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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 517 U.S. 1208

## Text

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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

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*“* ee

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1555%3A01. Public record. Not legal advice.