# Amicus Brief — Washington v. Confederated Tribes of Colville Reservation

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1980
- **Citation:** 447 U.S. 134

## Text

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)

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).

* * *

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0026%3A17. Public record. Not legal advice.