Amicus Curiae Brief — Oklahoma Tax Comm'n v. Chickasaw Nation

No. 94-771

— Se —

In The .

Supreme Court of the United States

October Term, 1994

-

OKLAHOMA TAX COMMISSION,

) 1110

Petitions }

HICKASAW NATION,

On Writ Of Certiorari

lo The United States Court Of Appeals

For The Tenth Circuit

S

BRIEF OF SAC AND FOX NATION AS

AMICUS CURIAE IN SUPPORT OF RESPONDENT

Rict & Bicier

124 N. Cleveland

Cushing, Oklahoma 74023

918) 225-4800

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TABLE OF CONTENTS

Page

pe. OR Be tg e gy}. Se rr ill

EIN B cweeeee ss COE PANE Clee GUPROAR wei hice t canescens 2

eS) go ae ee, y ec 4

RIE cre rc cea eee ee eRe ed ce dey es 5

I. OKLAHOMA MAY NOT APPLY ITS FUEL

TAX AGAINST INDIAN TRIBES ............ 5

A. OKLAHOMA CANNOT TAX THE SALE

OF FUEL BY THE CHICKASAW NATION

BECAUSE CONGRESS HAS NEVER DIS-

SOLVED THE FEDERAL PRE-EMPTION

BARRIER TO STATE JURISDICTION .... 5

B. THE STATE IS WITHOUT AUTHORITY

TO TAX BECAUSE OF INTERFERENCE

WITH TRIBAL SELF-GOVERNMENT .... 10

C. THE HAYDEN-CARTWRIGHT ACT DOES

NOT AUTHORIZE TAXATION WITHIN

THE INDIAN COUNTRY OF THE CHICK-

Pe PER ceca heels teeth encerer’ 13

Il. THE STATE OF OKLAHOMA HAS, AB INITIO,

BEEN PRE-EMPTED FROM TAXING INDIAN

COUNTRY INCOME WITHIN THE CHICK-

SE PO 40 a a COR eo eee 18

A. CONGRESS PRECLUDED STATE

AUTHORITY IN THE INDIAN COUNTRY

BROWS EES PP CHININEINGS. occ ccc cc ewes. 18

B. THE CHICKASAW TREATIES PRECLUDE

STATE TAXATION WITHIN THE

NATION’S INDIAN COUNTRY .......... 23

[1].

TABLE OF CONTENTS — Continued

Page

COURT SHOULD RECONSIDER ITS

RECENTLY DEVELOPED INDIAN DOC-

TRINE IN LIGHT OF RECENT CONGRES-

SIONAL ACTION REJECTING THE COURT'S

RECENT Sis s Os Cee © + icccpavenvaueas 26

CRSP MG IOS wis bos bo oe eee (on seed eee ese

Seentelsin Shai

11

TABLE OF AUTHORITIES

CASES

Ahboah v. Housing Authority of Kiowa Tribe of

Indians, 660 P.2d 625 (Okla. 1983) ..............

re er oe, MEP CUBE) oon cc ce ee eee eas

Board of County Comm'rs. of Creek Country v. Seber,

2)

Bryan v. Itasca County, 426 U.S. 373 (1976) ....9,

California v. Cabazon Band of Mission Indians, 480

U.S. 202 (1987)

Cheyenne-Arapahoe Tribes v. Oklahoma, 618 F.2d

665 (10th Cir. 1980)

Choate v. Trapp, 224 U.S. 665 (1912)

Choctaw Nation v. United States, 318 U.S. 423 (1943) ....2

C.M.G. v. State, 594 P.2d 789 (Okla.), cert. denied,

444 U.S. 992 (1979)

DeCoteau v. District Court, 420 U.S. 425 (1975)

Donnelly v. United States, 228 U.S. 243 (1913)

Duro v. Retna, 495 U.S. 676 (1990)

Ex Parte Webb, 225 U.S. 663 (1912)...

Housing Authority of the Seminole Nation v. Harjo,

790 P.2d 1098 (Okla. 1990) .

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

Kennerly vy. District Court, 400 U.S. 423 (1971) .......

McClanahan v. Arizona Tax Commission, 411 U-S.

164 (1973). . a te

Page

a.

ho

AN

TABLE OF AUTHORITIES — Continued

Page

Menominee Tribe v. United States, 391 U.S. 404

CEE ee eee ek eh te ee ee ee a eae 24

Moe v. Confederated Salish and Kootenai Tribes, 425

ee OE OS es oa esa Cea eka 9, 12

Montana v. Blackfeet Tribe, 471 U.S. 759 (1985).....9, 22

Montana v. United States, 450 U.S. 544 (1981) ........ 27

Oklahoma Tax Commission vy. Citizen Band

yotawatomi, 74% 3.00. SUD CSF) 2. wc cic caccscs. 26

Oklahoma Tax Commission v. Sac and Fox Nation,

Se Gk Ce LOWED vc aint tesa eee 2, 4, 6, 16, 18

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191

oi Be eer re Les AO Kd bee ee ed eae CECE 26

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

of Mew Mexico, 456 U.S. 632 (1982) 2.6 cei cece, 9

Ross v. Neff, 905 F.2d 1349 (10th Cir. 1990) .......... 25

Seymour v. Superintendent, 368 U.S. 351 (1962) ....... 29

soltem v. Bartlett. 465 U.S. 463 (1984) .... 2... cease. 6

State v. Littlechief, 573 P.2d 263 (Okla. Cr. 1978)...... 24

United States v. Dion, 476 U.S. 734 (1986)..... i4, 23, 24

United States v. John, 437 U.S. 634 (1978)............. 6

United States v. McGowan, 302 U.S. 535 (1938)....... 17

United States v. Mazurie, 419 U.S. 544 (1975).......... 6

United States v. Nice, 241 U.S. 591 (1916)............ 27

United States v. Pelican, 232 U.S. 442 (1914) ......... 17

United States v. Ramsey, 271 U.S. 467 (1926) ......... 17

TABLE OF AUTHORITIES — Continued

Page

United States v. Sandoval, 231 U.S. 28 (1913)......... 17

United States v. Wheeler, 435 U.S. 313 (1978)......... 26

Washington v. Confederated Tribes of the Colville

Reservation, 447 U.S. 134 (1980)............. 9, 12, 26

White Mountain Apache Tribe v. Bracker, 448 U.S.

Ce CUR ieee Sor eR re ee ee 9

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)

8, 24, 29, 30

CONSTITUTIONS

Oe er a ae ae, fe ince ec 6, 29

Oklahoma Constitution Art. 1, Section 3............... 21

Oklahoma Constitution Art. 1, Section 6............... 20

STATUTES AND REGULATIONS

Oklahoma Organic Act, Act of May 2, 1890, ch. 182,

eee ME, ee SSE ei aace see oeeeee e ae .19, 20, 21

Oklahoma Enabling Act, Act of June 16, 1906, ch.

DAFA. De OS Tks ee 12, 20

Act of February 15, 1929, ch. 216, 45 Stat. 1185...... 17

Indian Reorganization Act, 48 Stat. 984 (1934) ......: 3, 16

Act of June 16, 1936, ch. 582, 49 Stat. 1519....... 13, 16

Oklahoma Indian Welfare Act, 49 Stat. 1967 (1936)

Act of Aug. 15, 1953, P.L. 83-280, 28 U.S.C. § 1360 as

amended and supplemented by 25 U.S.C. § 1322..8, 17, 26

Vi

TABLE OF AUTHORITIES — Continued

Page

Indian Tribal Justice Act (1993) (Section 2(5)(6)(7)) .... 28

ee ee CPN ay a oan a va eek Geese 27

P.L. 102-137, 105 Stat. 646, 102 Cong. Ist Sess........ 28

ETO oi ao Se oa 05 45.0 RK a en ee VRS ee 28

ANE SEEN OE sone ket oet.ceee esse Ga Vae Ea |

2 RS a re eae ea A ln Ce 13, 16, 18

rn EMIS"... 4 0 00 b0:0 0444 AS Me eee 13

DE UDR sb 5 oct a nh ec ncdwweaans bowhbewers 4, 5, 18, 29

Es MC UONG 6 oo Ck ooo 54 0 ede Be AHEES ERA OEE 17

gp 2S si 0 | "> SR mm rer re tng A 17

ST Oe hy isa oan ee ted teeta 3

oo BS ak YS | re ii. c ace eae 17

Sg og 5 0.9.5 006 AKER DR a EERO 17

EEO.) os ve a oeas ee Kee KO eA ree 17

eS a. gr iio 676-055 dS in eae ee ey ee ee 3

Ee. OPUS 00 WOU. viiic Saves caav cease Cea peel 25

a |. re See ag hare eee a asta ates Ccaaonm

oS a | ee eee tr ey eRe Ae 3

22 U.S. $1321 ot seg....... EPP rere Tes Sey 17

ne Ss oS co's oy va ORV eRe 1]

SL SE ae SS) Peer ea erer arr Sn re re 25

a. GD, Va w pices 5 04-can Res eee ea 17

a bs ne , Vien eee er

TABLE OF AUTHORITIES — Continued

Page

TREATIES

Treaty of Dancing Rabbit Creek, Art IV, Sept. 7

eee oe or ei rr ee 4, 23, 24

OTHER AUTHORITIES

S.R. No. 699, 83rd Congress, Ist Session (1953)........ 8

es Fs SUE Ua, Us Ey OME 6 6 ewe nk cede de Sea oes 28

ae SR ee ) ae 28

a Se SU” SUE te WO oo. are hw hk eee Oa aun 28

H.R. 11687, 74th Cong., 2nd Sess. (1936) eer eee ee e

fe ee ae ee, ee ee ee 28

H.R. No. 103-205, August 2, 1993.... oer

H. Cont. Rpt. 102-261, Oct. 22, 199] ae

H. Cont. Rpt. 101-938 ...... ee

H. Conf. Rpt. No. 103-383, Nov. 19, 1993 ae

51 Cong. Rec. 2104 (1890) . eee

S51 Cong. Rec. 2176 (1890) cha we eee oe 22

Congr. Rec. Senate, Monday, August 2, 1993, 103rd

CE Oe eG sa 2K ea esa bon ee se BARA ED ee 29

139 Cong. Rec. S.10083, The Supreme Court of the

United States, (Confirmation hearing of Justice

Ginsberg.) ..... Pr Thy re ee ee 29

140 Cong. Rec. S.2635, $.2637, POM-399........... 27

F. Cohen, Handbook of Federal Indian Law (1942

ed.) .

Vill

1

TABLE OF AUTHORITIES — Continued

Page

F. Cohen, Handbook of Federal Indian Law (1982

I occas oe et ce ak ed CML eee 14, 15

The Federalist No. 3 (J. Jay) (C. Rossiter ed. 1961)..... 7

The Federalist No. 42 (J. Madison) (C. Rossiter ed.

PN go ew eT eae ae are as ere ears 8

State and Indian Tribal Taxation on Indian Reserva-

tions — Is It Too Taxing?, 1989 Harvard Law Sym-

posium, Susan Williams and Kevin Gover (1990,

President and Fellows of Harvard College) .......... 10

Application of Federal and State Sales to Menominee,

57 Interior Decision 129 (1940) ................255. 14

38 Opinion of Attorney General 522 (1936)............ 14

No. 94-771

¢

In The

Supreme Court of the United States

October Term, 1994

o

OKLAHOMA TAX COMMISSION,

Petitioner,

CHICKASAW NATION,

Respondent.

*

On Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

%

BRIEF OF SAC AND FOX NATION AS

AMICUS CURIAE IN SUPPORT OF RESPONDENT

> —_

Pursuant to Supreme Court Rule 37, the Sac and Fox

Nation, (hereinafter referred to as “The Nation”), files this

brief amicus curiae on the side of respondent and in opposi-

tion to the petitioner in this case. Both respondent and the

petitioner have consented to the filing of this brief of amicus

curiae.

The Nation is a federally recognized Indian tribe with an

established, well organized tribal government, with long-

standing treaty relationships with the United States. Petitioner

challenges the decision below by contending that Oklahoma

may tax transactions within Indian country of the Chickasaw

involving the Chickasaw’s members. Such a ruling is argued

to mean that the Nation and its members are subject to

virtually total state authority and control on all Indian-owned

lands restricted against alienation by federal law. A holding

2

by this Court in favor of petitioner on these grounds would

have a devastating impact on the Nation and its members, for

it would deprive the Tribes of many traditionaliy exercised

governmental authorities, most particularly the ability to raise

revenue to fund operations.

The Tribes governmental interest are vital. The Nation

submits the attached brief to show that the jurisdictional

status of Indian owned restricted lands resides with the Tribal

and Federal government. The Nation also wishes to address

the history of decisions by this Court and the lower federal

and state courts precluding state jurisdiction, and upholding

federal and tribal jurisdiction, over Indian lands in Oklahoma,

including allotments, reserved lands and subsequently

acquired lands. Both Congressional policy, and the consis-

tency of federal and state court decisions upholding federal

jurisdiction and denying state authority serve as reason for

this Court to affirm the decision of the Court of Appeals for

the Tenth Circuit.

INTEREST OF AMICUS CURIAE

The Nation is a federally-recognized Indian tribe, having

a well-organized tribal government with a continuous treaty

relationship with the United States, which began in the ear-

liest years of the Republic. The governmental authority of the

Nation would be seriously compromised if the Court were to

rule favorably on the contentions presented by petitioner. The

Nation has a vital interest in protecting its governmental

authority, and the corresponding exemption from state juris-

diction. This authority and exemption is currently the subject

of ongoing litigation following this Court’s decision in Okla-

homa Tax Commission v. Sac and Fox Nation, 113 S.Ct. 1985

(1993) (hereinafter Sac and Fox Nation).

The Nation administers its own tribal court supported by

Bureau of Indian Affairs grants and contracts, tribal tax reve-

nues, and tribal funds. The Nation is organized with a written

constitution approved by the Secretary of the Interior pur-

suant to the Oklahoma Indian Welfare Act of June 26, 1936,

3

49 Stat. 1967 (25 U.S.C. §503) (hereinafter O.1.W.A.). The

Nation has also incorporated the provisions of the Act of June

18, 1934, 48 Stat. 984 (25 U.S.C. §461 et seq.) (Indian

Reorganization Act) with Secretarial approval.

Pursuant to these fundamental foundations, the Nation

has enacted, and enforced, a myriad of statutes which regulate

the conduct of all persons within the Indian country subject to

the jurisdiction of the Nation. The laws enacted by the Nation

include provisions authorizing the incorporation of business

and non-profit corporations, removal or discipline of elected

tribal officials, the regulation of the gaming industry, regula-

tion of the mineral mining industry including oil and gas

mining, regulating security agreements and the filing and

enforcement of liens, provisions for the levy and collection of

tribal taxes including taxes on all forms of tobacco and motor

fuels, regulation of certain industries, provisions providing

for public health facilities and public housing, provisions

defining the punishment for criminal offenses and providing

for police and fire protection, as well as provisions for com-

plete trial and appellate court systems with what is believed to

be model tribal laws relating to tribal courts, civil, criminal,

appellate, and juvenile procedure, and rules of evidence.

Interpreters are provided in the tribal court when needed.

In addition to these statutory enactments, the courts of

the Nation enforce tribal traditions and customs as the com-

mon law of the tribe in a manner similar to that in which

American customs and traditions are enforced as the common

law in state and federal courts. Actions relating to marriage,

divorce, child custody, guardianships, probate of estates, con-

tract rights, tortious conduct, and requests for relief in equity

are not uncommon.

These laws are enforced within the Indian country of the

Nation. This consists, at a minimum, of the trust or allotments

and lands owned by the tribe reserved from allotment or

acquired in trust by the United States or restricted against

alienation by the United States pursuant to Acts of Congress,

25 U.S.C. §§177, 335, 465, 501. The Nation maintains the

cca

4

position that its original reservation boundaries were not

disestablished, or that at worst, the reservation was dimin-

ished but not disestablished in the allotment process. This

question has not yet been authoritatively determined under the

modern definition of Indian country, or the modern test for

reservation disestablishment or diminishment as adopted by

this Court in response to the enactment of 18 U.S.C. §1151.

The Nation has a direct interest in the outcome of this

action insofar as the Oklahoma Tax Commission requests this

Court to render a decision judicially allowing taxation of

recognized tribal governments, tribal members, and Indian

country without Congressional sanction which will directly

effect the Nation's current federal district court litigation on

remand from Sac and Fox Nation, supra.

SUMMARY OF ARGUMENT

1. Oklahoma may not tax Indian tribes for their sales of fuel

within their Indian country. Both of the separate, but related,

doctrines of pre-emption and infringement prohibit the tax at

issue. Additionally, the Hayden-Cartwright Act, which was

not addressed below, does not overcome the barrier against

State taxation of Indians or Indian Tribes.

2. The State of Oklahoma has never had authority to tax

Indian income within the territory of the Chickasaw Nation.

Both the statutes creating the State of Oklahoma and the

Treaty of Dancing Rabbit Creek recognized the prohibition of

Oklahoma authority in the Chickasaw’s Indian country.

3. Recent Congressional action underscores the legislative

branch's policy prohibiting state interference in the Indian

country. Thus, not only 1s Oklahoma prohibited from taxing

Indians or Indian Tribes within the Chicksaw’s territory, the

Court should reconsider its recent policies regarding state

jurisdiction over both non-member Indians and non-Indians.

5

ARGUMENT

I. OKLAHOMA MAY NOT APPLY ITS FUEL TAX

AGAINST INDIAN TRIBES

The Petitioner argues that it has the ability to tax fuels

sold by the Chickasaw. It does this through two mechanisms;

first, that the state suffers harm by Tribal sales of gas without

the State sales tax attached. Secondly, that the legal incidence

of the tax is irrelevant to the state’s ability to tax fuel sales

within the jurisdiction of the Indian Tribes. Both arguments

must fail when viewed against the long established jurispru-

dence of this Court in the special area of Indian Taxation.

A. OKLAHOMA CANNOT TAX THE SALE OF

FUEL BY THE CHICKASAW NATION

BECAUSE CONGRESS HAS NEVER DIS-

SOLVED THE FEDERAL PRE-EMPTION BAR-

RIER TO STATE JURISDICTION.

The Oklahoma Tax Commission would have the Court

believe that this controversy is solely one of State vs. Tribal

authority. In 1948, Congress codified the Supreme Courts

existing common law classifications of Indian Country by the

Act of June 25, 1948, 62 Stat. 757, codified in its present

form at 18 U.S.C. §1151, which states:

Except as otherwise provided in sections 1154

and 1156 of this title, the term “Indian country”, as

used in this chapter, means (a) all land within the

limits of any Indian reservation under the jurisdic-

tion of the United States Government, notwithstand-

ing the issuance of any patent, and, including

rights-of-way running through the reservation, (b)

all dependent Indian communities within the bor-

ders of the United States whether within or without

the limits of a state, and (c) all Indian allotments,

the Indian titles to which have not been extin-

guished, including rights-of-way running through

the same

6

Oklahoma was not excepted from the terms of this Act. This

Court, while often speaking in terms of “reservation” or

“allotment” or “dependent Indian community” as relevant in a

particular circumstance has, since 1948, clearly held that

“Indian country” is the legally recognized term of art defining

the territorial area for the exercise of tribal self-government

and federal supervision. Sac and Fox Nation, supra. See also, —

United States v. Mazurie, 419 U.S. 544 (1975); DeCoteau v.

District Court, 420 U.S. 425 (1975)!; United States v. John,

437 U.S. 634 (1978): Solem v. Bartlett, 465 U.S. 463 (1984).

In truth, Indian country is a question of the authority of the

Federal government vis-a-vis the State.

Article I, Section 8, Clause 3 of the Constitution of the

United States vests the sole power to control commerce

between citizens or subjects of the United States and the

Indian Tribes exclusively in the Congress of the United

' In footnote 2 of the opinion, the Court stated: “If the lands in

question are within a continuing ‘reservation’; jurisdiction is in the tribe

and the Federal Government “notwithstanding the issuance of any patent

.... On the other hand, if the lands are not within a continuing reservation,

jurisdiction is in the State, except for those land parcels which are ‘Indian

allotments, the Indian titles to which have not been extinguished, including

rights-of-way running through the same.’ While §1151 is concerned on its

face, only with criminal jurisdiction, the Court has recognized that it

generally applies as well to questions of civil jurisdiction.” (citations

omitted). After concluding that the Sisseton-Wahpeton reservation had

been disestablished, the Court concluded: “In such a situation, exclusive

tribal and federal jurisdiction is limited to the retained allotments. 18

U.S.C. §1151(c).” Id. at 446.

2 In footnote 8 at page 467 of the opinion of the Court stated:

“Regardless of whether the original reservation was diminished, federal

and tribal courts have exclusive jurisdiction over those pertions of the

opened lands that were and have remained Indian allotments. In addition,

opened lands that have been restored to reservation status by subsequent

Acts of congress fall within the exclusive criminal jurisdiction of federal

and tribal courts.”’ (citations omitted).

7

States. The founding fathers explained their reasons for vest-

ing such authority exclusively in Congress instead of a shar-

ing arrangement with the States — as had been the case under

the Articles of Confederation — in the following manner:

[T]he prospect of present loss or advantage, may

often tempt the governing party in one or two States

to swerve from good faith and justice; but those

temptations not reaching the other States, and con-

sequently having little or no influence on the

national government, the temptation will be fruit-

less, and good faith and justice be preserved... .

Not a single Indian war has yet been occasioned by

the aggressions of the present Federal Government,

feeble as it is, but there are several instances of

Indian hostilities having been provoked by the

improper conduct of individual States .

See, The Federalist No. 3, pp. 43-44 (C. Rossiter ed. 1961)

(NAL Penguin, Inc. Publisher) and further:

The regulation of commerce with the Indian tribes

is very properly unfettered from two limitations in

the Articles of Confederation, which render the pro-

vision obscure and contradictory. The power is

there restrained to Indians, not members of any of

the States, and is not to violate or infringe the

legislative right of any State within its own limits.

What description of Indians are to be deemed mem-

bers of a State is not yet settled, and has been a

question of frequent perplexity and contention in

the federal councils. And how the trade with

Indians, though not members of a State, yet residing

within its legislative jurisdiction can be regulated

by an external authority, without so far intruding on

the internal rights of legislation, is absolutely

incomprehensible. This is not the only case in

which the Articles of Confederation have inconsid-

erately endeavored to accomplish impossibilities; to

reconcile a partial sovereignty in the Union, with

complete sovereignty in the States; to subvert a

8

mathematical axion by taking away a part and let-

ting the whole remain.

See, The Federalist No. 42, pp. 268-269 (C. Rossiter, ed.

1961) (NAL Penguin, Inc. Publisher).

Far from allowing the situation occasioned by the Arti-

cles of Confederation to remain, the Constitutional Conven-

tion intentionally framed the Commerce Clause to remove

from the States all authority concerning commerce with the

Indian Tribes by non-Indians. Worcester v. Georgia, 31 U.S.

(6 Pet.) 515 (1832).

In Kennerly y. District Court, 400 U.S. 424 (1971), the

Court recognized that Public Law 83-280, 28 U.S.C. §1360 as

amended by 25 U.S.C. §1322 was a “governing Act of Con-

gress” concerning state authority to regulate matters involv-

ing Indians in the Indian Country thereby precluding reliance

on an “infringement test” or application of a balancing test.

Simply stated, Congress intended that States comply with this

act in order to acquire jurisdiction over commerce with

Indians in the Indian Country.

Examination of the Federal statutes and State Con-

stitutions have revealed that enabling acts for eight

States, and in consequence the constitutions of

those States, contain express disclaimers of juris-

diction. Included are .. . Oklahoma... . Effect of

the disclaimer of jurisdiction over Indian land

within the borders of these States — in the absence

of consent being given for future action to assume

jurisdiction — is to retain exclusive Federal jurisdic-

tion until Indian title to such lands is extinguished.

(emphasis added).

S. Rep. No. 699, 83rd Cong., Ist Sess., 1953 U.S. Code

Congressional and Administrative News 2409, 2412 (legisla-

tive history).

This statute, commonly referred to as P.L. 83-280,

expressly extends the civil and criminal laws having general

application to all persons and property within the State into

the Indian Country within the states subject thereto, with

9

certain limitations as to the application thereof to Indians of

the affected Indian Country. This statute, then, is the sole

Congressionally authorized general mechanism for states to

exert authority over commerce with Indians in the Indian

Country.

It is absolutely clear that with rare exception Congress

has not allowed the taxation of Indians in “Indian Country”

by a state. Montana v. Blackfeet, 471 U.S. 759 (1985); White

Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980);

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

Mexico, 458 U.S. 832 (1982). Nor may a state generally tax

Indians in “Indian Country” even if a state has assumed

criminal and civil jurisdiction over “Indian Country”. Bryan

v. Itasca County, Minnesota, 426 U.S. 373 (1976). The Court

has recently held, however, that a state may tax non-Indians

in “Indian Country” if the tax burden does not frustrate tribal

self-government or federal policy. Moe v. Confederated Salish

& Kootenai Tribes, 425 U.S. 463 (1976); California v. Cab-

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

In Moe and Washington v. Confederated Tribes of the

Colville Reservation, 447 U.S. 134 (1980) the Court allowed

a tax on non-Indians. This Court held that the tax was on non-

Indians and thus did not frustrate tribal self-government and

was not prohibited by the federal preemption barrier. The

Oklahoma Tax Commission differs from Moe and Colville

because the Tax Commission has taxed the tribe directly. The

Tenth Circuit correctly held that the incidence of the fuel tax

fell upon the Indian retailer. Colville, id., allowed the state

tax because the first taxable event was the use, consumption

or possession by the non-Indian. /d., at 142, footnote 9. Moe

likewise contains a specific statute that the tax “shall be

conclusively presumed to be [a] direct [tax] on the retail

consumer.” Moe, 425 U.S., at 482. The Oklahoma Motor Fuel

Tax code contains no such clear placement of the tax upon the

10

retailer. To the contrary, it specifically states that the distribu-

tor collects the tax “on behalf of a licensed retailer.” 68 Okla.

Stat. §505C.

B. THE STATE IS WITHOUT AUTHORITY TO

TAX BECAUSE OF INTERFERENCE WITH

TRIBAL SELF-GOVERNMENT.

The federal government maintains a federal policy

encouraging Indian economic development and tribal self-

government. If the tribal businesses must pay both state and

tribal taxes on top of federal taxes, the Court will create an

unlevel playing field in favor of the State. Economic develop-

ment in Indian Country would be devastated or eliminated

altogether by having to pay triple taxation, or the Tribal

government will have to forego sorely needed tax revenues

and its ability to exercise i's governmental functions by creat-

ing a legal infrastructure within which to conduct trade and

other business. Bryan vy. Itasca County, Minnesota, 426 U.S.

373, 388 (1976) noted the destructive effect of allowing the

tribe to be subject to state and local tax.

State taxes would limit the tribes ability to raise and

maximize tribal revenues, to determine whether to make cer-

tain property or transactions tax exempt, or to limit taxation

of certain property or businesses in order to encourage eco-

nomic development, all of which would directly infringe on

their ability to govern their own affairs.> Such taxes also

frustrate federal efforts to aid Indian Country. Congress annu-

ally appropriate approximately one billion dollars a year for

Federal Indian programs. Yet almost half of this, $500 mil-

lion, is then immediately pulled back out of Indian Country

through federal and state taxes. /d. note 9, p. 188.

>

¥ See State and Indian Tribal Taxation on Indian Reservations — Is It

Too Taxing ?, 1989 Harvard Law Symposium, Susan Williams and Keven

Gover, pp. 180-181 (1990, President and Fellows of Harvard College).

1]

The Oklahoma Tax Commission’s attempt in this case to

assess the Chickasaw Fuel taxes is substantively and pro-

cedurally defective. The State of Oklahoma has neither civil

nor criminal jurisdiction within Indian Country. Housing

Authority of the Seminole Nation v. Harjo, 790 P.2d 1098

(Okla. 1990), Ahboah v. Housing Authority of the Kiowa Tribe

of Indians, 660 P.2d 625 (Okla. 1983). It is absolutely incon-

ceivable that Congress would allow any significant state taxa-

tion in areas where the tribes are responsible for both civil

and criminal jurisdiction. Furthermore, the responsibility of

exercising civil jurisdiction carries with it the responsibility

of regulating interaction with both Indian and non-Indian.

The Chickasaw, unlike any state government, are asked

to exercise criminal and civil jurisdiction while having tax

monies drained by both the federal and state taxing authori-

ties. The State of Oklahoma has revenues drained from only

one authority (federal), while tribal governments are respons-

ible for both civil and criminal jurisdiction in the Indian

Country within the State. Thus state taxation within “Indian

Country” located in Oklahoma has not been allowed or autho-

rized by Congress.

A key consideration in determining the authority of a

state to tax within “Indian country” 1s whether the state has

civil and criminal jurisdiction. In McClanahan v. Arizona

State Tax Comm'n, 411 U.S. 164 (1973), the Court, in dealing

with such a situation, explained:

. a Startling aspect of this case 1s that appellee

apparently concedes that, in the absence of compli-

ance with 25 U.S.C. 1322(a), the Arizona courts can

exercise neither civil nor criminal jurisdiction over

reservation Indians .. . But the appellee nowhere

explains how, without such jurisdiction, the State's

tax may either be imposed or collected . . . Unless

the State is willing to defend the position that it

may constitutionally administer its tax system alto-

gether without judicial intervention . . . the admit-

ted absence of either civil or criminal jurisdiction

12

would seem to dispose of the case. (Emphasis

added).

McClanahan, 411 U.S. at 178-179. Indeed, conferring civil

and criminal jurisdiction upon a state may still leave the state

without taxing authority over Indians in “Indian country”.

Bryan v. Itasca County, 426 U.S. 373 (1976). But there has

never been any case which has held that a state may tax

Indians within any part of “Indian Country” where that state

has no general civil or criminal jurisdiction unless Congress

has specifically legislated to grant the states taxing power.

Neither Moe nor Colville involved tribes which provided

services to the taxpayers. But in Oklahoma the Indian Tribes

provide the protection of civil laws to all individuals doing

business within their jurisdiction. This protection and exer-

cise of jurisdiction extends to both Indian and non-Indian

alike.

The Oklahoma Indian Welfare Act restores the Indian

Tribes in Oklahoma to their original exclusive jurisdiction

over those transactions occurring within their country to the

exclusion of the state. At a minimum the O.I.W.A. requires

the state to show an affirmative subsequent Congressional

delegation of authority to the state to enter the Indian Country

within Oklahoma. The state has yet to show that it has

received such a Congressional grant of power, except for the

discredited reliance on the Enabling Act. In other words, prior

to the creation of the State of Oklahoma, the Chickasaw and

Amicus exercised undiminished and exclusive authority in

civil matters arising in their country for the simple reason that

no state existed to challenge that authority. Given the prohibi-

tion against assertion of state jurisdiction imposed by the

Oklahoma Enabling Act, Act of June 16, 1906, ch. 3335, 34

Stat. 267 and the failure of the Oklahoma Enabling Act, Act

of June 16, 1906, ch. 3335, 34 Stat. 267 and the failure of the

Oklahoma Tax Commission to show any explicit general Con-

gressional grant of authority to tax or regulate trade with the

Indians since statehood in 1907, the State’s position must fail.

13

C. THE HAYDEN-CARTWRIGHT ACT DOES NOT

AUTHORIZE TAXATION WITHIN THE

INDIAN COUNTRY OF THE CHICKASAW

NATION.

Petitioner also relies upon the passage of the Hayden

Cartwright Act, Section 10, Act of June 16, 1936, codified at

4 U.S.C. §104 as a basis for its ability to tax fuel sales within

the Indian Country of the Chickasaw. While Amicus believes

this is not properly before the Court as it was not briefed by

the parties below, nor formed a basis for the circuit opinion,

the brief of Amicus States went at length into the Act.

Therefore, Amicus Sac and Fox Nation believes that at a

minimum the Court should be aware that the Act does not

apply to the Chickasaws.

The Hayden-Cartwright Act was enacted on June 16,

1936. It contained needed appropriations and amendments for

the Federal Aid Highway Act. The particular provision that is

addressed by Amicus States is codified at 4 U.S.C. §104(a):

All taxes levied by any State, Territory, or the

District of Columbia upon, with respect to, or mea-

sured by, sales, purchases, storage, or use of gas-

oline or other motor vehicle fuels may be levied, in

the same manner and to the same extent, with

respect to such fuels when sold by or through post

exchanges, ship stores, ship service stores, commis-

saries, filling stations, licensed traders, and other

similar agencies, located on United States military

or other reservations, when such fuels are not for

the exclusive use of the United States. Such taxes,

so levied, shall be paid to the proper taxing authori-

ties of the State, Territory, or the District of Colum-

bia, within whose borders the reservation affected

may be located.

The States and Petitioner have seized upon the use of the

term “military or other reservations” as proof that the state

may tax the Indian Country of the Chickasaw. There are two

primary flaws with arguing that this provision creates a ful-

crum that overcomes the presumption against state taxation of

14

Indian tribes. First, as before stated, is the requirement that

taxation laws must be evidenced by clear congressional state-

ments. Second, in order for this specific provision to apply to

the Chickasaw, and thus to other Tribes in Oklahoma, there

must be a reservation. Each of these points will be addressed

in turn.

(a) In the field of Indian law special canons of con-

struction apply to statutory interpretation. Felix S. Cohen’s

Handbook of Federal Indian Law (1982 ed.) (hereinafter

Cohen’s) explains that “generally they provide for broad con-

struction when the issue is whether Indian rights are reserved

or established, and for narrow construction when Indian rights

are to be abrogated or limited.” Cohen’s supra, at 225 (1982

ed.) In order for a statute to take away sovereign rights of a

tribe, this Court has required that clear and unambiguous

language be used. Additionally it must be shown that Con-

gress considered the consequences of its action as regards to

the effect upon Indians and Indian tribes. See United States v.

Dion, 476 U.S. 724 (1986) (discussing the abrogation of

treaty hunting of eagles by the Endangered Species Act.)

Both the Petitioner and Amicus States refer to two Opin-

ions that state that the Act applies to tribes, Application of

Federal and State Sales Taxes to Activities of Minominee

Mills, 57 Interior Dec. 129 (1940) and 38 Opinion of the

Attorney General 522, (1936). However, these two opinions

also failed to consider the unique statutory construction that

comes into play regarding Indian tribes. The Opinions cited

by Petitioner fail to do so. While noting the existence of these

opinions, the Revised Felix S$. Cohen’s Handbook of Federal

Indian Law (1982 ed.) explains:

In passing this statute Congress did not consider its

possible application to transactions involving reser-

vation Indians. The tax authorization was first

passed as part of a 1936 highway construction stat-

ute, and other sections of the Act refer to Indian

reservation roads. Act of June 16, 1936, ch. 582,

Sections 3, 6, 49 Stat. 1519, 1520, 1521. But the tax

15

authorization was not part of the initial bill that

passed the House and cicared the appropriate Senate

committee. H.R. 11687, 74 Cong., 2d Sess (1936).

See 80 Cong.Rec. 5613, 6408 (1936). Thus, the

committee reports make no reference to it. H.R.

Rep. No. 2371, 74th Cong., 2d Sess. (1936); S. Rep.

No. 1967, 74th Cong., 2d Sess. (1936). A separate

bill proposing the tax authorization had been intro-

duced in the House. H.R. 3660, 74th Cong., 2d

Sess. (1936). When the highway bill came before

the full Senate, the provisions of H.R. 3660 were

added as a floor amendment. 80 Cong. Rec. 6913

(1936). There is no separately published history on

H.R. 3660, and the subsequent Conference Report

on the amended highway bill added no explanation

of the tax provision. H.R. Rep. No. 2902, 74th

Cong., 2d Sess. | (1936). During final debate, a

House member described the tax section as dealing

with a problem in “post-exchange stores and on

Government reservations.” 80 Cong. Rec. 8701

(1936) (Mr. Whittington). See also id. (Senate).

The Interior Solicitor has concluded that the statute

does not authorize state taxation of fuel purchased

by a tribal enterprise to operate a tribal sawmill but

does authorize state taxation of retail sales by the

tribal enterprise, both to Indians and to other per-

sons. 57 Interior Dec. 129 (1940).

Cohen's, p. 412, footnote 62. This hardly qualified as a

considered action relating to the effect it would have upon

Indian Country.

Elsewhere within the same bill, appropriations are made

for Indian roads. Section Three specifies that:

[T]here is hereby authorized to be appropriated for

the survey, construction, reconstruction, and main-

tenance of main roads through unappropriated or

unreserved public lands, nontaxable Indian lands,

or other Federal reservations other than the forest

reservations. (Emphasis added).

16

Act of June 16, 1936, §3. Section Six also specifically refers

to “Indian reservation roads” and appropriates $4,000,000.00

for such roads. Thus, within the same act referred to by

Petitioners it is illustrated that the Congress knew how to

make separate provisions apply to Indian Country. If the term

Federal reservation encompassed Indian reservations, there

would have been no need to repeat a term which was a subset

thereof. This makes particular sense as Indian reservations are

not in reality set aside for the use and benefit of the federal

government. Indian reservations were created, or reserved for

the use and occupancy of Indian Tribes, who were and are at

least a semi-sovereign separate and apart from the federal

government.

Other contemporary Acts further illustrate the non-tax

ability of Indian lands within Oklahoma. Ten days after the

passage of the Hayden-Cartwright Act the Congress passed

the Oklahoma Indian Welfare Act, Act of June 26, 1936. This

Act was to promote the general welfare of the Oklahoma

Indian, and bestow upon them the benefits of the Indian

Reorganization Act. Act of June 18, 1934. In so doing, Sec

tion One allowed the acquisition of lands for Oklahoma

Indians and provided that “Title to all lands so acquired shall

be taken in the name of the United States, in trust , and

while title thereto 1s held by the United States said lands shall

be free from any and all taxes, save that the State of Okla

homa 1s authorized to levy and collect a gross-production

tax.” Thus by specific legislative intent, gross production

taxes, and no other, were made applicable to newly acquired

Indian trust land

(b) Up to this point, Petitioner has consistently argued

that there are no reservations remaining in Oklahoma. See Sac

and Fox Nation, supra. It the Court should decide that the 4

U.S.C. §104 applies to Indian Tribes, then in order for this

Court to apply the Act to the Chickasaw and other Oklahoma

lribes, this Court must find that reservations continue to exist

in Oklahoma

17

The effect of the early statutes defining Indian country

was summarized by the noted Indian law scholar, Felix

Cohen, in his Handbook of Federal Indian Law 6 (1942 ed.)

as follows:

Indian country in all these statutes is territory,

wherever situated, within which tribal law is gener-

ally applicable, federal law is applicable only in

special cases designated by statute, and state law is

not applicable at all.4

Although the 1834 definition of Indian Country was not

included in the Revised Statutes of the United States, and

therefore repealed, it provided a useful mechanism for the

Court to apply statutory laws relating to “Indian Country” and

“Indian Reservations”. Donnelly v. United States, 228 U.S.

243, 269 (1913). In a series of now famous cases, the Court

developed a definition of “Indian Country” at common law

which included Indian reservations, Bates v. Clark, 95 U.S.

204 (1887); Donnelly, supra, trust and restricted Indian allot-

ments, United States v. Pelican, 232 U.S. 442 (1914); United

States v. Ramsey, 271 U.S. 467 (1926), and areas set aside for

the use and occupancy of Indians (dependant Indian commu-

nities) although not called a “reservation”, United States vy.

Sandoval, 231 U.S. 28 (1913); United States v. McGowan,

302 U.S. 535 (1938).

The Hayden-Cartwright Act speaks of the application of

State taxes to federal reservations. However, reservations are

just one manner in which Indian lands arise to the status of

4 The complete prohibition as to the application of state law in the

Indian Country has been modified to the extent Congress has deemed

proper. 18 U.S.C. §1161 (liquor laws); Act of February 15, 1929, Ch. 216,

45 Stat. 1185 (health and education) (25 U.S.C. §231); 25 U.S.C. §§232,

233 (New York); see also, Public Law 83-280.

18

Indian Country. The statutory definition of Indian Country, con-

tained in 18 U.S.C. §1151 lists three categories of Indian lands;

reservations, allotments and, dependent Indian communities. Indian

Country is the term of art that refers to land validly set apart for the

use of Indians because of their status as Indians. Sac and Fox

Nation, 113 S.Ct., at 1991. The general rules of tribal sovereignty

and preemption or infringement articulated by this Court apply

generally to all categories of Indian Country. Sac and Fox Nation,

supra. However, if this Court is to apply 4 U.S.C. §104 to Indians,

and Congress uses different terms within the Act, as it did in

section three of the Hayden Cartwright Act, it must be assumed

that different meanings were ascribed to those terms. Thus, the

term in Section three, “nontaxable Indian lands” which would

clearly include not only reservations, but also allotments and

dependent Indian communities, must mean something different

than “United States military or other reservations.”

Il. THE STATE OF OKLAHOMA HAS, AB INITIO,

BEEN PRE-EMPTED FROM TAXING INDIAN

COUNTRY INCOME WITHIN THE CHICKASAW

NATION.

A. CONGRESS PRECLUDED STATE AUTHORITY

IN THE INDIAN COUNTRY FROM THE

BEGINNING.

It rests with Congress to determine when the guard-

ianship relation shall cease. Thus far Congress has

not terminated that relation with respect to the

Creek Nation and its members. That Nation still

exists, and has recently been authorized to resume

some of its former powers. Board of County

Comm'rs. of Creek Country v. Seber, 318 U.S. 705,

718 (1943). (citations omitted).

In our opinion, the purpose expressed in [section |

of the Oklahoma Enabling Act, 34 Stat. 167] to

reserve to the government of the United States the

authority to make laws and regulations in the future

19

respecting the Indians is, under the circumstances,

evidence tending to negative a purpose to repeal by

implication the existing laws and regulation of the

i subject.

$

The Reservation of the authority of Congress to

legislate in the future respecting the Indians resid-

ing within the new state is clearly supportable under

the Federal Constitution, art. 1, Section 8, which

confers upon Congress the power “to regulate com-

merce .. . with the Indian tribes.” It has been

repeatedly held by this court that under this clause

traffic or intercourse with an Indian tribe or with a

member of such a tribe is subject to the regulation

of Congress, although it be within the limits of a

state. Ex Parte Webb, 225 U.S. 663, 683 (1912).

Prior to 1890, all government in Oklahoma was tribal

government, and the tribes residing in Oklahoma enjoyed the

full cornucopia of powers possessed by Indian tribes gener-

ally. The beginning of non-tribal government in Oklahoma

came in 1890 with the advent of the Territory of Oklahoma.

The Oklahoma Organic Act of May 2, 1890, ch. 182, 26 Stat.

81 (1890). contained a proviso of significance to the present

case. Section |, in pertinent part, states:

Provided, that nothing in this act shall be construed

to impair any right now pertaining to any Indians or

Indian tribe in said Territory under the laws, agree-

ments and treaties of the United States, or to impair

the rights of person or property pertaining to said

Indians, or to affect the authority of the government

of the United States to make any regulation or to

make any law respecting said Indians, their lands,

property or other rights which it would have been

competent to make or enactif this Act had not been

passed

It is clear that the tribal governments that predated and

eded the creation of the Territory of Oklahoma were

ted with exclusive civil jursdiction over their territory

20

including exclusive authority to levy and collect taxes. By

enacting this proviso, the quoted Section | of the Organic

Act, Congress clearly intended to preserve exclusive federal

and tribal jurisdiction undiminished by the creation of the

new Territory, and later the new State.

The Oklahoma Enabling Act, Act of June 16, 1906, ch.

3335, 34 Stat. 267, in Section | continued these federal and

tribal protections through the creation of the state. Section |

provides:

That the inhabitants of all that part of the area of

the United States now constituting the Territory of

Oklahoma and the Indian Territory, as at present

described, may adopt a constitution and become the

state of Oklahoma, as hereinafter provided: Pro-

vided, that nothing contained in the said constitu-

tion shall be construed to limit or impair the rights

of persons or property pertaining to the Indians of

said territories (so long as such right shall remain

unextinguished) or to limit or affect the authority of

the Government of the United States to make any

law or regulation respecting such Indians, their

lands, property or other rights by treaties, agree-

ment, law or otherwise, which it would have been

competent to make if this Act had never been

passed.

Congress expressly reserved, in Section | of the Okla-

homa Organic Act, and again in Section | of the Oklahoma

Enabling Act, its complete and exclusive authority over the

persons, property and other rights of Indians “by treaties,

agreement, law or otherwise.” Pursuant to these acts, Article

10, Section 6 of the Oklahoma Constitution exempts from

State taxation:

such property as may be exempt by reason of treaty

stipulations, existing between the Indians and the

United States government, or by federal laws, dur-

ing the force and effect of such treaties or federal

laws

21

and Article 1, Section 3 thereof states in pertinent part:

The people inhabiting the State do agree and

declare that they forever disclaim all right and title

in orto... all lands lying within said limits owned

or held by any Indian, tribe, or nation; and that until

the title to any such public land shall have been

extinguished by the United States, the same shall be

and remain subject to the jurisdiction, disposal, and

control of the United States.

sy a oe Kies

The intent of the Oklahoma Organic Act with respect to

the Indian tribes, and therefore that of the Oklahoma Enabling

Act which contains substantially the same language, is illus-

trated by an exchange between Congressmen Mansur and

Turner during the floor debates. The purpose of the Oklahoma

government vis-a-vis the Indian tribes and their territory was

explained as follows:

Mr. Mansur: Is the gentleman aware that the laws

of the United States in full force today make it a

criminal offense to take intoxicating liquor into the

reservation of any Indians?

Mr. Turner: But I suggest to the gentleman that

this is no longer a reservation, but a Territory.

Mr. Mansur: But I desire to remind the gentleman

that, as this bill expressly declares, this Territorial

government or organization is not for any Indian

reservation whatever; it does not apply to Indian

reservations

5! Cong. Rec. 2104 (1890) (remarks of Messrs. Mansur and

lurner) (emphasis added). Perhaps in part because the allot

ment agreements were then being negotiated, Congressman

Mansur emphasized that the Indian tribes and their reserva-

tions were to be unaffected by the creation of Oklahoma

| challenge any gentleman on this floor — I care

not who he ts — to take any one of the first twenty-

four sections of this bill [the Sections relating to

Oklahoma Territory] and show where it touches a

red man at all. I repeat, for I would like to have it

understood, that the first twenty-four sections of

22

this bill do not relate to a red man or to a tribe, do

not relate to the Indians in any manner whatever.

The first twenty-four sections relate to white men

only, of whom there are 200,000 in that Territory

now asking for law and order and legislation . . .

Now, as to every Indian reservation within the

whole limits of the Indian territory as now orga-

nized, we say expressly that those first twenty-four

sections of the act thus organizing this Territorial

government shall not apply. Remember, gentlemen,

we say in plain, clear language that as to every

Indian tribe and as to the land of every Indian tribe,

none of these twenty-four sections which apply to

the white people shall operate.

Id. at 2176. Notwithstanding the claims of the Oklahoma Tax

Commission, it appears that the proponents of the bill to

create Oklahoma did not think they had to destroy tribal

government or Indian treaty rights in order to accomplish

their purpose.

These provisions constitute specific federal statutes

speaking directly to limitations of the jurisdiction of the State

of Oklahoma in Indian matters. Moreover, this bar to state

authority coincides with the creation of the jurisdictional

competitor. From a reading of this statute, it can be said the

Territory and State have ab initio been preempted in this area.

The outgrowth of this summary review, is that clearly the

per se rule of California v. Cabazon Band of Mission Indians,

480 U.S. 202 (1987) and Montana v. Blackfeet Tribe, 471 U.S.

759, 765 (1985) prohibiting State taxation of Indians in

Indian Country, remains applicable to Indian tribes in Okla-

homa in general, and the Chickasaw Nation in particular. The

corollary to this rule is that the failure of the Oklahoma Tax

Commission to plead and prove specific unambiguous con-

gressional authority both to levy, and collect, the particular

taxes at issue ts fatal to its cause. Simply stated, state author-

ity to tax an Indian tribe or individual Indians within Indian

9 Cal Sate SF iS SI

ik

Country are completely preempted by federal law in the

absence of Congressional action to the contrary.°

B. THE CHICKASAW TREATIES PRECLUDE

STATE TAXATION WITHIN THE NATION’S

INDIAN COUNTRY.

Article IV of the Treaty of Dancing Rabbit Creek, Sept.

27, 1830, 7 Stat. 333, explicitly grants the Chickasaw Nation

exclusive jurisdiction over itself and its descendants thus

leaving no room for state taxation of the income within the

jurisdictional Indian Country of the Chickasaw Nation. Arti-

cle IV of the treaty states in pertinent part:

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

This 1s consistent with this Court’s ruling in McClanahan,

supra at 170-171:

State laws generally are not applicable to tribal

Indians on an Indian reservation except where Con

gress has expressly provided that state laws shall

apply. It follows that Indians and Indian property on

an Indian reservation are not subject to State taxa-

tion except by virtue of express authority conferred

upon the State by an act of Congress.

The rules discussed above regarding statutory interpreta

tion apply even more vigorously when, as here, the state

asserts that Treaty rights have been abridged. Dion, very

explicitly held:

in the absence of explicit statement, “ ‘the intention

to abrogate or modify a treaty is not to be lightly

Amicus Sac and Fox Nation would also point the Court to Part IIT of

the nation’s brief, post

24

imputed to the Congress.’” /d., at 413, Quoting

Pigeon River Co. v. Cox Co., 291 U.S. 138, 160

(1934). Indian treaty rights are too fundamental to

be easily cast aside.

Dion, 476 U.S., at 739, citing Menominee Tribe v. United

States, 391 U.S. 404 (1968). Combined with the fact that

treaties are to be liberally construed in favor of the Indians,

Choctaw Nation v. United States, 318 U.S. 423, 431-32

(1943); Choate v. Trapp, 224 U.S. 665, 675 (1912) and that

treaties should be construed as the Indians themselves would

have understood them, Choctaw Nation v. United States,

supra, militates strongly in favor of the position of the Chick-

asaw. It bears remembering that during the very years that the

Treaty of Dancing Rabbit Creek was being negotiated the )

Cherokees were litigating the exact issue of attempts by the

state of Georgia to enforce its state laws upon the Cherokee ;

Nation, which along with the Chickasaws compose one of the

Five Civilized Tribes. Worcester v. Georgia, 31 U.S. (6 Pet.)

515 (1832). When the proper standard of treaty abrogation

and interpretation of this Court is read in conjunction with the

discourse on the floor of Congress during the debates regard-

ing the Oklahoma Organic Act 1s should be clear that Article

IV of the Chickasaw Treaty continues in full force to this day.

The income at issue in this case is earned within Chick-

asaw Indian Country through employment by the tribal gov-

ernment, where both the federal and tribal government's

interest in establishing strong tribal governments is at its

zenith and are per se preempted as an infringement on tribal

self-government.

The Petitioner also argues that its tax should be allowed

because it provides services to members off of Tribal land.

The Petitioner continues to ignore that fact that the Chick-

asaw Nation provides governmental services to its members

and other residents of its jurisdiction while the State does not.

The State Courts and Federal Courts sitting in Oklahoma are

certainly aware of the situation. United States v. Littlechief,

No. 76-207-D (W.D. Okla., Nov. 7, 1977) followed and

reprinted in State v. Littlechief, 573 P.2d 263 (Okla. Crith.

ee aS ae een |

25

1978) (murder case); C.M.G. v. State, 594 P.2d 798 (Okla.

Crim. 1979) cert. den. 444 U.S. 992 (1979) (murder case);

Cheyenne-Arapaho Tribes v. Oklahoma, 618 F.2d 665 (10th

Cir. 1980) (hunting and fishing); Ross v. Neff, 905 F.2d 1349,

1352 (10th Cir. 1990) (country sheriff without authority to

arrest Indian within Indian Country); Housing Authority of the

Seminole Nation v. Harjo, 790 P.2d 1098 (Okla. 1990) (evic-

tion); Ahboah v. Housing Authority-.of the Kiowa Tribe, 660

P.2d 625 (Okla. 1983).

Employment within Indian Country directly involves the

Tribe through its inherent regulatory power over the work

place, its form of government, and the federal policy of

encouraging economic development within Indian Country.

See e.g., Indian Self-Determination Act, 25 U.S.C. Section

450a et seg. and Indian Finance Act, 25 U.S.C. Section 1451

et seq. Members and non-members enjoy the protection of the

laws, courts, police, and other Tribal services while within the

Indian jurisdiction. There is nothing in the opinion below

which suggests that the State of Oklahoma offers govern-

mental services for those individuals, members or not, within

the Chickasaw jurisdiction. The State of Oklahoma has no

legal duty to provide services to the Chickasaw Nation's

jurisdiction, and in some instances could be liable for

attempting to provide services. See Ross v. Neff, supra

Perhaps the Tax Commission believes the transactions

being taxed occurs off Indian Country. However, it should be

very Clear that the transactions attempting to be taxed by the

state arise on Tribal lands. When a person is employed, and

work 1s done within Chickasaw lands and those actions are

taxed by the state, then Tribal self-government its infringed by

the state. The State taxes concerning income tax are directed

at building roads. The taxes involved herein are used by

Chickasaw for various governmental functions.

26

Iii. COURT SHOULD RECONSIDER ITS RECENTLY

DEVELOPED INDIAN DOCTRINE IN LIGHT OF

RECENT CONGRESSIONAL ACTION REJECT-

ING THE COURT’S RECENT SHIFT IN POLICY

In Oliphant v. Suquamish Indian Tribe, 435 U.S. 191

(1978), the court embarked on two new, and untested policies

to be applied in the field of federal Indian law. First, the

Court created from the whole cloth the idea that tribal powers

of self-government could be limited by judicial decree in

instances where Congress had taken no action to limit such

powers if the Court believed that the exercise of a challenged

tribal governmental power was “inconsistent with the Tribe’s

status.” Secondly, the Court determined that the exercise of

criminal jurisdiction over non-Indians by Indian tribal courts

was “inconsistent with the status” of the Suquamish Indian

Tribe. The natural outgrowth of this case included cases such

as United States v. Wheeler, 435 U.S. 313 (1978) decided just

after Oliphant, in which the Court carefully limited its lan-

guage in a case resulting in the recognition of inherent tribal

authority over the punishment of criminal offenses to tribal

members.

On the civil side, the Court also began to implement its

new concept of distinction between tribal members and all

other persons by beginning to authorize state taxing and

regulatory authority over non-Indians and members of Tribes

not a dart of the particular reservation at issue. Thus, in

Colville, 447 U.S., at 161 (1980), and its progeny, the Court

announced that the State could tax the sales of cigarettes to

“non-members” — even if the non-member was an Indian.®

© The “cigarette cases” could have been explained through a proper

analysis of Public-Law 83-280 had the Court chosen to do so, and the same

result would have been reached in each case prior to Oklahoma Tax

Commis:ion v. Citizen Band Potawatomi, 111 S.Ct. 905 (1991). In

Potawatomi, the Court directly announced for the first time that States had

the authcrity to tax non-tribal member Indians without compliance with the

Congressionally mandated prescription for the extension of state law into

27

Although inconsistent with almost five hundred years of his-

torical relations between Indians and non-Indians, and two

hundred years of relations between the United States and the

Indian Tribes, these new activistic judicial doctrine logically

could result only in a ruling that Tribe’s had also lost criminal

jurisdiction over Indians who were members of other tribes,

as well as civil jurisdiction over non-Indians and Indians who

were members of other tribes unless the Court could infer

some reasonable semblance of consent for the exercise of

tribal jurisdiction over such non-tribal members. See e.g.,

Montana v. United States, 450 U.S. 544 (1981). Finally, in

Duro v. Reina, 495 U.S. 676 (1990), the Court reached the

logical conclusion of this new line of reasoning by holding

the Tribes’ had, by implication only, lost their criminal juris-

diction over non-member Indians because the Court — without

benefit of an Act of Congress — determined that the exercise

of such government authority was “inconsistent with their

Stutus.”

The response from Congress was immediate and direct.’

For the first time since /n Re Heff, 197 U.S. 488 (1905),

ninety years ago, Congress passed legislation specifically

designed to reverse the Indian law doctrine advanced by the

Court.® In a military appropriation bill, P-L. 101-511 (1990),

the Indian Country, and ithe adjudication of disputes arising in the Indian

Country involving Indians or their property in the state courts.

At least five States petitioned Congress to reverse the Duro deci

sion, and the legislative history indicates strong support from others. See,

for example, 140 Cong. Rec. S.2635, S.2637, POM-399. While certain

State tax commissions will attempt to exercise jurisdiction when they

believe the Court will allow them to collect revenues from the Indian

Country the legislative arms of the “Indian” States do not want to spend the

revenues needed to provide law enforcement and other services to the

Indian Country.

8 After the Congressional “fix” of /n Re Heff, the Court acknowl-

edged the Congressional action, overruled Heff, and followed the doctrinal

notions behind the statute adopted by Congress in that instance. United

States v. Nice, 241 U.S. 591 (1916).

28

Congress first passed a “temporary” statute designed to over-

turn the Duro decision, and in P.L. 102-137, 105 Stat. 646,

102 Cong. Ist sess., the fix was made permanent. In this

legislation, and its accompanying legislative history? make it

abundantly clear that the Congress does not subscribe to these

new doctrines lately advanced by the Court, and specifically

rejected the attempt to distinguish between members of the

local tribe, and other Indians who are living, working, or

simply come within that tribe’s Indian Country. Simply stated,

the Duro decision invited the Congress to review these new

Supreme Court Indian law doctrines, Congress did so, and

rejected them in no uncertain terms.

In addition to the Congressional rejection of the Court's

doctrines drawing distinctions between “non-member” and

“member” Indians and the idea of implied diminishment of

inherent Indian sovereignty, the Congress has consistently

acted of late in support of tribal sovereign authority. See, e.g.,

P.L. 103-176, the Indian Tribal Justice Act (1993), and its

accompanying history.'° In this Act Congress explicitly finds

that the trust responsibility of the entire United States govern-

ment “includes the protection of the sovereignty of each tribal

government” (Section 2(2)); that Congress has recognized the

self-determination, self-reliance, and inherent sovereignty of

Indian tribes through statutes, treaties, and the exercise of

administrative authorities (Section 2(3)); and that Indian

tribal justice systems are important for the preservation of the

public health and safety, the political and cultural integrity of

tribal government, and the adjudication of disputes affecting

important personal and property rights. (Section 2(5)(6)(7))

Likewise, several members of Congress have publicly

°” H. Conf. Rpt. 101-938; HR No. 102-61, May 14,1991; SR No

102-153, Sept. 19, 1991, H. Cont. Rpt. 102-261, Oct. 22. 1991; and related

reports; SR No. 102-168, Oct. 2, 1991.

' House Report No. 103-205, August 2, 1993, Senate Report No

103-88, July 15, 1993, House Conference Report No. 103-383 (Nov. 19,

1993).

29

announced their concern that an understanding of traditional

Indian law doctrines beginning with Worcester v. Georgia, 31

U.S. 515 (1832) should be a prerequisite for appointment to

the federal bench. Congressional Record — Senate, Monday,

August 2, 1993, 103rd Cong. Ist Sess. 139 Cong. Rec. S.

10083, The Supreme Court of the United States. (Confirma-

tion hearing of Justice Ginsberg.)!!

If one reviews the legislation of Congress since 1970,

research does not reveal statutes passed to limit the exercise

of tribal authority, or to distinguish tribal authority between

members and non-members, not to authorize the application

of state law to either Indians or non-Indians in the Indian

Country, nor to limit tribal authority with regard to fee lands

within the Indian Country. See, 18 U.S.C. §1151(a) “notwith-

standing the issuance of any patent’, and Seymore v. Superin-

tendent, 368 U.S. 351 (1962). Yet these things the Court has

created without direction from the Congress within this same

period. In short. Congress has now rejected these notions. The

Statutes of Congress passed with regard to Indian affairs since

1970 are replete with approving references to the doctrines of

inherent Tribal sovereignty, lack of state authority, and the

constitutionally created Congressional monopoly in the regu

lation of relations between citizens of the United States. and

Indian person within the Indian Country tn their legal and

political status as Indians, U.S. Const. Art. 1. Sec. 8. Cl 3. If

one accepts the Congressional philosophy, expressed in these

statutes and legislative reports, it 1s apparent that state action

with respect to all commerce affecting persons and property

in the Indian Country in which Indians are interested in thei

governmental or proprietary capacity 1s preempted by the

Congressional control of such commerce, or the Congression

ally acknowledged inherent rmghts of the Tribe to govern both

I also want to put future Supreme Court nominees on notice U

“will insist they have an interest and understanding Indian Country law

After today. T will not vote for a nominee unless | am satistied that thes

have demonstrated this concern (Remarks of Mr. Presslet

30

their members and their Indian Country territory, in the

absence of an explicit statement of Congress authorizing the

application of state law. The Court should reassess its Indian

law doctrines in light of the first Congressional action

directly intended to reverse Court Indian law doctrine in

almost one hundred years, and announce its return to the

logical clarity of the intent of the original framers of the

Constitution as expressed in the Worcester decision, as

expected by Congress.

CONCLUSION

If the Court is to remain faithful to the intent of the

framers of the constitution, it must uphold the authority of

Congress alone to allow taxation of transactions involving

Indians in the Indian Country and affirm the United States

Court of Appeals for the Tenth Circuit.

Respectfully submitted,

G. Witiiam Rice, Esa.*

Attorney General, Sac and

Fox Nation

Grecory H. BiGcier, Eso.

Assistant Attorney General,

Sac and Fox Nation

Rick & BIGLER

124 N. Cleveland

Cushing, Oklahoma 74023

(918) 225-4800

*Counsel of Record

5 oa roma tal