Amicus Curiae Brief — Tonasket v. Washington

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TABLE OF CONTENTS

STATEMENT OF INTEREST ..........................--------------

SUMMARY OF ARGUMENT

ARGUMENT

I. The State of Washington Has No Public Law 280

Jursidiction to Tax Indians on the Colville Res-

Raia Ne stn dee Aa a Meas erin pea deta

A. Criminal Law Aspect of P.L. 280....................

B. The Civil Law Aspect of P.L. 280 ...................

II. The State . Washington Has No Public Law 280

Jurisdiction At All Over the Colville Reserva-

tion

CONCLUSION

TABLE OF CITATIONS

Cases:

Borough of Ramsey v. Basil, 19 N.J.Misc. 555, 21

A.2d 860 (1941)

Bowen V. Dept. of Social Security, 14 Wash.2d 148,

127 P.2d 682 (1942)

City of Burlington v. Burlington Traction Co., 70

Vt. 491, 41 Atl. 514 (1898)

City of Chicago v. Walcher, 327 Ill.App. 556, 64

N.E.2d 394 (1946)

City of New Town v. United States, 454 F.2d 121

(1972)

City of Sioux Falls v. Famestad, 71 S.D. 98, 21

N.W.2d 693 (1946) _.....

City of St. Lovis v. Stubley, 154 S.W.2d 407 (Mo.

App. 1941)

Clarke v. City of Evansville, 75 Ind.App. 500, 131

N.E. 82 (1921)

Epperson V. Johnson, 190 Okla. 1, 119 P.2d 818

(1941)

Fortune v. Incorporated Town of Wilburton, 5 Ind.

Terr. 251, 82 S.W. 738 (1904)

II

TABLE OF CITATIONS—Continued

Webster’s New International Dictionary, 2nd

Edition

7 Words and Phrases

Page

Halverstadt v. Berger, 72 Neb. 462, 100 N.W. 934

(1904) 7

Kennerly v. District Court, 400 U.S. 423 (1971)... 3,9

Los Alamos School v. State, 35 N.M. 122, 290 P.

1019 (1930) 7

Menominee Tribe v. United States, 391 U.S. 404

(1968) 7

Quinault Tribe v. Gallagher, 368 F.2d 648 (9th

Cir. 1966), cert. den., 387 U.S. 907 7,9

Seymour Vv. Superintendent, 368 U.S. 351 (1962)..... 4

Squire v. Capoeman, 351 U.S. 1 (1956) --.---............ 7

United States v. Celestine, 215 U.S. 278 (1909)_...... 4

Warren Trading Post Co. v. Arizona Tax Comm’n,

380 U.S. 685 (1965) 3

Miscellaneous:

Vept. of the Interior, Federal Indian Law (GPO

1958) 3

Public Law 280, 67 Stat. 588, 18 U.S.C. § 1162,

i cecceamtinnionainoensl passim

S.Rept. 699, 83d Cong. (1953) 6

U.S. Code Cong. & Admin. News (1953) —........... 6

—

IN THE

Supreme Cmut of the United States

OCTOBER TERM, 1971

No. 71-1031

LEONARD TONASKET,

Appellant,

Vv.

THE STATE OF WASHINGTON and THE SUPERVISOR OF

THE TAX COMMISSION OF THE STATE OF WASHINGTON,

Respondents.

On Appeal from the Supreme Court of Washington

BRIEF FOR AMICUS CURIAE,

NATIONAL CONGRESS OF AMERICAN INDIANS

IN SUPPORT OF APPELLANT

STATEMENT OF INTEREST

This brief is filed with the consent of both parties.

Amicus Curiae, the National Congress of American

Indians (NCAI), is a nonprofit association of some 147

Indian tribes, including virtually all of the major or-

ganized tribes except the Navajo Tribe. Its purpose is

to promote the interests of American Indians. It was in-

—— SELL LICE LEO L I IIL LOSE IE DTI LNE EISEN NT RET

7

corporated in Oklahoma in 1954, and its national head-

quarters is at 1346 Connecticut Avenue, N.W., Wash-

ington, D.C.

NCAI supports the position of the Appellant Indian,

Leonard Tonasket, and joins him in asserting that the

decision of the Washington Supreme Court was erroneous.

NCAI is deeply concerned with the Washington court’s

decision, because it represents one more example of a

state attempting to extend its jurisdiction over a reser-

vation Indian in a way that constitutes a usurpation

of the tribe’s governmental powers over its people.

2

SUMMARY OF ARGUMENT

1. Under Public Law 280, reasonably construed, the

tribe did not lose any of its sovereign powers, except

the power to legislate criminal and civil laws inconsistent

with statewide criminal laws. The Act did not grant

to the state the sovereign power to tax tribal members

on the reservation. This conclusion follows from the ordi-

nary meaning of the language used in the Act, and es-

pecially if a strict construction is followed.

2. The State of Washington has never repealed its

Constitutional disclaimer of jurisdiction over Indians,

and therefore Public Law 280 is not effective in Wash-

ington.

ARGUMENT

I. The State of Washington Has No Public Law 280 Jur-

isdiction to Tax Indians on the Colville Reservation

This case presents to the Court for the first time the

fundamental question of whether Public Law 280, in

granting to the state criminal and civil jurisdiction over

the reservation and extending state criminal and civil

laws to the reservation, granted to the state the power

and Dept. of the Interior, Federal Indian Law (G.P.O. 1958), at

8

to impose its taxes on Indian transactions within the

reservation.

As important as the question of taxation is, the even

more fundamental question, on which the Indian tribes

of this country subject to Public Law 280 are anxiously

awaiting the verdict, is what powers of self-government

did Public Law 280 leave to them? Not much, apparently,

if the ruling of the Washington Supreme Court is up-

held.

A. The Criminal Law Aspect of Public Law 280

Before analyzing the civil law aspect of P.L. 280, it

may be helpful to glance at the criminal law aspect, which

is somewhat simpler in its ramifications. It is clear that

Congress gave to the state courts criminal jurisdiction

over offenses involving Indians, and made state criminal

laws applicable to the reservation. By necessary implica-

tion, where Public Law 280 applies, Indians are also

subject to the state law and order machinery—police,

prosecutors, judges, jails, ete.

The big unresolved question is whether the state’s

jurisdiction is exclusive or concurrent. If concurrent, the

tribe would retain the ability to legislate (consistent

with state law) and operate its own enforcement machin-

ery in areas that the state neglects to cover. If exclu-

sive, then the tribe’s powers of self-government have been

much more severely curtailed, and law and order serv-

ices much less likely to be provided in a satisfactory way.

Any grant of jurisdiction to the state in derogation

of tribal self-government should be strictly construed,

and only as much jurisdiction granted which plainly

and necessarily is encompassed in the language of the

Act.’ Since P.L. 280 did not say that the state’s juris-

1See Warren Trading Post Co. v. Arizona Tax Comm., 380 U.S.

685, 687 (1965) ; Kennerly v. District Court, 400 U.S. 423 (1971);

4

diction. would be exclusive, and since exclusive jurisdic-

tion is not necessary in order for the state to acquire

and properly exercise what Congress gave it, the juris-

diction should be held concurrent. We should not forget

that the tribe’s sovereign powers existed long before the

state’s, and should not lightly be annulled.

It should also be noted that only state-wide criminal

laws apply to the reservation.? Consequently, local county

and municipal ordinances do not apply, and the tribe is

free to enact its own local ordinances, consistent with

state law.

B. The Civil Law Aspect of Public Law 280

The civil law aspect cf P.L. 280 presents more or less

the same complications, plus the serious question of

what laws are included under the term “civil laws.”

The court below seemed to define “civil laws” as all

395 (“This right of self-government, which has been consistently

protected by the courts .. .”), and 396-402. Once a reservation

is established or recognized by Congress, subsequent diminutions

of that reservation are strictly construed. United States v. Celestine,

215 U.S. 278 (1909); Seymour v. Superintendent, 368 U.S. 351

(1962) ; City of New Town v. United States, 454 F.2d 121 (8th Cir.

1972).

2 Congress did not make local state laws applicable to the reserva-

tions. P.L. 280 says that criminal and civil laws shall have the

same force on reservations as “elsewhere within the State”. This

implies that only state-wide laws apply to the reservations.

It is interesting to note that enforcement of quasi-criminal

municipal ordinances in most states seems to be considered civil

proceedings. See, e.g., Fortune v. Incorporated Town of Wilburton,

5 Ind. Terr. 251, 82 S.W. 738 (1904) ; Borough of Ramsey v. Basil,

19 N.J.Misc. 555, 21 A.2d 860 (1941) ; City of St. Louis v. Stubley,

154 S.W.2d 407 (Mo.App. 1941); City of Chicago v. Walcher, 327

Ill. App. 556, 64 N.E.2d 394 (1946) ; City of Sioux Falls v. Famestad,

71 S.D. 98, 21 N.W.2d 698 (1946).

_

non-criminal laws, including laws imposing taxes on

citizens. It the court was right, then we can expect the

state to assert over the reservation all of its other sover-

eign powers—for instance, the power to grant licenses and

franchises (such as for liquor dispensaries, casinos, etc.),

to engage in proprietary activities (power and irrigation

projects, ferry operations, etc.), to regulate tribal enter-

prises, and so on. If the state now has these powers, the

tribal powers of self-government are correspondingly

diminished.

Is this what Congress intended?

P.L. 280 has two operative clauses relevant to the

civil aspect. The first says—

5

“(the stute] shall have jurisdiction over civil causes

of action between Indians or to which Indians are

parties. .. .” (Emphasis added)

The second says:

“. , . those civil laws of the State that are of general

application to private persons or private property

shall have the same force and effect within such

Indian country as they have elsewhere within the

State. .. .” (Emphasis added)

We believe a fair reading of these two clauses con-

firms that Congress never intended “civil laws” to mean

the entire array of state non-criminal laws, but rather

that Congress intended “civil laws” to mean those laws

which have to do with private rights and status. There-

fore, “civil laws . . . of general application to private

persons or private property” would include the laws of

contract, tort, marriage, divorce, insanity, descent, etc.,

but would not include laws declaring or implementing the

state’s sovereign powers, such as the power to tax,

grant franchises, etc. These are not with the fair mean-

ing of “private” laws.

. EPR T RC RR EER ST OE MR ESET UR IRI —

‘Li

Hi

if

i

;

dictionary meaning of “civil” corroborates our

of P.L. 280. Webster’s New International Dic-

, Second Edition, defines “civil” as follows:*

Law.

al

;

:

:

i

dies sought by action or suit distinet from criminal

There is nothing here to hint of the great sovereign

powers which the state claims it received.

In a number of cases, courts have held that certain

non-criminal proceedings involving exercise of sovereign

*S.Rept. 699, 88d Cong. (1963), reprinted U.S. Code Cong. &

Admin. News (1968) at pp. 2409-2414.

* And hundreds of cases say practically the same thing. See cases

collected at 7 Words and Phrases, pp. 382-378.

7

powers are not “civil” proceedings.* Of course those were

special contexts and of little relevance here, yet they

private rights, as opposed to sovereign powers over citi-

zens. Congress was not concerned that the states lacked

these powers on the reservation, but with the absence of

a functioning system for the resolution of private rights.

In conclusion, it seems clear that Congress had in

mind a more normal definition of “civil laws” than the

court below supposed, and if there is any doubt about

it, the doubts should be resolved in favor of preserving

the tribal powers of self-government.’

We leave the subject with the note that there are some

tribes as to whom the state has asserted only partial

jurisdiction in enumerated areas. One example is the

Quinault Tribe of Washington, as to whom the state as-

serts exclusive jurisdiction on all subject matters oc-

curring on fee land within the reservation, but on Indian

trust land it asserts its jurisdiction only in a few enume-

rated areas.” This has created a checkerboard nightmare

* Epperson ¥. Johnson, 190 Okla. 1, 119 P.2d 818 (1941) (con-

demnation proceeding); Los Alamos School y. State, 36 N.M. 122,

290 Pac. 1019 (1980) (taxpayer's action for refund) ; Halverstadt v.

Berger, 72 Neb. 462, 100 N.W. 934 (1904) (appeal from order of

village board re liquor license); Clarke v. City of Evanaville, 76

Ind. App. 600, 131 N.E. 82 (1921) (appeal from assessment for

street improvement) ; City of Burlington vy. Burlington Traction Co.,

70 Vt. 491, 41 Atl. 5614 (1898) (proceeding before railroad commis-

sion); Bowen v. Department of Social Security, 14 Wash. 2d. 148,

127 P.2d 682 (1942) (appeal from decision of the Washington De-

partment of Social Security).

* As this Court is well aware, statutory ambiguities are construed

in favor of the Indians. Menominee Tribe y¥. United States, 391 US.

ay (1968) ; Squire ¥. Capoeman, 361 U.S. 1 (1966). And see note

* Family, juvenile, insanity, welfare and traffic matters. The

system was described in Quinault Tribe v. Gallagher, 368 F.2d 648

(9th Cir. 1966).

for the law enforcement authorities, because as far as

criminal law is concerned, federal and tribal laws ap-

plies to trust land, and state law to fee land. Under-

standably, the state law enforcement officials have given

up, and simply do not normally provide law and order

services at all on the reservation.

Another example is the Flathead Tribe of Montana,

which has a system modeled after the Washington statute,

but with differences that make it practical.’ Obviously

in a case such as Flathead, the taxing power would not

vest in the state, because not enumerated in the tribal

‘acceptance of limited state jurisdiction.

Il. The Statute of Washington Has No Public Law 280

Jurisdiction at All Over the Colville Reservation

The State of Washington has never validly accepted

Public Law 280, and therefore cannot base its taxing

power over Indians on that Act.

The Washington Constitution, Article 26, has provided

ever since the state entered the Union in 1889, that—

“, , . the people inhabiting this state do agree and

declare that ... all lands . . . owned or held by any

Indian or Indian tribes . . . shall remain under the

absolute jurisdiction and control of the congress of

the United States. . .”

Some eight states have similar constitutional dis-

claimers, and Congress was aware of them when it en-

* The chief difference is that the Flathead arrangement is con-

sensual, while the Quinault arrangement is imposed over the Indians’

objections. The Flathead Tribe has accepted state jurisdiction over

the same subject matters as enumerated in the preceding note, plus

the criminal area. However, at Flathead this partial jurisdiction

applies to all land, regardless whether in fee or trust, and the

Flathead Tribe made it clear that it was retaining concurrent

jurisdiction. At Quinault, the state insists that its jurisdiction is

exclusive, so that the Tribe is supposedly not allowed to cover areas

neglected by the State.

Szos wzgegoees' Fa. S2o p

ages Fens |

——————

xd Public Law 280. Section 6 of P.L. 280 gives the

sent of the U.S. to these states to amend their con-

utions to remove the disclaimers. Section 6 concludes,

ever,

“That the provisions of this Act shall not become

effective with respect to such assumption of juris-

diction by any such State until the people thereof

have appropriately amended their state constitution

or statutes as the case may be.”

Vashington has not even tried to amend its Constitu-

, 80 it would certainly seem that Public Law 280

not become effective in that state.

jut in 1966 the Ninth Circuit held” that the above

ted Section 6 of P.L. 280 did not mean what it said;

that Washington could assert jurisdiction over In-

1 lands whether it amended its constitution or not."

tiorari was sought from this Court, and the Indian

e, the state, and the United States all agreed that

Court should review the Ninth Circuit’s decision.

ertheless, certiorari was denied.”

he issue remains alive, and subject to being raised in

ry relevant case arising in Washington until this

rt disposes of it. Not having been raised below or

fed here, we appreciate that the Court will not wish

lecide this issue now. Nevertheless, there is a latent

Quinault Tribe v. Gallagher, 368 F.2d 648 (9th Cir. 1966). The

t first dismissed the case for lack of $10,000 being involved, 368

at 651-5, but shortly after, Congress removed this requirement

ndian tribes, and the court accepted jurisdiction on rehearing.

en denied relief on the merits. 368 F.2d 655-8.

This was certainly not the attitude of this Court in Kennerly

istrict Court, 400 U.S. 423, 427 (1971), where P.L. 280’s re-

sment of affirmative legislative action was held no “idle choice

ords.”

387 US. 907.

i a

10

fundamental] defect in the state’s case, which has strong

color of argument on its face, and we thought the Court

should be aware of it.

CONCLUSION

This Court should reverse the decision of the Wash-

ington Supreme Court, and declare that the State of

Washington has no power to tax Indians on the Colville

Reservation.

Respectfully submitted,

CHARLES A. Hopss

Counsel for Amicus Curiae,

National Congress of American

Indians, Inc.

1616 H Street, N.W.

Washington, D.C. 20006

WILKINSON, CRAGUN AND BARKER

RICHARD A. PAENEN

of Counsel

August 18, 1972