 25 U. S. C. see.

398d), that ‘changes in the boundaries of reservations

created by Executive order, proclamation, or other-

wise for the use and occupation of Indians shall not

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24+

be made exeept by Act of Congress:’ but any change

in the boundaries of the Shoshone Reservation will

result in this ease from an act of Congress, n: imely,

the Shoshone Judgment Act itself. I see no reason

for assuming that the act of Mareh 3, 1927, contem-

plated that any change in the boundaries of a reser-

vation must. be expressly anthorized by an act de-

elaring pro modo et forma that the change may be

made, and describing the new boundaries by metes

and bounds. Congress must be deemed to have been

aware of the doctrine that no special form or cere-

mony Was necessary to create a reservation.”’

It will be noted that the foregoing official opinion of

the Solicitor was written prior to the filing of the in-

stant case. So far as counsel are aware it was written

without any reference to, or knowledge of, the present

controversy,

The Wyoming State officials charged with the ad-

ministration of the state fish and game laws have cheer-

fully accepted the foregoing opinion of the Solicitor. In-

deed its logic appears irrefutable. The purchased lands

and the restored lands are again a part of the Wind

River Reservation. Pursuant to its Constitutional duty

and its Treaty obligation, the United States holds the

title for the ‘absolute and undisturbed use’? of the In-

dians.

S. Exemption vs. Immunity.

Petitioner repeatedly urges the point that sinee the

Act of 1939 does not in words exempt the purchased lands

from taxation such fact is an indication that no exemp-

tion was intended. This point is without merit. The

immunity exists and a declaration thereof would have

been surplusage. In the recent case of Penn Dairies and

the United States v. Milk Control Commission of Penn-

sylvania (1943), 318 U.S. 261, 87 L. ed. 748, this Court

said:

“We may assume also that, in the absence of

congressional consent, there is an implied constitu-

tional immunity of the national government from

state taxation and from state regulation of the per-

formance, by federal officers and agencies, of govern-

mertal functions, Ohio v. Thomas, 178 U.S. 276, 43

L. ed. 699, 19 S. Ct. 453: Johnson v. Maryland, 254

U.S. 51, 65 L. ed. 126, 41S. Ct. 16; Hunt v. United

States, 278 U. S. 96, 73 L. ed. 200, 49 S. Ct. 38;

Arizona v. California, 283 U.S. 423, 75 L. ed. 1154,

51 8. Ct. 522."

In the case of Johnson v. Maryland, 254 U. 8. 51, 65

L. ed. 126, cited in the Penn Dairies opinion, this Court,

opinion by Mr. Justice Holmes, said:

‘*Here is the question whether the state ean in-

terrupt the acts of the general government. itself.

With regard to taxation, no matter how reasonable,

or how universal and undiscriminating, the state’s

inability to interfere has been regarded as established

since M’Culloch v. Maryland, 4 Wheat. 316, 4 L. ed.

O79. The decision in that case was not put upon any

consideration of degree, but upon the entire absence

of power on the part of the states to touch, in that

way, at least, the instrumentalities of the United

States (4 Wheat. 429, 480), and that is the law to-

day.”’

_ 0

CONCLUSION

It is respectfully submitted:

1. The Wind River Reservation is a Treaty Reser-

vation.

2. The Constitution of the United States and the

Treaty of 1868 are the Supreme Law of the Land applied

to the instant controversy.

3. The purchased and restored lands, same being the

lands involved in this cause, are a part of the tribal

reservation,

4. Lands restored to the tribal reservation are im-

mune from taxation just as are the lands whieh have

never been separated from the tribal reservation.

9. The decision below is correct and the petition for

writ of certiorari should be denied.

Respectfully,

Gitorce M. Tuntsoy,

Omaha, Nebraska

Crar.ces J. Karpier,

Amici Curiae

Counsel for the Shoshone Tribe

of Indians of the Wind River

Reservation in Wyoming

January 12, 1945.

ns eae S Pe gation vtetnatin nc

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.