Opposition Brief — Ramsey v. United States

No. 02-1547

Jn the Supreme Court of the Gnited States

KIP R. RAMSEY, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

EILEEN J. O’CONNOR

Assistant Attorney General

DAVID ENGLISH CARMACK

ANDREA R. TEBBETS

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

- az

QUESTION PRESENTED

Whether a member of the Yakama Indian Tribe who

hauls logs on public highways using diesel trucks is

exempt from federal highway use and diesel fuel excise

taxes under the provisions of the 1855 treaty between

the United States and the Yakama Tribe.

(1)

TABLE OF CONTENTS

Page

Opinions below ..... on iain nietimeninidites terete: 1

I icici ipciilabesilcuiiinnnibaiintateievennscsneinnnesannsneveouieenniaisteiaiatetiilines 1

Treaty and statutory provisions INVOIVEG ............sssssseeeeesseseees 2

TTI esieibeisnnhniietaciieinininnsiedetetuiaitenenmtibiancnanpncobemmneninaitinsieneterine 2

Argument .. - iiectiieitainniantstennavidannintneniannn 6

aaa ia clshlcedivnienetnientivivennvenninnncdicnieeascine 18

TABLE OF AUTHORITIES

Cases:

Antoine v. Washington, 420 U.S. 194 (1975) ....ccccesesssees 12

Chickasaw Nation v. United States:

208 F.3d 871 (10th Cir. 2000), aff'd, 534 U.S. 84

___s A ERTEREEEEIN SS eo os oe a nT OTE ER TUE U EE 17

534 U.S. 84 (2001) 17

Choate v. Trapp, 224 U.S. 665 (1912) nacaiicbaideauniatidl 15, 18

Choctaw Nation of Indians v. United States, 318

U.S. 423 (1943) . 14

Choctaw Nation v. United States, 119 U.S. 1

(1886) scinialib nities deiiaeebeaaaaninnininititeahiiiaininidelevainmncemantn 13

Choteau v. Burnet, 283 U.S. 691 (1981) .....ececsscererereeeeeeees 7,18

Circuit City Stores, Inc. v. Adams, 532 U.S. 105

I ei aisle leila ddgiipaiectilencbideeleiiiemnniainiabiokneps 17

County of Oneida v. Oneida Indian Nation, 470

Se EE TUTE ieiciteseiablnbsdepnenebiibenenticaneeaeninehacntavones 13

Cree v. Waterbury, 78 F.3d 1400 (9th Cir. 1996) .............. 11

Jones V. Meehan, 175 US. 1 (1899) ..........ccccccssssssssecsscsessers 13

Mescalero Apache Tribe v. Jones, 411 U.S. 145

I ld indichis Clade acaba isietsederenietensentipnsiesenestetinisewneveloumenoynnees 7, 18

Montana v. Blackfeet Tribe, 471 U.S. 759 (1985) ............. 15

Northwestern Bands of Shoshone Indians v.

United States, 324 U.S. 335 (1945) .........scsssssssssessssseeseeees 13

Oklahoma Tax Commission v. Chickasaw Nation,

I I CITED icsastisaticnscsiminnisanonneniansasisamssiinneenenceneananatoonenes 15

(IIT)

IV

Cases—Continued: Page

Oklahoma Tax Commission v. United States, 319

U.S. 598 (1943) 7

Oregon Dep't of Fish & Wildlife v. Klamath Indian

Tribe, 473 U.S. 753 (1980) 12

Seufert Bros. Co. v. United States, 249 U.S. 194

(1919) 10, 11

South Carolina v. Catawba Indian Tribe, 476 U.S.

498 (1986) 14, 15

Squire v. Capoeman, 351 U.S. 1 (1956) ..........+ 6-7, 16, 17, 18

Superintendent of Five Civilized Tribes v.

Commissioner, 295 U.S. 418 (1935) 6, 7, 16

The Cherokee Tobacco, 78 U.S. (11 Wall.) 616

(1870) 8

Tulee v. Washington, 315 U.S. 681 (1942) ..........00. 10, 11, 12

United States v. Wells Fargo Bank, 485 U.S. 351

(1988) + 7

United States v. Winans, 198 U.S. 371 (1905) .......... 10, 11, 12

United States Trust Co. v. Helvering, 307 U.S. 57

(1939) 7

Washington v. Washington State Commercial

Passenger Fishing Vessel Ass’n, 443 U.S. 658

(1979) ...... 10, 11, 12

Yakama Indian Nation v. Flores, 955 F. Supp.

1229 (E.D. Wash. 1997), aff’d sub nom. Cree v.

Flores, 157 F.3d 762 (9th Cir. 1998) 3-4, 5

Constitution, treaty and statutes:

U.S. Const. Amend. V 15

Treaty of June 9, 1855, Between the United States

and the Confederated Tribes and Bands of the

Yakama Indian Nation, 12 Stat. 951:

Bt: TER snccieiniiisrialinins passim

12 Stat. 952-953 2,3

12 Stat. 953 10

Treaty and statutes—Continued:

Indian Gaming and Regulatory Act, 25 U.S.C. 2702

CE BOG. secsmensceremnnmnerceeniniabinnaniiimeinniitennminniimnintematit

Internal Revenue Code (26 U.S.C.):

© GE cciceciientntiprithinirsinvcininciaganinhsivniiisianiiaiiiiieiinineilin

TIDE covisnrviniamnnsimavsiceevetsnaneuninenieisctainninnnnainnmannivinimviiiiitits

Or OP? OP

Se sinctcceesitcectiicatbiceaiatiaaiaes tee siadndoaiianiaainadand

General Allotment Act of 1887, ch. 119, 24 Stat.

Page

In the Supreme Court of the Gnited States

No. 02-1547

Kip R. RAMSEY, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-11a)

is reported at 302 F.3d 1074. The opinion of the district

court (Pet. App. 12a-26a) is reported at 134 F. Supp. 2d

1203.

JURISDICTION

The judgment of the court of appeals was entered on

September 11, 2002. The petition for rehearing was

denied on December 23, 2002. Pet. App. 28a. On March

17, 2003, Justice O’Connor extended the time in which

to file a petition for a writ of certiorari to and including

April 22, 2003, and the petition was filed on that date.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

(1)

2

TREATY AND STATUTORY PROVISIONS INVOLVED

Article 3 of the Treaty of June 9, 1855, between the

United States and the Confederated Tribes and Bands

of the Yakama Indian Nation, 12 Stat. 952-953, is set

forth at Pet. App. 38a.

STATEMENT

1. Petitioner Kip R. Ramsey is a member of the

Confederated Tribes and Bands of the Yakama Indian

Nation. In his business, he uses large trucks to haul

logs from logging areas within the Yakama reservation

to off-reservation mill sites. These trucks weigh over

55,000 pounds each. They run on diesel fuel and travel

on public highways. Pet. App. 3a, 13a.

2. Section 4481 of the Internal Revenue Code im-

poses an annual highway use tax on motor vehicles that

have a gross taxable weight of 55,000 pounds or more.

26 U.S.C. 4481. For vehicles that weigh between

55,000 and 75,000 pounds, the highway use tax is $100

per year plus $22 for each 1000 pounds in excess of

55,000 pounds. For vehicles that weigh more than

75,000 pounds, the highway use tax is $550 per year. 26

U.S.C. 4481(a).’

During the years involved in this case, a federal

excise tax was imposed on sales of diesel fuel used by

highway vehicles. The rate of that tax varied over

time. During the last two years of the relevant period,

the diesel fuel excise tax was 24.3 cents per gallon. 26

U.S.C. 4081(a)(2)(ii) (1994).?

1 The federal highway use tax is reduced by 25% for trucks that

are used exclusively in transporting logs and other harvested

forest products. 26 U.S.C. 4483(e).

2 The federal excise tax on diesel fuel was located in various

provisions of the Code over the relevant years. The tax was set

forth in Section 4041 of the Code prior to April-1, 1988, in Section

3

3. a. Petitioner failed to pay the federal highway

use and diesel fuel taxes for the years 1986-1995. When

the Commissioner of Internal Revenue assessed peti-

tioner for $460,702 in taxes, penalties, and interest,

petitioner paid the assessment and brought this suit for

refund. Pet. App. 3a, 14a.* In this suit, petitioner

alleges that he is exempt from these federal taxes

under Article 3, paragraph 1 of the Treaty of June 9,

1855, between the United States and the Yakama Tribe

(the 1855 treaty), 12 Stat. 951, 952-953 (1855). That

treaty provides in pertinent part as follows (Pet. App.

38a):

And provided, That, if necessary for the public con-

venience, roads may be run through the said reser-

vation; and on the other hand, the right of way, with

free access from the same to the nearest public

highway, is secured to them; as also the right, in

common with citizens of the United States, to travel

upon all public highways.

b. The district court upheld petitioner’s claim that

this portion of the 1854 treaty exempts him from the

federal highway use and diesel fuel taxes. Pet. App.

24a-25a. In reaching that conclusion, the court applied

the interpretation of this paragraph of the treaty that it

had previously adopted in a suit brought by petitioner

to challenge the imposition of highway use fees imposed

by the State of Washington on petitioner’s use of state

roads. Id. at 21a-22a, 24a (citing Yakama Indian

Nation v. Flores, 955 F. Supp. 1229 (E.D. Wash. 1997),

4091 of the Code from April 1, 1988, to December 31, 1993, and in

Section 4081 beginning January 1, 1994.

8 The companies that petitioner Ramsey owns and operates,

and through which he conducts his business, joined in this suit.

Pet. App. 12a.

4

aff’d sub nom. Cree v. Flores, 157 F.3d 762 (9th Cir.

1998)). In that earlier case, the district court stated

that the “most critical” text of the treaty is “the

language securing to the Yakamas the right to travel

the public highways ‘in common with’ citizens of the

territory.” 955 F. Supp. at 1246. The court held in

Flores that this treaty provision “unambiguously

reserves to the Yakamas the right to travel the public

highways without restriction for purposes of hauling

goods to market.” Jd. at 1248.

In reaching that conclusion in Flores, the court recog-

nized that the only discussion of “such commonly held

rights” to use public roads during the treaty negotia-

tions was the explanation of the government’s repre-

sentative that “You would have the benefit of [such

roads] as well as the other people.” 955 F. Supp. at

1246.4 The court stated that, other than that single

reference, this treaty language had not been discussed

during the treaty negotiations. Jbid. But see note 4,

supra. The court also recognized that, prior to 1980,

neither the Tribe nor any of its members had claimed a

right to travel the public highways free of state taxe-

4 In the negotiations that led to the 1855 treaty that secured for

the Yakama the “right, in common with citizens of the United

States, to travel upon all public highways” (Pet. App. 38a), the

representative of the United States explained to the tribal

representatives that “you will be permitted to travel the roads

outside the Reservation. We have some kind of roads which per-

haps you have never seen; we may wish to make one of the roads

from the settlements east of the mountains to our settlements here

* * * ” C.A. App. 71 (remarks of General Palmer). The govern-

ment representative went on to say, “Now, as we give you the

privilege of traveling over roads, we want the privilege of making

and traveling roads through your country, but whatever roads we

make through your country will not be for your injury.” Jd. at 72.

5

tion or regulation. 955 F. Supp. at 1254. The court

nonetheless concluded that, in 1855, Yakama tribal

members would have regarded the treaty language as

providing them with a right to travel on off-reservation

highways “without restriction”—a right that the court

held was to “be exercised ‘in common with’ non-Indians.

In other words, both Indians and non-Indians would use

the public roads simultaneously.” Jd. at 1246, 1247.

In this federal tax case, petitioner moved for sum-

mary judgment based on the record and the holding of

the state tax case in Flores. The United States also

moved for summary judgment, arguing that the plain

text of the treaty confers no exemption from federal

taxation. The district court held that it “need not

undertake the effort of construing Article III of the

Yakama Treaty” in this case because the reasoning and

holding of the prior state tax decision in the Flores case

bars imposition of the federal highway use and diesel

fuel taxes in this case. Pet. App. 21a.

4. The court of appeals reversed and remanded for

entry of judgment in favor of the United States. Pet.

App. la-lla. The court of appeals explained that the

holding in Flores does not apply to this case because

“different standards” govern determination of the exis-

tence of federal and state tax exemptions under

national treaties. Jd. at 7a. While “(t]he federal

government has plenary and exclusive power to deal

with tribes,” a State’s “authority over tribal members is

limited by the tribal right of self-government and the

preemptive effect of federal law. * * * For this

reason, all citizens, including Indians, are subject to

federal taxation unless expressly exempted, * * *

while a state’s authority is limited * * * .” Ibid.

The court noted that the United States must act

expres iy in surrendering the sovereign attribute of

6

taxing power, and that it has therefore consistently

been held that “[t]he applicability of a federal tax to

Indians depends on whether express exemptive lan-

guage exists within the text of the statute or treaty.”

Pet. App. 8a. In determining whether such “express

exemptive language” exists, the court explained that

“(t]he language need not explicitly state that Indians

are exempt from the specific tax at issue; it must only

provide evidence of the federal government’s intent to

exempt Indians from taxation.” Ibid.

The court found no such express exemptive language

in the text of Article 3 of the 1855 treaty. The plain

language of the treaty establishes for the Yakamas a

“right, in common with citizens of the United States, to

travel upon all public highways.” Nothing in that text

provides any exemption for the Yakamas from the

general obligation of all other “citizens of the United

States” who use public highways to pay taxes associ-

ated with such travel. Pet. App. 10a-lla. The court

therefore held that petitioners are not exempt from the

“generally applicable” federal highway use and diesel

fuel taxes imposed by the United States. Ibid.

ARGUMENT

The decision of the court of appeals is correct and

does not conflict with any decision of this Court or any

other court of appeals. Further review is therefore not

warranted.

1. a. Recognizing the plenary authority of Congress

to legislate over Indian affairs, this Court has made

clear that generally applicable federal tax statutes

apply to Indians, as they do other citizens, without the

necessity for any explicit language to that effect.

Superintendent of Five Civilized Tribes v. Commis-

sioner, 295 U.S. 418, 419-420 (1935); Squire v. Capoe-

7

man, 351 U.S. 1, 6 (1956) (“in the ordinary affairs of life,

not governed by treaties or remedial legislation,

[Indians] are subject to the payment of income taxes as

are other citizens”). And, in addressing claims of

Indians to exemptions from such generally applicable

federal taxes, this Court has consistently applied the

bedrock principle that exemptions from federal taxation

must be expressly stated and may not be based merely

on inference. There is a “settled principle that

exemptions from taxation are not to be implied; they

must be unambiguously proved.” United States v.

Wells Fargo Bank, 485 U.S. 351, 354 (1988); see United

States Trust Co. v. Helvering, 307 U.S. 57, 60 (1939)

(“Exemptions from taxation do not rest upon impli-

cation.”). In cases that address claims by Indians of

exemption from federal taxation, this Court has con-

sistently held that “[t]he intent to exclude must be

definitely expressed.” Choteau v. Burnet, 283 U.S. 691,

696-697 (1931). See also Squire v. Capoeman, 351 U.S.

at 6 (“to be valid, exemptions to tax laws should be

clearly expressed”); Superintendent of Five Civilized

Tribes v. Commissioner, 295 U.S. at 420 (same).

The Court has thus “repeatedly said that tax exemp-

tions are not granted by implication [and it] has applied

that rule to taxing acts affecting Indians as to all

others.” Mescalero Apache Tribe v. Jones, 411 U.S.

145, 156 (1973) (quoting Oklahoma Tax Commission v.

United States, 319 U.S. 598, 606-607 (1943)). See

Choteau v. Burnet, 283 U.S. at 693-694 (Indian liable for

federal income tax because the statute did not “ex-

pressly exempt” him). Recognizing the preeminent

role of Congress both in taxation and in the regulation

of Indian affairs, the Court has held that tax exemp-

tions for Indians should not be implied because, if an ex-

emption had been intended, it “would doubtless have

8

been expressed.” The Cherokee Tobacco, 78 U.S. (11

Wall.) 616, 620 (1870).

b. In view of these established principles, petitioner

has not asserted that the generally applicable federal

highway use and diesel fuel taxes themselves provide

any exemption for the Yakama or other Indians. The

broad text of these provisions makes clear that no such

contention could be maintained. See 26 U.S.C. 4041,

4081, 4091, 4481.

Instead, petitioner relies solely on Article 3, para-

graph 1, of the 1855 treaty, which he claims “clearly

expresses a tax exemption” (Pet. 8) for Yakama travel

on the public highways of the United States. The plain

text of that provision, however, expressly secures to

the Yakama only “the right, in common with citizens of

the United States, to travel upon all public highways.”

Pet. App. 38a. As the court of appeals correctly held in

this case (Jd. at 10a—11a), a right in common with other

citizens to travel on highways does not expressly

‘exempt the Yakama from “generally applicable” taxes.

Petitioner seeks to avoid the conclusion required by

the plain text of the treaty by repositioning its lan-

guage and arguing that it provides “him the right ‘to

travel the public highways’ ‘in common with citizens of

the United States’ free of taxes and fees.” Pet. 8. Hav-

ing recast and altered the text of the treaty in this

manner, petitioner asserts that it “clearly expresses a

tax exemption.” Jbid.

The plain text of the treaty, however, does not state

what petitioner claims. The treaty does not refer to

taxation at all; nor does it refer (as petitioner suggests)

to a “right to travel . . . public highways” (Pet. 8, 9,

12, 14, 17-22, 25, 27, 28). It refers instead to a “right, in

common with citizens of the United States, to travel

upon all public highways” (Pet. App. 39). It is thus the

9

right itself (not merely the travel) that is shared “in

common” under the treaty. In providing the Yakama a

right “in common with citizens of the United States,”

the treaty expressly gives the Yakama a right equal to,

not superior to, the right of other citizens to travel on

public highways. See note 4, supra.

Moreover, it is obvious that the actual language of

this portion of the treaty is perfectly silent with respect

to taxation. The treaty text in no sense provides any

“exemption” from taxes, much less an “express exemp-

tion.”

Other provisions of the 1855 treaty reflect the same

understanding that no tax exemption for travel on

public highways was intended. The treaty provides

two separate and different rights to the Yakamas under

the first paragraph of Article 3. The first is a “right of

way, with free access from [the reservation] to the

nearest public highway”; the second is a “right, in

common with the citizens of the United States, to travel

upon all public highways.” Pet. App. 38a (emphasis

added). As the court of appeals emphasized in its

decision in this case, “free access” to highways is guar-

anteed only on the reservation and between it and the

nearest public highway. Jd. at 10a-11a:

“Free access,” however, does not modify the right to

travel upon the public roadways. Indeed, the clause

granting the Yakama the “right, in common with

citizens of the United States, to travel upon all pub-

lic highways” contains no exemptive language. “In

common with” does not express an intent to exempt

the Yakama from taxes.

In short, while petitioner claims that the treaty gave

the Yakamas a right superior to that of “the citizens of

the United States” with respect to the use of public

10

highways off the reservation (see Pet. i-ii, 4-5, 14-22),

the treaty language plainly does not distinguish be-

~ tween the Yakama and other citizens in the use of

public highways.

The determination of the court of appeals that this

treaty contains no express exemption from federal

taxes (Pet. App. 10a-11a) is a correct application of the

plain text of the treaty and of this Court’s repeated ad-

monition that federal tax exemptions for Indians, as for

all others, must be clearly and definitely expressed.

This application of settled principles of law to the

particular facts of this case creates no conflict and does

not warrant review by this Court.

2. Contrary to petitioner’s claim (Pet. 14-22), the

decision in this case does not conflict with the several

decisions of this Court that have applied the phrase “in

common with” in addressing the scope of Indian fishing

rights under this same treaty. Washington v. Wash-

ington State Commercial Passenger Fishing Vessel

Ass’n, 443 U.S. 658 (1979); Tulee v. Washington, 315

U.S. 681 (1942); Seufert Bros. Co. v. United States, 249

U.S. 194 (1919); United States v. Winans, 198 U.S. 371

(1905). In the fishing rights cases, the Court construed

the phrase “in common with” as it appears in Article 3,

paragraph 2, of the 1855 treaty. That —— pro-

vides in pertinent part that

[t]he exclusive right of taking fish in all the streams,

where running through or bordering said reserva-

tion, is further secured to [the Yakamas], as also the

right of taking fish at all usual and accustomed

places, in common with citizens of the Territory

* * *

12 Stat. 953. These “fishing rights cases have not found

the ‘in common with’ language to support the conclusion

11

that Indians may exercise treaty rights without paying

generally applicable fees;” instead, they “held that the

Yakama Indians have special fishing rights ‘despite’ the

phrase ‘in common with.’” Cree v. Waterbury, 78 F.3d

1400, 1403 (9th Cir. 1996). See Tulee v. Washington,

315 U.S. at 684 (it was “despite the phrase ‘in common

with citizens of the Territory,’” that the Court held

that the treaty conferred upon the Yakimas certain

“rights beyond those which other citizens may enjoy”)

(emphasis added).

Indeed, the fishing rights cases cited by petitioner

support the conclusion of the court in this case that the

“in common with” language in this treaty does not esta-

5 The treaty secured two distinct fishing rights to the Yaka-

mas: an “exclusive” right to take fish in streams on or bordering

the reservation; and a “right of taking fish at all usual and

accustomed places” off the reservation “in common with citizens of

the United States.” Pet. App. 38a. In this context, this Court con-

cluded that the phrase “in common with” confirmed that the “right

of taking fish at all usual and accustomed places” was not an

exclusive right. Winans, 198 U.S. at 382. Because the treaty

secured a “right of taking fish,” the Court held in Winans that the

Yakama could not “be absolutely excluded” from the “usual and

accustomed places” by the maintenance of a fishing wheel on the

north side of the Columbia River under license from the state. Jd.

at 382, 384. Applying this holding of Winans, the Court further

held in Seufert Bros., 249 U.S. at 198-199, that the Yakamas could

not be confined to the north side of the river and, in Tulee, 315 U.S.

at 684-685, that the State could not impose a fishing license fee that

“act{ed] upon the Indians as a charge for exercising the very right

their ancestors intended to reserve.” Finally, in Washington State,

443 U.S. at 679-686, the Court held that the Yakamas had “a right

* * * to take a fair share of the available fish” in proportion to

their “reasonable livelihood needs,” rather than “merely the

‘opportunity’ to try to catch * * * some of the large quantities of

fish that will almost certainly be available at a given place at a

given time.”

12

blish an exemption of the Yakamas from the generally

applicable federal tax obligations imposed on other

citizens. These cases established that the treaty right

to take fish “in common with” citizens of the United

States did not establish an unrestricted right. See

Oregon Department of Fish & Wildlife v. Klamath

Indian Tribe, 473 U.S. 753, 765 n.16 (1980) (“We have

not previously found * * * absolute freedom from

state regulation on nonreservation lands, even in the

face of Indian cession agreements that expressly re-

served a right to hunt or fish on ceded nonreservation

lands.”). In Winans, 198 U.S. at 384, the Court ob-

served that the treaty right of “taking fish at all usual

and accustomed places” did not “restrain the State

unreasonably, if at all, in the regulation of the right”

but “only fixe[d] in the land such easements as enable

the right to be exercised.”® And, in formulating “an

equitable measure of the common right [to take fish]” in

Washington State, the Court observed that “an equal

division * * * is suggested, if not necessarily dictated,

by the word ‘common’ as it appears in the treaties.” 443

U.S. at 686 n.27. In this case, however, instead of

6 In Tulee, 315 U.S. at 684, the Court held that the 1855 Treaty

“le[ft] the state with power to impose on Indians, equally with

others, such restrictions of a purely regulatory nature concerning

the time and manner of fishing outside the reservation as are

necessary for the conservation of fish.” The Court concluded that

this conservation power did not authorize “the state * * * to

charge the Yakimas a fee for fishing.” Jd. at 685. See Antoine v.

Washington, 420 U.S. 194, 207 (1975) (“the State must demonstrate

that its regulation [of fishing rights] is a reasonable and necessary

conservation measure”). The authority of Congress to regulate

Indian affairs, however, is not so limited. Congress, unlike the

States, has plenary authority to impose taxes and to regulate

affairs with Indian nations. Pet. App. 7a (citing cases).

13

seeking an “equal” or “common” right, petitioner claims

(Pet. 8) that he possesses an “unrestricted right” and an

exemption from taxes that is enjoyed by no one else.

Nothing in the text of this treaty provides support for

that claim. See also note 4, supra.

3. a. Petitioner also errs in asserting (Pet. 13) that

the decision in this case conflicts with decisions of this

Court that have applied the Indian canon of construc-

tion in the fishing rights cases under this same treaty.

Under that canon of construction, this Court has stated

that ambiguous provisions in an Indian treaty are to

resolved in favor of indian interests. See, e.9., County

of Oneida v. Oneida Indian Nation, 470 U.S. 226, 247-

248 (1985); Jones v. Meehan, 175 U.S. 1, 11-12 (1899);

Choctaw Nation v. United States, 119 U.S. 1, 27-28

(1886). In Northwestern Bands of Shoshone Indians v.

United States, 324 U.S. 335, 353 & n.16 (1945), however,

the Court explained that its application of this canon of

interpretation in the fishing rights cases “meant no

more than that the language [of a treaty] should be

construed in accordance with the tenor of the treaty.”

The Court emphasized that it “stop[s] short of varying

[treaty] terms to meet alleged injustices. Such gen-

erosity, if any may be called for in the relations be-

tween the United States and the Indians, is for the

Congress.” Id. at 353. é

Moreover, as the court of appeals explained in this

case, the established requirement that there be “ex-

press exemptive” language for a tax exemption to be

found in a statute or treaty is not inconsistent with the

Indian canon of interpretation. Pet. App. 8a-9a. The

court noted that the Indian canon continues to play an

important role in evaluating such tax exemption claims

(id. at 8a) (emphasis added):

14

The applicability of a federal tax to Indians

depends on whether express exemptive language

exists within the text of the statute or treaty. The

language need not explicitly state that Indians are

exempt from the specific tax at issue; it must only

provide evidence of the federal government’s intent

to exempt Indians from taxation. Treaty language

such as “free from incumbrance,” “free from taxa-

tion,” and “free from fees,” are but some examples

of express exemptive language required to find

Indians exempt from tax.

Only if express exemptive language is found in

the text of the statute or treaty should the court

determine if the exemption applies to the tax at

issue. At that point, any ambiguities as to whether

the exemptive language upplies to the tax at issue

should be construed in favor of the Indians. * * *

Only if such language exists, do we consider

whether it could be “reasonably construed” to sup-

port the claimed exemption.

Applying this proper standard, the court of appeals

correctly concluded that no language in the 1855 treaty

shows an “intent to exempt Indians from taxation” in

the use of public highways. Jd. at 8a, 10a.

Even in cases in which the Indian canon applies, the

principle that treaties are to be construed liberally in

favor of Indians requires only that reasonable, not

artificial, ambiguities be resolved in the Indians’ favor.

South Carolina v. Catawba Indian Tribe, 476 U.S. 498,

~ 506 (1986). As this Court stated in Choctaw Nation

of Indians v. United States, 318 U.S. 4238, 432 (1948),

“even Indian treaties cannot be rewritten or expanded

beyond their clear terms to remedy a claimed injustice

or to achieve the asserted understanding of the par-

15

ties.” Since the court of appeals properly concluded

that the “clear terms” of the treaty establish no basis

for the claimed tax exemption, the Indian canon has no

application to this case.

Petitioner acknowledges this fact indirectly by not

addressing the actual language of the treaty but instead

reordering and rewriting that language in an effort to

create anibiguity where none exists. See page 8, supra.

The actual language of Article 3, paragraph 1, is not

ambiguous in providing the Yakamas with “the right, in

common with the citizens of the United States, to travel

upon all public highways.” That language plainly does

not expressly establish any tax exemption whatsoever.

And, as this Court has made clear, the Indian canon

may not be invoked to create ambiguities and “does not

permit reliance on ambiguities that do not exist.” South

Carolina v. Catawba Indian Tribe, 476 U.S. at 506-507.

b. Petitioner’s reliance on Choate v. Trapp, 224 U.S.

665, 675 (1912), in this context is misplaced for two rea-

sons. In the first place, there was no dispute in Choate

that the statute on which the Indians relied contained

an express tax exemption; the issue in Choate was

instead whether that express tax exemption conferred

a property right protected by the Fifth Amendment.

Id. at 671. Secondly, that case involved the permissible

scope of state taxation (id. at 678-679) and therefore im-

plicated the established rule that “the States may tax

Indians only when Congress has manifested clearly its

consent to such taxation.” Montana v. Blackfeet Tribe,

471 U.S. 759, 766 (1985). See Oklahoma Tax Commis-

sion v. Chickasaw Nation, 515 U.S. 450, 458 (1995);

Choate y. Trapp, 224 U.S. at 675; Pet. App. 7a. By

contrast, it is clear that generally applicable federal tax

laws apply to Indians as to all other citizens and that

any exemption for Indians from a federal tax “must be

Ss

16

definitely expressed.” Five Civilized Tribes, 295 U.S.

at 419-420.

Petitioner similarly errs in relying (Pet. 24-25) on

Squire v. Capoeman in this context. In that case, the

Court considered whether the General Allotment Act of

1887, Ch. 119, 24 Stat. 388, exempted an Indian from

federal income tax on the sale of timber from land

allotted to him but held in trust by the government.

351 U.S. at 2. The Court began its analysis in Squire by

reiterating the general rule that “to be valid, exemp-

tions to tax laws should be clearly expressed.” Id. at 6.

The Court noted that, under the General Allotment

Act, when the trust was discharged, the allottee was to

receive fee title tc his land “free of all charge or incum-

brance whatsoever.” Id. at 3. While recognizing that

this statutory text was not “expressly couched in terms

of nontaxability,” the Court said that, under the Indian

canon of construction, “the general words ‘charge or

incumbrance’ might well be sufficient to include taxa-

tion.” Id. at 6-7. The Court then further noted that, in

an amendment to this Act, Congress had specified that,

when the patent in fee simple for the land was issued to

allottees, “all restrictions as to sale, incumbrance, or

taxation of said land” were to be removed. Id. at 7 (em-

phasis added). The Court concluded that the “literal

_language” of this amendment “evince[d] a congressional

intent to subject an Indian allotment to all taxes only

after a patent in fee is issued to the allottee,” which sup-

ported the conclusion that the allotment was exempt

from taxes before the patent was issued. Id. at 8

(emphasis added).

The federal tax exemption found in Squire was thus

plainly grounded in the “literal language” of the statute

that expressly described the “restrictions” on “taxation

of [allotted] land.” 351 U.S. at 7-8. The decision of the

17

court of appeals in this case applies the same principles

articulated in Squire. The court looked first to the

“literal language” (851 U.S. at 8) of the treaty to deter-

mine whether an exemption from the tax laws had been

“clearly expressed” (id. at 6). Pet. App. 10a-1la. Find-

ing no clear expression of an intent to create a tax ex-

emption in the language of the 1855 treaty, the court

correctly held that the Indian canon has no application

in determining the scope of an exemption from federal

taxation that does not exist in the text of the treaty.

Pet. App. 8a; page 9, supra. ‘

c. In any event, canons of interpretation “are not

mandatory rules.” Chickasaw Nation v. United States,

534 U.S. 84, 94 (2001). They “need not be conclusive

and are often countered, of course, by some [other]

maxim pointing in a different direction.” Circuit City

Stores, Inc. v. Adams, 532 U.S. 105, 115 (2001). When

this Court was recently asked to consider the con-

current application of the Indian and federal tax canons

in Chickasaw Nation, it declined to say that “the pro-

Indian canon is inevitably stronger” than the principle

that exemptions to tax laws must be “clearly ex-

pressed.” 534 U.S. at 95.7. As the Court stated in

Chickasaw, the “earlier cases are too individualized,

involving too many different kinds of legal circum-

stances, to warrant any such assessment about the two

canons’ relative strength.” Ibid.

7 The question before the Court in Chickasaw Nation was

whether the Indian Gaming and Regulatory Act, 25 U.S.C. 2702 et

seq., exempted Indian tribes from federal wagering and occu-

pational taxes. The Tenth Circuit held that no such exemption was

provided by the terms of the statute and that the tribes were

therefore subject to these taxes. 208 F.3d 871 (10th Cir. 2000).

This Court agreed with that holding and found the Indian canon

inapplicable in doing so. 534 U.S. at 93-965.

18

Moreover, none of these “earlier cases” cited in

Chickasaw justifies petitioner’s reliance on the Indian

canon in this case. In each of the cited cases, the Court

properly looked first to the actual language of the

treaty or statute to determine whether it contained an

express statement of exemptive intent. In Choate, the

Court found that the language “nontaxable” was clearly

exemptive (224 U.S. at 675-676); in Squire, the Court

found the language “free of all charge or encumbrance

whatsoever” to be exemptive (351 U.S. at 3); in Cho-

teau, the Court found that a statute imposing tax on

income “from any source whatever” was not expressly

exemptive (283 U.S. at 693-694); and in Mescalero

Apache Tribe v. Jones, 411 U.S. 145 (1973), the Court

held that a statute that “[oJn its face * * * exempts

land and rights in land” did not exempt income derived

from the use of land (id. at 155-156). As the court of

appeals emphasized in this case, the 1855 treaty con-

tains no language such as “free from incumbrance,’

‘free from taxation,’ and ‘free from fees,’” which are

“examples of express exemptive language” that would

be sufficient to warrant an exemption. Pet. App. 8a.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

EILEEN J. O'CONNOR

Assistant Attorney General

DAVID ENGLISH CARMACK

ANDREA R. TEBBETS

Attorneys

JUNE 2003