Petition for Writ of Certiorari — Red Lake Band of Chippewa Indians v. United States

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SUpreme Court, U.S.

FILED

OH 11 29 sav 101%

OFEICE 05 THE CLERK

* No. _-

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

RED LAKE BAND OF CHIPPEWA INDIANS,

on its own behalf

and on behalf of its members;

GERALD F. BRUN; LUELLA R. BRUN,

Petitioners

v.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI

To The United States Court of Appeals

for the Eighth Circuit

January 10, 1996

Mason D. Morisset

Pirtle, Morisset, Schlosser & Ayer

801 Second Avenue, Suite 1115

Seattle, Washington 98104-1509

(206) 386-5200

Counsel of Record for Petitioners

aBCD Legal Printers. Seattle, Washington

QUESTIONS PRESENTED FOR REVIEW

1. May the meaning, interpretation, and construction

of Indian treaties be determined without reference to fact finding

concerning the intent and understanding of the Indian signatories

of those treaties? Choctaw Nation v. United States, 318 U.S. 423

(1943); Jones v. Meehan, 175 U.S. 1 (1879); Washington v. Fishing

Vessel Ass’n., 443 U.S. 568 (1979).

2. Did the Indian signatories to the Red Lake

Chippewa treaties with the United States intend and understand

that severance and the sale of timber within their lands, reserved

for their exclusive use and occupancy, would be subject to

taxation by the federal government?

3. Did the district court and court of appeals err by

refusing to allow presentation of evidence as to the understanding

of the Indian signatories to the Red Lake Chippewa treaties with

the United States for the purposes of interpreting and construing

the terms of those treaties and by granting summary judgment

without considering such evidence? Washington v. Fishing Vessel

Ass’n., 443 U.S. 568 (1979); Fed. R. Civ. P. 56; Celotex Corp. v.

Catrett, 477 U.S. 317 (1986).

4. Do treaties between the United States’ government

and the Red Lake Band of Chippewa Indians allow the federal

government to impose an income tax on the proceeds of the sale

of tribally owned timber logged by a tribal member within the

Red Lake Reservation? Treaty of Greeneville, 7 Stat. 49; Treaty

of Old Crossing, 13 Stat. 667; Supplement to Treaty of Old

Crossing, 13 Stat. 689; Choctaw Nation v. United States, 318 U.S.

423 (1943).

5. Does imposition of a federal income tax on income

from tribally owned natural resources infringe upon Red Lake

Chippewa tribal self-government under the facts of this case?

STATEMENT OF THE CASE .....

4.1 Entveductiom. (205.5 cee cect tees sel

4.2 Jurisdiction Below. ...............

43 Summary of the Case. ............

ARGUMENT ...........

5.1 Intreducties 0.06.6 Udo See teceteves

5.2 The Court of Appeals Decision Violates

Well Established Rules of Treaty

Cometructiog ..cccsdecesiccesecs

5.3 The Rules of Treaty Construction ...

5.4. The Precepts of Treaty Interpretation Do

Not Require a Facial Ambiguity .... .

55. The Chippewa Understanding of the

5.6. Authority Relied On By the Courts Below

Are Inapposite to the Current Case ......

5.7 The Court Below Violated Supreme Court

Standards for Summary Judgment Under

kk rere re ee eer ae

5.8. Taxation of Tribal Income Derived from

TABLE OF CONTENTS

OPINIONS BELOW ........

TREATIES AND STATUTES INVOLVED

,éeae ¢

*“* ee

“eee

Tribal Natural Resources Fringes Upon

Tribal Self-Governance ...............

. STATEMENT OF SUPREME COURT JURISDICTION 2

Order, U.S. District Court, District of Columbia,

dated September 24, 1992.

Order, U.S. District Court, District of Columbia,

dated October 27, 1992.

Memorandum Opinion and Order, U.S. District

Court, District of Minnesota, dated August 26,

1994,

Judgment In A Civil Case, U.S. District Court,

District of Minnesota, dated August 29, 1994.

Order [Unpublished], U.S. Court of Appeals for

the Eighth Circuit, dated August 10, 1995.

Order, U.S. Court of Appeals for the Eighth

Circuit, dated October 12, 1995.

The Treaty of Old Crossing, 13 Stat. 667 (1863),

reprinted in II C. Kappler 853, Indian Affairs.

Laws and Treaties (2d ed. 1904).

The Supplement to Treaty of Old Crossing,

13 Stat. 689 (1864), reprinted in II C. Kappler 861,

Indian Affairs, Laws and Treaties (2d ed. 1904).

The Treaty of Greeneville, 7 Stat. 49 (1795),

reprinted in II C. Kappler 39, Indian Affairs, Laws

and Treaties (2d ed. 1904).

Declaration of Melissa Meyer, Ph.D., dated May

27, 1994, (Filed with the District Court).

iv

TABLE OF AUTHORITIES

Cases

Adickes v. S. H. Kress & Co.,

te Peer er reer ree 18

Anderson v. Liberty Lobby, Inc.,

Sighs) Sf) Beg Perr 18-20

Arenas v. United States,

Se Ce Sab o's CCU IR WS ce ceelcese 20

Carpenter v. Shaw,

Be BOP ERED vec bcidedsdevesducecesenl 12

Celotex Corp. v. Catrett

GFF Wee Br RAE Wi cS 8 bb ec esdsceecnas i, 20, 21

Choctaw Nation v. United States

Fee SA SUE Dn ocbbscetevovstevciaves i, 12

Commercial Union Insurance Co. v. Schmidt,

SEF Fk I INE a obec ccctecsvncecss 20

County of Oneida v. Oneida Indian Nation,

SFO ULE, Fae Clee os ESE sab a dbb adeas cv ecces 9, 10

EEOC v. Cherokee Nation,

SPEDE GRs CHRIS. THUD Ske Gee ccccssocecs 17

Hynes v. Grimes Packing Co.,

Ce ee eee er ree 11

Jones v. Meehan

gt RS Ser eer Torry Pree rT i, 11

Jourdain v. Commissioner,

pe Le | re - % se,

Kennedy v. Silas Mason Co.,

ROS Ce eee he Bs SENTS Ne ERSHe es 20

y

Vv

Kreuzer v. American Academy of Periodontology,

cA By Bs, Fisted e Mp | \ th ea 20

Lujan v. National Wildlife Federation,

ok Es I AST ee end Se 20

Masson v. New York Magazine, Inc.,

SSR: de Me CR od ee SEOUL 20

McClanahan v. Arizona State Tax Comm’n.,

a Me Br ee en SO en 12-14

Menominee Tribe v. United States,

wk ee: ee Le 5 a es oe 11

Menominee Tribe v. United States

Se Aree PR RA onc aes AUUCLL A. eee 13, 14

| Montana v. Blackfeet Tribe of Indians,

) O75 Shay FOP EOE cance dab bb koe eee Rk css 17

Northland Greyhound Lines v. Amalgamated Ass’n.,

) 66 F.Supp. 431 (D. Minn. 1946) ................ 24

) Oklahoma Tax Commission v. Chickasaw Nation,

) 115 S.Ct. 2214 (1995) ......... 8-10, 13-15, 21, 22, 24

| Portsmouth Square, Inc., v. Shareholders Protective Committee,

; 770 F.2d 866 (9th Cir. 1985).............0..00- 24

: Ramsouer v. Midlin Valley,

hee fF oe ee. ee ere eee 19

|

| Seufert Bros. Co. v. United States,

| PP ae ee Eee 1 ee eta eh ALL 11

: Shields v. Eli Lilly & Co.,

| S95 F260 $663 (D.C. Cir. 1990) on. oe eee 20

| Shoshone Tribe v. United States,

| RE OL PD pre 11

) Squire v. Capoeman

ee SE EE 65 ko eek £544 sR 3, 14, 17

Tulee v. Wi

SES WS, GE CPG si tics cb the U ede vetedecess 11

United States v. Algoma Lumber Co.,

SOP IS GED CIGD cccccciddvccevetedveddeces 16

United States v. Farmers Mutual,

268 F.26 SEB Cl Cit. 1961) 2. cc ccccccdcccwcccs 20

United States v. Minnesota,

466 F.Supp. 1382 (D. Minn. 1979) .............. 16

United States v. Shoshone Tribe,

SOE WG SEE CGE ccc cc bit cctse dodeUteces 16

United States v. Sioux Nation,

GB US. SIE GIISD ccccccdcwe ent devcceeces 11

United States v. Winans,

398 TAG, SFE GI SK cccccdovebsteodecvecececs ll

United States v. Winnebago Tribe of Nebraska,

$42 P28 2GGB Ca Ge, 1900) oid 6 ci oie ecedieee 11

Walling v. Fairmont Creamery Co.,

BSD FBS SED SG BED oc civic cece sdhe ckeccs 19

Washington Post Co. v. Keogh,

365 DAE SES GK, CR SIGs ois oc Sida Vo cedee ces 19

Washington v. Fishing Vessel Ass'n.

4 UD. Se boi ond eT OA i, 11, 12

Whitefoot v. United States,

28 BBR GO Ge OR. BOG). Si sei iss eve Sih iee 12

Winters v. United States

207 UB. SER Cae eka ab Scab ecu tee 13, 14

vii

Constitutions, Treaties, and Statutes

Se DUR CP Sse 8S Fis cS i 17

NIT Acai dds nan detnile ¢o0 de ce 480s ake i 18

ED cabs kd BioBased cote dishavis olei 16

Pe PGES os cs wins 2 sae bes a8 R. 08% 17

EE Bak. 66 0 66u sé acl Te adh ted Aik. 2, 11

ee UE SOE ce bh hE Ko 6A die Sad bnccccccccas 3

Teds b0ss« Ciecnadaed codes cccdeciacsce 11

ens ta we aces buen senccclin te owcen 2

hank ba dank We sea 6645060 ox koveans 3

IEE ic Oud Wek Kivlinb sage hss ooedoe%ssoeeces 3

PE cuecedededdascucccceciccbecrtcceng 3

oR ee ae Sa eae ee 3

Nh aden ced rnabh ccccccovccccceue 3

Supplement to Treaty of Old Crossing,

13 Stat. 689 (1864), reprinted in

II C. Kappler 861, Indian Affairs, Laws

and Treaties (2d ed. 1904) ............... i, 2, 4, 17

Treaty of Dancing Rabbit Creek,

September 27, 1830, 7 Stat. 333 ........... 9, 14, 15

Treaty of Greeneville, 7 Stat. 49 (1795),

reprinted in II C. Kappler 39, Indian Affairs,

Laws and Treaties (2d ed. 1904) ...... i, 2, 4, 5, 14, 17

Treaty of Old Crossing, 13 Stat. 667 (1863)

reprinted in II C. Kappler 853, Indian Affairs,

Laws and Treaties (2d ed. 1904)........ i, 2, 4, 16, 17

Legislative, Administrative, Judicial, and Executive Materials

SG, Bi BO Fo SH ccccvcccsceveessbbs bewnebe sl 4

POR Ee GR Bo BD hss Hb sevdc ces cosortveeries 18, 20, 21

House Ways and Means Committee,

Tax Treatment of Indian Fishing Rights Income,

H.R. Rep. No. 312 Part 2,

100th Cong., 2d Sess., at 4 (1988) ............... 16

PER Set Are OOe) cc bd s04Genveneesesd saw 18

PE ORS VEEN es cei ciceeiiicnus¥eineweasten 18

Other Authorities

10A Wright, Miller & Kane § 2727, p. 138-43 ........... 21

Felix S. Cohen’s Handbook of Federal Indian Law,

(Renard Strickland ed., 2d ed. Michie 1982) .... 13, 16

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

RED LAKE BAND OF CHIPPEWA INDIANS,

on its own behalf

and on behalf of its members;

GERALD F. BRUN; LUELLA R. BRUN,

Petitioners

v.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI

To The United States Court of Appeals

for the Eighth Circuit

1, OPINIONS BELOW

Order, U.S. District Court, District of Columbia, dated

September 24, 1992 (Appendix A hereto).

Order, U.S. District Court, District of Columbia, dated

October 27, 1992 (Appendix B hereto).

Memorandum Opinion and Order, U.S. District Court,

District of Minnesota, dated August 26, 1994 (Appendix C

hereto).

Judgment In A Civil Case, U.S. District Court, District of

Minnesota, dated August 29, 1994 (Appendix D hereto).

Order [Unpublished], U.S. Court of Appeals for the

Eighth Circuit, dated August 10, 1995 (Appendix E hereto).

Order, U.S. Court of Appeals for the Eighth Circuit, dated

October 12, 1995 (Appendix F hereto).

2

2. STATEMENT OF SUPREME COURT JURISDICTION

The jurisdiction of the Court is invoked pursuant to 28

U.S.C § 1254(1). The U.S. Court of Appeals for the Eighth

Circuit’s substantive order was issued August 10, 1995 (Appendix

C hereto). The Court of Appeal’s order denying petitioner’s

request for rehearing was entered October 12, 1995 (Appendix F

hereto). The Court of Appeal decided federal questions

concerning the implementation of the federal income tax and the

interpretation and intent of treaties between and Indian tribe and

the United States government in a way which conflicts with

applicable decisions of this Court.

3. TREATIES AND STATUTES INVOLVED

1. The Treaty of Old ae 13 Stat. 667 (1863),

reprinted in II C. Kappler 853, Indian Affairs, Laws and Treaties

(2d ed. 1904) (hereafter "C. Kappler") (Appendix G hereto).

2. The Supplement to Treaty of Old Crossing, 13

Stat. 689 (1864), reprinted in II C. Kappler 861, Indian Affairs,

Laws and Treaties (2d ed. 1904) (Appendix H hereto).

a The Treaty of reget 7 Stat. 49 (1795),

reprinted in II C. Kappler 39, Indian Affairs, Laws and Treaties

(2d ed. 1904) (Appendix I hereto).

4. 26USC. 1(a)

(a) MARRIED INDIVIDUALS FILING

JOINT RETURNS AND SURVIVING

SPOUSES. -- There is hereby imposed on the

taxable income of --

(1) Every married individual . . . a tax

determined in accordance with the following table:

:

.

3

4. STATEMENT OF THE CASE

4.1 Introduction.

This case involves the meaning of Indian treaties and the

right of present day Indians to receive the benefits of those

treaties. Specifically at issue is the right of the Red Lake

Chippewa people to harvest tribal timber free of imposition of the

federal income tax. This court has determined that no income tax

shall be imposed on the timber revenues received by an individual

Indian from timber harvest on his individual land. Squire v.

Capoeman, 351 U.S. 1 (1956). Here, it is tribally owned timber

which is harvested by tribal members Gerald and Luella Brun

(Petitioners Brun). The Red Lake Band reserved that timber for

the beneficial use of its people in the Bands’ treaties with the

United States and which the Band maintains reserved the use of

tribal natural resources free from taxation.

4.2 Jurisdiction Below.

The District Court had jurisdiction over the Brun

petitioners’ claims pursuant to 28 U.S.C. § 1331, in that the

matter in controversy arises under the Constitution and laws of

the United States; pursuant to 28 U.S.C. § 1361, in that it is in

the nature of mandamus to compel officers and employees of an

agency of the United States to perform duties owed to the Brun

petitioners; and pursuant to 28 U.S.C. §§ 1340 and 1346, in that

district courts have original jurisdiction for any civil action against

the United States as defendant for recovery of any internal

revenue tax which has been erroneously or illegally assessed and

collected against the Brun petitioners.

The Bruns paid the taxes assessed and met all Statutory

ana regulatory requirements for filing their complaint for refund.

26 U.S.C. § 7422. }

: The Bruns filed a refund claim for 1983 in the

amount of $22,944.06, more than six months prior to the filing

of the action below. The Internal Revenue Service, by letter

dated April 23, 1990, notified petitioners Brun that their claim

for 1983 was denied.

The Bruns filed a refund claim for 1984 in the

4

The Court of Appeals had jurisdiction under 28 U.S.C. §

1291 providing that courts of appeal shall have jurisdiction of all

appeals from all final decisions of the district courts of the United

States. The district court entered a final order dismissing the

complaint on August 26, 1994, and a judgment on August 29,

1994. The Notice of Appeal, dated October 13, 1994, was filed

with the district court on October 20, 1994, within the 60 days

required by statute where the United States is a party. Fed. R.

App. P. 4.

43 Summary of the Case.

The Red Lake Band of Chippewa Indians (hereinafter

"the Band") is the political successor in interest to the Red Lake

Band of Chippewa Indians which executed two treaties with the

United States government. I.e., the Treaty of Old Crossing, 13

Stat. 667 (1863), reprinted in II C. Kappler, Indian Affairs, Laws

and Treaties 853 (2d ed. 1904) (hereafter "C. Kappler"), Appendix

G; and the Supplement to Treaty of Old Crossing, 13 Stat. 689

(1864), reprinted in II C. Kappler 861, Appendix H.

In addition, the Treaty of Greeneville covered lands

occupied by the Band (Treaty of Greeneville, 7 Stat. 49 (1795),

reprinted in II C. Kappler). Declaration of Melissa Meyer, Ph.D..,

dated May 27, 1994, (Filed with the District Court) pp. 3-5

(hereinafter "Meyer Decl.")(Appendix J).

Article V of the Treaty of Greeneville explicitly reserves

to the Band the right to quiet enjoyment of certain lands:

To prevent any misunderstanding about the Indian

lands relinquished by the United States in the

fourth article, it is now explicitly declared, that the

amount of $9,024.45, more than six months prior to the filing of

the action below. The Internal Revenue Service, by letter dated

April 23, 1990, notified petitioners Brun that their claim for

1984 was denied.

The Bruns filed a refund claim for 1985 in the

amount of $4,608.74, more than six months prior to the filing

of the action below. The Internal Revenue Service later

disallowed the Brun petitioners’ claim for refund.

ae—————eeeeeeEEeEeEeeEE——eeE—waEe__ao

ae et ee ee eee Py,

5

meaning of that relinquishment is this: The

Indian tribes who have a right to those lands, are

quietly to enjoy them, hunting, planting, and

dwelling thereon so long as they please, without

any molestation from the United States. ...

[Until the Tribes’ lands are sold to the United

States,] the United States will protect all the said

Indian tribes in the quiet enjoyment of their lands

against all citizens of the United States... .

Treaty of Greeneville, art. V, II C. Kappler at 42.

Since "these lands" include the areas inhabited by the Red

Lake Band, the Band is clearly a beneficiary of that clause. See,

Jourdain v. Commissioner, 617 F.2d 507 (8th Cir. 1980).

The purposes of these treaties were to provide a

homeland for tribal members within which the Band could

determine tribal governmental policies and prerogatives.

Uncontroverted evidence presented by petitioners

demonstrated that Red Lake Chippewa leaders would not have

intended that tribal resources be taxed.

As a result of those treaties and subsequent executive

orders and acts of Congress, the Red Lake Band today inhabits

its reservation on ancestral grounds.

Petitioners Brun are enrolled members of the Red Lake

Band and reside on the Red Lake Indian Reservation in the State

of Minnesota. As such they are the beneficiaries of the rights

guaranteed by treaty.

Pursuant to a tribal policy and permitting system,

appellant Gerald Brun cut, skidded and hauled logs to a buyer in

1983, 1984, and 1985. The Internal Revenue Service assessed

taxes on the income produced by that activity. The Bruns paid

the taxes under protest and brought timely suit for refund in the

federal district court.

This case was originally filed in the United States District

Court for the District of Columbia (Cause No. 92-0976). It was

brought by petitioners Red Lake Band of Chippewa Indians on

its own behalf and as parens patriae on behalf of its members for

6

declaratory judgment and other relief. Petitioners Brun also sued

on their own behalf seeking a tax refund and other appropriate

relief.

In the Complaint, the documents presented and the expert

testimony, The Band and Petitioners Brun demonstrated that the

harvest of tribal forest products provides benefits to the members

of the Band.

A federally approved timber cutting permit is the primary

instrument used to sell tribal timber on the Red Lake Diminished

Reservation. On the Diminished portion of the Red Lake

Reservation, only tribal members may be granted a permit to

harvest and sell timber.’

Under this permitting system, the Brun petitioners

purchased from the Bureau of Indian Affairs Forestry Agent (Red

Lake Agency) tribal stumpage located on the Red Lake

Reservation and cut, skidded, and hauled the logs to a buyer.

Complaint. 9 5.13.

Revenue from timber sales is vital to the Band, for it

allows the Band to provide essential governmental services to its

members residing on the Reservation. Complaint. 4 5.7.

Natural resources still serve as the basis for virtually all

non-governmental employment on the Red Lake Reservation.

Meyer Decl., Appendix J, p. 74a.

The Red Lake Reservation economy still relies heavily on

natural resources upon which the people have relied for

generations, including timber. Jd.

Until relatively recently, tribal sawmills have served as a

source of reservation income for more than fifty years providing

nearly one-third of the non-public employment on the reservation.

Id., p. 75a. As sawmill operations have declined, tribal members,

2 See, e.g., U.S. Department of Interior, Bureau of Indian

Affairs, Red Lake Agency, "Policy Statement for Cutting of

Forest Products Under Permit on Lands of the Red Lake Band

of Chippewa Indians (FY 1981)", originally submitted as an

exhibit below.

a

7

like the Bruns, have come to rely more on the older tradition of

individual timber sales. Id., p. 76a.

Commercial rice operations in other states have depressed

that agricultural enterprise increasing the dependence on other

natural resources such as timber. Jd.

Economic conditions at Red Lake fall below the national

average for Indians. The average unemployment rate approaches,

and seasonally surpasses, fifty percent. The average per capita

income falls below the poverty level. Id., p. 30.

None of these facts were controverted by the United

States.

By order dated September 24, 1992, the district judge

granted a motion to dismiss brought by the federal government on

the grounds that, (a) venue was improper for Petitioners Brun’

refund claim and, (b) the court lacked jurisdiction over the Band’s

claims under the Declaratory Judgment and Anti-Injunction Acts.

Upon reconsideration, the order dismissing petitioners Brun’

refund claim was vacated and the matter was ordered transferred

to the District of Minnesota on October 27, 1992. Appendix B.

By clerk’s notice of November 25, 1992, the transfer was

completed. The dismissal of the Band’s actions was not appealed

nor transferred and no issue is presented here concerning that

dismissal.

After transfer to the district court in Minnesota, a motion

for summary judgment was filed by defendant United States on

January 24, 1994. On August 26, 1994, the district court granted

that motion and dismissed the complaint. Appendix C.

A timely appeal was filed with the Court of Appeals for

the Eighth Circuit.

In its opinion of August 10, 1995, the Court of Appeals

issued a ruling finding, that as a matter of law, federal income tax

applied to income generated from tribal timber resources on the

Red Lake Reservation when such resources were logged and sold

by an individual member of the Red Lake Chippewa Band

pursuant to tribal permission. Appendix E.

8

A timely petition for rehearing was filed with the Circuit

Court requesting review inter alia, on the basis of Oklahoma Tax

Commission v. Chickasaw Nation, 115 S.Ct. 2214 (1995). That

decision was decided on June 14, 1995, too late to be considered

by the Court of Appeals since the case had been submitted on

June 12, 1995. The petition for rehearing was denied on October

12, 1995. Appendix F.

5. ARGUMENT

5.1 Introduction.

In its opinion of August 10, 1995, the Court of Appeals

did not follow the analysis mandated by existing law nor by the

latest decision of the United States Supreme Court concerning

treaty rights and taxation. See, Oklahoma Tax Commission v.

Chickasaw Nation, 115 S.Ct. 2214 (1995).

The Court’s decision conflicts with applicable decisions of

this Court concerning well known principles of treaty

construction, including the tenet requiring determination of the

intent of a treaty, by refusing to require the court below to hold

a hearing, consider anthropological and historical evidence, and

take other evidence concerning the intent of the treaty signers.

The intent of the Chippewa Indian signers of the treaties

is central to such a determination. The court below refused to

determine that intent, contrary to established Indian law

principles and decent decisions of this Court including Oklahoma

Tax Commission v. Chickasaw Nation, 115 $.Ct. 2214 (1995).

Finally, the Courts below decided summary judgment

issues in conflict with applicable decisions of this court.

5.2 The Court of Appeals Decision Violates Well

Established Rules of Treaty Construction.

On June 14, 1995, this Court decided Oklahoma Tax

Commission v. Chickasaw Nation, supra. That case involved two

state taxes. The first, a motor fuels tax on the retail sales of fuel

sold by the tribe, is not involved here, nor does the reasoning

involved in that case have application here. The second tax was

a State income tax on the wages from tribal employment of an

oh tie Sil _

9

Indian working on the reservation but residing in the State of

Oklahoma outside of Indian country. The reasoning of the court

as to the second tax follows existing practice and reinforces it.

The courts below failed to utilize this analysis.

The Supreme Court’s decision concerning imposition of an

income tax was by a split five-to-four vote. The majority held that

Oklahoma could impose its income tax on its resident, even

though that resident was an Indian whose wages came from

reservation income. It is the analysis by which both that majority,

as well as the dissenting minority of four, analyzed the case which

is instructive to the case at bar.

The majority, while citing rules concerning income

taxation of residents by a sovereign authority, also went on to

analyze the Treaty of Dancing Rabbit Creek involved in that case.

Treaty of September 27, 1830, 7 Stat. 333-334. That treaty, like

the treaties involved in this case, had no language whatsoever

about taxation. The Treaty of Dancing Rabbit Creek did,

however, provide that the Chickasaw Nation was promised ". . .

that no territory or state shall ever have a right to pass laws for

the government of the [Chickasaw] Nation of Red People and

their descendants . . . but the US. shall forever secure said

[Chickasaw] Nation from, and against, all [such] laws . . .”

supra, p. 2223. The court evaluated that argument and

applied the rule of liberal construction. Oklahoma, supra, at p.

tg oy Ogg Bae mg Oneida Indian Nation, 470 U.S.

that the Court engaged in an analysis of treaty intent and

purpose. The court considered what the intent and the

10

The dissenting minority of four’ also made it clear that

the "issue is whether such a tax falls within the scope of a promise

this Nation made to the Chickasaw Nation in 1837 .. ."

Oklahoma, supra, p. 2225. The minority also reviewed historical

materials to find out what the intent of the treaty was. The

minority found that the "language of the promise, read broadly

and in light of its purpose, fits the tax at issue." Oklahoma, id.

The minority also cited the well known rules of treaty

construction, including County of Oneida v. Oneida Indian Nation,

470 U.S. 226, 247 (1985). Oklahoma, supra, p. 2226.

Thus, although a majority of the court came to a different

view on the merits of what the intent and purpose of the treaty

was, all nine justices agreed on the analysis to be conducted,

namely resort to historical materials to construe the intent of the

treaty, even though there was no facial ambiguity nor specific nor

implicit terms in the treaty concerning tax matters.

The Courts below failed to undertake such an analysis in

this case, and this constitutes error. The intent of the treaty

signers, and the treaty’s underlying purposes, must be investigated

by the court before a decision on the intent of the treaty can be

rendered that is consistent with the ruling in Oklahoma, supra.

Since before Euro-American immigration, members of the

Red Lake Band of Chippewa dwelled upon the lands which were

reserved by the Band in its treaties with the United States. The

timber located on those reserved lands provided economic

benefits to tribal members.

Subsequent to the execution of the treaties and acts of

Congress and the President, and in reliance thereon, members of

the Band continued to harvest timber for subsistence and

commercial purposes upon tribal lands. Such timber harvesting

provided and still provides an important part of the subsistence

and livelihood for tribal members.

Properly interpreted, it is clear that the Indian signers to

the treaties did not intend that use of natural resources, such as

forests, would be taxed by the very government that was

> Opinion by Breyer, J., with whom Stevens, O’Connor and

Souter, JJ., joined.

ea

425, called A

11

guaranteeing continued use of these resources. Properly

interpreted, the Internal Revenue Code (26 U.S.C. § 1 and § 11)

does not impose income tax on income derived from timber

harvesting by Band members. Thus, imposition of income tax on

petitioners Brun income, derived from those resources is a

violation of their treaty rights and prohibited by law.

53 The Rules of Treaty Construction.

Over the years, this Court has determined rules for the

interpretation and enforcement of treaties between the United

States government and American Indian tribes. Applying these

principles makes it abundantly clear that the treaties involved

here must be construed to avoid taxation of income generated by

harvest of the tribe’s natural resources. Among these principles

are the following:

The Indians held all natural resources prior to white

colonization. Thus, as a general matter, the treaties do not

represent a grant of rights from the United States to the Indians.

Instead they constitute "a grant of rights from . . . [the Indians

and] a reservation of those not granted." United States v. Winans,

198 U.S. 371, 381 (1905).

A treaty is to "be construed, not according to the technical

meaning of its words to learned lawyers, but in a sense in which

they would naturally be understood by the Indians." Washington

v. Fishing Vessel Association, 443 U.S. 658, 675 (1979), citing Jones

v. Meehan, 175 US.1, 11 (1879). The Supreme Court has

regularly used these canons of construction to broadly interpret

the rights accorded to Indian tribes by the Treaties. See United

States v. Winans, supra; Seufert Bros. Co. v. United States, 249 U.S.

194 (1919); Tulee v. Washington, 315 U.S. 681 (1942); Washington

v. Washington State Commercial Passenger Fishing Vessel Ass'n,

supra, 443 U.S. at 676, 679.

Rights guaranteed by treaty are property rights and may

not be taken except by explicit decision of the United States

Congress and with full compensation. See, United States v. Sioux

Nation, 448 U.S. 371 (1980); Shoshone Tribe v. United States, 299

U.S. 476 (1937); United States v. Winnebago Tribe of Nebraska, 542

F.2d 1002 (8th Cir. 1976); See, also, Menominee Tribe v. United

States, 391 U.S. 404, 413 (1968); Hynes v. Grimes Packing Co., 337

12

US. 86, 105 (1949); Whitefoot v. United States, 293 F.2d 658, 659

Ct. 1961).

The Supreme Court has held that intent of the Indian

signers is crucial:

A treaty, including one between the United States and an

Indian tribe, is essentially a contract between two

sovereign nations. E.g., Lone Wolf v. Hitchcock, 187 U.S.

553. When the signatory nations have not been at war

and neither is the vanquished, it is reasonable to assume

that they negotiated as equals at arm’s length.

Accordingly, it is the intention of the parties, and

not solely that of the superior side. that must control any

attempt to interpret the treaties. When Indians are

involved, this Court has long given special meaning to this

rule. It has held that the United States, as the party with

the presumptively superior negotiating skills and superior

mneniodge af the lemmuten SneadeedioGuensiemamadied,

has a responsibility to avoid taking advantage of the other

side.

Washington v. Fishing Vessel Association, 443 U.S. 658, 675 (1979)

and executive orders are to be construed liberally in favor of the

Indians. See, Choctaw Nation v. United States, 318 U.S. 423, 431-

32 (1943); Choate v. Trapp, 224 US. 665, 675 (1912). This

doctrine of construction requires that ambiguities in the

of these documents be resolved in favor of the Indians. See,

McClanahan v. Arizona State Tax Comm'n., 411 U.S. 164, 174

(1973); Carpenter v. Shaw, 280 U.S. 363, 367 (1930). In addition,

violation of Indian treaties is a constitutional matter, infra, § 2.5.

ambiguity before the precepts of interpretation are applied. Thus,

the Court of Appeals looked in vain for “treaty language which

13

conferred an income tax exemption... .” See, _Opinion of

August 10, 1995, p. 4. Appendix E hereto.

But, there is no special rule involving the need for

ambiguity before the precepts of treaty interpretation and

construction can be applied. As best stated in Felix S. Cohen’s

precepts represent an acknowledgment of the

unequal bargaining position, based partially on the

United States’ negotiating skilis and

knowledge of the language. One of

this is that i t have been

held by the courts to be reserved implicitly by the

treaties.

Felix S. Cohen’s Handbook of Federal Indian Law, p. 222

(Renard Strickland ed., 2d ed. Michie 1982)(footnotes omitted).

applications of the general concept of liberal interpretation

favoring the Indian intent. And, this Court has made it clear that

analysis of a treaty intent and purpose is required, even though

there is no “treaty language conferring an income tax exemption."

supra.

Applying the rules of liberal construction and the need to

ascertain the intent of the Indians has led the courts to imply the

existence of reserved water rights (e.g, Winters v. United States,

207 U.S. 564 (1908)), the right to hunt and fish (e.g, Menominee

Tribe v. United States, 391 U.S. 404 (1968)), and the reservation of

tribal self-government free of state jurisdiction (e.g, McClanahan

v. Arizona State Tax Comm’n., 411 US. 164 (1973)). See,

Handbook supra, at 223.

In most, if not all, of these cases, there has been no

“ambiguity” which has led the court to look into the Indian intent

in signing the treaties. Indeed, the documents concerned in those

oa

cases, generally failed to mention, at all, these important rights,

just as the Treaty of Dancing Rabbit Creek involved in Oklahoma

failed to mention taxation. The Treaty of Dancing Rabbit

Creek provided that ". . . no territory or state shall ever have a

right to pass laws for the government of the [Chickasaw] Nation

of Red People ..." Oklahoma Tax Commission v. Chickasaw

Nation, supra, p. 2223. Here, the Treaty of Greeneville provides

that the Tribe shall have a right to certain lands and to "quietly

to enjoy them . . . without any molestation from the United States

. Treaty of Greeneville, art. V, II C. Kappler at 42.

Obviously, the language of the Treaty of Greeneville is no more

or less ambiguous than the language of the Treaty of Dancing

Rabbit Creek. Just as there was no need to find explicit language

discussing taxation in Oklahoma there is no need to find language

here discussing taxation.

The Court of Appeals’ insistence that it must "find" Treaty

language which infers an income tax exemption is simply incorrect

and contrary to the teaching of Oklahoma. The rights in Winters,

Menominee and McClanahan were implied from the surrounding

facts and the intent of the signers. Freedom from taxation is no

less important than these rights. Yet the Court applies a different

rule to taxation to find that the intent of the treaty signatories

and the understanding of the Indians, can be delved into only if

there is a specific provision which somehow mentions taxation and

which is somehow ambiguous so that the Court’s inquiry can be

triggered. There is no such rule. Rather, there are several

“precepts” which, taken together, mandate inquiry into the

Indians’ understandings of the treaty.

In the leading case of Choate v. Trapp, 224 U.S. 665

(1912) this Court applied the precepts of interpretation to a real

life situation. There, the state argued that tax exemptions should

be strictly construed and that such an exemption would be

withdrawn at any time the government saw fit. Choate, supra, at

675.

* Indeed, in the leading case of Squire v. Capoeman, 351

U.S. 1 (1956), the Supreme Court found an implied tax

exemption as to income where land was to be preserved "free

of encumbrances." There was no mention of taxation in the

statute at question.

15

The Court rejected this view ruling:

. . . but in the government’s dealings with the

Indians the rule is exactly the contrary. The

construction, instead of being strict, is liberal;

doubtful expressions, instead of being resolved in

favor of the United States, are to be resolved in

favor of a weak and defenseless people, who are

wards of the nation, and dependent wholly upon

its protection and good faith. This rule of

construction has been recognized, without

exception, for more than one hundred years, and

has been applied in tax cases.

Choate, supra, at 675.

There was nothing ambiguous involved. Rather, it would

have been a violation of the precepts of Indian treaty and

statutory interpretation for the court to interpret the statute "in

favor of' the United States. Oklahoma makes it clear that the

treaties involved here must be viewed in a light most favorable to

the Tribe.

Here, there is no express language in the treaties which is

inapposite to the interpretation proposed by the Red Lake Band.

Indeed, the treaty is silent in its terms as to taxation, as was the

Treaty of Dancing Rabbit Creek in Oklahoma. Would the

Chippewas have ceded their vast lands and agreed to repair to the

relatively small reserved areas had they known that the resources

of that reservation would be taxed? Almost certainly not. The

treaty is silent on its face as to what the intentions were

concerning taxation. Given this silence, it is not only permissible

but mandated that the Court inquire as to the intention of the

signatories to the treaty.

5.5. | The Chippewa Understanding of the Treaties.

At the time of the signing of the Treaties, the Indians

understood that an integral part of the right to dwell upon their

lands included the right to harvest timber growing upon tribal

land in order to provide material for homes, shelters, and other

buildings and to provide for fuel. No federal income tax existed

16

and thus was not contemplated by either the United States

government or the signatory tribes. See House Ways and Means

Committee, Tax Treatment of Indian Fishing Rights Income, H.R.

Rep. No. 312 Part 2, 100th Cong., 2d Sess., at 4 (1988).

It is clear that Indians would have never imagined that a

recognition of their sovereignty by treaty would somehow be

construed as bestowing a right to the United States to tax the

income of tribal members derived from their harvest of tribal

resources. See, Declaration of Melissa Meyer, Ph.D., (hereinafter

"Meyer Decl."), Joint Appendix, p. 52a. Because use of natural

resources was a critical right, it is clear that no Red Lake leader

at treaty times would have understood that ceding land and

entering into sovereign treaty relations with the United States

would allow the government to tax such income. Meyer Decl.,

supra, p. 79a. The United States offered no evidence to the

contrary in the court below.

The Chippewas also understood that their reservation was

a homeland where they could dwell free from interference. The

Red Lake Reservation, like many other reservations in the United

States, is a result of treaties, executive orders and congressional

acts. See, United States v. Minnesota, 466 F Supp. 1382 (D. Minn.

1979). After the 1864 Treaty of Old Crossing, 13 Stat. 667 (1864),

the Red Lake Reservation consisted of about 3.2 million acres.

Id., p. 1383. It is without question that rights to exclusive

possession of the reservation, including use of its natural

resources, are the same whether those reservations were created

pursuant to treaty, statute or executive order. See Felix S.

Cohen’s Handbook of Federal Indian Law, p. 493 (Renard

Strickland ed., 2d ed. Michie 1982) (herein after "1982

Handbook"). The United States points to no fact nor legal

standard which would reduce these rights.

Indian tribes enjoy full equitable ownership of timber

located upon tribal reservation lands. United States v. Algoma

Lumber Co., 305 U.S. 415, 420 (1939). This is true whether or

not the treaty or other basis on which the tribe’s reservation was

established mentions timber. United States v. Shoshone Tribe, 304

U.S. 111 (1938). Indian tribes generally may not sell or otherwise

alienate the timber on their lands without approval of the

Secretary of the Interior. 1982 Handbook, supra, p. 539. See also,

25 U.S.C. §§ 461-479. Tribes have the power to prevent the sale

or distribution of tribal assets and may manage, operate and

17

dispose of tribal property. See, generally, 19 db p. 539-

540; 25 U.S.C. §§ 476-477. Sale of tribal timber requires tribal

consent as well as approval of the Secretary of the Interior. 25

C.F.R. § 141.7(a) (1980).

The imposition of federal income tax on an individual

Indian harvesting tribal timber would clearly frustrate the purpose

and nature of the reservation, and the Indian understanding of

the treaty, thereby violating its implicit terms. Applying the rules

of construction noted above to the Internal Revenue Code would

not yield the conclusion that taxes were to be imposed thereby

greatly diminishing the value of the reservation. It is clear that

the canons of construction are to apply not only to treaties but

that other "federal statutes as well are to be construed so far as

is reasonable to do in favor of Indians." Reich v. Great Lakes, 4

F.3rd 490, at 492 citing Montana v. Blackfeet Tribe of Indians, 471

U.S. 759, 766-68 (1985); EEOC v. Cherokee Nation, 871 F.2d 937

at 939 (10th Cir. 1989).

5.6. Authority Relied On By the Courts Below Are

Inapposite to the Current Case.

The lower courts’ reliance on Jourdain vy. Commissioner,

617 F.2d 507 (8th Cir. 1980) is misplaced. [See, e.g., Aug. 10

Opinion, App E., p. 23a] THere is no indication that either the

district court nor the court of appeal in that case was ever

presented with any evidence whatsoever as to what the Red Lake

Band’s understanding of the Treaty of Greeneville was nor their

intent in signing it. There is virtually no discussion in that case

of the Treaty of Old Crossing, 13 Stat. 667 (1863), reprinted in II

C. Kappler 853, and the Supplement to the Treaty of Old

Crossing, 13 Stat. 689 (1864), reprinted in II C. Kappler 861. Nor

does there appear to have been any evidence presented as to

Indian understanding and intent with regard to those treaties. In

this case, petitioners submitted substantial evidence as to the

Indian understanding of the treaty. See, Meyer Decl.,Appendix J.

The government offered nothing. Yet, this Court has repeatedly

reaffirmed the need to determine the intent and purpose of

Indian Treaties. Oklahoma, supra.

Here, imposition of a tax violates federal policy. If the

income in question were earned by petitioners from their own

trust allotment rather than from tribal trust land, then the income

would be exempt. Squire v. Capoeman, 351 U.S. 1 (1956). In

18

Squire, the court found an implied exemption by virtue of the

General Allotment Act even though the income tax statute

___contains no exemption for income earned from an allotment.

If the timber had been logged by the Band itself and a

share of revenues then paid to the Bruns as a per capita payment,

then the income would also be tax exempt. Pub. L. 98-64, 25

U.S.C. § 117; § 1407.

If the Band had done the logging and kept the income for

itself, the income would not be taxable because IRS has

determined that tribes are not taxable entities despite the fact

that the LR.C. contains no such rule. See, Rev. Rul. 94-12.

Thus, it is only because the Bruns directly received the

income, that Internal Revenue Services deems it taxable. This

makes no sense and violates clear federal policy.

5.7 The Court Below Violated Supreme Court

Standards for Summary Judgment Under Rule 56.

The United States did not meet the requirements for

summary judgment and the district court grant of judgment and

subsequent affirmance by the Court of Appeals were error. The

standards for a grant of summary judgment are well known.

Summary judgment is proper:

[I]f the pleadings, depositions, answers to

interrogatories and admissions on file, together

with the affidavits, if any, show that there is no

genuine issue of material fact and that the moving

party is entitled to a judgment as a matter of law.

Fed. R. Civ. P. 56(c).

Summary judgment should not be granted where the

"moving parties’ submissions have not foreclosed the possibility of

the existence of... facts from which ’it would be open to a

jury... to infer from the circumstances’ that [the non-moving

party’s allegations are correct]." Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249 (1986) (quoting Adickes v. S. H. Kress & Co.,

398 U.S. 144, 158-59 (1970)).

sii GUS in a aca

19

In this case, a material fact is the intent of the Indian

signatories to the treaties of cession. Applying the canons of

construction and applicable law, it is clear that those treaties must

be construed in the light most favorable to the Indians and in line

with their understandings. Petitioners Brun supplied substantial

evidence that the understanding of the Indians would not have

been to allow the United States to tax harvest of tribal natural

resources. See generally, Meyer Decl., Appendix J. To the extent

this was controverted by the United States, it is a genuine issue

as to a material fact. The government offered no contradictory

evidence. The Band, as non-moving party presented evidence in

its favor and any reasonable doubts should have been resolved

against the government as the moving party.

A party opposing summary judgment is entitled to the

benefit of all favorable inferences that may reasonably be drawn

from the evidence for the purpose of defeating summary

judgment. Rarnsouer v. Midlin Valley, 135 F.2d 101 (8th Cir.

1943). On appeal from an order granting a defendant’s motion

for summary judgment, the circuit court of appeals must give the

petitioners the benefit of every doubt. Walling v. Fairmont

Creamery Co., 139 F.2d 318 (8th Cir. 1943).

Summary judgment is not to be granted merely because

the moving party appears likely, or even very likely, to prevail at

trial; the summary judgment procedure is reserved for cases where

"material facts are so clear that trial would be an empty exercise

in formalism." See also, Washington Post Co. v. Keogh, 365 F.2d

965 (D.C. Cir. 1966) (“courts must be ever careful to grant

summary judgment only when no issue of fact is controverted or

turns upon choice between permissible inferences from

undisputed evidence").

The court merely determines whether there are any

genuine factual issues relevant to the legal issues in dispute that

"may be reasonably resolved in favor of either party.” Anderson

v. Liberty Lobby, Inc., 477 U.S. at 255. Moreover, as the court

assesses the case for that limited purpose "[t]he evidence of the

i 1 justi infere are to be

nonmovant is to believed,

drawn in bia fara Id. (emphasis added). Thus:

In assessing a motion for summary judgment, all

inferences to be drawn from underlying facts must

be viewed in light most favorable to the party

20

opposing the motion; indeed, the record must

reveal that the party opposing the motion would

not be entitled to prevail in any discernible

circumstances.

Kreuzer v. American Academy of Periodontology, 735 F.2d 1479

(D.C. Cir. 1984). See also, Masson v. New York Magazine, Inc.,

111 S.Ct. 2419 (1991); Lujan v. National Wildlife Federation, 497

U.S. 871 (1990); Shields v. Eli Lilly & Co., 895 F.2d 1463 (D.C.

Cir. 1990).

To survive respondent’s motion, the petitioners "need only

present evidence” which might lead to a judgment in his favor.

Anderson, supra. at 255; Commercial Union Insurance Co. v.

Schmidt, 967 F.2d 270 (8th Cir. 1992). Reasonable doubts

touching the existence of genuine fact must be resolved against

the movant. United States v. Farmers Mutual, 288 F.2d 560 (8th

Cir. 1961).

Even if the moving party has made out a case that would

authorize a grant of summary judgment, a court need not grant

the motion if for any reason the fairer course is to proceed to

trial rather than resolve the case on motion. Kennedy v. Silas

Mason Co., 334 U.S. 249 (1948). This Court has specifically

applied this rule to preclude summary judgment for the United

States in cases involving the status of Indian land. Arenas v.

United States, 322 U.S. 419 (1944). Here, a fairer course would

be to inquire as to the Indian intent in signing the treaties.

The burden of establishing the nonexistence of a genuine

issue of material fact was on the government as the party seeking

summary judgment. Fed. R. Civ. P. 56(c). The party seeking

summary judgment always bears the initial responsibility of

informing the district court of the basis for its motion and

identifying those portions of the pleadings and other materials

which it believes demonstrate the absence of a genuine issue of

material fact. Celotex v. Catrett, 477 U.S. 317 (1986).

In this case, the government offered no hint as to how it

would meet the requirements of the rule. The government did

not argue that no issues of material fact existed nor did it identify

which of the Petitioners claims were inadequate. The government

simply argued that the Petitioners’ claims could not prevail as a

21

matter of law. This is incorrect, as correct interpretation of the

treaties is a central and material fact to this dispute.

Even had the government made a prima facia showing

either evidence negating an essential element of the Petitioners

claims or that the Petitioners evidence was insufficient to establish

an essential element, it failed to carry its burden of persuasion

under Rule 56.

Assuming arguendo that the government carried its

burden of proof, it still did not carry its burden of persuasion

because the Bruns established, on the record, the existence of

sufficient evidence to indicate the existence of genuine issues of

material fact. See generally, Meyer Decl.; Appendix J. Only if a

moving party carries its initial burden of persuasion under

Rule 56, does that burden shift to the non-moving party, who

must either rehabilitate the evidence attacked in the moving

party’s papers, produce additional evidence showing the existence

of a genuine issue for trial as provided in Rule 56(e) or submit an

affidavit explaining why further discovery is necessary as provided

in Rule 56(f). Celotex, 477 U.S. at 333 n3 (citing 10A Wright,

Miller & Kane § 2727, p. 138-43).

A primary issue of fact in this case is the intent of the

Indian signatories to the treaties involved here. The Bruns

submitted ample evidence that support their views. The

government supplied nothing.

Thus, the United States did not meet the requirements for

summary judgment and the district court grant of judgment and

court of appeals affirmance were error. Fed. R. Civ. P. 56(c).

Applying the analysis required by Oklahoma leads to the

conclusion that summary judgment was improper. Rule 56 allows

granting of a summary judgment motion against a party who fails

to make a showing sufficient to establish the existence of an

element essential to that party’s case and on which that party will

bear the burden of proof at trial. Celotex Corporation v. Catrett,

477 US. 317, 322-23 (1986).

Here, the district court completely ignored the need to

determine the Indian intent in signing the treaty and found that

there were ". . . no genuine issues of material fact... ." with

reference to treaty interpretation. Order of August 26, 1994,

22

Appendix C. The Court of Appeals agreed. These rulings ignore

the command that Indian intent be determined. Oklahoma, supra.

5.8. | Taxation of Tribal Income Derived from Tribal

Natural Resources Fringes Upon Tribal

Self-Governance.

In Oklahoma Tax Commission v. Chickasaw Nation, supra,

in finding that the State’s income tax on tribal members living

inside the reservation was permitted, the majority of five noted:

Notably, the tribe has not asserted here, or before the

Court of Appeals, that the State’s tax infringes on tribal

self-governance.

Oklahoma Tax Commission, supra, p. 2223.

In this case, however, the tribe has asserted that taxation

is in interference with tribal policies and goals and this assertion

has not been denied nor countered by the United States.

Imposition of federal income tax upon timber harvested

by individual members upon tribal lands diminishes the value of

all tribal timber. The value of the Band’s timber that is the

subject of the permit, which already is not amenable to harvest by

ordinary commercial contract, decreases by the amount of federal

income tax assessed on the proceeds derived by the individual

member. The value of tribal timber that is suitable for harvest by

commercial contract is diminished by the presence of unharvested

timber that impedes timber growth and commercial harvest.

Imposition of federal income tax upon proceeds derived from the

harvest of tribal timber upon tribal lands by tribal members

frustrates the congressional policies of self-determination and self-

governance of federally recognized Indian tribes as well as the

goal of maintaining a tribal timber program to provide for the

long-term benefit of members of the Band.

The Band determined that the harvest of tribal forest

products provides benefits to the members of the Band. When

volumes or values are sufficiently small that formal contract sales

are deemed unnecessary, or to expediently remove timber

damaged by natural causes to minimize further loss in value,

timber harvesting is accomplished through paid or free use timber

cutting permits or free use without a permit. Complaint. 1 5.8.

23

The timber cutting permit is the primary instrument used

to sell tribal timber on the Red Lake Diminished Reservation.

On the Diminished portion of the Red Lake Reservation, only

tribal members may be granted a permit to harvest and sell

timber. See, e.g., U.S. Department of Interior, Bureau of Indian

Affairs, Red Lake Agency, "Policy Statement for Cutting of Forest

Products Under Permit on Lands of the Red Lake Band of

Chippewa Indians (FY 1981)", originally attached to Petitioner’s

Complaint.

Tribal members who are issued cutting permits of any kind

may not allow the cutting or skidding of timber by nonmembers,

other than family members of their household residing on the

Red Lake Reservation. Complaint. # 5.12.

Revenue from timber sales is vital to the Band, for it

allows the Band to provide essential governmental services to its

members residing on the Reservation. Complaint. { 5.7. It is vital

since natural resources still serve as the basis for virtually all non-

governmental employment on the Red Lake Reservation. Meyer

Decl., Appendix J., p. 74a.

Until relatively recently, tribal sawmills have served as a

source of reservation income for more than fifty years providing

nearly one-third of the non-public employment on the reservation.

Id., p. 75a. As sawmill operations have declined, tribal members,

like the Bruns, have come to rely more on the older tradition of

individual timber sales. Jd., p. 76a.

Commercial rice operations in other states have depressed

that agricultural enterprise increasing the dependence on other

natural resources such as timber. Meyer Decl., p. 76a.

Economic conditions at Red Lake fall below the national

average for Indians. The average unemployment rate approaches,

and seasonally surpasses, fifty percent. The average per capita

income falls below the poverty level. Meyer Decl., p. 77a.

Thus, the assessment of federal income taxes upon tribal

members’ income derived from their harvest of tribal timber

infringes on the Bands self-governance determination to maximize

economic benefits to its members from timber resources.

2A

6. CONCLUSION.

Both the Circuit Court and District Court’s refusal to

investigate the intent and purposes of the treaties entered into by

the Red Lake Band through a review of historical material is

incorrect and clear error. The Red Lake Band submitted

substantial historical material, the United States produced

nothing. This insufficient for a finding of summary judgment, and

such judgment is error. Although reaching different results on

the merits, all nine justices of this Court agree that determining

the purpose and intent of a treaty as to taxation is necessary and

that resort to historical materials is appropriate for such review.

Oklahoma, supra.

When read in the greater context of Indian law, the Red

Lake Band treaties with the United States government must be

interpreted to protect their natural resources from income

taxation by the federal government. The government offered no

factual underpinning that would support a finding that the intent

of the treaty signors was any different. In that case, granting

summary judgment to the party opposing the moving party is the

proper procedure. See, e.g., Portsmouth Square, Inc., v.

Shareholders Protective Committee, 770 F.2d 866 (9th Cir.

1985)("sua sponte summary judgment is appropriate where one

party moves for summary judgment and, after the hearing, it

appears from all evidence presented that there is no genuine issue

of material fact and the non-moving party is entitled to judgment

as a matter of law."). Northland Greyhound Lines v.

Ass’n., 66 F.Supp. 431 (D. Minn. 1946). The court below erred in

granting the government’s motion and refusing to grant the Bruns

summary judgment.

SPLOT Made BIDE o pele MIN henner Hee taNans Ne

BOE Nie PR Ry ie BT ION bealhute

o Manat ak his,

25

Respectfully submitted this 10th day of January, 1996.

MORISSET, SCHLOSSER, AYER &

JOZWIAK

Masori D. Morisset WSBA #00273

1 of Record for Petitioner

1 Second Avenue, Suite 1115

Seattle, Washington 98104-1509

(206) 386-5200

\015209530\pleading\certpet fa!

jac-011096