Amicus Curiae Brief — California v. Cabazon Band of Mission Indians

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A. The Tulalip Tribes of Washington.

The Tulalip Tribes of Washington is a

federally recognized Indian Tribe, and a

Successor in interest to tribes and bands

that signed the Treaty of

Stat. 927 (1855). The Tribe occupies a

reservation consisting of approximately

22,000 acres in a predominantly rural area

of Snohomish County, Washington. Its

governing body functions under a federally

approved constitution and bylaws, adopted

pursuant to the Indian Reorganization Act

of 1934, 25 U.S.C. {476. Through the Indian

Reorganization Act and other federal laws

and policies, the United States has

supported the commitment of tribes to

self-determination and economic develpment.

President Reagan has reaffirmed the unique

government to government relationship

between the United States and tribes, and

the federal interest in strong tribal

governments. At the same time, his

administration has encouraged tribal

governments to explore alternative ways of

revenue raising and economic development as

federal financial assistance to tribes is

sharply decreased. President Reagan’s

Indian Policy statement (January 24, 1983).

Faced with similar cuts in federal

financial assistance, states like

Washington have turned to government run

lotteries. In Washington State, local

governments and charitable organizations

are permitted to raise substantial revenue

by regularly running bingo games, and

certain other gambling activities.\1l

1. Such gambling activities, when run

by governments have traditionally been

considered a form of voluntary taxation,

and a legitimate revenue raising mechanism.

See, State and Local Taxation, 20 Wayne L.

Rev. 611, 645 (1974); Clark v. Mayor and

Alderman of the City of Washington, 25 U.S.

(12 Wheat) 40, 53-54 (1827); Karafa v. New

Jersey State Lottery Commission, 128 N.J.

Super. 499, 324 A.2d 97, 100 (1974).

Regarding the broad taxing powers of tribes

(Continued on next page)

Several years ago, with a loan from the

Bureau of Indian Affairs of nearly $1

million dollars, and a loan of

approximately $2 million from a private

financial institution, the Tulalip Tribe

established a reservation entertainment

center on tribal trust land. There, the

tribal government operates bingo, pull tab,

and punchboard games. All profits go to

the government’s general operating fund and

have enabled the Tribe to continue some of

the badly needed social services which

otherwise could no longer be provided. In

addition, the Center has trained and

employed a substantial number of tribal

members and their families in food service,

management, and other required skills,

providing Jobs on a reservation where

(Footnote 1 continued)

as to tribal transactions with non-Indians

from outside the reservation, see,

Washington v. Confederated Tribes, 447 U.S.

134, 152-154 (1980).

unemployment has hovered around 45-50%.

Several years ago, the Washington State

Gambling Commission litigated the question

of whether certain Washington state law

restrictions applied to the tribe. State

v. Hatch, et al., W.D. Wash. No. C83-1518R.

In 1984, the federal district court, ina

carefully reasoned opinion, concluded:

-.-RCW 9.46.030 authorizes bingo and

pulltab ocperations by a wide variety

of charitable and nonprofit

organizations... The Washington

statute regulates bingo as a money

making venture by limiting the

location and number of days of

operation, requiring that all

proceeds be applied to the

organization conducting the game and

prohibiting the use of professional

managers other than members or

employees of the organization. RCW

9.46.020(2). Pulltabs are regulated

by limiting the price at which they

may be sold. RCW 9.46.110.

x *&

(P]rofits received by the Tribe from

the bingo and pulltab activities are

to be invested for the betterment of

the Indian community...while the

Tulalip Tribe may not qualify as a

charitable organization within the

letter of the Washington gambling

statute and the Tribe’s gaming

operation does not fully comply with

all requirements of the statutory

scheme, the Tulalip Tribe can be

said to fall within the spirit of

the state’s permissive intent.

Id., Order Granting Defendants’ Motion for

Summary Judgment (August 14, 1984) p. 10

(copy appended). The State’s appeal to

the Ninth Circuit was dismissed as

untimely, and there has been no further

litigation in Washington State over tribal

bingo. \2

2. There has been federal enforcement

as to isolated instances of Indian casino

gambling. In U.S. v. Lummi, the federal

government distinquished tribal bingo

operations:

Washington State, as Farris holds,

and as we have discussed above, has

a strong prohibition policy against

professional gambling. Professional

gambling includes such activity as

bookmaking, blackjack, craps, etc.,

and is virtually either totally

prohibited, or limited to one narrow

exception, the fund raising event,

popularly known as "Reno night".

Bingo, on the other hand, is

permitted to be played weekly by

bona fide charitable or non-profit

organizations under certain

conditions. The same constraints

apply to both the Reno night and to

bingo in regard to the nature of the

organization which can conduct the

(Continued on next page)

In the Tulalip case, the State

Gambling Commission asserted a fear of

organized crime infiltration. However, its

concerns are contrary to the views of local

law enforcement familiar with the tribal

operation. In commenting on the various

tribal gambling bills being considered by

Congress, the Snohomish County Sheriff

wrote:

July 2, 1986

Senator Mark Andrews, Chairman

Senate Select Committee on Indian

Affairs

Dear Senator Andrews:

I write this letter concerning the

Tulalip Tribes of Washington’s

gaming enterprise located on the

Tulalip Indian Reservation in

(Footnote 2 continued)

activity, but the nature of the

activity which can be engaged in is

very different.

Memorandum of the United States in Support

of Plaintiff’s Motion for a Preliminary

Injunction, United States v. Lummi, No.

C83-946 (W.D. Wash. 1983) at 33-34.

Snohomish County, Washington for t

due consideration of the enat

Select Committee on Indian Affairs

now considering H. R. 1920, S.902

and S.2557.

I am personally and professionally

acquainted with the management and

operation of the Tulalip Bingo and

pull tab gaming conducted at the

Tulalip Bingo Center.

The Tulalip Indian Reservation is a

PL280 reservation and as Sheriff of

Snohomish County I am the chief law

enforcement officer responsible for

investigation of crimes committed by

Or against Tribal members’ on the

reservation.

The controls, checks and balances

established by the all tribal

mamagement has resulted in a gaming

operation, in my opinion, free from

outside or corrupt influences or

practices. It is a well run and

"clean" enterprise.

The security of the facili

gaming public is ©

protected and includes eo)

members of my department.

add that from the inception o

planning and the final construction

of the entertainment center, both

Sides have worked in a cooperative

spirit to make sure that this

operation remained free and clear of

all outside influences that

represent gambling interests, and

both parties agree that these

policies have afforded the

protection and safety provided by

the Sheriff and the image and

integrity for the Tulalip Tribes.

T 9 lef , + } - } 7 |

would urg tnat all due

consideration and respect for tribal

gaming in the nature of bingo, pull

tabs and punch board run by Tribes

themselves be afforded by the

committee in its consideration of

the various iegislative proposals.

Thank you.

Sincerely,

/S/

Robert M. Dodge

Snohomish County Sheriff

The Tulalip Indian Reservation has been

plagued by extremely poor economic and

living conditions, which the tribal

government has been committed to

alleviating. Through its general funds,

the tribal government has operated a

variety of social services, including

mental health, medica’, dental, and alcohol

treatment programs, a reservation headstart

pre-school facility, public school busing,

higher education scholarships, garbage

collection, fire protection, recreational

programs for senior citizens and children,

and other services. The tribal government

is also committed to increasing employment

opportunities on the reservation through a

coordinated program of economic

development. However, economic

development has been limited by the

scarcity of exploitable natural resources,

and lack of adequate funds. The Tribe has

a small logging operation, but has' had to

rely primarily for tribal revenue on

leasing tribal lands to non-Indians, rather

than developing reservation lands itself

because of its limited financial resources.

In the early 1980’s, as the Tribe faced

increasing and drastic cuts in federal aiid

state support for reservation services, it

needed to find other revenue sources for a

number of services, such as a nurse

practitioner position, a health

administrator position, a health

administrator position, a health planning

position, orthodontic services, certain

mental health services, and its' alcohol

treatment program. The Tribe explored a

possible tribal shopping center

development, but was first stymied by the

refusal of sewer and water services from

the nearby City of Marysville, wnich feared

the potential economic competition to

Marysville businesses, and then by a down

turn in the general economy limiting the

proposed shopping center’s potential.

After considering a variety of economic

development opportunities, the tribal

government, with substantial financial

assistance from the Bureau of Indian

Affairs, developed a program to develop

tourist and recreational opportunities on

the reservation. In June 1983, the Tribe

opened the Tulalip Entertainment Center.

In addition, a nearby hotel/restaurant

complex has been constructed on tribal

trust land. .

The only gambling activities permitted

at the Tulalip Entertainment Center are

bingo and pulltab games. The facility is

operated pursuant to a tribal ordinance,

which was reviewed and approved by the

Secretary of Interior, and which prohibits

any private gambling operation on the

Reservation. No personal profit making

from the bingo and pulltab games is

permitted, and all revenue goes to

operation costs, debt retirement, and the

tribal government’s general fund. The

Tribe operates the facility without any

outside management company. The Tulalip

Entertainment Center manager is a tribal

member who received training in accounting

and business under the GI Bill, served as

an Assistant Tribal Business Manacer for

the Tribe from 1959 through 1963, and as

the Tribal Business Manager, from 1963 to

1978. The Tulalip Entertainment Center has

employees, 69 of whom are tribal

members, 12 whom are spouses of tribal

embers, and6 of whom are from other

tribes. The 6 other employees are

non-Indians with no affiliation with the

Tribe or its members. They work in

non-managerial capacities, such as bingo

number callers, food servers, pulltab

selling, and security.

Before opening the Tulalip

Entertainment Center, the Tribe employed a

former chairman of the Washington State

Gambling Commission to assist in

establishing a tightly controlled, well run

program. The personnel, particularly the

top management, were subject to tribal

background checks, including the checking

of FBI records, for links with organized

crime or other criminal activities. All

employees are carefully trained, to insure

tight security. The Tribe spent

substantial sums on sophisticated

equipment, including 18 cameras, tv

monitors, a direct centralized computer

accounting of cash register transactions,

and a special security room with a

round-the-clock security patrol. Off-duty

WwW

Snohomish County police are employed to

assist the Tribe in patrolling the facility

on weekends and evenings.

The Tribe selected the operation of

bingo and pulltab games because they have

been extremely successful and widely used

as means of raising funds for charitable

purposes in Washington State. According

to State records, produced in the Hatch

case, in FY ’82, statewide gross receipts

from bingo, pulltab and punch board games

were $89,747,976.00 from bingo, and

$125,103,942.00 from punch board and

pulltabs. In 1981, there was 57 bingo

operations in Snohomish County alone, which

generated gross receipts of $9,495,905.00,

and 671 bingo licenses throughout the

State. State bingo licensees paid prizes

in excess of $68,000,000.00 in 1982 (in

excess of $7,000,000.00 in Snohomish

County) and had net income in excess of

$8,000,000.00 ($865,612.00 in Snohomish

County). Until recently, the Washington

State Gambling Commission placed no dollar

limit on gross revenues to a single

organization from bingo, pulltabs and food

services. Single facilities, such as Big

Brothers in Spokane, Washington, grossed

$4,300,000.00 in 1982 from such operations.

State regulations now limit each bingo

operations’ revenue to annual gross

receipts of $3,500,000.00. In its first

year of operation, Washington State’s

recently established lottery generated

66,700,000.00 for the State General Fund.

B. Soboba Band Of Mission Indians,

la Band Of Mission Indians, And

inidad Tribe.

The Soboba Band of Mission Indians has

a bingo facility which is presently closed.

The LaJoll Band of Mission Indians, and

the governing body of the Trinidad

Rancheria do not have any bingo or other

gambling operations on their reservations.

However, all three tribes join in this

amicus brief because of their concern with

the sweeping and fundamental changes in

Indian law principles which California and

other states are advocating. Each of these

California tribes suffer from exceptionally

high unemployment and impoverished

reservation conditions. A ruling that

states may exercise regulatory authority

over them, in the absence of Congressional

authorization or under Pub L 280, could

have a severe impact on their efforts to

improve living conditions and economic

opportunities on their reservations. In

California, pre-Bryan efforts to assert

such regulatory authority highlighted the

problems of a wholesale application of

state and local laws to reservation

Indians. As was pointed out by the Ninth

Circuit Court of Appeals in regard to the

impact on tribal housing programs and

tribal economic development generally,

..--subjecting the reservation to

local jurisdiction would dilute if

not all together eliminate Indian

political control of the timing and

scope of the development of

reservation resources, subjecting

Indian economic development to the

veto power of potential hostile,

local non-Indian majorities. Local

communities may not share the

usually poorer Indian’s priorities,

or may in fact be in economic

competition with the Indians and

seek, under the guise of general

regulations, to channel development

elsewhere in the community. And

even when local regulations are

adopted in the best of faith, the

differing economic situations of

reservation Indians and the general

citizenry may give the ordinance of

equal application a vastly

disproportionate impact.

Santa Rosa Band of Indians v. Kings County,

532 F.2d 655, 664 and n. 14 (1975), cert.

denied 429 U.S. 1038 (noting that county

regulation of state permitted forms of

gambling were an example of such

concerns). \3

3° In Bryan v. Itasca County, the

Court noted with approval the Ninth Circuit

Court of Appeal’s concern that state

regulatory authority over reservation

Indians could serve to channel economic

development elsewhere, and further

(Continued on next page)

The amici tribes urge the Court to keep

in mind the ramifications of the state’s

legal position for other tribes and the

implications of that position in other

state/tribal jurisdictional contexts.

SUMMARY OF ARGUMENT

The focus of this amicus brief is on

the question of whether a federal common

law balancing test or "Public Law 280"

controls the determination of state

jurisdiction. The thrust of California’s

argument is that this Court is free to

decide, as a matter of policy, whether a

state may legislate the parameters of

permissible tribal activity on trust or

(Footnote 3 continued)

undermine the ability of tribes to improve

reservation living conditions. Bryan v.

Itasca County, 426 U.S. 373, 388 n. 14

(1976).

restricted lands within the Tribe’s

reservation. California and its supporting

amici attempt to extract sweeping new

Indian law principles from this Court’s

decision in Rice v. Rehner, 463 U.S. 713

(1983). If this Court were to adopt their

interpretation of "modern federal Indian

law," it would be departing substantially

from both its earlier and most recent

Indian law decisions.

Rice clearly was not intended to invade

the exclusive province of Congress to

decide the extent to which states may apply

their laws to reservation tribes and their

members. In Rice, this Court upheld the

imposition of state liquor licensing

requirements upon a tribal member

"(bjecause we find that Congress has

5, 4

delegated authority to the States as wel

as to the Indian tribes to regulate the use

and distribution of alcoholic beverages in

Indian country..." 463 U.S. at 715. The

Court recognized that, although tribes may

have lacked self-governing authority over

liquor transactions and states may have had

concurrent jurisdiction to prevent

non-Indians from selling liquor to Indians,

a Congressional delegation was necessary

"to fill the void" in federal/state law

applicable to tribal members once the

federal prohibition upon their sales was

lifted. Id. at 733.

This traditional immunity of

reservation tribes and their members’ from

the application of state laws is well

established. It requires careful attention

to the identity of the persons and entities

against whom a state law is to be enforced.

See, Washington v. Confederated Tribes

the Colville Indian Reservation, 447

134, 151 (1980). The states have ignored

such critical factors in arguing they have

residuary jurisdiction over tribes and

that this matter may be decided by a

balancing test. This Court has’ ruled that

the application of state laws to tribes in

situations such as this is impermissible in

the absence of Congressional authorization.

Moreover, Public Law 280, 67 Stat. 588,

set the parameters for assertions of state

jurisdiction over reservation Indians, in

the absence of other federal statutes

addressing the particular Indian activity

involved. As this Court explained in

McClanahan v. Arizona Tax Commission,

the "modern cases" on state jurisdiction

over reservation Indians lock to the

applicable treaties and statutes, such as

Public Law 280, "which define the limits of

state power." 411 U.S. 164, 172 (1973).

The Court noted that:

The extent of federal pre-emption

and residual Indian sovereignty in

the total absence of federal treaty

obligations or legislation is

therefore now something of a moot

question. Cf. Organized Village of

Kake v. Egan, 369 U.S. 60, 62, 7 L.

Ed.2d 573, 82 S. Ct. 562 (1962);

Federal Indian Law 846. The

question is generally of little more

<<<

than theoretical importance,

however, since in almost all cases

federal treaties and statutes define

the boundaries of federal and state

jurisdiction.

Id. at 172 on. 8.

A close examination of Bryan v. Itasca

County, 426 U.S. 373 (1976), including

the briefs and record in that case, make

it clear that the the Court carefully

considered its statements regarding Pub L

280’s effect on state regulatory

authority. Those statements constituted

rulings ona critical issue, and were not

dictum.

Amici tribes are concerned not only

with the implications of the new Indian law

principles urged by the states in regard to

revenue raising from bingo and similar

games. If adopted, the fundamental changes

proposed in the scope of this Court’s prior

rulings can have broad ranging implications

beyond the regulation of gambling.

Particularly when Congress is aware of

state concerns regarding Indian gaming

activities and is considering the need for

any change in the current the law, this

Court should be hesitant to intrude upon a

province that it has traditionally left to

legislative determination.

ARGUMENT

WITHIN AN INDIAN RESERVATION,

CONGRESSIONAL AUTHORIZATION IS NECESSARY

FOR STATES TO REGULATE INDIAN TRIBES

A. In Determining the Applicable Legal

Principles, It Is Critical To Identify At

The Outset To Whom The State Law Is To Be

Applied

The California and county laws at issue

are laws governing operators of bingo and

card games. The players are not violating

any specific state or local law by their

participation in the games. Although the

appellee tribes may have utilized

non-Indian owned management companies, they

explain in their brief why this does not

alter the fact that the tribes are the

operators of the games. In terms of

whether a common law balancing test can

determine the applicability of these laws

in this case, the fact that the subject of

state regulation is the Tribe is critical.

It serves to distinquish those cases in

which a balancing test has been used to

find state law applicable in the absence

of Congressional authorization.

This Court should begin its analysis as

it did in McClanahan vv. Arizona Tax

Commission, 411 U.S. 164 (1973) The

state court decision being reviewed in

that case was based on essentially the same

theories of state jurisdiction as have been

proposed here, i.e., states have concurrent

jurisdiction on [Indian reservations and

therefore in the absence of a

countervailing tribal self-government

interest, state laws may be applied to

tribal members. 411 U.S. at 167. Before

deciding whether state jurisdiction was

preempted, the Court emphasized that it was

"not concerned with exertions of state

sovereignty over non-Indians who undertake

activity on Indian reservations" and that

it was dealing with on-reservation activity

by an Indian whose tribe had the “usual

accoutrements of tribal self-government."

Id. at 167-168. The Court then went on to

reaffirm that Navajo treaty provisions

setting aside the reservation for Indian

use and controlling white entry were

sufficient in themselves "to preclude the

extension of state law - including state

tax law - to Indians on the Navajo

Reservation." McClanahan v. Arizona Tax

Commission, 411 U.S. at 175.\4 In

4. In regard to the argument that

states have "residual" authority over

reservation Indians based on principles

discussed in Organized Village of Kake v.

Egan, 369 U.S. 60 (1962), the Court noted

that that case dealt with non-reservation

Indians and that different principles would

apply regarding "the exercise of state

authority in areas set aside by treaty for

the exclusive use and control of Indians."

(Continued on next page)

examining subsequent legislation, the Court

concluded that "Congress has consistently

acted upon the assumption that the States

lacked jurisdiction over Navajos living on

the reservation." Id. at 137.

The provisions in the organic documents

providing for the Navajo Reservation and

the subsequent legislation discussed in

McClanahan are not unique to the Navajos.

The Tulalip Tribe has a treaty with

similar rovisions regarding use and white

entry. See, Treaty of Point Elliott, 12

Stat. 927, Washington v. Fishing Vessel

Assn., 443 U.S. 658, 663 n. 3 (1979).

Although without such treaties, the

California tribes were to have a similar

status on their reservations. See, e.g.

Mission Indian Relief Act, 26 Stat. 712,

(Footnote 4 continued)

411 U.S. at 176 n. 157-~See also, Note, The

Extension of County Jurisdiction Over

Indian Reservations in California: Public

Law 280 and the Ninth Circuit, 25 Hastings

LJ 1451, 1459, 1477-1481 (1974).

Sec. 3 (1891) ("for sole use and benefit

for band or village").

The subsequent legislation which this

Court cited in McClanahan to conclude that

Congress had continued its initial

preemption of state jurisdiction over

tribes was not limited to the area of

taxation. Besides legislation on taxation

of Indians, the Court noted special

Congressional authorization to apply state

liquor, health and education laws within

Indian reservations. Like state gambling

laws, the subject areas covered by other

cited statutes are also ones in which

states can claim significant interests and

potential effects on non-tribal members.\5

5. The earlier decisions on which

McClanahan relied for preemption by treaty

involved on reservation commercial

transactions that were not’ restricted to

sales between members. See, Warren Trading

Post Co. v. Arizona Tax Comm’n, 380 U.S.

685, 687, 690 (1965); Williams v. Lee, 358

U.S. 217, 221-222 (1959). Those factors

did not alter the finding of preemption of

state authority as to the tribe or its

members.

As was true of the tax statutes, those

other federal laws would be "explicable

only if Congress assumed that the States

lacked the power to impose [their laws]

without special authorization." See,

McClanahan v. Arizona Tax Commission, 411

U.S. at 177 and n. 16.\6

The result of the preemption anz_ysis

in McClanahan was to reaffirm that state

laws are not applicable to reservation

tribes and their members in the absence of

Congressional authorization.

B. A Balancing Test Has Only EPeen

Deemed Sufficient To Allow The Extension Of

6. The principles applicable to the

determination of state taxing authority are

not unique to Indian tax disputes but

rather are derived from general pri.ciples

regarding the application of state laws to

tribes. See, McClanahan v. Arizona Tax

Commission, 411 U.S. at 170-171, quoting

from U.S. Dept. of the Interior, Federal

Indian Law 845 (1958); Bryan _v. Itasca

County, 426 U.S. 373, 376 n. 2 (1976).

State Laws To Indian Reservations When The

Alleged Illegal Activity Was Committed By A

Non-member.

In cases where a balancing test has

supported state jurisdiction, the object of

state law enforcement was alleged illegal

activity by a non-member. See, e.g.,

Washington v. Confederated Tribes of the

Colville Reservation, 447 U.S. at 15)

(state taxes whose incidence fell upon

non-member purchasers could be applied);

White Mountain Apache Tribe v. Bracker, 448

U.S. 148 (1980) (balancing test used to

determine enforceability of motor carrier

and use fuel tax against non-member log

transporters) ; Ramah Navajo School Board

v. Bureau of Revenue, 458 U.S. 832 (1982)

(balancing test used to determine

enforceability of state gross receipts tax

against non-member builder); New Mexico v.

Mescalero Tribe, 462 U.S. 324 (1983

(balancing used to determine applicability

of state hunting and fishing reguiations tc

non-members).

However, while state interests have

been balanced against tribal/federal

interests where non-members are allegedly

violating a state law requirement, the

Situation is different where the object of

enforcement is a tribe or its members. For

example, the application of state vendor

licensing requirements to a tribal member

was analyzed differently from taxes whose

incidence was on a non-member purchaser.

See, Moe v. Salish & Kootenai Tribes, 425

U.S. 463 (1976) (Cigarette sales to

non-Indians from off reservation). In

Spite of arguable state interests, the

licensing requirement fell within the

traditional immunity of tribes and their

members from unauthorized state regulation

of their on-reservaton activities,

regardless of the commercial nature of the

sales, the percentage of off-reservation

non-member consumers, the health hazards of

Sigarettes, etc. In Rice v. Rehner, this

Court assumed that, in spite of the strong

state interests and lack of interference

with tribal self-government, there would

have been a state/federal law enforcement

"void" if Congress had not delegated states

authority to regulate liquor selling by

reservation members. 463 U.S. at 733. In

the absence of federal legislation

authorizing the application of state law to

the tribal member, the state could not

restrict the Indian seller.\7

7. The Court in Rice found concurrent

state jurisdiction to prohibit non-members

from selling liquor to Indians or

introducing it in Indian country. 463 U.S.

at 723, n. 10, and Blackman, J.

dissenting, 463 U.S. at 740, n. 2. But

state regulation of members required

Congressional authorization. Rice utilized

an examination of respective governmental

interests in deciding whether the

Congressional delegation of state

jurisdiction had to be explicit, as had

been contended by Eva _ Rehner. The Court

said:

The thrust of Rehner’s argument, and

the primary focus of the Court

below, is that state authority in

this area is pre-empted because such

authority requires an express

statement by Congress in light of

the canon of construction that we

(Continued on next page)

——s oor...

In both the Colville and Moe cases, the

Court was concerned that the Indian’s

competitive advantage was "dependent on the

extent to which the non-Indian purchaser is

willing to flout his legal obligation."

(Footnote 7 continued)

quoted in McClanahan, supra: "State

laws generally are not applicable to

tribal Indians on an Indian

reservation except where Congress

has expressly provided that State

laws shall apply.’ "...As we have

established above, because of the

lack of a tradition of

self-government in the area of

liquor regulation, it is not

neessary that Congress indicate

expressly that the State has

Jurisdiction to regulate the

licensing and distribution of

alcohol.

Id. at 731 (emphasis added, citations

omitted).

The Court employed a balancing test to

determine the most likely Congressional

intent in the absence of an explicit

statement authorizing state jurisdiction.

The Court concluded that the _ statutory

language and intent in 18 U.S.C. 1161 was

plain. Id. at 730. It did not rule that

states may have Jurisdiction over

reservation Indians even in the absence of

federal legislation authorizing such

jurisdiction, so long as State interests

outweigh federal and tribal interests.

Washington v. Confederated Tribes, 447 U.S.

at 151, quoting from Moe v. Salish &

Kootenai Tribes, 425 U.S. at 482. That

simply is not the situation here.

Non-Indian players are not flouting any

state legal obligation. The question is

not whether tribes are providing an

opportunity for non-Indians to evade their

legal obligations to the states. The

question is whether Congress has authorized

states to regulate and enforce their laws

against tribes.

Ii.

PUBLIC LAW 280 PREEMPTS A STATE’S

REGULATORY AUTHORITY OVER TRIBAL MEMBERS

AND THE ASSERTION OF JURISDICTION OVER

TRIBES

A. In The Absence Of Other

Legislation Authorizing State Jurisdiction

Over A Particular On Reservation Tribal

Activity, The Limits Of Public Law 280

Jurisdiction Control.

Congress has spoken on the extent of

permissible state Jurisdiction over

reservation Indians and Tribes. By passing

Pub L 280, Congress authorized certain

criminal and civil Jurisdiction over

reservation Indians. In McClanahan, this

Court also ruled that a state could not

impose its laws on Indians other than in

accordance with that act. 411 U.S. at

177-178. After finding that Congress had

preempted state authority over reservation

tribes and their members prior to Pub L

280, the Court went on to hold that Pub L

280 now controls any assertion of civil and

criminal Jurisdiction over reservation

Indians.

In McClanahan, Arizona had failed to

take the steps necessary to assert

Jurisdiction under Pub L 280. It conceded

that therefore its courts "can exercise

neither civil nor criminal jurisdiction

over reservation Indians." 411 U.S. at

178. This Court noted that Arizona’s

concession was inescapable in light of

prior caselaw, and that "the admitted

absence of either civil or criminal

jurisdiction would seem to dispose of the

case." Id. at178 n. 19 and 179. The

examples of prior caselaw cited by the

Court, U.S. v. Kagama and Kennerly v. Dist.

Ct., had made clear that state authority

to impose its laws on reservation Indians

was preempted and could only be asserted as

specifically permitted by Congress. In

U.S. v. Kagama, the Court had early defined

the relationship between states and Indian

tribes, holding that tribes were "thus far

not brought under the laws of the Union or

of the State within whose limits they

resided." 118 U.S. 37D, 382 (1886).

Before discussing the effect of Pub L 280,

the Court in McClanahan, quoted this

statement from Kagama, ruling that while

federal preemption was the modern test of

state authority within reservations, the

Kagama holding regarding state authority

over tribes is "nonetheless still true, as

it was in the last century." 411 U.S. at

173. In Kennerly v. District Court, the

Court had strictly enforced the parameters

set by Pub L 280 for assertions of state

jurisdiction over tribes, saying that the

statute reflected "the detailed regulatory

scrutiny which Congress has traditionally

brought to bear on the extension of state

jurisdiction, whether civil or criminal, to

actions to which Indians are parties

arising in Indian country." 400 U.S. 423,

424 mn. 1 (1971).

Thus, this Court has invalidated state

assertions of jurisdiction over tribes and

their members when not in accordance with

Pub L 280. And more recently, this Court

again ruled that Pub L 280 controls

the extent to which states may impose their

laws against Indians, this time in the

context of a state attempt at

retrocession.\8 Three Affiliated Tribes v.

Wold Engineering, 476 U.S. , 90 L.

8. The earlier ruling in Three Tribes

I that Pub L 280 does not preempt the

authority of a state court to entertain a

suit by an Indian tribe is clearly

distinquishable from situations in which

states seek to impose their legislative

authority upon an Indian tribe. Three

Tribes I recognized that Indians have the

right to sue, as do other persons. Three

Affiliated Tribes v. Wold Engineering, 467

U.S. 138 (1984). This principle had long

been established before Pub L 280 was

passed and has been repeatedly recognized.

See, McClanahan v. Arizona Tax Commission,

411 U.S. at 172-173, citing, as an example,

Felix v. Patrick, 145 U.S. 317, 332 (1892);

Williams v. Lee, 358 U.S. 217, 219-220

(1959) ("suits by Indians against outsiders

have been sanctioned). Invoking a court’s

jurisdiction over other persons to obtain

redress for grievances presents a different

question from being subjected to court

jurisdiction as a defendant, or being

subjected to state legislative authority.

See, e.g. United States v. Fidelity

Guaranty Co., 309 U.S. 506 (1940); Israel &

Smithson, Indian Taxation, Tribal

Sovereignty and Economic Development, 49

NDL Rev. 267, 275 (1973) (The Indian right

to sue in state courts "certainly does not

expand state power to legislate affecting

Indians on reservations.") In Three Tribes

II, the Court ruled that because of the

preemptive effect of Pub L 280 and its 1968

amendments, a state could not refuse to

entertain a suit by a tribe because the

tribe refused to waive its immunity fr

state law enforcement.

Ed.2d 881, 890-891, 106 S. Ct. (1986)

("Three Tribes II").

In Three Tribes II, the Court ruled:

Pub. L. 280...was intended to

replace the ad hoc regulation of

state Jurisdiction over Indian

country with general legislation

providing for all affected States to

come within its terms.

We have previously enforced the

procedural requirements and the

jurisdictional provisions of Pub. L.

280 quite stringently, consistent

with our understanding that the

jurisdictional scheme embodied in

that Act was the product of a

wide-ranging and detailed

congressional study...Accordingly,

we conclude that since North

Dakota’s disclaimer is not

authorized by ({1323(a), it is barred

by that section.

laws against reservation Indians. See,

Nenna v. Moreno, 132 Ariz. 565, 647 P.2d

1163, 1164, (Ariz. App. 1982), (child

support); Malaterre v. Malaterre, 293 N.W.

2d 139, 143-144 (N.D. 1980) (divorce

modification regarding child custody

Wauneka v. Campbell, 22 Ariz. App. 287

P.2d 1085, 1087-1088 (1974) (state

veiiicles laws); Martin v. Juvenile

177 Colo. 261, 493 P.2d 1093 (

(paternity suit); Blackwolf v. Dist.

158 Mont. 493, 523 P.2d 1293 (

(delinquency proceedings); Crow Tribe

Indians v. Deernose, 158 Mont. 25, 487

1133 (1971) (mortgage foreclosure) ;

ex rei. Adams v. Superior cCt., 57

181, 183-184 6 P.2d 985 (1960

dependenc A substantial number

cases have f nd DLé preemptive

state assertior f authority

reservation Indian whlieé otner

have held that Puk 2é ioes

Pp.

Sta

) .

th)

)

Indian country so long as Indians are not

affected. F. Cohen, Handbook of Federal

Indian Law, 367-368 (1982 ed.) (hereafter,

Federal Indian Law).

In her oft cited article, Public Law

280: The Limits of State Jurisdiction Over

Reservation Indians, 22 U.C.L.A. L. Rev.

535, 543 (1975), Professor Goldberg

repeatedly emphasized the preemptive effect

of Pub L 280 on questions of state

authority over reservation Indians. Id. at

540, 575 n. 183, 593 n. 260.

The preemption test for state

jurisdiction on Indian reservations favors

exclusive federal control, and looks to the

"thrust" of a detailed federal regulatory

scheme. Three Tribes II, 90 L. Ed.2d at

890. As held in Bryan vv. tasca County,

Supra, the thrust of Pub L 280 was to

provide limited state jurisdiction for

basic law and order problems and the

litigation of Civil disputes between

private parties, not to permit state

regulatory authority over reservation

Indians or state legislative control of

tribal governments.

Pub L 280 defines the limits of

permissible state jurisdiction whether or

not a state has accepted the jurisdiction

permitted by that statute. If Congress

chose not to -include jurisdiction over

tribes or the application of state civil

regulatory laws to Indians when it

consented to broader state jurisdiction on

reservations, no “anomaly” exists between

so-called Pub L 280 states and non Pub L

280 states. State authority to impose its

laws against tribes has always required

Congressional consent, and in the absence

ef another federal law granting that

jurisdiction, the scope of authority

permissible under Pub L 280 controls all

states. See, Kennerly vv. District Court,

440 U.S. at 424-425 and n. 1 (under Pub L

280, "state assumption of civil

jurisdiction - in situations where Congress

had not explicitly extended jurisdiction -

was governed by {7). Without assuming Pub

L 280 jurisdiction, a "non 280" state

Simply would not have any civil or criminal

jurisdiction over tribes or their members,

in the absence of another federal statute

permitting such authority. McClanahar vv.

Arizona Tax Commission, 411 U.S. at 178.

B. The Bryan Distinction As To

Regulatory Law Enforcement Under Public

Law 280 Is Not Dictun.

This Court’s decision in Bryan vV.

Itasca County, supra, that Pub L 280 did

not authorize the application of regulatory

laws to reservation Indians is not dictun.

As discussed below, the question of

whether Pub L 280 extended state

regulatory laws to reservation Indians was

a critical issue in Bryan. Even if the

lack of intent to authorize that type of

jurisdiction was not the sole basis for

the Bryan decision, it was clearly one of

the grounds. To call this cCourt’s

statements on this. point "dictum" is

contrary to the well settled interpretation

of that term. See, Union P.R. Co. v. Mason

City & F.T. D. R. Co., 199 U.S. 159,

165-166 (1905); Six Companies of Cal. Vv.

Joint Highway Dist. No. 13, 311 U.S. 180,

187 (1940); Woods v. Interstate Realty

Co., 337 U.S. 535, 537 (1949).

In Bryan, the Court found it necessary

to determine what Congress intended by the

phrase "civil laws...of general

application to private persons or private

property," contained in {4(a) of Pub. L.

280.\9 The tax at issue was characterized

9. In choosing from the _ possible

meanings of this phrase, the Court

undertook a comprehensive review of the

statutory langauge, the applicable canons

of construction, and the legislative

history. Contrary to the suggestion that

the Court in Bryan may not have had all the

legislative history before it, the opinion

separately cites S. Rep. No. 699, 83rd

Cong., lst Sess. (1953), and H. R. Rep.

(Continued on next page)

aS a personal property tax, and therefore,

not within the exceptions to state

jurisdiction contained in ({4(b). See,

Bryan v. Itasca County, 426 U.S. at 379 nn.

(Footnote 9 continued)

No. 848, 83rd Cong., lst Sess. (1953), and

indicates that it did not simply look to

quoted sections ina law review article.

Bryan v. Hasca County, 426 U.S. at 380 and

ne 5S. The Miller letter, relied on by

Arizona, Nevada and New Mexico, in their

amici brief, was also before the Court.

See, Appendix, on Writ of Certiorari to the

Supreme Court of Minnesota, in Bryan,

Supra, which included the June 26, 1953

Miller letter as item "M," Appendix 1, p.

69 (Lewis to Congressman A.L. Miller,

Chairman, Committee on Interior and Insular

Affairs, House of Representatives, relating

to H.R. 1063 (Pub L 83-280], June 26,

1983). The cited language from the

reports and the Miller letter is almost

verbatim from the statute, and adds no real

Clarification to its meaning. Id., S. Rep.

No. 699, 83rd Cong., 1st Sess. (1953); H.R.

Rep. No. 848, 83rd Cong., lst Sess. (1953).

The addition of the word "substantive" in

these documents to the statutory phrase

"Civil laws...of general application to

private persons or private property" is

not inconsistent with the Bryan

interpretation. In interpreting the phrase

to incorporate only state common law

generally applicable to civil disputes

between private parties, the Court did not

limit the applicable state common law to

procedural court rules.

4. Relying on the (4(a) phrase, "civil

laws...of general application to private

persons or private property," the Minnesota

Supreme Court had concluded that "Public

Law 280 is a clear grant of the power to

tax." Id., at 378.

Construing the intended meaning of the

{4 (a) phrase from among the various

interpretations proposed by the parties was

no less critical to this Court’s decision

in Bryan then was the Court’s

interpretation of the phrase "in conformity

both with the laws of the State...and with

an ordinance duly adopted by the tribes,"

to the decision in Rice v. Rehner,

supra. \10

10. In Bryan, as in Rice, the Court

did not assume that the principle requiring

express Congressional consent to the

extension of state laws necessarily meant

that the absence of the words "state

jurisdiction," in Rice and the absence of a

reference to "tax" in (4(a) of Pub. L. 280

ended the matter. This approach was

particularly appropriate in Bryan, where

{4 (b) did address the application of

certain types of taxes and the state court

had ruled {4(a) must have been intended to

allow other forms of taxation. Moreover,

(Continued on next page)

aaa cl

The crux of the dispute over the

meaning of the {4(a) phrase was whether it

encompassed all civil laws, thereby

granting plenary criminal and civil

jurisdiction to states, or whether it only

referred to court rules of decision

applicable to disputes between private

parties. In order to decide whether state

tax laws would be included in the phrase,

it was essential to decide which of these

meanings was intended. The Court

interpreted the phrase to be limited to

court rules of decision, characterizing the

(Footnote 10 continued)

in Rice, an alternative ground for decision

was that the "in conformity" language was

sufficiently plain to meet a requirement

of express Congressional authorization.

463 U.S. at 730. If interpreting the

meaning of "civil laws...of general

application" in Bryan is dictum because the

Court could simply have decided that tax

laws must be specifically mentioned in any

grant of state jurisdiction, then all of

Rice’s discussion of state interests and

tribal sovereignty to establish that an

express grant of state liquor jurisdiction

was unnecessary, must also be treated as

dictum.

excluded body of law enacted by state

legislatures as "civil regulatory."

The state court opinion reviewed in

Bryan, and the parties’ briefs, make it

clear that the proper characterization of

laws applicable under the (4(a) phrase was

the heart of the dispute. The Minnesota

Supreme Court’s opinion was grounded upon

its conclusion that Pub L 280 had worked

a radical change in the prior legal status

of reservation Indians vis a vis the

states, and that by granting states plenary

civil and criminal jurisdiction, Congress

necessarily granted taxing power not

specifically excluded. Opinion of the

Supreme Court of Minnesota, Appendix on

Writ of cCertiorari to the Supreme Court of

Minnesota, p. 36.

The Minnesota Supreme Court started

with the fundamental premise discussed in

{I of this brief, which was well

established at the time Pub. L. 280 was

passed. It quoted from a 1944 Minnesota

Supreme Court decision:

(Bjut, it is uniformly held that,

absent a treaty or federal statute

conferring it, a state’s

Jurisdiction does not extend over

the individual members of an Indian

tribe maintaining their tribal

relations and organization upon a

reservation within the geographic

limits of the state.

Opinion, p. 40 (quoting from State v.

Jackson, 218 Minn. 429, 16 N.W.2d 75

(1944).

Summarizing "the current status of the

law set forth in the McClanahan and

Mescalero," the state supreme court in

Bryan said:

(2) Congress has plenary

Jurisdiction over reservation

Indians. That jurisdiction may be

ceded to the state’s only by express

grants of jurisdiction. In absence

of such grants, no state power

exists.

Opinion, p. 39.

The state court then went on to

conclude that the legislative history,

language, and structure of Pub L 280

supported finding an express grant. In

doing so, it relied heavily upon Omaha

Tribe of Indians v. Peters, 382 F. Supp.

421 (D. Neb. 1974), in which the federal

district court for the District of Nebraska

had ruled that in ({4(a) Congress expressly

subjected Indians to all state laws of

general application and therefore tax laws

were necessarily applicable, except as

specifically excluded. Opinion, Bryan

Appendix, pp. 44-45, 47.

In this Court, in Bryan, the parties

argued the possible alternative

interpretations of the {4(a) phrase. For

example, the respondent County argued:

...There are only two jurisdictional

sections, one for civil and one for

criminal jurisdiction. If Congress

had conceived a third class of laws

encompassing state tax laws, land

use regulations, water laws and

other general non criminal laws, and

had considered that these laws were

enforced by a judicial proceeding

which is neither criminal nor civil,

it is likely that it would have

dealt with that class in a third

section or have wholly excepted that

Class from the operation of both the

civil and criminal sections.

However, it took neither of these

approaches. Instead it merely

subjected the broad grants of

jurisdiction to limited exceptions

in favor of trust and restricted

property.

Brief for the Respondent, pp. 8-9.

In its brief, the petitioner argued:

So Congress in Public Law 280

allowed Indians to go to state

courts and provided them with a

ready-made body of state law to look

to in resolving their private civil

disputes. Congress intended "civil

laws...of general application" to

mean those laws which have to do

with private rights and status.

Therefore, "civil laws...of general

application to private persons or

private property" would include the

laws of contract, tort, marriage,

divorce, insanity, descent and

Similar matters, but would not

include laws declaring or

implementing the states’ sovereign

powers, such as the unique power to

raise revenue. The latter are not

within the normal meaning of

"private" laws.

A comparison of the Public Law

language with that used in the

termination acts again reveals the

limited nature of Congress’ grant in

the former statute. Thus, while

Congress made all state laws

applicable to both tribes and their

members in the termination acts, in

Public Law 280 it authorized state

jurisdiction only over those civil

causes of action affecting private

persons or private property on

Indian reservations. Tribes were

conspicuously left out of the

conferral of jurisdiction in section

(a) although included in sections

(b) and (c). This is not surprising

since it would have been wholly

inappropriate to have tribes resolve

their

Indeed, in

after

enacted 28

provided

jurisdiction

controversies.

disputes in state courts.

1966, thirteen years

Public Law 280, Congress

U.S.C. {1362 which

special federal court

for tribal

The issue in Bryan was whether Public

Law 280 excluded a vast body of state laws

which

Cannot easily be characterized as

either civil or criminal and are generally

referred to as

Bryan

expressly

interpretation

language. 426

and n.

10-ll.

regulatory. The Court in

adopted the Petitioner’s

of the disputed statutory

SS. at 383-385, 389-390,

saa caaen aetna nema

regulatory issue. It identified the lack

of intent to grant such regulatory

authority as a basic premise of its

decision, at least four different times

Bryan v. Itasca County, 426 at 384, 387,

x a x

388 and n. 14 | explained the

distinction 1t was drawing between state

Neer Se Ke

common law and state legislation

implementing the State’s general police

powers, adopting petitioner’s

interpretation and that proposed in a

comprehensive law review article on the

subject. Bryan v. Itasca County, 426 U.S.

at 383-384, n. 10.

nas peen

Since Bryan was decided,

consistently interpreted to preclude state

regulatory jurisdiction under Pub. L. 280.

See, Federal Indian Law, 363-365; Collins,

Implied Limitations on the Jurisdiction of

Indian Tribes, 54 Wash. L. Rev. 479, 522

(1979). Federal administrative policies

and programs have been fashioned around the

aati

no regulatory jurisdiction principle. For

example, EPA works directly with tribes

even in "280 states" to implement federal

environmental laws, rather than approving

State implementation on Indian lands. EPA

general counsel have consistently

interpretated such State regulatory

authority to be outside the scope of Pub L

280, in light of well-established Indian

law principles, the statutory language and

legislative history, and the Bryan

decision. See, EPA General Counsel

Opinion, No. 76-28A (December 8, 1976); EPA

General Counsel Opinion, No. 76-30

(December 6&8, 1976); EPA General Counsel

Opinion, No. 77-6 (May 31, 1977). See

also, Will, Indian Lands Environment - Who

Should Protect It?, 18 Nat. Res. J. 465,

487-491 (1978). EPA has established

federal environmental law implementation

programs for Indian reservations which take

into account the unique jurisdictional

considerations there, and federal policies

to promote tribal self-government and

economic development. Its jurisdictional

and policy rationale for vefusing to

approve state implementation programs as to

Indian lands has been upheld in court

challenges. Nance v. EPA, 645 F.2d 701

(9th Cir.), cert. denied sub. nomin; Crow

Tribe of Indians v. EPA, 102 S. Ct. 635

(1981); State of Wash., Dept. of Ecology v.

EPA, 752 F.2d 1465 (9th Cir. 1985).

Congress has followed the EPA approach by

enacting statutory provisions expressly

allowing EPA to treat tribal governments

like states for purposes of implementing

federal environmental laws on their

reservations. See, e.g., Nance v. EPA, 645

F.2d at 714; (regarding 1977 Clean Air Act

amendments) ; Safe Drinking Water Act

Amendments of 1986, Pub L 99-339, Sec. 302.

In Washington State, the King County

Health Department has established a special

health law enforcement program for the

Muckleshoot Indian Reservation. This

cooperative county/tribal program reflects

the common understanding that the _ state

lacks regulatory Jurisdiction over the

tribe and its members. In recently

analyzing the program’s different treatment

G p

of non-Indian fee land owners on the

Reservation, the Washington Court of

Appeals reaffirmed the principles

applicable here: 1) Pub L 280 did not

authorize state regulatory authority over

the tribe or its members; and 2) Rice v.

Rehner did not eliminate the requirement

for Congressional authorization for

Jurisdiction over reservation Indians.

Thomsen v. King County, 39 Wn. App. 505,

208-510, 694 P.2d 40 (1985).

In 1977, a year after Bryan was

ceidAecr i= lif

1ecided, tne California Attor

”

ppeared to have no dispute with

accepted interpretation of

sluding state regulatory

7 } 5 ; : Diik T sor TY + } +

autnorivty under rub L zcovU. in tnat

_ - ; . e . P

Lv received a request tor an opinion On)

whether the state had urisdiction over

open burning by the Quechan Tribe on its

reservation, in light of Bryan. Th

California Attorney General Opinion

concluded the State did not have such

jurisdiction. It explained in detail the

principles reflected in Bryan, agreeing

that "Congress has only sparingly consented

to the assumption of State jurisdiction

over the activities of reservation

Indians," and concluding that 1f such

exists it must derive in the

» |

—

source of such a grant is the Clean Air

* = 4 ’ ~ a= : A + + on 7 of

> ae an ie | a vu N .

he % raLLITOrnNdi Attorney Generali Up1lnion

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an) = Tne

i je, PD. 4, AS L ie

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Cle Air Act, the Opinion states:

These considerations ‘*end to show

that in enacting Section 118, the

Congress did not take Indian tribes

2 EEE eVvVX—Xo7cvoeES

int account at all. Certainly

there lis no evidence of the intent

necessary to subject Indians’ and

tribes to state and local standards

and limitations.

Id ae 10.

The federal district courts who have

applied the no regulatory jurisdiction rule

have commonly found the types of laws at

issue in this case to be regulatory, and

therefore, inapplicable.

C. The Regulatory/Prohibitory

Distinction Is A Concept This Court

Recognized Long Before Bryan. Its

Rejection Has Implications For Federal

Reservations Other Than Indian

Reservations.

The states’ arguments in this case

amounts tc th same argument made and

rejected in Bryan, 1.e. Pub [ 280

authorized plenary state jurisdiction over

reservation Indians In arguing against

the Civil regulatory/prohibitory law

distinction, Arizona, Nevada, and Mex1co

explain why plenary state jurisdiction

the

logical outcome of the states’

position.

.-any collection of State laws

which, in the aggregate, forms a

regulatory scheme which is civil in

its general nature must by

definition also include penal ofr

prohibitory enforcement components.

Otherwise, the State’s regulatory

objectives and policies will be

rendered completely illusory and

unat.tainable.

Thus, even assuming the

propriety of the questionable

hypothesis that, under Pub. L. 280

and related similar laws (e.g. 18

U.S.C. {13, the "“Assimilative Crimes

Act," applicable in non-Pub. L. 280

states) Congress intended to include

only a State’s exclusively

"criminal/prohibitory" laws, the

inclusion of the penal or

prohibitory enforcement components

of systems otherwise characterized

as "civil/regulatory" seems clearly

to be intended.

Brief of the States of Arizona, Nevada and

New

the

one

Mexico, As Amici Curiae In Support

State of California, p. 12.

Long before Bryan, in a case involv

of these "related similar laws,"

nn +

— &

ing

the

Court pointed out the need to draw a

distinction between common law type crimes

and activities which state legislatures

have closely regulated through licensing

and similar restrict forceable by

criminal penalt yy llow Cab

Transit Co., 321 | 3 (1944).

In Johnson, the rt iered whether

the Assimilative Crimes Act might permit

enforcement of state liquor laws on a

military reservation. Although Johnson did

not decide the issue, what is importan

about the Johnson statement is the concept

it represents. When dealing with a

federally established reservation that has

traditionally been subject to exclusive

federal jurisdiction, the Court must not

assume that legislation such a the

Assimilative Crimes Act and Pub L 280 was

intended to result in the wholesale

ipplication of state laws > noted in

Johnson, in the absence of clear language

authorizing state regulatory authority and

evidence that Congress considered the

matter, a Court should not assume that

Congress intended to alter so drastically a

reservation’s unique federal statu

Furthermore, Johnson pointed out that the

applicability of a particular state statute

under federal statutes such as the

Assimilative Crimes Act is a federal

question, upon which the interpretation of

state courts is not binding. 321 U.S. at

383.

In Bryan, this Court found a total

absence in Pub L 280’s legislative history

of Congressional discussion of state civil

regulatory authority, or jurisdiction over

tribes. 426 U.S. at 389. Subsequent

legislative history indicated 5

Congressional assumption that Pub L 280 had

not altered jurisdiction as to regulatory

laws with criminal penalties, e.g. state

environmental laws. See, Bryan v. Itasca

County, 426 U.S. at 386-387. The same sort

— + - ~

assertions

about the intent of

possibility of undesirable

reservation businesses, in

state Jurisdiction, wer

Senator Ervin, who offered