# Petition — Merrion v. Jicarilla Apache Tribe > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0029%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1982 - **Citation:** 455 U.S. 130 ## Text In THE ~ Aupreme Court of the Unitel HAEL RODAK, JR., CLERR Ocroser TERM 1980 J. GREGORY MERRION AND Rosert L. BayYLess, d/b/a Merrion anp Baytess, Jerome T. McHvau, Cuase Or Company, Ducan Propuction CorporaTION, ConsoLipaTeD Or anp Gas, INc., SoutHLaND Royatty Company, TESORO PETROLEUM CorporaTION, AMERADA Hess CorpoRATION, Supron Enercy Corporation, Enercy Reserves Group, Inc., J. M. Huser Corporation, ContTINENTAL Ort Company, (now Conoco Inc.), AtTLaNntic RicHFIELD CoMPANY, Puiuuips PetroLeEumM Company, Tenneco Or Company, Gerry Om Company, Gur Om Corporation, Mos Om Corporation AND Oxy Perrro.evo, INc., Petitioners, V. JICARILLA APACHE TRIBE, JICARILLA APACHE TrrBaL CounciL, AND CEecIL ANDRUS, SECRETARY OF THE INTERIOR, Respondents. Ow Petition For A Writ Or Certiorart To THE Unitep States Court Or Appeats For Tue Tentu Crrovir PETITION FOR WRIT OF CERTIORARI Jason W. KELLAHIN KeELLAHIN & KELLAHIN P. O. Box 1769 Santa Fe, New Mexico 87501 Txomas H. Burton Telephone: (505) 982-4285 JoHN M. WIMBISH Bruce D. Buack P. O. Box 2197 CAMPBELL & Buack Houston, Texas 77001 P. O. Box 2208 Telephone: Santa Fe, New Mexico 87501 (718) 965-1030 Telephone: (505) 988-4421 Counsel for Petitioners i QUESTIONS PRESENTED 1. Whether the Constitution of the United States per- mits Indian tribes to exercise governmental powers of taxa- tion of production of oil and gas by non-Indians without congressional approval. 2. Whether the Court of Appeals can impute attri- butes of inherent sovereignty to include tribal powers of taxation, without support in and contrary to the record below. 3. Whether such a tax can be justified where it is not imposed as a condition of entering onto Indian lands under leases entered into by the tribe and approved by the Secre- tary of the Interior. 4. If Indian tribes have the power to tax oil and gas produced under valid leases approved by the Secretary of the Interior, whether that power is pre-empted on Execu- tive Order Indian reservations by 25 U.S.C. 398(c) and a total federal regulatory scheme. d. If Indian tribes have governmental authority to im- pose taxes on non-Indians, whether constitutional provi- sions protect such non-Indians from abuses of tribal authority. 6. Whether taxation of production of oil and gas by both the State and Indian tribes unduly burden interstate commerce. ‘i ii TABLE OF CONTENTS I iri sscccsnksncickssesstrocicoessvecsesaiaccosanevene? Siemens rs icacseusaccecesenonascesosevttniosacossseavoveses San sac snsbincecanhones Opinion ITE ick ucasccntachinanidombnsndensbevesdsinnicdcedsessoscanovoanes sista acctinosononasesasenvscobenssocsseoseoeonestccvesasossonvece Constitutional Provisions, Treaties, Statutes, and Executive i sapsteneunonensmanesonne a sss lei ntvedonnseocecooesonsnsveces Reasons for Granting the Wit .0...0........c:ccccccccsssscssesessesessesseces This Case Presents Important Questions of Federal Law Which Have Not Been, But Should Be, Settled By This iio sa scssssesng.sebcncuscensovoveseenseseossseceve 1. Do Indian Tribes Have the Power to Tax Non-Members as a Condition for Remaining on the Reservation Under i, SEE 2. If Indian Tribes Have Taxation Authority Over Non- Indians, Has Such Authority Been Preempted on Executive Order Reservations By 25 U.S.C. 398e? ..... 3. If Indian Tribes Have Governmental Authority Over Non-Indians, Must Non-Indians Be Accorded the Full Range of Constitutional Protections Against Abuses of ro . scvasgueneseonncnosobenbossecs 4. Does the Tribal Tax Unduly Burden Interstate iiss ssettsccsveccessonsssssscntsonovusensncocn ares svovnsis es ccuupavssbosavsnscbncceceoecocesecees J 17 ill TABLE OF AUTHORITIES Cases Cited PAGE Amoco Production Company v. Peter MacDonaid, No. CV- FREE CENA TD Sriciscisnsacccsasuinnonnionalcbanhainaiiicndininaians g Arizona Publie Service Company v. Cecil Andrus, No. CV FOES CHEE S gevecideisssishionintaadsaencgbouapeniaimenesetaninaiade 8 Blackfeet Tribe of Indians v. State of Montana, No. CV-78- Re CPR SD sassicbiccraccindseh ines taleinincineccaiedécpearsgnnedisnineaseaadiniibenss 9) Central Machinery Co. v. Arizona State Tax Comm., — U.S. — U.S. L.W.— (No. 78-1604, June 27, 1980) wo... eeeeeees 5 Cipriano v. City of Houma, 395 U.S. 701 (1969) wee 25 City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970) ............ 25 Conoco Ine. v. Shoshone and Arapahoe Tribes, No. C-80-0181 CRPUE OD scscacsansdiscainincksesheniihpaieeideamianabiadialibietadasteasieamanlibe 8,9 De Coteau v. District County Court, 420 U.S. 425 (1975) 17 Dean Milk Co. v. Madison, 340 U.S. 349 (1951) wee ceeeeee 26 Evans v. Cornman, 398 U.S. 419 (1970) uu....cccesesssesssesesereseessees 25 Groundhog v. Keeler, 442 F.2d 674 (10th Cir. 1971) ............ 23 Healy v. James, 408 U.S. 169 (1972) ............c:ccccoscsssocsssscesessevees 23 Kerr-MceGee Corp. v. Navajo Tribe of Indians, et al., CIV SER ONG) CRN) sectcttudlanssncsatientsaninisisinntscnebvenns 9, 24 Kerr-MeGee Corp. v. Navajo Tribe of Indians, No. CV-79- EE KEATON DS ssindeinieted Ataresssnniietinsacenctivsidanethiosnietesatecmmeantake 8 Late Corporation of the Church of Jesus Christ of Latter- Day Saints v. United States, 136 U.S. 1 (1890) wo 11, 12 McClanahan v. Arizona State Tax Commission, 411 U.S. SPE LADUE) ssnicinsiisagumapaaesnasaatnbiinaetiaes 9,12 Nevada v. Hall, 440 U.S. 410 (1979) .0..........ccoccssocscssossscossscssees 24 Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 ( RTF): ° cctksstnocscsith Depéiascujuniuepiitedubasiotdbeheiesiadetastatbavssacantbitbinn 15, 23, 24 Organized Village of Kai » v. Egan, 369 U.S. 60 (1962) ........ 17 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) wo... 24 Quechan Tribe v. Rowe, 531 F.2d 408 (9th Cir. 1976.00.00... 24 Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) woo. 16, 22 iv PAGE Salt River Project Agricultural Improvement and Power District v. Navajo Tribe of Indians, 9th Cir. No. CA fo ep ARES ES NA ieee ch SUED PES Me Ae ASN SPF DO Oe 8 Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225 (1964) .... 20 Southern R. Co. v. Greene, 216 U.S. 400 (1910) vce 23 © Southland Royalty Company v. Navajo Tribe of Indians, Bs ER Ee Eh SO Rate. NOTED 8 State of Washington v. Confederated Tribes of the Colville Indian Reservation, — U.S. —, 48 U.S. L.W. 4668 (June Ph PU aiinieievindchcenisetderinnsagnnionss 5, 6, 7, 8, 9, 10, 11, 13, 14, 17, 24 Terry v. Adams, 345 U.S. 461 (1958) ......eccccccoosssscosssssscssssesonees 25 Union Oil Co of Calif. v. Peter MacDonald, et al, CIV 79- BE Ss Sectibircilanak diac eatiddpaienst died nacindet en nicbanabiasinasonntickeiion 9 United States v. Kagama, 118 U.S. 375 (1886) voces 12,16 United States v. Sioux Nation of Indians — US — (No. 79- I I I sD 17 United States v. Wheeler, 435 U.S. 313 (1978) ccccccccseecseseee 13-14 Warren Trading Post Co. v. Arizona Tax Commission, 380 SES EY SAID sisdscitscics Seas cha esi desccctias Pence bedticantansnbcscdadaduaiednacs 20, 21 Western Live Stock v. Bureau of Revenue, 303 U.S. 250 2 RACIAL eSERRSS erent DCU nt ot EE NCR DE pre Me 27 White Mountain Apache Tribe v. Bracker, — U.S. —, U.S. L.W. — (No. 78-1177, June 27, 1980) wo. 5, 12, 16, 17, 18, 21 Constitution, Treaties and Statutes United States Constitution : I eed eked 2,15 Mietaete 1, Béotion 6, Clawpe 8 oc..cccchoscasccssesccssctevecsssosecoss carson: 2, 3, 26 I i 2,15 PUR UN IIE Boia cesinccccethncenicein coils scesenniinniedsiAeilarsioacte 2,15 MCRD BF, OCI BD BGG acc cacncacdasnsnconscsvsssesictszctcccncgeniane 2,15 Fi, fee aE ERT eee RA Weterares exci eller A UNC SSM ORE nn SAIN R ICR 2.13 ei seiolib tenceabsirncierncni a Acectndtetiddad viata eesti ce 2,15 po) gE DEON cr ao RA ae es a 2,15 RGR I PR a Ie ER LOR Re ee 2 I eiaiaakadenisssacezccuschantadietiemebadniel inks ck 2,15 I NI ‘2 Treaty of Guadalupe Hidalgo with Mexico, 1848, 9 9% __LenAy SIE a RRMLN NUTT S CIN F RE SIN OMNIS SPIT eee REE I, | ; 28,'ae ¥ PAGE Statutes: 25 U.S.C. § 71 (Act of March 3, 1871, ¢. 120, § 1, 16 Stat. SUID ‘sacbaicsabiipiaaicanmisannomebeiigerintetincaba he ienddeestnedciidddt eid Uae Sie oe 18, 20 25 US.C. §281 (Act of March 3, 1871, ¢. 120 § 3, 16 Stat. in, ee rT A AN OURS sea Bins eT Beit Alger, 20 25 U.S.C. § 396d (Act of May 11, 1938, e. 198, § 4, 52 Stat. SUMED | dnnseidiinstnnatuigacheincibenadaditiainiladinesium itt at eae ens Doan 20 25 U.S.C. § 398¢ (Act of March 3, 1927, ¢. 299, § 3, 44 Stat. TOOT seceiuitis bicadiStieepinincttlbateasecnsiasdabanmnecmmeiownnstioaa 2, 3, 4, 5, 17, 18, 19 25 U.S.C. § 415 (Act of Aug. 9, 1955, ¢. 615, § 1, 60 Stat. FF Oe IED esiiviissvecmninnsvensnsivntinnianatacsidisatiaiebbabanaiilanabinnile 20 25 U.S.C. § 461, et seq, § 476-477 (Indian Reorganization Act of June 18, 1934, c. 576, § 1, et seq., 48 Stat. 984 et Og NED iinesecssiniaitegnniennisonisnisnntlescdstniciaattnaa teeta. 2, 3, 20 28 U.S.C. § 1254(1) (Act of June 25, 1948, ¢. 646, 62 Stat. GE duction Company vy. Peter MacDonald, et al., CV-79-155-B (D.N.M.); Kerr-MeGee Corp. v. Navajo Tribe of Indians, rs 7) to the amicus brief filed below by the National Congress of Indians, in 1978 at least 55 tribes were imposing various forms of tribal taxes on non-Indians: 1. Do Indian Tribes Have the Power to Tax Non- Members as a Condition For Remaining on the Reser- vation Under Pre-Existing Contracts? The majority opinion of the Court of Appeals framed the question of tribal jurisdiction over the non-Indian Petitioners as “the bald issue of an Indian tribe’s taxing power without benefit of reservations of authority in a treaty.” (Appendix, p. 13). The Court of Appeals held that “the tribe has the inherent power to levy a privilege tax on the occupation of severing oil and gas from reservation land even though the tax falls on nonmembers.” (Appen- dix, p. 15). Petitioners submit the Court of Appeals below confused the sovereignty of the United States government with the proprietary rights of Indian tribes by referring to the power to exclude or condition entry retained by any property owner as a “sovereign power.” In attempting to excavate the legal foundation for the tribal power to tax non- Indians, the Court of Appeals majority said: “But two different sovereign powers have been re- lied upon — the power to tax, e.g., Cherokee Indians — Export Tax on Hay, 23 Op. Att’y Gen. 528 (1901), or the power to exclude non-members from the reserva- tion and set the terms upon which such persons could et al,, CV-79-383-M (D.N.M.); Blackfeet Tribe of Indians v. State of Montana, et al., CV-78-61 GF (D. Mont.) ; Conoco Inc. et al. v. Shoshone and Arapahoe Tribes, et al,, supra; Kerr- McGee Corp. v. Navajo Tribe of Indians, et al. CIV 80-247- PHX-wpe (D. Ariz.) ; Union Oil Co. of Calif. v. Peter Mac- Donald, et al., CIV 79-738 (D.N.M.). 10 enter and do business therein. 2.g., Buster v. Wright, 135 F. at 950.” (emphasis supplied) (Appendix A, p. 13). In discussing the origins of tribal sovereignty the Court of Appeals purported to find a “commonly shared presump- tion of Congress, the Executive Branch, and the lower federal courts... that the tribes retain the power to levy a tax that falls upon non-members doing business on the reservation.” (Appendix A, p. 12). As the earliest pro- nouncement of the Executive Branch cited by the Court of Appeals indicates, such tribal power was generally traced to proprietary rights. In 18 Op. Att’y Gen. 36 (1884), Attor- ney General Phillips compared the tribes to proprietary innkeepers and made it clear their taxation powers did not apply to persons rightfully on the reservation: “In the absence of treaty or statutory provision to the contrary, the Choctaw and Chickasaw nations have power to regulate their own rights of occupancy, and to say who shall participate, and upon what conditions, and hence may require permits to reside in the nations from citizens of the United States, and levy a pecuniary exaction therefor... I submit that, whatever this may mean, it does not limit the right of these tribes to pass upon the question, who... shall share their occupancy, and upon what terms....The serious words ‘jurisdic- tion’ and ‘self-government’ are scarcely appropriate to the right of a hotel keeper to prescribe rules and charges for persons who became his fellow occupants.” 18 Op. Att’y Gen. at 36-7 (1884), The proprietary foundation of tribal authority to tax is important in the instant case because the Jicarilla Tribe clearly did not have the right to impose a license fee as a condition on Petitioners’ right to enter tribal lands or engage in business thereon. Petitioners had executed leases with the Jicarillas long before any Jicarilla tribal taxes 11 were conceived or imposed. These leases set specific bonus, rental and royalty payments to be made by the Petitioners to the Tribe and such provisions were expressly approved by the United States Secretary of the Interior. Tracing the source of tribal authority to tax to the power to exclude is particularly appropriate in the case of a tribe such as the Jicarilla Apaches. Unlike many Indian tribes, the Jicarillas were not an organized and existing sovereign government at the time the Constitution was signed. As Chief Judge Seth pointed out in his dissent below, the Jicarillas totally lacked any central authority and merely banded together for purposes of military defense or ag- gression. (Appendix 4 p. 32). When the United States acquired the New Mexico territory from Mexico in the 1848 Treaty of Guadalupe Hidalgo, there was no existing Jicarilla governmental authority. (Appendix A p. 30-33). Any governmental sovereignty possessed by Jicarillas must, therefore, have been expressly granted by the United States subsequent to acquisition of this territory. These historical limitations on Jicarilla sovereignty, ar- ticulated so cogently in Judge Seth’s dissent, are completely consistent with the construction by this Court in Late Cor- poration of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1890) of the effect of the Treaty of Guadalupe Hidalgo upon the territory annexed. In Latter-Day Saints, this Court found that from the moment the United States acquired lands from Mexico by virtue of the Treaty of Guadalupe Hidalgo, the United States was the only sovereign in the territory and all governmen- tal power derived from that source: “Having rightfully acquired said territories, the United States Government was the only one which could impose laws upon them, and its sovereignty over them was complete. No state of the Union had any 12 such right of sovereignty over them; no other country or government had any such right. These propositions are so elementary, and so necessarily follow from the conditions of things arising upon the acquisition of new territory, that they need no argument to support them. They are self-evident.” 136 U.S. at 42-3. (empha- sis supplied). It is clear that this Court intended the same rule to apply to tribal governments since only four years prior to the rule as enuciated in Latter-Day Saints, this Court had de- cided United States v, Kagama, 118 U.S. 375 (1886). In- deed, this Court recognized the difficulties of integrating tribal sovereignty into the dual Federal-State system cre- ated by the Constitution in White Mountain Apache Tribe v. Bracton, —U.S.—, (No. 78-1177, June 27, 1980). In recognizing the continuing validity of Kagama, Justice Marshall, speaking for the Court opined: “The status of the tribes has been deseribed as ‘an anomalous one and of complex character,’ for despite their partial assimilation into American culture, the tribes have retained ‘a semi-independent position . . . not as States, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided.’ McClanahan v. Arizona State Tax Comwm’n, 411 U.S. 164, 173, (1973), quoting United States v. Kagama, 118 U.S. 375, 381-382 (1886).” Petitioners respectfully submit that this Court discussed Indian taxation authority in State of Washington y. Con- federated Tribes of the Colville Indian Reservation, — U.S. —, 48 U.S.L.W. 4668 (1980) fairly raised only the ques- tion of the applicability of state cigarette and motor vehicle taxes on Indian reservations. Colville involved state sales taxes by the State of Washington against non- members making purchases of cigarettes and tobacco on 13 the reservation, and motor vehicle taxes on tribal mem- bers residing on the reservation. In Colville, the lower court ruled against the applicability of the state taxes to non-members on the reservation. This Court reversed in this respect, upholding the authority of the state not only to impose the taxes on non-members on the reservation but also to require the tribes to keep records for and collect the state taxes and to assert state civil and criminal jurisdiction over the Indian tribes to enforce the state taxes. This Court affirmed the lower court in Colville only with respect to denying applicability of the state motor vehicle tax on tribal members, quite a different question than those presented here with regard to Indian taxation of non-members, Mr. Justice Rehnquist in Colville, supra, recognized the lack of a coherent doctrine on the question of Indian taxa- tion and turned again to the principle of federal preemp- tion as the basis for analysis of the issue. He pointed out that McClanahan vy. Arizona State Tax Commission, 411 U.S. 164 (1973), did not resolve to what extent residual Indian sovereignty in the total absence of federal treaty obligation or legislation would still be recognized. 48 U.S.L.W. 4680, and note 2. In United States vy. Wheeler, 435 U.S. 313 (1978), this Court found that Indian tribes do not possess sovereignty to the same extent or from the same source as that of the United States Government. The Court pointed out that “the sovereignty that the Indian tribes retain is of a uniaue and limited character.” 435 U.S. 323. Justice Stewart, in the Court’s unanimous opinion, described the area of sover- eignty necessarily withdrawn as a result of dependent tribal status: “The areas in which such implicit divestiture of sov- ereignty has been held to have occurred are those 14 involving the relations between an Indian tribe and nonmembers of the tribe ... . These limitations rest on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily in- consistent with their freedom independently to deter- mine their external relations.” 435 U.S. at 326. While this Court stated there was no implicit divestiture of the tribe’s inherent powers in Colville,’ that statement was grounded on the lack of an overriding federal interest that would be frustrated by tribal taxation in that case. 48 U.S.L.W. at 4673. To the contrary, in the present case there is such an overriding interest. It is an issue of vital significance to the Western states whether Indian tribes will be allowed to tax the same mineral production already taxed by the States under congressional authority, since multiple taxation here could well overburden mineral production to the point of abandonment or confiscation by the tribes, sans tax. This presents an issue of considerable federal significance. The Court of Appeals below, erroneously attempted to predicate Indian sovereignty on the Commerce Clause of the United States Constitution. The majority of the Court of Appeals implicitly, and Judge McKay’s concurrence ex- plicitly, assume that by mentioning “Indian tribes” in the Commerce Clause of the Constitution, the founding fathers intended such tribes to assume general governmental au- thority within the territorial boundaries of their reserva- tion. (Appendix, p. 10, 15, 25). This Court rejected any such 8 Colville, relying on Washington v. Yakima Indian Nation, 439 U.S. 463 (1979) expressly upheld the state’s assumption of both civil and criminal jurisdiction over the tribes —a result in- congruous with the notion of tribal sovereignty urged by the Apaches and supported by the Court of Appeals here. 15 interpretation of the Commerce Clause in United States v. Kagama, 118 U.S. 375 (1886), where it concluded that there is no legitimate sovereignty contemplated for Indian tribes within the Constitutional framework. In a passage quoted with approval in Oliphant v. Suquamish Tribe, 435 U.S. 191 (1978), the Court said: “Indians are within the geographical limits of the United States, The soil and the people within these limits are under the political control of the government of the United States or of the States of the Union. There exists within the broad domain of sovereignty but these two.” 118 U.S. at 379. The Supreme Court’s recognition of the fact the Constitu- tion fails to reflect any general governmental power for Indian tribes is also supported by historical documents indicating its draftsmen did not contemplate a general governmental role for Indian tribes. For discussion, see Martone, American Indian Tribal Self-Government in the Federal System: Inherent Right or Constitutional License? 51 Notre Dame Lawyer, 600 (1976). To grant Indian tribes the general governmental author- ity bestowed by the Court of Appeals would directly con- travene the entire dual system of federal-state government established by the Constitution’. Dissenting from the ma- jority below, Chief Judge Seth noted that the United States and the states are the only two governmental entities contemplated by the Constitution. To allow Indian tribes sovereignty within the territorial boundaries of a state, but not subject to state control, is inconsistent with the federal concept of our Constitutional system: ® Article I; Section 1; Article II, Section 1; Article III, Section 1; Article IV; Article V; Article VI; Article VII; and the Tenth Amendment (Appendix E). 16 “The Constitution contemplates that the states are to create within their boundaries the counties, parishes, cities, and villages. The states thus establish all the local bodies and all entities having governmental pow- ers within their boundaries. The federal government, under its residual powers, retained no authority to create governmental bodies within the states.” (Appen- dix A, pp. 33-34). To grant Indian tribes the sovereignty over non-Indians urged by the majority of the Court of Appeals would be to elevate such tribes to a level equal to or greater than that of States of the Union. In his concurring opinion, Judge McKay, equating tribes with federal municipalities, ex- pressly recognized the implications of the majority position in attributing “police powers, regulatory power, or fiscal powers” to Indian tribes. (Appendix, p, 28). This approach would require that reservation enclaves be carved out of the existing states to accommodate 287 tribal governments". The states would have absolutely no control over the exercise of governmental authority within those Indian enclaves existing within their borders. As this Court has expressly recognized in United States v. Kagama, 118 U.S. 375, 381 (1886), the semi-independent posi- tion of Indian tribes to regulate their internal and social relations does not give tribes governmental power to the same extent as that granted the states. Cf, White Mountain, Supra, Slip. Op. pp. 5, 6 The policy pur- poses underlying the doctrine of “tribal sovereignty,” including inter alia the preservation and development of tribal customs and religion, may be fully achieved without subjecting other Americans to tribal jurisdiction. Peti- tioners respectfully submit our federal system was not 1° Santa Clara Pueblo v. Martinez, 436 U.S. 49, at 65, n. 21 (1978). 17 designed to, and cannot, accommodate such broad govern- mental authority by an entity not recognized by the Con- stitution. 2. If Indian Tribes Have Taxation Authority Over Non- Indians, Has Such Authority Been Preempted on Executive Order Reservations by 25 U.S.C. § 398c? The right of tribal self-government is ultimately de- pendent on and subject to the broad power of Congress. White Mountain Apache Tribe v. Bracker, — U.S.—, (No. 78-1177, 1980). Unquestionably one of the critical bell- wethers in determining the interests of the states and Indian tribes in regulating the activities of non-Indians on a reservation is the intent of Congress. Colville, 48 U.S.L.W. 4674, 4676, 4679. Petitioners submit such Congressional intent to preempt any tribal taxation power possessed by the Jicarillas is expressed in 25 U.S.C. 398e."! Although treaties were signed by representatives of the United States Army and Jicarilla Apache leaders, none were ever ratified by Congress. In 1871, by the provisions of 25 U.S.C, § 71, Congress recognized the tribes were no longer regarded as sovereign nations but were regulated by Congressional statute. De Coteau v. District ¢ ‘ounty 125 U.S.C. § 398¢. reads in full: Taxes may be levied and collected by the State or local authority upon improvements, output of mines or oil and gas wells, or other rights, property, or assets of any lessee upon lands within Executive order Indian reservations in the same manner as such taxes are otherwise levied and collected, and such taxes may be levied against the share obtained for the Indians as bonuses, rentals, and royalties, and the Secretary of the Interior is hereby authorized and directed to cause such taxes to be paid out of the tribal funds in the Treasury; Provided, that such taxes shall not become a lien or charge of any kind against the land or other property of such Indians. Mar. 3, 1927, ¢. 299, § 3, 44 Stat. 1347. 18 Court, 420 U.S. 425, 4382 (1975) Cf. Organized Village of Kake v. Egan, 369 U.S. .60, 72 (1962). Since no Jicarilla treaty was ratified by Congress prior to 1871, when it ter- minated recognition of the remaining recalcitrant Indian bands, a series of Executive Orders relating to the Jicarillas was promulgated and revoked. (See, Seth Dissent, Appen- dix A, pp. 34-35 and Appendix H). Finally, a location was chosen and a reservation created for the Jicarillas by Executive Order. In light of the purposes of 25 U.S.C. § 71 and the marked change in attitude it represented, Congress adopted a somewhat hostile attitude toward reservations created ex- clusively by the President after 1871. It is from this histori- cal perspective that “the broad policies that underlie” 25 U.S.C. § 398¢. must be judged. White Mountain Apache Tribe v. Bracker, supra, slip opinion at 8. Cf. United States v. Sioux Nation —U.S.—, slip op. at 431 June 30, 1980). During the long debate on this Act, Senator Bratton, who subsequently became a judge on the Tenth Cireuit Court of Appeals, explained the legal infirmities of this Executive Order process: “Upon the question of this title, the Executive has set apart these reservations by proclamation from time to time since 1871 without any express authority from Congress. It is a practice that has been followed, and it has been recognized inferentially or indirectly from time to time by Congress. However, when we deal with the question of title to these lands, we are confronted with this situation: We have about 22,000,000 acres of land that at one time belonged to the United States. If the government does not own the title now, it is by virtue of presidential proclamations divesting the government of that title and vesting it in the Indians. “The Constitution provides that— ‘The Congress shall have power to dispose of and make all needful 19 rules and regulations respecting the territory or other property belonging to the United States.’ If the Indians own the title to these lands so that they own the min- erals under them, the President has vested that title in them by presidential proclamation in the face of a Constitutional provision vesting that authority in the Congress.” 67 Cong. Ree., 10995 (1926). (See, also 67 Cong. Ree. 10915; 10910 (1926)). That Congress would not have condoned tribal taxa- tion of non-Indians is clear from the history and debate surrounding the passage of 25 U.S.C. § 398¢. This statute was adopted as a compromise between those who felt the states were clearly entitled to all the royalties on oil and gas severed from Executive Order Indian reservations and those who felt the tribes should get a portion of such royalties. Indeed a recent Congressional study recognized that Indians have traditionally received royalties rather than taxes as revenue from mineral production on their land and implicitly acknowledged that 25 U.S.C. 398e., should be repealed in order to allow tribal taxation!, Petitioners submit, therefore, that if Indian tribes have the inherent power to tax non-Indians generally such power has been preempted by Congress as to oil and gas taxation on Executive Order Indian Reservations". Even if Congress did not intend 25 U.S.C. 398(e) to grant the states exclusive taxation authority over oil and gas produced from Executive Order Reservations, the overall Congressional attention to Indian leasing indicates a pre- 1266 Cong. Rec, 999, 2234, 2739, 5433-4, 67 Cong. Ree. 10912, 10915-19, 10995, 11397, 68 Cony. Ree, 4569. 18 Final Report of the American Indian Policy Review Commis- sion at 81 344-45, ‘See Barrett, J., dissent, Appendix, p, 52, tax non-Indians Mineral Lessees, 19 Nat. Res. J. 969 at 991 (1979), 20 eu.plive intent. Federal Regulations govern every minute detail of Indian leasing. This federal regulatory scheme, therefore, totally preempts any tribal tax not recognized therein. The Secretary of the Interior is given broad su- pervisory authority over tribal lands and assets under 25 U.S.C. § 464. Under the terms of 25 U.SC §§ 81 and 415, the Secretary is charged with the duty to approve or dis- approve contracts and leases with the Indian tribes. Under 20 U.S.C. § 396d, “all operations under any oil, gas or mineral lease issued pursuant to the terms of any act af- fecting restricted Indian lands shall be subject to the rules and regulations promulgated by the Secretary of the In- terior.” The Secretary has exercised these statutory man- dates in Part 171 of Title 25 of the Code of Federal Regu- lations. These regulations govern, among other matters, the method of acquiring leases from the tribes ($$ 171.1a to 171.9), the term of such leases (§ 171.10), manner of pay- ments (§ 171.12), rates of rentals and royalties under oil and gas leases (§ 171.13), the time for making royalty pay- ments (§ 171.16), waste prevention (§ 171.19), restrictions on and approval of oil and gas operating plans (§§ 171.20 and 171,21), assignment of lease interests (§ 171.26) and cancellation of leases (§ 171.27). Most specifically the Code of Federal Regulations prohibits any unilateral increase in the remuneration required under the leases, 25 C.F.R. 171.28. The comprehensive character of federal reguulation over oil and gas operations on tribal lands leaves little, if any, room for regulation by Indian governmental entities. When the laws of an inferior sovereign “touch upon” the area of a comprehensive federal policy, the latter “may not be set at naught or its benefits denied” by the laws of the lesser or dependent sovereign. Sears, Roebuck & Co.. v. Sti f- fel Co., 376 U.S, 225, 229 (1964). In Warren Trading Post Co. v. Arizona Tax Commission, 3880 U.S. 685 (1965), this 21 Court addressed the question of whether Congress's delega- tion of authority to the Commissioner of Indian Affairs over trading on the reservations preempted state taxation of reservation traders. The Court reviewed the Commissioner's “detailed regulations” concerning traders and concluded: “These apparently all-inclusive regulations and the statutes authorizing them would seem in themselves sufficient to show that Congress has taken the business of Indian trading on reservations so fully in hand that no room remains for state laws imposing additional burdens upon traders.” 380 U.S. at 690. The Court held: “Indian traders trading on a reservation with res- ervation Indians are immune from a state tax like Arizona’s... because Congress in the exercise of its power granted in Article 1, §8, has undertaken to regulate reservation trading in such a comprehensive way that there is no room for the States to legislate on the subject.” Id. at 691 n.18. As in Warren Trading Post, the Secretary's “apparently all-inclusive regulations” over reservation oil and gas op- erations, together with the statutes that authorize them, would seem in themselves sufficient to show that Congress has taken the matter so fully in hand that no room remains for additional tribal taxes “imposing additional burdens” on oil and gas lessees. “There is no room for these taxes in the comprehensive federal regulatory scheme.” While Mountain, — U.S. — (No. 78-1177, 1980), slip opinion pp. 11-12. “The imposition of the taxes at issue would under mine that policy in a context in which the Federal Gov. ernment has undertaken to regulate the most minute de- tails of [oil and gas] production”. [bid, 3. If Indian Tribes Have Governmental Authority Over Non-Indians, Must Non-Indians Be Accorded the Full 99 oe Range of Constitutional Protections Against Abuses of Tribal Authority? A further important question of federal law which has not been, but should be, settled by this Court is the nature and extent of Constitutional guarantees which must be extended non-Indians as a protection against the excesses of any sovereignty found to exist in Indian tribes. Peti- tioners submit that this Court’s decisions holding that Indian tribes need not extend constitutional rights to their own members support the proposition that Indian tribes were not intended to have coercive governmental authority over non-Indians. In Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978); for example, this Court recognized: “As separate sovereigns pre-existing the Constitu- tion, tribes have historically been regarded as un- constrained by those constitutional provisions framed specifically as limitations on federal or state authority.” 436 U.S. at 56. The. facts involved and language employed in Santa Clara emphasize the lack of Constitutional inhibitions on tribal government apply only when the tribe is deal- ing with its own members in areas traditionally regu- lated by Indian custom. A careful review of the opinion in Santa Clara leads to the conclusion that this Court recognized that Constitutional restraints upon tribal gov- ernment were not necessary because tribal government has authority only on internal matters traditionally governed by Indian practices and customs, Justice Marshall, speaking for the Court, clearly articulated the parameters of tribal authority as involving strictly internal tribal matters. “Indian tribes are ‘distinct, independent political communities, retaining their original natural rights’ in matters of local self-government. Although no longer ‘possessed of the full attributes of sovereignty,’ they 22 remain a ‘separate people, with the power of regulating their internal and social relations.” 436 U.S. at 55. Given this Court’s holdings that Indian tribes are not constrained by the Constitution, two alternatives exist: (1) either such tribes cannot have authority over non- Indians; or (2) non-Indian citizens can be totally deprived of their Constitutional rights by Indian tribes. Petitioners submit that this Court’s decision in Santa Clara supports the first alternative. Logic dictates that since tribal customs and traditiorts differ from the Anglo-American concept of jurisprudence, the United States Constitution need not be injected into the relationship between tribal members and their government. Groundhog v. Keeler, 442 F.2d 674 (10th Cir. 1971). To hold, however, that non-Indians lose their Constitutional rights merely by entering an Indian reservation would create 287 enclaves within the territorial boundaries of the United States, on which non-Indian citizens can be totally deprived of their Constitutional rights. This contravenes the long established principle that the Constitution is bind- ing on all within the territory of the United States and does not contemplate such exempt enclaves. Southern R. Co. v. Greene, 216 U.S. 400, 412 (1910) ; ef. Healy v James, 408 U.S. 169, 180 (1972). If Indian tribes are to be given general governmental authority over non-Indians, such tribes must be subject to all the limits on governmental authority provided in the Constitution’®, Without such Constitutional restraint, tribal '® Officials of the Executive Branch charged with supervision of Indian tribal government have long recognized Indian self- government must operate within the limitations of the Constitu- tion. See, e.g. Letter from Under Secretary Hatfield Chilson quoted in Oliver, Legal Status of American Indian Tribes, 38 Ore. L.R. 193 at 243 (1959), 24 action could expropriate property worth hundreds of mil- lions of dollars and banish non-Indian citizens rightfully on reservations'®, As this Court recognized in Oliphant, tribal jurisdiction over non-Indians raises enormous Constitu- tional problems. 485 U.S. at 211-12. In Oliphant, this Court rejected the argument that tribal regulations could be applied to non-Indians without any regard for their Con- stitutional rights: “Since the formation of the Union and the adoption of the Bill of Rights, the United States has manifested an equally great solicitude that its citizens be protected by the United States from unwarranted intrusions on their personal liberty .. .” Oliphant v. Suquamish In- dian Tribe, supra. 435 U.S. at 210. In Colville, supra, this Court again recognized that any “exercise of tribal sovereignty would be inconsistent with the overriding interests of the National Government,” when the tribes do not accord the full protections of the Bill of Rights to non-Indians, 48 U.S.L.W. at 4673. There is no Constitutional value more central to our notion of political justice than that subjection to governmental power presupposes the right to petition and participate in that government on an equal basis. Indeed this Court has very recently reiterated that, “In '© When the enforcement of such tribal taxation involves the banishment of non-Indians from the reservation, cancellation of their leases and seizure of their property they require the criminal jurisdiction prohibited to the tribes. Quechan Tribe v. Rowe, 531 F.2d 408 (9th Cir. 1976); ef. Pennsylvania Coal Co. v. Mahon, 260 U.S, 393, 1922). The Navajo Tribal Counsel recently recognized this fact in arguing in favor of the tribes power of banishment and expropriation of property, “The power to tax must, by necessity, include the power to enforce the tax or it is meaningless: a ‘voluntary’ tax is no tax at all.” Kerr McGee Corp. v. Navajo Tribe of Indians, Ciy 80-247-PHX- WPC Memorandum In Support of Motion for Summary Judg- ment p. 17. 29 this nation each sovereign governs only with the consent of the governed.” Nevada v. Hall, 440 U.S. 410, 426 (1979). Participation in the deliberations and proceedings of an Indian tribal council is, however, unquestionably a right denied non-Indians. This principle can also be seen in this Court’s recent decisions which guarantee equal franchise to those substantially affected by governmental action See, e€.9., Cipriano v, City of Houma, 395 U.S. 701 (1969). To make a non-Indian subject to tribal government, when he is completely disinfranchised by the tribe would vio- late the Constitutional concept of equal protection. City of Phoenix vy, Kolodziejski, 399 U.S. 204 (1970); Evans v. Cornman, 398 U.S. 419 (1970); Terry v. Adams, 345 U.S. 461 (1953). The Court of Appeals would subject non-Indians to tribal governmental power without allowing them any right to petition or participate in tribal government. Chief Judge Seth, in dissent, clearly recognized this flaw in the majority reasoning, saying: “The state-created entities are the ones in which the opportunity for participation extended to all persons within the boundaries. These are the foundations of governmental authority as it exists in the United States.” (Appendix A, p. 34). Judge Seth also observed governmental “sovereign power” should not be attributed to Indian tribes precisely because of their failure to allow non-members to participate : “The sovereignty argument advanced by the Secre- tary must lose significance for purposes under consid- eration because non-members of the Tribe (including Indian non-members) are excluded from participation. This is an express exclusion based solely on Tribal membership. Perhaps this is how it should be for self- determination; however, such a group of Tribal mem- 26 bers excluding all others cannot exert governmental authority over those excluded. It is obvious that our whole governmental structure is based on representa- tion with an opportunity to participate. When this is provided, authority exists to govern.” (Appendix A, p. 35). 4. Does the Tribal Tax Unduly Burden Interstate Commerce? The Jicarilla tax would also place a multiple burden on interstate commerce in violation of Article I, Section 8, Clause 3 of the Constitution of the United States. The Court of Appeals majority opinion recognizes that New Mexico imposes four separate severance taxes upon the same oil and gas to which the Jicarilla Severance Tax would apply. (Appendix, p. 19). The majority, however, dismissed the multiple burden argument by stating: “It is beyond question that no state, with the excep- tion of New Mexico, has a sufficient connection with the occupation of severing oil and natural gas within the reservation to support a levy of a severance tax on lessee’s occupation. There is thus no threat of a mul- tiple burden emanating from this tax unless the possi- bility, which we assume is fact, of New Mewico levying an identical tax constitutes a multiple burden within the meaning of the Commerce Clause. That New Mexico may be able to impose an identical tax on leases does not implicate federal interest in maintaining the flow of interstate commerce at all, we believe.” (emphasis added) (Appendix A, pp. 19-20). Petitioners respectfully submit that the Court of Appeals ignores the Constitutional proscription against multiple burdens upon interstate commerce. The majority and con- curring opinions give Indian tribes the powers of a local government. If an Indian tribe is indeed analogous in gov- ernmental power even to a local government, then it is 27 clear that such tribal taxation must be subject to dual Commerce Clause scrutiny. Dean Milk Co. v. Madison, 340 U.S. 349 (1951). Taxation of a single event by more than one government works to the advantage of local commerce because such local commerce cannot be so frequently taxed. Western Live Stock v. Bureau of Revenue, 303 U.S. 250 (1938). If, as the Court of Appeals held, the Jiearilla tax is levied on the incident of severance of the oil and gas from the Jicarilla Reservation, then the Jicarilla tax con- stitutes an impermissible burden upon interstate commerce because New Mexico taxes the same “local” event. The Court of Appeals dismissed this burden since only two entities imposed such taxes on a single event. This high- lights the pernicious effect of the majority’s holding, which creates impermissible governmental enclaves within the territorial boundaries of the existing states. The creation of these “local” governments within the existing states, but not subject to the jurisdiction thereof, will allow “local taxes” by both tribal and state governments, The problem may be illustrated by the fact that California alone has 66 Indian reservations within its borders. Arizona’s mere 17 reservations occupy territory larger than 13 of the States, and cover one-third of Arizona’s 114,000 square miles'’, Such widespread establishment of Indian taxation would effectively destroy existing State taxation. The ma- jority opinion below creates a unique legal situation where several totally autonomous sovereign governments exist within the borders of a State of the Union and all ean tax without coordination or restriction, at least until the com- bined level reaches confiscation. 17 Federal and State Indian Reservation and Indian Trust areas, U.S. Department of Commerce (1974), 28 CONCLUSION Petitioners respectfully submit certiorari should be granted to settle the important questions of federal law raised: herein and to bring the judgment and opinion of the Court of Appeals below into conformity with the ap- plicable decisions of this Court governing Indian tribal sovereignty over non-Indians. Dated: 1 July 1980. Respectfully submitted, Jason W. KEeLLAHIN KewLuaHIN & KeLLAnIN P. O. Box 1769 Santa Fe, New Mexico 87501 (505) 982-4285 Bruce Dovenas Biackx CaMPBELL & Buack P. O. Box 2208 Santa Fe, New Mexico 87501 (505) 988-4421 Tuomas H. Burton Joun M. WiMsisH P. O. Box 2197 Houston, Texas 77001 (713) 965-1030 Counsel for Petitioners --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0029%3A01. Public record. Not legal advice.