# Petition for Writ of Certiorari — Snohomish County v. Seattle Disposal Company > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0973%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1968 - **Citation:** 389 U.S. 1016 ## Text RE i halal : ae ein TTS" ] | Aus 29 9 1967 f in The SUPREME court We OAS, Cum Of. The UNITED STATES - : ¢ . es eer October Term 1967 © 2 3 See 548 __ ce | Bets oe SNOHOMISH COUNTY, ssw _ «A Municipal Corporation, — SEATTLE DISPOSAL COMPANY and THE TULALIP TRIBES, | : ro Federal Corporation, x nt s _ Respondents. te ib ee ~ PETTON-FOR- WRT OF como To the ‘Supreme Court of the State of Washington ° JOHN WILSON . 7 | ie he Special Deputy as > SE uikee eee 2 ~ Counsel for Petitioner ~~. - ues - "Snohomish County Court Howse : | vapi " ‘Everett, Washington = + JoHN WILSON ty Rens a | {ee eS — ae The SUPREME COURT /. OF The. UNITED STATES. ‘October Term 1967 | NAR ites ’ SNOHOMISH COUNTY, A Municipal Corporation, — tit eee SEATTLE DISPOSAL COMPANY |’ fae and THE TULALIP TRIBES, A Féderal Corporation, . ia i 0 | . : Respondents, PET TION FOR WRIT OF CERTIORARI ‘To the Suyyine Court of the State of Washington | JOHN WILSON. | Special Deputy as Counsel for Petitioner we Snohomish County Court House ce Everett, Washington es _ .JOHN WILSON - Si ; | Counsel .of .Record — . ~ Snohomish County Court House Everett, Washington” PRE IPL LT SL LET OMAP LY ILC LEE ERE AREY BOLE AM RB tm * —~ ma F ee, F - fs ek. SUBJECT INDEX Page oe " Sielaieiais 16 the Record... 2 Opinions Below : : 2 . Jurisdiction. ie: : he = Questions Presented... saiiosese | ‘ woe Treaties and Statutes Involved in Bs : Statement. * +7. 1. ‘Facts ~" ” ‘ie 2. Procedure and. Proceedings | 9 3. Stages at. which. Federal Questions Were Raised.. 10 Reasons for Granting This Writ : 12 1. Whether Allotment No. 92 is subject toa restraint against alienation , “13 2. Whether Allotment No. 91 is held in “trust” ; by the United States 16 3. Whether a county zoning ordinance requiring an : application for a conditional use permit constitutes an “encumbrance” with 28 USC §1360(b) | and RCW. 37.16.060. 16 "4. ‘Whether a non-Indian lessee is within me protection. : of the federal statutes 19 *. §. Whether the State of Washington assumi g - jurisdiction is in conflict with Federal ncaa 6. Whether a tribal ordinance inconsistent Sith a 3 county zoning ordinance controls 22 7. Whether the lease in question being held to be outside. , ae ' of state zoning laws is a denial of eae protection... ie Conclusion... 7 24 Appendixes: _ ee Appendix A Opinions and Judgment Below A-1 B-1 | Appendix B Treaties and Statutes Involved... ARO tare PTR BOR Ms Patt oe = CITATIONS . : ° ‘ : ‘ Cases , . _-@ Arenas v.-U.S.,-60 F. Supp. 411 (S.D. Cal. 1945) Page . 14 Bailess v. Paukune, 344 US. 171, 97 Led. 197 (1952) 16, 19, 20 : Choctaw, Oklahoma & Gulf R. Co. v. Mackey, « 256 US. 531,.65 L.ed. 1076 (1921).: - 21 - Goudy - v. Meath, 203 US. 146, 51 L.ed. 130 (1906) In re Huff, 197 U.S. 488 (1905) 15,17. a LaMotte v. United. States, 254 U.S. 570, 65 Led. 410° (1921) @. Levindale L. & Z: Min. Co. v. Coleman, @-.. - 15 “19 ii 241 U.S. .432, 60 L.ed. 1080 (1916) Oklahoma Tax Commission v. Texas Company, - 336 U.S. 342, 93 L.ed. 721 (1948)... Organized Village of Kake v. Egan, 369 U.S. 60, 7 L.ed. 2d 5738 (1962) 18 Pennock v. County Commissioners, 103 US. 44, 26 L.ed. 367 (1881) nT Quinalt Tribe of Indians Vv. Gallagher, 368 F. 2d 648 (9th -Cir. 1966) ee 18 Seymour v. Superintendent, 468 U. S. 351, 7 Led. 346 (1962). Twin Cities Chippewa Tribal C. v. Minnesota Chippewa Tribe, - 370 F.2d 529 (8th Cir. 1967) 23 @ William v. ‘Lee, 358 U.S: 217, 3 L.ed. 251 1 (1959) 22° Statutes a Te ae Page 25 USC § 403a 13 25 USC § 403a-1 ~ ; my 25 USC § 403a-2.... , 25 USC § 231..™ 17 25 USC § 461 ; —s 2 25 USC § 477 8, 23 | 28 USC § 1360. 16, 21 8 USC § 1401(2) soinaoiiaane Pub. Law 280, 67 Stat. 589 (1953) .8, 17, 21, 22 Chap. 240 Wash. Laws or RCW 37.12 7 8,31, 21,22. - Washj gton Constitution, Article 26.. ington Constitution, Article 1 § 12 - United States Constitution; Amendment XIV. nited States Constitution, Article 4 § 2 Treaty of Poitn Elliott of 1885, 12 Stat. 927. Sixth Article of the Toenty with the Omahas of 1854 ? , ty a - b, . ? ‘ >. : ‘ « ij j | , ~\ : Bs [ wr. : il | ys ie % na. In The SUPREME COURT Of The UNITED STATES TF October Term 1967 © : > i No. e 4 2 ° | SNOHOMISH Counry, | Se. C A pei Corporation, | Appellant, SEATTLE DISPOSAL COMPANY | . and THE TULALIP. TRIBES, A Federal Corporation, 3 on rea Respondents. PETITION FOR WRIT OF CERTIORARI To the Suprerie Court of the State of Washington | * oat 4 To a Honorable Chief Justice and Associate J J ustices of the United States Supreme Court: ** > The County of Snohomish, in the State of Washington, | the petitioner he rein, prays that a Writ of Certiorari issue to’ > review the: judgment of the Washington State Supreme Court in the above entitled.cage. © tw oS of: 1 REFERENCES TO THE RECORD 7 The Washington State Supreme Court will forward to this @ Honorable Court a certified copy of its record, references to which are made herein as follows: @ Portion of Record Cited aaa | _ Abbreviation Used Brief\of Afipellant | (R,BA, ——) Statement of Facts (CR. SE ——) OPINIONS BELOW - _ The memorandum opinion of ‘the Snohomish County Su- perior Court: is unreported but appended hereto in Appendix g A, infra, pp. A-1, A-3. The said opinion of the Wash- ington State Supreme Court is reported in 71 Wn. Dec. 2d-425 P. 2d 22 (1967) and appended nereto 1 in Appendix A, waive, pp. A-4, A-17. On April 4; 1967 the petitioner herein filed a petition for | rehearing to the Supreme Court of the: State of Washington. a ” . On June 2, 1967 the Court denied the petition by order which is unreported but appended hereto in Appendix A, infra, pp. A-17. The remittitur was issued on June 5, 1967, which is appended in Appendix A, infra, pp..A-18, — JURISDICTION This petition is. within 28 USC §1257(3) which! inter alia @ provides that” the final judgments rendered by the highest @ court of a state may: be reviewed by the United States Supreme 3 Court bywrit of certiorari “. . . where any title, ‘right, privilege, or immunity is specially set up or claimed under the Constitu- tion, treaties or statutes of, or commission: held or authority exercised under the United States.” : “ 2 _ ‘This petition has been filed within. ninety (90) ‘days of final judgment of the Washington State Supreme Court as prescribed by Rule 21, SUREME COURT. RULES. It presents. ‘substantial federal questions within the. purview of 28 USC | §1257(3), supra, as delineated herein under “Questions Pre- sented,” which were raised in the Superior Court in the first instance and then in the State Supreme Court as set forth under subheading “3”, “Stages at Which Federal Questions | Were Raised,” inthe “Statement” section, infra. | QUESTIONS PRESENTED 1. WHETHER THE PURCHASE IN 1968 BY THE: TULALIP. TRIBES OF ALLOTMENT 92 IN FEE REIM- POSED A RESTRICTION ON ALIENATION BY 25 USC § 403a, October 9, 1940, 59 Stat. 1057 AND BY 25 USC §403a-2, June 18, 1956, 70 Stat. 290, or WHERE SAID PURCHASE — WAS MADE PURSUANT TO A JUDICIAL SALE OF ALLOTMENT NO. 92 IN A PARTITION ACTION OF SNO- HOMISH COUNTY SUPERIOR COURT CIVIL CAUSE NO. 76503 BY WHICH ALLOTMENT NO. 92 WAS SOLD CLEAR OF ALL TRUSTS AND RESTRICTIONS AGAINST ALIEN- ATION IMPOSED BY THE UNITED STATES AS AUTHOR- IZED BY 25 USC § 403a-1? aes | 2. WHETHER THE PURCHASE BY THE TULALIP _ TRIBE OF ALLOTMENT NO. 91 IN 1960 AND VOLUN- TARILY PLACING: TITLE THERETO IN THE UNITED. STATES CREATED IN ALLOTMENT NO. 91 A DRY AND - PASSIVE TRUST BY THE UNITED STATES WHICH DOES» NOT COME WITHIN 28 USC § 1360? 8. WHETHER, ASSUMING ARGUENDO THAT ALLOTMENT NO. 91 IS HELD IN TRUST BY THE UNITED ° - ry @ STATES AND ALLOTMENT NO. 92 IS SUBJECT TO RESTRICTIONS AGAINST ALIENATION, SNOHOMISH COUNTY. BY REQUIRING AN APPLICATION FOR A CONDITIONAL USE PERMIT WITHIN ITS ZONING. OR- @ DINANCE COVERING SANITARY LAND FILLS (assuring = ce « public health, safety, morals and welfare) IS AN “ENCUM- | BRANCE” WITHIN 28 USC § 1360? | 4. WHETHER, ASSUMING ARGUENDO THAT ALLOTMENT NO. 91 IS HELD IN TRUST BY THE UNITED STATES AND ALLOTMENT NO. 92 IS SUBJECT TO . RESTRICTIONS AGAINST ALIENATION AND ZONING IS © NOT AN ENCUMBRANCE, THE STATE OF WASHINGTON q PURSUANT TO PUBLIC LAW 280, 67 STAT. 588 (1953) | 3 = AND B YCHAPTER 37.12 RCW, ASSUMED CIVIL AND CRIMINAL JURISDICTION OVER INDIANS AND THEIR LANDS WITH THE TULALIP TRIBE VOLUNTARILY COMING WITHIN THE--STATE JURISDICTION, WAS . SUFFICIENT TO ALLOW THE COUNTY, OF SNOHOMISH—— TO REQUIRE. A NON-INDIAN LESSEE TO APPLY FOR ° _ A CONDITIONAL USE-PERMIT PURSUANT TO COUNTY ORDINANCE AND STATE LAW? — 5. WHETHER, ASSUMING ARGUENDO THAT ALLOTMENT 91 IS HELD IN TRUST BY THE UNITED , STATES AND ALLOTMENT 92 IS SUBJECT TO RESTRIC- TIONS AGAINST ALIENATION AND ZONING IS: NOT AN ENCUMBRANCE; THE COUNTY ZONING ORDINANCE IS INCONSISTENT WITH ANY “FEDERAL TREATY, - AGREEMENT, OR STATUTE OR WITH ANY REGULA- TION MADE PURSUANT THERETO” AS PROVIDED IN 28 ‘USC § 1360? : i 6. WHETHER, ASSUMING ARhGUENDO THAT ALLOTMENT 91 IS HELD IN TRUST BY THE UNITED STATES AND ALLOTMENT 92 IS SUBJECT TO RESTRIC- TIONS AGAINST ALIENATION, AND ZONING IS NOT ‘AN ENCUMBRANCE, THE TULALIP TRIBES HAVE THE STATUTORY POWER TO EXCLUDE THE. COUNTY ZON- ING ORDINANCE AND HAVE DONE SO BY ITS ORDIN- _ + ANCE NO. 29 AND, IF SO, IS THIS A DENIAL OF EQUAL . . PROTECTION OF THE LAWS? 7. WHETHER, ASSUMING ARGUENDO SUCH SAID ZONING ORDINANCE IS AN “ENCUMBRANCE”, OR IF NOT, ASSUMING ARGUENDO SAID ZONING ORDINANCE . IS INCONSISTENT WITH ANY “FEDERAL TREATY, AGREEMENT, OR STATUTE, OR WITH ANY REGULA- “TION MADE "PURSUANT, THERETO,” A NON-INDIAN SUBJECT TO ALL THE LAWS. OF THE STATE OF WASH- INGTON IS WITHIN” THE STATUTES GOVERNING -— JNDIANS BY LEASING LANDS OF THE TULALIP TRIBE FOR A PERIOD OF 10 YEARS WHERE THE CONSENT OF THE. SECRETARY OF THE INTERIOR IS NOT RE- QUIRED NOR OBTAINED, AND IF SO, IS THIS A DENIAL OF EQUAL PROTECTION OF THE LAWS? : TREATIES AND STATUTES INV OLVED . The treaties and statutes. involved aye too numerous ‘to set forth verbatim ; ae they ‘are —— in Appendix B, as follows: vo Treaty of Point Elliott, 12 Stat. 927 (1958) - Treaty With the Omahas, oixth Article........ RT dw B-1, B-2 25 USC § 403a Oo, Oct. 9, 1940, Chap. 781, 54 Stat. 1057. Sihsebiiuaeciniiitden nanan B-2 5 Pages 25 USC: 5 408a-1 June 18, 1956, Chap. 400. § 1, 70 Stat RT rae B-2 25 USC-§ 403a-2 boys June 18, 1956, Chap. 400 § 2, 70 Stat 280. Saalihcen B-2 28 USC § 1360(b) | Aug. 15,-1958 Yhap. 505 § 4, 67 Stat. 589 ne Amend. ‘Augy. Py. -1954 Chap. 910 § 2, 68-Stat. 795 _. Aug. 8, 1958, Pub. L. 85-615, § 2,-72 Stat. 545 Bienes cc B-A Public Law 280, ‘67 Stat. 589 SE ae B-6 25 USC § 231 . . Feb. 15, 1929, ae 216, 45 Stat. 1185. ; rie | Aug. 9, 1946, Chap. 930, 60 Stat. 962. abt buacinciaincecieteces B-10 25 USC,§ 477 — | oe June 18, 1934, Chap. 576 § 17, 48 Stat. ee Daas B-10 8. USC 1401(2) ae: June 27, 1952, 66 Stat. oe EE B-11 ROW 37.12 | | Chap. 240, Laws 1957, Amend. Chap. 36, Laws 1963 ia atta Aiatindalcididilansauddahasedtieceneusosunedoonngesie wees B-11, B-25 | Washington State Constitution, Art ee °..B-14 Washington State Constitution, Art. 1 | SRR: B-15 Amendment XIV, United States Constitution.................. B-16 Art. 4 § 2, United States Constitution... iaiceubiaians weowsinesvoroe Tulalip Tribe Charter’ Me aad cesundesxcreevo reece ser eeicccemeoeee. B-16 ee ipcnciadieasauhinnstbscosicos B-17 Tulalip Tribes, Ordinance No __ SESS a, Sa B-17 Snohomish County Zoning Resolution ‘No: 7................... B-25 ~ ae STATEMENT 1, FACTS ' The Tulalip Indian Reservation is entirely within Snoho- mish County. On July 15, 1964, the Tulalip Tribes executed a ten (10) year lease of certain land. on the reservation with the. ’ Seattle Disposal Company, ‘a partnership whose members are not Indians. The lessees are to use the land in question. solely for a garbage refuse or a sanitary land fill according to certain prescribed conditions (R. SF. 21). The land used consisted of two tracts vita by the . Tulalip. Tribes at’ different, times and under different circum- stances. In NovemPer 1963, the Tulalip Tribes was the. highest bidder at a public sale of the tract in question, designated Allot-. ment 92 to one Richard Lawrénce. The sale was. pursuant to 25 USC 408a-1, in a partition proceeding in the Superior Court of the County of Snohomish, Civil Cause No. 76503. The Su- perior Court ordered (R. SF. 37-40) said Allotment 92 to be sold and upon such sale it would be free of any trust in the United States and free of any restraints against alienation imposed by the United States, ; - . In February 1960, ‘the Tulalip Tribes with tribal oi purchased the other tract in. question. It was Allotment 91 to '. Jack Wheeler. At the time of the purchase, the Tulalip Tribes upon their voluntary act placed the legal title in the United © States in trust for the Tribes ( R. SF. 46). Both Allotiment 91 to Jack: Wheeler and Allotnient 92 to. Richard Lawrence were made sometime prior to 1900 by deed from the President of the United States under the authority of the Treaty of Point Elliott of 1885, 12 Stat. 927 and the Sixth Article of the — with the Omahas of 1854. 7 | The lease was executed pursuant to Ordinance No. 29 of - the Tulalip Tribes, which was promulgated on. July 7, 1964 as authorized by the Tribal Constitution. By this and 25 USC § 477, the tribe executed the lease in question without the approval of the Secretary of Interior; his consent not being. required. The Tribal Constitution was legally effective by the ap- | 7 proval of the Seeretary of Interior on January 24, 1936, as 4 authorized by the Indian Reorganization Act, 48 Stat. ‘984, 25 4 USC § 461 et seg. (June 18, 1934, Amended June 15, 1935). ‘Seattle Disposal Company made preparations and actually commenced operations under the lease. At that time, it had never made application with Snohomish County for a conditional use pérmit in accordance with County Zoning Ordinance No. 7. (R. SF. 25). Accordingly, the County of Snohomish instituted this injunction action in the Superior Court of Snohomish County 4 until such an application for a conditional use ‘permit was made. By Public Law 280, Chap. 505, 67 Stat. 589 (1953), Con- gress consented to any state assuming criminal and civil urisdic- tion in accordance with the Act. 3 ‘At that time, the State of Washington. had a general dis- sir claimer of jurisdiction over Indians. Art 26 of the Washington — State Constitution. Thereafter, the Washington State Legisla-. _ ture by Chap. 240, Enacted Laws 1957, Amended Chap. 36, Laws of 1963, enabled the state to assume jurisdiction over Indians and their lands upon their consent and proclamation by the gov- ernor of the state, subject to restrictions in the Act (which aré — the same as the restrictions in Pub. Law 280, ‘Chap. 505). ‘April 8, 1958, to the Governor of the State of Washington, the Tulalip Tribes by its Resolution No. 106 (R. BA 40) ex- pressed its desire for and requested the application of the crim- \ ; » \ \ inal and civil jurisdiction of the State of. Washington. A proclamation by the Honorable Albert D. Rosellini, Gov-. ernor of the State of Washington, declared (R. BA 40): cs that effectiv ive July q, 1958, the criminal and civil wk. of the State of Washington shall apply to the Tulalip Indian people, their reservation, territory, lands ‘and country, a all Persons being and residing therein.” - 2. PROCEDURE AND PROCEEDINGS " "In December, 1964, Snohomish County filed a complaint in the Superior Court of Snohomish County against the Seattle Disposal Company to enjoin. its activities of conducting a sani- tary land fill in Snohomish County without applying for : a con- | ditional use permit (R. SF. 7). , In January 1965, the Tulalip Tribes filed a motion to tii vene and at that time filed its answer, denying that the County of Snohomish had jurisdiction over the lands in question, and ; alleging affirmatively that the court lacked jurisdiction over the subject matter and that the complaint failed to state a claim, A few days later, January 29, 1965, the court entered its order granting the motion to intervene. - On February 15, 1965; the ‘intervenor, Tulalip Tribes, moved for a summary judgment alleging the ‘court lacked juris- diction over the subject matter and praying the complaint be dismissed with prejudice. With this motion, the defendant Se- attle- Disposal Company concurred by its motion for summary judgment. On March 4, 1965, the Seattle Disposal Company filed its answer, admitting and denying parts of the complaint and al- leging in the affirmative that the court lacks. jurisdiction over 9 ee the subject matter, that the complaint failed to state a ti and that Snohomish County failed to j join, an indispensable party ’ defendant (R. SF. 27): The motion ‘tex summary judgment was. ‘winee on “differ- , ent occasions prior to the court granting the-motion and dis-. missing the complaint with prejudice by its order, dated May 14, 1965 (R. SF. 30). Snohomish eed filed a wer notice of — appeal. 4 ‘ 5 3. STAGES AT WHICH FEDERAL QUESTIONS WERE | i RAISED _ : ‘Snohomish County raised by argument =~ memorandum. : of authorities i in the hearings on the motion for summary judg- - ment and by assignment of error to the Supreme. Court of the . State of Washington (R. BA PP. 5-7) the following matters, among: others: | | . : ; ory : 4 7 “Ig Allotment No. 92 land ‘belonging tes any Indian, or Indians, or Indian Tribe, band, or community, that is held in trust by the United States or is subject to a restriction - , marsad alienation imposed by the United States?” “To what extent has the State of Washington @ assumed jurisdiction ‘over the use of such land? IV “Ig the requirement of a Conditional Use Permit as a - - condition precedent to the use of the land in question as a . sanitary land fill inconsistent with any federal treaty, agree- * ment, or statute, .or with any fegulation made pursuant. |. thereto? coc sy : V “Does ‘the Tulalip Tribes have tlie Power to regulate 10 FO ROO mem. ne tA ,:: the use of the land in question to the exclusion of Snoho-. mish County? .« . 3 2 iii | ’ VI : . “Does the Zoning Ordinance of Snohomish County con- _ stitute an encumbrance upon the land in question? ' _ “Ts a non-Indian lessee entitled to the benefits conferred — on Indians by’ Public Law 280?” cee. ; ‘The trial court’in its: memorandum decision (Appendix A, infra) answered the arguments and questions raised by. Snoho- _*mish County as follows: * are entitled to a judgment of dismissal: of this cause as a _ Matter of law for the reason that Allotments No. 91 and 92 of the Tulalip Indian Reservation located in Snohomish ' County, Washington, are tribal lands of the Tulalip Tribes of Washington, a duly organized Indian tribe created and. existing pursuant to Sec. 16 of the Indian Reorganization Act (48 Stat. 984; 25 USC. 461, et seq.) subject to the jurisdiction of the United States and of the Tulalip Tribes. of Washington as tribal lands, having been acquired thereby by purchase pursuant to Federal law and regulation, with title to Allotment No: 91 being taken by the United States in trust for the Tulalip TYibes of Washington, ‘and title to Allotment No. 92 being taken in the name of The Tulalip’ ' . Tribes of Washington subject to restrictions against aliena- _ tion as set forth in 25 USC 403-A2; that by reason of said trust status and restrictions against’ alienation no jurisdic- tion was vested over the use of said Allotments No. 91 ‘and 92 in the State of Washington or any ‘of its governmental agencies, including the County of Snohomish, under. Public Law 208 of the United States, 25 USC 1360, or,the laws of the State of Washington, RCW 37.12.050.an 37.12.060; that the zoning ordinances of the County of Snohomish constitute an encumbrance upon, said trust and restricted. i “Seattle Disposal Company. and The Tulalip Tribes, lands of THE TULALIP TRIBES by operation of law anf constitute a regulation of the use of said trust and restricted — lands, and said Allotments No. 91 and 92 are thereby by definition contained in the -aforesaid 25 USC 1360° and RCW 37.12.060 exempted from the operation of the juris- -. diction of any. governmental division deriving its powers _ . from the State of Washington; that in ‘the exercise of the jurisdiction over said lands by the United States of America and pursuant to the Indian Reorganization Act, (48 Stat. 984; 25 USC 461, et seq.), the Tulalip Tribes of Washing- ton have the power to the exclusion of the County of Snoho- mish to regulate the use of said tribal property and have done so by its Ordinance No. 29 allowing the use thereof as a sanitary land fill; that the zoning ordinances of the County of Snohomish requiring the securing of a.conditional © use permit from the. Board of Adjustment:of said county: as _a condition precedent to use of said tribal land by the operation of such a sanitary land fill are inconsistent with. the Treaty of-Point Elliot (Jan. 22, 1855, 12: Stats. 928), Federal laws and regulations of the United States made pursuant, to said laws, as well as constituting an ‘encum- brance upon said tribal lands by operation of we, unty as follows: “Seattle Disposal Cgmpany and The Tulalip Tribes, are entitled to a judgment of dismissal of this. cause as a matter of law for the reason that Allotments No. 91 and 92 . of the Tulalip Indian. Reservation located in Snohomish County, Washington, are tribal lands of the. Tulalip Tribes _, of Washingtgn, a duly organized Indian tribe created and: existing pursuant to Sec. 16 of the Indian Reorganization Act (48 Stat. 984; 25 USC 461, et seq.) subject to the jurisdiction of the United States and of the Tulalip Tribes. _ of Washington as tribal lands, having been acquired thereby ‘by purchase pursuant to Federal law and regulation, with title to Allotment No. 91 being taken by the United States in trust for the Tulalip Tribes of Washington, and title to: Allotment No. 92 being taken in the name of The Tulalip Tribes of Washington subject to restrictions against aliena- . tion as set forth in 25 USC 403-A2; that by reason of said trust.status and restrictions against aliénation no jurisdic- tion was vested over the use of said Allotments No. 91 and 92 in the State of Washington or any of its governmental _ agencies, including the County of Snohomish, under Public — Law 208 of the United States, 25-USC 1360, or the laws of the State of Washington, RCW 37.12.050 and 37.12.060; that the zoning ordinances of the’ County of Snohomish . constitute an encumbrance upon said’ trust and restricted | : agape . | ; és ale fands of THE TULALIP TRIBES by operation of law and constitute a regulation of the use of said trust and restricted lands, and said Allotments No. 91 and 92 are thereby by _ definition contained in the aforesaid 25 USC 1360 and » RCW 37.12.060 exempted from the operation of the juris- diction of any governmental division deriving its .powers from the State of Washington; that in the exercise of the - jurisdiction over said lands by the United States of America and pursuant to the Indian Reorganization Act, (48 Stat. 984; 25 USC 461, et seq.), the Tulalip Tribes of Washing- ton have the power to the exclusion of the County of Snoho- mish to regulate the use of said tribal property and have done so by its Ordinance No. 29 allowing the use thereof as a sanitary land fill; that the zoning ordinances of the County of Snohomish requiring the securing of a conditional use permit from the Board of Adjustment of said county as.a condition precedent to use of said tribal land by the operation of such a sanitary land fill are inconsistent with — _ the Treaty of Point Elliot (Jan. 22, 1855, 12 Stats. 928), Federal laws and regulations of the United States made pursuant to said laws, as well as constituting an encum- brdnce upon said tribal lands by operation of law, . : The Washington Supreme Court substationally followed the 7 trial court decision, except it did not decide whether the Tulalip @ Tribal Ordinance No. 29 preempted the county zoning ordinance. REASONS FOR GRANTING THIS WRIT This case presents several problems of first impression, but basically it involves the jurisdiction of local government to im- - pose its zoning laws on Indian tribal lands. This case DOES - NOT relate to jurisdiction of the state to impose fishing regu- lations or hunting regulations on Indians, which is now before this Honorable Court in October Term 1967, No. 247, The Puy- allup Tribe v. Department of Game of the State of Washington : | 12 as and the Department of Fisheries of The State of Washington. Instead, this case presents, among other questions, a question on jurisdiction of the state to zone Indian land; a question not decided by any court in the United States prior to these. pro- ceedings; a question affecting évery ‘state in which an Indian. tribe dwells; a question needed to be answered with commerce flowing over jurisdictional boundaries. In light of recent rulings of federal circuit courts (specific reference infra) and the Washington Court herein, a no man’s land outside of federal jurisdiction and state jurisdiction developed. This Honorable Court is the only body which can - draw definitive boundary lines. If a workable relation between Indian tribes and local government is to be obtained, the neces- sity of establishing responsibilities and obligations is evident. For these reasons and reasons hereinafter stated, the prayer for the writ should be granted. 1. Whether Allotment No. 92 is subject to a restraint against : alienation. - The Washington court held that although the Tulalip Tribes purchased in fee Allotment No: 92 at a sale pursuant to a par- tition action in which the court ordered the sale to be free from federal trust and restrictions against alienation, restrictions against alienation were reimposed by law in 25 ‘USC 403a and 403a-2. | > ‘There has been no case decided which construes these sta- tutés. This is a case of first impression. However, principles enunciated in these statutes have been decided by earlier cases of this Honorable Court. One-problem is whether these statutes apply solely to land acquired by the Tulalip Tribes where that land is already re- 13 stricted or in trust, or ae also. pars to lands acquired in fee q by the Tulalip Tribes. In Pennock v. County Commisisoners, § 103 US 44, 26 L.Ed. 367 (1881), the Court held an Indian woman, who acquired under a treaty certain land arid also re- ceived by assignment certain land allotted to other Indians under the same treaty, was not within the restriction of necéssitating ‘the Secretary of Interior’s approval to sell such lands. The Court construed such restriction to apply only to the acquisition under . the treaty and not to lands assigned under a different treaty. : At 103 US p. 48,'the Court said: . When the patent of the Government is once issued for eh lands, all restrictions upon their alienation, not - expressly named, are gone. Without such designation, in- ability to alienate the property would be inconsistent. with the perfect title which accompanies the patent.” Accordingly, the county could tax the lands in question. The enumerated principle is the elimination, not. reimpositions, of restriction on Indian lands. as In addition, the Washington Supreme Court’s opinion on this issue is in conflict with Arenas v. U.S., 60 F.Supp. 411 (S. D. Cal. 1945) reversed on other grounds, 158 F.2d 730 (9th Cir. 1947). This case was remanded from the United States Supreme Court, 88 L.Ed. 1363 ried At ,60 F.Supp. p- 426, the Court said: “Subsequent. Acts of Congress, or - Indian Reor- - ganization Act of. June 18, 1934, 48 Stat. 984, 25 USCA $461 et. seq., cannot vitiate vested rights. “Heretofore, when acts have been passed which seek to modify allotment rights and privileges, these acts have been generally construed as not. intended to apply where allot- ments had already been selected, nor. to affect the trust. patenting of these selections...” . 14 Most important is the case of LaMotte v. United States, 254 US 570,°65 L.Ed. 410 (1921), where Indians leased several lands, some of which were prior allotments to other’ Indians and ‘became unrestricted. As to these, the Court at 254 US, »P. G80, said: . “Some of the leases are y= lands which were purchased by the lessors after the lands in regular courts had become unrestricted. Because the lessors were members of the tribe, and without, certificates of competency, the circuit court of appeals held that leases were subject to the: Secretary’s ap- proval. The district court had held the other way. We think the le court was right. There is no provision in the Act of 1906 or that of 1912 which reimposes restrictions after they have been removed, ‘or which subjects to restric- tions all lands, however acquired, which a member without a certificate of competency may.own . Assuming arguendo that Allotment No. 92 i is ‘subject to re- strictions against alienation, the Tulalip Tribes have the power of voluntary disposition. Such power as enunciated by the prin- ’ ciples set forth in Goudy v. Meath, 203 US 146, 51 L.Ed. 130 (1906), places the land within the taxing jurisdittion- of the County, notwithstanding the allottee therein had not exercised his power of voluntary sale. With hregard to this, the Court at 203 US p. 149, said: . “That Congress may grant the power of voluntary sale while withholding the land from taxation or forced aliena- tion may be conceded . . . But while Congress may make such provision, its intent to ‘do so should be clearly mani- fested, for the purpose of the restriction upon voluntary _ alienation is protection of fhe Indian from the cunning and rapacity of his white neighbors, and it would seem. strange to withdraw this protection and. permit the Indian to dis- pose of his lands as he pleases, while at the same time bb 4 releasing it from taxation — in other words, that the offi- - cers of a state enforcing its laws cannot be trusted to do ~ justice, although each and every individual acting soe him- , - self may be so trus ae o.u0,.,,,4 his principle of an Indian allottee with the ability to volun- tarily alienate his land is applicable to the Tulalip Tribes holding Allotment No. 92 in fee with power to sell where it leases that land under its own terms without the consent of the Secretary of Interior. 2. Whether Allotment No. 91 is held im “trust” iy the ~ United States. — Allotment No. 91 was purchased in 1960 by the Tulalip Tribes with tribal funds; title thereto was placed voluntarily in the United States in trust. The trust is a dry and passive one. Even though, the trial court and Washington State Su- preme Court held such was a trust_within 28 USC 81360. How- ever, the Court in Bailess v. Paukwne, 344 US 171, 97 L.Ed. 197, 73 S.Ct: 198 (1952), indicated a dry and passive trust is ™ not within the protected class. The Court said: .. If she (a non-Indian) is not within the class whom mianaa sought to protect, the trust is a dry and passive one; there remains only a ministerial act for the trustee to perform, namely, te" issuance of a toe os to the cestui.” : Similarly, if the trust status of Allotment No. 91 is not within the class Congress sought to protect, or it is a dry and passive one over which the federal government does nothing, it - is within the state jurisdiction. | 3.. ‘Whether a a county zoning ordinance requiring an applica tion for a conditional use permit constitutes an “encumbrance” within 25 USC §1360 (b) and RCW 37.12.060. . This question is also one of first impression for. the courts. | The Washington Court construing the word “encumbrance” to include state authorized zoning laws, is contrary to the purpose . of the restrictions on alienation as enunciated by this Court in Goudy v. Meath, supra, viz, the protection of the Indian against the cunning white people and not local government. | The ‘Washington Supreme Court a its iebeneeate: tion’ by saying. . We find nothing in Public Law 280 or in other setuai law to indicate an intention to the contrary. Thus, _ we conclude that, even apart from the inclusion of zoning | ordinances within the word encumbrance, the federal gov- ernment has not intended to allow states or their govern- . mental agencies to interfere with the use of restricted In- | dian lands by means of zoning ordinances. This is contrary to rules of interpretation as set forth i in Goudy. v. Meath, supra, and In Re Huff, 197 US 488 (1905). Also, it flies in the face of the purpose of Public Law No. 280 as set forth in House Rept.’ No. 848, viz, to relinquish federal juris- diction over Indian lands to the State of Washington upon its enz« ment of legislation, which was done. See Chap. 37.12, RCW. o Also, the interpretation of the word “encumbrance” to in- clude a county zoning ordinance is contrary to the purpose and policy as set in 25 USC §281, allowing state inspection for en- - forcement of health and sanitation regulations. . To construe zoning as an “encumbrance” would prohibit zoning where the land is restricted, but would allow zoning where the land is unrestricted in the hands of individual Indian allot- tees. Such result would require the burden of searching the “ecords for each tract. A burden found unreasonablé and im- 17 . practical by this Court-in Seymour v. Superintendent, 368 US ~ 851, 358, 7 L.Ed. 2d 346, 351 (1962): : . Where the existence or nonexistence of an Indian _ reservation, and therefore the existence or nonexistence of federal jurisdiction,-depends upon the ownership of parti- cular parcels of land, law enforcement officers operating in the area will find it necessary to search tract books in order to determine whether criminal jurisdiction. over each parti- . cular offense . . . is in the State or Federal Government. Such (is) n° impractical pattern of checkerboard jurisdic- S frre Moreover, the word “encumbrance” as affecting the juris- diction of local government refers to “proprietary interests” and ‘not “governmental.” In Organized Village of Kake v. Egan, 369 US 60, 7 L.Ed. 2d 573 (1962), the Court construed the reten- tion of “absolute jurisdiction and control” over Indian lands by _ the Federal government as provided in 84 of the Statehood Act as meaning undiminished, not -exclusive. With regard to the provision of $4 of that Act, if the state disclaimed any right and title, the Court found this was a Coetadmer of proprietary, rather — than governmental, interest. The Egan case specifically allows concurrent and overlap- ping jurisdiction in certain areas. In zoning under the Wash- . ington court’s rule in the instant case and the principles enun- ciated by Quinalt ,Tribe of Indiatls v. Gallagher, 368 F.2d 648 (9th Cir. 1966), a new type of nonjurisdiction has been estab- lished outside of either state or federal control. - 3 . By construing “encumbrance” to embrace zoning, the Wash- ington Court is curtailing that state governmental jurisdiction authorized and adopted in this case by Congress in Pub. Law -. 280. On the other hand, the Gallagher case, supra, finds no claim. | Gea! - 18 | CETL PCIE LPT I AEE IR OOS NE EE IE lid stated where the Quinalt tribe sue for declaratory judgment and injunction to prevent the enforcement of Washington State civil and criminal laws on the reservation. The Court leaves the tribe to state law by saying at p. 658: | . If the Quinalt Tribe of Indians feels aggrieved | ‘aa state jurisdiction is not presently. being exerted to the full extent possible under Chapter 36, all it has to do i is provide, the governor with a tribal resolution . . Here the Tulalip Tribes have so passed a resolution, yet the Washington Court denies jurisdiction of state police laws. The two cases cannot be reconciled on who has jurisdiction ; a void | exists. | =i = % Whether a Non-Indian Lease Is Within Protection of The | Federal Statutes. “The Washington Supreme Court held that a 5 sentation lessee is entitled to benefits of Indians under Federal oe | indale is directly in conflict with holdings of this Court: L L. &Z. Min. Co. v. Coleman, 241 US 482, 60 L.Ed: 1080 (1916); and Bailess v. preunune, 344 US 171, 97 L.Ed. 197, 73 S.Ct. 198 (1952). | . % In the Levindale case, supra, a white man was married to © an Indian woman who, along with her child, received allotments subject to restrictions against alienation by the Allotment Act of. June 28, 1966. Upon-the death of the Indian woman and child, the white husband inherited ‘an undivided one-half interest in her allotment and a three-fourths undivided interest in the child’s. They had not been partitioned. He later conveyed his interest to the Mining Company. The white husband then brought | suit to set aside his conveyance as being in violation of the treaty and subject to restriction. . Ra aie - 2 19 9 Section seven of that Allotment Act: provided that members . of the tribe and their’ heirs had power to lease. The husband. argued by this, he béing an heir, he was within the Act. The Court rejected the’ argument_by saying at 241 US p. 438: . “. .. this provision as to leases, in the light of the pur- . pose of the Act, had reference, we think, to the ‘individual members’ who received allotments and the Indian heirs of such members.” -- The Court expressed the policy of the Allotment Act, at 241 US p. 487, as follows : eae “The provisions of the Allotment Act must: be con- -strued in the light of ‘the policy they were obviously in- tended ‘to execute. It was a policy relating to the welfare of Indians, wards of the United States. The establishment of restrictions against alienation ‘evinced the continuance, | ‘to this extent, at least, of the guardianship which the United States had exercised. from ‘the beginning.’/(Citing cases.) This policy did not embrace white men — persons not of — Indian blood — who were not’ as Indians under national . protection, although they might inherit. lands from Indians; and, with respect to such persons, it would require clear language to show an intent to impose restrictions.” (Empha- sis added.) In Bailess v. Paukune, supra, an Indian ‘was allotted land. He subsequently died. Without a patent fee being issued to the widow and the land still in trust for the deceased Indian, the State of Oklahoma issued an ad valorem tax on the land and. later advertised it for sale. The widow brought suit to enjoin such a sale. The Court held if the widow. was-not an Indian, she " was not within the protected class. The case was remanded for - this determination. _ : Cae O 20 o issued a icugs ii declaring (R. BA 40): The Washington court also was contrary to’ Choctaw, Okla- homa & Gulf R. Co. v. Mackey, 256 US 531, 65 L.Ed. 1076 (1921), (sustaining a state real property tax on the lessee’ s rail- road right of way over Indiaw-lessor’s land) and to Oklahoma Tax Commission.v. Texas Company, 336 US 342, 93 L.Ed. 721 Ieesoefl (sustaining 4 state ad valorem tax: and excise. tax ona - lesseefs mineral rights in allotted and restricted Indian lands.) 5.' Whether the State of Washington Assuming Jurisdic- tion Is In Conflict With Federal Law. Ye } This issue was presented to the Washington Supreme Court AR. AB. p. 50), but it did not reach the issue. tg By Public Law 280, Chap. 505, 67 Stat. 589 (1953). | Congress consented to any state assuming criminal and civil - jurisdiction over Indians.- Thereafter, Washington legislature amended its laws by Chap. 240, Enacted Laws 1957, Amended Chap. 36, Laws of 1968, enabling the state to assume. criminal and civil jurisdiction over Indians and their lands, upon their consent and proclamation by the governor of Washington, sub- ject to the restrictions in 28 USC $1360. In 1958, the Tulalip Tribes so consented and the governor > Td 7 sg . that effective J uly 7, 1958 the criminal. and . civil ‘ae of the State of Washington shall apply to the Tulalip Indian people,. their reservation, territory, - lands and. country, and all persons - ‘being and — - therein.” | Under the restriction of the state jurisdiction in 28 USC § , 1860, among others, the restricted lands cannot. be encumbered, - ‘nor can the state act inconsistent with any federal regulation. . There is no federal . regulation covering the case at bar. ' 21— : -6. Whether a tribal wisi inconsistent with a county zoning ordinance controls. : This issue was presented to the Supreme Court of Wash- ington (R. AB p. 50), Mut it did not decide the issue. The Superior Court, however, in its order granting summary judg- ment, stated (R. Appendix A-): . that in the exercise of the jurisdiction over said : ‘ss by the United States of America and pursuant to the Indian Reservation Act (48 Stat: 984; ‘25 USC 461, . et seq.), the Tulalip Tribes of Washington have the power ' tothe exclusion of the County of Snohomish to regulate the ‘use of said tribal property and have done so by its Ordinance No. 29 allowing the use thereof as a sanitary land fill.” This-is a question of first impression, but the Congress and Washington legislature’ have; nigel decided’ it. Both —- “7 A federal aialinn ie the use. Py Arust or restricted property takes precedence over a state’ - a tion of such property. “2. However, 2 state’s regulation of the use of trust or restricted property takes precedence over any tribal ordin- ance inconsistent with the state’s regulation.” r. | | The trial court’s decision on this point is clearly i in conflict. - Notwithstanding, its decision i is contrary to William v. Lee, , 858 US 217, 3 L.Ed, 2d 251 (1959)} holding a non-Indian could ~~ not sue Indians in state courts where the Indians have estab- lished their’ own eourts arid-have not assented to the jurisdiction . of any state that has consented to such jurisdiction. If, however, _, the state assumed jurisdiction and the Indians consent ‘thereto, the Indians are within the state ae notwithstanding any of their — : 22 eS TED U ERT TNT een. TDON DINITO Name Senn werent en wet rete rene we sennern] In addition, Twin Cities Chippewa Tribal C. v. Minnesota Chippewa Tribe, 370 F.2d 529 (8th Cir. 1967), held that a — ' controversy between individual Indians and a tribal organiza- tion concerning the tribal constitution and by-laws was not — ' within the federal -jurisdiction.The individual Indians asserted district. court jurisdiction by the Indian Reorganization At, 25 7 USCA § 477. The Court at p. 531 answered: . This argument is unacceptable, as a close reading of ae Act reveals its. limited scope. The Act merely provides : the authority and procedures whereby an ‘Indian tribe may organize itself and adapt a tribal constitution and by-laws. The Act makes no mention of a in’any sense and | such is not within its purview...” :, In the case at bar,-the Tulalip Indians have Cinna, to the civil and criminal laws of. the. State of Washington, which has assumed such jurisdiction. |. %.. Whether the lease in question, being outside - state . zoning laws, is a denial of equal protection. Petitioner herein argued on appeal to the Washington | State Supreme Court that to hold the Tribal Ordinance No. 29 to. preempt the County Zoning Ordinance would be a denial of equal protection of the laws. (R.AB. pp 66-67). The Supreme. Court held, “Where there is no jurisdiction, there can. be no ‘denial of equal protection. of the laws.” This i is a question of first i impression. The Tulalip a are citizens of the United States and of the State of Washington. 8 USCA 1401(2). Accordingly, they are entitled, as are all . citizens, to equal protection of the laws that are for the general welfare under the “police powers”. Within Article 1 § 12 Wash- ington State Constitution; XIV Amendment of the United States Constitution and Article 4 § 2 of the United States Constitution. ap. 23 % i CONCLUSION fae | The petitioner herein has-raised several reasons for grant- | ing. this Writ, but state zoning of tribal lands casts its shadow . on the face. of this nation for the first “ime, Years of litigation left it buried. Only commerce knowing no jurisdiction raised - this question, to light. The same commerce as in all states. Other states will be presented with this question. The case before the bar will guide those. For this reason and reasons hereinbefore stated, the petitioner —_ prays that ‘the Writ be granted. _ ou \ ff. LA. 24 — = Kum = APPENDIX A. Coote >" IN THE SUPERIOR COURT OF THE STATE OF | WASHINGTON FOR SNOHOMISH COUNTY | SNOHOMISH COUNTY, a municipal corporation, Plaintiff, | 3 | vs. - No. 81760. - SEATTLE DISPOSAL COMPANY, : ORDER GRANTING _Defendant, | SUMMARY JUDGMENT. THE TULALIP. TRIBES, a Federal corporation, : _ Intervener-De fendant. THIS MATTER coming on regularly for hearing before the above entitled. court this 30th day of April, 1965, with the Honorable Charles R. Denney, presidirig, on the motion of the ~~defendant, SEATTLE DISPOSAL COMPANY, and for inter- vener-defendant, THE TULALIP TRIBES, for summary judg- ment with the County of Snohomish being represented by Robert Schillberg, its prosecuting attorney, and Sten Dagg, its deputy | prosecuting attorney, the SEATTLE DISPOSAL COMPANY - by Julian C. Dewell for Chadwick, Chadwick & Mills, its attor- ney, and the TULALIP TRIBES by Lewis A. Bell, of Bell, - Ingram & Smith, its attorneys, and the court having considered the records and files herein together with the briefs of the re-. spective partigs and the motions and affidavits filed in support — of the Motion for Summary Judgment, and having heard argu- ment at length by respective counsel finds that there ‘is no genuine issue in said cause as to any material fact and that the aforesaid moving parties, SEATTLE DISPOSAL COM- PANY and THE TULALIP TRIBES, are entitled to a judg- ment of dismissal of this cause as a matter of law for the. > *| | vr” ? - ik . * ‘ | | reason that Allotments No. 91 and 92 of the Tulalip Indian’ Reservation located in Snohomish County, Washington, are | tribal lands of the Tulalip Tribes of Washington, a duly organ- ot . ized Indian tribe created and existing pursuant to Sec. 16 of 4 the Indian Reorganization Act (48 Stat. 984; 25 USC 461, et | Seq.) subject to the jurisdiction of the United States and of The Tulalip Tribes of Washington as tribal lands, having been ac- quired thereby by purchase pursuant to Federal law and regu- lation, with title to Allotment No. 91 being taken by the United States in trust for the Tulalip Tribes of Washington, and title to Allotment No. 92 being taken in the name of The Tulalip Tribes of Washington: subject to restrictions against alienation as set forth in 25 USC 403-A2; that by reason of said trust status and restrictions against alienation no jurisdiction was - vested over the use of said Allotments No. 91 and 92 in the State of Washington or any of its governmental agencies, in- cluding the County of Snohomish, under Public Law 208 of the United States, 25 USC 1360, or the laws. of the State of Wash- | ington, RCW 37.12.050 and 37.12.060; that the zoning ordi-"’ nances of the County of Snohomish constitute an encumbrance upon said trust and restricted lands of THE TULALIP TRIBES by operation of law and constitute a regulation of the use of said trust and restricted lands, and said Allotments No. 91 and 92 are thereby by definition contained in the aforesaid 25 USC 1360 and RCW 37.12.060 exempted from the operation of the : jurisdiction of any governmental, division deriving its powers ce ~ . from the State of Washington; that in the exercise of the juris- . ' . diction’ over said lands by the United States of America and ' | pursuant to the Indian Reorganization Act, (48 Stat. 984, 25 USC 461, et seq,), the Tulalip Tribes of Washington have the power to the exclusion of the County of Snohomish to regulate the use of said tribal property and have done so by its Ordinance AQ No. 29 allowing the use thereof as a sanitary land fill; that the | - zoning ordinances of the County of Snohomish requiring the securing of a conditional use permit from the Board of Adjust- ment of said county as a condition precedent to use of said tribal land by the operation of such: a sanitary land fill are inconsist- ent with the Treaty of Point Elliot (Jan. 22, 1855, 12 Stats. | 928), Federal laws and regulations of the United ‘States made pursuant to said laws, as well as constituting an encumbrance “upon said tribal lands by operation of law. | | Now, THEREFORE, IT'IS HEREBY ORDERED, AD- _ JUDGED AND DECREED, that the motion of THE ‘TULALIP | TRIBES as intervener defendant and of the SEATTLE DIS- POSAL COMPANY as defendant for summary judgment in the-above entitled matter be and the same is hereby granted and the above entitled action be and the same is hereby dis- missed with prejudice : me without cost to any of ‘the pare : hereto. : | ‘DONE IN OPEN COURT this 14th day of May, 1965. s/ Charles R. Denney + | Judge _ Copy received and Notice | -of Presentment waived: ~ | a s/ Julian C. .Dewell Attorney for Defendant May 14, 1965 . Approved only as to formand Notice ‘of Presentment waived: s/ Sten ‘Dagg Attorney for Plaintiff A-3 ¢ sastshdhcm! 1 sts NE AAE RED AO opinion, enjoy any of the immunities and privileges which may by federal law have been conferred upon its Indian wards. I would, therefore, reverse. - _. HALE, J. | _ >. We concur in ‘the result of the dissent, : HAMILTON, J. : . WEAVER, J. IN THE SUPREME COURT OF THE ‘STATE OF | - WASHINGTON ' SNOHOMISH COUNTY, | /... No. 38550 _* Appellant, ee os cue | ie te _ SEATTLE DISPOSAL | “ORDER... vs ‘COMPANY et al., — _.| DENYING PETITION Respondents, FOR REHEARING | The Court having considered the appellant’s petition for a. . rehearing herein: and a majority of the J udges being of the _ opinion that it should be denied, rt 3 _ IT IS ORDERED that the petition be and it is hereby denied. Dated this 2nd day of June, 1967. : By the Court: | a : - ae R C. FINLEY : = _ Chief Justice 10 W.D.2d 645 : _ A-17 IN THE SUPREME COURT OF THE STATE OF ‘ WASHINGTON SNOHOMISH COUNTY, a municipal corporation, : | or _ REMITTITUR ~ : on -' | > No, 88550 SEATTLE DISPOSAL , , | COMPANY and ore _ |Snohomish County No. 81760 TULALIP TRIBES, | a federal corporation, Respondents. . The State of Washington to: The Superiat ¢ Court of the State of Washington in and for Snohomish County. This is to certify that the opinion of the Supreme Court of the State of Washington filed on March 9, 1967, became the ~ judgment of this court in the above entitled case on June 2, 1967. This. cause is remitted to the superior court from which. the appeal was taken for further proceedings in accordance with " the attached true copy of the opinion. ) Pursuant to Rule 55 on Appeal, costs are taxed as follows: . ' ( ° Two hundred ninety-four and 03/100 dollars ($294. 03) ~«@ in favor of respondent Seattle Disposal Company and One hun- .. dred sixty-six and 03/100 dollars ($166. 03) in favor of respond- ent The Tulalip Tribes and against appellant, Snohomish County. The Petition for Rehearing was denied by an Order en- tered bn June 2, 1967. ec: Hon. Robert E. Schillberg : Mr. Henry Templeman, Deputy Cradwick, Chadwick & Mills A-18 — I RR ENN MI RS PORTER ARM DOE ER NTI A ad bales = CEA RE ERO STAD t SaE eot pe o } * Bell, Ingram & Smith Mr. Lewis A. Bell Court Reporter’ — (SEAL) . | _.. IN TESTIMONY WHEREOF, I have hereunto ‘set my | bend and affixed the seal of said Court at Olympia, this 5th "day of June, A.D. 1967, . WILLIAM M. LOWRY Clerk of the Supreme Court, State of Washington. nn mare APPENDIX B TREATY OF POINT ELLIOTT Treaty. of Point Elliott, 12 Stat. 927; (1859). | That’ said treaty provided, among other things, in Article III thereof as. follows, to-wit: = There is also reserved from out the lands hereby ts the amount of thirty-six (36) sections, or one township of land, on the northeastern shore of Port Gardner, and north "of the mouth of the Snohomish River, including Tulalip Bay and beforementioned Quil Ceda Creek, for the purpose of establishing thereon an agricultural and industrial school, as hereinafter mentioned and. agreed and with a view of — ultimately drawing thereto and settling thereon all the Indians living west of the Cascade Mountains in said terri- tory. Said treaty further ijvtiaaies in Article VII pee as fol- lows, to-wit: The President may hereafter, when in his opi ion the interests of the territory shall require and the welfare of the said Indians be promoted, remove them from either or all of the special reservations hereinbefore made to the said general reservation, or such other suitable place within said . territory as he may dem fit, on. remunerating them for their improvements and the expenses of such removal, or “may consolidate them with other friendly: tri or bands; - and he may further, at his discretion, cause te whole or any portion of the lands hereby reserved, to‘be surveyed - into lots, and assign thé same to such individuals or families as are willing to avail themselves of the privilege and will ‘locate on the same as a permanent home on the same terms and subject to the same regulations as are provided in the Sixth Article of the treaty with the Omales, so far as the- — same may be applicable. a — ao ¢ Sixth Article of the Treaty of mates 16, 1854, with the Omahas: : :, FF . . 7 The President may, from time to time, at his discretion, “s. eause the whole or such portion of the land hereby reserved, i, as he may think proper, to be surveyed into lots, and to assign to such Indian or Indians of said tribe as are willing © to avail of the privilege, and who will locate on the same as a permanent home, if a single person over twenty-one (21) years of age, one-eighth of a section; to each family of two, -one-quarter sections; to. each family of. three and not ex- ceeding five, one-half section; to each family of six and not exceeding ten, one section; and to each family of over ten -in- number, one-quarter section for every additional five members. And he may prescribe such rules and regulations as will insure to the family, in tase ofthe death of the head. - . thereof, the possession and enjoyment of such permanent | home and the improvements thereon. And the President. may, at any time in his discretion, after such -person or family has made‘a location on the land assigned for a per- - “manent home, issue a patent to such person or family for - such assigned land, conditioned that the tract shall not be - aliened or leased for a longer term ‘than two yee ay a 25 USC § 403a. Lease of lands on Port Madison and Snohomish or | Tulalip Indian Reservations i in Washington Notwithstanding any other provision of laws any. Indian - lands on the Port Madison and Snohomish or Tulalip Indian - Reservations in the State of Washington, may be leased by the Indians with the approval of the Secretary of the Interior, and upon such terms and conditions.as he may prescribe, for a term not exceeding twenty-five years: Provided, however, That such leases may provide for renewal for an additional term not ex- -B-2 * ceeding twenty-five years, and the Secretary of the Interior is’ hereby authorized to prescribe such rules and regulations as may be necessary to carry out the provisions of this section. Oct 9,.1940, ¢. 781, 54 Stat? 1057. | | 25 USC bP inig hao -. § 403a—1. Sale or partition by owners of interests in allotted, . cud 2 ee lands in the Tulalip Reservation; termination of Federal title, trust, and restrictions Any owner of an interest in any tract of land in the Tulalip © _ Reservation, ‘Washington, in which any undivided interest is now or hereafter held in trust by the United States for an In- dian, or is now or hereafter owned by an Indian subject to re- strictions against alienation or taxation imposed by the United ' States, may commence in a State court of competent jurisdic- tion an. action for the partition in kind or for the sale of such land in accordance with the laws of the State. For the: purpose of any such action the Indian owners shall be regarded as vested with an unrestricted fee simple title to the land, the: United States-shall not be a necessary party to the proceeding; and any partition or conveyance of the land pursuant to the proceedings shall divest the United States of title to the land, terminate the . Federal trust, and terminate all restrictions against alienation ° or taxation of the land imposed by the United eennep. June 18, 1956; c. 400, § 1, 70 Stat. 290. — 25 USC § 403a—2. Sale of lends by Tulalip Board of Directors; termina- porn tion of Federal trust and restrictions; disposition of» proceeds - Notwithstanding the provisions of the constitution and char- ; “BS } — aes ter ea the ‘Tulalip Tribes of the: Tulalip Reservation, any lands | that are held by the United States‘in trust forthe Tulalip Tribes, or that are subject to a restriction against alienation or taxa- tion imposed. by ‘the United’States, or that are on-and after J “ay See 1956 acquired by: the-Tulalip Tribes, may -be-sold by ~~ ] *the alip Board of Directors, with the consent of the Secre- tary of the Interior, on such terms and conditions as:the Tulalip - R Board of Directors may prescribe, and such sale shall terminate "the Federal trust or restrictions against. alienation “or taxation of the land: Provided, That the proceeds from the sale of any - tribal lands acquired otherwise than by purchase shall be de- posited i in the Treasury of the United States to the credit of thé Tulalip Tribes and shall ‘not be expended until otherwise specif- ically — by Congress. sas 18, 1956, c. 400, § 2, 70 Stat. is 290. 28 USC ee § 1360. State civil jurisdiction in actions to which Indians ! “ are parties (a) Each of the States or seriuaetes listed i in: ‘ie following table shall have jurisdiction’ over civil.causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed opposite the name of the State or Terri- ' tory to the same extent that such State or Territory has juris- diction over other civil causes of action, and those civil laws of such State or Territory that are of general application, to private persons or private property shall have the same force and effect _ within such Indian country. as they have elsewhere within the State or Territory: State or Territory of . - Indian country affected Alaska...ccc.-c2esc---n2-------All Indian country ‘within. the Territory | | } ar od are California Laplvlandadsannesians siateamai All lattes seanlies within the State Minnesota. i acnanlaseensanniats All Indian country within the State, except | | the Red Lake Reservation Nebraskan: eieieks All Indian country within the State ia casera ileanadeda All Indian country within the State, except : | the Warm Springs Reservation Wlaeentlie.. ssc ssuaneicuibe .-All Indian country within the State (b) Nothing in this section shall authorize the alienation, encumbrance, or taxation: of any real or personal property, in-. cluding” water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United . States or is subject to a restriction against alienation imposed ~ . by the. United States; or shall authorize regulation of the use of such property in a manner inconsistent. with any Federal treaty, agreement, or statute ‘or with any regulation made pur- _ suant thereto; or shall confer jurisdiction upon the State to ad-: __judicate, in probate proceedings or otherwise, the ownership or right to possession of such property or any interest therein. _ (¢) Any tribal ordinance or custom heretofore or hereafter adopted by an Indian tribe, band, or community in the exercise. ef any authorif? which it may possess shall, if not inconsistent ‘ with any applicable civil law of the State, be given full force and effect jn the determination of civil causes of action pursuant to this section. Added Aug. 15, 1958, c. 505 § 4, 67 Stat. 589, amended Aug. 24, 1954, c. 910, § 2, 68 Stat. 795; Aug. 8, 1958, Pub.°*L. 85-61, § 2, 72 Stat. 545. ’ mn INDIANS—CRIMINAL OFFENSES AND CIVIL CAUSES— STATE JURISDICTION — . See Legislative History, p.2409 CHAPTER 505 — PUBLIC. LAW 280 ee B-5- a — (H.R. 1066) An Act to confer jurisdiction on the States of Cali- fornia, Minnesota, ‘Nebraska, Oregon, and Wisconsin, with respect to criminal offenses and civil causes o@ action com- — mitted or arising on Indian reservations within such States, and for other purposes. Be it enacted by the Senate and House of epvaialibalives of the United States of America in Congress assembled, That: | Chapter 53 of title 18, United States Code,” is hereby amended by inserting at the end of the chapter analysis pre- ceding section 1151 of such title the following new item: : “1162. State jurisdiction over offenses committed by or against Indians in the Indian country.” 3 Sec. 2. Title 18, United States Code, is hereby amended’ by y inserting in chapter 53 thereof immediately after section 1161 — a new section, to be designated as section 1162, as follows: “§ 1162. State jurisdiction over offenses committed by or ~ against Indians in the Indian country | : “(a). Each of the States_listed-in the following table shall have jurisdiction over offenses comrhitted by or against Indians -in the areas of Indian country listed opposite the name of the State to the same extent that such State has jurisdiction dver offenses committed elsewhere within the State, and the criminal laws of such State shall ‘have the same force and effect within such-Indian country as they have elsewhere within the State: “Stateof ‘Indian country affected California, ......................---..---All Indian country within the State Minnesota............:......-......--All Indian country within the State, except‘ the Red Lake Reservation | Nebraska ........ winch Indian country. within the State | B-6 gee ate Oregon Se | country’ within the State, : cae aoa > except the Warm Springs Reservation Wp ORIN a. aeninecninsieeceeee’- All Indian country within the State, except the Menominee Reservation ii (b) Nothing i in this section ‘shall authorize the alienation, encumbrance, or taxation of any. real or personal property, = including water rights, belonging to any Indian or any Indian — _ tribe, band, or community that is held in trust by the United States or is subject to a restriction agdinst alienation. imposed .. by the United States; or shall authorize regulation of the use © 2 _of such property in a manner inconsistent with any Federal’ treaty, agreement, or statute or with any regulation made pursuant thereto; or shall deprive any Indian or any Indian ~ tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreenient, or statute: with re- spect to hunting, trapping, or fishing or the control, Bommsing, or regulation thereof. ' ___-——_-_#{c) - The provisions of obits 1152 =" 1153 of this ‘isha shall not be applicable within’ the areas of Indian country listed 3 in ‘sub-section | (a) of this section.” See. 3. Chapter 85 of title 28, United States Code, is . hereby amended by inserting at the end of the chapter eee preceding section 1 1331 of sucli title the following new item: -1360. State civil jurisdiction in actions to which Indians are parties.” ; Sec. 4. Title 28, United States - Code, i is biiias ea . by inserting in chapter 85 thereof immediately after section 1359 a new section,-to be designated as section 1360, as follows: “s 1360. State civil jurisdiction i in actions to which Indians - are parties , ' BT (a) Each of the States listed in the following table shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the dreas of Indian country listed opposite the name of the State to the same™ extent that stich State has jurisdiction over other civil gauses of action, and those civil laws of: such State that are. of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State: es | Indian country affected’. “State of . } ; California .......:...------- canal All Indian country within the State - Minnesota ........-- cianheiemnis All Indian country within the State, ae es except the Red. Lake Reservation, Nebraska... .c:-:ssecs-s-e------All Indian cogiittry: w:'in the State Oregon oo eeeeeeeeeeseesseeeeeAll Indian:country within the’ State, ; : _ except the Warm Springs Reservation _ Wisconsin .........------+-----------+- All Indian country within the State, tn le except the’ Menominee Reservation ~ - (b) “Nothing in ‘this section shall authorize the alienation, ‘encumbrance, or taxation of any real or personal . property, » ~ including water rights, belonging to any Indian or any Indian tribe, band, or community: that is held’in trust by the United - States. or is subject to a restriction against alienation imposed _ by the United States; or shall authorize regulation of the use ~ of such property in.a manner inconsistent with any’ Federal treaty, agreement, or statute or with any regulation made 4 ad pursuant thereto; or shall confer jurisdiction upon the State yz: 7 to adjudicate,-in probate proceedings or otherwise, the owner~’ ship or right to possession of such property or any interest _ therein. © : Ma , | es “(¢) Any tribal ordinance or custom heretofore or here- ieee x B-8 | Fe SEP ERNIGIS PBEM Coat after adopted by an Indian tribe, ‘band; or community in the exercise of any authority which it may possess shall, if not ae ___inconsistent_with_any applicable ‘civil law: of the State, be | given —_ full force and effect in. the determination of civil causes of action pursuant to. this section. 4 - ~ See-5. “Section 1 of the. Act of October 5, ‘1949 (63 Stat. 705, ch. 604), is hereby repealed, but such repeal shall not affect any at heretofore instituted under’ that section. - See. .6. Notwithstanding the. provisions, of any Enabling | Act for the admission of a State, the consent of ‘the United States is hereby given to the people of any State to amend, where. necessary, their State constitution or existing statutes, as the case may be, to remove any legal impediment to the _ assumption of civil and criminal jurisdiction in accordance with ’ the provisions of this Act; Provided, That the provisions of ‘this * Act shall not become effective with. respect to such assumpticn of jurisdiction by any such State until the people thereof have : _ appropriately amended their State constitution or atatujes as the case “may be. - . aid Sec. 7- The consent of the United States is hereby, viven to any other State. not having jurisdiction with respect to - criminal offenses or civil causes of action, or with respect to both, as provided for in this Act, to assume. -jurisdiction at _gucli time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof. : Approved August 15, 1953. ‘Bg oe 25, USG | g° 477. Incorporation. of indian tribes; charviny ratification’ by election ' The. Secretary of the Interior may, ‘upon petition by at least one-third of the adult Indians, issue a charter of incorp-. * oration to such tribe: provided, That such charter shall not become operative until ‘ratified at a special election by a: * majority vote of the adult. Indians living on the reservation. Such charter: may convey to the incorporated tribe the power — - to purchase, take by gift, or bequest, or otherwise own, hold, : ‘, manage, operate, and dispose of property of every description, ‘veal and personal, including the power to purchase restricted Indian lands and to issue in exchange therefor interests in corporate: property, and such further. powers as may be in- cidental to the conduct of corporate business, not inconsistent with law, but no authority shall be granted to sell, mortgage, or lease for a period exceeding tén years any of the land in- eluded in-the limits of the reservation. Any charter so issued ‘ shall not be revoked or surrendered except by Act of Congress. June 18, 1984, c. 576, § 17,, 48. Stat. 988. 25 USC | § 231. Bisleticoment of State lowe affecting health snd education; entry of State employees on Indian lands ‘The Secretary of the Interior, under . such | rules. and alain as he may prescribe, shall permit the agents and . employees of. any State to enter upon Indian tribal lands, res-. ervations, or allotments therein (1) for the purpose of making inspection. of health and educational conditions and enforcing ‘sanitation and quarantine regulations or (2) to enforce the penalties of State compulsory school attendance laws against. | B-10 | PR si tyes - 2 ’ ‘ a rs M ’ = = ~ + ye NRIRO I me seein CIE OO COG OO, Indian children, dui parents, or other persons in loco parentis © a | except that this “subparagraph (2): shall not apply to ‘Indians : of any tribe. in which a duly constituted governing body exists | . until such body has adopted. a resolution consenting to- such ' application. Feb. 15, 1929, c.216, 45 Stat. 1185; ; Aug. 9, 1946, e. 980, 60 Stat. 962. ? 7 7 “8 USC § 1401. : Nationality & Necwealieation - ~ Nationals we citizens of United States at birth | (a) The following shall be nationals and citizens of the United | States at birth: vine i ' (2) a person born in the United States to a sabia oft | an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, : “That the granting of citizenship under this subsection shall not . ‘in any manner impair or otherwise affect the right of such ial to tribal or other property; : : - CHAPTER s712R.CW.) INDIANS AND INDIAN LANDS—JURISDICTION | 87. 12.010 Assumption of criminal and civil jurisdiction by state. The state of Washington hereby obligates and binds: itself to assume criminal and civil jurisdiction ‘over Indians and. In- dian territory, res¢rvations, country, and lands within this state _ in accordance with the congent of tlie United States given by’ the act of August 15, 1953 (Public Law 280, 83rd Congress, 1st Session); but such assumption of jurisdiction shall not apply to Indians when: on their tribal lands or allotted lands within _ . an established Indian reservation and held in trust by the United . _ , States or subject to,a restriction against alienation imposed by . the United States, unless the provisioris of RCW 37.12.021 have been invoked, except for the following: _; . a Bl - ° EARNER INDRA bint iS eR O Nt Cd IMO gf ae rei ab gee - ° serch ene RETR TED ROLE INEPT KILOS LOLOL EAPO I AE aces. Peat af: gp ye ere § 477. tndeiiniciiod of Indian tribes; charter; ratification ae -. by election ”. The Secretary of the interior may, upon petition by. at least one-third of the adult Indians, issue a charter of incorp- “oration to such tribe: provided, That such ‘charter ‘shall not become operative until ratified at a special election by a majority vote of the adult Indians living on the. reservation. - Such charter may convey ‘to the incorporated tribe the power : ' to purchase, ’ take by gift, or bequest; or otherwise own, hold, ’ manage, operate, and dispose of property ‘of every description, * real and personal, including the power: to purchase restricted Indian. lands and to issue in exchange therefor interests in ~ corporate property, and such further powers as. may be in- ' cidental to ‘the conduct of corporate business, ‘not inconsistent. with law; but no authority shall be granted. to sell, mortgage, & or lease for a period exceeding ten - years any of the land in- - ' shall not be revoked or surrendered except by Act of Congress. | cluded in the limits of the reservation. Any charter so issued .. June 18, 1934, c. 576, § 1, : 48 Stat. 988. ’ regulations as he may prescribe, shall permit the agents and ' 25 USC ’ § 231. Enforcement of State laws affecting | health and liad - entry of State employees on Indian lands... The Secretary of ‘the Interior,. under such rules ‘and employees of any State to enter upon Indian tribal lands, res- MN 6S or allotments therein (1) for the purpose of making tion of health and educational conditions and_enforeing santtvtion and quarantine regulations or (2) to. enforce the: penalties of State compulsory school attendance laws against B-10 . Indian: children, and parents, or other persons in loco parentis except that this subparagraph (2) shall not apply to Indians _ of any tribe in which a duly constituted governing body exists “\. until such body has adopted a resolution consenting to such ; \. application. Feb. 15, 1929, ¢.216, 45 sasie 1185; Aug. 9,. 1946, ~~ @, 980, 60. Stat. 962. 8 USC | ey Retr aay aot ~ § 1401." Nationality & N en — Nationals ‘and citizens of United States at birth (a) The following shall be nationals and citizens of the United 2 States/at birth: : | (2) a person: born in the United States to a member of an aioe Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect ‘the right of such ee to tribal or other property; | _-- CHAPTER 37.12 R.C.W. | on INDIANS. AND INDIAN LANDS—JURISDICTION | 37.12.010.. Assumption. of criminal and civil jurisdiction: by state. The state of Washington hereby obligates and binds itself to assume criminal and civil ‘jurisdiction over Indians and In-- dian territory, reservations, country, and lands within this state in accordance with the consent of the: United States given by the act of August 15,°1953 (Public Law 280, 83rd Congress, ist Session), but such assumption of jurisdiction shall not apply to Indians when on their tribal lands or allotted lands within — an established Indian reservation and held in trust by the United. _ States or subject to a restriction against alienation imposed by the United States, unless the provisions of RCW 37.12. 021 have’ been invoked, except for the following: \ . ; B-11 a Compulsory school attendance; (2) Publie assistance; (3) Domestic relations; ; oF (4) ‘Mental illness; — : (5) Juvenile delinquency; *« _ . (6) Adoption proceedings; (7) Dependent children; and’ — (8) Operation of motor vehicles upon ‘the public streets; ss alleys, roads and highways: Provided further, That Indian tribes that petitioned for, were granted and became subject to state ' jurisdiction pursuant to this chapter on or before March 13, 1963 shalt remain subject. to state civil and criminal jurisdiction as if chapter 36, Laws of 1963 had not been enacted. — °37.12.021 Resolution of ‘request — Proclamation by governor, 1963 act. Whenever the governor of this state shall receive from the majority of any tribe or the tribal council or other govern- - ing body, duly recognized by the Bureau of Indian Affairs, of any Indian tribe, community, band.or group in this state a resolution expressing yits . desire that its people and lands be ~ subject .to the criminal and. civil jurisdiction of the state of Washington. to the full extent authorized | by federal law, he. ‘shall issue within Fity days'a proclamation to the effect that such jurisdiction shall apply to@li,Indians and all Indian terri- . tory, reservations, country, and lands of the Indian body involved to the same extent that«this state exercises civil and criminal ‘Jurisdi tion or both elsewhere within the state: Provided, That jurisdiction assumed pursuant. to this section shall nevertheless , be: subject to the limitations set forth in RCW 37.12.960. 87.12.0380 Effective date. for assumption of jurisdiction — Criminal causes. Upon March 13, 1963 the state of Washington - BJ2 ele a een - ghall assume jurisdiction over offenses as set forth ‘in RCW | 0 37.12.010 committed by or against Indians: in the lands pre- scribed in RCW: 37.12.010 to the same extent that this state has jurisdiction over offenses committed elsewhere within this state, ~ and such criminal laws of this state shall have the same force and effect within.such lands as they have elsewhere within this state. ts sane ! 37.12.040 Civil causes. Upon March 18, 1963 the state of Washington shall assume jurisdiction over civil causes of action as ‘set forth in RCW 37.12.010 between Indians or to which | Indians are parties which arise in the lands prescribed: in RCW 87.12.010 to the same extent that this state +has jurisdiction over other civil causes of action and, except as otherwise pro- vided in this chapter, those civil laws of this state that are of _ general application -to private persons or private property shall have the same force and effect within such lands as they have ~ - elsewhere within this state. 37.12.050 State’s jurisdiction limited by federal law. The. jurisdiction. assumed pursuant to this chapter shall be subject to the limitations and provisions of the federal act of August 15, 1953. (Public Law 280, 83rd Congress, 1st Session). 37.12.060. Chapter limited in application. Nothing in this chap- ‘ter’ shall authorize the alienation, encumbrance, or taxation of, any real or personal property, including water rights and .tide- lands; belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use. of such property in a manner inconsistent with any. federal treaty, agreement, or statute or with any regulation. made pursuant thereto; or ‘ pag ; shall confer jurisdiction upon the state to adjudicate, in probate — proceedings or otherwise, the ownership or right to possession | of such property or any interest therein; or shall deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under federal treaty, agree» ment, statute, or executive order with respect to Indian land. grants, hunting, trapping, or fishing or the control, licensing, . or-regulation thereof. Test “ 37.12.070 ‘Tribal ordinances, customs, not inconsistent . with law applicable in civil causes. Any tribal ordinance or custom heretofore or hereafter adopted by an Indian tribe, band, or community in the exercise.of any authority ‘which it may possess shall, if not inconsistent with any applicable civil law of the . state, be given full force and effect in the determination of civil causes of action pursuant to this section. CONSTITUTION OF WASHINGTON Article XXVI— Compact with the United States . ‘The following ordinance shall be irrevocable without the -eonsent-of the United States and the people of this state:— First. That perfect toleration of “regilious sentiment shall ° be secured and that no inhabitant of this state shall ever be molested:in person or property on account of his or her mode of religious worship. © se Second. That the, people inhabiting this state do agree and declare that they forever disclaim all right and title to the un- appropriated public lands lying within the boundaries of this state, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the titlé thereto shall have been extinguished by the United States, the same B-14 - t) o \ shall be and remain subject*to the disposition of the United ‘States, and said Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States and — that the lands belonging to citizens of the United States resid- ing without, the limits of this state shall never be taxed at a higher rate than the lands belonging to residents thereof; and . « - that no taxes shall beimposed by: the state on lands or property therein, belonging to or which may be hereafter purchased by ‘ ’ the United States or reserved for use: Provided, That nothing in this ordinance shall preclude the state from taxing as other. lands are taxed any lands owned or held by any Indian who has severed his tribal relations, and has obtained from the United States or from any person a title thereto by patent or other grant, save and except such lands as have been or may be grant- ed to any Indian or Indians under any act of congress contain- | ing a provision exempting the lands thus granted from taxation, which exemption shall continue so long and to such an _extent——— ‘as such act of congress- may prescribe. © Third. The debts and liabilities of the Territory of Wash- _ and payment of the same are - hereby assumed by this Fourth. Provision. shall be made for the eotelilidageit and maintenance of systems of public schools. free from sectarian control which shall be open to all the children of said state. CONSTITUTION OF WASHINGTON Article 1, Section 12. Special Privileges and Immunities ____ Prohibited. No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal; privileges or im- ‘ B-15 atl munities which upon the same terms shall not equally belong to all citizens, or ' corporat ions. UNITED STATES CON: STITUTION | AMENDMENT XIV. Section 1. Citizenship rights not to _ | abridged by states. | All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law. which shall abridge the privileges or - immunities of citizens of the United States; nor shall any State ; deprive any person of life, liberty, or property, without . due’ process of law; nor deny to any person within its jurisdiction the equal -protection of the laws. ——-- : _— Article IV, Section 2. ~ Privileges and immunities ; . Seatibven The Citizens of each- State shall -be entitled to all Privileges | and Immunities of Citizens in the several States. TULALIP TRIBAL CHARTER Article: VI—Section 1 (c)—Powers of “the Board ‘of . Directors—to approve or veto any sale, disposition, lease, or encumbrance: of tribal bes, interests in lands, or other tribal assets. ' Article VI—Section 4 (1)—Powers of the Board of Directors—To safeguard and promote the peace, safety, morals, and general welfare of THE TULALIP RES-_ . ERVATION by. regulating the conduct of trade and the _ use and disposition of property upon the Reservation, pro- vided that any ordinance directly affecting nonmembers _ of THE TULALIP TRIBES shall be subject to review by . the oe. of the Interior. B-16. Article VIII—Section 12-Purchase of Land by Tribes | —Tribal funds. may be used, with the consent of the Secretary of the Interior, to acquire land under the fol- — » lowing conditions:. (4) land within the TULALIP RES- | ERVATION or adjacent to the boundaries thereof which is not gow in Indian ownership, may be purchased by or © for * TULALIP TRIBES; (b) restricted land which is in heirship status at the time of the adoption and approva] of this constitution may be purchased by or for “the tribes, with the consent of: all the adult heirs and the . legal guardians of minor heirs, payment therefor to be made as aie be agreed upon. TULALIP TRIBES | | _ | ORDINANCE. No. 29 | oe | BE IT ENACTED by the Board of Directors of the Tulalip Tribes of Washington pursuant to the Indian’ Reorganization Act of June 18,1934 (48 Stat. 984, 25 USCA et seq) as amended and authority vested in it by Article VI, Section (1) of the Constitution and By-Laws for. the Tulalip Tribes that in order to preserve and protect the public health, safety and general welfare a sanitary land fill ‘garbage and refuse operation may be’ conducted within the boundaries of the Tulalip Reservation of Washington on the following described Tribal lands, to-wit: Government Lots 8, 9, 10, 11, 12, 18, Southeast 14 of the Southwest !/, Southwest 1/4, of the Southeast 14, North- east 1/, of the Southeast 14, of Section 32, Township. 30 ‘North, Range 5 E, W.M.; Government Lots 9 and 10 of - Section 31, ‘Township 30 North, Range 5 E., W.M.; Govern- ment. Lots 1, 2 and 3 of Section 1, ‘Township 29 North, Range 5 E., W.M.; all of the,same composing allotments. _ number 91 and 92 entitled respectively Jack Wheeler and . aie Richard Lawrence according to the records of the aber _ B-17 es é ~\ - e 2; _ of Indian Affairs of the Department of the Interior of the United States of America, Snohomish County, Washington. _° BE AND IT IS FURTHER ORDAINED that such san- — itary land fill operations shall be created, operated, and main- tained in conformance: to and compliance with the’ following Specifications, to-wit: : x EXHIBIT A | | OPERATING SPECIFICATIONS | e SANITARY —— FILL 1. FENCES: Se The operating area of the sanitary land fill shall be enclosed by fencing with “chicken wire” mesh fence inorder to confine ‘os and properly Sn the scatter of litter by wind. ss + 2. DIKES: | re _ The active operational site, or at the operator’s option, any larger part or portion or the entire land fill site, shall be_pro-- tected from inundation by tide or river waters by the construc- tion of an earth dike with a top width of not. less than. eight _ (8) feet and a top elevation of at least one (1) foot above the — highest: flood water of record, such dike shall not be constructed closer to the shoreline of Ebey and Steamboat Slough as the same exist at low tide than three hundred (300) feet. Such dike shall be constructed in horizental layers not exceeding two: _ (2) feet i in depth and each layer shall be compacted by bulldozer or other heavy earthmoving equipment or by rolling: Such dike * . must be continuous and constitute a full and complete perimeter | totalling surroundin ig any area of land constituting the active operational site or ‘other areas selected pursuant to ‘operator’ S option. Such‘dike may have within it other dikes known as “cell” B-18 7 e dikes which shall encompass an area of not less than ten (10) acres and which “cell” dikes: shall be. constructed only in such - manner as to enclose-and protect fill material, garbage and rubbish dumped within their confines and to permanently con- - fine the same but’ need not. otherwise be constructed to the specifications of the perimeter and/or outer dikes as above. set forth. In the event ‘land access is provided at any time to the . site the top surface of the outermost dikes shall be maintained in condition’to be traveled by automobile for inspection purposes. — The outer face of /all outer dikes, or dikes on the perimeter which ‘are above specified, shall be protécted by the placement there- . upon of heavy materials not subject to erosion such as concrete, rock, broken. pavement, stone and other similar materials. Dam-— _ age to all dikes by erosion shall be promptly repaired and areas | subject to repeated erosion shall be protected by placement of brush mats. or rock ~~ or sheét piling. rae ; 3. ‘PREPARATORY WORK: Preparatory work shall include clearing of brush and ‘trees within the area upon which the operation will be conducted, _ excavation of a suitable barge mooring slip and entrance channel in the manner and of the nature disclosed by, further exhibit attached hereto and construction of a peripheral dike to protect against possible flooding by ¢ abnormal high tides or high river evens. : 4, TRANSPORTATION:. Refuse shall be trenepadied to the area by tug towed barges with covered loads and unloaded only in the prepared unloading stations at the barge slips in the manner and with the pre- cautions and requirements shown by other exhibits attached hereto and drawings in connection therewith. B-19 a os ROR sie Seki aA ir ht 9 a oO EAMES Lela e . 5. PLACEMENT OF MATERIAL: Garbage, rubbish and refuse shall be placed in heel not paction Shall» be accomplished by spreading and rolling with track type tractors or caterpillars equipped with appropriate _ blades or buckets and of a size not smaller than a Caterpillar D-8 with appropriate blades or buckets. exceeding twenty-four inches (24”) in compacted depth. Com-_ All cartons, boxes, crates and similar containers shall be ‘completely crushed in ‘such manner that no. voids for rat or vermin harborage shall remain in the completed fill. Material” may be placed by area, ramp or trench method at the operator’s option, but the working.face of, the fill shall be kept as small _ operation. The fill will be placed by “advancing cell” method in _ layers of a maximum depth of not more. than eight (8) feet. An additional lift may be similarly placed over said — after the passage of six months’ time, but not before. 6. EARTH COVER: The sanitary fill will be placed s “advancing cell” method, spread and well compacted by bulldozers, with each day’s “cell” as possible and limited to that actually required for efficient completely covered on top and over all edges and face by not . less than six inches (6”) of dirt and cover material and earth. The final layer constituting the top of the eight (8) foot thick- ness shall be covered by not less than one (1): foot of compacted — " earth, and this compacted earth must be placed thereupon within one (1) week after completion of the layer. In the event of a further lift after six (6) month period of time, said further lift shall be in all respects similarly treated as to placement of material and as to earth coverage. 7 COVER MATERIAL: Cover material shall be taken -from the premises or from 7 B-20 ‘the a adjacent river vidal or from both, but shall not contain _. more than fifty per cent (50%) ic nor more than seventy- . five per cent 15%) of : coarse sand. 8. NUISANCE CONDITIONS: .. In the event nuisance conditions develop, including: but not limited to the breeding or harborage of anthropods or rodents, _ noxious odors, fires or fire hazards, the operator shall place _ additional cover material necessary to control. such nuisance and, if necessary, shall install gas collection and burning equip- ment to control odors not otherwise controlled. — 9, - FIRE CONTROL: “The operator shall furnish and install - ‘pumps _ water’ : ‘lines adequate to furnish ‘two (2) one hundred and twenty-five : (125) gallon per minute hosé streams to. the operating site and | ‘to any portion of the fill. area which has. been coveréd for a period of less than six (6) months. He shall also provide ade- ° quate fire fighting equipment at the.site to promptly and effectively stop all fires, and no burning of. refuse of any kind shall be permitted without prior written consent. Fires occurring ‘in previously burned fills shall be immediately smothered with earth and any fill subsidente as a result of such fires shall be brought to grade immediately by the filling thereof with earth. 10. DRAINAGE: The operator shall so arrange his operations as ‘to drain all water away from the active fill area, pumping from sumps- if necessary to accomplish this purpose. In the event the burial of garbage below the water +able results in noxious odors, the - Lessor reserves the right to prohibit: further deposition of gar- , bage below the existing water table as measured’ in holes ex-° cavated fifty (50) feet from any drained trench area. + Cy 0 me } “ 11. ‘SCAVENGING: od Scavenging will be permitted-upon -the fill 2 area as long as said premises leased are not reached or served by road. Salvag- ing will be pertaitied at’ any time.’ : ~ % ad 12. MAINTENANCE: | | ce i eee The operator shall maintain the entire site in a clean condition and shall ‘pick up ‘and dispose, of all litter scattering . ’ - from the operating area. The operator shall have a continuing program of careful clean yp to be pursued in the interest of -general aesthetics, odor control, rodent control, and such other related potential nuisances. The operator shall maintain ‘all - surfaces. of fills in such condition as to prevent the ponding of surface water’ thereupon and at the same time to also protect ' the cover material arid refuse from erosion. He. shall so control his operations as to prevent. the.occurrence of any dust, “smoke or r odor conditions, and, the surface of the fill shall be inspected by him and. by. the Iessor not less than weekly for cracks or : subsidence and necessary corrections shall. be made by scarify- cae s ing and recompacting cover or by the placement and compaction of additional cover. Within six (6) months of completion of the fill the operator shall seed all completed slopes and surfaces with rye grass to eer. a dense stand thereof to control dust and erosion. 13. FINAL ELEVATION: _ The elevation of the top of the fully: completed. fill shall be not less than: twenty-four (24) feet above mean low or low.: water, which is a heighth approximately dne (1) foot above. _ the top of the rails of the Great Northern Railway.Company , ‘B-22 4 7 ‘ See PRR ee ce mate nce pidn ee er ewetae terme. tne - tracks adjacent on the east side of the subject property. In the | event that there is a subsidence of the fill below said elevation, 7 _ the operator. shall, before terminating the operation or before the term of. the lease to which the specifications are attached, - fill with earth the surface of the entire area to bring it up to grade and to cause it to be level at the time of oe | of possession of the premises. 14. ADDITIONAL GENERAL PRECAUTIONS: +. gr * All barges will be unloaded ‘directly. into the a Sen fill - area and later into receiving hoppers of, endless beltconveyors extending to more remote “cells” of the advancing sanitary fill. Prior to. unloading of barges large tarpaulins shall be suspended between the barge and the shore to catch any possible spillage, ~ and netting wire baffles shall also be erected at strategic loca- tions to arrest the scattering of windblown papers. Astern of each barge and across the slip in which it has been moored in order to be unloaded shall be placed a boom of logs to keep any spilled materials from drifting out into the tidal waters of. Ebey Slough, Steamboat Slough and Port Gardner Bay. In the | event materials do drift out, then appropriate steps: must be ~ taken and shall “be taken by the sececercas to stop such practices | . and such loss of materials. 15. RECORDS: _ The operator shall | prepare and submit weekly to the Lessor a drawing showing by dimensions from previously | established ' reference lines the extent of the completed fill. Drawings shall be dated and shall indicate by legend the ital (single lift or double . lift): of the fill or fills. « ar | INSPECTION: The operator shall at all times permit access to the site by oS o "+ Begs. ASPET Sem ATRIA SUR: A ORES A NN . > = * wi SEES ~ , ; Pe. <= ene Tulalip, Tribes or any exthoxtand representative thereof, and “* shall, when directed by :The Tulalip Tribes, immediately maké available a qualified person authorized to receive and carry. out instructions from the Lessor and to accompany the Lesser’ s | representative on inspettions. 17. SPRINKLING: During periods of dry weather the operator shall water sprinkle the active face of the lift or fill prior to itsedaily cover- ing, as well as apply an approved disinfectant and deodorant. at all times in sufficient quantities to control flies or insects. 18. METHOD OF DISPOSAL: The face of the tift of the active disposal area shall be Maintained with an incline of less than 15% at the end of each » day and as material is placed it shall be thoroughly compacted. All lifts shall progress in length not less than five lineal feet . per day. The sides of each lift shall be raked and have a smooth surface and kept free of litter) and before the earth covering is. placed upon the (lift all surfaces and slopes: must be compressed - by the bulldozer to a reasonably smooth, hard and compact sur- face with no soft, low or high points existing. All active lifts at the site shall be completely covefed.to a uniform thickness’ with earth at the end of each day’s operation. . \- | ad 19. DRAINAGE: ~ uss i . The area Suid within the outside perimeter dikes shall. be kept dry by the insertion of necessary tide gates and drains, - and no tidal or river water shall be allowed to enter therein and all surface water shall " forthwith and immediately drained | therefrom. Yo toe 8 2 LASTLY, IT IS HEREBY ORDAINED that any violations of the provisions of this ordinance shall constitute a public ~ nuisance and an offense against the ‘peace and dignity of the Tulalip Tribes punishable by injunction restraining further op- | eration in violation hereof or imposing a fine of $100.00 for each separate violation hereof with each day such violation con- tinues to bring a separate offense, or both. ADOPTED in regular meeting this 7th day of July; 1964, with a quorum present by a vote of 6.for and 0 against. — Se 7 _ Charles R. Sheldon, Chairman & ATTEST: Sage | _ Martin Williams, Secretary Snohomish County Zoning Resolution No. 7 Amend Section 8, Sub-heading B, by adding Paragraph 2 ~ read as follows: | ¥ '. ™ Garbage dumps, sanitary landfills, or any landfill operation or method for disposal of garbage with Snoho- | mish County and areas over which the county has, jurisdic- tion shall be permitted only upon the issuance of a Con- rm ditional Use Permit by the Board of Adjustment. The term - garbage shall refer to arty refuse, rubbish, effluent, sewage, — sludge, offal, dead animals, or waste products of. any nature or description. oy --B-25 : Ae PER RYN MEF BN a te . ot =. SUPPLEMENTAL TO CHAPTER 37.12, R.C.W. ‘THE 1957 ENACTMENT 37.12.010 LEGISLATIVE HISTORY 1. Enacted Laws 1957 ch. 240 § 1 p. 941, which read: “The e State of Washington hereby obligates and, binds itself to as- sume, as hereinafter provided, criminal and civil jurisdiction . over Indians and Indian territory, reservation, country, and lands within this state in accordance with the consent of the United States given by the act of August 15, 1953 (Public Law 280, 83rd Congress, 1st Session).” 2. Amended by Laws 1968 ch. 86 § 1, amending the section to read as at present. a . 37.12.020 Resolution of request—Proclamation by governor. (Repealed.) 7 o | LEGISLATIVE HISTORY 1. Enacted Laws 1957 ch. 240 § 2 p. 941, which read: © “Whenever the governor of this state shall receive from the tri- bal council or other governing body of any Indian tribe, com- munity, band, or group in this state a resolution expressing its desire that its people and lands be subject to the criminal and civil jurisdiction of the State of Washington to the extent auth- -orized by federal law, he shall issue within sixty days a procla- mation to the’ effect that such jurisdiction shall apply to all In- dians and all Indian territoxy, reservation, country, and lands of the Indian body involved in accordance with the provisions of this chapter: Provided, That with respect to the Colville, Spo- kane, or Yakima tribes or reservations, he shall not issue such proclamation unless the resolution of the tribal council has been ratified by a two-thirds majority of the adult enrolled members. . of the tribe voting in a referendum called for that purpose.” 37.12.030 LEGISLATIVE HISTORY 1, Enacted Laws 1957 ch.’240 § 8 p. 942, which read: “Six- ty days from the date of issuance of any proclamation of the | B-26 i‘ 7 governor as provided by RCW 37.12. 020, the state of: Wash- ington shall assume jurisdiction over offenses ‘committed by or against Indians in the lands prescribed in the proclamation to the same extent that this state has jurisdiction over offenses committed elsewhere within this state, and the criminal laws of this state shall have the same force and effect within such lands | as they have-elsewhere within this state.” : 2. Amended by Laws 1963 ch. 36 § 2, amending the neon to read as at present. 37.12.040 LEGISLATIVE HISTORY 1. Enacted Laws 1957 ch. 240 §4 p. 942, which were “Sixty. days from the date of issuance of’ any proclamation of the gov- ernor as provided by RCW 37.12.020, the state of Washington ghall assume jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in. the Indian lands prescribed in the proclamation to the same extent. that - this state has jurisdiction over-dther civil causes of action and. those civil laws of this state that are of general application to . private persons or private property shall have the same force and effect within seca Indian ‘lands as they have elsewhere with- in this state.” : mented by Laws 1963. ch. 36 § 4, amending the section ae to read as at present.,/ 87.12.060 ‘LEGISLATIVE HISTORY 1. Enacted Laws 1957 ch. 240 § 6 p. 942. —. - 2, Amended by Laws 1963 ch. 36 § 6, adding (1) “and tide- » lands,” after “water rights”;- and (2) adding “Indian man ou, ” after “with respect to”. -- | B-27 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0973%3A1. Public record. Not legal advice.