Amicus Brief — Merrion v. Jicarilla Apache Tribe

~~

Nos. 80-11 and 80-15

A ES,

Inu the

Supreme Court of the Hnited States

OCTOBER TERM, 1980

J. GREGORY MERRION & ROBERT L. BAYLESS,

d/b/a MERRION AND BAYLESS, et al.,

Petitioners,

v.

JICARILLA APACHE TRIBE, et al.,

Respondents,

AMOCO PRODUCTION COMPANY AND

MARATHON OIL COMPANY,

Petitioners,

Vv

JICARILLA APACHE TRIBE, et al.,

Respondents.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE ON BEHALF OF MOUNTAIN STATES

LEGAL FOUNDATION AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

and

BRIEF OF THE MOUNTAIN STATES LEGAL

FOUNDATION AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

JAMES G. WATT

WILLIAM H. MELLOR III

R. NORMAN CRAMER JR.

Mountain States J.egal Foundation

1200 Lincoln — Suite 600

Denver, Colorado 80203

Telephone: (303) 861-0244

Attorneys for the Amicus Curiae

IER PS SAESATN PEE PEEP OE IIL NI TTT COTE I TE EIDE DIP FEEL EL LTE ALI TEE AES,

Nos. 80-1] and 80-15

Un the

Supreme Court of the United States

OCTOBER TERM, 1980

J. GREGORY MERRION & ROBERT L. BAYLESS,

d/b/a MERRION AND BAYLESS, et al.,

Petitioners,

Vv

JICARILLA APACHE TRIBE, et al..

Respondents,

AMOCO PRODUCTION COMPANY AND

MARATHON OIL COMPANY,

Petitioners,

V.

JICARILLA APACHE TRIBE, et al.,

Respondents.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE ON BEHALF OF MOUNTAIN STATES

LEGAL FOUNDATION AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

Mountain States Legal Foundation respectfully moves

this Court, pursuant to Rule 42 of the Rules of the United

States Supreme Court, for leave to file the annexed brief

amicus curiae. In support of this motion, the Foundation

states:

1. Mountain States Legal Foundation (the Founda-

tion), is a nonprofit, membership public interest legal

foundation. The Foundation is supported entirely by dona-

tions from its members and is dedicated to the legal advoca-

~~

cy of the values and concepts of individual liberties and eco-

nomic freedom. The Foundation takes an .nterest in ques-

tions of law having a national scope and especially those

that have a direct impact in the Mountain States region,

including the State of New Mexico where the instant case

arose.

2. The issue invoked in this case — the nature and

extent of Indian tribal sovereignty over nonmembers of

the tribe — has far-reaching ramifications for all nonmem-

bers who engage in on-reservation activities. Recent de-

cisions of this Court have partially addressed, but left

unresolved this critical issue. An examination of these far-

reaching ramifications is crucial to a well-reasoned explica-

tion of the tribes’ sovereign power. As amicus curiae, the

Foundation seeks to bring before this Court fundamental

considerations which form the basis of individual liberties

and that underscore the need for clarification of the nature

and extent of Indian tribal sovereignty.

3. These considerations, while directly applicable to

the instant case, transcend the specific interests of the

parties hereto and thus may not be adequately addressed

by the existing parties.

For the foregoing reasons, Mountain States Legal

Foundation respectfully requests that its motion for leave

to file the annexed brief amicus curiae, be granted.

Dated this 20th day of November, 1980.

James G. Watt

William H. Mellor, III

R. Norman Cramer Jr.

Mountain States Legal Foundation

1200 Lincoln — Suite 600

Denver, Colorado 80203

Telephone: (303) 861-0244

Attorneys for the Amicus Curiae

Nos. 80-11 and 80-15

In the

Supreme Court of the United States

OCTOBER TERM, 1980

J. GREGORY MERRION & ROBERT L. BAYLESS,

d/b/a MERRION AND BAYLESS, et al.

Petitioners,

v.

JICARILLA APACHE TRIBE, et al.,

Respondents,

AMOCO PRODUCTION COMPANY AND

MARATHON OIL COMPANY.

Petitioners,

V.

JICARILLA APACHE TRIBE, et al.,

Respondents.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF OF THE MOUNTAIN STATES LEGAL

FOUNDATION AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES -

INTEREST OF AMICUS

SUMMARY OF ARGUMENT

ARGUMENT

I. STATEMENTS BY THIS COURT REGARD.-

ING THE NATURE AND EXTENT OF

INDIAN TRIBAL SOVEREIGNTY ARE IN-

CONSISTENT AND CONTRADICTORY

Il. THE CONCEPT OF REPRESENTATIVE

GOVERNMENT PRECLUDES UNFET-

TERED TRIBAL JURISDICTION OVER

NONMEMBERS OF THE TRIBE

Ill. ALLOWING A TRIBE TO FUNDAMEN.-

TALLY CHANGE ITS VOLUNTARY

OBLIGATIONS UNDER A CONTRACT

THROUGH THE INSTITUTION OF A

“TAX” VIOLATES FREEDOM OF

CONTRACT

IV. ALLOWING THIS TYPE OF TRIBAL

TAXATION IS INCONSISTENT WITH

THE OVERRIDING FEDERAL INTEREST

IN ESTABLISHING A NATIONAL

ENERGY POLICY

CONCLUSION

CERTIFICATE OF SERVICE

10)

14

19

2]

il

TABLE OF AUTHORITIES

Page

CASES CITED

Avery v. Midland County, 390 U.S. 474 (1968). 1]

Berry v. Arapahoe and Shoshone Tribes,

420 F. Supp. 934 (D. Wyo. 1976) oc. ceccccccccceeeceoeeeeeees 16

Board of Regents v. Roth, 408 U.S. 564 (1972) 15, 16

Buster v. Wright, 135 F. 947 (8th Cir. 1905) 6, 8

The Cherokee Nation v. Georgia,

30 U.S. (5 Pet.) 1 (1831) ie 3,4

City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970)... 11

Conoco, Inc. v. Shoshone and Arapahoe Tribes,

No. L. 80-0181 (D. Wyo., filed June 23, 1980) 19

Dodge v. Nakai, 298 F. Supp. 17 (D. Ariz. 1968) 15

Ex Parte Young, 209 U.S. 123 (1908) 13

Groundhog v. Keeler, 442 F.2d 674 (10th Cir. 1971) .... 18

Hadley v. Junior College District of

Metropolitan Kansas City, 397 U.S. 50 (1970) 1]

Iron Crow v. Oglala Sioux Tribe,

231 F.2d 89 (8th Cir. 1956) 6,8

Jicarilla Apache Tribe v. Supron Energy Corp.,

479 F. Supp. 536 (D.N.M. 1979) 16

Johnson v. M’Intosh, 21 U.S. (8 Wheat.) | (1823) 3,4

Jones v. Meehan, 175 U.S. 1 (1899) 5

Kramer v. Union Free School District,

395 U.S. 621 (1969) paca 1]

Merrion v. Jicarilla A pache Tribe,

617 F.2d 537 (10th Cir. 1980) 6,15

Meyer v. Nebraska, 262 U.S. 390 (1923) 16

Morris v. Hitchcock, 194 U.S. 384 (1904) 6,7,8

Oliphant v. Suquamish Indian Tribe,

435 U.S. 191 (1978) muse Sy Os Oe

iii

Page

Perry v. Sindermann, 408 U.S. 593 (1972) 16

Puyallup Tribe v. Washington 2a of Game,

453. US. 165 (1977) 12,13

Reynolds v. Sims, 377 U.S. 533 (1964) 11, 13, 14

Roff v. Burney, 168 U.S. 218 (1897) 5, 12

Santa Clara Pueblo v. Martinez,

436 U.S. 49 (1978) . 12,13, 15, 16

Talton v. Mayes, 163 U.S. 376 (1896) 15

Turner v. United States, 248 U.S. 354 (1919) 12

United States ex rel. Mackey v. Coxe,

59 U.S. (18 How.) 100 (1855) 5

United States v. Kagama, 118 U.S. 375 (1886) 4,12

United States v. Quiver, 241 U.S. 602 (1916) 5

United States v. United States Fidelity & Guaranty Co.,

309 U.S. 506 (1940) 12

United States v. Wheeler, 435 U.S. 313 (1978) 2, 9

Washington v. Confederated Tribes of the

Colville Indian Reservation,

U.S. , 100 S.Ct. 2069 (1980) 2, 5, 7,8, 9,17

Wesberry v. Sanders, 376 U.S. 1 (1964) - 1]

William v. Lee, 358 U.S. 217 (1959) 5

CONSTITUTIONAL PROVISIONS

U.S. Const. art. I, §§ 1, 2 1]

U.S. pena art. I, § 8, cl. 3 | 4

U.S. Const. art. I, § 10, cl. | 15

U.S. Const. amend. XV ll

U.S. Const. amend. XVII 1]

U.S. Const. amend. XIX 1]

U.S. Const. amend. XXIV 1]

U.S. Const. amend. XXVI 11

STATUTES

8 U.S.C. § 1401(b)

de 5, St hl a RE SOT

25 U.S.C. 96 1901-1808

25 U.S.C. § 1301(2) ..

eee ee

25 U.S.C. § 1302(4)

04 60s)

Use sree

25 U.S.C. § 1302(10)

42 U.S.C. 58 6901-5917

42 U.S.C. §§ 6201-6214

iv

42 U.S.C. §§ 6831-6840

42 U.S.C. §§ 6851-6892

42 U.S.C. § 7111

42 U.S.C. § 7111 (1-2) |

OTHER

Final Report of the American Indian Policy

Review Commission (1977)

State of the Union Address, January 23, 1980, 1 U.S.

Code Cong. & Ad. News 135 (March 1980)

S. Brakel, American Indian Tribal Courts

The Costs of Separate Justice (1978)

18, 19

2

INTEREST OF AMICUS

Mountain States Legal Foundation (the Foundation)

is a nonprofit, membership public interest legal foundation.

The Foundation is supported entirely by donations from

its members and is dedicated to the legal advocacy of the

values and concepts of individual liberties and economic

freedom. As amicus curiae, the Foundation seeks to bring

before this Court fundamental considerations which form

the basis of individual liberties and that underscore the

need for clarification of the nature and extent of Indian

tribal sovereignty. These considerations, while directly

applicable to the instant case, transcend the specific inter-

ests of the parties hereto and thus may not be adequately

addressed by the existing parties.

SUMMARY OF ARGUMENT

Recent decisions of this Court, especially Washington

v. Confederated Tribes of the Colville Indian Reservation,

ecw U.S. ......, 100 S.Ct. 2069 (1980), have partially ad-

dressed, but left unresolved important issues which impact

all nontribal members who engage in on-reservation activi-

ties. These issues arise from statements by this Court that

impute a degree of sovereignty to Indian tribes which, if

carried to their logical extreme, will effectively create sep-

arate enclaves within this country that exercise all but a

few of the attributes of statehood, but without the tradi-

tional safeguards to protect individuals from governmental

excesses. Consequently, there is a need for clarification by

this Court of the exact nature and extent of sovereignty that

Indian tribes possess.

The instant case affords an excellent opportunity to

establish safeguards and clarify this confusing and contra-

dictory area of the law. It involves a unilateral modification

of a contract via taxation which the Tenth Circuit upheld

as a valid exercise of inherent sovereignty. If, as an attribute

of inherent sovereign power, the tribes are allowed to im-

3

pose such taxes directly upon nonmembers, the federal in-

terest of ensuring representative government is implicated.

Said implication occurs due to the fact that nonmembers

do not have, and generally cannot obtain, any voice in tribal

government. This case also underscores the conflict be-

tween the broad sovereignty claimed by the Jicarilla Apache

Tribe and freedom of contract. The ordinance in quescion

drastically alters the preexisting contractual rights and obli-

gations between the tribe and petitioners and thereby vio-

lates the liberty and property interests of the petitioners.

Finally, this Court must consider whether the type of ener-

gy development taxation imposed by the Jicarilla Apache

Tribe is compatible with the congressionally mandated na-

tional energy policy. The relationship between Indian tri-

bal sovereignty and each of these overriding federal inter-

ests will be explored in detail after an examination of the

existing contradictory nature of the Indian tribes’ sover-

eignty.

ARGUMENT

I. STATEMENTS BY THIS COURT REGARD.

ING THE NATURE AND EXTENT OF IN-

DIAN TRIBAL SOVEREIGNTY ARE INCON-

SISTENT AND CONTRADICTORY

Originally, the Indian tribes were truly sovereign na-

tions. However, as the settling of this continent progressed,

any claim to absolute sovereignty was extinguished by dis-

covery, conquest, and cession. The Cherokee Nation vw.

Georgia, 30 U.S. (5 Pet.) 1 (1831); Johnson v. M’Intosh, 2)

U.S. (8 Wheat.) 543 (1823). Consistent with this process of

discovery and conquest is the conclusion that the tribes

ceased to be regarded by the United States as foreign na-

tions. The fact that the Indian tribes are not foreign nations

is evidenced by the separate delineation in the Commerce

Clause which empowers Congress “[t]o regulate commerce

with foreign nations, and among the several States, and

4

with the Indian tribes.’’ U.S. Const. art. I, § 8, cl. 3 (em-

phasis added). Even though the tribes were not considered

foreign nations, they were, however, separate entities dealt

with by Congress through the treaty power until 1871. See

Act of March 3, 1871, 25 U.S.C. § 71 (1976).

By the end of the nineteenth century, this Court

characterized the status of the Indian tribes in the following

manner:

[T}hese 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. There may be cities, coun-

ties, and other organized bodies with limited legisla-

tive functions, but they are all derived from, or exist

in, subordination to one or the other of these. (em-

phasis added) .

United States v. Kagama, 118 U.S. 375, 379 (1886). Thus,

the tribes have not been equated with sovereign nations

per se. This less-than-sovereign status is underscored by the

tribes’ inability either to dispose of their own land without

the United States’ approval or to enter into any type of

relations with foreign powers. See, The Cherokee Nation

v. Georgia, supra; Johnson v. M’Intosh, supra. Such quasi-

sovereignty was further diluted by the Act of June 2, 1925,

recodified at 8 U.S.C. § 1401 (b) (Supp. III 1979), which

made all Indians citizens of the United States.

Consistent with these historical pronouncements is

this Court’s recent characterization of the nature of tribal

sovereignty in Oliphant v. Suquamish Indian Tribe, 435

U.S. 191 (1978) :

[T}he tribe’s retained powers are not such that they

are limited only by specific restrictions in treaties or

congressional enactments. As the Court of Appeals

5

recognized, Indian tribes are prohibited from exercis-

ing both those powers of autonomous states that are

expressly terminated by Congress and those powers

“inconsisent with their [dependent] status.” (emphasis

in original) .

Id. at 208 (quoting Oliphant v. Schlie, 544 F.2d 1007,

1009 (9th Cir. 1976)). Additionally, the ‘inconsistent

with their status” component of this potential limitation

was interpreted in Washington v. Confederated Tribes of

the Colville Indian Reservation, 100 S.Ct. at 2081, to en-

compass actions which are at odds with an overriding fed-

eral interest. Therefore, the tribes are indeed very limited

in the type of sovereignty that they can claim.

One aspect of sovereignty which the tribes consistently

have been allowed to exercise is that of self-rule. £.g.,

United States v. Wheeler, 435 U.S. 313 (1978) (allowing

the tribes to exercise criminal jurisdiction over tribal mem-

bers concerning crimes on reservation land) ; Williams v.

Lee, 358 U.S. 217 (1959) (allowing the tribes to enforce

tribal law in their own courts) ; United States v. Quiver,

241 U.S. 602 (1916) (allowing the tribes to regulate do-

mestic relations among tribal members) ; Jones v. Meehan,

175 U.S. 1 (1899) (allowing the tribes to prescribe rules

for inheritancé*of property) ; Roff v. Burney, 168 U.S. 218

(1897) and United States ex rel. Mackey v. Coxe, 59 US.

(18 How.) 100 (1855) (allowing the tribes the power to

determine tribal membership). This inward-looking sov-

ereignty is quite consistent with the dependent status of

the tribes vis-a-vis the United States Government. By per-

mitting this degree of self-governing sovereignty, the tribes

have retained their separate cultural existence, complete

with their own customs, language, and heritage.

However, there does exist a line of authority, cited

by this Court in Colville, 100 S.Ct. at 2081, which arguably

extends a tribe’s sovereignty beyond the self-governing type

6

of sovereignty as discussed above to encompass broad au-

thority to tax nonmembers of the tribe. Morris v. Hitch-

cock, 194 U.S. 384 (1904); Iron Crow v. Oglala Sioux

Tribe, 231 F.2d 89 (8th Cir. 1956) ; Buster v. Wright, 135

F. 947 (8th Cir. 1905), appeal dismissed, 203 U.S. 599

(1906). The Tenth Circuit’s opinion below relied upon,

and indeed expanded, these cases in upholding the Jica-

rilla tribal ordinance. 617 F.2d 537, 543-44 (10th Cir.

1980) . In so doing, the Tenth Circuit recognized that the

proper characterization of these cases has been a matter of

some dispute. Jd. at 543. Therefore, a brief discussion of

these ambiguous holdings will highlight the need for clari-

fication of the nature and extent of inherent tribal power

to tax.

In Buster, non-Indians with businesses on the Creek

Reservation brought suit against a variety of federal and

tribal officials to enjoin them from reporting plaintiffs for

deportation from the Indian territory unless plaintiffs paid

taxes as prescribed by the law of the Creeks for the privilege

of doing business within the Creek Nation. The court noted

in passing that the ‘‘tax’”’ at issue in Buster was actually more

in the nature of a private contractual condition than an

actual tax. 135 F. at 949. When viewed in this manner,

Buster is consistent with the uncontestable observation that

the tribes, as any other landowners, can contractually condi-

tion entry upon their land. However, the opinion of the

Eighth Circuit referred to the Creek tribe in absolute terms

as a nation, and thus broadly held that the tax was a legi-

timate exercise of sovereignty by the Creek Nation.

The Eighth Circuit subsequently broadened its sover-

eignty analysis in the 1956 decision of Iron Crow, supra. In

that case, Thomas Iron Crow, an enrolled member of the

Oglala Sioux Tribe who possessed allotted land in the Pine

Ridge Reservation, leased some of his land in the Reserva-

tion for grazing purposes to a nonmember of the Oglala

Sioux Tribe. The tribal council assessed a tax against Iron

7

Crow’s lessee for the privilege of grazing stock on the land

within the Reservation, thereby precipitating the lawsuit.

Noting that the power to tax had never been formally di-

vested by any affirmative act of Congress, the Eighth Cir-

cuit felt that the tribe retained this inherent aspect of sov-

ereignty.

It should be noted that both of these Eighth Circuit

decisions predate the recognition by this Court of limita-

tions on tribal sovereign power arising from actions which

are inconsistent with the tribes’ dependent status or which

conflict with an overriding federal interest. See, Colville,

supra; Oliphant, supra. Therefore, reliance upon the

Eighth Circuit's analysis is inappropriate.

A Supreme Court case that focused on aspects of this

sovereignty question was Morris v. Hitchcock, supra. In

Morris, the Chickasaw tribal council imposed an annual

privilege or permit tax on livestock grazing within the

Chickasaw Nation. The Supreme Court upheld this permit

tax, not on sovereignty grounds, but rather under the gen-

eral rubric of federal approval pursuant to treaty coupled

with private property concepts. 194 U.S. at 389-393.

If the above opinions are characterized as merely condi-

tion of entry cases, no conflict with fundamental concepts

is presented. Every private property owner can condition

entry onto his land as a function of his proprietary rights.

The Foundation does not contest the proprietary right of

the tribes to attach contractual conditions upon the entry and

use of their land. Nor is it contested that specific treaty pro-

visions, such as found in Morris, may grant this type of

power. However, when the tribes enact an ordinance which

is purportedly a function of sovereign power, a different

situation is created. Proprietary rights are typically exer-

cised in a voluntary, contractual situation where each party

is free to bargain with the other. Compliance with sover-

eign power, on the other hand, is mandatory. When this

mandatory compliance is coupled with the lack of a voice

8

in that government, it is unjustly coercive. The concern of

this amicus is the impact of amorphous concepts of inherent

sovereignty over nonmembers of the tribe springing not

from treaties or specific statutes, but rather from mere his-

torical existence.

The concept of inherent sovereignty as an attribute

of historical existence was recently addressed in Washing-

ton v. Confederated Tribes of the Colville Indian Reserva-

tion, supra. In Colville, a tribal tax upon cigarettes sold in

reservation smoke shops was upheld even as it applied to

nonmembers of the tribe. In the course of upholding this

tax, the Court implied in broad dicta that any tribal taxa-

tion of nonmembers is proper as a fundamental attribute

of sovereignty:

The power to tax transactions occurring on trust

lands and significantly involving a tribe or its members

is a fundamental attribute of sovereignty which the

tribes retain unless divested of it by federal law or nec-

essary implication of their dependent status.

Federal courts also have acknowledged tribal

power to tax non-Indians entering the reservation to

engage in economic activity. Buster v. Wright, 135 F.

947, 950 (CA8 1905), appeal dismissed, 203 U.S. 599

(1906) ; Iron Crow v. Oglala Sioux Tribe, 231 F.2d 89

(CAB 1956) ; cf. Morris v. Hitchcock, 194 U.S. 384, 393

(1904). No federal statute cited to us shows any con-

gressional departure from this view. To the contrary,

authority to tax the activities or property of non-

Indians taking place or situated on Indian lands, in

cases where the tribe has a significant interest in the

subject matter, was very probably one of the tribal

powers under “existing law” confirmed by § 16 of the

Indian Reorganization Act of 1934, 48 Stat. 987, 25

U.S.C. § 476.

100 S.Ct. at 2081.

This expansive language concerning inherent sov-

ereign powers contradicts the rationale of previous decisions

which specifically rejected the exercise of tribal power over

nonmembers of the tribe in certain instances. A clear exam-

ple of this contradiction is found in the following language

from United States v. Wheeler, 435 U.S. at 326, in which

the Court addressed the power of a tribe to exercise criminal

jurisdiction over its own members:

The areas in which such implicit divestiture of sov-

ereignty has been held to have occurred are those

involving the relations between an Indian tribe and

nonmembers of the tribe.

These limitations rest on the fact that the de-

pendent status of Indian tribes within our territorial

jurisdiction is necessarily inconsistent with their free-

dom independently to determine their external rela-

tions. But the powers of self-government, including

the power to prescribe and enforce internal criminal

laws, are of a different type. They involve only the

relations among members of a tribe. Thus, they are

not such powers as would necessarily be lost by virtue

of a tribe’s dependent status. (emphasis added).

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

at 208-211. Although both Oliphant and Wheeler con-

cerned issues of criminal jurisdiction as opposed to civil

jurisdiction, it is indeed difficult to harmonize the Court’s

diametrically opposing discussions of tribal sovereignty

over nonmembers on that basis alone. The same concerns

of fundamental fairness are invoked in either situation.

Unfortunately, this Court’s analysis in Colville is no-

ticeably lacking in any discussion or apparent recognition

of the potential ramifications resulting from the exercise

of unfettered sovereignty over nonmembers of a tribe in

10

civil matters. The Tenth Circuit’s opinion below not only

expands the extent of tribal sovereignty over nonmembers,

it also fails to recognize these concerns. Thus, this case pro-

vides an excellent opportunity for this Court to address

these ramifications and to resolve the contradictions that do

exist.

It is the position of this amicus that the precise delinea-

tion of tribal sovereignty is of utmost importance to this

nation. Crucial to a well-reasoned delineation is considera-

tion of the tension that exists between a sweeping grant of

tribal sovereignty over nonmembers on the one hand, and

the overriding federal interest in preserving basic concep-

tual foundations of our republic on the other. The re-

mainder of this brief is devoted to an exploration of the

fundamental conflicts which this tension creates.

Il. THE CONCEPT OF REPRESENTATIVE

GOVERNMENT PRECLUDES UNFET-

TERED TRIBAL JURISDICTION OVER

NONMEMBERS OF THE TRIBE.

Representative government, as manifested through the

right of suffrage, is a fundamental concept of our republic.

‘The exercise of Indian tribal sovereignty over nonmembers

who can have no voice in that government is the antithesis

of this founding concept. The Foundation does not advo-

cate nonmember participation in tribal government. Never-

theless, whenever the Indian tribes are accorded any mea-

sure of sovereign power over nonmembers, the issue of rep-

resentative government is presented. Obviously, the exten-

sion of tribal sovereignty over nonmembers is more egre-

gious in some circumstances than others. This case presents

to the Court the situation of a tribal government exercising

jurisdiction over nonmembers who have no voice in that

tribal government, but who are suffering significant depri-

vation of their civil liberties. Therefore, this case clearly

illustrates the potential for abuse.

1]

The right of suffrage is integral to the concept of rep-

resentative government. See, e.g., U.S. Const. art. I, §§ 1, 2;

U.S. Const. amend. XVII. No less than five amendments

to the Constitution preserve this basic right of suffrage to

all the people against any form of impairment. U.S. Const.

amend. XV, XVII, XIX, XXIV, XXVI. In furtherance of

this ideal, the Court has vigorously upheld this right against

dilution or complete denial in both national and local

elections. E.g., City of Phoenix v. Kolodziejski, 399 U.S.

204 (1970) (denial) ; Hadley v. Junior College District of

Metropolitan Kansas City, 397 U.S. 50 (1970) (dilution) ;

Kramer v. Union Free School District, 395 U.S. 621 (1969)

(denial) ; Avery v. Midland County, 390 U.S. 474 (1968)

(dilution) ; Reynolds v. Sims, 377 U.S. 533 (1964) (dilu-

tion). In holding that a congressional redistricting statute

violated article I, section 2 of the Federal Constitution, this

Court observed:

No right is more precious in a free country than that

of having a voice in the election of those who make

the laws under which, as good citizens, we must

live. Other rights, even the most basic, are illusory if

the right to vote is undermined. Our Constitution

leaves no room for a classification of people in a way

that unnecessarily abridges this right.

Wesberry v. Sanders, 376 U.S. 1, 17-18 (1964) . Indeed, the

Court characterized this right in Reynolds as the ‘bedrock

of our political system.” 377 U.S. at 562. So fundamentally

important is this right of suffrage that it triggers the strict

scrutiny standard of equal protection analysis whenever the

right to vote is diluted or denied. Kramer v. Union Free

School District, 395 U.S. at 626.

Thus, it cannot be denied that having a voice in one’s

government is an overriding federal interest which per-

meates our entire society. According Indian tribes a mea-

sure of sovereignty over non-Indians, as did the Tenth

12

Circuit in the instant case, calls into question adherence

to this fundamental principal of government by the con-

sent of the governed.

The tribes are empowered to determine tribal mem-

bership for themselves. See Santa Clara Pueblo v. Mar-

tinez, 436 U.S. 49 (1978); Roff v. Burney, 168 U.S. 218

(1897). As Santa Clara Pueblo illustrates, membership can

be quite restrictive. 436 U.S. at 52 n.2. Thus, there exists

the possible situation of a governmental entity exercis-

ing sovereign power over citizens who have no voice,

and who often cannot obtain a voice, in that government.

In rebuttal to the argument that such a situation vio-

lates the fundamental precepts of our nation, one may

assert that this is precisely the same situation as a state ex-

ercising jurisdiction over nonresidents. However, the an-

alogy is faulty due to at least two crucial distinctions. First,

this analogy elevates tribal government to a status in civil

matters essentially equal to that of a state government. This

is obviously improper as illustrated by this Court’s opinion

in U.S. v. Kagama, supra. Second, and more importantly, the

nonresident, whatever his or her race, can easily have a

voice in the state’s government by merely establishing a

bona fide residence in that state. Hence, the opportunity

for having a voice in that government exists. There is no

correlative opportunity for a nonmember in the tribal gov-

ernment situation.

Further exacerbating this situation of nonrepresenta-

tion is the lack of any effective judicial review of the chal-

lenged action. Indian tribes traditionally have been held

to be immune from suit absent their consent. Puyallup

Tribe v. Washington Department of Game, 433 U.S. 165

(1977) ; United States v. United States Fidelity and Guar-

anty Co., 309 U.S. 506 (1940); Turner v. United States,

248 U.S. 354 (1919). Even though individual tribal offi-

cers are not immune from suit, see Puyallup Tribe v.

13

Washington Department of Game, supra; cf. Ex Parte

Young, 209 U.S. 123 (1908) (suit against an individual

state officer acting illegally held not barred by the state’s

sovereign immunity), it is submitted that this avenue is

hardly a viable alternative for the following reasons.

If this Court affirms the Tenth Circuit's decision, a

challenge to an ordinance on sovereignty grounds will be

precluded. Nor is a federal forum available for a challenge

on a fundamental civil liberties basis due to this Court’s

hesitancy to “interfere” with tribal self-government by en-

tertaining civil suits based upon the Indian Civil Rights

Act of 1968, 25 U.S.C. §§ 1301-1303 (1976). Santa Clara

Pueblo v. Martinez, 436 U.S. at 64, 69-70. Therefore, a chal-

lenge to a tribal law would typically be brought in a tribal

court. With no possibility of a voice in the workings of

tribal government, a nonmember is truly an outsider in

such a proceeding. A tremendous potential for abuse exists

when a government is totally unaccountable to those it

passes judgment upon. This potential for abuse is com-

pounded by the lack of judicial review of the tribal deci-

sion in either a state or federal forum. Thus, a nonmember

of the tribe could be without both effective grounds to

challenge a tribal ordinance and an impartial forum.

This anomalous situation of having neither a voice in

the government nor effective review of the governmental

action cannot be harmonized with the founding principles of

our nation by any maneuvering of jurisprudential logic.

This Court stated in Reynolds v. Sims as to the question of

whether Congress can authorize the states to circumvent

strict adherence to the “one-man, one-vote” principle:

Congress simply lacks the constitutional power to in-

sulate States from attack with respect to alleged depri-

vations of individual constitutional rights.

377 U.S. at 582. Thus, neither the dominant sovereign, the

United States, nor the lesser sovereigns, the individual

14

states, have the constitutional power to violate these funda-

mental principles. The oversight function of Congress and

particularly this Court cannot be any less circumscribed as

to an entity that is only quasi-sovereign. If this sicuation is

approved, the Indian tribes cease to be lesser entities than

the true sovereigns, and indeed become enclaves wielding

potentially abusive and arbitrary power.

When a governmental entity exercises sovereignty over

individuals having absolutely no voice in that government,

it cannot be any less an “unwarranted intrusion on . . . per-

sonal liberty” than that found offensive in Oliphant. 435

U.S. at 210. The words of this Court in Reynolds v. Sims

apply in the instant situation:

[A] denial of constitutionally protected rights demands

judicial protection; our oath and our office require no

less of us.

377 U.S. at 566.

Not only does this case present an opportunity to con-

sider the advisability in general of allowing the tribes to

assert sovereignty over non-Indians, the ordinance at issue

in the instant situation also calls into question the possible

violation of yet another fundamental precept of our so-

ciety: freedom of contract.

Ill. ALLOWING A TRIBE TO FUNDAMEN-

TALLY CHANGE ITS VOLUNTARY OBLI-

GATIONS UNDERA CONTRACT

THROUGH THE INSTITUTION OF A

“TAX” VIOLATES FREEDOM OF CON.

TRACT

Petitioners to this action are engaged in the extraction

of oil and gas from the Jicarilla Reservation pursuant to

leases issued by the tribal council and approved by the

Secretary of Interior. Many of these leases existed long be-

fore the enactment of the severance tax ordinance by the

15

Jicarilla Tribe. If this tax is upheld, it will drastically alter

the petitioners’ obligations under the leases in direct con-

travention to the agreement that there would be no addi-

tional costs or charges without the written consent of both

parties. Further, the Tenth Circuit opinion below cursorily

disposed of this issue by noting that such a provision is in-

applicable to a sovereign’s power of taxation. 617 F.2d at

549. Not oniy does this assertion reveal the mischaracteriza-

tion of the tribe as a true sovereign by the Tenth Circuit, it

also totally ignores the overriding federal interest in pre-

serving the sanctity of contracts. For example, even the

states as true sovereigns do not have unlimited power to

alter contracts. U.S. Const. art. I, § 10, cl. 1.

Although not subject to the specific prohibitions of the

Bill of Rights in the Federal Constitution, tribal govern-

ments are subject to similar limits on their power through

Title I of the Indian Civil Rights Act of 1968 (ICRA), 25

U.S.C. §§ 1301-1303 (1976) . Compare Talton v. Mayes, 163

U.S. 376 (1896) and Groundhog v. Keeler, 442 F.2d 674

(10th Cir. 1971) with Santa Clara Pueblo v. Martinez, 436

U.S. 49 (1978). By its terms the ICRA limits “all govern-

mental powers” of a tribe and protects “any person” af-

fected by the exercise of tribal powers. 25 U.S.C. §§ 1301(2),

1302 (3), (4), (6), (8) & (10); see Oliphant v. Suquamish In-

dian Tribe, 435 U.S. at 195 n.6: Dodge v. Nakai, 298 F.

Supp. 17, 24-25 (D. Ariz. 1968) (extensive discussion of legis-

lative history to interpret the phrase “any person” as in-

cluding non-Indians). Of particular import to the instant

case is the fact that tribal governments are prohibited from

depriving “any person of liberty or property without due

process of law.” 25 U.S.C. § 1302(8).

In construing similar language in the fourteenth

amendment, this Court held that the procedural safeguard

of due process applies only to those interests properly en-

compassed in the terms liberty and property. Board of Re-

gents v. Roth, 408 U.S. 564, 569 (1972). The “right to con-

16

tract’ is a protectable liberty interest; Meyer v. Nebraska,

262 U.S. 390, 399 (1923); while rights arising from con-

tracts are protectable property interests, Perry v. Sinder-

mann, 408 U.S. 593, 601 (1972). Thus by unilaterally

changing a material provision of a mutually negotiated con-

tract, the tribe has infringed a protectable liberty and

property interest of the petitioners. It is precisely such ar-

bitrary action of the tribe in interfering with property

rights which the due process clause was designed to guard

against. Board of Regents v. Roth, 408 U.S. at 577. There-

fore, petitioners are entitled to due process of law before

said interests are compromised.

However, obtaining adequate due process of law in

this situation is difficult. As Judge Brimmer explained:

[T]he concept of due process exists to protect the indi-

vidual against arbitrary action by government, and

the fundamental requisites of due process require that

one have an opportunity to be heard at a meaningful

time and in a meaningful manner. (emphasis added) .

Berry v. Arapahoe and Shoshone Tribes, 420 F. Supp. 934,

944 (D. Wyo. 1976). Since Santa Clara Pueblo effectively

precludes a federal forum for the type of due process vio-

lation alleged here, petitioners would be relegated to a

tribal court to vindicate their claim. 436 U.S. at 72. Justice

White noted that this remedy was not likely to be mean-

ingful since “enforcement of these rights . . . (would) be

left up to the very tribal authorities alleged to have violated

them.” Santa Clara Pueblo, 436 U.S. at 82 (White, J., dis-

senting); see also S. Brakel, American Indian Tribal Courts

The Costs of Separate Justice (1978) .

The Jicarilla Tribe’s dispute over these and similar

leases is a long-standing one. See Jicarilla Apache Tribe v.

Supron Energy Corp., 479 F.Supp. 536 (D.N.M. 1979).

Neither party anticipated the drastic escalation in the price

of oil and gas. In reliance on the terms of the lease, peti-

17

tioners invested substantial amounts of material and labor.

Thus, it is manifestly unfair to allow the tribe to unilat-

erally change its obligation under these leases under the

guise of taxation. Indeed, our entire econo:nic system would

grind toa halt if the sanctity of contracts was no longer guar-

anteed. This fundamental unfairness is compounded by

the fact that petitioners have no voice in tribal affairs, nor

do they have access to an effective forum in which to chal-

lenge this arbitrary action.

IV. ALLOWING THIS TYPE OF TRIBAL TAX:

ATION IS INCONSISTENT WITH THE

OVERRIDING FEDERAL INTEREST IN ES-

TABLISHING A NATIONAL ENERGY POL-

ICY

As discussed earlier in this brief, tribal government

power is limited not only by express congressional enact-

ment, but also by overriding federal policies. Oliphant,

supra; Colville, supra. Consequently, the Indian tribes lack

the power to enact ordinances of the type in question since

they could conflict with the attainment of the overriding

federal interest in establishing a comprehensive energy

policy.

The Arab Oil Embargo instituted by OPEC in the

early 1970's highlighted this nation’s dangerous dependence

on imported oil. Congress responded with a variety of mea-

sures designed both to increase domestic production of

fossil fuels and to encourage development of alternative

forms of energy. Sze Energy Policy and Conservation Act,

42 U.S.C. §§ 6201-6214 (1976); Federal Nonnuclear Energy

Research and Development Act of 1974, 42 U.S.C. §§ 5901-

5917 (1976). These measures were supplemented by a re-

newed emphasis on conservation. See Energy Conservation

Standards for New Buildings Act of 1976, 42 U.S.C. §§

6831-6840 (1976); Energy Conservation in Existing Build-

ings Act of 1976, 42 U.S.C. §§ 6851-6892 (1976).

18

By 1977, Congress recognized that this country was

facing a shortage of nonrenewable energy and, at the same

time, was becoming increasingly dependent on foreign

energy supplies. Department of Energy Organization Act,

42 U.S.C. § 7111 (1-2) (Supp. I 1977). Realizing that in the

context of a fragmented approach to energy matters this

disturbing trend constituted a threat to our national se-

curity, Congress mandated a comprehensive national energy

policy to be implemented by the newly created Department

of Energy. 42 U.S.C. § 7111 (Supp. I 1977).

Clearly, the establishment of a comprehensive long-

range national energy policy is an overriding federal inter-

est. Indeed, President Carter in his most recent State of the

Union address noted:

Our excessive dependence on foreign oil is a clear

and present danger to our Nation's security.

The need has never been more urgent. At long

last, we must have a clear, comprehensive energy policy

for the United States.

President Carter's State of the Union Address, January 23,

1980, reprinted in 1 U.S. Code Cong. & Ad. News 135

(March 1980). It is against this backdrop of an urgent fed-

eral interest in developing a comprehensive energy plan

that the tribe’s enactment in this case must be evaluated.

Indian tribes in this country control a significant

amount of energy reserves. | American Indian Policy Re-

view Commission Final Report 7, 338-339 (1977). As of

1977, forty separate tribal governments in seventeen Aif-

ferent states controlled a portion of these reserves. Jd. at

338. From a logistical standpoint alone, the evaluation and

coordination effort needed to integrate forty separate re-

gimes of energy-related taxation into a comprehensive na-

tional strategy is staggering.

In arguing the case below, the Secretary of Interior as-

serted that the tribes could use their purported sovereign

19

right to tax as a tool to restrict development of their re-

serves even under existing leases. Brief in Chief of the Sec-

retary of Interior at 22-23, 27; see also 1 American Indian

Policy Review Commission Final Report 179 (1977). More-

over, it is not speculative to assume that if the ordinance

at issue in this case is upheld, other tribal governments will

follow suit. See Conoco, Inc. v. Shoshone and Arapahoe

Tribes, No. L. 80-0181 (D. Wyo., filed June 23, 1980)

(Shoshone and Arapahoe Tribes’ reassertion of their sev-

erance tax ordinance in reliance on the Tenth Circuit opin-

ion below). Therefore, this Court must consider whether

in light of these ramifications and the desire to establish a

comprehensive energy plan, it is in the national interest to

have forty separate enclaves that can not only tie up future

development, but also stall existing production under pre-

viously negotitated leases by unilaterally increasing, in po-

tentially unrestrained amounts, the cost of production.

CONCLUSION

Affirmance of the Tenth Circuit's opinion will exten-

sively expand the nature and extent of inherent Indian

tribal sovereignty over nonmembers of a tribe. Such an ex-

pansion contradicts the fundamental concept of representa-

tive government which forms the basis of our republic. The

exercise of sovereignty over nonmembers who have no pos-

sibility of a voice in the tribal government is incompatible

with any notion of fundamental fairness,

In addition, the ordinance in the instant case amounts

to a unilateral modification of the preexisting leases be-

tween the parties. Not only is this modification in contra-

vention of the express terms of the leases, said enactment

also violates petitioners’ liberty and property interests. Fur-

ther, adequate due process of law is unavailable to peti-

tioners because of the nature of tribal courts. Exacerbating

this situation is the total lack of state or federal judicial

review of a tribal court decision.

20

Finally, this Court must consider whether tribal ordi-

nances of this type are consistent with the overriding fed-

eral interest in implementing a national energy policy.

It is crucial that this Court resolve the contradictions

currently present in Indian law in a way that does not im-

pair the validity of the fundamental concerns raised in this

brief.

For the foregoing reasons, the ordinance in question

should be struck down and the Tenth Circuit's opinion

should be reversed.

Respectfully submitted this 20th day of November,

1980.

James G. Watt

William H. Mellor III

R. Norman Cramer Jr.

Mountain States Legal Foundation

1200 Lincoln, Suite 600

Denver, Colorado 80203

Telephone: (303) 861-0244

Attorneys for the Amicus Curiae

CERTIFICATE OF SERVICE

I, James G. Watt, one of the attorneys for the amicus

curiae and a member of the bar of this court, certify that

all parties required to be served have been served with the

foregoing motion and brief: specifically that on November

---» 1980, I caused to be deposited in a United States Post

Office at Denver, Colorado, with first class postage prepaid,

three copies of the foregoing motion and brief of amicus

curiae addressed to each of the following:

Robert J. Nordhaus

Attorney at Law

Nordhaus, Haltom & Taylor

200 Lomas Boulevard, N.W.

Suite 810

Albuquerque, New Mexico

87102

Wade H. McCree, Jr.

Solicitor General

Louis F. Claiborne

Deputy Solicitor General

Department of Justice

Washington, D.C, 20530

John R. Cooney

Attorney at Law

P.O. Box 2168

Albuquerque, New Mexico

87103

Jason W. Kellahin

Kellahin & Kellahin

P.O. Box 1769

Santa Fe, New Mexico 87501

Terry D. Farmer

Attorney at Law

Moses, Dunn, Beckley,

Espinosa & ‘Tuthill

200 Lomas Boulevard, N.W.,

Suite 800

Albuquerque, New Mexico

87102

Bruce D. Black

Attorney at Law

Campbell and Black

P.O. Box 2208

Santa Fe, New Mexico 87501

John H. Pickering

Attorney at Law

1666 K. Street, N.W.

Washington, D.C. 20006

James G. Watt

Subscribed and sworn before me this ........ day of Novem-

ber, 1980

Notary Public, City and County of

Denver, Colorado