Amicus Brief — Merrion v. Jicarilla Apache Tribe

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IN THE

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1979

No. 80-11

J. GREGORY MERRION, et al.,

Petitioners,

JICARILLA APACHE TRIBE, et al.,

Respondents.

On Petition For a Writ Of Certiorari To The

United States Court Of Appeals For

The Tenth Circuit

BRIEF OF STATE OF WASHINGTON AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

SLADE GORTON,

Attorney General

TIMOTHY MALONE,

Assistant Attorney General

Attorneys for Amicus Curiae

Temple of Justice

Olympia, Washington 98504

(206) 753-6245

(Additional states joining this brief are set forth on the inside cover.)

STATE PRINTING PLANT

OLYMPIA, WASHINGTON

IN THE

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1979

No. 80-11

J. GREGORY MERRION, et al.,

Petitioners,

JICARILLA APACHE TRIBE, et al.,

Respondents.

On Petition For a Writ of Certiorari To The

United States Court Of Appeals For

The Tenth Circuit

BRIEF OF STATE OF WASHINGTON AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

QUESTIONS PRESENTED

I. Does the authority of an Indian Tribe to tax

non-members, when on Indian land within a reserva-

tion, derive solely from the tribal power to exclude

those non-members from that land, and the concom-

mitant power to establish conditions for their entry

upon such land?

II. If the answer to Question I is in the affirma-

tive, may an Indian Tribe exercise that power to ex-

clude a non-member from Indian land within a res-

ervation for failure to pay a tribal tax, under the

following circumstances: }

(1) The non-member has entered upon the In-

dian land and undertaken commercial activities there

pursuant to a lease agreement with the Tribe which

has been authorized by a federal statute and approved

by the Secretary of Interior in accordance with that

statute;

(2) The lease agreement does not include pay-

ment of the Tribal tax as a condition of remaining

in possession and continuing the commercial activi-

ties authorized by the lease agreement; and

(3) The non-member is in full compliance with

all terms and conditions of the lease agreement??

1The Petitioners present in their brief six questions for review.

Our questions I and II rephrase Petitioners’ Questions 1 through 3

and that portion of their Question 4 relating to preemption of tribal

taxing power by the total federal regulatory scheme. We do not here

discuss that portion of Question 4 relating to the effect of 25 U.S.C.

§ 398c; nor do we discuss Questions 5 and 6.

INDEX

QUESTIONS PRESENTED . 55. 0.5 f0boo bb bobooke een. i

INTEREST OF THE STATE OF WASHINGTON ........ 1

INTRODUCTION AND SUMMARY OF ARGUMENT .... 1

PX co - yey oS Sa ae 5

I. The Issue of Tribal Governmental

Powers Over Non-Members ........................ 5

A. Under Oliphant v. Suquamish Tribe,

the Only Available Sanction Against

a Non-member for Violation of a Tribal

Law or Regulation is Expulsion .................. 5

B. In Adopting the Indian Reorganiza-

tion Act of 1934, Congress Deliberately

Denied to Indian Tribes Any General

ara Power Over Non-Mem-

C. Congress Has Consistently Acted Upon

the Assumption that Indian Tribes Do

Not Have Inherent General Govern-

mental Power over Non-Members ................ 15

Possess No Inherent General Power

ve 18

rived from the Power to Exclude Non-

Members From Indian Lands, and not

from any General Gevernmental Power

over Those Non-Members ....................... 20

ponent te EE 24

CONCIAMINGES <cctaseeeeee eee 30

, TABLE OF CASES

eR 23

Ex Parte Crow Dog, 109 U.S, 556 ..................000. 9,10

eo a ee eeenanee 8

Iron Crow v. Oglala Sioux Tribe, 231 F.2d 89 ............ 23

Montana v. United States, No. 79-1128 ................... 5

Morris v. Hitchcock, 198U.S. 364 ............0........5.. 23

Oliphant v. Suquamish Tribe, 435 U.S. 191 ............ 3, 5-11

oo Re TS ee ee 10

United States v. Mazurie, 419 U.S. 544 .................. 16

United States v. Wheeler, 435 U.S. 313 ................ 10, 21

Washington v, Confederated Tribes of the

Colville Indian Reservation, U.S.

(June 10, 1980, No. 78-630) .......;. Raia 1, 4, 20, 21

Statutes |

Curtis Act, Act of June 28, 1898, 30 Stat. 495 .............. 23

Act of May 29, 1924, 43 Stat. 244, 25 U.S.C. 398a .......:..28

Act of March 3, 1927, 44 Stat. 1347, 25 U.S.C. 398a-398e . .5, 24

Indian Reorganization Act of 1934, 48 Stat. 984 .....4, 11-15

Act of May 11, 1938, 52 Stat. 347, 25 U.S.C. 396a-396g ....29

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

Act of July 12, 1960, 74 Stat. 469, 18 U.S.C. 1165 .......... 16

Indian Civil Rights Act, 25 U.S.C. § 1302, 82 Stat. 77, (1968) .6

Clean Air Act Amendments of 1977, 91 Stat. 685 .......... 16

Surface Mining and Reclamation Act of 1977,

I i non aR. dae 6s 16, 17

Be EE 6 oF 5 oie oc BIAG AERA ca 0 vied ba mar kgs eC ERS 15

es ci da Ss cn week t ob eadcickebes’ 4,15

i ee a els. on ie ahh em spare oe 4,16

Oy Me oii... Ta van cen same dean's by aan arcs 17

Se I aE cn oth'g & fo Saal Poe ne Ws HAdS seeeede kane s 17

BRR Ted OP ere pen ae ti eE a i 24, 27

EE OE 5s on ou Cana ah eabbs « ards ceeuee amas 17

i i onal oaamin hi wink t-anpre.o fase Gite 16, 17

ee ino den wahlvaaeis ecb i'n 6 ue h whee lk i

ey EE Eek Secs ab e:d avis o's naw hdaee 16

Other Authorities

Sey ON Eo on os ug eared nessa cacanpasveeus 22

Re ee RS OD oa cg. <a ba spo ava nd eaveabeue 22

ee ec tev sccevs ceteneeue 22

eG I an ns cee scs dviacne sansa 28

rn ae I alg a ok Set a u's wes 9.0 wpe dial 25-27

H. R. 7902, 73rd Cong., 2nd Sess. (1934) ............0.0,0. 11

S. 2755, 73rd Cong., 2nd Sess. (1934) ................00-- 11

Powers of Indian Tribes, 55 ID 14, (1934) ................ 21

Op. Sol. I.D. Ind. Aff., 1917-1974

VOR. T, Ge Cay FID Sle vicln da boa de avecvicdcccc 18, 20

S. Rep. No. 1686, 86th Cong., 2nd Sess. (1960) ............ 16

INTEREST OF THE STATE OF WASHINGTON

The interest of the State of Washington is set

forth at length in the Brief of State of Washington

as Amicus Curiae in Support of Petition for Writ

of Certiorari, pp 2-5. We would respectfully refer the

Court to our discussion there, rather than repeat it

here.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Our starting point, of course, must be this

Court’s decision, on June 10 of this year, in Wash-

ington v. Confederated Tribes of the Colville Indian

Reservation, ..... U.S. ...., 48 LW 4668. This decision

reaffirmed the tribal “authority to tax the activities

or property of non-Indians taking place or situated

on Indian lands * * *” 48 LW at 4673.

But what is the source of this authority? Is it

found in the power of Indian Tribes to exclude non-

members from Indian lands, and the concomitant

power to set conditions for their entry upon those

lands? Or, on the other hand, is the source found in

some sort of general governmental power over all

persons within the territorial boundaries of the res-

ervation, be they members or not?

The difference, we believe, is critical here. If

taxing authority over non-members finds its source

in the tribal power to condition entry upon Indian

lands, then one must ask a further question. May the

Tribe exercise that power when, as here (1) the non-

member is undertaking commercial activities on those

lands pursuant to a lease agreement with the Tribe

that has been authorized by a federal statute, and

approved by the Secretary of Interior in accordance

with that statute; and (2) that non-member lessee

is in full compliance with all of the terms and con-

ditions in the lease agreement, but those terms and

conditions do not include any requirement to pay the

tribal tax?

Does the statute authorizing the lease agreement,

in short, contemplate a real lease, which allows the

lessee to remain in possession so long as he complies

with the terms and conditions of the lease? Or, on

the other hand, does the statute envision a sham lease,

allowing the tribal landowner to dispossess its lessee

even though he be in complete compliance with the

lease agreement?

This problem does not arise, at least in so acute

a form, if the tribal authority to tax non-Indians

finds its source instead in some sort of general gov-

ernmental power over all persons within the reser-

vation. A simple example may help illustrate our

point.

A State, of course, is itself a landowner, as is the

Jicarilla Apache Tribe here. Those state lands may

contain oil and gas, as do the tribal lands here. Ac-

cordingly, the State may enter into leases with pri-

vate operators, under which those operators have the

right to extract the oil and gas in return for royalty

payments to the State, as stipulated in the lease agree-

ment.

If the state legislature imposed a new tax upon

that operator, such as a severance tax, or increased

the rate of an already existing tax, that operator

would have no grounds for complaint in the judicial

forum, though he might well have in the political.

The taxing power of the legislature applies to him

just as much as to anyone else within the State’s

jurisdiction. And the source of the legislature’s power

to impose this tax is the same as its power to pass

any other law—its general governmental power as

the legislative body of a sovereign state.

In enforcing this tax, the State may use any and

all of the usual mechanisms it employs for any other

tax; e.g., subjection of the taxpayer to its courts,

seizure of the taxpayer’s property for nonpayment,

criminal or civil fines, and perhaps even incarcera-

tion. Further, like the power to impose the tax in the

first place, the power to employ these sanctions is in

no way dependent upon the State’s status as an own-

er-lessor. (Our hypothetical severance tax would, we

presume, be imposed upon all extractors of oil and

gas, whether operating on leased lands, public. or

private, or on lands which they own themselves. )

The tribal authority to tax non-members is not,

we contend, like the State’s power to tax in our ex-

ample. It is not based upon any sort of general gov-

ernmental authority over all persons within a terri-

torial jurisdiction, as is the power of the State.

To show why this is so, we examine this Court’s

opinion in Oliphant v. Suquamish Tribe, 435 U.S. 191

(1978), and demonstrate that the reasoning of this

opinion is just as applicable on the civil side as it is

on the criminal side of any assertion of general gov-

ernmental power over non-members.

We also examine the legislative history of the

Indian Reorganization Act of 1934, 48 Stat. 984, to

show that Congress has likewise deliberately rejected

a policy of vesting general governmental powers,

civil or criminal, over non-members.

In certain narrow, specific areas, Congress has

admittedly granted to Indian Tribes a type of juris-

diction over non-members. See 18 USC 1165, relating

to unauthorized hunting and fishing on Indian lands;

18 USC 1161, relating to control of intoxicants on

Indian reservations; and 42 USC 7474, relating to

determination of air quality standards for reserva-

tion lands. Far from reflecting any congressional as-

sumption of any general criminal or civil jurisdic-

tion reservation-wide over non-members, these stat-

utes reflect exactly the opposite assumption. And we

show that, at least until recent years, the executive

branch has shared that assumption along with the

Congress.

Nor does Colville require a different conclusion.

As already observed, the Court there reaffirmed the

authority of a Tribe to tax non-Indians. That author-

ity, however, was expressly confined to transactions

or property situated on Indian lands. More impor-

tantly, the judicial and administrative decisions

cited by the Court in support of that taxing power

involved situations in which the only enforcement

sanction invoked was. expulsion of a non-member’s

person or property from those Indian lands. The tax-

ation p.wer, in short, found its source in the tribal

power to exclude, and not in a general governmental

power over non-members.

But may that power to exclude be invoked in this

case? We show that it may not, by reason of the stat-

utory provisions under which the leases involved here

were executed, and approved by the Secretary of In-

terior. Act of Mar. 3, 1927, 44 Stat. 1347, 25 USC

398a-398e. That act contemplates real leases, grant-

ing the lessee the right to remain in possession and

conduct the activities authorized by the lease agree-

ment so long as he complies with its terms. Congress,

in short, did not envision leases which a Tribe could

unilaterally turn into a sham.

ARGUMENT

I. THE ISSUE OF TRIBAL GOVERNMENTAL

POWERS OVER NON-MEMBERS?’

A. Under Oliphant v. Suquamish Tribe, the Only Avail-

able Sanction Against a Non-Member for Violation of a

Tribal Law or Regulation is Expulsion.

Before examining the principles established by

the Court’s decision in Oliphant v. Suquamish Tribe,

435 U.S. 191, we should note what Oliphant did not

decide. It did not decide that the Suquamish Tribe

“Our discussion in Part I of this argument follows closely and

somewhat expands upon our discussion at pp. 18-24, and 27-29 of

our amicus brief on the merits in Montana v United States, No.

79-1128. We view the two cases as very closely connected on cer-

tain critical issues. ;

could not prohibit Mr. Oliphant and Mr. Belgarde,

the alleged offenders, from ever again coming onto

Indian lands within the Port Madison Reservation,

and forcibly eject them should they do so.’Oliphant,

in short, was not an expulsion case. Rather, Oliphant

was a case in which the tribe claimed the power to

impose on a non-member the full range of criminal

sanctions, for violation of its laws, that it could ad-

mittedly impose on its members.

Does the reasoning by which this result was

reached apply on the civil, as well as the criminal,

side of a tribal assertion of general governmental

power against a non-member? We here show that

it does.

The structure of the opinion should here be noted.

The first part examines the commonly shared pre-

sumption of Congress, the Executive Branch, and the

lower federal courts that tribal courts do not have

the power to try non-Indians. 435 U.S. 196-206. That

presumption, however, is “not conclusive on the issue

before us,” but is entitled to “considerable weight’.

435 US at 206. Neither is the second part, which

reviews the relevant treaty provisions, conclusive

either. 435 US at 208. The conclusive part is the third,

which begins:

“But an examination of our earlier precedents

satisfies us that, even ignoring treaty provisions

and congressional policy, Indians do not have

criminal jurisdiction over non-Indians absent

“Of course, the Indian Civil Rights Act, 25 U.S.C. § 1302, might

well require that basic due process, such as an opportunity for a

hearing, be afforded before any such expulsion is effective.

affirmative delegation of such power by ‘Con-

gress.” (Emphasis supplied) 435 at US 208.

The third part is conclusive, independently of

the first two. Significantly, none of the precedents

examined in this third part directly involved the

question of tribal jurisdiction over non-Indians, either

civil or criminal. They did involve, however, the stat-

us of Indian tribes.

That status is one of subordination to and de-

pendency upon the United States; it affects no only

the relationship of the Indian Tribes with the United

States Government as such, but the relationship of

the Tribes with the non-Indian United States citizen

as well.

“* * * Upon incorporation into the terri-

tory of the United States, the Indian tribes there-

by come under the territorial sovereignty of the

United States and their exercise of separate

power is constrained so as not to conflict with

the interests of this overriding sovereignty.

‘{T ]heir rights to complete sovereignty, as inde-

pendent nations, Farel necessarily diminished.’

Johnson v. M’Intosh, 8 Wheat 543, 574, 5 L.Ed.

681 (1823).” Oliphant 435 U.S. at 209.

And this diminishment of tribal sovereignty re-

sulted in the loss of the tribal power to govern anyone

but the Indians themselves.

“In the first case to reach this Court dealing

with the status of Indian tribes, Mr. Justice

Johnson in a separate concurrence summarized

the nature of the limitations inherently flowing

from the overriding sov.reignty of the United

States as follows:

[T]he restrictions upon the right of soil

in the Indians amount * * * to an ex-

clusion of all competitors (to the United

States) from their markets; and the limita-

tion upon their sovereignty amounts to the

right of governing every person within their

limits except themselves.

Fletcher v. Peck, 6 Cranch 87, 147.” (Empha-

sis in original.) Oliphant, 435 U.S. at 209.

Obviously, what Mr. Justice Jahnson was talk-

ing about in Fletcher v. Peck was the power of gov-

erning, whether the forms of governing be charac-

terized as civil or criminal.

The opinion continues:

“TF ]rom 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 per-

sonal liberty. The power of the United States

to try and criminally punish is an important

manifestation of the power to restrict personal

liberty. By submitting to the overriding sov-

ereignty of the United States, Indian tribes

therefore necessarily give up their power to try

non-Indian citizens of the United States except

in a manner acceptable to Congress. * * *”

Oliphant, 435 U.S. at 209, 210.

Simply because an assertion of governmental

power is “civil” rather than “criminal” does not

mean that the hazards to a United States citizen, and

the risk to his personal liberties, are any less.

To illustrate: Perhaps the most pervasive and

fundamental assertion of governmental power, on the

civil side, is the taxing power, the same type of power

as is claimed by the Tribe here. The federal govern-

ment, states, and local governments collect these

taxes through voluntary compliance in most cases,

but through compulsory enforcement mechanisms

when necessary. Those enforcement mechanisms or

sanctions include subjection of the taxpayer to the

government’s courts, forcible seizure of the tax-

payer’s property, and punishment of the taxpayer

for non-compliance. That punishment might be

through criminal proceedings; but it might be

through civil fines as well; and civil proceedings

might involve incarceration, for civil contempt.

It makes little difference to the taxpayer that

he has lost his property or liberty through “civil”

rather thn “criminal” proceedings.

Nor did the holding in Oliphant rest upon such

a distinction, as the discussion of Ex Parte Crow Dog,

109 U.S. 556, clearly shows. The United States was

there attempting to extend federal criminal law:

(o* x *

* * *

by argument and inference only,

over aliens and strangers; over the

members of a community separated by race

[and] tradition, * * * fromthe authority

and power which seeks to impose upon them the

restraints of an external and unknown code

* *; which judges them by a standard

made by others and notforthem. * * * It

tries them, not by their peers, nor by the cus-

toms of their people, nor the law of their land,

but by * * * a different race, according

to the. law of a inet state of which they have

an imperfect conception. * * *”’ 109 U.S. at

571. Quoted at 435 U.S. at 210, 211.

After this quotation, the Court in Oliphant continued :

“These considerations, applied here to the non-

Indian rather than Indian offender, speak

equally strongly against the validity of respond-

ents’ contention that Indian tribes, although

fully subordinated to the sovereignty of the

United States, retain the power to try non-In-

dians according to their own customs.”

Oliphant, 435 U.S. 210, 211.

The rationale of Crow Dog, as applied in Oli-

phant, logically applies to all tribal law. Whether

that law be criminal or civil, it is equally “external

and unknown” to non-Indians.

Historically, the Indian tribes have argued that

they have the status of separate nations, with their

own inherent governmental power over their own

members. As shown by such cases as Talton v. Mayes,

163 U.S. 376, United States v. Wheeler and Crow Dog

itself, that argument has uniformly met with suc-

cess. But, under Oliphant it is precisely because of

this separateness that this power of Indian tribes

must be confined to tribal members, and not be ex-

tended to non-Indians.

Two last points: as already suggested, Oliphant

in no way affects a Tribe’s treaty right to exclude

or expel non-Indians. It does, however, prohibit an

assertion of general governmental power, be that

assertion categorized as “criminal” or “civil”, in

which the other usual sanctions or enforcement mech-

anisms are sought to be utilized by the Tribe.

Secondly, Oliphant in no way affects the power

of Congress to delegate to Indian Tribes governmental

power over non-Indians. But Congress, in fact, has

refused to do so, except in very narrow circum-

stances, as we shall next see.

B. In Adopting the Indian Reorganization Act of 1934,

Congress Deliberately Denied to Indian Tribes Any Gen-

eral Governmental Power Over Non-Members.

The Indian Reorganization Act, as originally in-

troduced in Congress, was a very different bill from

that which eventually passed. (Act of June 18, 1934,

48 Stat. 984.) Those differences are of great signifi-

cance here. The original version was introduced in the

House as H.R. 7902, 73rd Cong., 2nd Sess. (1934)

and in the Senate as S. 2755, 73rd Cong., 2nd Sess.

(1934).

The heart of the bill was Title I, ‘Indian Self-

Government.” Section 2 of Title I read, in pertinent

part, as follows:

“Tn accordance with the foregoing purposes, the

Secretary of the Interior is hereby authorized

to issue to the Indians residing upon any Indian

reservation or reservations or subdivision there-

of a charter granting to the said community

group any and all such powers of government

* as may seem fitting in the light of

the experience, capacities, and desires of the

Indians concerned * * *” (Emphasis sup-

plied )

Section 4 spelled out in more detail the powers

which were to be included in the charter. The first

is found in subsection (a) :

(a) To organize and act as a Federal municipal

corporation, to establish a form of government,

to adopt and thereafter to: amend a consti-

tution, and to promulgate, and enforce ordi-

nances and regulations for the effectuation of

the functions hereafter specified, and any other

functions customarily exercised by local govern-

— ments.” (Emphasis supplied )

Subsection (d) granted another important

power:

“(d) To establish courts for the enforcement

and administration of ordinances of the com-

munity, which courts shall have exclusive juris-

diction over all offenses of, and controversies

between, members of the chartered community,

under the ordinances of such community, and

jurisdiction exclusive or non-exclusive over all

other cases arising under the ordinances of the

community, and shall have power to render and

enforce judgments, criminal and civil, legal and

equitable, and to punish violations of local or-

dinances by fine not exceeding $500, or in the

alternative, by imprisonment for a period of not

exceeding six months: * * *.” (Emphasis

supplied )

Title IV of the bill also dealt with courts, estab-

lishing a Court of Indian Affairs. Section 3 of this

Title spelled out the broad jurisdiction of that court,

which included jurisdiction “of all cases, civil or

criminal, arising under the laws and ordinances of

a chartered Indian community, wherein a real party

in interest is not a member of such community.”

(Subsection 4)

Clearly, a chartered Indian community was to

have broad legislative jurisdiction over non-mem-

bers—as broad as those of any municipal corporation

or other unit of local government. And the tribal

courts and the Court of Indian Affairs would have

jurisdiction Over non-members as well.

Title I and Title IV did not survive. And a major

reason was that the chairman of the Senate Commit-

tee on Indian Affairs, Senator Wheeler from Mon-

tana, was adamantly opposed.

In the hearing on S. 2755, the following exchange

took place concerning Title I:

“The Chairman. Well, you might possibly, Mr.

Commissioner, get, for instance, some tribe of

Indians in Montana who would want to try this,

and they might get a sufficient number of signers

to a petition to have a charter issued...

“Commissioner Collier [of the Bureau of Indian

Affairs]. Yes.

“The Chairman. But if they did do it, in my

judgment, it would bring about all kinds of con-

flicts between your Indians and the white people,

and, in addition to that, it would set back the

Indians, in my judgment, considerably by doing

it, and I am afraid that it would lead to conflicts

— Northwest between the Indians and the

whites.

“T mean, supposing the Indian Bureau went out

there, for instance, if you had this provision in

there, ex Indian Bureau could go out there and

take those Indians possibly an ———

them and get sufficient numbers of them to sign

it and issue a charter, and then attempt to set

up this government within a government out

there, which would be, in my judgment, a ser-

ious mistake on the part of the Indians to do it.”’

Hearing Before the Committee on Indian Af-

fairs, United States Senate on S. 2755, 73rd

Congress, 2nd Sess. (1934) p. 68 (hereinafter

“1934 Hearings”).

Senator Wheeler liked the proposed court system

in Article IV no better. Under discussion was an

amendment, proposed by the BIA, involving the crim-

inal jurisdiction of the court:

“Commissioner Collier. Mr. Chairman, this

amendment would leave with the proposed new

court of Indian affairs all prosecutions for

crimes insofar as they are prosecutions under

the laws affecting Indian country.

The Chairman. Yes; but it is perfectly ridiculous

to = up this separate court.” 1934 Hearings,

p. 205.

The discussion then turned to the jurisdiction of

the court, in the case of a non-Indian trying to collect

a debt from an Indian. And Senator Wheeler ex-

pressed his views about the proposed court once

again.

“The Chairman. If you ever get this through

Congress I will be surprised, because it is per-

fectly ridiculous in my judgment.

“Senator O’Mahoney. Senator, I don’t think you

agree with this provision.

“The Chairman. Well, I certainly do not agree

with it, and I do not think the Indians if they

understood it in the Northwest would want it,

because of the fact that it would just simply ham-

per them and retard them rather than do them

any good.

“Commissioner Collier. Mr. Chairman, we have

explained that we did not regard this section as

= integral part of the bill, as indispensable at

“The Chairman. Yes; I am glad of that.” 1934

Hearings, p. 208.

What happened next is best explained in Senator

Wheeler’s own words:

“The Chairman. * .* * I got together with

the Commissioner of Indian Affairs and went

over the important points that I thought were

in controversy, and yesterday they sent up this

bill, which eliminates, it seems to me, practi-

cally all of the matters that are in controversy,

* * *” 1934 Hearings, p. 237.

The bill which the BIA sent up was the bill which

ultimately passed. (Compare S. 3645, reproduced

at 1934 Hearings, p. 234, and Act of June 18, 1934,

48 Stat. 984). Thus the Congress, in 1934, denied to

the Indians the broad, general governmental powers

over Indians and non-Indians which the BIA had

hoped to attain for the Indians. And that fact is rea-

son enough for this court to deny the claim to any such

powers now.

C. Congress Has Consistently Acted Upon the Assump-

tion that Indian Tribes Do Not Have Inherent General

Governmental Power over Non-Members.

Since 1934, Congress has delegated to Indian

Tribes certain governmental powers over non-mem-

bers. For example, in 1953, Congress removed the

general prohibition of alcoholic beverages in Indian

Country, and allowed Indian Tribes to regulate, with

the approval of the Secretary of Interior, the intro-

duction of alcoholic beverages into Indian Country,

so long as state law was also complied with. Act of

Aug. 15, 1953, 67 Stat. 586, 18 USC 1161. Under 18

U.S.C. 1154(c), Indian Country would include fee

patent land, owned by non-Indians, so long as that

land was within the exterior boundaries of a reser-

vation and was not within a “non-Indian commun-

ity”. See United States v. Mazurie, 419 U.S. 544, 547

(1975). .

If an Indian Tribe has inherent general govern-

mental power over non-members reservation-wide,

there seems little need for Congress to have made that

delegation to the Tribes in 1953.

Congress took a similar action in 1960. In the

Act of July 12, 1960, 74 Stat. 469, 18 U.S.C. 1165,

it prohibited the unauthorized entry upon Indian

lands for the purpose of hunting or fishing. The rea-

son for this congressional action was made explicit

in S. Rep. No. 1686, 86th Cong, 2d Sess, 2-3 (1960) :

“* * * Indian tribal law is enforceable

against Indians only; not against non-Indians.

“Non-Indians are not subject to the jurisdiction

of Indian courts and cannot be tried in Indian

courts on trespass charges.”

Again, in the Clean Air Act Amendments of

1977, 91 Stat. 685. 735, it is provided that for pur-

poses of designation of areas by class for air quality

standards, “lands within the exterior boundaries ¢

of reservations of federally recognized Indian tribes

may be redesignated only by the appropriate Indian’

governing body.” 42 U.S.C. 7474(c).

And again, in the Surface Mining and Reclama-

tion Act of 1977, 91 Stat. 445, 523, the Secretary of

Interior is directed to prepare:

“[P]roposed legislation designed to allow In-

ian tribes to elect to assume full regulatory

authority over the administration and enforce-

ment of regulation of surface mining of coal on

Indian lands.” 30 U.S.C. 1300 (a).

The term “Indian lands’”’ is defined to include all

lands within the exterior boundaries of a reserva-

tion, whether in Indian ownership or not 30 U.S.C.

1291 (9).

The pattern of congressional action is clear. In

specific areas, in which it determines, after sufficient

study, that there is a tribal interest meriting federal

protection, Congress will delegate to a Tribe a lim-

ited measure of governmental power over non-mem-

bers. As shown by our first, third, and fourth exam-

ples,* this power may extend to non-members on non-

Indian lands. But implicit in this pattern is the as-

sumption by Congress that its action is required in

order that a Tribe may have these powers at all.

This same assumption, moreover, has been fol-

lowed by Congress in the area directly involved here,

taxation. In 25 U.S.C. 319, the Secretary of Interior

is authorized to grant easements for telephone and

telegraph lines across Indian reservations. In 25

U.S.C. 321, like authority is granted for oil and gas

pipelines. In both statutes, the Secretary is also au-

thorized to impose a tax upon these facilities ‘for the

use and benefit of the Indians.” The conferral of

this authority upon the Secretary would make little

sense, and would constitute an essentially useless act,

if the Tribes themselves had the inherent authority

to impose these same taxes upon these same facilities.

‘So far as we can ascertain, our fourth example is still in the

study stage, and has not yet been implemented by Congress.

D. The Understanding of the Executive Branch Has

Been That Indian Tribes Possess No Inherent General

Governmental Power over Non-Members.

In 1934, shortly after passage of the Indian Re-

organization Act (see pp. 11-15, supra), the Solicitor

of the Department of Interior, Mr. Margold, was

squarely faced with the question of the extent of an

Indian Tribe’s inherent sovereign power over non-

members. The specific question was the extent of a

Tribe’s inherent power of eminent domain. Op. Sol.

I.D. Ind. Aff. 1917-1974, Vol. I, 484, 489-491 (Dec.

13, 1934).*

The opinion first considered the source of this

tribal power.

The power of eminent domain is one of the

usual powers of sovereignty. It is, as the United

States Supreme Court held in Cincinnati v.

Louisville and Nash R.R. Co. (223 U.S. 390,

404), ‘one of the powers vital to the public wel-

fare of every self-governing community.”

No Federal statutes terminating the exercise

of this power by an Indian tribe are known.

Therefore, under the doctrines advanced in the

recent opinion of this Department on ‘Powers

of Indian Tribes” (M-27781, approved October

25, 1934), the power of eminent domain is one

of those powers which are vested in an Indian

tribe within the meaning of Section 16 of the

Wheeler-Howard [Indian Recognition] Act at

489.

Yet Solicitor Margold concluded:

I am of the opinion that the Indian Service is

correct “in assuming that a tribe organized un-

4This important opinion remained unpublished until this recent

two volume compilation.

der section 16 may exercise the power of emi-

nent domain in the acquisition of land as against

its members, but not in the case of land owned

in fee by non-members.” /bid.

This inherent power of eminent domain, which

is “one of the usual powers of sovereignty”, may be

exercised only with respect to tribal members.

From this, Solicitor Margold draws another im-

portant conclusion.

It is proper to add that since the tribal power

of condemnation is based, in the first instance,

upon tribal jurisdiction over the members of the

tribe, it ceases to exist where an Indian abandons

his tribal membership; and as was said in the

opinion of this Department on ‘Powers of In-

dian Tribes,” (M-27781, approved October 25,

1934, at page 36), “any member of any Indian

tribe is at full liberty to terminate his tribal rela-

tionship whenever he so chooses.” * * *

Threatened oppression in the form of condem-

nation, taxation, or other incidents of social

control may be avoided by the termination of

the landowner’s tribal status. But if he remains

to share in the benefits of tribal life he must bear

its burdens.

The restricted land of the Indian who has

severed his tribal affiliation is not subject to

tribal condemnation proceedings under tribal

law. At 490.

Non-Indians are in the same status as the Indian

who has severed his tribal membership, as the opin-

ion goes on to make clear.

Accordingly, patented land may be con-

demned, as it may be taxed on exactly the same

basis as the lands of non-Indians. An Indian

tribe will have whatever rights of condemna-

tion the laws of the State may give to it.

a * *

Land held in fee, therefore, whether owned

by Indians or by non-Indians, may be condemned

by an Indian tribe only in accordance with

State law, through proceedings brought in State

courts. At 490, 491.

As this opinion explicitly recognizes, a tribal

claim of general governmental power, even if it be

on the civil side, and whether it involves condemna-

tion, taxation, or any other form of civil jurisdiction,

is valid only with respect to tribal members. And as

the opinion reminds us, our system of government

has no room for “threatened oppression in the form

of cond mnation, taxation, or other incidents of

social control” over those non-members.

E. Washington v. Confederated Tribes of the Colville

Indian Reservation, __ U.S. _ , 48 LW 4668 (June 10,

1980) Supports the Conclusion That The Authority of a

Tribe to Tax Non-Members is Derived from the Power

to Exclude Non-Members From Indian Lands, and not

from any General Governmental Power over Those Non-

Members.

We now arrive at Colville itself. The Court there

stated:

“he ste 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 di-

vested of it by federal law or necessary implica-

tion of their dependent status. Cf. United States

v. Wheeler, 435 U.S. 313 (1978)” (Emphasis

supplied; 48 LW 4763.)

And again: )

“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.”

(Emphasis supplied ; /bid)

The reference to “trust lands” and “Indian

lands” suggests that the taxing power over non-mem-

bers is derived from the tribal power to exclude them

from those lands. But the reference to Wheeler seems

to suggest otherwise.”

The problem is easily resolved, we suggest, by

examining the authorities cited by the Court in its

discussion of the tribal taxing power. Thus, it cited

Powers of Indian Tribes, 55 ID 14, 46 (1934), as

follows:

“ ‘Chief among the powers of sovereignty recog-

nized as pertaining to an Indian tribe is the

power of taxation. Except where Congress has

provided otherwise, this power may be exercised

over members of the tribe and over nonmembers,

so far as such nonmembers may accept privileges

of trade, residence, etc., to which taxes may

be attached as conditions.’ ” Ibid. (Emphasis

added). 48 LW 4673.

‘The validity of the tribal “tax” in Colville, we suggest, was

actually not dependent at all upon the fact that the purchase of the

cigarettes took place on Indian land. As we pointed out in the State’s

reply brief in Colville, p. 17, the only enforcement mechanism util-

ized was for the smoke-shop operator to refuse to sell cigarettes to

any non-Indian customer who refused to pay the tax. And for this

reason, the tax could just as easily be imposed and enforced off

Indian lands as on them. For this same reason, we suggested that the

case did not involve a true tribal ‘“‘tax” at all, and that the validity

of the tax was really not an important issue.

The author of this opinion, dated Oct. 25, 1934,

was Interior Solicitor Margold, who, we have just

seen, stated approximately two months later, on

Dec. 13, 1934, that inherent tribal sovereignty did

not include the power to condemn—or tax—the prop-

erty of non-members. Solicitor Margold must then

be basing the tribal taxing power over non-members

upon the power to exclude from Indian lands, and to

condition entry. And the reference to “privileges of

trade, residence, etc., to which taxes may be attached

as conditions” compels that conclusion.

The other authorities cited by the Court in Col-

ville support that same conclusion as to the source

of tribal taxing power over non-members. Thus, in

17 Op. Atty. Gen. 134 (1881), “Intruders on Lands of

the Choctaws and Chickasaws,” the question was

whether non-Indians who were on lands of these In-

dians without complying with their permit laws could

be forceibly removed therefrom by the Department of

Interior. The answer, of course, was that they could.

In 7 Op. Atty. Gen. 174 (1855), one of the ques-

tions was whether an Indian court had civil jurisdic-

tion over a white man who had voluntarily made him-

self a member of the Chickasow Nation, and was

exercising all the rights of a Chickasaw. Again, the

answer was yes.

In 23 Op. Atty. Gen. 214 (1900), “Trespassers

on Indian Lands,” the question again was whether a

non-member could be forcibly removed by the United

States for failure to pay a tribal permit or licensee

fee on the non-member’s business. Again, the answer

was yes.

Similarly, the three decisions cited in Colville,

i.e., Buster v. Wright, 135 F. 947 (CA 8 1905), appeal

dismissed. 203 U.S. 599 (1906) ; Iron Crow v. Oglala

Sioux Tribe, 231 F. 2d 89 (CA 8 1956) ; and Morris

v. Hitchcock, 194 U.S. 384 (1904), were all removal

cases.

One last observation on this point. Although the

tribal power to exclude non-members from Indian

lands, and to attach conditions upon entry, is similar

to that of an ordinary landowner, there is an impor-

tant difference. The Tribe can exercise that power,

not only with respect to lands in tribal ownership,

but also with respect to lands owned by its members.°

By reason of this difference, that power can fairly

be characterized as a power of “sovereignty”; and in

his Oct. 25, 1934 opinion, quoted above, Mr. Margold

so characterized it. But as he himself made clear two

months later, this should not be confused with the

“sovereignty” which a state or the federal govern-

ment exercises when it imposes a tax. That sort of

sovereignty, when exercised by a Tribe, is applicable

only to tribal members.

6As shown by Morris v. Hitchcock, supra, which involved the

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

power to condition entry may even apply to non-Indians when on

their own lands, if there is a federal statute which recognizes such

a power.

II. THE ISSUE OF THE TRIBE’S POWER TO

EXCLUDE AND CONDITION ENTRY UNDER

THE CIRCUMSTANCES IN THIS CASE.

On this issue, there may actually be no contro-

versy with the Tribe. For the Tribe appears to agree

that the Petitioners have valid leases, and that ac-

cordingly the Tribe has no power to remove or ex-

clude them.’ The Petitioners’ leases, in short, are real

leases and not sham leases.

Nevertheless, a brief discussion may be in order,

in anticipation of a possible change in the position of

the Tribe on this point.

We start with the Act of March 3, 1927, 44 Stat.

1347, 25 U.S.C. 398a-398e. That Act, which author-

izes the leasing of lands on executive order reserva-

tions for oil and gas production, was designed to re-

solve the confusion and uncertainty then existing on

two critical questions:

Who held the beneficial interest in the oil and

gas on these reservations? Was it the United States?

Or the Tribe? Further, what statutory authority, if

any, existed for the leasing of these lands for oil and

gas production?

Senator Bratton of New Mexico explained how

these problems arose.

Mr. President, I think the question now before

7See Brief in Opposition of Respondent Jicarilla Apache Tribe,

18, in which the Tribe discusses Iron Crow v. Oglala Sioux Tribe,

231 F. 2d 89 (CA 8, 1956), and concludes:

“As in the present case, the non-Indian lessee was already on

the reservation pursuant to an authorized lease. Thus, the power

to exclude could not have been the basis for the Court’s ap-

proval of the tax because the Tribe could not exclude or remove

the holder of a valid lease.’”’ (Emphasis supplied)

the Senate is of sufficient importance and mag-

nitude to justify consuming some time in placing

before the Senate just what we are about to do.

Prior to 1871 the method of establishing res-

ervations for the occupancy of Indians was

through treaties entered into between the United

States and the Indian tribes. Reservations were

created and established in that manner. In 1871

the procedure was changed and the method of

creating reservations by treaty was discontin-

ued. The new method was adopted which was to

create such reservations by Executive orders en-

tered by the President from time to time. Under

that method various reservations were created.

At the present time they are located in 10 dif-

ferent States, and the area aggregates about 23,-

000,000 acres of land. It is that land with which

we are dealing in this bill.

Prior to 1920 we had what was commonly

called the placer filing law, under which locators

could take up and acquire the right to explore

land after discovery of minerals, by staking the

land, recording the notice of filing in the office

of the county clerk, and otherwise complying

with the law then in force.

In 1920 that law was repealed, and there was

enacted what is commonly called the general

leasing act, approved February 25 of that year,

which authorized the Secretary of the Interior to

execute leases for oil and gas purposes upon

lands constituting the public domain belonging

to the United States. In due time the question

arose as to whether that law applied to executive-

order Indian reservations, and of course that

question turned upon where the title to those

lands was vested; that is, whether the title re-

mained in the United States or whether it was

vested in the Indians. The question was submit-

ted to [Interior] Secretary Fall, and in 1922 he

rendered an exhaustive opinion holding that,

those lands were owned by the United States,

subject to the right of occupancy of the Indians,

and that consequently the general leasing act

applied.

Following that decision a number of applica-

tions were filed, covering lands located within

those reservations. The number of such applica-

tions which are now pending before the depart-

ment has been variously stated from two hun-

dred and odd to 475. About 20 of those received

favorable action by the Secretary of the Interior,

and permits were issued in accordance with the

rovisions of the general leasing act. Those

ands are embraced within the Navajo Reserva-

tion, which consists of about 10,000,000 acres of

land, located in the States of Utah, Arizona, and

New Mexico, and perhaps some in Colorado. The

question was debated and continued to be one of

controversy until in 1924, when Attorney Gen-

eral Stone rendered an opinion in which he held

that the general leasing act did not apply. His

opinion will be discussed later. He reached that

conclusion from two or three considerations.

Of course, at that time the applications were

suspended. The Interior Department, harmoniz-

ing with the opinion of the Attorney General,

declined to grant any additional permits. The

475 applications, or whatever the number may

be, remained and still remain on file in the In-

terior Department. 67 Cong. Rec. 10913, 10914,

June 8, 1926.

Senator Bratton further explained that, in ac-

cordance with the position taken in the Attorney

General’s opinion, the United States brought an ac-

tion in Federal court in Utah to have the twenty or

so leases previously issued declared void and can-

celled. The Federal court, however, disagreed with

the Attorney General, held that the 1920 Act applied,

and refused to cancel the leases.

The United States appealed, the Court of Ap-

peals certified the question to this Court, where it

apparently remained pending. 67 Cong. Rec. 10914.

As again stated by Senator Bratton:

Therefore we are in this position: If the

Federal court of Utah was correct and the

sm ge leasing act of 1920 does apply to these

ands, the Indians own no interest in the oil and

gas or other minerals, but merely possess the

right of occupancy. If that decision is affirmed

the royalty or the income from the development

of those lands for oi] and gas purposes will be

divided in accordance with the provision of the

general leasing act, which is 52.5 per cent to the

reclamation fund, 10 per cent to the General

Treasury, and 37.5 per cent to the State in which

the land is located.

If we fail to enact legislation and the Supreme

Court of the United States should agree with the

Federal court of Utah that title to such lands is

vested in the United States, the Indians would

have no interest in any part of the royalty there-

from; so that it is important that we enact leg-

islation of some kind upon this subject. [bid.

The oil companies had no less a problem. If

the opinion of the Attorney General was correct, and

the Federal court in Utah incorrect, there would have

apparently been no statutes authorizing any leasing

at all of the lands on executive order reservations.

The twenty or so leases previously issued would re-

main invalid, and no future leasing would occur.

The 1927 Act solved these problems. In section 1,

it provided that unallotted lands within the limits

of any executive order reservation ‘may be leased

for oil and gas mining purposes in accordance with

the provisions contained in the Act of May 29, 1924

(43 Stat. 244)”. 25 U.S.C. 398a. The Act of May 29,

1924, codified as 25 U.S.C. 398, provides a general

leasing authority for other Indian reservations.*

Section 2 of the Act (25 U.S.C. 398b) set aside

in the Treasury of the United States, for the benefit

of the Tribe, the moneys derived from the lease rent-

als, royalties, or bonuses.

Section 3 of the Act (25 U.S.C. 398c) provided

that state or local authorities could levy taxes upon

the “improvements, output of mines or oil and gas

wells or other rights, property, or assets of any les-

see” operating on the reservation, in the same man-

ner as it might tax any other oil and gas operator.

Further, ‘‘such taxes may be levied against the share

obtained for the Indians as bonuses, rentals, and roy-

alties.”’

Thus sections 2 and 8 assured both the Tribes and

the states of a share of the benefits.

Lastly, section 5 provided relief for the operators

who had been granted leases under the 1920 Act, but

had seen their leases invalidated by the Attorney

General’s opinion. (See 34 Op. Att. Gen. 171 (1924) )

Any such lessee who had spent money in developing

the leased land, or had started drilling before Janu-

: SWhether the 1924 Act applied to executive order reservations

was a matter of debate. See colloquy between Senators Bratton and

Wheeler on this point. 67 Cong. Rec. 10914.

ary 1, 1926 would be entitled to a lease of one-fourth

the land covered in his original application.

It should be patently obvious that, in passing

the 1927 Act, Congress intended to autharize the is-

suance of real leases, i.e., leases which entitled the

lessee to remain in possession and continue his opera-

tions so long as he complies with the terms and con-

ditions of the lease. The oil and gas industry ws as-

sured of a statutory system whereby the resources

on executive order reservations would be available

for development. The Tribes and the States were

assured of their share of the proceeds from that de-

velopment. And even those lessees who had expended

money on a false start were given relief. Fairness to

these lessees was important to the Congress, and in-

deed was the major consideration in adopting section

5 of the Act.

It is simply inconceivable that Congress intended

to allow a Tribe to disrupt completely this statutory

system through the exercise of its power to remove

non-members from the reservation.

The Tribe contends, we recognize, that the Peti-

tioners’ leases were issued pursuant to the Act of May

11, 1938, 52 Stat. 347, 25 U.S.C. 396a-396g, rather

than pursuant to the 1927 Act. See Brief in Opposi-

tion of Respondent Jicarilla Apache Tribe, 11-15.

Even if this contention is correct, however, this does

not affect our basic submission. If the 1938 Act ef-

fectively replaced the 1927 Act, as the Tribe contends

(see Brief in Opposition, supra, 12, 13) Congress

could hardly have intended to substitute for the 1927

Act, which provided for the issuance of real leases,

a new statutory system which provided for the is-

suance of sham leases. The 1938 Act, even if appli-

cable, arrested the tribal exercise of its power to ex-

clude just as effectively as the 1927 Act.

CONCLUSION

For the reasons given above, the decision of the

Court of Appeals should be reversed.