Amicus Curiae Brief — Cass County v. Leech Lake Band of Chippewa Indians

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In the

Supreme Court of the Bnited States

October Term, 1997

CASS COUNTY, MINNESOTA, et al,

Petitioners,

“

es LEECH LAKE BAND OF CHIPPEWA INDIANS,

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Eighth Circuit

BRIEF OF AMICI CURIAE TRIBES OF |

FOREST COUNTY POTAWATOMI

COMMUNITY, EASTERN BAND OF CHEROKEES, and

TURTLE MOUNTAIN BAND OF

CHIPPEWA INDIANS |

IN SUPPORT OF RESPONDENTS

CAROL BROWN BIERMEIER

Counsel of Record

Brown & LaCounte, LLP

2916 MarketPlace Drive

Suite 104

Madison, WI 53719

By, Attorneys for Amici Curiae

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BEST AVAILABLE COPY eee

TABLE OF CONTENTS

Page

QUESTION PRESENTED. ...00..cccccccscssscsesssescssesesscoessoes i

TABLE OF AUTHORITIEBG................cc.cccsssesssssssssseeees ili

INTEREST OF THE AMICI CURIAE ..00.........ccccccceeseeeeees l

SUMMARY OF ARGUMENT .............cccccccccsssssseesseecenees 3

ARGUMENT:

1. THE LEECH LAKE BAND OF CHIPPEWAS

HAS NOT RELINQUISHED IN ANY TREATY

ITS INHERENT SOVEREIGN POWER TO

REACQUIRE AND RETURN LAND WITHIN

ITS TERRITORY TO ITS PUBLIC DOMAIN...... 6

Il. THE EXERCISE BY TRIBES OF THE POWER

TO ACQUIRE PRIVATE PROPERTY AND

RETURN IT TO THE TRIBE’S PUBLIC DOMAIN

IS NOT INCONSISTENT WITH THEIR

a. Lands Acquired by the Tribe Pursuant to Section

465 of the IRA are exempt from State

OR ENE TI ceciireibttedBentnemetccnstncvecsccccee 9

QUESTION PRESENTED

AMICI CURIAE TRIBES WOULD STATE THE ISSUE AS

FOLLOWS:

WHETHER INDIVIDUAL PARCELS OF PROPERTY, OVER

WHICH A TRIBE EXERCISES TERRITORIAL DOMINION, CAN

BE SUBJECTED TO THE TAXING JURISDICTION OF THE

STATE ABSENT A CLEAR ABROGATION BY CONGRESS, OR

A CESSION BY THE TRIBE, OF ITS SOVEREIGNTY.

CONGRESS HAS NEVER ABROGATED THE

INHERENT POWERS OF THE TRIBE TO

REACQUIRE PRIVATE PROPERTY AND

RETURN IT TO THE TRIBE’S PUBLIC

PEE SEL Se a 5 ae 10

a. The General Allotment Act of 1887 Did Not on

its Face Authorize State Taxation of

i 11

THE GENERAL ALLOTMENT ACT AND

SUBSEQUENT LEGISLATION HAS NOT

WAIVED TRIBES’ COMMON LAW IMMUNITY

PUREE TUNE ‘visénivininininisltscisinisiabeininasectvedecsnsocceeseres 13

CO-EXISTENT STATUTES MUST BE INTER-

PRETED IN LIGHT OF INTERVENING

LEGISLATIVE ENACTMENTS ...........c.ccesseseeseees 20

a The Yakima Court misapplied the “per se”

rule regarding State taxation in Indian

b. Federal Preemption is the Correct

Standard to apply to the Question of

Whether States Have the Taxation

Authority over Indian Tribes and Their

feo eleld Ad + SES CE 21

RS RRO Mind SS SUS 25

TABLE OF AUTHORITIES

Cases

Brendale v. Confederated Tribes and Bands

of the Yakima Indian Nation, 492 U.S. 408

COGEED cn icdkdeds ov dé nhvnsetteensonnnel 4, 8, 16,

18-20, 23, 26

Buster v. Wright, 135 F. 947 (CA8 (1905)) .. 15

California v. Cabazon Band of Mission

Indians, 480 U.S. 202 (1987) .............. 12-13

Cotton Petroleum Corp. v. New Mexico,

490 U.S. 163,176 (1989) .... 0.66. eee eeee 23

County of Yakima v. Confederated Tribes &

Bands of the Yakima Indian Nation, 502 U.S.

258 DEE <2. \ caabiinhadaeiaaiiaiit nin 20

English v. General Electric Co., 496 U.S. 72

ag Milere ss acu eat Ge 24

Felder v. Casey, 487 U.S. 131, 138 (1988) ... 21

Goudy v. Meath, 201 U.S. 146 (1906) . . 6, 11-12

Hagen v. Utah, 510 U.S. 399 (1994) ........ 17

In re Heff, 197 U.S. 488 (1905) ............

Hines v. Davidowitz, 312 U.S. 52 (1941) ....

Iselin v. United States, 270 U.S. 245, 250-251

GRR doch bed eccccccccectidttaktitidc.

fo RRS eS ee ee

FR Ol ee ren See

GPUEE w stb ds iddcccewrecedlcedeibiscas

a rs toe oe ee

National Farmers Union v. Crow Tribe, 471 U.S.

GD. dincccccccecesbdechbecddl Si.

Oklahoma Tax Commission v. Citizen Band

Potawatomi Indian Tribe of Oklahoma, 498 U.S.

ee re Ferree

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

RMUIIAES Noss cases. Sous feciccuts..

Perez v. Campbell, 402 U.S. 637 (1971) .....

Pimailco, Inc. v. Maricopa County, 937 P.2d 1198,

yp a ee

22, 24

9-11

Ramah Navajo School Bd., Inc. v. Bureau of

Revenue of New Mexico, 458 U.S. 832, 838

Ss 60 odcc 6d tidins dane setadeseees

Rice v. Rehner, 463 U.S. 713,719 (1983) ...

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

GERTED cnc cele cece cseses openconewosase

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

Talton v. Mayes, 163 U.S. 376 (1896) ......

United States v. Celestine, 215 U.S. 278,

SEO Snscdecccccecctabenesseseces

United States v. Mazurie, 419 U.S. 544

GSU cc ctosoveccocssescdbedegnesecee.

GI bc wctcccccccescaseasecsavsecees

Washington v. Confederated Tribes of the Colville

Indian Res., 447 U.S. 34, 154 (1980) ........

West Virginia University Hospitals, Inc. v. Casey,

Gas SED bcc cdhotbancnsécceses

Worcester v. Georgia, 31 U.S. at 582 ........

17

5, 15, 17

22-25

Statutes

lela ee ag

25 U.S.C. §450 et. seq. ... 00... eee eeeeeeee

25 U.S.C. §461-479 (1988) ............05.

a i ea

25 U.S.C. §§1301-1303 ..............000.

25 U.S.C. §1451 et. seq. ....... 0. eee eeeee

25 U.S.C. §§1901-1963 (1988) ............

25 U.S.C. §§2201-2211 (1988) ............

25 U.S.C. §§2701-2721 (1988) ............

25 U.S.C. §§2901-2906 (Supp. II 1990)......

25 U.S.C. 3701-3745 (1994) ..........0 00.

yb Re ft t, RR PCUE eee

24 Stat. 390, Yakima, at 689-93 ............

96 Stat. 2607 (codified in scattered sections

of 26 U.S.C.) Pub. L. No. 97-473 ...........

Other Authorities

7 Op. Att’y. Gen. 174 (1855) ..............

17 Op. Att’y. Gen. 134 (1881) .............

23 Op. Att’y. Gen. 214 (1900) .............

55 (Katherine Woods trans., (1943) .........

Cohen’s Handbook of Federal Indian Law,

147 (Rennard Strickland et al. eds., 1982) ....

“The Forgotten American:” The President’s

Message to the Congress on Goals and Programs

for the American Indians, PUB. PAPERS 335

(CIS S Fi PETE UCI PRIS...

H.R. Rep. No. 1804, 73d Cong.,2d Sess.,6

25

I fn 6. 0 drs wien d ohio ahaa bi diet id oc

Indian Land Consolidation Act, 25 U.S.C.

ee ae

Institute for Gov’t Research, The Problem of

Indian Administration 3-51 (1928) ..........

TN ee ee errr

Linde, First Things First: Rediscovering the States’

Bills of Rights, 9 U. Balt. L. Rev. 370, 380

GREE 06 obdbeee0 cs nemeeetnacessdneded

Memorandum of Law by Solicitor of the U.S.

Department of the Interior, John D. Leshy, dated

PENSE SUb BOOS 600 cccncccdbtidel Guedes

Powers of Indian Tribes, 55 1.D. 14, 46

COUN hike Hides 00s o padonsdousestanncca<

Prucha, Francis P., The Great Father, (abridged

OE BD c oWbcccccccccscecececssditens

Special Message to the Congress on Indian Affairs,

PUB. PAPERS 564 (1970) ................

Wheeler-Howard Act, H.R. 7902 and S. 2755,

Wee lo HNO 6c be vévaccdedbibnbeess

7,18

25

10

INTEREST OF THE AMICI CURIAE'

This case presents the question of whether the States and their

political subdivisions may impose ad valorem taxes on fee patented

lands located within the territory of an Indian Tribe irrespective of

whether those lands are acquired arid subsequently regulated by the

governing Indian Tribe or owned individually by its members.

While the issues in this case involve lands within a Tribe’s

territorial boundaries in the State of Minnesota, the decision of this

Court will have far reaching impacts on almost every Indian Tribe in

the United States. The policy of allotment has had continuing

adverse effects on the sovereignty of Tribes since its first legislative

enactment notwithstanding the policy’s repudiation by subsequent

legislation. The resultant effects place Tribes in an increasingly

precarious position exposing its future as a sovereign government to

uncertain and significant risk. Because sovereignty is inextricably

tied to territory, this vulnerability of such sovereignty through land

foreclosure actions on certain parcels by States and their political

subdivisions results in the systematic erosion of what remains of

tribal sovereignty, an impact clearly unintended by Congress as

evidenced by its intervening legislation since the Dawes Allotment

Act.

More particularly, each of the Tribes represented in this brief

will be directly affected by the decision of the Court in this case due

to either the present existence of a scattering of fee-patented lands

located within their Reservation boundaries or the recent acquisition

'The parties have consented to the filing of this brief. Counsel for a

party did not author this brief in whole or in part. No person or

entity, other than the Amicus Curiae, its members, or its counsel

made a monetary constribution to the preparation and submission of

this brief.

of lands immediately adjacent to, or located within, their present land

base. This impact will be measured not only in terms of the future

status of their land holdings. Rather, and more significantly, the

consequences will impact the effectiveness on Tribes’ ability to

exercise complete dominion over their own territory pursuant to their

own Constitutions and pursuant to post-allotment legislation which

reflects the federal government’s Indian policy of self-determination,

sovereignty, and control over Indian country.

The reduction in the local tax base is of minimal consequence

when measured against the broader, more far-reaching effects

suffered by Tribe governments as a result of the ability of States to

further dismantle their land base through taxation. Moreover,

requiring Tribes to pay, through ad valorem taxes, for local services,

typically not always commensurate with the taxes paid as evidenced

by the expansion of Tribal services, places Tribes in a “catch-22”

situation. One of the essential tools to self-government, the power of

taxation, will be judicially foreclosed in the face of existing federal

statutes encouraging Tribes’ efforts to sustain their sovereignty and

Whenever a government decides to exercise its taxation

authority, it must be able to do so without excessive interference

from other governments. If another governmental entity can defeat

its taxing power on illogical and unprecedented legal grounds, the

Tribes’ taxation power is rendered useless. Thus, contrary to the

Yakima Court’s opinion that the mere power to assess and collect a

tax on real estate is not disruptive of tribal self-government, in

actuality, Tribes, at the very least, will lose much needed income

from revenue-raising tools normally relied upon by other

governments to maintain their sovereignty, which will result in a

systematic collapse of their government and vitality. Their cultural

patrimony will be lost. Their democratic political processes and

go unexercised. Economic development will be stifled. From

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intestate death to intestate death, child by child, acre by acre, blood

degree by blood degree, by furthering the legacy of allotment, the

current Indian law jurisprudence will ensure that Tribes, their

members, and their sovereignty spiral toward a slow but certain

demise.

SUMMARY OF ARGUMENT

“You own the stars?”

“But I have seen a King who ....”

“Kings do not own, they reign over; it is a very different matter.”

Antoine de Saint Exupery, The Little Prince, 55 (Katherine Woods

trans., 1943).

The Tenth Amendment to the United States Constitution

represents the guiding principles and logic of the American federalist

the source of the Union’s powers, granting certain powers to the

Union and reserving all inherent, residual powers. The Tenth

Amendment’s logic is based upon two tenets of American

federalism. First, the original thirteen States pre-existed the Union

and, second, republican democracy requires that the power to govern

derives from people. Invoking both tenets of American federalism,

one American jurist wrote: “State bills of rights are first in two

senses: first in time and first in logic.”

The Supreme Court has explained that the United States of

America recognizes the inherent sovereignty of the Tribes for the

same two reasons. First, Tribes pre-existed the United States and the

original thirteen States and thus they derive their sovereignty from

. Linde, First Things First: Rediscovering the States’ Bills of

Rights, 9 U. Balt. L. Rev. 370, 380 (1980).

3-

outside the U.S. political sphere. Santa Clara Pueblo vy. Martinez,

436 U.S. 49, 56 (1978). Second, the United States invokes American

notions of republican democracy, that Tribes derive their sovereignty

from the governed within a politically recognized territory. Talton v.

Mayes, 163 U.S. 376 (1896) National Farmer’s Union v. Crow

Tribe, 471 U.S. 845 (1985) Brendale v. Confederated Tribes and

Bands of Yakima Indian Nation, et al., 492 U.S. 408 (1989). In this

regard, the foundational relationship between the Tribes and the

United States is similar to the foundational relationship between the

States and the Union.

The States formed their relationship with the Union and each

other through the Constitution, while the Tribes generally formed

their relationship with the Union and the States through treaties.

Nevertheless, in language remarkably similar to the Tenth

Amendment the Supreme Court has imputed its wording and logic

into the treaty-based relationship between the U.S. and the Tribes.

The Court wrote “In other words, the treaty was not a grant of rights

to the Indians, but a grant rights from them -- a reservation of those

not granted.” United States v. Winans, 198 U.S. 371, 381 (1905). In

other words, the Tribes pre-existed the Union and the States and, in

light of republican democracy, represented the source of America’s

powers over the Tribes and the reservoir of the Tribes’ inherent

powers not granted to the United States in treaties.

’ In Johnson v. M’Intosh, 21 U.S. (8 Wheat) 543 (1823) the Chief

Justice wrote, “The person who purchases lands from the Indians,

within their territory, incorporates himself with them, so far as

protection, and subject to their laws.” Jd. at 593. This statement in

Johnson recognizes that Tribes inherently possessed the inherent

sovereign power to govern territory, maintain a public domain, issue

4.

title, regulate that title, and rescind that title. Jd.’

However, Court opinions have declared with increasing

frequency that Tribes are no longer possessed of the full sovereignty

that they once maintained. According to Court opinions, Tribes

possess inherent sovereignty that has not been voluntarily

relinquished in treaties or agreements,‘ abrogated by Congress’, or

deemed inconsistent with their status. Oliphant v. Suquamish

Indian Tribe, et al., 435 U.S. 191 (1978). As an added measure of

Tribes’ governance, Congress may delegate certain governmental

powers to Tribes. U.S. v. Mazurie, 419 U.S. 544 (1975). Therefore,

the inquiry should be: 1) whether, in treaties, the Leech Lake Band of

Chippewa has relinquished its inherent sovereign power to reacquire

and return property within its territory to its public domain; 2)

whether Congress has ever abrogated such powers; 3) whether the

exercise of such powers by Tribes is inconsistent with their status; or

4) whether Congress has ever delegated that authority to Tribes. The

answer is, indisputably and undeniably, that 1) Tribes have never

2) Congress has never abrogated that authority; 3) the exercise of

such powers are completely consistent with the Tribes’ status; and 4)

such delegation is unnecessary because Tribes still possess such

Johnson’s holding was that “the courts of this country” could

not sustain such a title granted by an unrecognized Tribe, particularly

when that same Tribe subsequently ceded the territory accompanying

the property at issue to the United States.

‘ This normally was accomplished by treaty or other

agreement, generally with the consent of theTribe.

: Treaty provisions obligate the United States to protect the

Tribes, externally and internally, thus providing a measure of

‘ The Court also preserved a place for judicial activism in this

arena.

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powers.

I. THE LEECH ILAKE BAND OF CHIPPEWAS HAS NOT

RELINQUISHED IN ANY TREATY ITS INHERENT

SOVEREIGN POWER TO REACQUIRE AND

RETURN LAND WITHIN ITS TERRITORY TO ITS

PUBLIC DOMAIN.

The Court has invoked American political thought

specifically regarding treaties dealing with Tribes’ land. The Court

once explained, “To contend that the word ‘allotted,’ in reference to

The Tribe possesses the inherent power to authorize the

United States and the State of Minnesota to impose ad valorem

property taxes on allotments within the Tribe’s territory. For

example, the Court decided in Goudy v. Meath, 201 U.S. 146 (1906),

that the State of Washington could impose an ad valorem property

tax upon allotted land. However, in Goudy the Court relied upon

specific treaty provisions in which the Puyallup Tribe authorized

Congress to allot the reservation and to allow the State to impose

such property taxes. Goudy v. Meath, 201 at 149. The treaty with the

Leech Lake Band of Chippewa contains no provision authorizing

either allotment or State taxation. Therefore, at the very least Goudy

supports the contention that the Leech Lake Band of Chippewa did

not authorize State taxation. Indeed, the absence of any authorizing

language such as that relied upon in Goudy, that case suggests that

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the General Allotment Act and the Burke Act’s amendments were, in

their entirety, unconstitutionally applied to the Leech Lake Band of

Chippewa. The Leech Lake Band of Chippewa did not relinquish in

any treaty the power to govern their territory, including the power to _

acquire private property within its territory for return to the Tribe’s

public domain.

Il. |THE EXERCISE BY TRIBES OF THE POWER TO

ACQUIRE PRIVATE PROPERTY AND RETURN IT

TO THE TRIBE’S PUBLIC DOMAIN IS NOT

INCONSISTENT WITH THEIR STATUS.

Tribes’ reacquisition of land within their territory for public

domain purposes is not “inconsistent with their status.” For

example, many reservations were not subjected to allotment.

Moreover, most reservations that were zubjected to allotment were

not allotted in their entirety. As a result, unallotted or partially

allotted reservations continue to contain tribal public domain lands

entirely consistently with the Tribe’s status. Moreover, in the Indian

Civil Rights Act of 1968, Congress expressly acknowledged that

Tribes maintain their own public domain, including exercising

eminent domain.’ Furthermore, in the Indian Land Consolidation

Act, Congress specifically encouraged a policy of returning certain

individually-held property interests to the Tribe’s domain. 25 U.S.C.

§2201. Therefore, the reacquisition and return of fee lands to the

Tribe’s public domain is entirely consistent with the Tribe’s status.

Indeed, it would be inconsistent with their status to treat the

Tribe as just another private landowner due to the Court’s increasing

concern with basic republican democracy, due process, and political

, “No Indian Tribe in exercising powers of self-government

shall: (5) take any private property for a public use without just

compensation” Indian Civil Rights Act of 1968, 25 U.S.C., § 1302.

-7-

participation in the relationship between the States and the Tribes

and their respective citizenries. In Oliphant v. Suquamish Tribe,435

U.S. 191 (1978), Duro v. Reina, 495 U.S. 676 (1990); Brendale v.

Confederated Tribe of Yakima, 492 U.S. 408 (1989), the Court ruled

against the Tribe’s exercise of governing power over non-Members

because their limited ability to participate in Tribe government. Yet

the Tribe’s ability to participate in the county’s government is non-

existent. Indeed, the Tribe’s members’ ability to participate in the

county’s government is impractical and antithetical to notions of

republican democracy. |

Congress has never made clear that the Tribe’s members are

citizens of the States and their subdivisions. The Constitution and

the Fourteenth Amendment exclude “Indians not taxed,” in reference

to member Indians who live on their Tribe’s reservation. The Indian

Citizenship Act of 1924 and the various allotment acts extended

national citizenship to Indians, including “Indian not taxed”, but

these acts did not extend State citizenship to such Indians. 8 U.S.C.,

w§ 1401(b). The reasoning behind these provisions comports with

basic notions of republican democracy: those who did not bear the

civic responsibilities of citizenship and government (taxation) should

not benefit from the rights and privileges of citizenship and

government, i.e. voting and holding office. Tribes and their resident

members neither bear the responsibilities of State citizenship nor

enjoy the rights of State citizenship.

____ Tribes and their members could enjoy the benefits of State

citizenship only to the derogation of the basic axiom that

government is by the governed. If resident members of the Leech

Lake Band could fully participate in county processes, they could

vote against any property taxes whatsoever or they could vote to

increase them dramatically. Since most of them live on individually

held trust property, they would not be affected either way.

Meanwhile, the county’s property taxes fund its public schools. Yet,

the Tribe’s members do not attend the county’s public schools.

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Indeed, a member of the Tribe who resides on trust land without

property taxes could run for and win public office in the county. She

would then be in the position of making laws by which she could not

be forced to live.

Therefore, the county should not be able to tax the Tribe’s

land because the Tribe cannot participate in the county government.

Indeed, the county should not be allowed to tax the property of the

Tribe’s members.

a. Lands Acquired by the Tribe Pursuant to Section 465 of

the IRA Are Exempt From State and Local Taxation.

The Indian Reorganization Act of 1934 provided for restoring

unallotted surplus Indian lands to tribal ownership. 48 Stat. 984, 25

U.S.C. § 463. In addition, the IRA authorized “reacquisition of

allotted lands in trust.” Furthermore, this reacquisition could be

“within or without existing reservations.” See § 465. The land at

issue was reacquired by the Tribe pursuant to its IRA constitution

and § 465.

In Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973),

the Court decided that the Tribe must pay State income taxes derived

from land acquired under § 465; however, the Court also decided

that the Tribe need not pay personal property taxes on improvements

attached to the land acquired under §465. In Mescalero the Court's

latter holding rested squarely on an underlying presumption that

tribally-held property was not subject to State taxation.

In Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973),

the Court based its affirmation of the State’s ability to tax the gross

receipts on revenues earned from an off-reservation Tribal enterprise

but not on personalty that had been installed as a permanent

improvement at the resort on the IRA. Section 465 exempts land

acquired by a Tribe from local taxation. As previously stated, the

9.

permanently attached to the realty. Mescalero, 411 U.S. at 154. The

reservation lands of their historic immunity from state and local

paneer ond - Nothing in this Act shall be construed as i

any indi ia .:quieneen 7

State or subdivision thereof...’ id, (quoting from the —

bills to the Wheeler-Howard H.R. 7902 and S. 2755, Tit. l, s 11.

against the backdrop of treaties and the ensuing relationship between

the United States and Tribes. In that light, the Court has required

that such congressional statements be “unmistakably clear”.

Assuming, arguendo, that Yakima stands for the proposition

that the GAA and the Burke Act authorized State taxation of

property held by the Tribe, Congress has never acted to abrogate the

sovereign power of the Leech Lake Band of Chippewa to place such

property back into the Tribe’s public domain. Indeed, while the

GAA has effectuated a private property system within the Tribe's

boundaries, the acts did not abrogate the Tribes’ inherent sovereign

powers to govern that private property system or to regulate those

allotments. As the Solicitor of the Department of the Interior, the

federal administrative entity with primary responsibility over U.S.

relations with Indian Tribes, wrote: “A tribe has the sovereign power

to, among other things, regulate and perhaps proscribe use of

reservation resources, including allottee resources.”* Therefore,

Congress has never abrogated the Tribe’s inherent sovereign power

to acquire private property within its territory and to return that

property to the Tribe’s public domain.

a. § The General Allotment Act Of 1887 Did Not On Its Face

Authorize State Taxation Of Allotments

Although the Court has held the Dawes Act’s allotment

. - 9 the _ invoked by Cass County have

never been upheld without treaty authorization. Cass County’s

reliance upon Goudy supports this contention. Goudy arose out of an

1854 treaty which expressly contemplated an action by Congress to

allot the reservation and to authorize State taxation. Goudy, at 149.

: Memorandum of Law by Solicitor of the U.S. Department of

the Interior, John D. Leshy, dated March 30, 1995.

* Inve Hef, 197 U.S. 488 (1905).

The treaty in Goudy provided for allotment, adding that such

allotments “shall be exempt from levy, sale, or forfeiture, which

conditions shall continue in force until the State constitution ... and

the legislature of the State shall remove the restrictions.” Id. The

treaty between the United States and the Leech Lake Band of

Chippewa contains no such authorizing provision.

Furthermore, the 1854 treaty in Goudy provided that “No

without the consent of Congress.” Jd. Thus, the 1854 treaty, which

was negotiated by the Executive Branch and ratified by the

Legislative, reveals the mutual understanding that before the U.S.

could infringe upon Tribes’ sovereignty, the infringement must first

have been authorized or consented to. To suggest that the allotment

acts obtain the same results without such prior treaty authorization is

to render the 1854 treaty fortuitous. Therefore, the Goudy analysis

suggests that the General Allotment Act was an unconstitutional

exercise of congressional power, both in its allotment and taxation

provisions. Such a conclusion would comport with republican

democracy’s fundamental tenets of authorization and consent.

Nonetheless, even assuming that the GAA is generally

constitutional, its provisions must be construed in light of the

treaties, general rules of statutory construction, and federal policy.

For example, the term “State law” in the GAA does not necessarily

mean State jurisdiction. For example, in the Major Crimes Act, 25

U.S.C. § 1153, Congress wrote: “As used in this section, the offenses

of burglary and incest shall be defined and punished in accordance

with the laws of the State.” Yet, neither the Executive nor the Court

have ever interpreted this application of State law as also extending

State jurisdiction. For another example, the Court in California v.

Cabazon Band of Mission Indians, 480 U.S. 202 (1987), recognized

that the Organized Crime Control Act “makes certain violations of

State and local gambling laws violations of federal law.” However,

the Court then added, “[tJhere is nothing in the OCCA indicating that

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the States are to have any part in enforcing [the OCCA].” California

v. Cabazon Band of Mission Indians, 480 U.S. at 212. Moreover,

where Congress has intended to extend State jurisdiction it has done

so unambiguously. In Public Law 83-280 Congress expressed its

intent to apply State law and extend State jurisdiction, providing:

“The consent of the United States is hereby given to any State not

having jurisdiction over criminal offenses in Indian Country to

cena enitenteadaenattdtatiatndaieb Guiiatea tied

State shall have the same force and effect as elsewhere in the State.”

Therefore, the GAA is not unmistakably clear and it applies only

State law, not State taxation, and certainly not State jurisdiction.

IV. THE GENERAL ALLOTMENT ACT AND

SUBSEQUENT LEGISLATION HAS NOT WAIVED

TRIBES COMMON LAW IMMUNITY FROM SUIT.

Assuming again arguendo that the GAA allowed a

permeation of the Tribe’s sovereign sphere by allowing States to

foreclose tax-delinquent land held in fee by individual allottees or

their successors, a position to which Amici Tribes do not concede,

that is an immeasurable distance from holding that the GAA

abrogated the immunity of the Tribe itself, once the Tribe reacquires

fee parcels or places its own parcels in fee.

“Indian Tribes have long been recognized as possessing the

common-law immunity from suit traditionally enjoyed by sovereign

powers.” Santa Clara Pueblo v. Martinez, 435 U.S. 49, 58 (1978).

“Although Congress has occasionally authorized limited classes of

suits against Indian Tribes, it has never authorized suits to enforce

tax assessments.” Oklahoma Tax Commission v. Citizens Band

Potawatomi, 498 U.S. 505, 510 (1991). The result reached in

Otiahome Tax Commstteston sesiee sxsanety onthe Sostine of Sls

sovereign immunity and the Court refused to narrowly construe

doctrine and to even abandon it in its entirety. Id at 510. Moreover,

the Court has recognized Congress’ continuing approval of the

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immunity doctrine. /d at 510 (citing the Indian Financing Act of

1974, 88 Stat. 77, 25 U.S.C. §1451 et. seq., and the Indian Self-

Determination and Education Assistance Act, 88 Stat. 2203, 25

U.S.C. §450 et seq. Against the backdrop of inherent Tribal

governmental powers, this Court has utilized the rules for employing

a waiver of tribal immunity identical to the rules applied for

employing a waiver of state or federal immunity “because no

principled reason requires a different treatment.” Merrion v.

Jicarilla Apache Tribe, 455 U.S. 130, 148 ( 1982).

) Nothing in either the GAA or the Burke Act or the legislative

history, confers upon states the authority to impose any of its laws on

a Tribe government. i ing the Acts’ purpose to

and distinguished the existence and continuing vitality of the

sovereignty of Tribes’ over their territory with individual Indians,

who had the choice of maintaining their political alliance with their

Tribe or severing those ties entirely. [cite to Section 6 of the GAA].

Moreover, Section 5 specifically reflects this acknowledgment by

explicitly reserving the Tribes’ rights to release any surplus lands it

may choose to sell within its territory for homesteading purposes.

with the enactment of the IRA, Executive branch officials have

consistently recognized that Indian tribes possess all the attributes of

a sovereign necessary to control economic activity within its

jurisdiction and to effectively manage its territory, 17 Op. Atty. Gen.

134 (1881); 7 Op. Atty. Gen. 174 1855), including the jurisdiction to

agama Gen. 214 (1900); Powers of Indian Tribes, 55 LD.

“Chief among the powers of sovereignty i

as pertaining to an Indian Tribe is the power of

taxation. Except where Congress has provided

otherwise, this power may be exercised over members

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of the tribe and over non-members as far as such

nonmembers may accept privileges of trade,

residence, etc., to which taxes may be attached as

conditions.” Jbid.

Further, this Court has recognized that “Indian Tribes within

Indian Country are a good deal more than ‘private, voluntary

organizations.’”” United States v. Mazurie, 419 U.S. 544, 557 (1975).

This distinction between Tribes as governments and Indian people as

individuals is crucial to the finding that Congress did not confer any

state authority over Indian Tribes. What the Petitioners beg the

Court to imply in the GAA is a congressional diminishment of a

Tribe from its governmental status to a status equivalent to a taxable

subdivision of the State simply by the Tribe’s mere existence within

the State’s boundaries. This logic flies in the face of long-standing

enhancing the Tribes’ governmental status and encouraging exercise

of its governmental sovereign powers. See supra note 1] 1. This

acknowledgment of the territorial imperative to tribal sovereignty is

reflected in the Indian Civil Rights Act of 1968, 25 U.S.C. §§1301-

1303, which affirmed the Tribes’ right to take land into their public

domain. Section 1302(5) specifically requires a Tribe to provide just

compensation for any private property over which it may exercise

eminent domain.

Notwithstanding the Petitioner’s unsupportable position, the

resultant impact would divest the Tribes of the ability to create

programs and initiate governmental action within their territory to

implement the legislative provisions and other objectives inherent in

the self-determination policy. In Buster v. Wright, 135 F. 947 (CA8

(1905), the Court concluded that “{nJeither the United States, nor a

state, nor any other sovereignty loses the power to govern the people

within its borders by the existence of towns and cities therein

endowed with the usual powers of municipalities, nor by the

ownership nor occupancy of the land within its territorial

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jurisdiction by citizens or foreigners.” 135 F., at 952. (emphasis

added). This notion reflects the integral role of territory and

collective rights in sovereign governments, and the continuing

vitality of Tribe governments is dependent upon the Courts

recognition of this principle. This, when measured against the

protectable collective right of the Tribes in the present case,

identifies two independent but related barriers to the exercise of state

authority within the territory of an Indian Tribe, state’s authority may

be preempted by federal law, or it may interfere with the Tribe’s

ability to exercise its sovereign functions. Bracker, 448 U.S. at 152,

(citing U. S. CONSTITUTION. art. I, §8, cl.3). Moreover, the Court

has set forth well-established principles prohibiting individual states

from levying taxes on Indian or tribally-owned property. Pimalco,

Inc. v. Maricopa County, 937 P.2d 1198,1203 (1997)(citing

McClanahan, 411 U.S. 164, 170-71 (1973), Oklahoma Tax

Commission, at 366-67; Confederated Tribes of Colville, at 152,

Moe, at 480-81, Industrial Uranium Co. v. State Tax Comm'n of

Arizona, 95 Ariz. 130, 134, 387 P.2d 1013, 1015-16 (1963).

By focusing on the narrow inquiry of who owns the title to a

particular parcel, the Yakima Court wholly ignored the quintessential

power inherent in territory. This departure from generally accepted

powers to regulate derives from a perspective that does not view

territory as a constitutive element of group identity. The Tribes’

rights are not derived solely from membership based principles, but

from the fact that territory is politically contingent and a vital

component of self-governance. Territory is imperative to tribal

sovereignty.

The Court’s long line of precedent invoking the Canons of

Construction, federal preemption doctrine, and the “unmistakably

clear intent” rule, and Congress’ policy of Tribal self-determination

all would be unilaterally reversed were States allowed to

systematically foreclose against every parcel owned by the Tribe or

its members and thereby reduce the Tribe’s tax base. Taxation of a

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Tribe is tantamount to diminishment, and the Court has set forth

specific prerequisites to diminishment, not the least of which is just

compensation. Solem v. Bartlett, 465 U.S. 463 (1984) Hagen v.

Utah, 510 U.S. 399 (1994). Notwithstanding, the first governing

principle is that “[o]nly Congress can divest a reservation of its land.

Id. at 470. Moreover, once land has been set aside for an Indian

Reservation, irrespective of the title of individual plots within the

Tribe’s territory, “the entire block retains its reservation status until

Congress explicitly indicates otherwise.” See United States v.

Celestine, 215 U.S. 278, 285 (1909). The statutory definition of

Indian country as all lands within the limits of Indian reservations

reflects the principle that “Indian country” is not a concept simply

relegated to property, but territory. Thus, by looking at Indian

sovereignty by determining who owns individual parcels of the soil,

rather than viewing it in terms of the territorial bounds of the

sovereign, reduces Tribes to little more than “private, voluntary

organizations.” U.S. v. Mazurie, 419 U.S. at 557.

As the twenty-first century approaches, Tribes across the

continent have, as a matter of practicality and necessity, continued to

utilize that sovereign power within their territories. Tribes utilize

their territorial governance as any other government does, to .

encourage productivity, to regulate land use, to site housing projects,

landfiils, hospitals, and lagoons, and to preserve the public domain.

sovereign possesses the prerogative to acquire fee land

toda If a Tribe acquires fee land outside

its reservation, that land continues to be held in fee by the Tribe and

is subject to taxation by the jurisdiction in which it sits. However, if

a Tribe acquires fee land inside the reservation, the legal outcome 1s

not so clear. A Tribe’s fee ownership of on-reservation lands raises

issues of jurisdiction, taxation, and sovereign immunity.

Thus, if a Tribe acquires non-Member owned, on-reservation

fee land which has been legally determined to be subject to State

At

taxation and continues to hold that land in fee status, then that land

may be subject to continued taxation. This, at least, represents the

facts presented by Yakima.

However, if a Tribe acquires land within the reservation and

chooses not to continue to hold the land in fee, but to return the land

to its public domain, that too is its sovereign prerogative. After all,

land within a Tribe’s reservation that acquires fee status does not

necessarily fall outside the Tribes’ domain. The Court’s decisions in

Montana and Brendale illustrate that land may be held in fee, even by

non-members of the Tribe, and still be subject to the Tribe’s

governance. Indeed, the Court’s opinion in Yakima, which limited

the State’s taxation to the land itself and disallowed the excise tax,

further shows that the Tribe continues to hold some measure of

territorial governance over these parcels of individually held private

property.

Therefore, one attribute of the Tribes’ governance must be to

acquire land in fee and return it to the Tribe’s public domain, as any

other sovereign might do. Unlike the Tribe in Yakima, the Leech

Lake Band returned the reacquired parcels back into its public

domain. In fact, Cass County acquiesced to this arrangement and did

not pursue taxation on the parcels until the Yakima decision.

If the Court imposes a fee ownership upon the Tribe, as

opposed to holding the land as part of the Tribe’s public domain and

trust, then the Tribe will be forced, as a Tribe, to act collectively in

carrying out the primary purposes for which the ILCA was enacted --

to return the land to economic productivity. Rather than as a

government, redistributing the land into private hands to be held

individually, to foster individual entrepreneurship. If the Court

insists that Tribes hold land as a private owner rather than as a

governing sovereign, the Court will have stifled the ability of the

Tribe to re-issue title to land to truly private parties in order to make

it economically productive. In short, the Court will have imposed

-18-

communism upon the Tribes.

Part of the confusion evolves from the misuse of the term

“trust” in many case involving Tribes. The territories which

constituted the Tribes’ public domain are not in “trust” in the same

sense that individually held allotments are held in trust. The General

Allotment Act applied the legal term “trust” only to the individually-

held allotments established by that Act. However, the term “trust”

has also, mostly in the scholarship, been analogically applied to lands

within the tribes’ territory which were not allotted -- that is, lands

held either collectively or privately under the Tribes’ governance

prior to the GAA -- simply because such lands contained some

characteristics of trust allotments contained, i.e., could not be

acquired by anyone but the United States. While this use of the term

“trust” presents a convenient analogy, it is also an misapplication of

the term.

Historically, this right to acquire the Tribes’ territory

belonged to the discovering European nation. Prior to the American

revolution England, France, and Spain fought wars over this

discovery right. However, upon declaring and winning their

independence, the colonies succeeded to the rights of discovery

formerly held by the European governments. Subsequently, upon

forming the United States, they in turn granted that discovery power

to the Union in the Commerce Clause. Finally, to codify matters, the

Federal government promptly enacted the Trade and Intercourse Act

which restricted to itself all acquisition of Tribe territories.

Therefore, it is because of the Discovery doctrine and its

progeny -- delegation to the Union by the States in the Commerce

Clause and codified in the Trade and Intercourse Acts -- that the

territories or lands held collectively by the Tribe are not subject to '

acquisition by foreign states, the several States of the Union, or their

individual citizens. The General Allotment Act did not restrict the

acquisition of such lands. Thus, such lands are not subsumed into

-19-

that property concept of “trust” in the sense that the word is applied

to individually held allotments.

If, in the commerce clause, the States can have authorized

Congress to unilaterally acquire Tribes’ territory and grant it to a

State, then certainly those same States can have authorized Congress

to also acquire lands within a State and return it to a Tribe.

Otherwise, what principle of republican democracy would recognize

in Congress more power over those who do not authorize that power

than over those who do authorize that power? Further,

Congressional authorization must be read to authorize the acquisition

and consolidation of lands as Tribes hold lands.

This background is necessary for three reason:

1) restriction on acquisition versus restraint on alienation

2) Tribes govern territories and hold lands in a public domain

and trust

Vv. CO-EXISTENT STATUTES MUST BE INTERPRETED IN

LIGHT OF INTERVENING LEGISLATIVE ENACTMENTS.

a. The Yakima court misapplied the “per se” rule

regarding State taxation in Indian Country and

therefore must be overturned.

First, the Court in County of Yakima v. Yakima Indian Nation,

502, Us. 251 (1992), examined the General Allotment Act, ch. 1 19,

24 Stat. 388 (1887)(hereinafter “GAA”) and held that state taxation

authority was conferred with respect to fee-patented Indian lands by

Section 6 of the Act which provided that “each and every member of

the respective bands or tribes of Indians to whom allotments have

been made shall have the benefit of and be subject to the laws, both

civil and criminal, of the State or Territory in which they may

reside.” 24 Stat. 390, Yakima, at 689-93. Second, it held that such

authority was not terminated by the subsequently enacted Indian

Reorganization Act of 1934, 25 U.S.C. secs. 461-

-20-

479(1988)(hereinafter “IRA”) because Congress chose not to return

allotted lands to their pre-allotted status. /d. Irrespective of the

Amici Tribes’ position that the transfer of taxation laws of the State

does not automatically confer the State’s jurisdiction, the Court’s

long-standing reliance upon federal preemption was ignored in

Yakima.

b. Federal Pre-emption Analysis is the Correct Standard

to Apply to the question of whether the States have the

taxation authority over Indian Tribes and their members.

Under the Supremacy Clause, from which the preemption

doctrine is derived, “any state law, however clearly within a State’s

acknowledged power, which interferes with or is contrary to federal

law, must yield.” Felder v. Casey, 487 U.S. 131, 138 (1988)

(quoting Free v. Bland, 369 U.S. 663, 666 (1962). Clearly, the

state’s taxation authority must derive from enacted law. Such

taxation authority flowing from such law is in direct conflict with

subsequent legislation specifically enacted to counter the devastating

effects of the allotment policy. Congress has enacted numerous

statutes intended to counter the destructive effects felt by the

allotment era. '°

‘Notwithstanding the most stark example of repudiation of the

allotment policy and its effects in IRA, see e.g. The American Indian

Agricultural Resource Management Act, 25 U.S.C. 3701-3745

(1994)(requiring agricultural practices in Indian Country to be more

responsive to the political processes of the Tribes); Indian Child

Welfare Act of 1978, 25 U.S.C. §§ 1901-1963 (1988)(providing for

the maximization of tribal jurisdiction over state jurisdiction in

adoption and child custody proceedings involving tribal members or

those eligible for tribal membership); Indian Gaming Regulatory Act,

25 U.S.C. §§ 2701-2721 (1988) (providing for a comprehensive

regulatory scheme over bingo and other gambling operations in

Indian Country, specifically to promote tribal economic

-21-

Further, the Court has consistently held in a long line of

Supremacy Clause cases that any state legislation which frustrates

the full effectiveness of federal law is rendered invalid by the

Supremacy Clause. See Perez v. Campbell, 402 U.S. 637 (1971);

Hines v. Davidowitz, 312 U.S. 62 (1941). The Court’s refusal in

Yakima to impart any weight to the numerous, complex, intervening

statutes that unequivocally reflect an undisputed transition in federal

Indian policy contravenes the very principal upon which the

Supremacy Clause and statutory interpretation cases are premised.

In the case of West Virginia University Hospital, Inc. v. Casey,

499 U.S. 83 (1991), the issue was whether the term “attorney’s fee”

in sec. 1988 provided explicit statutory authority for reimbursement

of expert witness fees. In finding that no authority existed, the Court

based its reasoning on congressional intent embodied in previously

and subsequently enacted law.'' The Court viewed its role ¢s making

development, tribal self-sufficiency, and strong tribal government);

Indian Tribal Government Tax Status Act of 1982, Pub. L. No. 97-

473, 96 Stat. 2607 (codified in scattered sections of 26

U.S.C.)(granting to Tribes a favorable tax status similar to local and

state governments, intended to enhance tribal economic

development); Indian Land Consolidation Act, 25 U.S.C., §§ 2201-

2211 (1988)(establishing a scheme for Tribes to expand and

consolidate their land holdings); Native American Languages Act,

25 U.S.C. §§ 2901-2906 (Supp. II 1990)(acknowledging the special

status of Native Americans, which recognizes “distinct cultural and

political rights, including the right to continue separate identities.”’).

''This portion of the amicus argument relies on the reasoning used in

the West Virginia opinion, not the specific holding in this case.

Congress passed the Civil Rights Act of 1991, 25 U.S.C. sec. 1301-

1341, specifically to prospectively produce an outcome opposite to

the holding in West Virginia. While Congressional acts can change

future results, they do not technically reverse the holding or

-22-

“sense rather than nonsense out of the corpus juris”, it not being their

“function to eliminate clearly expressed inconsistency of policy and

to treat alike subjects that different Congresses have chosen to treat

differently. /d at 101. Rather than making sense out of the

contradictions embodied in the allotment policy and the

congressional attempts to mitigate the damage'’, the Yakima Court

based its opinion on its own intuition that “it would be * strange’ for

land to be alienable and encumberable yet not taxable.” Yakima, at

690-691. While Congress may have acted strange, it is equally

strange for the Court to infer congressional intent on their own

second sight while maintaining an unmistakably clear intent

standard. This reasoning flies in the face of previously held cases -

which rejected judicial enlargement ot a statute. This Court has

stated that to “to supply omissions transcends the judicial function.”

Id. (citing Iselin v. United States, 270 U.S. 245, 250-251 (1926).

The implications of state taxes imposed on transactions and

activities occurring on Indian reservations was analyzed in

Washington v. Confederated Tribes of the Colville Indian

Reservation, 447 U.S. 134 (1979). The Court reached the conclusion

that the state’s taxes are applicable to purchases made by

nonmembers against the backdrop of the overriding federal interest,

reasoning of a case already decided in its absence. Crumley v.

Delaware State College, 797 F Supp. 341, 344 n.2 (D.Delaware —

1992). Thus, it is appropriate to rely on the same reasoning used in

the West Virginia decision without regard to the effect of the

subsequent federal act.

"See generally Institute for Gov't Research, The Problem of Indian

Administration 3-51 (1928), making numerous findings on the

failure of the assimilationist policy and concluding that the

Indian self-sufficiency, and accordingly, recommended immediate

resolution of this deficiency. /d at 21-22.

-23-

stating that “tribal sovereignty is dependent on, and subordinate to,

only the Federal government, not the States.” /d ar 54.

This Court has consistently relied upon a flexible

analysis “sensitive to the particular facts and legislation involved.

Cotton Petroleum Corp. v. New Mexico, 490 US. 163, 176 (1989).

Moreover, the determination of whether federal legislation has

preempted state taxation, “primarily an exercise in examining

congressional intent, the history of tribal sovereignty serves as a

necessary “backdrop” to that process.” Cf Rice v. Rehner. 463 US.,

713, 719 (1983)(quoting McClanahan, 411 U.S. at 172). It logically

follows that each case “requires a particularized examination of the

relevant state, federal, and tribal interests.” Ramah Navajo School

Ba, Inc. v. Bureau of Revenue of New Mexico, 458 U.S. 832, 838

(1982). In examining the various interests, however, the Court has

held that “although state interests must be given weight and courts

should be careful not to make legislative decisions in the absence of

congressional action, ambiguities in federal law are, as a rule,

resolved in favor of tribal independence.” /d.

Thus, the Court’s accurate analysis to the question of whether

a State may encroach upon Tribe's sovereignty by taxing its land

requires recognition of, and consideration for, the long standing

federal policies adopted to correct the devastating effects of the

allotment era and sanction the integrity of the Nation’s Indian Tribes.

Finally, part of the preemption analysis includes not only the

specific law in question but the state law’s actual effect, English v.

General Electric Co., 496 U.S. 72 (1990) (citing Pacific Gas & Elec

Co. v. State Energy Resources Conservation and Development

Comm'n, 461 US. 190 (1983) and where state law “stands as an

obstacle to the accomplishment and execution of the full

and objectives of Congress, Hines v. Davidowitz, 312 U.S. 52

(1941). In English, the Court held that a state tort claim was not

pre-empted by a federal whistle-blower provision because the state

-24-

law did not have a “direct and substantial effect” on the federal

scheme. English, 496 U.S. at 85.

____ With the IRA, Congress officially halted the allotment actions

and formally repudiated the assimilation policy. While it is

undisputed that Congress did not restore fee-patented or FS

homesteaded lands to tribal ownership, it is understandable in light

aL wade

Father, (abridged ed. 1986), and Congress’ refusal

snaseil bauiaideadanenannietestedomme Thus,

halting the allotment process can best be viewed as a choice by

Congress to effectuate a less daunting task to reversing the

irreparable damage caused by allotment and not as an implied

continuance of State taxation authority upon Tribes. Through the

IRA, Congress established a new federal Indian policy,

supplemented by subsequent legislation, which promotes tribal

autonomy and self-determination. “The Forgotten American” The

President's Message to the Congress on Goals and Programs for the

American Indians, PUB. PAPERS 335 (1968-69).

Our precedents leave no doubt that state and local laws

enacted for the purpose of diminishing Tribes’ land bases have a

“direct and substantial effect on the federal scheme to “promote

tribal self-determination, economic development and cultural

plurality.” °° The taxation by states and local governments of land

governed by an Indian Tribe or owned by its members defeat the

congressional purpose and must not be allowed. The conception of

Tribe sovereignty that this Court has consistently reaffirmed permits

no other conclusion.

CONCLUSION

"See Cohen's Handbook of Federal Indian Law, 147 (Rennard

Strickland et al. eds., 1982)(describing congressional reasoning

behind the IRA).

-25-

In recent years, the Court has given little or no heed to

congressional goals of Tribe self-determination in analyzing Tribes’

eroding any meaningful execise of self-government. It has

inconsistently applied the canons of construction. It has

inconsistently applied or wholly ignored the well-established

and choosing when it is applied and when it is not, as evidenced by

the long line of non-Indian law cases, which are consistent in their

reliance on such precedent. It has resurrected the long repudiated

allotment era to deprive tribes of lands set aside by Congress and

reserved in the Treaties as tribal territories. More significantly, it has

ignored the plenary power in Congress and residual tribal

sovereignty in the tribes. By holding that the States may not

encroach upon a Tribe’s sovereignty and diminish its land base

analytical flaws set forth in Yakima adhering to the well-established

interpretive rules, precedent, and federal policy.