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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1985
- **Citation:** 471 U.S. 195

## Text

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 * + *

L

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

17

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)

V.

39

16

16

17

27

16

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)
P

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

39
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

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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

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25 U.S.C. 8465

7 Stat. 49 re t >. > > > >. 7 * * > >. > * * * > 10
25 U.S.C. $476 . (Treaty?

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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

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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

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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)

37

36

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-

f
g
4
2
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4
5
a

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

11

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.

ee

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;

(C) in excess of statutory jurisdiction,
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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el

No. 84-68

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1984

KERR-McGEE CORPORATION,
PETITIONER,

-

NAVAJO TRIBE OF INDIANS,
RESPONDENTS.

— — —

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0810%3A19. Public record. Not legal advice.