# Amicus Brief — Merrion v. Jicarilla Apache Tribe > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0029%3A22 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1982 - **Citation:** 455 U.S. 130 ## Text ’ i IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1979 No. 80-11 J. GREGORY MERRION, et al., Petitioners, V. 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, V. 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- 7) 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. vt 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 16 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- 17 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. 18 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. 19 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 20 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 21 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. 22 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 23 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. 24 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) 25 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, 26 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 27 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, 28 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. 29 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 30 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. SLADE GORTON, Attorney General TIMOTHY MALONE, Assistant Attorney General State of Washington Temple of Justice Olympia, Washington 98504 (206) 753-6245 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0029%3A22. Public record. Not legal advice.