Amicus Curiae Brief — Brendale v. Confederated Tribes and Bands of Yakima Nation

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) (i) (8)

Nos. 87-1622, 87-1697, and 87-1711

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

PHILIP BRENDALE,

y, Petitioner,

CONFEDERATED TRIBES AND BANDS OF THE

YAKIMA INDIAN NATION, et al.,

Respondents.

STANLEY WILKINSON,

v. Petitioner,

CONFEDERATED TRIBES AND BANDS

OF THE YAKIMA INDIAN NATION,

Respondent.

COUNTY OF YAKIMA, et al.,

y, Petitioners,

CONFEDERATED TRIBES AND BANDS

OF THE YAKIMA INDIAN NATION,

Respondent.

On Writ of Certiorari to the United States Court of Appeals

for the Ninth Circuit

BRIEF FOR CITIZENS EQUAL RIGHTS ALLIANCE,

INC. (CERA), BIG ARM MONTANA, AS AMICUS

CURIAE, A NATIONAL COALITION

IN SUPPORT OF PETITIONERS

(Coalition Members on Inside Cover)

KENN A, PUGH

Counsel of Record

P.O. Box 6

Dupree, South Dakota 57623

(605) 365-5171

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 \)

;

SAM E. DAVIS, INDIVIDUAL, PARKER, ARIZONA;

MONOMA COUNTY LAND ASSOCIATION

(MCLA), SLOAN, IOWA; WHITE EARTH EQUAL

RIGHTS COMMITTEE, MAHNOMEN, MINNESOTA;

UNITED TOWNSHIP ASSOCIATION, PONSFORD,

MINNESOTA; TOTALLY EQUAL AMERICANS (TEA),

WAUBUN, MINNESOTA; TULABY LAKE ASSOCIATION,

WAUBUN, MINNESOTA; EAST SLOPE TAXPAYERS

ASSOCIATION, CUT BANK, MONTANA; CITIZENS

RIGHTS ORGANIZATION (CRO), LODGEGRASS,

MONTANA; ALL CITIZENS EQUAL (ACE), POLSON,

MONTANA; CONCERNED CITIZENS COUNCIL,

WINNEBAGO, NEBRASKA; JAMES L. MITCHELL,

INDIVIDUAL, JEMEZ PUEBLO, NEW MEXICO; NEW

YORK STATE CONSERVATION COUNCIL, WATERLOO,

NEW YORK; NORTH DAKOTA COMMITTEE FOR

EQUALITY, NEWTOWN, NORTH DAKOTA; WEST

VALLEY WATCH, WILLAMINA, OREGON; CHEYENNE

RIVER LANDOWNERS ASSOCIATION, DUPREE, SOUTH

DAKOTA; INTERSTATE CONGRESS FOR EQUAL

RIGHTS AND RESPONSIBILITIES, WASHINGTON;

PROTECT AMERICANS’ RIGHTS AND RESOURCES

(PARR), PARK FALLS, WISCONSIN;

IN SUPPORT OF PETITIONERS

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE

SUMMARY OF ARGUMENT...

RSI SS Ce

I. THE YAKIMA NATION DOES NOT HAVE

II.

ITT.

INHERENT CIVIL JURISDICTION OVER

NON-MEMBERS LIVING ON FEE LANDS

WITHIN THE YAKIMA RESERVATION

A. The Ninth Circuit Misinterpreted the Mon-

tana v. United States Decision and Ignored

ES a

B. The General Allotment Act and Other Laws

Opening Up the Reservations to Non-Member

Settlement Restricted Any Authority the

Tribe Might Originally Have Had Over Non-

EB” de SS

)

C. The Ninth Circuit Expanded Montana’s Ex-

ceptions Far Beyond Their Intent and Mean-

IF TRIBAL AUTHORITY IS FOUND TO

EXIST OVER NON-MEMBERS, THE STATE

AND COUNTY MUST ALSO HAVE SUCH

tetanic itl

ZONING BY THE TRIBAL GOVERNMENT

OF LAND OF NON-MEMBERS WHO ARE

UNREPRESENTED IN SUCH GOVERN-

MENT AFFECTS FUNDAMENTAL CON-

STITUTIONAL RIGHTS 0 a"

IRE ST ES a

APPENDICES:

A. Becker County Record, Aug. 14, 1988, at 1, col.

SE See

22)

EE.

TABLE OF CONTENTS—(Continued)

Daily Press, North Wisconsin’s Morning News-

paper, July 1, 1988, at 1 col. 1 -.......------------------- .

Letter from Ann Schoenborn, Co-Chairperson,

United Township Association to Mr. Robert

Gleason, White House, Washington, D.C. (Aug.

12, 1983) (discussing White Earth Tribe) ........

Letter from David Rasmussen, Game Warden,

Minnesota Dept. of Natural Resources to State

of Minnesota (May 5, 1988) enclosing Letter

from John M. Sieling, Chief Deputy, Becker

County, Minnesota to David Rasmussen (April

QB, 1988) .........--------cecceoeeeencerenesnceosseensnsasnnsnnsnesnenees

Map of Flathead Reservation, Montana by Dept.

of Interior (March 20, 1915), denotes “Boundary

of Former Flathead Indian Reservation” ............

Aquatic Lands Conservation Ordinance No. 87-A

of the Council of Confederated Salish and

Weeatemal TePRGB q....<......<ccccccwceccensensensessscserewsveseseeses

Glacier Reporter, December 12, 1985 at 9, 10

(Proposed Blackfeet Comprehensive Tax Code) ..

_ Great Falls Tribune, April 11, 1987 at 12(A)

(discussing Blackfeet 4% possessory tax) ..........

Great Falls Tribune, at 1A (discussing Blackfeet

4% POSSESSOLY tax) ....... .------------ceeceeeeeeceneseeneteeeees

Letter from Lee Jacobsen, Secretary of East

Slope Taxpayers Association of August 16, 1988,

to “whom it may concern” (Aug. 16, 1988) ........

. West Valley Watch, Inc., Aug. 17, 1988 (discuss-

ing Confederated Tribes of Grand Ronde) ........

Albuquerque Journal, Aug. 31, 1983, at A-a, A-3

(discussing Sandia Pueblo) ..................-......--------

. Cheyenne River Sioux Tribe Ordinance No. 42a..

. 58 Fed. Reg. 20, 179 (1988) ........------------.---10--000+

Page

10a

lla

iii

TABLE OF CONTENTS—(Continued)

. Draft of By-laws of Cheyenne River Sioux Tribe

(Dec, 23, 1935)

. Complaint of Cheyenne River Sioux Tribe v.

Farmers Union Oil Lester Starr (July 25,

1988)

eee r rere errr rrr

SE EERE EE EEE ORE eee

ee eee ewww wenn

. Letter from Wayne Ducheneaux, Chairman of

Cheyenne River Sioux Tribe to Mr. Green, Mayor

of Dupree (Feb. 12, 1988) with Resolution No.

E. 52-88-CR attached

. Letter from Wayne Ducheneaux, Chairman of

Cheyenne River Sioux Tribe to Kenn Pugh (June

6, 1988)

eee eee eee

eee ee eee ee ee ee eee ee ee eee ee

. Letter from Congressman Sensenbrenner, Wis-

consin, to Constituent (June 28, 1988)

Page

lla

12a

13a

TABLE OF AUTHORITIES

CASES Page

California v. Cabazon Band of Mission Indians,

U.S. ——, 107 S.Ct. 1083 (1987) -........------- 16

Central Machinery Co. v. Arizona State Tax

Comm'n, 448 U.S. 160 (1980) .......-----------------e0--000* 23

Crow Creek Sioux Tribe v. Buum, 10 Indian L.Rep.

6031 (Intertribal Ct. App. 1983) -.........----------------- 16

Draper v. United States, 164 U.S. 240 (1896) _........ 22

Ex Parte Crow Dog, 109 U.S. 556 (1888) .........------ 17

First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, 482 U.S.

, 107 S.Ct. 2378 (1987) .......------------------eeeee 26

Fisher v. District Court, 424 U.S. 382 (1976) ........ 21

McClanahan v. State Tax Comm’n of Arizona, 411

U.S. 164 (1978) ......---.----------cc-ece-eceeeeseeccenssennsnnnseseces 13

Montana v. United States, 450 U.S. 544 (1981) ....passim

Montana Catholic Missions v. Missoula County,

200 U.S. 118 (1906) ......------------------ecceeseoesoooeeeneneeees 21

Nectow v. Cambridge, 277 U.S. 183 (1928) .........-- 26

Oliphant v. Schlie, 544 F.2d 1007 . > 25

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191

(19778) ........0.220--00-encceocenssencenneesenensencnsenssncnsnsasonssosseses passim

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584

(1977) ......0--c-ccecc-ncencecssnpenensensencsensnsenssonsrsensenesssensonses 19

Santa Clara Pueblo v. Martinez, 436 U.S. 49

| (; ) ne 10, 12, 14, 17

Solem v. Bartlett, 465 U.S. 463 (1984) -.............--.-- 7

Surplus Trading Co. v. Cook, 281 U.S. 647 (1930) .. 22

Thomas v. Gay, 169 U.S. 264 (1898) ...........------------- 21

United States v. McBratney, 104 U.S. 621 (1881)... 22

United States v. Mission Golf Course, Inc., 548

F.Supp. 1177 (D.S.D. 1982) ........----------------------- 8

United States v. Morgan, 614 F.2d 166 (8th Cir.

DOD) once cnccennescccnccsosneserssséscesconsnosecssenssesnesnnssesccunsoonons 8

United States v. Wheeler, 435 U.S. 313 (1978) ...... 10, 13,

18, 21

Village of Euclid v. Ambler Realty Co., 272 US.

(4G —————————————EEE~ Et ee a 26

Washington v. Confederated Tribes of the Colville

Reservation, 447 U.S. 134 (1980) .......-..--..---------- 14

TABLE OF AUTHORITIES—Continued

Page

White Mountain Apache Tribe v. Bracker, 448

US. EERSTE SESS nee OS ee 22, 23

Williams v. Lee, 358 U.S. 217 (1959) ................... 21, 23, 25

Yakima Indian Nation v. Whiteside, 617 F.Supp.

Te Es I, BID i eccnnecncccncecncccnsscenttetosoeosante 20

STATUTES AND TREATIES

General Allotment Act of 1887, 24 Stat. 388 .......... 11,18

REESE SR Sm re oC 7

ET Ee ee 8

Indian Civil Rights Act, 25 U.S.C. §§ 1301-1303...... 14

Indian Financing Act of 1974.00.00. 16, 23

Indian Child Welfare Act of 1978 ...........0-..... 16, 23

OTHER AUTHORITIES

53 Fed. Reg. 20, 179-20, 180 (1988) ..000 7

Cohen Handbook of Federal Indian Law (1942)... 22

1 Anderson, American Law of Zoning (3rd ed.

Rs: a AN 26

McQuillin, Municipal Corporations (3rd ed. 1983) .. 25, 26

Cheyenne River Sioux Tribe Constitution By-laws,

IY I accel slasecusiat ed enaceeiensebtedshindecmnte 8

IN THE

Siuyprenw Court of the United States

OCTOBER TERM, 1988

Nos. 87-1622, 87-1697, and 87-1711

PHILIP BRENDALE,

. Petitioner,

CONFEDERATED TRIBES AND BANDS OF THE

YAKIMA INDIAN NATION, et al.,

Respondents.

STANLEY WILKINSON,

Petitioner,

CONFEDERATED TRIBES AND BANDS

OF THE YAKIMA INDIAN NATION,

Respondent.

COUNTY OF YAKIMA, et al.,

Petitioners,

Vv.

CONFEDERATED TRIBES AND BANDS

OF THE YAKIMA INDIAN NATION,

Respondent.

On Writ of Certiorari to the United States Court of Appeals

for the Ninth Circuit

BRIEF FOR CITIZENS EQUAL RIGHTS ALLIANCE,

INC. (CERA), BIG ARM MONTANA, AS AMICUS

CURIAE, A NATIONAL COALITION

IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE

Amicus Curiae Citizens Equal Rights Alliance, Inc.,

Big Arm, Montana, is a national volunteer non-profit

organization incorporated under the laws of the State of

Montana. It is a coalition of citizens groups and individ-

uals from fourteen (14) states who are concerned and

alarmed at the direction federal Indian policy has taken,

especially how tribal governments and some courts have

interpreted and molded that policy. The over four hun-

dred thousand (400,000) people from all walks of life

who make up the Citizens Equal Rights Alliance, Inc. are

dedicated to effecting positive change in federal Indian

policies. They are concerned with the problems associated

with the exercise of tribal civil jurisdiction over non-

members of the tribe who are not allowed any represen-

tation in the government that seeks to govern them. And

while the members of this organization seek responsible

change in this system, they often bear the stigma of

racism for opposing any extensions of tribal power.

Totally Equal Americans is an association of individ-

uals residing and working on or near reservations in nine

(9) states, with its headquarters in Waubun, Minnesota.

These citizens sense the frustration and suffer a lesser

quality of life from the imposition of tribal regulations

and taxes in areas such as water rights, hunting and fish-

ing, zoning, and employment. They are also concerned

how this expansion of tribal power has affected their

rights under the 5th and 14th Amendments to the United

States Constitution, guaranteeing them “equal protection”’.

Protect Americans’ Rights and Resources has a na-

tional membership of nearly five thousand (5,000) people,

consisting of business people, fee land holders, farmers,

utilities, business organizations, and outdoor recreation-

ists. One of the specific concerns of this organization is

the granting of special privileges to tribal members who

do not reside on reservations. The Chippewa [Indians of

Wisconsin, for example, now claim a superior right to

timber, hunting, and fishing in Northern Wisconsin,

whether located on a reservation or off a reservation.

The Tulaby Lake Association and White Earth Equal

Rights Committee, Inc., are groups of citizens who live on

or near the former White Earth Reservation in Northern

Minnesota. These organizations are made up of resort

owners, farmers, business people, property owners, and

outdoor sportsmen.

United Townships Association is an organization of

thirty-two (32) township governments also within the

original boundaries of this Reservation. One of the con-

cerns of these groups in this area is the difference in

fishing regulation between members and non-members

and theassociated law enforcement problems. Also,

the White Earth Reservation Tribal Council, in 1981,

passed Ordinance Eight, a natural resources preservation

act, which applied to all individuals. Although that par-

ticular ordinance was later ruled invalid by the Depart-

ment of the Interior, this is a clear example of how In-

dian tribes are seeking to increase their power.

New York State Conservation Council is a group of fee

land owners, outdoor sportsmen, local elected officials, and

business people. These individuals face land claims from

various Indian tribes in New York and the certain exten-

sion of tribal rule and regulation to their personal and

professional lives.

Interstate Congress for Equal Rights and Responsibili-

ties is a national non-profit group headquartered in

Washington state. Their interests, given the location of

this case, is as obvious as is their concern for the expan-

sion of tribal claims.

North Dakota Committee for Equality is a non-profit

organization organized under the laws of the State of

North Dakota. The membership of this organization

include farmers, business owners, teachers, and fee land

owners who reside on or near the original Fort Berthold

Reservation in North Dakota. Part of the original Res-

ervation, three hundred sixty-five thousand (365,000)

acres in total, lies in portions of three North Dakota

counties. Of this acreage, less than one percent is owned

in trust. For years the Fort Berthold Tribal Constitution

contained a provision restricting the civil jurisdiction of

the Tribe to tribal members. However, that provision has

now been repealed. Consequently, the members of this

organization are now claimed to be subject to tribal civil

jurisdiction, subject to the ruling of this Court.

All Citizens Equal is an association of over 1,000 mem-

bers, primarily resident and non-resident fee land owners

within the “former” Flathead Reservation of Western

Montana. The land owners are principally farmers and

ranchers, orchard owners, small business owners, retirees,

and resort owners. Membership also includes non-resident

land owners and sports enthusiasts. They utilize private

and state land for recreation including hunting and fish-

ing, and other sports on Flathead Lake. For years,

land in the area was known as being on the former

Flathead Reservation. Yet, the Confederated Salish and

Kootenai Tribes have and continue to expand their claim

in non-members’ lives through a burdensome number of

lawsuits. For example, the Confederated Tribes passed

Ordinance No. 87-A, the Aquatic Lands Conservation

Ordinance, which would require the acquisition of permits

and payment of fees for construction of any project on or

near wet lands anywhere on the Flathead Reservation,

even though the Reservation population is eighty-five per-

cent (85%) non-members and eighty-five percent (85% )

of the land is owned in fee. Moreover, this Tribe has

summarily rejected Montana and continues to claim exclu-

sive hunting and fishing jurisdiction on private land.

Citizens Rights Organization has a membership of

farmers, ranchers, and small businesses in Big Horn

County in Eastern Montana. Their area is in the origi-

nal Crow Reservation. Approximately fifty percent

(50%) of the land is owned in fee by non-members. The

Crow Tribe has and is currently seeking to levy taxes on

non-members residing on the Reservation. They have also

attempted to regulate the use of farm chemicals, insec-

ticides, and herbicides on fee land on the Reservation.

East Slope Taxpayers Association is a non-profit group

of fee land owners, farmers, ranchers, business owners,

sportsmen, and conservationists who reside or recreate on

the original Blackfeet Reservation in Northern Montana.

Civil jurisdiction problems have all but stopped lending

agencies and insurance companies from doing business

on the Blackfeet Reservation. Oil companies have all but

ceased to drill or pump oil. A tribal liquor license is one

thousand dollars ($1,000.00). The Blackfeet Tribe is

attempting to control the sale of tax-free cigarettes and

gambling. The Tribe has also imposed a four percent

(4%) possessory interest tax on utility companies, rail-

roads, and oil companies, with the formula based, in part,

on holdings outside the Reservation. The local Rural

Electric Cooperative reluctantly passed this tax on to the

local consumers in the form of a one dollar ninety cent

($1.90) surcharge.

Samuel E. Davis is an individual member of Amicus

Citizens Equal Rights Organizations, Inc., who resides in

and is Mayor of Parker, Arizona. Parker is surrounded

on three (3) sides by the Colorado River Reservation and

on the fourth side by the Colorado River. In 1983 the

Colorado River Indian Tribes filed suit to have the city

stop its enforcement of the city building codes on tribally

held lots in Parker. Further conflicts have since gener-

ated on liquor licensure, zoning, business and health per-

mits, and law enforcement. Since these tribal power ex-

pansions, the quality of life in Parker has deteriorated.

The Tribe also has imposed a tribal boycott on Mr. Davis’

businesses due to his stand as Mayor in these disputes.

Concerned Citizens Council consists of resident and

non-resident fee land owners, farmers, and businessmen

who reside on the original Omaha and Winnebago Reser-

vations in Thurston County, Nebraska. The Omahas

were retroceded jurisdiction in 1969 and the Winnebagos

in 1986. The concerns of this organization are what

they perceive to be well settled legal principles, are for-

eign concepts in federal Indian law, for example, statutes

of limitation.

The Omaha Tribe is also suing to regain jurisdiction

and title to land across the Missouri River in Monoma

County, Iowa. If such a suit is successful, memb. rs of

Monomo County Land Association would be claimed to

come under tribal civil jurisdiction. The members of this

Organization, landowners, farmers, and businesses who

have been in this area of Iowa for at least a century,

would then be subject to a system, totally foreign to them,

in which they have no representation.

West Valley Watch, Inc., a volunteer non-profit cor-

poration organized under the laws of the State of Oregon,

consists of landowners, farmers, and business owners also

concerned with the effects of a formation of a new reser-

vation in their area. The creation of a new nine thousand

eight hundred (9,800) acre reservation for the Confeder-

ated Tribes of Grand Ronde in Western Oregon would

subject the members of this organization to claims of

tribal civil jurisdiction. Once again, people who have

lived in an area for several years are suddenly being

thrust into a governmental system totally unknown to

them.

James L. Mitchell is also an individual member of the

Amicus Citizens Equal Rights Alliance, Inc., who resides

in Jemez Pueblo, New Mexico. Mr. Mitchell is typical of

those who are deeply interested and concerned with the

continuing expansion of the tribes and pueblos of New

Mexico and Arizona. Extensive litigation has taken place

between the federal government, the tribes, and individ-

ual land owners in the area of water rights. Also efforts

are being made by the Sandia Pueblo to reclaim nine

thousand four hundred (9,400) acres they maintain was

deprived of them by an erroneous 1859 survey. They are

also concerned with the expanding efforts of the tribes to

tax and assert tribal jurisdiction over non-member individ-

uals and businesses, outside of the Navajo Reservation.

Cheyenne River Landowners Association is a group of

farmers, ranchers, business owners, and local] elected offi-

cials in Dewey and Ziebach Counties in South Dakota.

These people are fully aware of what can happen when

tribal jurisdiction is suddenly thrust upon them, and mir-

ror others who we put in the same situation. Until this

Court’s decision in Solem v. Bartlett, 465 U.S. 463

(1984), portions of the Cheyenne River Sioux Reserva-

tion were not considered Indian country. 18 U.S.C. 1151.

After the decision in that case, the Cheyenne River Sioux

Tribe has greatly expanded its efforts to govern non-

members. The Tribe has passed a Tribal Employment

Rights Ordinance (TERO), which requires an excise tax,

and Indian preference in employment, hiring and con-

tracting, whether the project is on trust or fee land.

The Cheyenne River Sioux Tribe has also been active

in the area of liquor licensure. The Tribe passed Ordi-

nance No. 48, the Alcohol Beverage Control Law, apply-

ing the Ordinance expressly to all lands, whether trust,

allotted, or fee lands, repealing an earlier ordinance

which only applied to “Indian land”. The Tribal Ordi-

nance was approved by the Department of the Interior on

June 2, 1988, and is found at 53 Fed. Reg. 20,179-20,182.

The Assistant Secretary for Indian Affairs, Ralph R.

Reesen, noted at 53 Fed. Reg. 20,179-20,180:

Section 1-1-2 and 1-1-3(B) apply to [the] tribal liquor

ordinance to all lands within the reservation bound-

aries. There is no reference to the two exemptions to

the tribe’s jurisdiction as described in 18 U.S.C.

1154(c). However the existence of land entitled to

either of the two exemptions, fee patent lands in non-

Indian communities or rights of way through Indian

reservations, is a factual determination to be decided

by the Courts.

The Tribe has since filed a number of lawsuits in the

Cheyenne River Sioux Tribal Court to enforce this ordi-

nance. This is done in spice of the Assistant Secretary’s

statement, in spite of the existence of 18 U.S.C. 1154(c),

in spite of the existence of United States v. Morgan, 614

F.2d 166 (8th Cir. 1980) and United States v. Mission

Golf Course, Inc., 548 F. Supp. 1177 (D.S.D. 1982), and

in spite of a By-law provision in the Cheyenne River

Sioux Tribe Constitution By-laws, Article IV, Section

1(c), which limits the jurisdiction of the tribal courts

over non-members to instances where the member and

non-member litigants stipulate to the jurisdiction of the

tribal court. The Cheyenne River Sioux Tribe has also

put in place a tribal boycott of businesses in municipali-

ties which do not follow their liquor control ordinance.

This is all done in the name of “inherent tribal sover-

eignty”’.

The Cheyenne River Sioux Tribe has also made at-

tempts to collect a tribal business license fee from busi-

ness owners on the Reservation, including from present

counsel of record. Once again these efforts to collect a

tax are done in spite of the Tribal Constitution and

By-laws.

The people who make up the membership of amicus

fall into several categories. Many of the people have

lived in these areas for all their lives, some are the second

or third generation in the area. Others, while not in the

area for as long, nonetheless rely on the area for their

livelihood. Other members of amicus, while they do not

actually live on reservations, work or conduct business

on the reservation. Still others enjoy the vast recreational

opportunities available. Yet, all these people face the

prospect of ever increasing tribal civil jurisdiction, unless

it is checked by this Court.

There are similar threads which weave together the

common interest of the amicus. First, nearly all the ordi-

nances, either passed or proposed, by various Indian

tribes across the country say on their face that the action

taken or proposed is done to regulate conduct which has

a direct impact on the political integrity, economic secu-

rity, or health or welfare of the tribe, thus parroting

the language contained in Montana v. United States, 450

U.S. 544, 566. The tribes have taken one paragraph of

dicta in Montana and literally attempted to mushroom

their power into every conceivable facet of the lives of

non-members living on reservations and individuals who

do not reside on reservations but conduct their business

or recreational activities on reservations. Until the mat-

ter is further defined or restricted by this Court, the

tribes will continue to test the boundaries.

The other thread of common ground which holds the

amicus together is their shared frustration as to their

inability to effect positive change within tribal govern-

ment. One might say that this is very similar to an

American who resides in a country overseas. There is

one important distinction, however. An American citi-

zen who resides overseas can, if he so chooses, give up his

American citizenship and seek the citizenship of the

country in which he lives. American citizens who live on

tribal reservations within this country, do not have that

ability. Tribal membership is severely limited by blood

quantums. Moreover, Amicus feels that the only protec-

tion they have from the increasing efforts of tribes to

govern them is the courts.

Further, amicus, whatever their race, look at their

issues as lay people. As lay people they do not under-

stand (nor do some lawyers) the complicated legal issues

involved in cases such as these which bring such confusion

to their lives. They can, however, comprehend the distrac-

tions which these issues bring into their lives. They see

how these issues impair and reduce the quality of life.

Also, they see these issues as individuals, and not in the

light of local, state, or tribal governments.

Finally, amicus fully realizes that unbridled zoning can

deprive them of the use of their land and further depre-

ciate its value. They also fully realize under Santa Clara

Pueblo v. Martinez, 436 U.S. 49 (1978), they cannot seek

compensation from a tribal government for such a zoning.

This cannot be what Congress. envisioned.

SUMMARY OF ARGUMENT

The Yakima Nation does not have inherent civil juris-

diction over non-members living on fee lands within the

Yakima Reservation.

The Ninth Circuit misinterpreted Montana v. United

States, 450 U.S. 544 (1981), and ignored the vital prece-

dents Montana used as the framework for its opinion

(i.e., United States v. Wheeler, 4385 U.S. 313 (1978), and

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191

(1978) ). A careful review of these cases by the Ninth

Circuit would have made it recognize several important

principles essential in determining the instant issue.

First, the Ninth Circuit would have had to recognize the

reduced reliance that courts should give to “platonic no-

tions of Indian sovereignty”. Tribal sovereignty over non-

members should be analyzed in terms of the “tradition of

sovereignty”, which is defined in the “shared presump-

tions” of various branches of the federal government.

The Ninth Cireuit would have had to have found that

there is no such “tradition of sovereignty” over non-

members.

The Montana Court stated that inherent sovereign

powers of Indian tribes do not extend to non-members

except in two situations. The Ninth Circuit erred by seiz-

ing upon these exceptions and molding them into the

“rule”. It disregarded the very framework of these ex-

ceptions and gave the second Montana exception (regard-

ing situations which threaten the existence of the tribe

or livability of a reservation) such an expansive reading

so as to negate significant remaining language in the

Montana opinion.

Furthermore, the Ninth Circuit applied the federal pre-

emption test in an erroneous manner. The question is

whether any specific federal legislation gave the Yakima

Tribe jurisdiction over non-members, thereby pre-empting

state or county jurisdiction. Federal pre-emption must be

found in a comprehensive federal scheme in a particular

field. Only after such federal pre-emption is found can

there be any balancing of state interests against Indian

interests. The Ninth Circuit made only a cursory ex-

amination of such a federal regulatory scheme and could

only come up with general legislation on various disparate

subjects. It erroneously held such marginally related

legislation pre-empted state jurisdiction over non-mem-

bers. It then prematurely went on to balance the inter-

ests of the Yakima Nation with those of the county.

The Ninth Circuit further erred in that the court only

balanced a myopic version of county interests. It dis-

regarded present and future county interests beyond the

specific proposed uses of Brendale and Wilkinson.

In contrast to the Ninth Circuit’s strained attempt to

find federal pre-emption, it chose to simply ignore the

federal legislation (i.e., General Allotment Act of 1887,

24 Stat. 388) which indicated an affirmative attempt to

preclude tribal regulation of non-members. The General

Allotment Act was addressed in great, detail in Montana,

which found from it a congressional assumption that

tribes did not have and should never have jurisdiction

over non-members.

Finally, by ignoring precedent and the United States

Constitution, the Ninth Circuit placed non-members under

a regulatory system that is not subject to all the con-

straints of the United States and under which they have

no representation. In effect, it incongruously deprived

United States citizens of constitutional protections, but

yet granted Indian tribes power inconsistent with the

tribe’s dependent status on the United States.

Zoning, if too restrictive, could constitute a taking of

the use of non-member land. However, under Santa Clara

Pueblo v. Martinez, 486 U.S. 49 (1978), such non-mem-

bers can not gain compensation from the tribal govern-

ment for such a taking.

ARGUMENT

I. THE YAKIMA NATION DOES NOT HAVE INHER-

ENT CIVIL JURISDICTION OVER NON-MEMBERS

LIVING ON FEE LANDS WITHIN THE YAKIMA

RESERVATION.

A. The Ninth Circuit Misinterpreted the Montana v.

United States Decision and Ignored Vital Precedent.

The Ninth Circuit, as well as some other post-Montana

courts and Indian tribes all over the nation, seized upon

certain wording in this Court’s Montana opinion and

turned the general analysis of that opinion on its head.

Instead of starting with the premise that tribes in gen-

eral were divested of their jurisdiction over non-Indians,

the Ninth Circuit and various tribes assume the existence

of such jurisdiction and put the burden on non-Indians

to prove why such jurisdiction should not exist. That

kind of analysis ignores the thrust of Montana, and a

host of very real practical problems have resulted and

will result if the Ninth Circuit is not corrected.

Montana dealt with the same kind of question as is in

this case: whether a tribe has the power to regulate civil

activities by non-members on fee land within a reserva-

tion. Ultimately the court said that no such tribal power

existed. The primary analysis of Montana also addressed

the issue presented in this case: whether inherent tribal

sovereignty was an appropriate basis on which to find

tribal power over non-members. As in Montana, there is

little real argument here that some particular treaty or

statute gave the Yakima nation the power to regulate,

control fee land development, and ultimately punish non-

members in a civil law context.

The framework which guided the Montana court’s

analysis was the framework set out in United States v.

Wheeler, 435 U.S. 313 (1978), and Oliphant v. Suqua-

mish Indian Tribe, 4385 U.S. 191 (1978). Both the

Wheeler and Oliphant cases discussed the issue of tribal

authority over non-members in detail. Wheeler concluded

that by virtue of their original incorporation into the

United States, tribes lost some of their origina] attributes

of sovereignty, including “those involving the relations

between an Indian tribe and non-members of the tribe.”

435 U.S. at 326. In citing Oliphant, the Montana court

concluded that “[t]hough Oliphant only determined in-

herent tribal authority in criminal matters, the principles

on which it relied support the general proposition that

the inherent sovereign powers of an Indian tribe do not

extend to the activities on non-members of the tribe.”

450 U.S. at 565.

Oliphant and Wheeler have been followed consistently

and are good law. They remain as the most extensive

analyses of the thorny questions of tribal jurisdiction

over non-Indians. No decision in the present case can be

made without a serious review of the reasoning of those

cases. The Ninth Circuit made no attempt at such re-

view. If it had, it would have had to recognize the re-

duced reliance that modern courts should give to “platonic

notions of Indian sovereignty” and the increased impor-

tance of analyzing jurisdictional issues in terms of appli-

cable federal treaties and statutes. McClanahan v. State

Tax Comm’n of Arizona, 411 U.S. 164 (1973). It would

also have had to analyze Yakima’s powers over non-mem-

bers in terms of the tradition of its sovereignty, which

in turn was defined by the “shared presumptions” of the

various branches of the federal government. Oliphant,

435 U.S. at 206. See also Washington v. Confederated

Tribes of the Colville Reservation, 447 U.S. 134, 153

(1980).1. The Ninth Circuit further would have had to

acknowledge that the tradition of sovereignty, or shared

presumptions of the branches of the federal government,

all pointed to the fact that tribal jurisdiction over non-

members was almost universally denied, that until re-

cently few tribes even had court systems, and that no

congressional action has granted tribes civil power over

non-members. See, e.g., Oliphant, 435 U.S. at 201-06.

Finally, had the Ninth Circuit recognized Oliphant and

Wheeler, it would have considered the rights of non-

members to be protected from a regulatory system that

might have no relationship with the United States Con-

stitution or commonly accepted principles of American

procedural and substantive justice. The Supreme Court

has readily acknowledged that tribal governments and

judicial systems “are in many ways foreign to the con-

stitutional institutions of the federal and state govern-

ments.” Santa Clara Pueblo v. Martinez, 436 U.S. 49,

71 (1978). Tribal governments and court systems also

are not subject to the constraints of the United States

Constitution. Jd. at 56. Even under the Indian Civil

Rights Act (25 U.S.C. §§ 1301-1303), which does not in-

corporate all constitutional protections, there is no civil

law remedy for violations—only the remedy of habeas

corpus is available. Id. at 65, 72.

1The analysis of “inherent authority” recommended by Mr.

Justice Rehnquist in the Washington case (447 U.S. 134, 176-90)

is appropriate. Such an approach entails examining the “tradition

of sovereignty” with regard to the tribal regulation of non-

members on non-member lands. The tra tion would indicate

that tribal regulation of non-members on’ e lands has not been

historically accepted or exercised. A:‘er 2 “tradition” has been

examined, it will be appropriate to review relevant treaties and

statutes to determine whether Congress expressly altered that

tradition. If Congress did not so alter the tradition, then the

courts should not grant the tribe civil jurisdiction over land use

by non-members on fee lands.

The Oliphant decision reviewed the history of the rea-

sons for traditional lack of authority over non-members

and concluded:

But from the formation of the Union and the adop-

tion of the Bill of Rights, the United States has

manifested an equally great solicitude that its citi-

zents be protected by the United States from un-

warranted intrusions on their personal 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 sovereignty 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. This principle

would have been obvious a century ago when most

Indian tribes were characterized by a “want of fixed

laws [and] of competent tribunals of justice.” H.R.

Rep No. 474, 23d Cong., Ist Sess., at 18 (1834). It

should be no less obvious today, even though present-

day Indian tribal courts embody dramatic advances

over their historical antecedents.

Oliphant, 435 U.S. at 210. The powers of a tribe to con-

fiscate property, to severely restrict the use of private fee

land, to restrict freedom of movement over territory that

is not Indian owned, and to punish non-members with

fines or even arrest (as in, for cxample, civil contempt

proceedings) are precisely the potential “intrusions on

[non-members’] personal liberty” that the Oliphant court

determined were given up by tribes “except [to be exer-

cised] in a manner acceptable to Congress.” Jd. at 210.

Indeed, various Indian Tribes recognize this power, and

have provided for it in their laws and ordinances. The

Cheyenne River Sioux Tribe Tribal Rights Employment

Ordinance provides for the seizure and sale of construc-

tion equipment to pay due excise taxes and penalties.

The Aquatic Lands Conservation Ordinance of the Con-

federated Salish and Kootenai Tribes of the Flathead

Reservation calls for civil penalties of between twenty-

five dollars ($25.00) and five hundred dollars ($500.00)

for each day the violation of the ordinance continues to

exist. Finally, the Intertribal Court of Appeals, in Crow

Creek Sioux Tribe v. Buum, 10 Indian L.Rep. 6031 (in-

tertribal Ct. App. 1983), expressly held tribes have the

power to enforce court orders through civil contempt

proceedings.

Because potential intrusions on liberty are labelled

“civil” rather than “criminal” does not mean that the

intrusions are any less onerous. One who sits in jail for

civil contempt sits in the same jail as does one who vio-

lates tribal criminal law. In fact, given the expansive

reading given the term “civil-regulatory” in recent cases

such as California v. Cabazon Band of Mission Indians,

—— US. , 107 S.Ct. 1083 (1987), it would seem

that even the Oliphant type of direct intrusions on per-

sonal liberty (e.g., incarceration) could be the result of

civil-regulatory jurisdiction by tribes over non-members.

Nor does it make any difference that after more than

one hundred years many (but certainly not all) tribes

have court systems and at least some written laws or

ordinances. Until and unless Congress specifically returns

it, the tribes have lost their power to regulate non-mem-

bers on fee land because that power is “inconsistent with

their status.” Oliphant, 435 U.S. at 208. The return of

jurisdiction over non-members must be specific because

it is so fundamentally important. It is absurd to find

such power by implication (as the Ninth Circuit hints in

this case below) from statutes such as the Indian Financ-

ing Act of 1974 or the Indian Child Welfare Act of 1978.

See 828 F.2d at 533. )

The United States government has a paramount sover-

eign interest in making sure that the constitutional in-

stitutions of the federal and state governments are made

available to its non-Indian citizens. This is especially

true because this United States government was respon-

sible for opening up reservations and inviting non-Indians

to reside thereon. Justice White, in his dissent in the

Santa Clara Pueblo case, quoted the purpose of the con-

gressional Indian Civil Rights Act as being “to insure

that the American Indian is afforded the vroad constitu-

tional rights secured to other Americans.” 456 U.S. at 72.

The Ninth Circuit’s ruling in this case has the peculiar

result of interpreting federal statutes and law so as to

remove those constitutional rights from those “other

Americans” who Congress (and the Court) assumed were

fully and properly protected.

The Oliphant court as well as earlier courts recognized

the dangers of subjecting people of one sovereign to the

eourts of another. Oliphant cited the early case of Ex

perte Crow Dog, 109 U.S. 556 (1883), as an example.

Ex parte Crow Dog involved the question of whether,

prior to the Major Crimes Act, federal courts had juris-

diction over offenses by Indians against Indians on reser-

vations. The Court refused to extend federal jurisdiction

saying that, without statutory mandate, the United States

was trying to extend its law:

by argument and inference only, . . . over aliens and

strangers; over the members of a community sep-

arated by race [and] tradition, . . . from the au-

thority and power which seeks to impose upon them

the restraints of an external and unknown code .

which judges them by a standard made by sais

and not for them. ... It tries them, not by their

peers, nor by the customs of their people, nor the

law of their land, but by .. . a different race, ac-

cording to the law of a social state of which they

have an imperfect conception. . . .

109 U.S. at 571, quoted in Oliphant, 435 U.S. at 210-11.

The above words could have been written with reference

to the present case.

The Ninth Circuit misread the main emphasis of Mon-

tana, ignored Oliphant and Wheeler, and disregarded the

constitutional protections to which non-members of a

tribe are entitled. This Court should correct the Ninth

Circuit’s reasoning, much as it had to do in Montana,

Wheeler, and Oliphant.

B. The General Allotment Act and Other Laws Open-

ing Up the Reservations to Non-member Settlement

Restricted Any Authority the Tribe Might Origi-

nally Have Had Over Non-members.

The Montana decision teaches that the general rule in

matters such as the present one is that notions of “in-

herent sovereignty” do not give tribes jurisdiction over

non-members. That should also be the starting point in

the present case.

The next question should be whether the Ninth Circuit

could identify any specific federal legislation which gave

the Yakima tribe jurisdiction over non-members. The

Ninth Circuit could identify no such legislation. The best

it could come up with is citation to general legislation

encouraging tribal governments in programs involving

their members in areas such as child welfare, education,

and financing. Such statutes are so marginally related to

the present issue as to be of virtually no assistance.

The final question is an analysis of the Yakima issue

should be whether any federal legislation has indicated

an affirmative intent to preclude tribal regulation of non-

members. The Ninth Circuit ignored this inquiry. The

Montana court, however, addressed this question in de-

tail. The court found that the General Allotment Act of

1887 (24 Stat. 388) and subsequent allotment acts which

opened up reservations demonstrated a congressional as-

sumption that tribes did not have and should never have

jurisdiction over non-members. These congressional en-

actments, which encourage and enabled non-members to

move on to reservations, form the correct backdrop

against which to analyze questions such as those posed in

the present case.

The Montana court discussed the federal allotment acts

in detail, holding that even if prior treaties had preserved

some tribal jurisdiction over non-members, the allotment

acts removed such jurisdiction. In an extensive footnote

detailing its reasons for that conclusion, the Montana

court said in part:

The policy of the Acts was the eventual assimilation

of the Indian population [citation omitted] and the

“gradual extinction of Indian reservations and In-

dian titles.” [citation omitted] The Secretary of

the Interior and Commissioner of Indian Affairs re-

peatedly emphasized that the allotment policy was

designed to eventually eliminate tribal relations. .. .

There is simply no suggestion in the legislative

history that Congress intended that the non-Indians

who would settle upon alienated allotted lands would

be subject to tribal regulatory authority. Indeed,

throughout the Congressional debates, allotment of

Indian land was consistently equated with the dis-

solution of tribal affairs and jurisdiction. [citations

omitted] It defies common sense to suppose that Con-

_ gress would intend that non-Indians purchasing al-

lotted lands would become subject to tribal jurisdic-

tion when an avowed purpose of the allotment policy

was the ultimate destruction of tribal government.

Montana, 450 U.S. at 559-60 n.9 (emphasis added).

There was no Yakima jurisdiction over non-members

when the reservation was allotted and when non-members

became fee owners within the reservation, and there is

no Yakima jurisdiction today. No federal enactment has

granted such jurisdiction to the Yakima nation in the

face of the congressional policy which allowed the reserva-

tion to become allotted in the first place. The Ninth Cir-

cuit cannot change that history or congressional policy.

As the Supreme Court has stated on more than one oc-

easion, “[o]ur task here is a narrow one. ... [Wle can-

not remake history.” Rosebud Sioux Tribe v. Kneip, 430

U.S. 584, 615 (1977).

C. The Ninth Circuit Expanded Montana's Exceptions

Far Beyond Their Intent and Meaning.

In this case, the Ninth Circuit took what the Montana

court stated to be exceptions to a general rule, and turned

those exceptions into a general rule. Neither logic nor

precedent support what the Ninth Circuit did.

The Montana court stated clearly “the general proposi-

tion that the inherent sovereign powers of an Indian

tribe do not extend to the activities of nonmembers of the

tribe.” 450 U.S. at 565. It then, however, recognized two

special situations where the general rule could be altered.

First is when non-members choose to become involved

with a tribe by entering “consensual relationship.” Pre-

sumably the non-member has a choice about whether he

wants to deal with a tribe, and therefore can refuse to

become a subject to tribal regulation by ending his con-

sensual (usually commercial) relationship.

Such is not the case with non-members living on reser-

vations who have not made any “consensual” commercial

relationships with a tribe. The Montana court acknowl-

edged that at some level an activity of a non-member

could become so onerous as to threaten the very existence

of a tribe or livability of its reservation. In such a situa-

tion, the court acknowledged that a tribe could act to pro-

tect itself. However, such a situation had to be ex-

tremely serious and was clearly an exception to the gen-

eral rule. Where the Ninth Circuit went astray was

when it took Montana’s language and interpreted it as

encompassing virtually any activity over which a govern-

ment can exercise traditional police power.” Police power

2 The district court in the Whiteside case went so far as to

identify perceived threats to a tribe’s “cultural” and “spiritual”

values as sufficient to justify tribal authority over non-Indians.

617 F.Supp. at 744. Such a reading of the Montana exception is

sufficient to bring just about any conduct within the exception’s

terms, thereby virtually eliminating the general rule.

authority (used to promote the “general welfare’) is

incredibly broad, and goes far beyond situations which

threaten the existence of a tribe or livability of a reser-

vation. It makes no sense to give the Montana exceptions

such an expansive reading because to do so would negate

the Montana court’s preceding extensive discussion of

Oliphant, Wheeler, and the allotment acts.*

The proper interpretation of Montana is that tribal

civil authority over non-members is precluded unless the

tribe can prove that a particular activity is so onerous as

to threaten its own or its reservation’s existence. The

Yakima nation did not, and could not, demonstrate this

in the present case. The activities of non-members of the

tribe are not unregulated. They are subject to state and

local government regulations, constrained by principles of

substantive and procedural due process, and subject to

tribal action if they are particularly onerous. This Court

* The Montana court’s citations to previous authority in support

of its identified exceptions certainly do not support the Ninth

Circuit’s overbroad reading. The Montana court, 450 U.S. at 566,

cited Fisher v. District Court, 424 U.S. 382 (1976); Williams v.

Lee, 358 U.S. 217 (1959); Montana Catholic Missions v. Missoula

County, 200 U.S. 118 (1906); and Thomas v. Gay, 169 U.S. 264

(1898). In Fisher the court dealt with a private legal dispute

involving only Indians. In Wiiliams the issue was jurisdiction over

a private legal dispute between a non-member and a reservation

Indian. In Montana Catholic Missions the court actually upheld

state taxation of cattle owned by non-members in the face of

argument that such taxation would really be against Indians and

should not be allowed. No claims of tribal jurisdiction were made

or ruled upon. The Thomas case was also concerned with state tax-

ation of cattle belonging to non-members on leased Indian land.

Such a state tax was upheld. Again there were no issues involving

tribal jurisdiction over non-members.

The fact that Montana cited only cases that either upheld state

jurisdiction or involved interaction with tribal members empha-

sizes the point that tribal jurisdiction over non-members who are

not directly involved in disputes with tribal members is an

exceptional event.

should clear up the Ninth Cireuit’s misreading, and

should re-emphasize the past reasoning and understand-

ing of the branches of the federal government when ana-

lyzing the reglationship between tribes and non-members

living on fee lands.*

Il. IF TRIBAL AUTHORITY IS FOUND TO EXIST

OVER NON-MEMBERS, THE STATE AND COUNTY

MUST ALSO HAVE SUCH AUTHORITY.

If the Yakima nation is found not to have civil author-

ity over non-members, the issue of concurrent jurisdiction

(or pre-emption thereof) need not be addressed. It has

traditionally and consistently been held that in general a

state has jurisdiction over non-Indians anywhere within

the state’s territory, even within Indian reservations.

Surplus Trading Co. v. Cook, 281 U.S. 647 (1930);

Draper v. United States, 164 U.S. 240 (1896); United

States v. McBratney, 104 U.S. 621 (1881). As was sum-

marized in Cohen’s original Handbook of Federal Indian

Law (1942) at 121:

The mere fact that the focus of an event is on an

Indian reservation does not prevent the exercise of

state jurisdiction where the parties involved are not

Indians and the subject matter of the transaction is

not of federal concern.

In order for state or county jurisdiction over non-

_members to be removed it must be shown either (1) that

the federal government has evidenced an intent to remove

the state’s jurisdiction (White Mountain Apache Tribe v.

Bracker), 448 U.S. 186 (1980)) or (2) that the exercise

4It is important not to confuse tribal jurisdiction over non-

members who have no relationship with the tribe with triba!

jurisdiction over disputes between members and non-members, or

tribal jurisdiction over the activities of its members. There are

stronger reasons (and more lenient tests) for finding jurisdiction

when tribal members or tribal land are involved than there are

when only non-members are involved.

of state jurisdiction somehow so severely interferes with

the right of reservation Indians to make their own laws

and be ruled by them that such jurisdiction should be

disallowed (Williams v. Lee, 358 U.S. 218 (1959)). The

Ninth Cireuit once again misinterpreted these tests in

pre-empting county jurisdiction in the “closed” reserva-

tion area.

The Ninth Circuit erred in applying the federal pre-

emption test as discussed in the cases of White Mountain

Apache Tribe v. Bracker, 448 U.S. 136 (1980), and Cen-

tral Machinery Co. v. Arizona State Tax Comm’n, 448

U.S. 160 (1980). The Bracker and Central Machinery

cases do not present a simple “balancing of interests” test

and nothing more, as the Ninth Circuit implies. Rather,

both of those cases make clear that federal pre-emption

must still be found in a comprehensive federal statutory

and regulatory scheme, even if the classic requirement of

an express statement of intent to pre-empt is not neces-

sary. It is only after » comprehensive federal scheme

in a particular field has been found that an analysis of

any competing state interests is required—and then only

to see if the state interest is so strong as to overcome the

implicit federal pre-emption. Again it must be empha-

sized that authority over non-members is at stake here,

which makes it different than an analysis which deals

with activities involving member Indians.

The Ninth Circuit engages only in the most cursory

examination of a specific federal regulatory scheme.

Rather, it cites general federal statutes such as the

Indian Financing Act of 1974 and Indian Child Welfare

Act of 1978. 828 F.2d at 533. The court apparently con-

cludes that these statutes constitute a comprehensive

scheme for land use management for it then goes directly

to a balancing of interests test. No attempt is made to

support a conclusion, such as was made in Bracker, that:

the Federal Government has undertaken comprehen-

sive regulation of the harvesting and sale of tribal

timber, where a number of the policies underlying

the federal regulatory scheme are threatened... .

448 U.S. at 151. The Ninth Circuit apparently has con-

cluded that general recent federal Indian legislation on

various disparate subjects has in effect pre-empted state

jurisdiction over non-members in all areas—without the

necessity of proving comprehensive federal (as opposed to

tribal) involvement. Such a conclusion is at odds with a

great deal of precedent. Such a conclusion eliminates—

without congressional consideration—almost all state or

county jurisdiction over non-members on reservations.

Such a conclusion should not be accepted by this Court.

Error was also committed below when the Ninth Cir-

cuit analyzed the potential county interest in zoning mat-

ters—an analysis which should only come into play if the

court has found a comprehensive framework of federal

statutes and regulations. It must be remembered that the

county interests go beyond the specific proposed uses by

Brendale and Wilkinson. The Yakima nation is con-

cerned with land uses that may spill over from the fee

land to affect the remaining reservation land. The county

has a similar long range concern that the reservation not

allow development on fee land that would spill over to

affect non-reservation county land. The issue for the

county goes beyond the specific uses proposed by defend-

ants in these cases. The county’s authority will not dis-

appear or reappear depending on the specifics of a future

proposal. If this Court upholds the Ninth Circuit, the

county’s authority is likely gone forever and as to all

future proposed uses of reservation fee lands.

The most reasonable way to protect future county con-

cerns is to also preserve county authority over reserva-

tion fee land. The Ninth Circuit ignored legitimate

future county concerns when it focused only on current

proposals by Brendale and Wilkinson. The court’s error

should not be allowed to continue.

The second barrier to state or county jurisdiction was

not discussed much by the Ninth Circuit, probably be-

cause it does not apply to the present situation. Williams

v. Lee, 358 U.S. 217 (1959), a case involving a legal dis-

pute with a reservation Indian, stands for the rule that

state jurisdiction over such conflicts with tribal Indians

cannot exist when it would severely interfere with the

right of reservation Indians to make their own laws and

be governed by them. County jurisdiction in the present

case does not affect the Yakima nation’s ability to pass

laws governing its own members and their conduct.

County jurisdiction relates only to the activities of non-

members which takes it out of situations such as those

addressed in the Williams case. Any other interpretation

would make the Williams test unnecessary—the court

would have ruled that any state jurisdiction is prohibited

because it, of necessity, would involve regulation of some

kind of on-reservation conduct. No such rule has been

adopted. Since jurisdiction in the present case involves

only non-members, it does not fall victim of the Williams

test.

Ill. ZONING BY THE TRIBAL GOVERNMENT OF

LAND OF NON-MEMBERS WHO ARE UNREPRE-

SENTED IN SUCH GOVERNMENT AFFECTS FUN-

DAMENTAL CONSTITUTIONAL RIGHTS.

Mindful of not getting the “cart before the horse”, it is

nevertheless important at this juncture to at least

address the fundamental constitutional rights potentially

affected by the zoning powers of governmental units.

Oliphant, 544 F.2d 1007, 1019 (1976) (Kennedy, J., dis-

senting). Since voting in tribal governments is limited to

tribal members, the power and the rights involved must

be closely scrutinized by this Court.

The power to zone is derived from the state’s police

power to promote the public health, safety, morals and

welfare. 8 McQuillin, Municipal Corporation, § 25.34,

p. 81 (8rd ed. 1983). Also, see generally 1 Anderson,

American Law of Zoning (8rd ed. 1986). When author-

ized by the state constitution, a specific statute or general

enabling legislation, zoning powers of the state may be

delegated to municipalities and other political subdivi-

sions or units of local government. The enactment of a

zoning ordinance is “an exercise of legislative power

residing in the state.” 8 McQuillin, Municipal Corpora-

tions § 25.54, p. 139.

In general, zoning measures must observe fundamental

guaranties of personal or property rights protected in

federal or state constitutions. For example, such zoning

measures must observe equal protection and due process

of the laws. 8 McQuillin, Municipal Corporations § 25.05,

pp. 12-13. “Moreover, zoning ordinances must conform

and not conflict with enabling statutes or state conferred

rights of eminent domain.” Id.

Under ordinary circumstances, zoning ordinances will

not be struck down unless they are discriminatory, op-

pressive or excessive. See generally Nectow v. Cambridge,

277 U.S. 183 (1928); Village of Euclid v. Ambler Realty

Co., 272 U.S. 365 (1926); 8 McQuillin, Municipal Cor-

porations § 25.05, pp. 12-13.

By definition, the zoning power of a tribal government

over non-members on fee lands is discriminatory in that

only tribal members have a voice in that government.

Village of Euclid v. Ambler Realty Co., 272 U.S. 365

(1926). As a result, this is not a case involving inherent

sovereignty, but rather it is a case of inherent discrimi-

nation. The presence of inherent discrimination makes

the implication of those fundamental due process rights

recognized by this Court in First English Evangelical

Lutheran Church of Glendale v. County of Los Angeles,

482 US. , 107 S.Ct. 2378 (1987), more crucial.

Under the circumstances, it should also make the requests

for this Court to adhere to the fundamental aspects of

Oliphant and Montana, seem only reasonable.

CONCLUSION

Extremely important issues are at stake in this case.

The Court has an opportunity to restore some consistency

and predictability to the law of jurisdiction over non-mem-

bers of a tribe within Indian country. The Ninth Circuit

has erroneously interpreted Supreme Court precedent in a

manner guaranteed to create more confusion and ill will

in Indian country. This Court should reverse the decision

in Yakima Indian Nation v. Whiteside and find exclusive

jurisdiction within the county to impose civil land use

regulations on non-member owners of fee land within the

Yakima reservation.

Respectfully submitted,

KENN A. PUGH

Counsel of Record

P.O. Box 6

Dupree, South Dakota 57623

(605) 365-5171

APPENDIX

A. Becker County Record, Aug. 14, 1988, at 1, col. 1 and 6A,

col. 1

NON-INDIANS FEAR RULING—ty Bill Pond

A small band of residents living on the White Earth

Reservation are deeply troubled about their futures.

They are part of the non-Native American Indian com-

munity living on the reservation, which is primarily

populated by whites. But they say the White Earth’s

band’s control could very well strip their rights under the

U.S. Constitution, rights many people take for granted.

Resort owners Jane and John Reish and Bob Bruns

had dreams of owning their business and living in peace.

But political relations between White Earth tribal lead-

ers and whites are crushing their idyllic world.

om ” *

. . . White Earth Tribal Chairman Chip Wadena said

that may not be the case. If precedence is set, Wadena

said the tribe will not immediately adopt the footsteps

of the Yakima Nation.

a * * *

... Today, roughly 30 percent of the population of White

Earth is native American, controlling 7 percent of the

land.

. . . Wadena said if white residents chose to live on the

reservation, they should be willing to live under White

Earth jurisdiction.

“There is nothing that holds them here. Our tribal

government does have autonomy. They have to under-

stand there is a different government here,” Waldena

said.

B. Detroits Lakes, Apr. 14, 1988, at 1A, 10A

CONTROVERSY OVER FISHING RIGHTS HEATS

UP—by James Campbell

Tempers are flaring after the public announcement

last week of the 1988 White Earth Reservation tribal

fishing regulations.

While the general fishing regulations—which among

other things allow tribal members to take a daily catch

of 10 each of walleyes, northerns, bass and trout; one

muskellunge; 30 crappies; 100 sunfish; and 200 roughfish

—are unpopular, they are unchanged this year from last

year.

But an experimental spring gamefish spearing season

the reservation has instituted for this year is a source of

new controversy.

C. Daily Press, North Wisconsin’s Morning Newspaper, July

1, 1988, at 1, col. 1

4 INDIANS CLAIM TIMBER RIGHTS—Two Bands

Place Moratorium on Treaty Lumbering

SIREN (AP)—Four Chippewa tribal members, citing

Indian treaty rights, want to harvest timber on four

tracts of land open for a Burnett County sale, but the

county said Thursday the sale will go on as planned.

Meanwhile, two Chippewa bands have passed resolu-

tions placing a moratorium on harvesting timber off-

reservation under treaty rights.

“T’ve been concerned about this for years,” said Charles

Tollander, Burnett County board chairman.

He sent a letter Thursday to each of the four members

of the Lac du Flambeau band, saying the tribal members

could be cited for timber theft if they took the timber

without following state and local regulations.

@ & * &

D. Letter from Ann Schoenborn, Co-Chairperson, United

Township Associations to Mr. Robert Gleason (Aug. 12,

1983) (discussing White Earth Tribe)

1. To obtain a true picture of the legal status of all

people living within the boundaries of an open reservation

like White Earth, a division of the people must be made.

The division is Tribal member and Non-Tribal member.

Tribal members are citizens of the White Earth Tribe,

United States, State of Minnesota, and respective County,

Township, or City in which they reside. As citizens of

these governmental bodies they have the right to run for

office, elect officials, have a voice in the formation of laws

and assessment of taxes, and partake in any services

available. They also have one other unique right. That

is the right to discriminate against any person on the

basis of race. This is most prevelant in the case of hiring

practices.

Within any governmental organization the rights of an

individual go hand in hand with a responsibility to main-

tain that organization. Here is where a major division

within Tribal members occurs. A Tribal member living

and working within reservation boundaries pays no state

income taxes while a Tribal member either living or

working or both off the reservation pays state income tax

like any other Minnesota resident. The responsibility for

supporting local services is non-existent for members

living in mobile homes or on Tribal land as they do not

pay real estate taxes. ...

Non-Tribal members include all other people of other

races and people with Indian heritage who by choice or

other Tribal background are not Tribal members. Non-

Tribal members make up 70% of the residents of White

Earth. This group of people are citizens of all the afore-

mentioned governmental bodies except Tribal. They are

financially responsible for all these governmental bodies

including Tribal, without having all of their basic

rights. ...

. . . An example to demonstrate this dilemma would be

a local White Earth businessman. If this person, say a

retailer, sells to a Tribal member he now has a consensual

relationship. If on the other hand he chooses to not sell

to Tribal members he now threatens the economic se-

curity or the health or welfare of the Tribe. Either way

he stands in a position of being licensed and regulated

by a group in which he has no choices. This example can

be applied to grocers, gas stations, hardware stores, bait

dealers, resorters and farmers, to name a few.

* * + *

In our meeting with Mr. Rick Neal we asked to have

the U.S. Commission on Civil Rights be directed to study

and collect information and appraise Federal laws and

policies with respect to discrimination of non-Tribal

members living on open reservations. Mr. Neal said this

could be Step 2 if necessary.

* * * *

E. Letter from David Rasmussen, Game Warden, Minnesota

Dept. of Natural Resources to State of Minnesota (May 5,

1988) enclosing Letter from John M. Sieling, Chief Deputy,

Becky County, Minnesota to David Rasmussen (April 28,

1988)

* * * *

... Due to the fact that the White Earth Indian Reserva-

tion decided to open up legalized spearing of game fish

during the spawning season, we felt that a number of

concerned residents that lived within the reservation were

upset about the events that had taken place in the past

with the trespassing and they anticipated more incidents

this year.

* * * *

Several of our officers that patrolled the reservation dur-

ing the spearing season have advised me that the situa-

tion up there was very tense in regards to the tribal

members that were spearing on the reservation and with

the land owners that own property on the reservation

itself. ...

EE. Map of Flathead Lake, Flathead Reservation, Montana

by Dept. of Interior (March 20, 1915), denotes “Boundary

of Former Flathead Indian Reservation”

F. Aquatic Lands Conservation Ordinance No. 87-A of the

Council of Confederated Salish and Kootenai Tribes

AQUATIC LANDS CONSERVATION ORDINANCE—

BE IT ENACTED BY THE COUNCIL OF THE CON-

FEDERATED SALISH AND KOOTENAI TRIBES

that:

PART II—FINDINGS AND POLICY

Section 1. Findings.

The Tribal Council finds that:

a. The self-governing capabilities, political integrity,

health and welfare, and economic security of the Tribes

will be protected and enhanced by Tribal governmental

control, regulation and protection of aquatic lands which

are critical for the perpetuation of Reservation fisheries

and wildlife, the preservation of Reservation water qual-

ity, and the maintenance of the health, safety and wel-

fare of Tribal members and thereby of all persons resid-

ing on the Reservation.

b. The Treaty of Hellgate July 16, 1855 (12 Stat.

975) reserved to the Confederated Salish and Kootenai

Tribes (hereinafter the “Tribes”) the exclusive right to

hunt and take fish within the exterior toundaries of the

Flathead Reservation.

m. “Reservation waters” means:

(1) all naturally occurring bodies of water within the

exterior boundaries of the Reservation regardless of al-

teration by man, including but not limited to lakes, rivers,

streams (including intermittent streams), mudflats, wet-

lands, sloughs, potholes and ponds from which fish and

wildlife are or could be taken, but does not include

wholely manmade water bodies.

(2) tributaries of waters identified in subpart (1)

above;

(3) wetlands adjacent to Reservation waters.

G. Glacier Reporter, December 12, 1985 at 9, 10 (Proposed

Blackfeet Comprehensive Tax Code)

BLACKFEET COMPREHENSIVE TAX CODE

Of the Blackfeet Tribe of the

Blackfeet Indian Reservation—October, 1985

* *

Section 1.1 Statement of Purpose.

The Blackfeet Tribal Business Council of the Blackfeet

Indian Tribe hereby enacts this Blackfeet Tribal Tax

Code for matters regarding assessments and collection of

taxes imposed by the Tribe, in furtherance of its policy

of assuming, to whatever degree permitted by the Con-

stitution, laws and treaties of the Blackfeet Tribe, and

by the Constitution, laws and treaties of the United States

of America, governmental control over property, persons

and business activities within the exterior boundaries of

the Blackfeet Indian Nation. Tax revenues collected pur-

suant to this Code are to be used to provide governmental

services which improve the health and welfare of both

members and non-members of the Tribe residing within

the boundaries of the Blackfeet Nation. To finance and

strengthen these tribal governmental policies, the Black-

feet Tribal Business Council of the Blackfeet Indian

Tribe hereby adopts and incorporates the ordinances set

forth as Chapters, Sections or Provisions, in this Code,

as well as any subsequent tax ordinances and amend-

ments thereto which the Business Council of the Black-

feet Tribe may, from time to time, deem necessary and

proper.

H. Great Falls Tribune, April 11, 1987 at 12(A) (discussing

Blackfeet 4% possessory tax)

* * *

The Blackfeet Tribe’s 4 percent possessory tax on oil

companies, railroads, utility firms and rural cooperatives

is a bad idea—from start to finish. It may be discrimina-

tory and, at least in the early phases, it disregarded the

interests of people and companies that were affected.

The possessory tax was passed by the Blackfeet Tribal

Council on Dec. 30, to take effect two days later, with

little advance notice and no public hearing. Tribal of-

ficials said the tax was necessary to maintain essential

reservation services—such as health programs, the tribal

court and the community college.

* * * oe

The BIA has approved the proposed tax. But Marlenee

has asked Interior Secretary Donald Hodel for a mora-

torium on new tribal taxes on non-Indian interests while

his legislation is pending.

& * * *

I. Great Falls Tribune, at 1A (discussing Blackfeet 4% pos-

sessory tax)

TRIBAL TAX WINS APPROVAL

OF FEDERAL AGENCY

By The Associated Press and Tribune Staff

BILLINGS—The Bureau of Indian Affairs has ap-

proved a 4-percent tribal tax on utilities, railroads and

oil and gas companies that cross the Blackfeet Indian

Reservation.

* * * *

The Blackfeet tax was the second tribal tax approved

in Montana this year. Earlier, a 3-percent tribal tax

was imposed on the Fort Peck Indian Reservation.

The tax took local businesses by surprise when a news-

paper advertisement in January informed them the tax

due by March 23. The tribal business council had passed

the measure without hearings at the end of 1986.

* * & *

Glacier County officials opposed the tax, saying they

fear it will spark a major financial crisis if the affected

utilities protest their taxes. County Attorney James C.

Nelson said the protests could tie up tax revenue for

years and force the county to reduce its services.

* * * +

J. Letter from Lee Jacobsen, Secretary of East Slope Tax-

payers Association of August 16, 1988, to “whom it may

concern” (Aug. 16, 1988)

ao * * *

Jurisdiction problems have all but stopped lending

agencies and insurance companies from doing business

here. The oil companies have pulled out and new drilling

is at a minimum. The $300.00 business tax is now at

$1,000.00 for anyone who sells liquor on the Blackfeet

Reservations, control of sale of tax free cigarettes and

gambling is also strictly under tribal control.

The threat of carrying out the letter of the tax ordi-

nance is making lots of farmers and ranchers and Ag

Business Associates very wary. The economy is very bad

and so much time and money spent on trying to prevent

more problems exist such as this legal brief.

* * * *

K. West Valley Watch, Inc., Aug. 17, 1988 (discussing Con-

federated Tribes of Grand Ronde)

SENATE CLEARS GRAND RONDE

TRIBAL MEASURE

By George Robertson

Even though the U.S. Senate last week approved a bill

creating a 9,8ll-acre reservation for the Confederated

Tribes of Grand Ronde some opponents are still hoping

President Reagan will kill the measure.

* * * *

Kathy Thole, a Grand Ronde business owner who has

opposed the bill, said if Reagan signs it she might seek a

preliminary injunction in the federal courts to prevent

the measure from being enacted.

* * * +

L. Albuquerque Journal, Aug. 31, 1983, at A-a, A-3 (discussing

Sandia Pueblo)

PUEBLO ASKS RETURN OF

9,000 ACRES IN SANDIAS

By Nolan Hester, Journal Staff Writer

Sandia Pueblo is seeking the return of almost the en-

tire northern half of the Sandia Mountain Wilderness,

claiming it has uncovered a surveying mistake that

dropped approximately 9,000 acres from the pueblo’s or-

_ iginal Spanish land grant.

Tribal officials have asked Rep. Bill Richardson, R-

N.M., to introduce federal legislation allowing the trans-

fer—which would include land beneath the Sandia Crest

transmission-tower site, the Sandia Peak Tramway, the

Juan Tabo picnic area and approximately 100 homes in

the nothern foothills.

* . * *

10a

M. Cheyenne River Sioux Tribe Ordinance No. 42a

Section 1: Declaration of Policy

As a guide to the interpretation and application of this

Ordinance, the public policy of the Cheyenne River Sioux

Tribe is declared to be as follows:

* + * -_

Indians have unique and special employment, subcon-

tract and contract rights and the Cheyenne River Sioux

Tribal Government has the inherent sovereign power to

pass laws to implement and enforce those special rights

on behalf of Indians... .

C. “Covered Employer” means any employer employ-

ing two or more employees who during any 30-day pe-

riod, spend, cumulatively, 40 or more hours performing

work within the exterior boundaries of the Cheyenne

River Sioux Reservation.

* * * -

Section 3: Indian Preference in Employment

All covered employers, for all employment occurring

within the exterior boundaries of the Cheyenne River

Sioux Reservation, shall give preference to qualified In-

dians, with the first preference to local Indians, in all

hiring, promotion, training, layoffs, and all other aspects

of employment. Such employers shall comply with the

rules, regulations, guidelines and orders of the Cheyenne

River Sioux Tribal Employment Rights Commission

which set forth the specific obligations of employers in

regard to Indian preference and local Indian preference.

These requirements shall not apply to any direct employ-

ment by the Cheyenne River Sioux Tribe...

* * * *

A. Every covered employer with a construction con-

tract in the sum of $50,000.00 or more shall pay a one-

time fee of 1% of the total amount of the contract... .

lla

B. Every covered employer, other than construction

contractors, with twenty (20) or more employees working

on the Cheyenne River Sioux Reservation, or with gross

sales on the Cheyenne River Sioux Reservation of $50,000

or more shall pay a quarterly fee of 1% of his employees

quarterly payroll which shall be paid within 30 days

after the end of each quarter.

N. 53 Fed. Reg. 20, 179 (1988)

Bureau of Indian Affairs

Cheyenne River Sioux Tribe of South Dakota;

Ordinance Amending Alcohol Beverages Control] Law

* * * *

Sec. 1-1-1. Statement of Purpose. The purpose of this

Alcoholic Beverages Control Law is to regulate the ac-

tivities of the manufacture, distribution, sale and con-

sumption of liquor on the Cheyenne River Sioux Reser-

vation. Any person desiring to engage in the possession,

sale, trade, transport or manufacture of alcoholic bever-

ages on the Cheyenne River Sioux Indian Reservation

shall comply with the rules and regulations set forth in

this Alcoholic Beverages Control Law. This Ordinance

shall be cited as the “Cheyenne River Sioux Alcoholic

Beverages Control Law” and, pursuant to the constitu-

tional and inherent sovereignty of the Cheyenne River

Sioux Tribe, shall be deemed an exercise of the Tribe’s

powers for the purpose of protecting the welfare, health,

peace, morals and safety of all people residing on the

Cheyenne River Sioux Reservation.

* * * *

O. Draft of By-laws of Cheyenne River Sioux Tribe (Dec. 23,

1935)

12a

BYLAWS OF THE CHEYENNE RIVER SIOUX

TRIBE OF SOUTH DAKOTA

Article V Section 1

(ec) This court shall have jurisdiction over all Indians

upon the reservation and over such disputes or lawsuits

as shall occur between Indians on the reservation or be-

tween Indians and non-Indians where such cases are

brought before it by stipulation of both parties provided

that jurisdiction over Indian employees of the Indian

Service shall be subject to rules and regulations pre-

scribed by the Secretary of the Interior.

* * * *

P. Complaint of Cheyenne River Sioux Tribe v. Farmers

Union Oil, Lester Starr (July 25, 1988)

* * * -_

III. The defendant operates a liquor establishment

within the exterior boundaries of the Cheyenne River

Sioux Reservation without the appropriate tribal business

and liquor licenses in violation of Ordinance No. 1, gov-

erning tribal business license and in violation of Ordi-

nance No. 48, the Alcoholic Beverages Control Law.

* * * *

WHEREFORE, Plaintiff requests judgment as follows:

1. Adjudging that the defendant is subject to the juris-

diction of the Cheyenne River Sioux Tribe. 2. That de-

fendant herein is in violation of Ordinance No. 1 for the

failure to secure the appropriate tribal business license.

3. That Defendant herein is in violation of Ordinance

No. 48 for the failure to secure the appropriate tribal

liquor license. 4. Plaintiff requests to the courts for in-

junctive relief in the form of closing down said estab-

lishments owned by the defendant until such time as de-

fendant has secured the appropriate business and liquor

license from the Cheyenne River Sioux Tribe.

13a

Q. Letter from Wayne Ducheneaux, Chairman of Cheyenne

River Sioux Tribe to Mr. Green, Mayor of Dupree (Feb. 12,

1988) with Resolution No. E. 52-88-CR attached

Dear Mr. Green:

Please find enclosed the above referenced resolution

detailing sanctions adopted by the Cheyenne River Sioux

Tribe which are directed towards the cities of Timber

Lake and Dupree. . ..

* * * -_

. .. The economic sanctions will not only affect your local

banks and grocery outlets but, also, includes the busi-

nesses therein.

The Tribe will also make a concerted effort to infiuence

the Indian students and parents thereof into transferring

said Indian students to the Cheyenne-Eagle Butte School,

thereby endangering the federal and State funding re-

ceived due to your large Indian student populations.

I had sincerely hoped that our government to govern-

ment relationship had been one of mutual respect and

concern for the citizens of our communities, but the Tribe

has been met with nothing but belligerent and hostile

attitudes from both governing bodies.

R. Letter from Wayne Ducheneaux, Chairman of Cheyenne

River Sioux Tribe to Kenn Pugh (June 6, 1988)

Pugh, Kenn, A., Attorney at Law...

P.O. Box 6, Dupree, SD 57623

As of February 8, 1988 our records show that your

business has not remitted the required 1988 business li-

cense fee for doing business on the Cheyenne River Sioux

Reservation. And/or, your firm also has not filed a busi-

ness application with the CRST Revenue Department.

l4a

The procedures for this delinquent business license

account have been initiated with delinquent notice. The

administrative procedures includes assessing a penalty of

ten percent (10%) of the fee owed for each month the

business license fee is not paid...

* * a +.

. . . Should your business fail to come into compliance

with tribal ordinance governing the business licensing

requirements, the Bureau of Indian Affairs may be forced

to implement federal law regarding the Federal Trader’s

iicensing provisions.

S. Letter from Congressman Sensenbrenner, Wisconsin, to

Constituent (June 28, 1988)

o * + %

On June 3rd, Federal District Judge Barbara Crabb

issued a decision in the continuing lawsuit over Chippewa

hunting and fishing rights. This decision, in my opinion,

is far worse than Judge James Doyle’s landmark decision

of February 1987.

Judge Crabb ruled that the Chippewa have the right

to harvest all of the more than 175 species of animals and

plants listed in the Doyle decision and that they have

the right to use all of the harvest methods employed in

treaty times and developed since then. Crabb ruled that

the Chippewa have greater rights to hunt, fish and gather

in the “ceded” territory than do non-Indians and that the

Chippewa’s rights are “paramount.”

What this ruling means is that the Chippewa have the

rights to all of the fish and game in northern Wisconsin

and that non-Indians have no rights to them at all.

* * 7. *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.