Amicus Brief — Washington v. Confederated Tribes of Colville Reservation

Supreme Court, U.

FILED

MAY 5 1979

IN THE

Supreme Court of the United $tWe@ssa RODAK, JR., CLERK

OcToBER TERM, 1978

No. 78-630

STATE OF WASHINGTON; CHARLES Hoppe; JAcK G. NELSON;

AND Rosert S. O'BRIEN,

Appellants,

Vs.

CONFEDERATED TRIBES OF THE COLVILLE INDIAN RESERVATION;

LuMMI INDIAN TRIBE; AND MAKAH INDIAN TRIBE,

Appellees.

STATE OF WASHINGTON,

Appellant,

VS.

UNITED STATES OF AMERICA AND CONFEDERATED BANDS AND TRIBES

OF THE YAKIMA INDIAN NATION,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT

OF WASHINGTON

BRIEF OF AMICI CURIAE

SALT River PrRoseEcT AGRICULTURAL IMPROVEMENT AND POWER

District, ARIZONA PusBLic SERVICE COMPANY, NEVADA POWER

Company, Tucson Gas & ELECTRIC COMPANY, AND DEPARTMENT OF

WATER AND POWER OF THE City OF Los ANGELES

IN SUPPORT OF APPELLANTS

Frederick J. Martone

JENNINGS, STROUSS & SALMON

111 West Monroe

Phoenix, Arizona 85003

Attorneys for Amici Curiae

rc

IN THE

Supreme Court of the United States

OcTOBER TERM, 1978

No. 78-630

STATE OF WASHINGTON; CHARLES Hoppe; Jack G. NELSON;

AND RosBert S. O'BRIEN,

Appellants,

VS.

CONFEDERATED TRIBES OF THE COLVILLE INDIAN RESERVATION;

Lummi! INDIAN TRIBE; AND MAKAH INDIAN TRIBE,

Appellees.

STATE OF WASHINGTON,

Appellant,

VS.

UNITED STATES OF AMERICA AND CONFEDERATED BANDS AND TRIBES

OF THE YAKIMA INDIAN NATION,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT

OF WASHINGTON

BRIEF OF AMICI CURIAE

Sat River Prosect AGRICULTURAL IMPROVEMENT AND POWER

District, ARIZONA PuBLIc SERVICE COMPANY, NEVADA POWER

Company, Tucson Gas & ELECTRIC COMPANY, AND DEPARTMENT OF

WATER AND POWER OF THE City oF Los ANGELES

IN SUPPORT OF APPELLANTS

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES. ................cccccccccccscees ii

INTERESTS OF THE AMICI CURIAE AND

Fe ar IS ekinichancachticasinsecebnssnoeeictaabiictatshn teetbovs 2

Poo! 8 yg RUIN RP RIOR Sir acer Chet alae 5

I.

IV.

I.

III.

TO THE EXTENT THAT THE LEGAL

INCIDENCE OF A TRIBAL TAX

FALLS UPON NONMEMBERS,: THE

TAX AS APPLIED IS INCONSISTENT

WITH THE TRIBE’S DEPENDENT

Be NN hited ign siaainiesrvaneiienciciiiilensaemimnatianie

THE ANALYSIS EMPLOYED BY THE

COURT IN OLIPHANT PRODUCES

THE SAME RESULT IN THE CIVIL

SPAM EUNIE: 4 sssundssnbnbbiniipiawnasonanbbencenesseensecsininis

ALL OTHER CASES INCLUDING

THOSE RELIED ON BELOW IN SUP-

PORT OF TRIBAL TAXATION ARE

SUOMI GMI AES eksinintieodsnivebadiaissctsntichtianetincees

WISE PUBLIC POLICY MILITATES

AGAINST THE ASSERTION OF

TRIBAL CIVIL REGULATORY POWER

AND JURISDICTION OVER NON-

NTNED: scinhsitnecsininusauilentiaticneticbenpiiodiesoveens

Save SUID. sccssrienepdaniinsieschacetgeniinicitalinnelineeninslanlnione

12

15

22

24

il

TABLE OF AUTHORITIES CITED

Cases Page

Alberty v. United States, 162 U.S. 499, 16 S.

CE. GRE CADIGD ecnnceiencepisisicncinninehmecnsnaiaaanann 13

Avery v. Midland County; 390 U.S. 474, 88 S.

Ct. 1214 (1008) ic. 23

Barta v. Oglala Sioux Tribe, 259 F.2d 553 (8th

Cle. GBD vvcicciciicictkeietnenmnne Perens 21, 22

Buster v. Wright, 135 F. 947 (8th Cir. 1905) 19, 20, 21

City of Phoenix v. Kolodziejski, 399 U.S. 204,

90 S. C&, RGRD CRIED seciccsirscicecnabaniene 23

Confederated Tribes of Colville v. State of

Washington, 446 F. Supp. 1339 (E.D. Wash.

NTE) ecicinirsinntincrerinntidniaaanae 5, 17

Ex parte Crow Dog, 109 U.S. 556, 3 S. Ct. 396

(ROBB) nceacnccriscsecnisscnsanninietesutisiaseusiseuiansnnanaannannnna 11

Ex parte Mayfield, 141 U.S. 107, 11 S. Ct. 939

CRED) <csacecinvecessocvsdyswescesubiniectilsienaseaniaannnannnn 13, 14

Hadley v. Junior College District of Metropol-

itan Kansas City, 397 U.S. 50, 90 S. Ct. 791

(TB FOD.. ..vesccsinanossncdceananisdieniaeiiaasaaannan 23

Tron Crow v. Oglala Sioux Tribe of Pine Ridge

Res., 231 F.2d 89 (8th Cir. 1956) ...............csceee 6, 20, 21

J. Gregory Merrion v. Jicarilla Apache Tribe,

Civ. No. 77-292 (D.N.M. Dec. 29, 1977) ........ 5

Kramer v. Union Free School District, 395

U.S. 621, 89 S. Ct. 1886 (1969) .............ccccsseee 23

Maxey v. Wright, 54 S.W. 807 (Ct. App. Ind.

J Oe | |) Eee ne 20

Moe v. Confederated Salish and Kootenai

Tribes of Flathead Res., 425 U.S. 463, 96 S.

Ct. 26346 (1976) ..n.csisccrasscnsctsicviigneotnninnne 3

iii

TABLE OF AUTHORITIES CITED

Cases (Continued) Page

Morris v. Hitchcock, 194 U.S. 384, 24 S. Ct.

PE ED cahnicedtacciiceconstnestntieniodsncs 17, 18, 19, 20, 21, 22

Nevada v. Hall, 47 U.S.L.W. 4261 [U.S.

I, FN his cs saclcakoninsoslenbanscicatiiqnensinnes 23

Oliphant v. Suquamish Indian Tribe, 435 U.S.

eg ee es es RE CIT casi caccscccssccescscccosce 5, passim

Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362

a ae 23

Salt River Project Agricultural Improvement

and Power District, et al. v. Navajo Tribe of

Indians, et al., No. CIV. 77-686 (D. Ariz.,

NENT i, RUPW OP wachiseiunssaasccbinescncsnaystccssevecsss 3

Salt River Project Agricultural Improvement

and Power District, et al. v. Navajo Tribe of

Indians, et al., No. 78-3492 (9th Cir., Appel-

lants’ Brief Filed April 9, 1979) .............00008 3

Santa Clara Pueblu v. Martinez, 436 U.S. 49,

Se hs I SID vodignnictcatvtrasnsssersessctcvessisoee 24

Talton v. Mayes, 163 U.S. 376, 16 S. Ct. 986

PAR UURGCIM SS EY SOUS ECU Ee ie ENON 24

Trans-Canada Enterprises Ltd. v. Muckle-

shoot Indian Tribe, Civ. No. C77-882M

(W.D. Wash. Nov. 3, 1978) ........ccccccccesseeeeeeees 5

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

ey I I hind doccutnicdeddscebdnsvetwsasicdansbanieresce 7

United States v. Mazurie, 419 U.S. 544, 95 S.

Cee a i cohiaienninasons 16, 17

United States v. Wheeler, 435 U.S. 313, 98 S.

Ct. 1079 (1978) .......ccccccccscceess 5, 6, 7, 8, 12, 21, 23, 24

Washington v. Confederated Bands and

Tribes, US. _, 99S. Ct. 740 (1979) ...... 24

iV

TABLE OF AUTHORITIES CITED

Cases (Continued) Page

and Statutes

Wedding v. Meyler, 192 U.S. 573, 24 S. Ct. 322

PRIN cidinaticbiea tii nics aki dada ceababsbaentiteneinacaeamiteieebens 9

STATUTES

United States Code

SO Cte ae 16

I OR gi a 17

S640 108-1008 eis 24

ars RI eiethdteainesevanesekcndecespovenses 9

United States Statutes at Large

7 Stat. 450 (1834) (Treaty with the Chicka-

I iahuth ieadinieniacaaiiteecneaeantniaibabadeicdeaabicse Giana 13

7 Stat. 478 (1835) (Treaty with the Chero- .

RNIN <i csaciancadtieivcs cecnisbbasiadesabonadaienseomabuaiciiadaeepiviss 12

9 Stat. 844 (1846) (Treaty with the Coman-

CR GE MRD ss osihinisicnssiphenceilistrecnaebincnbldlinganennd 13

9 Stat. 974 (1849) (Treaty with the Navaho) 13

11 Stat. 611 (1855) (Treaty with the Choc-

taw and Chickasaw) .............cccccsecssossessenceeees 12

11 Stat. 699 (1856) (Treaty with the Creeks) 12

14 Stat. 755 (1866) (Treaty with the Semi-

DE a ctetattsede etc ath lack teed eanddictiabedsunantas 12

14 Stat. 769 (1866) (Treaty with the Choc-

taw: and CHICKASAW) .....0scrccsccscesecesccscccsceovnees 13

14 Stat. 799 (1866) Treaty with the Chero-

OER A eI RTL ERODE RU HEP EAE 13

SE TE, BE ERD inten dasestrstiniccentininmaansen 13

30 Stat. 495 (1898) (Curtis Act) ..........eeeee 17

67 Stat. 586 (1953), 18 U.S.C. § 1161 ............ 16

Vv

TABLE OF AUTHORITIES CITED

Other Materials Page

1 American Indian Policy Review Commission,

Final Report, 587 (1977) (Dissenting Views

of Cong. Lloyd Meeds) ...........:ccsseesseeeseeeeeeeees 14

F. Cohen, Federal Indian Law (U.N.M. ed.

BORD ec iia Sie anee 13, 15, 22

II C. Kappler, Laws and Treaties (1904) ......... 12

S. Rep. No. 1686, 86th Cong., 2d Sess. 2-3

CIID \suiseshicslisesiesicardseusiiesccenbeibsipentenmmiieaea ineemateniian 14

Transcript of Oral Argument Before the

United States Supreme Court in Oliphant v.

Suquamish Indian Tribe ...........ccccccsceceeeeeseeees 10

IN THE

Supreme Court of the United States

OcTOBER TERM, 1978

No. 78-630

STATE OF WASHINGTON; CHARLES Hoppe; Jack G. NELSON;

AND Rosert S. O'BRIEN,

Appellants,

VS.

CONFEDERATED TRIBES OF THE COLVILLE INDIAN RESERVATION;

LuMMI INDIAN TRIBE; AND MAKAH INDIAN TRIBE,

Appellees.

STATE OF WASHINGTON,

Appellant,

VS.

UNITED STATES OF AMERICA AND CONFEDERATED BANDS AND TRIBES

OF THE YAKIMA INDIAN NATION,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT

OF WASHINGTON

BRIEF OF AMICI CURIAE

SaLT River Project AGRICULTURAL IMPROVEMENT AND POWER

District, ARIZONA PuBLic SERVICE COMPANY, NEVADA POWER

Company, Tucson Gas & ELECTRIC COMPANY, AND DEPARTMENT OF

WATER AND POWER OF THE Ciry oF Los ANGELES

IN SUPPORT OF APPELLANTS

2

INTERESTS OF THE AMICI CURIAE

AND INTRODUCTION

The amici curiae' are joint tenants in the Navajo

Project, a $600,000,000 coal-fired electric generation

plant, located near Page, Arizona, on the Navajo Res-

ervation. The amicus Salt River Project Agricultural

Improvement and Power District is a political subdivi-

sion of the State of Arizona. The amicus Department

of Water and Power of the City of Los Angeles is a

department organized and existing under the charter

of the City of Los Angeles, a municipal corporation of

the State of California. The amici Arizona Public Ser-

vice Company and Tucson Gas & Electric Company

are public service corporations organized under Ari-

zona law. The amicus Nevada Power Company is a

public service corporation organized under Nevada

law. Salt River Project owns 21.7% of the Navajo Proj-

ect for its own benefit and holds 24.3% for the use and

benefit of the United States of America intended for

use by the Bureau of Reclamation of the Department

of the Interior to meet its power needs for the Central

Arizona Project. All amici are non-Indian entities. The

United States, with the consent of the Navajo Tribe,

granted the amici a right-of-way and easement for the

project site and related facilities, and the tribe granted

the amici an overlapping lease of the same land with

the consent of the Secretary of the Interior.

Shortly after the Navajo Project’s completion, the

Navajo Tribe of Indians adopted resolutions purport-

ing to tax (1) the Project’s emission of sulfur

compounds, (2) the Project’s leasehold, and (3) the

Project’s gross receipts.

' This brief is filed with the consent of all the parties to this

case pursuant to this Court’s Rule 42.

3

As a result, the amici are parties to litigation in the

United States District Court for the District of Ari-

zona challenging the validity of the tax on sulfur

emissions.” The amount of this tax escalates to about

$50,000,000 a year after five years. The amici’s chal-

lenge to the leasehold interest tax is presently on

appeal in the United States Court of Appeals for the

Ninth Circuit. Although the amici’s claims against

the validity of Navajo tribal taxation as to them are

many, the dominant and common claim is that the

dependent status of Indian tribes necessarily precludes

their assertion of governmental authority over non-

member, non-Indian entities.

While the case befure this court presents as its ma-

jor issue the power of the state to tax non-Indian

entities, there is lurking in the background the issue of

tribal taxation of non-Indian entities. Two of the three

judges of the district court below apparently held that

tribal taxation of non-Indian entities preempted the

power of the state to tax those same entities. Circuit

Judge Kilkenny, in his separate concurring and dis-

senting opinion, would have held that even if the tribe

could tax non-Indian entities, the state was not

preempted from imposing its tax and found this case

indistinguishable from Moe v. Confederated Salish

and Kootenai Tribes of Flathead Res., 425 U.S. 463,

96 S. Ct. 1634 (1976). Under his view, both the State

of Washington and the tribe could tax.

Salt River Project Agricultural Improvement and Power

District, et al. v. Navajo Tribe of Indians, et al., No. CIV. 77-686

(D. Ariz., filed Sept. 1, 1977).

Salt River Project Agricultural Improvement and Power

District, et al. v. Navajo Tribe of Indians, et al., No. 78-3492 (9th

Cir., Appellants’ Brief Filed April 9, 1979).

4

These amici submit that because the tribe is without

power to tax non-Indians, there is neither preemption

as found by the district court nor the prospect of dual

taxation as inferred by the separate concurring and

dissenting opinion. Only the State of Washington can

tax non-Indians.

It may be possible for this Court to reverse the judg-

ment of the district court and rule in favor of the State

of Washington without deciding the question of the

validity of a tribal tax on non-Indians. This is so be-

cause it is not clear from the tribal ordinances whether

the legal incidence of their taxes falls on non-Indian

purchasers or Indian sellers. These amici have no

quarrel with tribal taxation of tribal members, be they

sellers or purchasers. We do contend that the tribes

have no power to impose taxes the legal incidence of

which falls on non-Indian purchasers (upon whom the

State of Washington imposes its tax) or on non-Indian

sellers. But if the issue of tribal power to tax non-

Indians is reached or even alluded to in this Court’s

opinion, it is of crucial significance that the non-

Indians upon whom a tribal tax would fall are not par-

ties to this case.

Indeed, the prospect of tribal taxation of non-

Indians has greater consequences than the preemption

of state law over non-Indians, although the substitu-

tion of the power of the tribe (in whose affairs non-

Indians may not participate) for the power of the state

is itself exceedingly damaging to the federal system.

Pending before various federal courts are attempts by

tribes to zone non-Indian owned fee patented land

5

within the boundaries of an Indian reservation,’ to

tax non-Indian utilities and political subdivisions of

states,’ and to tax non-Indian energy producers.’ If

this Court finds that the legal incidence of the tribal

taxes in this case falls on non-Indians, the interest of

these amici and their millions of non-Indian consum-

ers, as well as the great number of non-Indians who

would be affected by the assertion of tribal power over

them, is in the reversal of the judgment of the district

court on the basis that only the State of Washington

may tax non-Indians.

ARGUMENT

The court below found that the tribes were exercis-

ing federally delegated powers, which included the

power to tax non-Indians. Confederated Tribes of Col-

ville v. State of Washington, 446 F. Supp. 1339, 1361

(E.D. Wash. 1978). The court erred in two important

respects.' We first show that the tribes’ power of

self-government does not include the power to tax

non-Indian nonmembers. We then show that Congress

has never delegated this power to the tribes.

‘ Trans-Canada Enterprises ltd. v. Muckleshoot Indian

Tribe, Civ. No. C77-882M (W.D. Wash. Nov. 3, 1978).

See text accompanying notes 2 and 3 supra.

J. Gregory Merrion v. Jicarilla Apache Tribe, Civ. No. 77-

292 (D.N.M. Dec. 29, 1977).

At the time of the district court’s opinion it was without

benefit of this Court’s opinions in Oliphant v. Suquamish Indian

Tribe, 435 U.S. 191, 98 S. Ct. 1011 (1978), and United States v.

Wheeler, 435 U.S. 313, 98 S. Ct. 1079 (1978), but when presented

with these cases by Appellants’ motions for new trial, the court

below did not change its ruling. Appendix to Jurisdictional State-

ment, 77-80.

6

I

TO THE EXTENT THAT THE LEGAL

INCIDENVE OF A TRIBAL TAX FALLS

UPON NONMEMBERS, THE TAX AS

APPLIED IS INCONSISTENT WITH THE

TRIBE’S DEPENDENT STATUS.

This Court recently resolved the troublesome issues

of the source and scope of tribal power. Rejecting the

expansive view of tribal self-government advanced by

tribal advocates, this Court held that although the

source of tribal power was not federal, the theater of

its exercise was limited to tribal members, its resid-

uum being insufficient to extend to nonmembers.

United States v. Wheeler, 435 U.S. 313, 98 S. Ct. 1079

(1978); Oliphant v. Suquamish Indian Tribe, 435 U.S.

191, 98 S. Ct. 1011 (1978).

In Oliphant a non-Indian was arrested by tribal

authorities for violation of the tribe’s law and order

code. If, as the district court in the case before this

Court held, the tribe possessed all governmental power

except as expressly withdrawn by the Congress, the

tribe had criminal jurisdiction over the non-

Indian.* In holding that Indian tribes do not have

criminal jurisdiction over non-Indians, this Court

noted that tribal assertion of power over non-Indians

was a new phenomenon and that it was the shared

understanding of the lower federal courts, the execu-

tive branch, and the Congress that Indian tribes

lacked such power. The Court conceded that Indian

tribes “do retain elements of ‘quasi-sovereign’ author-

ity after ceding their lands to the United States and

The district court relied upon Jron Crow v. Oglala Sioux

Tribe, 231 F.2d 89 (8th Cir. 1956), discussed infra. 446 F. Supp.

at 1361.

7

announcing their dependence on the Federal Govern-

ment,” 98 S. Ct. at 1020, but rejected the proposed

rule that a tribe’s retained powers are such that they

are limited only by specific restrictions in treaties or

statutes. Instead, the Court held that:

Indian tribes are proscribed from exercising

both those powers of autonomous states that are

expressly terminated by Congress and those pow-

ers “inconsistent with their status.” Id. at 1021

(emphasis in original).

The Court stated that by submitting to the overriding

sovereignty of the United States, Indian tribes neces-

sarily gave up their power to try non-Indian citizens of

the United States except in a manner acceptable to

Congress. Jd. Finally, the Court stated that the tribe’s

assertion of authority over a non-Indian ignored the

fact that there exists within the United States but two

sovereigns: the United States and the states. Jd. at

1022, quoting from United States v. Kagama, 118 U.S.

375, 379, 6 S. Ct. 1109, 1111, (1886).

Oliphant clearly rejected the assertion that a tribe

possesses all powers except those expressly withdrawn

by Congress, and held instead that the tribe was also

without those powers inconsistent with its dependent

status. United States v. Wheeler, 435 U.S. 313, 98 S.

Ct. 1079 (1978), emphasizes what is per se inconsistent

with a tribe’s dependent status. At issue in Wheeler

was whether the double jeopardy clause of the Fifth

Amendment bars the federal prosecution of an Indian

who has previously been convicted in a tribal court of

a lesser included offense. If the source of tribal and

federal power were the same, then jeopardy would at-

tach and the subsequent criminal proceeding would be

precluded. If, on the other hand, the source of tribal

power were different than that of the United States,

8

the separate sovereignty doctrine would permit the

second prosecution. The Court held that the source of

tribal power to punish its own members was a part of

its residual sovereignty and not a delegated federal

power. Id. at 1088-89.

But what this Court said in Wheeler about the

scope of tribal power was even more instructive than

what it said about its source. The Court stated that

the power of a tribe to punish its own members was

not lost by virtue of its dependent status because

[t]he areas in which such implicit divestiture of

sovereignty has been held to have occurred are

those involving the relations between an Indian

tribe and nonmembers of the tribe. 98 S. Ct. at

1087 (emphasis added).

The Court noted that the limitation with respect to

nonmembers rested on the fact that the dependent

status of Indian tribes within the territorial jurisdic-

tion of the United States is necessarily inconsistent

with their freedom independently to determine their

external relations. Jd. at 1088. But since “the powers

of self-government ... involve only the relations

among members of a tribe ... they are not such pow-

ers as would necessarily be lost by virtue of a tribe’s

dependent status.” Jd. (emphasis added).

Oliphant and Wheeler, read together, produce the

following. Oliphant instructs us that the tribe’s re-

tained powers are not only limited by specific

restrictions in treaties or statutes, but also by its de-

pendent status. 98 S. Ct. at 1021. Wheeler tells us that

the assertion of tribal power over nonmembers is in-

consistent with its dependent status because the power

of self-government involves only relations among

members of the tribe. 98 S. Ct. at 1088.

9

The district court did not even consider the depen-

dent status of the tribe as a limitation on its power.

Had it done so, it would have been unable to limit

Oliphant in a principled way to criminal jurisdiction.

The fundamental question in Oliphant was one of ju-

risdiction. The labels “criminal” and “civil” are the

product of our own Anglo-American legal history and

do not relate to jurisdiction, the power to act in the

first instance. Doctrinally, a lack of criminal jurisdic-

tion by definition means a lack of civil jurisdiction. As

stated by Oliver Wendell Holmes in Wedding v. Mey-

ler, 192 U.S. 573, 24 S. Ct. 322, 324 (1904), “juris-

diction, whatever else or more it may mean, is juris-

dictio, in its popular sense of authority to apply the

law to the avte of men.” Clearly, if a tribe has no au-

thority to apply its substantive criminal law to a non-

Indian and enforce it with the coercive instruments of

government, the tribe similarily has no power to apply

civil regulatory and taxing authority to a non-Indian

and enforce it with the coercive instruments of govern-

ment. Surely the outcome cannot depend upon a

labeling process describing conduct as criminal or in

violation of civil regulatory power. Either the entity

which purports to assert the power has authority to

apply its law to the acts of men or it does not. As to an

Indian tribe, Oliphant has answered this question.

That this Court would reject the assertion of tribal

civil regulatory and taxing power and jurisdiction is

clear from the assumptions articulated in its opinion.

In rejecting the Suquamish Tribe’s argument that a

modification in the Indian Civil Rights Act of 1968, 25

U.S.C. § 1302 (guarantees extended from “American

Indians” to ‘any person’’), confirmed inherent crimi-

nal jurisdiction over non-Indians, the Court said:

10

’

the modification merely demonstrates Congress

desire to extend the Act’s guarantees to non-

Indians if and where they come under a tribe’s

criminal or civil jurisdiction by either treaty pro-

vision or act of Congress. 98 S. Ct. at 1014 n. 6

(emphasis added).

This reference to civil jurisdiction was no casual

dicta. This Court appreciated that its decision in Oli-

phant necessarily precluded tribal civil power over

nonmembers as well as criminal jurisdiction, as indi-

cated by the following exchange at oral argument:

Question: Mr. Ernstoff, is there any way of dis-

tinguishing your case from a civil jurisdiction of

the Tribe so that the Court could, in a principled

way, say there was criminal jurisdiction here but

not civil jurisdiction?

Mr. Ernstoff [counsel for the Suquamish Tribe]:

That is a very interesting question, Your Honor. I

really do not know that they can, to be honest

with you, I have been trying to do that because I

thought it would be of benefit to me to come in

with the most narrow case that I can possibly

come in with.

To be intellectually honest, I do not think you

really can and I do not think that you should.

Transcript of Oral Argument Before the United

States Supreme Court in Oliphant v. Suquamish

Indian Tribe at 54-55 (emphasis added).

Finally, the Court in Oliphant concluded with a pro-

found observation which is as appropriate in the civil

context as it is in the criminal context. The Court

noted that the former federal policy of immunizing

Indian peoples from the criminal jurisdiction of the

United States was meant to avoid the unseemliness of

judging culturally distinct peoples by standards “made

by others and not for them” and of trying them “not

11

by their veers, nor by the customs of their people, nor

the law of their land, but by ... a different race, ac-

cording to the. law of a social state of which they have

an imperfect conception.” 98 S. Ct. at 1022, quoting

from Ex parte Crow Dog, 109 U.S. 556, 571, 3 S. Ct.

396, 406 (1883). The Court then said “‘[t]hese consider-

ations, applied here to the non-Indian rather than

Indian offender, speak equally strongly against the va-

lidity of respondents’ contention that Indian tribes,

although fully subordinated to the sovereignty of the

United States, retain the power to try non-Indians

according to their own customs and procedures.” /d.

If it is wise to immunize reservation Indians from

the legal obligations of a dominant culture foreign to

their own (the laws of the states), but in whose politi-

cal affairs they may participate as citizens, then by

stronger logic it must also be unwise and surely unjust

to subject nonmembers of the tribe to the legal obliga-

tions decreed by peoples foreign to them and from

whose political affairs they are barred. To subject

some racial or ethnic groups to the general lawmaking,

taxing, and enforcing power held by another racial or

ethnic group is offensive to our fundamental values.°

® Indeed, this Court has fashioned rules which reach a tolera-

ble balance. Just as reservation Indians are immune from state

law, so too are non-Indians immune from tribal law. Were it oth-

erwise, the balance would be upset.

12

II.

THE ANALYSIS EMPLOYED BY THE COURT

IN OLIPHANT PRODUCES THE SAME

RESULT IN THE CIVIL CONTEXT.

Although Oliphant and Wheeler alone preclude the

power to tax, the same conclusion is inevitable from an

application of the methodology of Oliphant. There,

the Court held that because of the treaty-making pro-

cess, congressional action, the presumptions shared by

the Congress, the Executive, and the judiciary, and the

overriding sovereignty of the United States, Indian

tribes do not have inherent criminal jurisdiction over

non-Indians.

With respect to the treaty-making process, the

Court examined representative Indian treaties and

found that their history was consistent with the princi-

ple that Indian tribes could not assume criminal

jurisdiction over non-Indians without the consent of

Congress. 98 S. Ct. at 1015 n. 8. The Court noted that

no Indian treaty expressly granted tribal criminal ju-

risdiction over non-Indians.

Similarly, no Indian treaty expressly grants tribal

civil regulatory authority or jurisdiction over non-

Indians. See II C. Kappler, Laws and Treaties (1904).

On the contrary, we have examined every Indian

treaty and have found that all treaties which secure

the right of self-government to Indian tribes, including

civil power over persons and property, exclude persons

(and their property) who are not by birth, adoption, or

otherwise citizens or members of the tribe. Treaty with

the Cherokee, art. 5, 7 Stat. 478 (1835); Treaty with

the Choctaw and Chickasaw, art. 7, 11 Stat. 611

(1855); Treaty with the Creeks, art. 15, 11 Stat. 699

(1856); Treaty with the Seminole, art. 2, 14 Stat. 755

a >

13

(1866).'° Cf. Treaty with the Chickasaw, art. III, 7

Stat. 450 (1834); Treaty with the Comanche, et al., art.

2, 9 Stat. 844 (1846); Treaty with the Navaho, arts. VI,

IX, 9 Stat. 974 (1849). As to treaties with tribes in the

Indian Territory (Oklahoma), e.g., Treaty with the

Choctaw and Chickasaw, 14 Stat. 769 (1866), and

Treaty with the Cherokee, 14 Stat. 799 (1866), see Ex

parte Mayfield, 141 U.S. 107, 11 S. Ct. 939, 941 (1891).

The scheme in the Indian Territory vested civil juris-

diction in tribal courts over actions in which only

Indians were parties. Any action to which a nonmem-

ber was a party was to be brought in federal court. /d.

at 941. Act of May 2, 1890, §) 30, 31, 26 Stat. 81, 94.

Alberty v. United States, 162 U.S. 499, 503, 16 S. Ct.

864 (1896). See generally F. Cohen, Federal Indian

Law 382 (U.N.M. ed. 1942). There could be no better

proof of the shared understanding of the executive and

the congressional branches than these treaty and sta-

tutory provisions.

As to other congressional action, this Court traced

the stages of congressional concern for crimes on the

reservation, and concluded that while Congress never

expressly prohibited tribal criminal jurisdiction over

non-Indians, the absence of such jurisdiction was the

underlying principle of congressional action. 98 S. Ct.

at 1017-19. The Court noted that the Congress did not

initially address itself to the problem of tribal jurisdic-

tion over non-Indians for the reason that there was

little reason to be concerned with assertions of tribal

court jurisdiction over non-Indians in light of the ab-

sence of formal tribal judicial systems. /d. at 1017.

The relevant articles of these four treaties are reproduced in

the Appendix to this brief.

14

For the same reason, Congress has not, except as

noted above, addressed itself to the question of tribal

civil regulatory power and jurisdiction over non-

Indians for the reason that, until very recently, no

tribe ever purported to have such jurisdiction. On the

few occasions the Senate addressed tribal civil power

and jurisdiction in the treaties cited above, it uni-

formly excluded civil regulatory power and jurisdiction

over nonmembers.

The Court in Oliphant quoted a 1960 Senate Report

which stated that “Jndian tribal law is enforcible

against Indians only; not against non-Indians ...

[n]on-Indians are not subject to the jurisdiction of

Indian courts.” 98 S. Ct. at 1019 (emphasis in origi-

nal), quoting from S. Rep. No. 1686, 86th Cong., 2d

Sess. 2-3 (1960). The Court noted that the three

branches of the federal government were in apparent

agreement that Indian tribes do not have jurisdiction

over non-Indians and quoted with approval the dis-

senting views of Congressman Lloyd Meeds, Vice-

Chairman of the American Indian Policy Review

Commission, that “such general jurisdiction has gener-

ally not been asserted and ... the lack of legislation on

this point reflects a congressional assumption that

there was no such tribal jurisdiction.” 98 S. Ct. at 1019

n. 15, quoting from 1 American Indian Policy Review

Commission, Final Report, at 587 (1977) (Dissenting

Views of Cong. Lloyd Meeds).

The Court relied on Ex parte Mayfield, 141 US.

107, 115-16, 11 S. Ct. 939 (1891), for the proposition

that congressional action in regulating jurisdiction on

Indian reservations demonstrated an intent to forbid

tribal jurisdiction over non-Indians. 98 S. Ct. at 1018-

19. Yet Mayfield was not directed solely to criminal

jurisdiction. In describing the jurisdiction of the tribe

15

and that of the United States the Court said:

The general object of these statutes is to vest in

the courts of the nation [Cherokee Tribe] jurisdic-

tion of all controversies between Indians, or where

a member of the nation is the only party to the

proceeding, and to reserve to the courts of the

United States jurisdiction of all actions to which

its own citizens are parties on either side. 11 S. Ct.

at 941.

With respect to the assumptions of the Executive

Branch, its treaties, cited above, uniformly excluded

tribal civil regulatory power and jurisdiction over

nonmembers. More recently, Felix S. Cohen, former

Assistant Solicitor of the Department of Interior, and

author of the major treatise on federal Indian law,

acknowledged that the jurisdiction of tribal courts was

limited to Indians. F. Cohen, Federal Indian Law 148,

382 (U.N.M. ed. 1942). In short, a tribe has no juris-

diction to impose a tax on a nonmember non-Indian.

III.

ALL OTHER CASES INCLUDING THOSE

RELIED ON BELOW IN SUPPORT OF

TRIBAL TAXATION ARE INAPPOSITE.

The district court relied upon a single case to sup-

port tribal taxing power over nonmesabers, and tribal

advocates have relied on others in different settings.

To properly understand those cases, two simple but

fundamental distinctions must be drawn.

First, Congress does have the power to delegate its

power over Indian affairs to an Indian tribe, where the

delegation is not otherwise proscribed by the United

States Constitution. Secondly, to the extent an Indian

tribe may enjoy an interest in real property, the tribe

would possess those nongovernmental powers of a pro-

prietor normally associated with the particular real

16

property interest. So, for example, where a tribe enjoys

a right to possession, whether by treaty, statute, exec-

utive order, or lease, the tribe would have the powers

associated with a possessor of land. This would include

a right to exclude others, a right to sue for trespass

damages, and a right to condition entry by contract

upon the payment of a fee or other exaction. These

proprietary powers belong to any possessor of land in

the United States, and are not true governmental pow-

ers.

Having made these observations, it is readily dem-

onstrated that reliance on those cases to support tribal

taxation of nonmembers is misplaced. The classical

delegation case is United States v. Mazurie, 419 U.S.

544, 95 S. Ct. 710 (1975). There the Court held that

since Congress has the power to regulate the sale of

alcoholic beverages -in Indian country and Indian

tribes are entities with some independent authority

over matters that affect the internal and social rela-

tions of tribal life, Congress could constitutionally

delegate its own authority over alcoholic beverages to

the tribe. Congress had enacted legislation allowing

Indian tribes to regulate the introduction of liquor into

Indian country as long as state law was not violated.

Act of Aug. 15, 1953, 67 Stat. 586, 18 U.S.C. § 1161.

Despite the denial of his application for a tribal liquor

license, a non-Indian introduced liquor into Indian

country. Accordingly, he was in violation of federal

criminal law and subject to federal prosecution, not

tribal prosecution, if the congressional delegation to

the tribe were valid. While the Court upheld the con-

gressional delegation to the tribe, it specifically stated

that ‘“‘[w]e need not decide whether this independent

authority [the tribe’s] is itself sufficient for the tribes

to impose Ordinance No. 26 [requiring retail liquor

17

outlets within Indian country, including those on non-

Indian land, to obtain a tribal license].” 95 S. Ct. at

718. Hence, far from supporting the assertion of tribai

civil regulatory authority over non-Indians, Mazurie is

a pure congressional delegation case, a principle recog-

nized in Oliphant itself. 98 S. Ct. at 1022.

In this case, there is no express congressional delega-

tion of federal power to the tribes upon which a claim

to tax nonmember non-Indians can be based. Unlike

Mazurie, there is no statute authorizing tribes to tax

non-Indians. The district court found none, but in-

stead relied upon the Indian Reorganization Act, 25

U.S.C. § 476, as to tribes organized thereunder, and

upon the plenary power of Congress as to the others.

446 F. Supp. at 1361. But this Court has already ac-

knowledged that the Indian Reorganization Act does

not add to the existing powers of Indian tribes. Oli-

phant, supra, 98 S. Ct. at 1014 n. 6. And while it is

true that Congress has plenary power over Indian af-

fairs, it has not exercised that power to permit tribes

to tax non-Indians. Plainly, the district court erred in

seeking refuge in the delegation doctrine.

The tribe’s real property rights are illustrated by

Morris v. Hitchcock, 194 U.S. 384, 24 S. Ct. 712 (1904).

There, non-Indian owners of cattle and other animals

sued the Secretary of the Interior and other federal

officials seeking to restrain them from removing their

cattle from the lands of the Chickasaw Tribe. At issue

was the Curtis Act, Act of June 28, 1898, 30 Stat. 495,

under which no ordinance or resolution of the Choctaw

or Chickasaw tribes affecting the land of the tribe or

the rights of any person who had taken an oath of alle-

giance to the United States should be of any validity

until approved by the President of the United States.

Under the treaty between the Chickasaw Tribe and

o

18

the United States, the tribe had the right to exclude

trespassers, and the United States had the duty to

protect the tribe from non-Indians who were “not sub-

ject to their jurisdiction and laws.” 24 S. Ct. at 713-14.

The tribe enacted an ordinance imposing a tax on live-

stock owned by noncitizens of the tribe as part of its

“power to attach conditions to the presence within its

borders of persons who might otherwise not be entitled

to remain.” /d. at 714. The ordinance of the tribe was

approved by the President of the United States, and

the Secretary of the Interior promulgated regulations

incorporating the tribal ordinance and authorizing the

Department of the Interior to remove livestock upon

which the tax was not paid. Hence, the plaintiffs were

attacking the power of the Secretary under regulations

promulgated pursuant to express congressional author-

ity. The Court upheld the power of the Secretary to

remove the livestock on which the tax was not paid. It

is to be noted that pursuant to the Secretary’s regula-

tions, the tax was to be paid to the United States and

not to the tribe. /d. at 713.

Hence, Morris stands for the proposition that while

an Indian tribe cannot subject non-Indians to its juris-

diction and laws, id. at 714, it can condition the

presence of nonmembers on tribal lands, not as an act

of governmental power, but merely as the power of a

proprietor of land, and that the enforcement of such

conditions must be pursuant to express congressional

delegation. It is clear, therefore, that the tribal ‘“tax”’

in Morris was not a tax imposed by the tribe in a gov-

ernmental capacity, but rather was a trespass fee

exacted by the tribe in its capacity as a proprietor of

land seeking to impose conditions on entry. Even with

respect to this proprietary power, the tribe had no

power to enforce but required enforcement by the

19.

United States. Obviously, where the tribe has no pos-

sessory interest in the relevant locus (such as land

within Indian country not owned by the tribe, land

which is owned but leased to others, and land to which

conditions of entry have already been attached by con-

tract, right-of-way, or otherwise), the tribe has no

proprietary interest upon which a fee or other exaction

can be based.

So, in a case as here where a tribe wants to earn in-

come through the sale of tobacco to non-Indians on

tribally occupied lands, a tribe may set the price at its

choosing. If the non-Indian wants the product, he pevs

the price. If not, he can purchase elsewhere, just as in

Morris he could choose to graze his cattle elsewhere.

But a tribe cannot tax the non-Indian and enforce it in

tribal court or elsewhere.

Cases in the lower federal courts have followed the

Morris v. Hitchcock governmental/proprietary distinc-

tion. In Buster v. Wright, 135 F. 947 (8th Cir. 1905),

the Creek Tribe imposed a permit tax, approved by

the President of the United States, for the privilege it

offered noncitizens to trade within the borders of its

reservation. The court described the exaction as more

of the nature of a license than of a tax. Jd. at 949.

Relying on Morris, the court held that the tribe had

the authority to require the payment of the tax as a

condition precedent to the privilege of trading within

the reservation and that the United States had the

power to enforce the payment of the tax through the

Secretary of the Interior. The court said that the “law

of the Creek Nation was in legal effect a law of the

United States, because it was authorized by treaties,

acts of Congress, and judicial decisions of this nation.”

Id. at 956.

20

Hence, like Morris, Buster is a case in which an In-

dian tribe conditioned the presence of nonmembers on

the reservation upon the payment of a license fee or

tax. The court perceived the tax to be a federal tax,

id., and the United States was the proper party to en-

force it. Where the conditions to the presence of

nonmembers have already been imposed by lease or

right-of-way, further conditions cannot be unilaterally

imposed.

In Maxey v. Wright, 54 S.W. 807 (Ct. App. Ind.

Terr. 1900), non-Indian lawyers brought an action

against a United States Indian inspector seeking to

enjoin him from collecting an occupation tax imposed

by the Creek Tribe. The court upheld the tax, not as

an incident of governmental power, but simply as part

of the tribe’s power to exclude trespassers or condition

the presence of nonmembers on their reservation. In-

deed, the court cited an opinion of the Attorney

General which likened a similar tax to the right of a

hotel keeper to prescribe rules and charges for persons

who become his fellow occupants. Jd. at 809. The en-

forcing authority was the United States, not the tribe,

and the only remedy was the removal of the lawyer

from the reservation as a trespasser. Jd. at 812. Hence,

it is clear that the Court of Appeals of the Indian Ter-

ritory viewed the tax not as an act of government, but

merely as a condition imposed by a landowner on one

who had no right to be present on the land.

Two other cases from the United States Court of

Appeals for the Eighth Circuit missed the govern-

mental/proprietary distinction of Morris, but their

holdings have been repudiated by the rule of Oliphant.

98 S. Ct. at 1021. In Iron Crew v. Oglala Sioux Tribe

of Pine Ridge Res., 231 F. 2d 89 (8th Cir. 1956), relied

upon by the court below, a reservation Indian brought

21

an action against his tribe in federal court seeking to

enjoin the imposition of a tribal tax on his non-Indian

lessee. Relying on Buster and Morris, the court upheld

the power to tax. The court held that the tribal power

to tax was not pretermitted by any federal statute and,

therefore, still existed. Obviously, the court was in er-

ror for at least two reasons.

Its reliance on Buster and Morris was wholly mis-

placed. As shown above, Buster and Morris were cases

of express congressional delegation and federal en-

forcement, and the “tax” was upheld as a proprietor’s

trespass fee, not an act of true governmental power.

Neither congressional delegation nor federal enforce-

ment was present in /ron Crow.

Secondly, and perhaps more importantly, to the ex-

tent that Jron Crow upheld tribal power because no

federal statute withdrew it, the holding was repudiated

by this Court in Oliphant. 98 S. Ct. at 1021. As shown

above, Oliphant and Wheeler define the area of sover-

eignty which has not been divested as encompassing

only those relationships between the tribe and _ its

members. A tribal tax on nonmembers is inconsistent

with the tribe’s dependent status, and therefore can-

not withstand the rule of Oliphant and Wheeler.

The Eighth Circuit showed similar confusion in

Barta v. Oglala Sioux Tribe, 259 F.2d 553 (8th Cir.

1958). There, the power to tax was based upon the

tribe’s proprietary rights in the land, not true govern-

mental powers. The court relied upon Buster and

Morris, both of which were cases involving congres-

sional delegation, federal enforcement, and proprietary

powers. Indeed, the tax in Barta went to the United

States and not the tribe. Moreover, the case was

brought by the United States on behalf of the tribe

and not by the tribe itself. And, of course, like /ron

22

Crow, to the extent that the court ruled that the tribe

had all powers not expressly withdrawn by Congress,

Barta has been rejected by this Court in Oliphant. 98

S. Ct. at 1021.

To summarize, the pre-Oliphant cases relating to

tribal taxation of nonmembers fall into two groups.

Morris v. Hitchcock and its progeny merely uphold the

tribe’s right as a proprietor of land to condition entry,

and do not uphold true governmental power. Where

~ the conditions of entry have been established, the tribe

is without power to change them. Even Felix S. Cohen

acknowledged that Morris v. Hitchcock and its descen-

dants were based upon the proprietary power of a

tribe to exclude nonmembers, and not tribal self-

government. F. Cohen, Federal Indian Law 266-67

(U.N.M. ed. 1942). Even as to proprietary powers, con-

gressional delegation and federal enforcement were

present.

The other group, the two Eighth Circuit cases, have

confused proprietary rights with governmental powers.

To the extent they uphold tribal governmental power

over nonmembers, the principle upon which they are

based has been rejected by Oliphant.

IV.

WISE PUBLIC POLICY MILITATES

AGAINST THE ASSERTION OF TRIBAL

CIVIL REGULATORY POWER AND

JURISDICTION OVER NONMEMBERS.

Unlike any other governmental entity in the United

States, an Indian tribe is a closed unit. Even a non-

Indian owner of fee patented land within the bounda-

ries ef an Indian reservation is not and cannot be a

member of the tribe. Indeed, to permit such member-

ship would wholly frustrate the purpose of permitting

23

reservation Indians to make their own rules and be

governed by them. As the Court implies in Oliphant,

98 S. Ct. at 1022, the exercise of general tribal power

over nonmembers raises enormous constitutional prob-

lems. There is perhaps no constitutional value more

central to our notion of political justice than the prin-

ciple that subjection to governmental power

presupposes the right to participate on an equal basis

in the control of that power.'' Government by consent

of the governed is the central theme of American de-

mocracy. This Court recently stated that “[i]n this

Nation each sovereign governs only with the consent of

the governed.” Nevada v. Hall, 47 U.S.L.W. 4261, 4266

[U.S. Mar. 5, 1979]. Non-Indian citizens of the United

States have never consented to tribal governmental

power. Indeed, it is the tribe and its members who

have consented to government by the United States.

Since tribal members have consented to tribal govern-

ment, the exercise of extraconstitutional powers by the

tribe over them (under Wheeler) creates no problem.

But non-Indian Americans have consented to govern-

ment only under the Constitution. The exercise of

extraconstitutional powers by the tribe over them

within the borders of the United States violates the

social contract.

'' This central principle finds expression in the “one person,

one vote” cases which hold that any general purpose governmen-

tal entity must allow equal franchise to all persons. City of

Phoenix v. Kolodziejski, 399 U.S. 204, 90 8. Ct. 1990 (1970); Had-

ley v. Junior College District of Metropolitan Kansas City, 397

US. 50, 90 S. Ct. 791 (1970); Kramer v. Union Free School Dis-

trict, 395 U.S. 621, 89 S. Ct. 1886 (1969); Avery v. Midland

szunty, 390 U.S. 474, 88 S. Ct. 1114 (1968); Cf. Reynolds v. Sims,

377 U.S. 533, 84 S. Ct. 1862 (1964).

24

This Court recognized that the exercise of tribal

power over nonmembers would be an “unwarranted

intrusion on their personal liberty,” and is therefore

precluded by the overriding sovereignty of the United

States. Oliphant, 98 S. Ct. at 1021. The intrusion is

enormous since the exercise of tribal power within its

proper sphere is not generally constrained by the Bill

of Rights,'* and federal or state jurisdiction does not

exist to entertain claims under the Indian Civil Rights

Act, 25 U.S.C. §§ 1301-1303 (1970).'"° Since the tribe’s

interest in self-government is not a fundamental right,

Washington v. Confederated Bands and Tribes,

U.S. _, 99 S.Ct. 740, 761 (1979), any comparison of the

interests at stake must result in the conclusion that

tribes are without power to tax nonmember non-

Indians.

CONCLUSION

This is a case in which the major issue is the power:

of the state to tax non-Indians who purchase cigarettes

on Indian reservations. Tribal power to tax non-

Indians arises only in a collateral way and then only if

this Court finds that the legal incidence of the tribal

tax is on the non-Indian purchaser. Should this Court

find that the legal incidence of the tribal tax is not on

the non-Indian, then the issue of tribal taxation of

non-Indians vanishes.

If, on the other hand, this Court finds that the legal

incidence of the tribal tax falls on the non-Indian pur-

chaser, then this case could implicate profoundly more

important interests than the simple sale of cigarettes

'* United States v. Wheeler, 435 U.S. 313, 98 S. Ct. 1079

(1978); Talton v. Mayes, 163 U.S. 376, 16 S. Ct. 986 (1896).

'’ Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S. Ct. 1670

(1978).

25

to non-Indians on Indian reservations. Many non-

Indians live on Indian reservations and others do busi-

ness there. The assertion of tribal governmental power

over non-Indians can occur and has occurred in mani-

fold ways, each one of which implicates interests of

compelling importance, including taxation without

representation. If this Court reaches this issue, the

Court must find that tribal self-government does not

include the power to tax non-Indians.

The judgment of the district court must be reversed

for the reason chat either the legal incidence of the

tribal taxes does not fall on the non-Indian purchaser,

or, in the alternative, the power of the State of Wash-

ington to tax the non-Indian purchaser is not

preempted by tribal taxation for the simple reason

that the tribe has no power to tax non-Indian non-

members.

Respectfully submitted,

Frederick J. Martone

JENNINGS, STROUSS & SALMON

111 West Monroe

Phoenix, Arizona 85003

May, 1979 Attorneys for Amici Curiae

26

CERTIFICATE OF SERVICE

I, Frederick J. Martone, one of the attorneys for the

amici curiae and a member of the bar of this Court,

certify that all parties required to be served have been

served with the foregoing brief; specifically, that on

May 4, 1979, I caused to be deposited in a United

States Post Office at Phoenix, Arizona, with air mail

postage prepaid, three copies of the foregoing brief of

amici curiae addressed to each of the following:

The Hon. Wade McCree, Jr.

Solicitor General

Mr. Stephen R. Barnett

Deputy Solicitor General

Department of Justice

Washington, D.C. 20530

Mr. Steven S. Anderson —

Ziontz, Pirtle, Morisset,

Ernstoff & Chestnut

Pioneer Buiiaing

600 First Avenue

Seattle, Washington 98104

Mr. James B. Hovis

Hovis, Cockrill & Roy

P.O. Box 487

Yakima, Washington 98907

27

Mr. Richard H. Holmquist

Senior Assistant Attorney General

Department of Revenue

Temple of Justice

Olympia, Washington 98504

Frederick J. Martone

28

Appendix

TABLE OF CONTENTS

Page

TREATY WITH THE CHOCTAW AND

CREICIKASAW , FOGG ovcsissssisscscoccdtaendecdasGandscocecdecanades A-l

TREATY WITH THE CREEKS, ETC., 1856 .... A-2

TREATY WITH THE SEMINOLE, 1866 .......... A-3

TREATY WITH THE CHEROKEE, 1835 ......... A-4

A-1

TREATY WITH THE CHOCTAW AND

CHICKASAW, 1855.

* *

ARTICLE 7. So far as may be compatible with the

Constitution of the United States and the laws made

in pursuance thereof, regulating trade and intercourse

with the Indian tribes, the Choctaws and Chickasaws

shall be secured in the unrestricted right of self-

government, and full jurisdiction, over persons and

property, within their respective limits; excepting,

however, all persons, with their property, who are not

by birth, adoption, or otherwise citizens or members

_ of either the Choctaw er Chickasaw tribe, and all per-

sons, not being citizens or members of either tribe,

found within their limits, shall be considered intrud-

ers, and be removed from, and kept out of the same,

by the United States agent, assisted if necessary by

the military, with the following exceptions, viz: Such

individuals as are now, or may be in the employment

of the Government, and their families; those peacefully

travelling, or temporarily sojourning in the country or

trading therein, under license from the proper author-

ity of tae United States, and such as may be permitted

by the Choctaws or Chickasaws, with the assent of the

United States agent, to reside within their limits, with-

_ out becoming citizens or members of either of said

tribes. (emphasis added).

*x * *

A-2

TREATY WITH THE CREEKS, ETC., 1856

** *

ARTICLE 15. So far as may be compatible with the

Constitution of the United States, and the laws made

in pursuance thereof, regulating trade and intercourse |

with the Indian tribes, the Creeks and Seminoles shall

be secured in the unrestricted right of self-

government, and full jurisdiction over persons and

property, within their respective limits; excepting,

however, all white persons, with their property, who

are not, by adoption or otherwise, members of either

the Creek or Seminole tribe; and all persons not being

members of either tribe, found within their limits,

shall be considered intruders, and be removed from

and kept out of the same by the-United States agents

for said tribes, respectively; (assisted, if necessary, by

the military;) with the following exceptions, viz: such

individuals with their families as may be in the em-

ployment of the Government of the United States; all

persons peaceably travelling, or temporarily sojourning

in the country, or trading therein under license from

the proper authority of the United States; and such

persons as may be permitted by the Creeks or Semi-

noles, with the assent of the proper authorities of the

United States, to reside within their respective limits

without becoming members of either of said tribes.

(emphasis added).

A-3

TREATY WITH THE SEMINOLE, 1866.

* * *

ARTICLE 2. The Seminole Nation covenant that

henceforth in said nation slavery shall not exist, nor

involuntary servitude, except for and in punishment of

crime, whereof the offending party shall first have

been duly convicted in accordance with law, applicable

to all the members of said nation. And inasmuch as

there are among the Seminoles many persons of Afri-

can descent and blood, who have no interest or

property in the soil, and no recognized civil rights, it is

stipulated that hereafter these persons and their des-

cendants, and such other of the same race as shall be

permitted by said nation to settle there, shall have and

enjoy all the rights of native citizens, and the laws of

said nation shall be equally binding upon all persons

of whatever race or color, who may be adopted as citi-

zens or members of said tribe. (emphasis added).

* * *

A-4

TREATY WITH THE CHEROKEE, 1835.

* * *

ARTICLE 5. The United States hereby convenant and

agree that the lands ceded to the Cherokee nation in

the foregoing article shall, in no future time without

their consent, be included within the territorial limits

or jurisdiction of any State or Territory. But they shall

secure to the Cherokee nation the right by their na-

tional councils to make and carry into effect all such

laws as they may deem necessary for the government

and protection of the persons and property within

their own country belonging to their people or such

persons as have connected themselves with them: pro-

vided always that they shall not be inconsistent with

the constitution of the United States and such acts of

Congress as have been or may be passed regulating

trade and intercourse with the Indians; and also, that

they shall not be considered as extending to such citi-

zens and army of the United States as may travel or

reside in the Indian country by permission according

to the laws and regulations established by the Gov-

ernment of the same. (emphasis added).

* * *