Petition — Omaha Tribe of Indians v. Peters

IN THE

Supreme Court of the United States

OotosEr TEM, 1975

No. %5- 169

Omana Trise or Invians, Santez Sioux Taiz or Inprans,

Wrywesaco Taree or Inpians, Mary Raspiosi, Fer W.

Warrt, Jz., and Diwa LaPornts, Individually and on

Behalf of All Other Similarly Situated Persons, Peti-

tioners,

v.

Wnts A. Peters, InprvipvaLly anp as Nesrasxa Stare

Tax ComMISSIONER AND THE NEBRASKA DEPARTMEN: OF

Revenve, Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

Dantet H. Israzn

Rosert S. Peicycer

Native American Rights Fund

1506 Broadway

Boulder, Colorado 80302

(303) 447-8760

JamzEs R. Pererson

Winnebago, Nebraska 68071

(402) 878-2242

Counsel for Petitioners

Paess or Brnon S. Apams Puurring, Inc., Wasnurcron, D. C.

Page

I BE ec clindcdtanincteutinstoidcwenes 1

Ss ich ei baie ae eed ee lS 2

Se ID 5. 6 5s ccghddcendauesacounscwaneune 2

I i ls eel a 2

RASMNINS GH GH CAG oi ccc ccisccccccccccscecessa 3

REASONS FOR GRANTING THE WRIT ...............000- 4

I,

Il.

TABLE OF CONTENTS

Tuts Case Presents THis Court WitH Aan Op-

PortTUNITY To Resotve an Issue or Great Im-

PORTANCE TO AMERICAN INDIAN TrIBES WuicH

Was Expressty Reservep sy Tus Court 1x Mc-

CLANAHAN v. Arizona State Tax CoMMISSION ..

Tue Court or Appreats’ ANALYSIS oF PuBLIC

Law 280 Is FUNDAMENTALLY INCONSISTENT WITH

THE INTERPRETATION GIVEN THE STATUTE By THIs

a re al ean ee en a Sa

A. There Is Nothing in the Language of Public

Law 280 which Indicates that It Was In-

tended to Confer on the States the Power to

Tax Reservation Indians .................

B. The Phrase ‘‘Civil Laws of General Appli-

eation’’ Found in Public Law 280 Was De-

signed to Identify What Laws Would Apply

in the Resolution of Civil Disputes under the

New State Jurisdiction ...................

C. In Public Law 280 Congress Included a Broad

Proviso to Assure that Unique Federal

Rights Accorded Reservation Indian Status,

Such as the Immunity from State Taxation,

Would Not Be Affected by the Conferral of

Civil and Criminal Jurisdiction ...........

ii Table of Authorities

Page

Ill. Tue Conrusion SurRoUNDING THE GRANT OF

Civi. Jurispiction 1x Pusiic Law 280 States

Has Resuttrep IN a CONCENTRATED PUSH BY

State Tax ApMINISTRATORS TO IMPOSE COMPRE-

HENSIVE STaTE TAXATION ON RESERVATION INDIANS 15

a aa ee ed ee 19

EE cite nkadedecunaubihenketiescessskaa la

TABLE OF AUTHORITIES

CasEs:

Antoine v. Washington, 417 U.S. 966 (1975) ......... 16

Bryan v. Itasca County, — Minn, —, 228 N.W.2d 249

(1975), petition for certiorari filed, July 3,1975.. 15

Choate v. Trapp, 224 U.S. 665 (1912) ............... 12

Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970) . 16

Choctaw Nation of Indians v. United States, 318 U.S.

OO OD oid ceil une anindcavindertes 16

Crooks v. Harrelson, 282 U.S. 55 (1930) ............ 7

De Coteau v. District County Court, — U.S. —, 43

Ree SUED okncceanneserddacsevas veers 16

Gould v. Gould, 245 U.S. 151 (1917) ...........0.... 7

Jones v. Meehan, 175 U.S. 1 (1899) ....,.....eeeeees 16

The Kansas Indians, 72 U.S. (5 Wall.) 737 (1867) ... 12

Kennerly v. District Court of Montana, 400 U.S. 423

SEED niduceeedsd: .4nesdanesanetactseuress 6, 11,17

McClanahan vy. Arizona State Tax Commission, 411

23 @ Fo errr: 4, 5, 6, 8, 12, 13, 14, 17, 7

Marlin v. LeWallen, 276 U.S. 58 (1928) saneuteheaees

Mattz v. Arnett, 412 U.S. 481 (1973) ............... 8

Menominee Tribe v. United States, 391 U.S. 404 (1968)

6, 9, 14, 16, 17

Mescalero Apache Tribe v. Jones, 411 U.S. 145 (198) ,

5, 1

Morton v. Mancari, 417 U.S. 535 (1974) ..........-. 14, 17

Morton v. Ruiz, 415 U.S. 199 SED v.00 04kvcaaweeses 17

Quileute Indian Tribe, et al. v. State of Washington,

Civ. No. 74-7619 (W.D. Wash.) .........-ee00:- 15

et ee ee ee,

SSS eee

Table of Authorities Continued iii

Page

Seymour v. Superintendent, 368 U.S. 351 (1962) ..... 16

Squire v. Capoeman, 351 U.S. 1 (1956) ............. 13, 16

Tonasket v. State of Washington, 411 U.S. 451 (1973)

12, 16,18

Tonasket v. State of Washington, 84 Wn.2d 164, 52

P.2d 744 (1974), appeal dismissed, — U.S.

SEE desc dk chee vida edeaud 6s isdék oiaseeee ds 18

Treat v. White, 181 U.S. 264 (1901) ................ 7

United States v. Rickert, 188 U.S. 432 (1903) ........ 12

United States v. Shoshone Tribe, 304 U.S. 111 (1938). 16

Warren Trading Post v. Arizona State Tax Commis-

ston, 380 U.S. G65 (19GB) ..... ccc ccccee 6, 11, 13, 18

Wildcat, et al. v. Adamany, Civ. No. 74-C-266 (W.D.

Wise. Dh 3 dab aeehes oan Can ee ee eee wheelies eneek 15

Williams v. Lee, 358 U.S. 217 (1959) ................ 13

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) .... 16

STATUTES:

United States Constitution, Article 1, Section 8,

Ee ee od ce oie ees goks eu sns 5

4 U.S.C. § 104-110 (Buck Act) 61 Stat. 641 .......... 8

es TS eee iidaeveeeews 8

ee ines USia ew ebadeekeeseccees 8

SE, bi ee eacealiciwbeneKeebwens 8

ee ood Eee e ve es dc bee én ece 8

ee 20) ed cuw ice ile cuukedieded ee eee 4,11

ee i eins ienkddees pacuenesevs 13

25 U.S.C. §§ 564), 677p, 699, 749, 798, 898, 978 ....... 9

25 U.S.C. §§ 564q, 677v, 703, 757, 803, 899, 980 ....... 8

i il ds teas 18

cc eben deeab ones inasaeusnt 2

Cone ie uw s neck cece ees eaegavees 4

oe ce Ts oi Can deueiVusecuccsvekews 3

I a i a Stee ie gevawkeasees 3

ee di liven de eee 3

I ig 3

28 U.S.C. § 1360, Public Law 83-280, 67 Stat. 588... passim

24 Stat. 388 (The General Allotment ee 13

48 a ¥ (Indian Reorganization Act of June 18,

mer rey ee he ere er ere rere 3

iv Table of Authorities Continued

Page

LEGISLATIVE History:

House Report No. 848, 83rd Cong., Ist Sess. (1953) .. 10

Senate Report No. 699, 83rd Cong., Ist Sess. (1953).. 10

Hearings on H.R. 1063 before the Subcommittee on In-

dian Affairs, 83rd Cong., Ist Sess. (1953) ...10, 12, 14

Hearings on H.R. 15419 and Related Bills before the

Subcommittee on Indian Affairs of the House

Committee on Interior and Insular Affairs, 90th

Ceng., 36 Guan. BE CAGED oc ccccncecsccdccsnuuns 15

IN THE

Supreme Court of the United States

Octoser Term, 1975

No. 75-

Omana Tripe or Inpians, Santee Stoux [riee or Inpians,

Wiuynesaco Tree or [yprans, Mary @i@pprosi, Ferix W.

Wuire, Jr., and Drana LaPorn7e, Individually and on

Behalf of All Other Similarly Situated Persons, Peti-

tioners,

v.

Wii A. Perers, InprvipvaLty anp as Nesraska State

Tax ComMMISSIONER AND THE NeBprasKA DepaRTMENT OF

Revenve, Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

The Omaha Tribe of Indians, the Santee Sioux Tribe of

Indians, the Winnebago Tribe of Indians, and the individ-

ual tribal members petition for a writ of certiorari to re-

view the judgment of the United States Court of Appeals

for the Eighth Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals (App. pp. 1la-7a)

is not yet reported. The district court’s opinion App. pp.

8a-17a) is reported at 382 F. Supp. 421 (D. Neb. 1974).

JURISDICTION

The judgment of the Court of Appeals was entered on

May 9, 1975. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

QUESTION PRESENTED

Did Congress in Public Law 83-280, 67 Stat. 588, 28

U.S.C. § 1360, authorize the State of Nebraska to impose

a state income tax on income earned by Indians working

and residing on federally recognized reservations located

in the State of Nebraska.

STATUTE INVOLVED

28 U.S.C. § 1360:

(a) Each of the States or Territories listed in the

following table shall have jurisdiction over civil causes

of action between Indians or to which Indians are

parties which arise in the areas of Indian country listed

opposite the name of the State or Territory to the same

extent that such State or Territory has jurisdiction

over other civil causes of action, and those civil laws of

such State or Territory 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 or Territory.

* * *

Nebraska. ... All Indian country within the State.

eo * *

(b) Nothing in this section shall authorize the alien-

ation, encumbrance, or taxation of any real or per-

sonal property, including water rights, belonging to

any Indian or any Indian tribe, band, or community

that is held in trust by the United States or is subject

to a restriction against alienation imposed by the

United States; or shall authorize regulation of the use

of such property in a manner inconsistent with any

Federal treaty, agreement, or statute or with any regu-

lation made pursuant thereto; or shall confer jurisdic-

tion upon the State to adjudicate, in probate proceed-

a

AO te et ns

3

ings or otherwise, the ownership or right to possession

of such property or any interest therein.

(c) Any tribal ordinance or custom heretofore or

hereafter adopted by an Indian tribe, band, or com-

munity in the exercise of any authority which it may

possess shall, if not inconsistent with any applicable

civil law of the State, be given full force and effect in

the determination of civil causes of action pursuant to

this section.

STATEMENT OF THE CASE

The Omaha Tribe of Indians, the Santee Sioux Tribe of

Indians, and the Winnebago Tribe of Indians are three

federally recognized Indian tribes occupying reservations

within the State of Nebraska. Each tribe entered into a

series of treaties with the United States whereby the tribes

ceded vast portions of land in exchange for their existing

reservations. Each of the tribes has been established in

accordance with the Indian Reorganization Act of June 18,

1934, 48 Stat. 984, and has adopted an appropriate constitu-

tion and by-laws in accordance with federal law. The

indi, idual Indian petitioners are enrolled members of the

tribes. Each resides within the boundaries of the Indian

reservations and each earns his or her income from ac-

tivities taking place solely within the three reservations.

The respondents are the State Tax Commissioner of the

State of Nebraska and the Nebraska Department of Reve-

nue. Respondents are charged with administering the

Nebraska state income tax laws.

The Indian tribes sued the State Tax Commissioner of

the State of Nebraska on February 4, 1974, claiming that

the State of Nebraska has no authority to tax Indian income

earned within the Nebraska Indian reservations. The

tribes and the individual members asserted federal court

jurisdiction pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1337,

98 U.S.C. § 1343(3), and 28 U.S.C. $1362. The Indians

sought a declaration that the immunity for Indian income

4

from state taxation confirmed in McClanahan y. Arizona

State Tax Commission, 411 U.S. 164 (1973), applied to

Nebraska reservation Indians. Nebraska argued that be-

cause it has been authorized by Congress in Public Law

83-280, 67 Stat. 588, 28 U.S.C. § 1360, 18 U.S.C. § 1162, to

exercise civil and criminal jurisdiction over Nebraska res-

ervations, Nebraska Indians are not entitled to the Indian

tax immunity secured in McClanahan, supra.

The district court ruled in favor of the State of Nebraska

and concluded that as a result of the enactment of Public

Law 280, the State of Nebraska had been authorized to im-

pose its income tax laws against Indian income earned

within the boundaries of Nebraska Indian reservations. The

Nebraska Indians appealed pursuant to 28 U.S.C. § 1291 to

the United States Court of Appeals for the Eighth Circuit.

The Court of Appeals affirmed the district court’s opinion

and ruled that Public Law 280 constituted a broad congres-

sional grant of state taxing power over reservation Indians.

REASONS FOR GRANTING THE WRIT

I, THIS CASE PRESENTS THIS COURT WITH AN OPPORTUNITY

TO RESOLVE AN ISSUE OF GREAT IMPORTANCE TO AMER-

ICAN INDIAN TRIBES WHICH WAS EXPRESSLY RESERVED

BY THIS COURT IN McCLANAHAN v. ARIZONA STATE TAX

COMMISSION.

In 1973 this Court decided a landmark case in Indian

law, McClanahan v. Arizona State Tax Commission, 411

U.S. 164 (1973). In McClanahan, this Court reaffirmed the

unique legal status of reservation Indians, and concluded

that Indian income earned within the boundaries of the

Navajo Indian Reservation was immune from income taxes

imposed by the State of Arizona. The importance of the

decision in McClanahan lies in its declaration that Indian

tribes exist as separate entities possessing attributes of

sovereignty that makes them legally distinct from the states

in which they are located, whose rights and privileges are

defined solely through congressional action undertaken pur-

ie ee ey Ree:

eS Soe Ee a

5

suant to Article 1, Section 8, Clause 3 of the United States

Constitution.

In McClanahan, this Court expressly reserved the issue

of whether the Indian tax immunity from state taxation

would be applicable in a state which had assumed civil and

criminal jurisdiction pursuant to Public Law 280; 411 U.S.

at 178, n.19.

Although this Court did not determine the scope of state

civil jurisdiction granted under Public Law 280, it did es-

tablish the framework for determining whether a given act

of Congress can be deemed to have granted the states tax-

ing authority over reservation Indians. Thus, in a com-

panion case to McClanahan, Mescalero Apache Tribe v.

Jones, 411 U.S. 145 (1973), this Court observed:

. . . [I]n the special area of state taxation, absent

cession of jurisdiction or other federal statutes, per-

mitting it, there has been no satisfactory authority for

taxing Indian reservation lands or Indian income from

activities carried on within the boundaries of the reser-

vation, and McClanahan v. Arizona State Tax Comm’n,

supra, lays to rest any doubt in this respect by holding

that such taxation is not permissible absent congres-

sional consent.

411 U.S. at 148.

Furthermore, in McClanahan this Court spelled out the

characteristics a congressional cession of jurisdiction or

other authorizing statute must have in order to constitute

a grant of new state taxing power:

... Similarly, narrower staiutes authorizing States to

assert tax jurisdiction over reservations in special

situations are explicable only if Congress assumed that

the States lacked the power to impose the taxes with-

out special authorization.

411 U.S. at 177. (Footnote omitted.)

Petitioners contend that neither the Court of Appeals

nor the district court measured the scope of Public Law 280

6

using the special standards required to establish state tax-

ing power over reservation Indians, so recently delineated

by this Court in McClanahan and Mescalero. Indeed, the

Court of Appeals summarily disposed of this important

issue, expressly reserved by this Court, in two pages, and

gave no consideration whatever to the special criteria re-

quired to sustain state taxing power over reservation In-

dians. As a result, over one hundred Indian tribes in the

thirteen states which have assumed jurisdiction under Pub-

lic Law 280 are being treated as if their members were no

longer Indians by state tax administrators who are intent

on maximizing state taxing power until this Court decides

this reserved and yet unresolved Public Law 280 issue.

Il. THE COURT OF APPEALS’ ANALYSIS OF PUBLIC LAW 280 IS

FUNDAMENTALLY INCONSISTENT WITH THE INTERPRETA-

TION GIVEN THE STATUTE BY THIS COURT.

The Petitioners find the Court of Appeals’ decision to be

not only fundamentaily in conflict with the rulings in Mc-

Clanahan and Mescalero establishing the test for authoriz-

ing state taxation of reservation Indians, but also to be in-

consistent with this Court’s construction of the purpose and

scope of Public Law 280 found in Menominee Tribe v.

United States, 391 U.S. 404 (1968); Kennerly v. District

Court of Montana, 400 U.S. 423 (1971); and Warren Trad-

ing Post vy. Arizona State Tar Commission, 380 U.S. 685

(1965). In fact, the Court of Appeals failed to even con-

sider this Court’s decisions interpreting Publie Law 280,

and in addition made no effort to consider the legislative

history of the Act. Rather the Court of Appeals, relying on

an erroneous assumption that the purpose of Public Law

280 was to terminate the Indians’ special federal status,

summarily concluded that because the proviso (paragraph

(b)) preserved only trust property rights, that the con-

ferral (paragraph (a)) necessarily must be read to subject

the Indians to all state laws, including all state tax laws.

In effect, the Court of Appeals ruled that with the passage

- ——

2) ere ee

OE Se Oe. Sera come

7

of the Act, Public Law 280 Indians became ‘‘terminated’’

Indians except for their trust property rights. A brief

survey of the language and legislative history of the

statute indicates, to the contrary, that Congress was in-

tent on conferring to the states a limited authority—

namely the power to resolve reservation conflicts in

state courts. There is no indication of a congressional

plan to utilize the statute to subject reservation Indians

to the myriad of state taxes levied against non-Indians.’

A. There Is Nothing in the Language of Public Law 280

Which Indicates that It Was Intended To Confer on the

States the Power To Tax Reservation Indians.

Public Law 280 is entitled ‘‘An Act [t]o confer juris-

diction ... [on certain states] with respect to criminal of-

fenses and civil causes of action committed or arising on

Indian reservations within such States .. .’’ (Emphasis

supplied.) As to civil jurisdiction, the Act provides that a

named state shall have ‘‘jurisdiction over civil causes of

action between Indians or to which Indians are parties

which arise in... Indian country ... to the same extent

that such State ... has jurisdiction over other civil causes

of action, and those civil laws of such 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 ...’’

There is nothing in this language which refers expressly

to taxing authority or revenue raising power. On its face

the law appears designed to give state courts the power to

1 Moreover, where the power to tax is involved in the con-

struction of a statute, this Court has traditionally required a

careful serutiny of any conferral language to guard against

taxation not clearly expressed. Treat v. White, 181 U.S. 264

(1901) ; Gould v. Gould, 245 'J.S, 151 (1917) ; and Crooks v. Har-

relson, 282 U.S. 55 (1930).

8

hear civil suits regarding causes of action that arise on

reservations and to declare which laws shall apply in such

suits. The statute provides that general state laws appli-

cable to private persons and private property shall govern

the relationship arising among people on Indian reserva-

tions.

Because the words of the Act do not expressly mention

tax laws, a power to tax must necessarily be implied from

the statute’s grant of general civil jurisdiction. Inferring

taxing authority over Indians in this manner, however,

does violence to the strict ‘‘tax jurisdiction’’ standard

referred to in McClanahan and Mescalero. It is also in-

consistent with the pattern of congressional acts which have

provided the states with new taxing powers.”

Furthermore, inferring special taxing powers from the

general conferral language is particularly difficult to justify

in this situation because the very same Congress which

enacted Public Law 280 also passed a series of statutes

terminating the Indian status and reservations of the

Klamath, Ute, Western Oregon, Paiute, Wyandotte, Me-

nominee, and Ponca. In these acts providing for termin-

ation of the tribes and distribution of tribal property,

Congress provided both that ‘‘the laws of the several

States shail apply to the tribe and its members in the

same manncr as they apply to other citizens’’ (25 U.S.C.

$$ 564q, 677v, 703, 757, 803, 899, 980), and that ‘‘such

“In a number of statutes creating national recreational areas

out of lands previously under mixed federal and state jurisdiction,

Congress granted separately a general authority for the states

to assert civil and criminal jurisdiction and a special authority for

the states to impose state taxes. Sce 16 U.S.C. § 16n-6, 16 U.S.C.

$$ 459(1) (6), 460(u) (8), 460(2) (12). Similarly in the Buck Act,

4 U.S.C. $$ 104-110, 61 Stat. 641, Congress expressly granted

the states the power to impose gasoline taxes on Indian reserva-

tions by providing the states with a special taxing authority, and

not simply with a grant of general civil jurisdiction.

Ce rat tee +

9

property and any income derived therefrom by the indivi-

dual... shall be subject to the same taxes, State and Fed-

eral, as in the case of non-Indians....’’ (25 U.S.C. §§ 564),

677p, 699, 749, 798, 898, 978.) This Court in Menominee

Tribe v. United States, 391 U.S. 404 (1968) has instructed

that Public Law 280 and the coincident termination legis-

lation cited above must be read in pari materia. In

Menominee this Court put Public Law 280 side-by-side

with the Menominee Termination Act and found that the

proviso in Public Law 280 preserved implied tribal hunting

and fishing treaty rights. In this case when Publie Law

280 is read side-by-side with the termination acts, which

by their very terms extinguished all aspects of federal

Indian status, subjected the terminated Indians to the

general laws of the states, and expressly exposed the

terminated Indians to state taxation, it becomes apparent

that the grant of civil jurisdiction in Public Law 280 dealt

solely with resolving private civil disputes, and had nothing

to do with authorizing new state taxing power.

B. The Phrase “Civil Laws of General Application” Found in

Public Law 280 Was Designed To Identify What Laws

Would Apply in the Resolution of Civil Disputes Under

the New State Jurisdiction.

Congress utilized the phrase ‘‘civil laws ... of general

application to private persons or private property’’ not to

authorize state taxation, but rather to clarify what laws

would apply once the state civil processes were invoked.

The phrase ‘‘civil laws’’ was inserted after the conferral

of civil jurisdiction to make it clear that Indians and non-

Indians could rely on state ‘‘civil laws ... of general appli-

cation to private persons or private property’’ when they

invoked the jurisdiction of state courts.

Congress’ concern for clarifying what might be called

the ‘‘choice of law’’ question is further demonstrated by

the inclusion in Public Law 280 of paragraph (ce) which

provides that the parties could look to tribal laws not in-

10

consistent with state civil laws to resolve their conflicts in

the state court proceedings. 28 U.S.C. § 1360(c).

The legislative history of Public Law 280 supports this

construction of the statute. Public Law 280 was designed

as a grant of authority to the states to assist in the resolu-

tion of civil and criminal disputes involving Indians. The

House Report on H.R. 1063, which became Public Law 280,

speaks of the bill as part of a series of measures withdraw-

ing federal responsibility for Indians, but makes it: clear

that Public Law 280 itself was considered a more modest

solution to the specific problems of inadequate law en-

forcement and non-existent judicial forums for resolv-

ing civil conflicts in Indian country. See H. Rep. No. 848,

83rd Cong., Ist Sess.; S. Rep. No. 699, 83rd Cong., 1st

Sess. Tribal courts could not provide a forum for resolving

the increasing number of civil disputes arising among

Indians and non-Indians residing on or doing business on

the reservations. On some reservations an Indian involved

in an automobile accident or seeking a divorce or desiring

to enforce a contract had no forum from which to obtain

a resolution of his problems. The tribal court systems

were simply inadequate. So Congress in Public Law 280

allowed Indians to go to state courts and provided them

with a ready-made body of state law to look to in resolving

their civil disputes. Thus, Congress intended ‘‘civil laws

... of general application’’ to mean those laws which have

to do with private rights and status. Therefore, ‘‘civil

laws ... of general application to private persons or private

property’’ would include the laws of contract, tort, marri-

age, divorce, insanity, descent and similar matters, but

would not include laws declaring or implementing the

‘states’ sovereign powers, such as the unique power to raise

revenue. The latter are not within the normal meaning of

‘*private’’ laws.

This reading of Public Law 280 — that Congress in-

serted the phrase ‘‘civil laws’’ to clarify the role of state

ee

ha Ne EA ew

ote to et ON de a Be See mh RE Eile Na OR) EI ee Tw

Te ee

11

and tribal laws in civil disputes which occurred once juris-

diction passed to the state — is supported by this Court’s

construction of Public Law 280 in Kennerly v. District of

Montana, 400 U.S. 423 (1971). There this Court referred

to Public Law 280 as an ‘‘extension of state jurisdiction

over civil causes of action by or against Indians arising in

Indian country”’ and to certain 1968 amendments as ‘‘a new

regulatory scheme for the extension of state civil and

criminal jurisdiction to litigation involving Indians arising

in Indian country.’’ 400 U.S. at 428. It is also in line

with the construction given Public Law 280 in Warren

Trading Post v. Arizona State Tax Commission, 380 U.S.

685, 687, n.3 (1965), where this Court stated:

Certain state laws have been permitted to apply to

activities on Indian reservations, where those laws are

specifically authorized by acts of Congress, or where

they clearly do not inierfere with federal policies con-

cerning the reservations ... 18 U.S.C. § 1162 (1958 ed.)

and 28 U.S.C. § 1360 (1958 ed.) (respectively granting

certain states criminal and civil jurisdiction over of-

fenses and causes of action involving Indians within

specified Indian reservations). (Emphasis supplied.)

This footnote provides considerable force to petitioners’

argument that state taxing authority can only be granted

by an act of Congress whose language and purpose show

an intention to specifically grant such power. As noted

by this Court, the entire purpose for enacting Public Law

280 was to shift to the states the governmental responsi-

bility for enforcing the criminal laws and resolving civil

disputes on Indian reservations. There is no indication in

the words of the statute or in its legislative history that

special federal rights accorded reservation Indian status

such as the immunity from state taxation were to be

extinguished.

12

C. In Public Law 280 Congress Included a Broad Pr

oviso To

Assure that Unique Federal Rights Accorded Reservation

— poy] a as the Immunity from State Taxation,

ou ot Be ected by the Conf

Criminal Jurisdiction. ater — a

Each of the grants of civil and criminal jurisdiction in

Public Law 280 is followed by an identical proviso protect-

ing trust property from alienation, taxation or state regu-

lation inconsistent with any federal treaty, agreement

statute or regulation. The failure of Congress to include

in the proviso any reference to taxes other than those

associated with trust property, occurred in part because

the states themselves had emphasized the Indian tax immu-

nity for property held in trust as reason why they should

receive a federal subsidy as a quid pro quo for assuming

criminal and civil judisdiction.2? Moreover, the failure of

Congress to specify non-trust property tax immunities can

be explained in part by the fact that at the time of the

enactment of Public Law 280 in 1953, neither the states

nor Congress nor indeed this Court had begun to explore

fully the scope of the Indian tax immunity not tied to trust

property.* An examination of the significant Indian cases

affecting income, sales, and tribal or business activities on

reservations not related to Indian trust property reveals

s Transcript of Hearings on H.R. 1063 Before the Subcommittee

on Indian Affairs of the House Committee on Interior and Insular

Affairs, 83rd Cong., 1st Sess. (1953). These hearings were not

published. A transcript was produced by the United States

during the briefing of Tonasket v. State of Washington, 411 US

451 (1973), a companion case to McClanahan, supra. A cop “of

or portion of the transcript which refers to the tax treo of

slltentins ‘hy: Meade 4 : ‘ wel ,

aa ” included in the Appendix to this Petition (App. pp.

ty, Indeed, the important Supreme Court cases dealing with In-

dian tax immunities decided prior to 1953 involved only trust

aig The Kansas Indians, 72 U.S. (5 Wall.) 737 (1867) .

nited States v. Rickert, 188 U.S. 432 (1903) - }

Trapp, 224 U.S. 665 (1912). asain

~ SRA et eee Re Ue Le © SRR. Aan ew.

13

that all were litigated and decided after the enactment of

Public Law 280. Squire v. Capoeman, 351 U.S. 1 (1956)

[income derived from allotment is immune from federal

income taxes}; Williams v. Lee, 358 U.S. 217 (1959) [the

application of state laws may not interfere with tribal

sovereignty]; Warren Trading Post v. Arizona State Tax

Commission, 380 U.S. 685 (1965) [states may not tax

Indian businesses because Congress has occupied the field

through enactment of the federal trading statutes, 25 U.S.C.

§ 261, et seq.]; McClanahan v. Arizona State Tax Commis-

sion, 411 U.S. 164 (1973) [states may not tax Indian income

earned on an Indian reservation absent specific congres-

sional authorization]; and Mescalero Apache Tribe v.

Jones, 411 U.S. 154 (1973) [Indian tax exemptions exist

for off-reservation activities only if secured by a federal

statute].

Given the scope of Indian tax immunities existing at the

time of the enactment of Public Law 280, the proviso pre-

serving the status of trust property can be viewed either

(a) as a congressional expression confirming the special

protection for trust property secured by preexisting

opinions of this Court, and by longstanding congressional

legislation, ic. The General Allotment Act, 24 Stat. 388,

or (b) as a congressional determination to carve out and

preserve from the conferral of general taxing jurisdiction

only those tax immunities accorded reservation Indian

status which were related to trust property. The first

alternative is consistent with this Court’s interpretation

of Public Law 280 as being directed toward resolving civil

causes of action taking place on reservations for its assumes

the conferral provision was not designed to grant compre-

hensive state taxation. The first alternative simply con-

firms that Congress was concerned with preserving from

state civil jurisdiction what it thought were the rights,

privileges, immunities, and benefits enjoyed by reservation

Indians in furtherance of federal policies.

14

On the other hand, the second alternative, adopted by

the lower courts, requires that the conferral section be

construed to be an open-ended, but unstated, grant of state

taxing authority. The second alternative also requires

imputing to Congress knowledge about the full scope of the

Indian tax immunity twenty years before this Court rend-

ered its judgment in McClanahan. Finally, reading the

proviso as a congressional mandate to treat Public Law

280 Indians differently from all other federally recognized

Indians by limiting their tax immunity to trust property,

requires imputing to Congress the intent and the action

of silently terminating an important right accorded reserva-

tion Indians without expressly informing the Indians. We

believe such a reading is inconsistent with how this Court

has interpreted federal acts enacted to benefit Indians.

Menominee Tribe v. United States, 391 U.S. 404 (1968);

Morton v. Mancari, 417 U.S. 535 (1974).

This reading of the proviso to Public Law 280 is sup-

ported by the limited legislative history relating to the

impact of the statute on state taxation. Indeed, there is no

indication in the committee reports or debates on the bill

that Congress intended the Act’s conferral of civil and

criminal jurisdiction to enlarge the states’ power to tax

Indians, although if this were intended it would have been

a matter of sufficient importance to evoke discussion within

Congress and opposition from the tribes. To the contrary,

the Act’s legislative history shows that Congress intended

not to subsidize the states for exercising criminal and civil

jurisdiction within reservations, either by federal payment

or by authorizing increased taxation of Indians.®

° The following colloquy taken from the Subcommittee Hearings

on H.R. 1063 and reproduced in its entirety in the Appendix is

especially revealing:

Mr. Young. So far as my State is concerned, it would be a

large burden on existing costs of judicial procedure. I think

it is only right that the Federal Government should make

~*

15

Ill. THE CONFUSION SURROUNDING THE GRANT OF CIVIL

JURISDICTION IN PUBLIC LAW 280 STATES HAS RESULTED

IN A CONCENTRATED PUSH BY STATE TAX ADMINISTRA-

TORS TO IMPOSE COMPREHENSIVE STATE TAXATION ON

RESERVATION INDIANS.

Over one hundred Indian tribes and bands, with a tribal

membership of nearly one hundred and fifty thousand In-

dians located in the thirteen states which have assumed civil

and criminal jurisdiction pursuant to Public Law 280, are

finding that with the passage of each year, Public Law 280

states are imposing an ever greater number of state reve-

nue laws to cover reservation property, reservation business

activities and reservation income. What began as a con-

gressional plan to improve the resolution of civil conflicts

for reservation Indians has become an open-ended invita-

some contribution for that. You seem to differentiate. I think

there is a differentiation, too, in that they are not paying

taxes.

Mr. Sellery. I will concede your point that they are not pay-

ing taxes. The Department has recommended, nevertheless,

that no financial assistance be afforded to the States.

See App. p. 28a. Subsequent congressional hearings have re-

affirmed that Public Law 280 was not designed to expand the

states’ taxing power. See Hearings on H.R. 15419 and Related

Bills before the Subcommittee on Indian Affairs of the House

Committee on Interior and Insular Affairs, 90th Cong., 2d Sess.

27 (1968). Furthermore, the prohibition against trust prop-

erty encumbrances in Public Law 280 suggests a congressional

intent net to impose state tax laws which are generally enforced

by liens against the taxpayer's property. 28 U.S.C. § 1360(b).

®Undermanned Indians are currently undertaking major tax

litigation in at least three Public Law 280 states besides Nebraska :

resisting income taxation in Wisconsin, Wildcat, et al. v. Adamany,

et al., Civ. No. 74-C-227 (W.D. Wise.) ; excise, use and sales

taxes in Washington, Quileute Indian Tribe, et al. v. State of

Washington, Civ. No. 74-7619 (W.D. Wash.) ; and personal prop-

erty taxation in Minnesota, Bryan v. Itasca County, Minnesota,

— Minn. —, 228 N.W.2d 249 (1975), petition for certiorari filed,

July 3, 1975.

16

tion for the exercise of state sovereignty, especially state

revenue powers.

The Indians, the United States, and indeed Congress

understood that the conferral of civil and criminal juris-

diction under Public Law 280 did not constitute a termina-

tion statute. Federal rights accorded reservation Indians

were preserved in Public Law 280 while they were expressly

extinguished in the termination acts. See Menominee Tribe

v. United States, 391 U.S. 404 (1968).7. This Court has

often reviewed cases to make certain that treaties, agree-

ments and federal statutes are interpreted as the Indians

understood them. Antoine v. Washington, 417 U.S. 966

(1975); Choctaw Nation v. Oklahoma, 397 U.S. 620, 630

(1970) ; Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832);

Choctaw Nation of Indians v. United States, 318 U.S. 423,

431-32 (1943) ; Jones v. Meehan, 175 U.S. 1 (1899) ; United

States v. Shoshone Tribe, 304 U.S. 111 (1938); Marlin vy.

LeWallen, 276 U.S. 58 (1928).

Furthermore, this Court has reviewed on many occasions

lower court decisions to assure that Indian reservation

status and reservation Indian rights afforded by treaties

and federal statutes are not extinguished without a clear

congressional determination to do so. Seymour v. Superin-

tendent, 368 U.S. 351 (1962); Mattz v. Arnett, 412 U.S. 481

(1978); and DeCoteau v. District County Court, — U.S.

—, 45 L.Ed.2d 300 (1975) [Indian reservation status can-

not be impliedly terminated by unilateral act of Congress] ;

Squire v. Capoeman, 351 U.S. 1 (1956) [Indian allotment

7 Indeed, the United States has twice argued before this Court

that Public Law 280 did not comprehend a grant of state taxing

authority. See Memorandum for the United States as Amicus

Curiae, submitted May 1972, presented in response to an order

of this Court requesting the views of the United States in Tonasket

v. State of Washington, 411 U.S. 451 (1973); See also Brief for

the United States as Amicus Curiae, submitted November, 1972, in

Tonasket v. State of Washington, supra.

17

immunity is not extinguished by federal Internal Revenue

Code]; Menominee Tribe v. United States, 391 U.S. 404

(1968) [implied hunting and fishing treaty rights are not

abrogated by federal termination acts]; Morton v. Ruiz,

415 U.S. 199 (1974) [Indian welfare assistance cannot be

arbitrarily cut off for off-reservation Indians]; and Morton

v. Mancari, 417 U.S. 535 (1974) [Indian employment pref-

erence is not eliminated by federal equal employment leg-

islation]. Each of these important Indian rights has been

protected by this Court from backhanded extinguishment

—certainly the right of Indians to be free from state taxa-

tion while residing and working on their reservations in the

absence of an express Act of Congress directing state taxa-

tion is of no less significance. See McClanahan v. Arizona

State Tax Commission; 411 U.S. 164 (1973).

The scope of the grant of civil jurisdiction contained in

Public Law 280 must be resolved by this Court. In the

absence of a definitive decision on the issue of state taxing

power, the lower courts will become ever more embroiled

in an endless number of jurisdictional lawsuits pitting the

United States and nearly one hundred Indian tribes and

bands subject to Public Law 280 against the Public Law 280

states. The affected reservations will become more and

more vulnerable to the whims of Public Law 280 state offi-

cials. Furthermore, Indian tribes will find it increasingly

difficult to maintain their reservations as separate and dis-

tinct homelands.

American Indian tribes and their members require an

answer to the question of whether Congress had indeed sub-

jected their reservations to unlimited state taxing power.

This Court has already ruled on the procedures necessary

for the states to assume civil and criminal jurisdiction pur-

suant to Publie Law 280, Kennerly v. District Court, 400

U.S. 423 (1970), and has previously passed on the relation-

ship of Public Law 280 to the contemporaneous termination

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

18

(1968). In addition, this Court has recognized the im-

portance of resolving the scope of the civil grant of juris-

diction in Public Law 280 by its express reservation of the

very problem two years ago in McClanahan, and by its

action of accepting for review and then vacating and re-

manding a case raising the question of whether Public Law

280 conferred state cigarette taxing authority over reserva-

tion Indians. Tonasket v. State of Washington, supra.®

The issue of whether he conferral of civil jurisdiction

in Public Law 280 constitutes an open-ended grant of state

taxing power, presented squarely in this income tax case,

is of national significance. It affects not only Indian tribes

currently subject to the statute, but also all other American

Indian tribes who may in the future elect, pursuant to the

authority contained in 25 U.S.C. § 1322, to submit their

members’ disputes to state courts in order to facilitate the

resolution of reservation conflicts.

*On remand the Washington Supreme Court affirmed its earlier

decision that Public Law 280 granted the State of Washington

the power to tax reservation cigarette sales to non-Indians. In

its holding, however, the court expressly stated that its decision

neither dealt with taxes on trust property, personalty, inventory,

gross receipts or income, nor disturbed this Court’s holding in

Warren Trading Post v. Arizona State Tar Commission, supra,

that the states cannot tax retail sales by federally licensed In-

dian traders to reservation Indians. Tonasket v. State of Wash-

ington, 84 Wn.2d 164, 525 P.2d 744, 754 (1974), appeal dismissed

— U.S. — (1975). Tonasket, on remand, therefore failed to re-

solve the important issues raised in this Petition.

19

CONCLUSION

The Petition for a Writ of Certiorari should be granted.

Respectfully submitted,

Danret H, Israeu

Rosert S. Petcycer

Native American Rights Fund

1506 Broadway

Boulder, Colorado 80302

(303) 447-8760

James R. Peterson

Winnebago, Nebraska 68071

(402) 878-2242

Counsel for Petitioners

July 1975

APPENDIX

TABLE OF CoNTENTS

Page

Opinion of the United States Court of Appeals for the

Eighth Cireuit, dated May 9, 1975 .............. la

Opinion of the United States District Court for the

District of Nebraska, 382 F. Supp. 421 (1974) ..8a-17a

Public Law 83-280, 67 Stat. 588 (1953) ............ 18a-2la

Transcript of Hearings on H.R. 1063 before the House

Subcommittee on Indian Affairs, Committee on

Interior and Insular Affairs, 83rd Cong., Ist Sess.

SEE 4G ANSNsbRuekee ei bbesasencusénayuee 22a-29a

— Blted, din cA ee ies set ae

la

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

No. 74-1868

Omana Trise or Inpians, et al., Appellants,

v.

Wiiuiam A. Peters, et al., Appellees.

Appeal from the United States District Court for

the District of Nebraska

Submitted: March 31, 1975

Filed: May 9, 1975

Before Grsson, Chief Judge, Lay and Ross, Circuit Judges.

Ross, Circuit Judge.

This suit for declaratory and injunctive relief was

brought by the Omaha, Santee Sioux and Winnebago Indian

tribes and certain tribe members who purported to repre-

sent a class of Indians similarly situated (Indians). De-

fendants are the Nebraska State Tax Commissioner and

the Nebraska Department of Revenue (Nebraska), who

seek to collect Nebraska taxes on income earned on the

tribes’ reservations by the Indians, who live on the reserva-

tions within the state of Nebraska. The lower court granted

summary judgment for Nebraska and the Indians have ap-

pealed. We affirm.

In McClanahan vy. Arizona State Tax Commission, 411

U.S. 164 (1973), the Supreme Court determined that Ari-

zona could not tax the income of Navajo Indians in similar

2a

circumstances. Nebraska argues for a different result here

under the provisions of 28 U.S.C. § 1360! which is not effee-

128 U.S.C. $1360. State civil jurisdiction in actions to which

Indians are parties

(a) Each of the States or Territories listed in the following table

shail have jurisdiction over civil causes of action between In-

dians or to which Indians are parties which arise in the areas

of Indian country listed opposite the name of the State or Terri-

tory to the same extent that such State or Territory has jurisdie-

tion over other civil causes of action, and those civil laws of such

State or Territory that are of general application to private per-

sons or private property shall have the same force and effect

within such Indian country as they have elsewhere within the

State or Territory:

State or

Territory of Indian country affected

GD axeceseoe All Indian country within the Territory.

California ...... All Indian country within the State.

Minnesota ...... All Indian country within the State, ex-

cept the Red Lake Reservation.

Nebraska ....... All Indian country within the State.

ED 6.444800 All Indian country within the State, ex-

cept the Warm Springs Reservation

Wisconsin ...... All Indian country within the State.

(b) Nothing in this section shall authorize the alienation, en-

cumbrance, or taxation of any real or personal property, including

water rights, belonging to any Indian or any Indian tribe, band, or

community that is held in trust by the United States or is subject

to a restriction against alienation imposed by the United States;

or shall authorize regulation of the use of such property in a man-

ner inconsistent with any Federal treaty, agreement, or statute or

with anv regulation made pursuant thereto; or shall confer juris-

diction ipon the State to adjudicate, in probate proceedings or

otherwise, the ownership or right to possession of such property

or any interest therein.

(c) Any tribal ordinance or custom heretofore or hereafter

adopted by an Indian tribe, band, or community in the exercise

of any authority which it may possess shall, if not inconsistent

with any applicable civil law of the State, be given full foree and

effect in the determination of civil causes of action pursuant to this

section.

3a

tive in Arizona. We hold that the district court had juris-

diction and that 28 U.S.C. § 1360 permits the imposition of

the tax here challenged.

Congress provided in 28 U.S.C. § 1341: ‘‘The district

courts shall net enjoin, suspend or restrain the assessment,

levy or collection of any tax under State law where a plain,

speedy and efficient remedy may be had in the courts of such

State.’’ The courts have also refused to grant declaratory

relief when the effect of the judgment would be to avoid the

the jurisdictional strictures of section 1341. Great Lakes

Dredge & Dock Co. vy. Huffman, 319 U.S. 293, 299-302

(1943); Miller v. City of Greenville, 1388 F.2d 712, 720

(Sth Cir. 1943). The Indians do not deny the availability of

adequate state remedies ;? their position, the position of the

United States as amicus curiae, and to some extent the posi-

tion of Nebraska, is that the Indians are not required to ex-

haust state remedies because of their unique relationship

to the federal government, as held in Moses v. Kinnear, 490

F.2d 21 (9th Cir. 1974) ; and Agua Caliente Band v. County

of Riverside, 442 F.2d 1184 (9th Cir. 1971), cert. denied, 405

U.S. 933 (1972) [her inafter, Agua Caliente]}.*

In Agua Caliente, California was seeking to tax lessees of

Indian lands held in trust by the United States. The

United States was not a party to the suit and the Agua

Caliente tribe had not exhausted remedies available in the

California courts. In determining whether the federal

courts had jurisdiction, the Ninth Circuit relied on the

federal instrumentality doctrine. Agua Caliente, supra,

2 See Nes. Rev. Stat. $$ 77-2793 to 77-27101 (1971).

3. See also Federal Reserve Bank vy. Commissioner of Corpora-

tions & Taration, 499 F.2d 60, 62-64 (1st Cir. 1974) where the

court held that the Federal Reserve Bank of Boston did not have

to exhaust state remedies under the provisions of 12 U.S.C. § 632,

even though the United States was not a plaintiff. Earlier, in

United States v. State Tar Commission, 481 F.2d 963, 975 (1st

Cir. 1973), the First Circuit declined to apply the principles enun-

ciated in Agua Caliente to federal savings and loan associations.

4a

442 F.2d at 1185. The federal instrumentality doctrine,

which had been approved by the Supreme Court in Depart-

ment of Employment vy. United States, 385 U.S. 355, 358

(1966), establishes that the exhaustion requirement of sec-

tion 1341 is inapplicable to cases involving taxation of a

United States instrumentality. Indian land has been re-

garded as an instrumentality of the United States, and the

government’s right to sue to protect such property has often

been recognized by the courts. E.g., Heckman v. United

States, 224 U.S. 413, 442-445 (1912). Agua Caliente held

that since the Indian land involved was a federal instrumen-

tality, the Agua Caliente tribe could assert the federal in-

strumentality doctrine even in the absence of the United

States as a co-plaintiff, and compliance with 28 U.S.C.

§ 1341 was not necessary. Supra, 442 F.2d 1186. To reach

this conclusion, the Ninth Cireuit in Agua Caliente examined

the seminal case which held that federal instrumentalities

were not required to exhaust state remedies under section

1341: United States v. Livingston, 179 F. Supp. 9, 11 (E.D.

S.C. 1959) (three judge court), aff’d mem., 364 U.S. 281

(1960). The Agua Caliente court found that the rationale

expressed in Livingston for allowing the United States to

assert the doctrine applied with equal force to the Indians;

therefore the Agua Caliente tribe was allowed to assert the

federal instrumentality exception to 28 U.S.C. § 1341.

Supra, 442 F.2d at 1186.

The second case relied upon to excuse the exhaustion of

state remedies here is Moses vy. Kinnear, 490 F.2d 21 (9th

Cir. 1974). That case was brought by two Indians to en-

join the state of Washington from imposing excise taxes

on cigarette sales on Indian trust lands and an Indian

reservation. The United States was not a party. The

Moses court analogized that case to those in which the

United States had sued in conjunction with servicemen to

protect them from dual taxation in violation of the Soldiers’

and Sailors’ Civil Relief Act. In United States v. Arlington

County, 326 F.2d 929, 933 (4th Cir. 1964), and United States

v. Sullivan, 270 F. Supp. 236, 240 (D. Conn. 1967), aff’d, 398

5a

F.2d 672 (2d Cir. 1968), rev’d on other grounds, 395 U.S.

169 (1969), the courts held that the federal government

could sue to enforce its national defense policies for the

benefit of naval officers, even in the absence of statute.

Since the United States could maintain the suits without

complying with 28 U.S.C. § 1541, the servicemen in Arling-

ton County and Sullivan were also excused from exhausting

state remedies. Moses v. Kinnear held that these cases

under the Soldiers’ and Sailors’ Civil Relief Act established

that the federal instrumentality doctrine applied when the

government sued in conjunction with those in whom it had

a special interest, in order to enforce important federal

policies. Supra, 490 F.2d at 25. The Ninth Cireuit noted

that the United States historically has had a special inter-

est in its Indians which had manifested itself in a policy to

protect Indians and Indian property from illegal state taxa-

tion; therefore the Indians in Moses v. Kinnear came within

the federal instrumentality doctrine exception to 28 U.S.C.

§ 1341. Finally, Moses v. Kinnear adopted the earlier

holding of Agua Caliente that the federal instrumentality

doctrine could be asserted in the absence of the government

by a private party who could be a co-plaintiff of the United

States. Supra, 490 F.2d at 25.

It thus appears that the ‘‘co-plaintiff doctrine’’ estab-

lished by Agua Caliente and Moses, and relied upon by the

Indians in this case as justification for their failure to ex-

haust state remedies, is grounded on three propositions:

1) Indian lands are federal i -trumentalities, and therefore

reservation Indians are not required to exhaust state rem-

edies under the statute when trust, restricted, or reservation

lands are involved, according to Agua Caliente; 2) the

federal instrumentality doctrine also applies when the gov-

ernment sues on behalf of individuals, including Indians, in

whom it has a special interest to vindicate important federal

policies under Moses v. Kinnear; 3) the reasons for not re-

quiring the government to exhaust state remedies apply to

Indians, and since the United States could be a co-plaintiff,

and could have asserted the federal instrumentality excep-

6a

tion to section 1341, Indian tribes or individual Indians may

assert it as well. Th» United States has assured us during

oral argument that they would have joined as plaintiffs if

they had known of the case. Under these circumstances we

conclude that the federal court has original jurisdiction in

this case, notwithstanding 28 U.S.C. § 1341.

Turning to the merits, it is established that under

article 1, section 8 of the Constitution,‘ the state has no

right to tax this income unless Congress has expressly

allowed them to do so. McClanahan vy. Arizona State Tax

Commission, 411 U.S. 164 (1973). Since Worcester v.

Georgia, 31 U.S. (6 Pet.) 515 (1832), the courts have ree-

ognized the special relationship between the United States

and its Indian peoples, frequently described as a guardian-

ward relationship. Unrrep States DEPARTMENT OF THE

Interior, Feperat Inpian Law 557 et seq. (1958). But

since early in our nation’s history its Indian policies have

been designed to terminate its guardianship over Indian

tribes as they are assimilated into society as equals.

Worcester v. Georgia, supra, 31 U.S. (6 Pet.) at 556;

Williams v. Lee, 358 U.S. 217, 220 (1959); Omaha Tribe

v. Village of Walthill, 334 F.Supp. 823, 836 (D. Neb. 1971),

aff’d, 460 F.2d 1327 (Sth Cir. 1972), cert. denied, 409 U.S.

1107 (1973). The statute in question, 28 U.S.C. § 1360, is

in furtherance of the policy of ending federal protection

of Indians. Congress described its purposes: ‘‘First,

withdrawal of Federal responsibility for Indian affairs

wherever practicable; and second, termination of the sub-

jection of Indians to Federal laws applicable to Indians as

such.’’ U.S. Cope Cone. & Apmry. News 2409 (1953).

The statute not only gives Nebraska jurisdiction over

civil causes of action to which Indians are parties or be-

tween Indians, but more importantly, also gives Nebraska’s

civil laws of general application the same force on Indian

reservations as elsewhere in the state. It seems clear to us

***The Congress shall have Power . . . To regulate Commerce

.. with the Indian Tribes ....’’ U.S. Constr. Arr. I, § 8.

ee

7a

that ‘‘civil laws*’ in this context includes everything but

‘‘eriminal’’ laws, especially when the statute is read in

conjunction with 18 U.S.C. § 1162, which grants criminal

jurisdiction to the states, and was passed at the same time.

Act of Aug. 15, 1953, Pub. L. No. 83-280, 67 Stat. 588.

Thus it appears that Congress intended to make all of

Nebraska’s civil laws, but those specifically excepted by

the statute’s terms, applicable to Indians. We do not need

to give the words of section 1360 ‘‘a more extended mean-

ing than their plain import’’, Worcester v. Georgia, supra,

31 U.S. (6 Pet.) at 581, (McLean, J., concurring), in order

to find that ‘‘civil laws ... of general application’’ em-

brace the income tax laws of the state.

For Indians, as well as for other citizens, exemptions

from the tax laws should be clearly expressed. McClana-

han v. Arizona State Tax Commission, supra, 411 U.S. at

176; Mescalero Apache Tribe v. Jones, 411 U.S. 145, 156-

157 (1973); Squire v. Capoeman, 351 U.S. 1, 6 (1956). In

28 U.S.C. § 1360(b) Congress granted such a tax exemp-

tion for Indian property which is restricted or held in

trust by the United States. This subsection is instructive

because it shows that Congress was aware that state

revenue laws were among those which would become ap-

plicable to Indians under the provisions of section 1360(a).

In our opinion Congress considered this result and deter-

mined that it was not desirable to allow the states to tax

the properties expressly mentioned in subsection (b). Con-

gress did not express an exemption from other taxation

as it easily could have done, and it is not this Court’s place

to do so now. We hold that Congress has exercised its

constitutional power to allow Nebraska to impose taxes

upon the income of reservation Indians earned on the res-

ervation by passage of 28 U.S.C. § 1360. Accordingly, we

affirm the decision of the district court.

A true copy.

Attest:

Cierk, U. S. Court or Appgars, Eicnta Crecurr.

8a

u

UNITED STATES DISTRICT COURT, D. NEBRASKA

Omaua Trise or Inprans Et AL., Plaintiff's,

v.

WiiuuM A. Peters, Individually and as Nebraska State

Tax Commissioner, and the Nebraska Department of

Revenue, Defendants.

Civ. 74-L-13.

Oct. 1, 1974.

Memorandum

Ricuarp E. Rosrnson, Senior District Judge.

This matter is before the Court on the parties competing

motions for summary judgment. The jurisdiction of the

Court is established under 28 U.S.C.A. §§ 1331 and 1362.

The matter has been submitted to the Court on the parties

pleadings and briefs and the Court is now prepared to

rule.

The facts of the case are not in dispute. Plaintiffs are

the Omaha, Santee Sioux and Winnebago Tribes of In-

dians, and three individual members of those tribes. Each

of the tribes has a reservation in the State of Nebraska.

Each of the individuals reside and are employed wholly

upon one of the reservations. Each individual plaintiff has

been subjected to income tax by the defendant Department

of Revenue, and Director of Revenue of the State. Plain-

tiffs contend that the State income tax was unlawfully ap-

plied to them under the rule of McClanahan v. Arizona

State Tax Comm’n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d

129 [1973].

In McClanahan a unanimous Supreme Court held that

an Indian’s income derived from employment performed

wholly on an Indian reservation could not be subjected

Asti ite

_ _ os

9a

to state income taxes. The present case raises a question

of law expressly reserved in McClanahan. That is, whether

or not a state which has assumed civil jurisdiction over an

Indian reservation pursuant to Act of Aug. 15, 1953, Pub-

lie L. No. 83-280, § 4, 67 Stat. 588, 5891 may collect income

taxes from tribal members who reside and are employed

wholly upon the reservation.

Before turn.ug to the issue in this case it will be helpful

to further develop the facts and holding of McClanahan.

In that case the State of Arizona attempted to impose

its income tax on the petitioner, a Navajo Indian, who was

eryployed wholly upon the Navajo reservation. Though

the State had no civil or criminal jurisdiction over the

reservation, the State reasoned that the assessment of

income taxes against individual Indians would not jeopar-

dize the self-government of the Navajo tribe and, there-

fore, the tax was not unlawful under the rule of Williams

v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 [1959].

The Supreme Court, however, found the Williams rule to

be inapplicable in this situation. The Court found that

the State’s authority to tax Indians on an Indian reserva-

tion depended not upon the tribe’s right of self-govern-

ment, but rather upon the individual’s rights as an Indian

under prior decisional law, treaties and statutes.

Though the Court found no express grant of Indian im-

munity to state revenue laws either in applicable treaties

or federal statutes, it did find language which arguably

supported the notion that state governments did not have

the authority to tax Indian incomes. It noted that the

Navajo treaty set aside designated lands for their use

and occupation and prohibited nontribal members from

entering onto tribal lands. It also noted that the Buck

Act, 4 U.S.C.A. § 105 et seq. which subjected persons living

1 For the current status of this act see 28 U.S.C.A. § 1360 [1962]

and 25 U.S.C.A. § 1321 [Supp. 1964].

10a

on a federal reservation to state sales, use and income

taxes, expressly excluded Indians ‘‘not otherwise taxed’’

from its provisions. Finally, it noted that the Arizona

Enabling Act, 36 Stat. 557, A.R.S., required the state to

recognize the Indian reservations within its borders and

prohibited the state from taxing lands within an Indian

reservation. All of these factors, the Court reasoned, had

to be viewed against the backdrop of the notions of Indian

sovereignty developed in the cases of Worcester v. Georgia,

31 U.S. 515, 6 Pet. 515, 8 L.Ed. 483 [1832], and The Kansas

Indians, 72 U.S. 737, 5 Wall. 737, 18 L.Ed. 667 [1867] and

refined in latter cases such as Williams v. Lee, supra. The

Court apparently recognized that the Indian sovereignty

doctrine had measurably changed over the years and that

it alone would not suppert an Indian state tax immunity.

However, all of the noted factors led the Court to its hold-

ing that such an immunity existed. This view was rein-

forced by the observation that in the absence of state juris-

diction within the Indian reservation, the state would be

powerless to enforce its revenue laws as against reserva-

tion Indians.

The McClanahan doc.>* :. would dispose of this ease were

it not for the following s.iatute which clearly ay © es to the

facts of the present case.

§ 1360 State civil jurisdiction in actions to w.'ch In-

dians are parties:

‘*(a) Each of the States listed in the following table

shall have jurisdiction over civil causes of action be-

tween Indians or to which Indians are parties which

arise in the areas of Indian country listed opposite

the name of the State ... to the same extent that such

State ... has jurisdiction over other civil causes of

action, and those civil laws of such State ... that are

of general application to private persons or private

property shall have the same force and effect within

lla

such Indian country as they have elsewhere within the

State ...:

‘‘State...of Indian country affected

Nebraska . . . All Indian country within the State

‘‘(b) Nothing in this section shall authorize the aliena-

tion, encumbrance, or taxation of any real or personal

property ... belonging to any Indian... that is held

in trust by the United States or is subject to a restric-

tion against alienation imposed by the United States;

or shall authorize regulation of the use of such prop-

erty in a manner inconsistent with any Federal treaty,

agreement, or statute or with any regulation made pur-

suant thereto... .’’

Act of Aug. 15, 1953, Public L. No. 83-280, § 4, 67 Stat. 588,

589. [hereinafter referred to as P.L. 280].

The language and intended purpose of the above statute

bears significantly on the rationale employed in McClana-

han. The language in subsection [a] of the above-quoted

statute is a sweeping grant of jurisdiction to the State of

Nebraska to govern the lives and affairs of Indians living

on an Indian reservation.? Plaintiffs contend, however,

2 The Act of August 15, 1953, Public Law No. 83-280, 67 Stat.

588, conveyed both civil and criminal jurisdiction over Indian

country in the State of Nebraska. However, in 1969 the Nebraska

legislature passed a resolution, pursuant to 25 U.S.C.A. § 1323

[Supp. 1974] which retroceded its jurisdiction over criminal of-

fenses committed by or against Indians on the Omaha reservation

in Thurston County, Nebraska. This retrocession was partially ac-

cepted by the Secretary of the Interior of the United States in

October of 1970. See Omaha Tribe of Nebraska v. Village of

Walthill, Nebraska, 460 F.2d 1327 [8th Cir. 1972]. Since then

the State of Nebraska has not exercised criminal jurisdiction over

Indian country in Thurston County except such criminal juris-

12a

that the Indian immunity found by the Court in McClana-

han has not been expressly or impliedly repealed by Con-

gress through P.L. 280. They base this contention on sev-

eral theories which may be fairly summarized as follows:

[1] The reluctance of Courts to interpret new laws as im-

pliedly repealing long-standing federal treaties, statutes

or policies; and [2] the fact that subsection [b] of P.L.

280, withholding certain powers from the states, indicates

that Congress intended to retain powers over the commerce

and properties of Indians, thereby preventing the state

from enforcing its revenue laws against the plaintiffs.

As to plaintiff’s first contention, it should be noted that

P.L. 280 does not subject Indians to the jurisdiction of the

state by implication. The statute is a clear and express

grant of power subject only to the limitations stated in the

ensuing sections of the statute. The question here is

whether this broad and express grant of power includes

the state’s power to tax. The Court finds that subsection

[a] does include such power. It is persuaded to that view

for several reasons.

First of all, while McClanahan held that reservation

Indians who earned their income on the reservation could

not be subjected to a state income tax when the state had

no jurisdiction over the Indians or Indian country, the

underlying rationale of that case cannot prevail when, as

here, the state clearly does have jurisdiction over the

tribe.

diction as was not retroceded. Though the fact of this retrocession

tends to create a distinction between the Omaha tribe and the

other two tribal plaintiffs in this action, the distinction is not

significant. After the retrocession the State of Nebraska contin-

ued to possess all of the civil jurisdiction conveyed to it under

P.L. 280. This action, involving the state’s authority to enforce

its revenue laws in Indian country, involves a question affecting

each of the three tribal plaintiffs equally, since it raises a question

concerning the civil authority of the state under P.L. 280.

13a

There can be no question as to Congress’ plenary power

over Indian tribes within the boundaries of the United

States. United States v. Kagama, 118 U.S. 375, 6 S.Ct.

1109, 30 L.Ed. 228 [1886]; Worchester v. Georgia, (sic), 31

U.S. 515, 6 Pet. 515, 8 L.Ed. 483 [1832]. That power, obvi-

ously encompasses the power to enact and enforce such laws

as are in the tribe’s best interest. United States v. Kagama,

supra, 118 U.S. at 384, 6 S.Ct. 1109. That includes the

power to end the federal guardianship over the tribes

when, and if, that is found by Congress to be in their best

interest. Board of Comm’rs v. Seber, 318 U.S. 702, 63

S.Ct. 914, 87 L.Ed. 1091 [1943]; United States v. Ramsey,

271 U.S. 467, 46 S.Ct. 559, 70 L.Ed. 1039 [1926]. The

cases strongly suggest that that power exists despite treaty

provisions which purport to guarantee the integrity of the

tribe and tribal lands. See e.g. Act of June 17, 1954, ec. 303,

$1, 68 Stat. 250; Menominee Tribe of Indians v. United

States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 [1968].

Given Congress’ power to end the federal guardianship in

total, it obviously has the power to establish an orderly

program looking to the day when the guardianship can be

ended. That is precisely the type of program evidenced

by the statute in this case. See U.S.Code Cong. & Admin.

News, p. 2409 et seq. [1953]. The statute also suggests

that Congress felt that the termination of the federal

guardianship over the affected tribes should result in their

assimilation into the mainstream of life of the states

wherein they are located. P.L. 280 is a step intended to

prepare the Indian tribes for this assimilation by making

all state laws applicable to Indians and in Indian country

except as those laws may contravene the provisions of the

statute itself.

Congress’ power to convey jurisdiction upon the states

necessarily includes the power to cause Indians and Indian

country to be subjected to the revenue laws of the state,

the McClanahan case notwithstanding. The Indian state

l4a

income tax immunity recognized in McClanahan was based

upon certain ambiguous statutory and treaty provisions

which were clarified wheu they were read against the back-

ground of the Indian sovereignty doctrine. For example,

the treaty involved in the McClanahan case provided that

certain lands would be set aside ‘‘for the use and occupa-

tion of the Navajo tribe of Indians’’ and ‘‘no person ex-

cept those herein so authorized to do, and except such

officers, soldiers, agents, and employes of the government,

or of the Indians, as may be authorized to enter upon

Indian reservations in discharge of duties imposed by

law, or the orders of the President, shall ever be permitted

to pass over, settle upon, or reside in, the territory de-

scribed in this article.’’ 15 Stat. 667, 668; McClanahan

v. Arizona State Tax Comm’n, supra, 411 U.S. at 174, 93

S.Ct. at 1263. The Court, noting that ‘‘doubtful expres-

sions are to be resolved in favor of the weak and defense-

less people who are wards of the nation’’ said:

‘‘When this canon of construction is taken together

with the tradition of Indian independence described

above, it cannot be doubted that the reservation of

certain lands for the exclusive use and occupancy of

the Navajos ... was meant to establish the lands as

within the exclusive sovereignty of the Navajos under

general supervision. It is thus unsurprising that this

Court has interpreted the Navajo treaty to preclude

extension of state law—including state tax law—to

Indians on the Navajo Reservation.”’

Id. 411 U.S. at 174-75,, 93 S.Ct. at 1263. This rationale while

applicable when the taxing authority lacks jurisdiction over

Indians and Indian country is not applicable when the tax-

ing authority has jurisdictional power over the tribe. In the

cases of Superintendent of Five Civilized Tribes v. Com-

missioner, 295 U.S. 418, 55 S.Ct. 820, 79 L.Ed. 1517

[1935]; Leahy v. State Treasurer, 297 U.S. 420, 56 S.Ct.

907, 80 L.Ed. 771 [1936]; Choteau v. Burnet, 283 U.S. 691,

es)

l5a

51 8.Ct. 598, 75 L.Ed. 1355 [1931]; the Court recognized

that Indian income was taxable when, as here, the taxpayer

was subject to the jurisdiction of the state or federal taxing

authority, and the property to be taxed was not excluded

from taxation by treaty or statute. In the present case, the

plaintiffs are subject to the limited jurisdiction of the State

of Nebraska and the property to be taxed is not exempt

under applicable treaty provisions or statutes.

In McClanahan the court also relied upon the Buck Act,

4 US.C.A. § 105 et seq. by noting:

‘*Whiie the Buck Act itself cannot be read as an affir-.

mative grant of tax-exempt status to reservation In-

dians, it should be obvious that Congress would not

have jealously protected the immunity of reservation

Indians ... had it thought that the States had residual

power to impose such taxes in any event.’’

However, the fact that Congress exempted Indians from the

provisions of the Buck Act, obviously does not detract from

its power to affirmatively subject Indians to state income

taxes by an appropriate grant of jurisdiction.

Finally, the Court relied upon certain provisions of the

Arizona Enabling Act which prohibited the state from as-

suming jurisdiction over Indian Lands. This rationale is,

however, equally inappropriate in light of the facts of the

present case since P.L. 280 expressly provides for the

amendment of state constitutions to permit the various

states to assume jurisdiction over Indian country.

Since the rationale employed in McClanahan seems clear-

ly inappropriate in this case, and since Congress’ power to

convey jurisdiction to the states seems unquestionable, the

only remaining question is whether or not the language in

P.L. 280 is broad enough to cause reservation Indians to be

subjected to the state’s taxing authority.

The language and structure of P.L. 280 strongly suggest

that Congress intended to convey to the states the authority

l6a

to enforce its revenue laws in Indian country. The statute

grants civil jurisdiction to the states over causes of actions

involving Indians as parties and states that the civil laws of

general application shall have the same force and effect as

to Indians and within Indian country as they have through-

out the state. This grant of power is then modified in later

subsections to permit the federal government to retain its

authority in certain areas such as over Indian trust prop-

erty. One can only presume that the grant of jurisdiction in

subsection [a] was to be considered plenary except as it was

expressly limited by the statute. Any other interpretation

of subsection [a] would require this Court to read into that

section something which simply is not there. If Congress

had intended to exempt Indians from the state’s revenue

laws, the Court feels certain that it would have expressly

done so, as it exempted certain other Indian property from

state jurisdiction in subsection [b] of P.L. 280, and as it ex-

pressly exempted reservation Indians from the provisions

of the Buck Act. 4 U.S.C.A. $109. By failing to qualify

subsection [a] Congress has expressly subjected Indians

and Indian country to ail state laws of general application

including state revenue laws except where the application

of those laws would violate one of the stated jurisdictional

limitations in the statute.

The above interpretation is strongly supported by the

legislative history of P.L. 280. U.S.Code Cong. & Admin.

News, pp. 2409, 2412 [1953] indicates that P.L. 280 was

drafted because

‘‘the Indians of several States have reached a stage of

acculturation and development that makes desirable

extension of States civil jurisdiction to the Indian

country within their borders. Permitting the State

courts to adjudicate civil controversies arising on

Indian reservations, and to extend to those reserva-

tions the substantive civil laws of the respective States

insofar as those laws are of general application to

— persons or private property, is deemed desir-

able.’’

17a

It was Congress’ goai that this legislation be a step toward

the day when the federal trusteeship over Indians could be

finally ended through the assimilation of the tribes into the

mainstream of life of the affected states. Id. at 2409; Wil-

liams v. Lee, supra, 358 U.S. at 220, 79 S.Ct. 269. There is

no suggestion in either the legislative history of the Act,

or in the language of the Act itself, that Congress intended

that Indian tribes should derive the advantages of state

law, while, at the same time, being shielded from its bur-

dens.

Plaintiffs, however, contend that subsection [b] of P.L.

280 precludes the collection of state income tax in this

case. They argue that since Indian trust property cannot

be alienated, encumbered, or taxed, the state lacks the power

to enforce its revenue laws, Alternatively, they argue that

this exception evidences a Congressional intent that sub-

section [a] of P.L. 280 was not intended to grant to the

states the power to tax Indians. Neither argument is per-

suasive. First, subsection [b] applies only to real property

that is held in trust by the federal government. The in-

come in this case is the sole property of the plaintiffs. See

Choteau v. Burnet, supra, 283 U.S. at 695, 51 S.Ct. 598.

Secondly, if the general trusteeship of the federal govern-

ment were held to cover all property owned by Indians, then

the state would not only lack the power to enforce its reve-

nue laws, but all of its civil laws against Indians, since it

would have no authority to enforce its judgments. This re-

sult was never contemplated by the drafters of P.L. 280.

The statute clearly makes Indians proper party defendants,

as well as plaintiffs, and any interpretation which would so

clearly defeat the statute’s logical and intended purpose

should be avoided.

Accordingly, an Order will be entered overruling the

plaintiffs’ Motion for Summary Judgment and sustaining

the defendants’ Motion for Summary Judgment.

18a

Public Law 280

AN ACT

To confer jurisdiction on the States of California, Min-

nesota, Nebraska, Oregon, and Wisconsin, with respect to

criminal offenses and civil causes of action committed or

arising on Indian reservations within such States, and for

other purposes.

Be it enacted by the Senate and House of Representatives

of the United States of America in Congress assembled,

That chapter 53 of title 18, United States Code, is hereby

amended by inserting at the end of the chapter analysis

preceding section 1151 of such title the following new item:

‘*1162. State jurisdiction over offenses committed by

or against Indians in the Indian country.”’

Sec. 2. Title 18, United States Code, is hereby amended

by inserting in chapter 53 thereof immediately after section

1161 a new section, to be designated as section 1162, as fol-

lows:

‘*§ 1162. State jurisdiction over offenses committed by

or against Indians in the Indian country

‘*(a) Each of the States listed in the following table

shall have jurisdiction over offenses committed by or

against Indians in the areas of Indian country listed

opposite the name of the State to the same extent that

such State has jurisdiction over offenses committed

elsewhere within the State, and the criminal laws of

such State shall have the same force and effect within

such Indian country as they have elsewhere within the

State:

‘*State of Indian Country Affected

California .......All Indian country within the State

Minnesota ....... All Indian country within the State,

except the Red Lake Reservation

ORO x cccceet All Indian country within the State

19a

**State of Indian Country Affected

SE havdntecss All Indian country within the State,

except the Warm Springs

Reservation

Wisconsin ....... All Indian country within the State,

except the Menominee

Reservation

‘*(b) Nothing in this section shall authorize the alien-

ation, encumbrance, or taxation of any real or personal

property, including water rights, belonging to any In-

dian or any Indian tribe, band or community that is

held in trust by the United States or is subject to a re-

striction against alienation imposed by the United

States; or shall authorize regulation of the use of such

property in a manner inconsistent with any Federal

treaty, agreement, or statute or with any regulation

made pursuant thereto; or shall deprive any Indian or

any Indian tribe, band, or community of any right,

privilege, or immunity afforded under Federal treaty,

agreement, or statute with respect to hunting, trapping,

or fishing or the control, licensing, or regulation there

of.

‘¢(¢) The provisions of sections 1152 and 1153 of this

chapter shall not be applicable within the areas of In-

dian country listed in subsection (a) of this section.”’

Sec. 3. Chapter 85 of title 28, United States Code, is

hereby amended by inserting at the end of the chapter anal-

ysis preceding section 1331 of such title the following new

item:

‘¢1360. State civil jurisdiction in actions to which Indians

are parties.’’

Sec. 4 Title 28, United States Code, is hereby amended

by inserting in chapter 85 thereof immediately after section

20a

1359 a new section, to be designated as section 1360, as

follows:

‘*§$ 1360. State civil jurisdiction in actions to which In-

dians are parties

‘*(a) Each of the States listed in the following table

shali have jurisdiction over civil causes of action be-

tween Indians or to which Indians are parties which

arise in the areas of Indian country listed opposite the

name of the State to the same extent that such State has

jurisdiction over other civil causes of action, and those

civil laws of such 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:

‘State of Indian Country Affected

California ....... All Indian country within the State

Minnesota ....... All Indian country within the State,

except the Red Lake Reservation

Nebraska ........ All Indian country within the State

rr: All Indian country within the State,

except the Warm Springs

Reservation

Wisconsin ....... All Indian country within the State,

except the Menominee

Reservation

‘*(b) Nothing in this section shall authorize the alien-

ation, encumbrance, or taxation of any real or personal

property, including water rights, belonging to any In-

dian or any Indian tribe, band, or community that is

held in trust by the United States or is subject to a re-

striction against alienation imposed by the United

States; or shall authorize regulation of the use of such

property in a manner inconsistent with any Federal

2la

treaty, agreement, or statute or with any regulation

made pursuant thereto; or shall confer jurisdiction

upon the State to adjudicate, in probate proceedings or

otherwise, the ownership or right to possession of such

property or any interest therein.

‘*(e) Any tribal ordinance or custom heretofore or

hereafter adopted by an Indian tribe, band, or com-

munity in the exercise of any authority which it may

possess shall, if not inconsistent with any applicable

civil law of the State, be given full force and effect in

the determination of civil causes of action pursuant to

this section.”’

Sec. 5. Section 1 of the Act of October 5, 1949 (63 Stat.

705, ch. 604), is hereby repealed, but such repeal shall not

affect any proceedings heretofore instiiuted under that

section.

Sec. 6. Notwithstanding the provisions of any Enabling

Act for the admission of a State, the consent of the United

States is hereby given to the people of any State to amend,

where necessary, their State constitution or existing stat-

utes, as the case may be, to remove any legal impediment

to the assumption of civil and criminal jurisdiction in ac-

cordance with the provisions of this Act: Provided, That the

provisions of this Act shall not become effective with re-

spect to such assumption of jurisdiction by any such State

until the people thereof have appropriately amended their

State constitution or statutes as the case may be.

Sec. 7. The consent of the United States is hereby given

to any other State not having jurisdiction with respect to

criminal offenses or civil causes of action, or with respect to

both, as provided for in this Act, to assume jurisdiction at

such time and in such manner as the people of the State

shall, by affirmative legislative action, obligate and bind the

State to assumption thereof.

Approved August 15, 1953.

22a

H. R. 1063

Monday, June 29, 1953

House of Representatives,

Subcommittee on Indian Affairs,

Committee on Interior and

Insular Affairs,

Washington, D.C.

The subcommittee thereupon preceeded to the considera-

tion of H. R. 1063, Honorable E. Y. Berry (chairman) pre-

siding.

Mr. Berry. We will next take up H. R. 1063.

Statement of Harry A. Sellery, Jr., Chief Counsel

Bureau of Indian Affairs

Mr. Sellery: Mr. Chairman and members of the com-

mittee, H. R. 1063 is a bill to amend Title 18 of the United

States Code entitled ‘‘Crimes and Criminal Procedure’’

with respect to State jurisdiction over offenses committed

by or against Indians in the Indian country and to confer

on the State of California civil jurisdiction over Indians

in that State.

The State now lacks jurisdiction to prosecute Indians

for most offenses committed on Indian reservations or

other Indian country as defined in Title 18, section 1151 of

the United States Code, except in the case of the Agua

Caliente Indian Reservation. State criminal jurisdiction

over this one reservation was previously conferred.

The United States district courts have a measure of ju-

risdiction over offenses committed on Indian reservations

or other Indian country by or against Indians, but in cases

of offenses committed by Indians against Indians that juris-

diction is limited to the so-called ten major crimes listed

in section 1153 of Title 18, United States Code. As a prac-

tical matter, the enforcement of law and order among the

23a

Indians in the Indian country has been left largely to the

Indian groups themselves, and in California they are not

adequately organized to perform that function. Conse-

quently, the Department believes there is a serious hiatus

in law enforcement authority that can best be remedied by

conferring criminal jurisdiction on the State, and the In-

dians of California have also reached a stage that makes

desirable the extension of State civil jurisdiction to the

Indian country in that State.

At the direction of the Commissioner of Indian Affairs,

the Area Director of the Bureau of Indian Affairs at Sac-

ramento, California, consulted with the various Indian

groups on a legislative proposal similar to H. R. 1063, and

none of them have indicated any opposition to the enact-

ment of a bill such as this. The Hoopa Valley Indians,

comprising the largest single group within the State, have

adopted resolutions favoring the proposal to confer civil

and criminal jurisdiction on the State. Representatives

of other groups have done likewise. The California Legis-

lature has memorialized Congress in favor of this legisla-

tion and certain other legislation not before us this morn-

ing.

The Department recommends that the bill be recast in

a form which is attached as a substitute bill which would,

we believe, assist in the codification in this bill of the exist-

ing sections of the civil and criminal codes of Title 18 for

the criminal aspects and Title 28 of the judicial code for

the civil aspects. If this type of bill is adopted, we hope it

may be a prototype and it will be possible to add Indians

in other States in the code so that, from the point of view

of an attorney looking into this matter, he will be able to

determine more, we believe, than otherwise would be the

case what the State civil and criminal jurisdiction may

be with respect to Indians of a particular State.

You will observe, for example, on page 2 of the draft

substitute bill that in the case of California, the Indian

24a

country affected is that within the Federal-State civil and

criminal jurisdiction, which will no longer obtain, as the

State is given jurisdiction over all of the Indian country

within the State.

It appears in the case of some of the other criminal and

civil jurisdiction bills that the Department will recommend

to the Congress that certain reservations be excepted where

law and order are regarded as adequate and where the

tribe affirmatively indicated its preference for confirmation

under its law and order code. But this prototype form we

believe will assist in eases of civil and criminal jurisdiction

as showing quickly at places in the code where we believe it

will be most helpful to attorneys and others what Indian

country, if any, may be excepted from State civil and

criminal jurisdiction.

It may also be observed that there are provisions in the

bill which will, we believe, protect the rights of Indian

groups without special recognition from the Congress in

the form of a treaty, agreement, or statute with respect to

hunting, trapping, or fishing or control of licensing and the

regulation thereof, and with those protections both on the

criminal side and the civil side in the bill it would mark a

definite step forward in the inclusion into the general body

of the people of the Indians of that particular State with

respect to civil and criminal jurisdiction, so that they will

be subject to the same laws and the same rules as the other

citizens.

The Department has recommended that the bill be

adopted, but the suggestions of the substitute bill are

intended to be of assistance in the uniform treatment of

this and other bills.

In order to have it absolutely uniform with respect to

California, it is recommended that section 1 of the Act of

October 5, 1949, which conferred on the State of California

civil and criminal jurisdiction over the land and residents

25a

of the Agua Caliente Indian Reservation, be repealed so

that there will be the same rule applicable to all Indians

in the State.

I would direct your attention to the fact that the Depart-

ment has submitted this report because of the express de-

sire of the committee to have it without having first received

prior clearance from the Bureau of the Budget. Hence the

Department cannot make any commitment at this time con-

cerning the relationship of the views of the Department to

the program of the President. However, copies of this re-

port have been submitted to the Bureau of the Budget, and

it is hoped we will know within a few days whether or not

they believe it is in accord with the program.

Mr. Berry Are there any questions?

Mr. Saylor. You have listed in the substitute bill a

method to have this as a prototype which will be used for

other Indian tribes. You have started here with the State

of California, and I would like to have submitted by the

Department a recommendation not only with respect to the

State of California but in regard to every other one of the

western States that have Indians or every State that has

Indians, including South Carolina, North Carolina, and

Florida. This committee should know what the views of the

Department are at the present time not only with regard

to the Indians of California but in regard to all of the In-

dians in all of the States.

Mr. Sellery. I will see that that is done.

Mr. Saylor. Also what Indian country you would recom-

mend, whether all Indian country within the State or

whether certain parts of the Indian country can be excepted.

Mr. D’Ewart. The phrase ‘‘Indian country”’ is already

defined by law and has a very distinct meaning. It is de-

fined in the recodification statutes adopted a very few years

ago, and it is very clear.

26a

Mr. Saylor. I think also the committee should have the

benefit of the Department’s views. You state there are cer-

tain sections of the Code which would not be applicable in

the State of California, and I think we should be advised as

to the sections which would not be applicable not only to this

law but any other law which might be affected if a similar

Act were adopted for all of the Indians.

Mr. Sellery. I wonder if you may have misunderstood

me. We are recommending that the State have civil and

criminal jurisdiction over all Indians in the State of Cali-

fornia and the concurrent jurisdiction of the United States

in connection with the ten major crimes and similar erimi-

nal acts be ceded to the State so that there will be nothing

except State jurisdiction in the State of California. There

will be no exception.

Mr. Saylor. Then, I understood, as a second amendment

you said you had here in this supplemental bill—was it not

the purpose of making sure there would not be concurrent

jurisdiction in the State and Federal Government?

Mr. Sellery. That is true.

Mr. Shuford. I think we in North Carolina have only one

tribe of Indians—the Cherokees—although we have Indians

in the ec ‘ern part of North Carolina. Are those under the

supervision of the Bureau of Indian Affairs?

Mr. Sellery. . Yes, sir; they are. The eastern band of

Cherokees is separated from the balance of the North Caro-

lina Indians.

Mr. Shuford. We also have Indians in ‘he eastern part

of North Carolina.

Mr. Sellery. I am advised they are not.

Mr. Shuford. I do not think that tribe has definitely

been established by the courts.

9 NP ia FL Sor ee WE pve &

27a

Mr. Sellery. In any event, they are not under the juris-

diction of the Bureau of Indian Affairs.

Mr. Rhodes. I would like to request the Department to

consider whether or not the State feels that the Indians

within the State are ready for this type of jurisdiction

and also whether the State itself is ready.

Mr. Sellery. In the case of California—I skipped over

that point—the State has indicated its willingness.

Mr. Rhodes. I am thinking of Arizona as to what effect

it might have on the law enforcement agencies of the State

of Arizona and also whether the Indians of Arizona have

expressed any views.

Mr. Sellery. I think such inquiries are in process with

respect to other bills.

Mr. Young. Does your bill limit the provision for Fed-

eral assistance to States in defraying the increased ex-

penses of the courts in connection with the widening of

the jurisdiction that the bill encompasses?

Mr. Sellery. No; it doey not.

Mr. Young. Do you think it would be necessary to pro-

vide for some payment, inarmuch as the great portion of

Indian lands are not subject to taxation?

Mr. Sellery. The Department’s report on the Nevada

bill has some comments on that. If it is appropriate, I

would like to read this in that connection. Generally, the

Department’s views are that if we started on the processes

of Federal financial assistance or subsid:zation of law

enforcement activities among the Indians, it might turn

out to be a rather costly program, and it is a problem which

the States should deal with and accept without Federal

financial assistance ; otherwise there will be some tendency,

the Department believes, for the Indian to be thought of

and perhaps to think of himself because of the financial

28a

assistance which comes from the Federal Government as

still somewhat a member of a race or group which is set

apart from other citizens of the State. And it is desired

to give him and the other citizens of the State the feeling

of a conviction that he is in the same status and has access

to the same services, including the courts, as other citizens

of the State who are not Indians.

Mr. Young. That would not quite be true, though; would

it? Because for the most part he does not pay any taxes.

Mr. Sellery. No. There is that difference.

Mr. Young. A rather sizable difference in not paying

for the courts or paying for the increased expenses for

judicial proceedings.

Mr. Sellery. The Indians, of course, do pay other forms

of taxes. I do not know how the courts of Nevada are

supported financially, but the Indians do pay the sales tax

and other taxes.

Mr. Young. But no income tax or corporation tax or

profits tax. You understand a large portion of the land

is held in trust and therefore is not subject to tax.

Mr. Sellery. That is correct.

Mr. Young. So far as my State is concerned, it would

be a large burden on existing costs of judicial procedure.

I think it is only right that the Federal Government should

make some contribution for that. You seem to differenti-

ate. I think there is a differentiation, too, in that they are

not paying taxes.

Mr. Sellery. I will concede your point that they are not

paying taxes. The Department has recommended, never-

theless, that no financial assistance be afforded to the

States.

Mr. Berry. Is there no authority now for the Depart-

ment to assist counties in this work?

29a

Mr. Sellery. I am advised there is none.

Mr. D’Ewart. That is only partly true. The Tribal

Conneil sometimes appropriates some funds to help pay

the peace officer, and the counties sometimes appoint an

Indian as deputy sheriff to cooperate with the towns.

Mr. Sellery. I think Congressman Berry was address-

ing himself to funds advanced by the Federal Government.

Mr. D’Ewart. Have not you ever paid part of the salary

of a sheriff?

Mr. Sellery. Mr. Benge, who is chief of our Law and

Order Branch, advises me we have not.

Mr. D’Ewart. I was thinking of the Reindeer Reserva-

tion where part of that salary was paid. Maybe I am

wrong. Maybe they were only using tribal funds.

Mr. Sellery. I think so. That is done in many cases,

as you correctly observe.

(The subcommittee thereupon went into executive ses-

sion. )