Amicus Curiae Brief — Kerr-McGee Corp. v. Navajo Tribe

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1984

KERR-McGEE CORPORATION,

F. BROWNING PIPESTEM

Counsel of Record

G. WILLIAM RICE

PIPESTEM & RICE

408 West Main Suite 100

Norman, Oklahoma 73069

Telephone: (405)329-3 840

For the Sac and Fox Tribe

of Indians of Oklahoma

December 26, 1984

No. 84-68

rr. ˙ w ˙ w —%2—..—%—%½—½—½.½..—

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1984

KERR-McGEE CORPORATION,

PETITIONER,

NAVAJO TRIBE OF INDIANS,

RESPONDENTS.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF OF AMICUS CURIAE

SAC AND rox TRIBE OF INDIANS OF OKLAHOMA

oS? wn

F. BROWNING PIPESTEM

Counsel of Record

G. WILLIAM RICE

PIPESTEM & RICE

408 West Main Suite 100

Norman, Oklahoma 73069

Telephone: (405)329-3840

For the Sac and Fox Tribe

of Indians of Oklahoma

December 26, 1984

TABLE OF CONTENTS

INDEX TO AUTHORITY * * * * * * * * . *

INTEREST OF AMICUS CURIAE ......

SUMMARY OF ARGUMENT * * * * * * * *

ARGUMENT oO * * * * * * * * * * ba * + *

AFFIDAVIT OF SERVICE AND MAILING

INDIAN TRIBES ARE SOVEREIGN

ENTITIES ENTITLED TO EXERCISE THE

AUTHORITY TO TAX ALL PERSONS

AND PROPERTY WITHIN THE INDIAN

COUNTRY SUBJECT TO THEIR

JURISDICTION IN ORDER TO PROVIDE

GOVLRNMENTAL SERVICES WITHIN

THEIR TERRITORIAL JURISDICTION.

TRIBES ARE NOT REQUIRED TO ADOPT

THE INDIAN REORGANIZATION ACT OF

1934 TO TAX NON-INDIANS WITHOUT

FEDERAL SUPERVISION AND

APPROVAL * * * * * * * * * * * *

THERE IS NO AUTHORITY FOR THE

PROPOSITION THAT THE SECRETARY

OF THE INTERIOR HAS OBTAINED

PLENARY AUTHORITY OVER THE

EXERCISE OF TRIBAL GOVERN-

MENTAL AUTHORITY IN DEROGATION

OF THE FEDERAL CONSTITUTION,

FEDERAL ADMINISTRATIVE PRO-

CEDURE, AND THE RIGHTS TO SELF

GOVERNMENT RESERVED TO THE

NAVAJO TRIBE * * * * * * . * * * * * * * 22

CONCLUSION * * * * * * * * * * * * * * * * 38

* * * * * 41

TABLE OF AUTHORITIES

A. CASES

Alaska Pacific Fisheries v. United States

248 U.S. 78, 63 L.Ed. 138 (1916)

Arrow-Hart & Hegeman Electric Company

Federal Trade Commission

291 U.S. 587, 78 L.Ed 1007 (1934)

Babbit Ford v. Navajo Indian Tribe .. .

710 F.2d 587 (9th Cir. 1983)

BankAmerica Corp. v. United States

U.. » 76 L. Ed. 2d 456 (1983)

Barta v. Oglala Sioux Tribe ......

259 F.2d 553 (8th Cir. 1958)

Biue Jacket v. Commissioners

72 U.S. (5 Wall.) 737, 18 L.Ed 667 (1867)

Buster © Writ bbb bb „b „„ .

135 F. 947 (8th Cir. 1905) appeal dism.

203 U.S. 599, 51 L.Ed 334 (1906)

Cardin ve De La Cruz * * * * * * * * *

671 F. 2d 363 (9th Cir. 1982) cert.

den. 74 L. Ed. 2d 277 (1982)

Gh bbb

224 U.S. 665, 56 L.Ed 941 (1912)

Citizens To Preserve Overton Park v.

Volpe . >. > >. >. > > > > >. >. >. *

401 U.S. 402, 28 L. Ed. 2d 136 (1971)

Colville Confederated Tribes v. Walton

647 F. 2d 42 (9th Cir. 1981)

Confederated Salish & Kootenai Tribes v.

Namen o „ „ „ * > „ * * > * > >. * * * o * 16

665 F. 2d 951, (9th Cir. 1982)

DeCoteau v. District Court 17

420 U.S. 425, 43 L. Ed. 2d 300 (1975)

Ex Parte Crow Dog * * * * * * * * * * * * * * * 31

109 U.S. 556, 27 L.Ed. 1030 (1883)

FPC v. Transcontinential Gas Pipe Line

Corporation .... see e V 277

423 U.S. 326, 46 L.Ed.2d 533 (1976)

FTC V. Bunte Brothers * * * * * . * * * * * * * 38

312 U.S. 349, 85 L. Ed 881 (1941)

Fisher v. District Court 14, 15

424 U.S. 382, 47 L. Ed. 2d 106 (1976)

Francis v. Francis ....++++++e-e «+ 26, 31

203 U.S. 233 (1906)

Harjo v. Andrus ... +26 eee 1.31

481 F.2d 949 (D.C. Cir. 1978)

Hario V. Kleepe * * * * . * * * 7 * * * * * 21,31

420 F.Supp. 1110 (D. b. C. 1976)

Jones v. Meeha n 12, 14, 26, 31

175 U.S. 1, 44 L. Ed 49 (1899)

Kerr-McGee Corporation v. Navajo Tribe of Indians 20

731 F.2d 604 (1983)

Knight v. Shoshone and Arapaho Tribes . 16, 24

670 F.2d 900 (10th Cir. 1982)

Leedom v. Ryyne . 77

358 U.S. 184, 3 L. Ed. 2d 210 (1958)

Logan V. Andrus * 7 * . >. > 7 . * 7 * * 21. 31

457 F. Supp. 1318 (W. D. Okla 1978)

Maxey Vv. Wright 0 * * * * * * * . * * * * * * * 18

34 S8. W. 807 (Ct. App. Ind. Terr.)

aff'd. 105 F. 1003 (8th Cir. 1900)

McClanahan v. Arizona Tax Commission . 20, 41

411 U.S. 164, 36 L.Ed.2d 129 (1973)

Merrion v. Jicarilla Apache Tribe .. 12,13,14,15,17,

455 U.S. 130, 71 L.Ed.2d 21 (1982) . . . . 28,29,33,34

Montana v. United States .... 12, 13, 14, 15, 33

450 U.S. 544, 67 L.Ed.2d 493 (1981)

Morris V. Hiteheock * * * * * . * * * * * * * 15, 31

194 U.S. 384, 48 L. Ed 1030 (1904)

Morton v. Manar 336

417 U.S. 535, 41 L. Ed. 2d 290 (1974)

National City Bank v. Republic of China ..... 40

348 U.S. 356, 99 L.Ed 389 (1955)

New Mexico v. Mescalero Apache Tribe ..... 15

__. U-S. 76 L.Ed.2d 611 (1983)

Northern Cheyenne Tribe v. Hollowbreast ..... 17

425 U.S. 649, 48 L.Ed.2d 294 (1976)

Ortiz-Barraza v. United States

412 F.2d 1176 (9th Cir. 1975)

Ramah Navajo School Board v.

Bureau of Revenue

458 U.S. 832, 73 L.Ed.2d 1174 (1982)

Roff V. Burney * „ * * * © * * * *

168 U.S. 218, 42 L. Ed 442 (1897)

Santa Clara Pueblo v. Martinez

436 U.S. 49, 56 L.Ed.2d 106 (1978) .

Snow v. Quinault Indian Nation

Southland Royalty Company v. Navajo Tribe

715 F.2d 486 (10th Cir. 1983)

Squire v. Capoeman + >

351 U.S. 1 (1956)

Talton v. Mayes ...

Trans-Canada Enterprises, Ltd. v.

Muckleshoot Indian Tribe . .

163 U.S. 376, 41 L.Ed 196 (1876)

634 F.2d 474 (9th Cir. 1980)

United States v. Celestine

215 U.S. 278, 54 L.Ed 195 (1905)

United States v. Kagama

118 U.S. 375, 30 L.Ed 228

United States v. McGowan... .

302 U.S. 535 (1938)

Slip Op. No 81-3042 (9th Cir. 1983)

* * * „ * * 16

* 0 . . „ > 12

12, 13, 14, 17,

32, 34, 35

* * * * * 14

United States v. Mequire

* * * * 7 * * 13

419 U.S. 544, 60 L. Ed 1192 (1916)

United States v. Niee

* * * * * * * 39

241 U.S. 591, 60 L. Ed 1192 (1916)

United States v. Quiver ......

* * * * . * * 12

241 U.S. 602, 60 L. Ed 1196 (1916)

United States v. Wheeler ........ 12, 13, 35

435 U.S. 313, 55 L.Ed.2d 303 (1978)

United States ex rel. Accardi v.

Shaughnessy * * * > * * * * * * * * * * . * 27

347 U.S. 260, 98 L.Ed 681 (1954)

Washington v. Confederated Tribes 12, 13, 14,

447 U.S. 134, 65 L.Ed.2d 10 (1980) 15, 33

Warren Trading Post v. Arizona Tax Commission

380 U.S. 685, 14 L. Ed. 2d 165 (1965)

White v. Pueblo of San Jun 11185

728 F. 2d 1307 (10th Cir. 1984)

White Mountain Apache Tribe v. Bracker 34

448 U.S. 136, 65 L. Ed. 2d 665 (1980)

Williams V. Lee * * * * * > * * >. * * * >. 14, 15, 39

358 U.S. 217, 3 L.Ed.2d 251

Worcester v. Georgia ...... 12, 13, 14, 31, 33

31 U.S. (s Pet.) 515, 8 L.Ed 483 (1832)

Yellow Beaver v. Commissioners ......... 39

72 U.S.S Wall.) 757, 18 L.Ed 673 (1867)

B. CONSTITUTIONAL PROVISIONS

Absentee-Shawnee Tribe, Art. V. 11

Apache Tribe of Oklahoma, Art...

Citizen Band Potawatomi Tribe, Art. V, §2

Fort Sill Apache Tribe, Art. ITC

Hualapai Tribe, Art. VI, Ion)

lowa Tribe of Kansas and Nebraska,

Art. V. 510) > > > > > e > > >. > >

lowa Tribe of Oklehoma, Art. V. 22

Kickapoo Tribe of Kansas, Art. V. §1(f) .

Kickapoo Tribe of Oklahoma, Art. V. $1(a)

Pueblo of Laguna, Art. VI, §1(eX4)... -

Sac and Fox Tribe of Kansas and Nebraska

Art. V. 5105) > * * > _ > > > > 4 >

Sac and Fox Tribe of Oklahoma, Art. V, §1

San Carlos Apache Tribe, Art. V. §1(k) . .

C. UNITED STATES CODE

5 U.S.C. §706 .. 2+ 2+ 2 ee ee eee

15 U.S.C. $3320 . 2.2. 2+ e+ eee ee ~ *

18 U.S.C. 111

7 Stat. 26 reat > > > 7. >. >. * >. >. > >. > >. >. > 10

Met cee — 30,31 (Treaty)

7 Stat. 28 (Treaty) * * * * * * * * * * * * * * * 10

—

25 U.S.C. 450

7 Stat. 35 DD „re eee e „ % % „0 0%

8 UBC. %%%ũẽ wc ccc eee ee 8. (Treaty)

7 Stat. 39 (Treaty) * * * . * * * * * * . * * 10

25 U.S.C. 8465

7 Stat. 49 re t >. > > > >. 7 * * > >. > * * * > 10

25 U.S.C. $476 . (Treaty?

——

15 Stet. 667 t nee eee 66666 6 ea

25 U.S.C. §501 as nb ao a aa 6D eS OC ea eS eS 2 Fe 29 (Treaty)

20 Stat. 62 Terre se 2 te ee ee

25 U.S.C. 5503 er ao @ @ @ 8 @ @&. 86 2 & 2

—

31 Stat. 1058

25 U.S.C. §1301 ere a. a ae an ee

94 Stet. 11⸗ẽ 11 „81

% ũ mmwͤm é s a

96 Gt % „ „ „

25 U.S.C. 51911 V

49 Stat. 1967 * * * * * * * * * * * * * * * * * 2

26 U.S.C. $7871 * * * * * erer * * * * * 33

P.L. 93-580

D. UNITED STATES STATUTES AT LARGE

K. MISCELLANEOUS AUTHORITY

„„ „„ „e „ee „eee

F. Cohen, HANDBOOK OF

1 Stat. 743 2. ee ee ee ee ' 10 FEDERAL INDIAN LAW (1942) ... 8, 12, 13,

19, 24, 26, 30

2 Stat. 139 * * * . * * * * * * Dre 10

55 LD. 103 ene eee

7 Stat. 16 (Treaty)... - 2 ee ee 10

President Reagan's Indian

7 Stat. 18 (Treaty) eS 2 2 ey eeeee0ee0e8 60 10 Policy Statement sees 000 0 0 0 00 37

—

7 Stat. 21 (Treaty)

7 Stat. 24 (Treaty)

Presidential Commission on Indian

Reservation Economies, Report and

Recommendations (Nov. 30, 1984)

Rep. Comm. Ind. Affairs 1833

Rep. Comm. Ind. Affairs 1838 .

Rep. Comm. Ind Affairs 1865 .

Rep. Comm. Ind. Affairs 1877 .

Rep. Comm. Ind. Affairs 1886 .

Rep. Comm. Ind. Affairs 1889 . .

Rep. Secretary of Interior 1965

Senate Comm. on Indian Affairs,

Report No. 1080, 73rd Cong.

2nd Session (1934) ....

Senate Comm. on Indian Affairs,

Hearings on S. 2755 and S. 3645,

Part 2, 73rd Cong. 2nd Session (1934) . . . .

12 Univ. Calif. Davis L. Rev. 1 (1979)

No. 84-68

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1984

KERR-McGEE CORPORATION,

PETITIONER,

NAVAJO TRIBE OF INDIANS,

RESPONDENTS.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF OF AMICUS CURIAE

SAC AND FOX TRIBE OF INDIANS OF OKLAHOMA

The Sac and Fox Tribe of Indians of Oklahoma

respectfully submits this brief as amicus curiae in support

of the position of respondent Nevajo Tribe of Indians.

Written consent for the filing of this brief has been

maiicd by both parties and will be forwarded for filing

upon receipt.

INTEREST OF AMICUS CURIAE

The Sac and Fox Tribe of Indians of Oklahoma is

a federally recognized tribe of Indians located in the

State of Oklahoma. The Sac and Fox Tribe of Indians

of Oklahoma (hereinafter referred to as the Sac and Fox

Tribe) has adopted a written Constitution approved by

the Secretary of the Interior pursuant to the Oklahome

Indian Welfare Act, Act of June 26, 1936, Ch. 831, §3,

49 Stat. 1967, codified at 25 U.S.C.A. §503.

Pursuant to this Constitution, the Legislature of

the Sac and Fox Tribe has enacted a myriad of ordinances

which regulate the conduct of both members and non-

members within the Indian Country subject to the

jurisdiction of the Sac and Fox Tribe. Some of those

ordinances include a Business Corporation Act, providing

for the incorporation and domestication of corporations

within the tribal jursidiction, a Grievance Committee

Procedure Act, providing for the removal or discipline

of elected tribal officers under certain conditions, e

Bingo Ordinance, providing for the licensing and regule-

tion of bingo activities within the tribel jurisdiction, a

Mineral Leasing Act, regulating the execution, operations,

and terminations of leases of tribally owned minerals

including oil and gas, and a General Revenue and Taxation

Act, providing for the levy, administration, and collection

of tribal taxes upon such things as tobacco, sales of

personal property, employee's earnings, possessory inter-

ests such as leases in tribal or individual trust lands, the

severance of oi] and gas from Indian lands, the net

receipts of licensed bingo operators, and motor vehicles.

These taxes apply to all persons and property located

within the Indian country subject to the jursidiction of

the Sac and Fox Tribe, and are paid by both Indians and

non-Indians alike. The funds received from tax revenues

are expended exclusively for the expenses of the tribel

government in providing services such as governmental

administrative expenses, police protection, fire protec-

tion, road maintenance, and similar expenses utilized by

all taxpayers within the tribal jurisdiction. The Legisle-

ture of the Sac and Fox Tribe has regularly waived its

sovereign immunity into the Courts of the Tribe in these

ordinances, and have authorized the Tribal Court to

protect the rights of all persons against actions of tribal

executive and legislative officers.

The Constitution of the Sac and Fox Tribe, as

approveo by the Secretary of the Interior, contains no

requirement that any ordinance of the Legislature of the

Tribe be approved by the Secretary of the Interior. In

adopting tribal legislation, the tribe] Legislature regularly

Submits tribal legislation, at some stage of e tribal

legislative process to the agents of the Secretary of the

Interior for their information, review, and comments.

However, the Secretary has repeatedly expressed to the

Sec and Fox Tribe his determination that it is not only

unneccessary but also inappropriate for his office to

approve the general legislation of the Sec and Fox Tribe,

in the absense of e statutory or tribal constitutional

requirement for his approval.

Due to the lack of any express requirement in tribal

law or federal statutory lew that the Secretary of the

Interior approve general tribal legislation, and the specific

determination by the Secretary that his approval was not

required in order for this legislation to be valid, none

of the general legislative enactments of the Sac and Fox

Tribe has been approved by the Secretary of the Interior.

A decision of this Honorable Court requiring Secretarial

approval of tribal legislative enactments in the absence

of a specific tribal or Congressional requirement for such

approval would literally wipe all Sac and Fox Tribal

legislation from the books, create immediate chaos in the

erea of law enfereement and tribal government, and cause

the disintegration of the legal foundation for every

economic activity within the tribal jurisdiction. The Sac

and Fox Tribe has an essential and compelling interest

in the maintenance of law and order and the regulation

of and authorization for business and personal activities

of persons within the jurisdiction of the Tribe in order

to provide for and promote the peace, safety, and welfare

of all persons who live, work, or otherwise enter into

the tribal jurisdiction having a significant relationsnip to

the Sac and Fox Tribe or its men ders. For these reasons,

the Sac and Fox Tribe has an essential and compelling

interest in this case arising out of an unprincipled

challenge to the rights of a tribal government to require

a business corporation to contribute its fair share to the

expenses of maintaining a civilized society within which

it can conduct its business operations for profit.

SUMMARY OF ARGUMENT

The Navajo Tribe of Indians is a federally recognized

Indian Tribe having a long standing treaty relationship

with the political departments of the United States

Federal Government. Within the context of this relation-

ship, the authority of the Navajo Tribe to tax all entities,

including legal persons such as corporations, who conduct

business activities within the tribal jurisdiction has never

been limited. Nor has any requirement that legislative

enactments of the Navajo Tribe relating to taxation must

be approved by the Secretary of the Interior, or any

other federal agent, been agreed to by treaty, nor imposed

by any federal statute enacted by the Congress.

No one forces oil companies or others to enter into

the jurisdiction of the Tribe to conduct their business

activities. Oil companies cannot complain that they have

no remedy simply because they refuse to exercise the

remedies available to them pursuant to tribal law. Kerr-

McGee Corporation has exactly the same rights and

remedies as a business corporation ‘formed by Indians

pursuant to Navajo law would have, and somehow believes

that this Court, in the absence of any statutory require-

ment therefore, should condone a position in which there

is one rule for corporations with Indian stockholders,

another for corporations with non-Indian stockholders,

and perhaps another rule for corporations with both Indian

and non-Indian stockholders. Such a position is untenable.

In the absence of a specific requirement in either

federal or tribal law that Navajo Tribal legislation relating

to taxation be approved by the Secretary of the Interior,

no such requirement exists, and the Navajo tribal taxes

at issue here are valid and enforceable.

ARGUMENT

PROPOSITION L

INDIAN TRIBES ARE SOVEREIGN ENTITIES ENTITLED

TO EXERCISE THE AUTHORITY TO TAX ALL PERSONS

AND PROPERTY WITHIN THE INDIAN COUNTRY SUB-

JECT TO THEIR JURISDICTION IN ORDER TO PROVIDE

GOVERNMENTAL SERVICES WITHIN THEIR TERRI

TORIAL JURISDICTION.

It is beyond cavil that the lands within the Navajo

Indian Reservation, irrespective of any rights of posses-

sion or user, are Indian Country. 18 U.S.C. 61151. While

the term "Indian Country" has been used in many different

senses, it has traditionally been defined as country within

which Indian tribal laws, whether express legislative

enactments or tribal law in the form of traditional usages

and customs, and federal laws relating to Indians are

generally applicable to the exclusion of state laws. F.

Cohen, Handbook of Federal Indian Law, 5 (1942). Felix

Cohen, the noted Indian law scholar previously recognized

by this Court as the emminent authority in the field,!

reviewed the historical development of the term Indian

Country, Id. at pages 5 and 6:

The Indian country at any perticuler time

must be viewed with reference to the existing

body of federal and tribal law. Until 1817, it

is country within which the criminal laws of

the United States are not generally applicable,

so that crimes in the Indian Country by white

against whites, or by Indians, are not cogniz-

able in state or federal courts any more than

crimes committed on the soil of Canada or

Mexico. Treaties defined the boundaries

between the United States, or the seperate

states, and the territories of the various Indian

Tribes or nations. Within these territories

the Indian tribes or nations had not only full

jurisdiction over their own citizens, but the

same jurisdiction over citizens of the United

States that any other power might lawfully

1. Squire v. Capoeman 351 U.S. 1, 8-9 (1956).

exercise over emigrants from the United

States. Treaties between the United States

and various tribes commonly stipulated that

citizens of the United States within the

territory of the Indian nations were subject

to the laws of those nations. 3

and futher:

Indian country in all these stetutes (the

original federal legislation defining the Indian

country and extending certain aspects of

federal law to certain pe sons or property

therein] is territory, wherever situated, within

which tribal law is generally applicable, feder-

al law is applicable only in special cases

2. It is interesting to note in this connection that some

of the early Trade and Intercourse Acts contained a

provision requiring a citizen or inhabitant of the United

States to acquire a passport before going into the country

secured by treaty to the Indians. Act of May 19, 1796,

1 Stat. 469; Act of March 3, 1799, 1 Stat. 743; Act of

March 30, 1802, 2 Stat. 139

3. Treaty of January 21, 1785, with Wiandot, Delaware,

Chippewa, and Ottawa Nations, 7 Stat. 16; Treaty of

November 28, 1785, with the Cherokees, 7 Stat. 18; Treaty

of January 3, 1786, with the Choctaw Nation, 7 Stat.

21; Treaty of January 10, 1786, with the Chickasaw

Nation 7 Stat. 24; Treaty of January 31, 1786 with the

Shawanoe Nation, 7 Stat. 26; Treaty of January 9, 1789,

with the Wyandot, Delawere, Ottawa, Chippewa,

Pattawattima, and Sac Nation, 7 Stat. 28; Treaty of

August 7, 1790, with the Creek Nation, 7 Stat. 35; Treaty

of July 2, 1791, with the Cherokee Nation, 7 Stat. 39;

Treaty of August 3, 1795, with the Wyandots, Delaweres,

Shawanoes, Ottawas, Chipewas, Putawatimes, Miamis, Ee)

River, Wees's, Kickapoos, Piankashaws, and Kaskaskias,

7 Stat. 49.

- 10-

It is, therefore, clear that the question of whether an

Indian tribe has the authority to tax corporations doing

business within the Indian Country subject to the jurisdic

tion of that Tribe absent Secretarial approval must be

determined in light of this historical understanding and

the current federal policy of tribel self-determination

and limitation of federal involvement in the affairs of

the Tribes.

The most basic principle of Indian law, supported

by a host of decisions, is that those powers which are

lawfully vested in an Indian tribe are not, in general,

delegated powers granted by express acts of Congress,

but rather inherent powers of a limited sovereignty which

have never been extinguished. The statutes of Congress

then, must be examined to determine the express limite-

tions placed upon tribal sovereignty rather than to

Getermine its sources or positive content. Cohen,

Handbook of Federal Indian Law 122, (1945); Merrion v.

Jicarilla Apache Tribe, 455 U.S. 130, 71 L.Ed.2¢ 21

(1982Minherent power to tax, regulate, and exclude non-

Indians); Montana v. United States, 450 U.S. 544, 67

L.Ed.24 493 (1981Minherent power to exercise civil

jurisdiction and regulate non-Indian activities on Indian

lands, including leases); Washington v. Confederated

Tribes, 447 U.S. 134, 65 L.Ed.2d 10 ss rent power

to tax); United States v. Wheeler 435 U.S. 313, 55 Eg. 20

303 (1978Xpower to exercise criminal jurisdiction over

Indians); Santa Clara Pueblo v, Martinez , 436 U.S. 49,

56 L. Ed. 20 106 (1978Xmembership, and immunity from suit

by reeson of sovereign immunity); Roff v. Burney 168

U.S. 218, 42 L.Ed 442 (1897membership); Jones v. Meehan

175 U.S. 1, 44 L.Ed 49 (1899)inheritance); United States

¥. Quiver 241 U.S. 602, 60 L.Ed 1196(1916Xdomestic

relations); Worcester v. Georgia 31 U.. (s Pet.) 515, 8

L.Ed 483 (1832Xpower to exclude nonmembers).

- 12-

Indian tribes, as distinct political communities re-

taining their original natural rights of self-government,

remain a separate people with the power of regulating

both their members and other persons or entities within

their territory when the nonmembers have significant

impect on the tribe or its members. Worcerster u.

Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed 483 (1832); United

States v. Mazurie 419 U.S. 544, 42 L.Ed.2d 706 (1975);

United States v. Kagama 118 U.S. 375, 30 L.Ed 228 (1886);

United States v. Wheeler 435 U.S. 313, 55 L.Ed.2¢ 303

(1978); Senta Clara Pueblo v. Martinez 436 U.S. 49, 56

L. Ed. 20 106 (1978); Montana vy. United States 450 U.S.

$44, 67 L. Kd. 2 493 (1981); Washington v. Confederated

Tribes 447 U.S. 134, 65 L. Ed. 20 10 (1980); Merrion x.

sicarilla Apache Tribe 455 U.S. 130, 71 L. Ed. 20 21 (1982);

F. Cohen, Handbook of Federal Indian Law 122-23 (1942).

The inherent power to tax, regulate, and exclude

non-Indians hes been consistently upheld, and the widely

held understanding of the federal government has alweys

been that federal laws have not worked s divestiture of

- 13-

such powers. Worcester v. Georgia 31 U.S. (6 Pet.) 515,

8 L.Ed 483 (1832); Jones v. Meehan 175 U.S. 1, 44 L.Ed

49 (1899); Washington v. Confederated Tribes 447 U.S.

134, 152-53, 65 L.Ed.2d 10, 28-29 (1980); Montana v.

United States 450 U.S. 544, 565-66, 67 L. Ed. 2d 493, 510-

11 (1981); Merrion U Apache Tribe 455 U.S.

130, 71 L. Ed. 20 21 (1982); Snow v. Quinault Indian Nation,

709 F. 20 1319 (9th Cir. July 7, 1983) Cert denied, 81

L.Ed.2¢ 362 (1984); Babbit Ford v. Navajo Indian Tribe

710 F. 20 587 (9th Cir. 1983); Southland Royalty Company

v. Navajo Tribe of Indians, 715 F. 2d 486 (10th Cir. 1983).

The outgrowth of this historical and decisional perspective

is the repeated determination that Indian Tribes have the

inherent authority to enforce their own laws in their own

forums as to both Indians and non-Indians. Williams v.

Lee 358 U.S. 217, 3 L.Ed.2¢ 251 (1959); Eder v. District

Court 424 U.S. 382, 47 L. Ka. 20 106 (1976); Sante Clare

Pueblo v Martiner 436 U.S. 49, 56 L-Ea. 20 106 (1978);

Merrion v. Jicarille Apache Tribe 455 U.S. 130, 71 L. Ed. 20

21 (1982); Cardin v. De La Cruz 671 F. 2 363 (9th Cir.

~ 14- *

1982) cert. den. 74 L. Ed. 20 277 (1982); New Mexico v.

Mescalero Apache Tribe U. 8. _, 76 L. Kd. 20 611 (1983);

White v. Pueblo of San Juan 728 F. 20 1307 (10th Cir.

1984).

Within the Indian Country, the repeated litigation

in this, and other courts, has clearly shown that Indian

Tribes may regulate, through taxation, licensing, or other

means, the activities of non-Indians who enter consensual

relationships with the tribe or its members through

commercial dealing, contracts, leases, or other

arrangements and clearly may do so where the conduct

of the non-Indian threatens or has 6 direct effect on the

political integrity, economic security, or the health and

welfare of the tribe. Merrion v. Jicarilla Apache Tribe

455 U.S. 130, 71 L. Ed 2 21 (1982); Montana v. United

States 450 U.S. 544, 565-66, 67 L. Ed. 2d 493, 510-11

(1981); Washington v. Confederated Tribes 447 U.S. 154,

153-55, 65 L. Ed. 2d 10, 26 (1980); Williams v. Lee 358

U.S. 217, 3 L. Fd. 2d 251 (2959); Morris v. Biteheock 194

U.S. 364, 48 L.Ed 1030 (1904); Pisher v. District Court

424 U.S, 382, 47 L.Ed.2¢ 106 (1976); Buster v. Wright

135 F. 947 (8th Cir. 1905) appeal dism. 203 U.S. 599, 51

L.Ed 334 (1906); Maxey v. Wright 34 S. w. 807 (Ct. App.

Ind. Terr.) aff'd. 105 F. 1003 (8th Cir. 1900); Barta v.

Ogiale Sioux Tribe 259 F. 20 553 (8th Cir, 1958); Trans-

Canada Enterprises, Ltd v. Muctleshoot Indian Tribe 634

F. 20 474 (9th Cir. 1980); Cardin v. De La Crus 671 F. 20

363, 366 (9th Cir. 1982) cert. den. 459 U.S. 967, 74

L.Ed.26 277 (1982); Knight v. Shoshone and Arapaho Tribes

670 F. 20 900 (10th Cir, 1982); Ortiz-Barraze v. United

States 412 F.2d 1176, 1179 (9th Cir, 1975); Confederated

Salish and Kootenai Tribes v. Namen 665 F. 20 951, 963-

64 (8th Cir, 1982); Colville Confederated Tribes v. Walton

647 F.2d 42 (9th Cir. 1981).

When considering whether any particular legisia‘ion

imposes limitations upon the governing auihority of Indian

Tribes, except the authority to enter into relationships

with foreign sovereigns without the consent or the United

States - a limitation found in most Indian treaties, thet

legislation or treaty must be liberally contrued in the

interest of the Tribe, and doubtful expressions resolved

in its favor. Morthern Cheyenne Tribe v. Bollowbresst

425 U.S. 649, 48 L. Ed 2 294 (1976); DeCoteau v. District

County Court 420 U.S. 425, 43 L.Bd.2¢ 300, 314 (1979);

McClanahan . Arizona Tax Commission 411 U.S. 164, 36

Lad 129 (1973); Alaska Pacific Fisheries v. United

States 248 U.S. 78, 63 L.Ed. 138 (1916); Choate v. Trapp

224 U.S. 665, 56 L.Ed 941 (1912); United States v.

Celestine 215 U.S. 278, 54 L.Ed 195 (1905); Sante Clare

Pueblo . Martines 436 U.S. 49, 56 L.Bd.2¢ 106 (1978);

Merrion v. Jicarille Apeche Tribe 455 U.S. 130, 71 L.Ed.2¢

21 (1982).

PROPOSITION u.

TRIBES ARE NOT REQUIRED TO ADOPT THE INDIAN

REORGANIZATION ACT OF 1934 IN ORDER TO TAX

WON-INDIANS WITHOUT FEDERAL SUPERVISION AND

APPROVAL.

None of the foregoing authorities in Proposition l.

which paint with the broadest brush the fullness of the

cornucopia of inherent tribal authority over persons and

- 17-

property within the Indian Country jurisdiction of an

Indian Tribe, contain any requirement that the tribal

government be modeled in any particular form, or that

tribal legislative actions be reviewed by the Secretary

of the Interior in the absence of an explicit treaty

provision, statute, or some other explicit provision of the

internal laws of the perticular Tribe involved. It has,

in fect, been said that the legal history of the Indian

tribes covers a longer period and a wider range of

variation than the constitutional history of the colonies,

the states, and the United States:

It was some time before the immigrant Colum-

Dus reached these shores, according to eminent

historians, thet the first Federal Constitution

on the American Continent was drafted, the

Gayaneshagowa, or Great Binding Law of the

Five Gs ter six) Ne tions (roquo's). It was in

this constitution that Americans § first

established the democratic principles of

initiative, recall, referendum, and equal

suffrage. in this constitution, also, were set

forth the ideal of the responsibility of

governmental officials to the electorate, and

the obligation of the present ation to

future generations which we call the principle

of conservation.4

and further:

From the earliest years of the Republic the

Indian tribes have been ized as "distinct,

independent, political communities,” and, as

such, qualified to exercise powers of self-

ent, not by virtue of any delegation

of powers from the Federal Government, but

rather by reason of the original tribal

sovereignty.

In point of form it is immaterial whether

the powers of an Indian tribe are expressed

and exercised through customs handed down

word of mouth or through written

constitutions and statutes. In either case the

laws of the Indian tribe owe their force to

the will of the members of the Tribe.

F. Cohen, Handbook of Federal Indian Law, p. 122.

4. F. Cohen, Handbook of Federal Indian Law 128 (1942).

Obviously, this constitution was not drafted in written

form recognizable by the European immigrants who first

contacted the League of the Five Nations. Just as

obviously, neither this constitution, nor other similar

constitutions or the laws of the various tribes involved

were approved by any authority of the United States

prior to their validity. This Constitution of the Iroquois

Confederacy is still the basic instrument of government

for most of the Six Nations Reservations now located

within the State of New York.

- 19-

Petitioner asserts that Indian Tribes not organized

pursuant to the Indian Reorganization Act of 1934 (IRA)

cannot tax non-Indians without federal supervision and

approval. However, the Ninth Circuit Court of Appeals

in Kerr-McGee Corporation v. Navajo Tribe of Indians,

731 F.2d 604, quoting from the Tenth Circuits decision

in Southland Royalty Co. V Navajo Tribe of Indian, 715

F.2d 486, appropriately countered this off-beat assertion,

at p. 603, by holding:

The purpose of the IRA was to enable and

encourage Indian self-government.

Organization under the IRA was not the only

form of self-government acceptable to

Congress. One of the ways in which the IRA

reflects a respect for self-government was in

the provision that make adoption of a

constitution optional. 25 U.S.C. §476. The

choice of government is in itself an act of

se) f-government and consonant with

Congressional policies.

Petitioner's fail to recognize that when Congress

has intended the result Petitioner urges—that the

government of an Indian tribe be required to be in a

particular form, or has determined to give the President

or the Secretary of the Interior general supervisory

authority over the action of a Tribe's legislative or

executive branches, it has explicitly so provided. See,

Act of June 7, 1897, 30 Stat. 62, 84 (Five Civilized

Tribes); Act of March 3, 1901, 31 Stat. 1058, 1077 (Five

Civilized Tribes); Act of June 28, 1906, 34 Stat. 539,

545 (Osage Tribe).5 In contrast, the plain language of

the Indian Reorganization Act, 25 U.S.C. §476, imposes

no requirements for the form of a tribal government, nor

requires Secretarial approval of tribal ordinances whether

a Tribe organizes pursuant to that, or any other act of

5. It is interesting to note that the portions of the

Osage Allotment Agreement which designate the form of

government for the Osage Tribe and other specif‘cs of

its governmental organization were probably enacted, not

is response to any perceived inadequacies in the tnen

extant written Constitution and laws of the Osage Tribe,

but in order to return a form of self-government to the

Osage Tribe after the Secretary of the Interior had

unilaterally and arbitrarily abolished the Osage tribal

government in a series of ultra vires actions, v.

Andrus 457 F. Supp 1318 (W. F. Okla 1978), acti

by federal courts in similar cases as “bureaucratic

imperialism". v. 420 F.Supp. 1110 (D. D. C.

1976); aff'd ae nom. 2 v. Andrus 481 F. 2d 949

(D.C. Cir. 1978).

— 20- / - 21-

— nn ⅛ 5 TTT

Congress, @ non-Congressionally authorized written Con-

Stitution or other written laws, or continues to operate

pursuant o @ traditional form of government existing

since time immemorial. Simply stated, neither the Indian

Reorganization Act nor any other Act of Congress

requires the Navajo Tribe of Indians to organize their

government in any particular form.

PROPOSITION m.

THERE IS NO AUTHORITY FOR THE PROPOSITION THAT

THE SECRETARY OF THE INTERIOR HAS OBTAINED

PLENARY AUTHORITY OVER THE EXERCISE OF

TRIBAL GOVERNMENTAL AUTHORITY IN DEROGATION

OF THE FEDERAL CONSTITUTION, FEDERAL

ADMINISTRATIVE PROCEDURE, AND THE RIGHT TO

SELF GOVERNMENT RESERVED TO THE NAVAJO TRIBE.

In an incredible series of arguments, Petitioner,

Kerr-McGee Corporation raises the spectre of Indian

tribal governments run amuck and invites this Honorable

Court to endorse an unprecedented rule of law holding

that Indian tribes, through recognized by the executive,

legislative and judicial branches of the United States as

having the authority to legislate and enforce civil laws

within their jurisdiction are competent only to legislate

and enforce civil laws governing non-Indians when some

other non-Indian person or agency gives his blessing to

such laws—all in the absence of any treaty, statutory,

or Constitutional requirement for such blessing.

Petitioner, by legal legerdemain, requests this Court to

transform government by the Tribe into government by

the Secretary of the Interior.

It is black letter hornbook law that administrative

officers of the Executive Department of the Federal

Government have only such authority as is not in excess

of statutory jurisdiction, authority, or limitations, end

that any actions of an administrative officer, such as

the Secretary of the Interior, will be held unlawful and

set aside if found to be ultra vires, 5 U.S.C. §706(2XC).

The Secretary of the Interior, in fact, has explicity

determined that he has no such authority respecting tribal

ordinances taxing mineral production within the jurisdic-

tion of the Tribe® unless there exists either (1) a statute

of Congress explicitly granting approval authority over

that Tribe or the subject matter; or (2) Constitutional

or statutory authority from the Tribe itself granting him

the power to approve the action in question. 83 B. L A. u.

6.6B; "Guidelines for the Review of Tribal Ordinances

Imposing Taxes on Mineral Activities", Bureau of Indien

A‘fairs; Southland Royalty Company v. Navajo Tribe of

Indians 71° F.2d 486 (10th Cir. 1983); Knight v, Shoshone

& Arapahoe Indian Tribes 670 F. 2d 900 (10th Cir. 1982);

6. "The claim of administrative officers to plenary power

to regulate Indian conduct has been rejected in every

decided case where such power was not invoked simply

to implement the administration of some more specific

statutory or treaty provision.“ F. Cohen Handbook of

Federal Indian Law 103 (1942). Petitioner is attempting

to force upon the Secretary the administration and

regulation of a field where (1) the Secretery has

determined that he has no statutory authority to act,

and (2) where the Secretary has indicated that it would

be adverse to the Administration's Indian policy for him

to affirmatively exercise the authority claimed for him

even if it was within his discretion to do so.

Babbitt Ford, Inc. v. Navajo Indian Tribe 710 F. 20 587

(9th Cir. 1983). in its final report to the American

Indian Policy Review Commission (1976), a Commission

authorized by the Congress in Public Law 93-580, Task

Force Two: Tribal Government, determined that the

Secretary's authority to control the actions of Indien

Tribes came from two sources, the trust responsibility

for Indian trust property as delineated by federal statutes,

and the constitutions of the Tribes themselves. The

Report On Tribal Government stated at page 15:

BIA or Interior Department authority over the

actions of Indian Tribal Governments

upon provisions found in tribal constitutions

must be viewed as a matter which concerns

the individual tribe and is not an issue of

Federal policy. Even though the Interior

Department officials were responsible for

Grafting the model IRA constitution and for

encouraging tribes to edopt constitutions

which contained the “boilerplate”

granting authority to the Secretary of Interior,

it is clear that the tribes are not required

under Federal law to submit their governments

to this broad range of supervisory control. In

recent times, a significant number of Indian

tribes have amended their constitutions to

delete completely any requirement that the

tribal government submit any form of tribal

action to the Secretary of Interior for his

review and approval. Consequently, today it

remains a matter of tribal initiative whether

to allow for Secretarial review and approval

of tribal action throught their constitution or

change their law to be completely free of

such tribelly-conferred Federal supervision.

The Secretary's view on this subject is therefore in accord

with the existing law. 7

The Congress has explicitly directed the federal

courts to limit the actions of federal agencies, including

the Department of the Interior, to the authority

7. ein the case of Francis v. Francis (203 U.S. 233

(1906)] the President, pursuant to a treaty reserving land

to individual Indians and their heirs, issued a patent

conveying a title with restrictions upon conveyance. The

Supreme Court held ineffectual the restrictive clause

because the 'President had no authority, in virtue of his

office, to impose any such restriction; certainly not,

without the authority of en act of Congress, and no such

act was ever passed.“

n question of whether internal affairs of Indian

tribes, in the absence of statute, are to be regulated by

the tribe itself or by the Interior Department was squarely

before the Supreme Court in the case of Jones v. Meehan

[175 U.S. 1 (1899) One of the questions presented by

that case [arising between and resulting from a dispute

between white persons holding leases and conveyances of

property of the Indian decedent from his heirs) was

whether inheritance of Indian land, in the absence of

statute, was governed dy the laws, usages, and customs

of the Chippewa Indians“ or by the rules and regulations

of the Secretary of the Interior. In line with numerous

decisions of lower courts, the Supreme Court held that

the Secretary of the Interior did not have the power

claimed, and that in the absence of statute such power

rested with the tribe and not with the Interior

Department" — even though non-Indians were the

claimants to the property. F. Cohen, Handbook of Federal

Indian Law 102 (1942).

specifically conferred upon them by statute. In Section

706 of Title 5 of the United States Code Congress

directed, in pertinent part:

The reviewing court shall —

(2) hold unlawful and set aside agency action,

findings, and conclusions found to be —

(B) contrary to constitutional right,

power, privilege, or immunity;

authority, or limitation, or short of

statutory right;

This Court has held, on more than one occasion, that

prior to a federal agency having any authority to take

an action it must be shown that the action is within the

scope of the agency's authority, and that action taken

outside the scope of explicitly delegated statutory author-

ity is void. FPC v. Transcontinental Gas Pipe Line Corp.

423 U.S. 326, 331, 46 L.Ed.2d 533, 538 (1976); Citizens

To Preserve Overton Park v. Volpe 401 U.S. 402, 415,

28 L.Ed.2d 136, 153 (1971); Leedom v. Kyne 356 U.S.

184, 188, 3 L.Ed.2d 210, 214 (1958); United States ex

rel. Accardi v. Shaughnessy 347 U.S. 260, 266, 267, 98

L.Ed 681, 686 (1954); Arrow-Hart & Hegeman Electric

- 27-

Company Vv. Federal Trade Commission 291 U.S. 587, 594,

598, 78 L.Ed 1007, 1011, 1013 (1934).

There is no cogent authority for the proposition

that the Secretary of the Interior has obtained plenary

authority over the exercise of tribal powers of self-

government. In Merrion v. Jicarilla Apache Tribe 455

U.S. 130, 71 L.Ed.2d 21 (1982), a case upholding the

Jicarilla Apache Tribe's inherent power to tax, regulate,

and exclude non-Indians, this Court in stating that the

tribal ordinance in question required approval by the

Secretary prior to being effective cited the Constitution

and laws of the Jicarilla Apache Tribe. It is evident

that the reasoning and source of authority for Secretarial

approval was the Tribal constitutional requirement that

the Secretary of the Interior approve such ordinances. ®

Also, the language of this Court in the Merrion case was

8. That this self-imposed limitation on tribal authority

is purely voluntary with the Jicarilla Tribe, and not any

general requirement of Federal Indian Law, note the

constitutions of Tribes approved by the Secretary of the

Interior pursuant to the Indian Reorganization Act, 25

U.S.C. §476, and the Oklahoma Indian Welfare Act, 25

U.S.C. 3501, which by specific delegation of taxing

authority or by general delegation of all inherent and

statutory authority of the Tribes, vests the authority in

the Tribal Legislatures to tax all persons without any

requirement of Secretarial approval of the ordinances

providing for such taxes: San Carlos Apache Tribe (1954),

Article V, Section 1(k); Hualapai Tribe (1955), Article VI,

Section 1(m); Pueblo of Laguna (1958), Article VI, Section

1(e)(4); Sac and Fox Tribes of Kansas and Nebraska (1937),

Article V, Section 1(f); Apache Tribe of Oklahoma (1972

as amended through 1976) Article V; Fort Sill Apache

Tribe of Oklahoma (1976 as amended through 1978) Article

IV: lowa Tribe of Kansas and Nebraska (1978) Article V,

Section 1(i); Kickapoo Tribe of Kansas (1962) Article V,

Section 1(f); Absentee Shawnee Tribe (1977) Article 5,

Section 1; Citizen Band of Potawatomi Indians (1971)

Article V, Section 2; lowa Tribe of Oklahoma (1977)

Article V, Section 2; Kickapoo Tribe of Oklahoma (1977)

Article V, Section 1(a); Sac and Fox Tribe of Indians of

Oklahoma (1967) Article V, Section 1.

dicta in that the tribe's constitution required Secretaria!

approval of its ordinances, the Secretary had in fact

approved the ordinance in question, and no question was

presented as to whether the Secretary had to approve

the ordinance to render it valid in the absence of a

tribal or congressional mandate that he do so. This

statement was made in the context of answering a

Commerce Clause challenge to the taxing authority of

the Jicarilla Tribe.

Additionally, assumption of such powers by the

Secretary of the Interior has always been condemned by

the Courts and disapproved by Congress:

The claim of administrative officers to plenary

power to regulate Indian conduct has been

rejected in every decided case where such

power was not invoked simply to implement

the administration of some more specific

statutory or treaty provision. Cohen, Handbook

of Federal Indian Law 103 (1945).

and further:

This statute [25 U.S.C.§2] was obviously not

intended to vest in the newly created office

of the Commissioner of Indian Affairs the

power to regulate Indian conduct generally . .

. « The phrase management of all Indian

affairs’ clearly does not mean management of

the affairs of Indians' any more than the

phrase management of foreign affairs“ means

‘management of the affairs of foreign nations

- 30-

« «eT

or of foreigners." The phrases "Indian affairs"

and "Indian relations" are intended to cover

the relations between the United Sates and

the Indian tribes, which relations are commonly

established either by treaty or by statute’.

Id. at 102, and the footnote references therein.

See, also, 55 LD. 103 (August 24, 1942)(Holding that 25

U.S.C. §2, by and of itself, did not give any direct

authority to the Secretary of Interior, but that section

2 must be read in conjunction with another expressed

grant of authority); Francis v. Francis 203 U.S. 233, 242,

51 L.Ed 165, 168 (1906); Morris v. Hitchcock 194 U.S.

384, 48 L.Ed 1030 (19..); Jones v. Meehan 175 U.S. 1,

29, 44 L.Ed 49, 60 (1899); Worcester v. Georgia 31 U.S.

(6 Pet.) 515, 8 L.Ed. 483 (1832); Ex Parte Crow Dog 109

U.S. 556, 27 L.Ed. 1030 (1883); Logan v. Andrus 457

F.Supp. 1318 (N.D.Okla.1978)(Secretary's attempt to a-

bolish Osage power of self-government held void); Harjo

v. Kleepe 420 F.Supp. 1110 (D. D. C. 1976)(Secretary's

attempt to prevent Creek legisla ture from meet ing stated

to be "bureaucratic imperialism" and void) aff'd. sum.

nom. Harjo v. Andrus 581 F. 20 949 (D.C.Cir. 1978).

The petitioner has stated that there must be some

mechanism to determine when tribal actions are

inconsistent with the national interests. That mechanism

is now in force. The authority of congress to limit tribal

powers of self-government by statute, not some implied

authority for the Secretary of the Interior creating a

phantasmagoria of limitations on the tribal power of self-

government contrary to all prior case law, is available

to affirmatively check unfair or unprincipled action's by

tribal governments. Santa Clara Pueblo v. Martinez 426

U.S. 49, 56-57, 56 L.Ed.2d 106, 114 (1978); See also, Act

of April 26, 1906, Chap. 1876, $28, 34 Stat. 137, 148

(1906)(this act is an example of the method congress has

used to require Secretarial approval of tribal legislation,

no similar act applies to the Navajo Tribe of Indians);

Indian Civil Rights Act of 1968, 25 U.S.C. $1301, et.

seq.(this act is an example of the method Congress has

used to limit the tribe's powers cf self government.

However, in this act, Secretarial approval of tribal

legislation was not required. See Santa Clara Pueblo

—— —ä—ͤ—

v. Martinez 426 U.S. 49, 56-57, 56 L. Ed. 20 106, 114

- 32-

(1978)). Further, tribal exercise of the powers to tax,

non-Indians when their conduct within the tribal jurisdic-

tion has some effect on Indian interests has never been

invalidated or limited as inconsistent with any stated

national interests by a federal appellate court. Merrion

v. Jicarilla Apache Tribe 455 U.S. 130, 71 L.Ed.2d 21

(1982); Washington v. Confederated Tribes 447 U.S. 134,

65 L.Ed.2d 10 (1980); Montana v. United States 450 U.S.

544, 67 L.Ed.2d 492 (1981); Worcester v. Georgia 31 U.S.

(6 Pet.) 515 , 8 L.Ed 483 (1832); 15 U.S. CS. $§3320(a),

(ei). In fact, in both the National Gas Policy Act of

1978, 15 U.S.C.S. §3320, and the Indian Tribal Government

Tax Status Act of 1982, 26 U.S.C. §7871, et cet., tribal

taxation is explicitly recognized by the Congress. In the

National Gas Policy Act, tribal “severance taxes are

authorized on an equal footing with state severance taxes

in 1978 — four years prior to this Court confirming that

Indian tribes have the authority to levy such taxes, and,

in the Indian Tribal Government Tax Status Act, tribal

taxes generally are recognized as eligible for deduction

- 33-

for federal income tax purposes on an equal footing with

state taxes without any indication of the supposed

requirement that these taxes be approved by the Secretary

of the Interic&i,prior to implementation.9 - Simply stated,

if there are te limitations imposed upon the authority

of Tribal governments, it is the exclusive province of

the Congress to explicitly impose those limitations, and

the Congress has not seen fit to do so in this case.

Merrion v. Jicarilla Apache Tribe 455 U.S. 130, 147, 71

L.Ed.2d 21, 36 (1982); White Mountain Apache Tribe v.

Bracker 448 U.S. 136, 65 L.Ed.2d 665 (1980); Santa Clara

Pueblo v. Martinez 436 U.S. 49, 56 L.Ed.2d 106 (1978);

9. The Natural Gas Policy Act states in pertinent part

at 15 U.S.C. $3320(c): “Definition of State severence

tax. For purposes of this section, the term "State

severance tax" means any severance, production, or

similar tax, fee, or other levy imposed on the production

of natural gas — (1) by any State or Indian Tribe.“ If

Congress had intended such authorized and recognized

Tribal severance taxes to be approved by the Secretary

of the Interior prior to becoming effective, then, under

any recognized rule of statutory construction, the

Congress also intended State severence taxes to be

approved by the Secretary of the Interior prior to

becoming effective.

United States v. Wheeler 435 U.S. 313, 55 L.Ed.2d 303

(1978); Talton v. Mayes 163 U.S. 376, 41 L.Ed 196 (1896).

Congress has, in fact, consistently opposed the

exercise of such powers as petitioner Kerr-McGee here

advocates for the Secretary of the Interior. As early

as 1833, and continuing thereafter, the Commissioners of

indian Affairs, and the Secretary of the Interior had

requested from Congress specific authority to create

codes of laws for, veto the actions of, and act as

magistrates for the Indian Tribes.19 The Indian Reorgani-

zation Act itself, 25 U.S.C. $§465, et. seq., was designed

10. See, Rep. Comm. Ind. Aff. 1833 p. 186 (Commissioner

Herring); Rep. Comm. Ind. Aff. 1838 p. 424 (Commissioner

Crawford); Extract from Report of the Secretary of the

Interior, 1865, p. IV in Rep. Comm. Ind. Aff. 1865 (Interior

Secretary Harlan); Rep. Comm. Ind. Aff. 1877 pp. 1-2

(Commissioner Hayt); Rep. Comm. Ind. Aff. 1886 p. XXVII

(Commissioner Atkins); See, also, Rep. Comm. Ind. Aff.

1889 p. 26 (reporting the establishment of Courts of

Indian Offenses in 1882 without the benefit of

Congressional approval or authorization, even in light of

the many previous requests for such authority), and Santa

Clara Pueblo v. Martinez 436 U.S. 49, 68-69, 56 L.Ed.2d

106, 119-120 (1978) where this Court discusses another

attempt dy the Interior Department to obtain

Congressional approval to review the governmental

actions of Indian tribes — an attempt which was rejected

by the Congress.

not to limit the authority of traditionally based tribal

governments, but to get the Secretary of the Ipterior

out of tribal self-government into which he had intruded

by his unwarranted assumption of administrative powers.

Ziontiz, After Martinez: Civil Rights Under Tribal Gov-

ernment, 12 Univ. Calif. Davis L. Rev. 1, 31-33 (1979);

Senate Comm. on Indian Affairs, Report No. 1080, 73rd

Cong., 2nd Sess., 3-4 (1934); Hearings on S. 2755 and

S. 3645, Senate Comm. on Indian Affairs, 73rd Cong.,

2nd Sess., pt. 2, p. 256 (1934); H.R. Rep. No. 1804, 73rd

Cong., 2nd Sess., p. 8 (1934); Morton v. Mancari 417 U.S.

535, 41 L.Ed.2d 290 (1974).

Not only is it clear that the Secretary does not

claim review power over the levy and collection of tribal

taxes without some specific authority to do so, but it is

also clear that the Indian Tribes affected, and the Bureau

of Indian Affairs, and the Congress, and the Congressional

Task Force commissioned to review Federal Indian policy,

and the Interior Department's most noted scholar in the

field of Indian law, and the President as explained in his

Indian Policy Statement!! are of the view that the

Secretary of the Interior has no such inherent review

authority. "{JJust as established practice may shed light

on the extent of power [granted to a federal agency],

so the want of assertion of power by those who presumably

would be alert to exercise it, is significant in

Getermining whether such power was actually conferred."

il. Indeed, The President's Commission on Indian

Reservation Economies, in its Report and

Recommendations to the President of the United States

dated November 30, 1984, at page 16 of Part Two,

identifies jurisdictional disputes between Tribes and State

and local governments as the second most pervasive

obstacle to the development of private sector business

and industry within the Indian Country. The President's

Commission, at page 34 of Part One of its report, and

in other statements scattered throughout, has

recommended that federal law be returned to Mr. Chief

Justice Marshall's position that the laws of a State can

have no force within the Indian Country, and that the

return be prompted by legislation if necessary. This

position appears to be four-square with the policy of

Congress, See, Indian Self-Determination Act, 25 U.S.C.

56450, 450a, the Indian Child Welfare Act, 25 U.S.C.

561901 et. seq. and particularly $1911(aXb) and the other

recent legislation cited herein.

FTC v. Bunte Brothers 312 U.S. 349, 85 L.Ed 881 (1941);

BankAmerica Corp. Vv. United States U.S. 76

L. Ed. 2d 456 (1983). In the absence of a specific statutory

grant of authority from the Congress, or a grant of

authority arising from the internal laws of the Tribe

involved, the Secretary of the Interior has no authority

to require approval of tribal government actions through

his office prior to their validity.

CONCLUSION

In a myriad of cases throughout the years, this

Honorable Court has determined that the Treaty guaran-

tees to self-government, Treaty with the Navajo, June

1, 1868, Article 2,15 Stat. 667, and the interests of the

Tribe and the Federal government in securing to the

Navajo Tribe its ability to exercise its sovereign functions

is so pervasive as to pre-empt State taxes upon all legal

entities doing business within the Indian Country subject

to the jurisdiction of the Navajo Tribe of Indians, and

to require that those persons resort to the tribal courts

established by legislation of the Navajo Tribal Council

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in resolving disputes between themselves and members of

the Navajo Tribe which arise within the tribal jurisdiction.

Ramah Navajo School Bd. v. Bureau of Revenue 458 U.S.

832, 73 L.Ed.2d 1174 (1982); Warren Trading Post v.

Arizona Tax Commission 380 U.S. 685, 14 L.Ed.2d 165

(1265); McClanahan v. Arizona State Tax Commission 411

U.S. 164, 36 L.Ed.2d 129 (1973); Williams v. Lee 358 U.S.

217, 3 L.Ed.2d 251 (1959).

Petitioner Kerr-McGee invites this Court to create

a new rule of administrative law exclusively for Indian

Tribes vesting general supervisory authority over tribal

governments and tribal legislation in the Secretary of

the Interior. If the Congress desires that tribal

government and legislation be subject to the approval of

the Secretary of the Interior, it is clear that the Congress

knows how to impose such a requirement upon the Tribe.

United States v. McGowan 302 U.S. 535 (1938); Blue

Jacket v. Commissioners 72 U.S.(5 Wall.) 737, 757, 18

L.Ed 667, 673 (1867); Yellow Beaver v. Commissioners

72 U.S. (5 Wall.) 757, 18 L.Ed. 673 (18€7); United States

v. Mice 241 U.S. 591, 598, 60 L.Ed 1192, 1195 (1916).

See also, National City Bank v. Republic of China 348

U.S. 356, 358, 99 L.Ed 389, 395 (1955).

This Honorable Court is urged to hold that the Navajo

taxes at issue here are valid and enforceable.

Respectfully Submitted

F. BROWNING PIPESTEM, Esq.

Counsel of Record for Amicus

G. WILLIAM RICE, Esq.

PIPESTEM & RICE

408 W. Main, Suite 100

Norman, Oklahoma 73069

Telephone: (405) 329-3840

Counsel for Amicus Curiae The Sac

and Fox Tribe of Indians of

Oklahoma

December 26, 1984

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No. 84-68

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1984

KERR-McGEE CORPORATION,

PETITIONER,

NAVAJO TRIBE OF INDIANS,

RESPONDENTS.

— — —

AFFIDAVIT OF SERVICE

Cleveland County }

State of Oklahoma

F. BROWNING PIPESTEM, being first duly sworn,

deposes and says:

1. That he is an active member of the Bar of

this Court, and that he is an attorney for the amicus

curiae Sac and Fox Tribe of Indians of Oklahoma.

2. That the Brief of Amicus Curiae and Motion

to File Brief of Amicus Curiae to which this Certificate

- 41-

is attached has been served upon all counsel of record

for the parties in this cause in accordance with the

provision of Rule 28 of the Rules of this Court by placing

three copies of the same in the United States mail, first

class postege prepaid, properly addressed this 26th day

of December, 1984, to each of:

Alvin H. Shrago, Esq.

EVANS, KITCHEL & JENCKES, P.C.

2600 North Central Avenue

Phoenix, Arizona 85004-3099

Elizabeth Bernstein, Esq.

NAVAJO NATION DEPARTMENT OF JUSTICE

P.O. Drawer 2010

Window Rock, Arizona 86515

3. That the foregoing represents service on all

parties required to be served under the provisions of

Rule 28 of this Court.

4. That to my own personal knowledge and

pursuant to Rule 28.2 of the Rules of this Court, forty

copies of this Brief of Amicus Curiae and the Motion to

file this Brief of Amicus Curiae which is bound at the

beginning of this document, were mailed first class

postage prepaid properly addressed to the Clerk of the

- 42-

Supreme Court of the United States on this 26th day of

December, 1984, which is within the time allowed for

filing this brief under the Rules and orders of this Court.

s/F.Browning Pipestem

F. Browning Ne

Subscribed and sworn to before me this 26th day

of December, 1984.

[Seal] s/William Giessman

otary Public

My Commission Expires: April 8, 1986

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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.