Amicus Curiae Brief — Atkinson Trading Co. v. Shirley

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Supreme Court, U.S.

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No. 00-454 |

Ti 69

In the

Supreme Court of the United States

Aire

ATKINSON TRADING COMPANY, INC.,

Petitioner,

JOE SHIRLEY, JR., VICTOR JOE, DERRICK B.

WATCHMAN, and ELROY DRAKE, MEMBERS OF THE

NAVAJO TAX COMMISSION; and STEVEN C. BEGAY,

Executive Director of the Navajo Tax Commission,

Respondents

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Tenth Circuit

BRIEF AMICUS CURIAE OF PACIFIC

LEGAL FOUNDATION, ROBERTA BUGENIG,

JAMES D. THOMPSON, JULIA R. THOMPSON, AND

THE CUSTER BATTLEFIELD TRADING

COMPANY IN SUPPORT OF THE PETITION

FOR WRIT OF CERTIORARI

JAMES S. BURLING

Counsel of Record

Pacific Legal Foundation

- 10360 Old Placerville Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amici Curiae

QUESTION PRESENTED

Whether an Indian tnbe may tax a transaction occurnng

between two nonIndians on tee land within the reservation?

PABLE OF CONTENTS

QUESTION PRESENTED

LABLE OF AUTHORITIES

INTEREST OF AMICI

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRII

INTRODUCTION

CONCLUSION

THE EN TENT OF NONINDIAN PRESENCE

AND LANDON INDIAN RESERVATIONS

GIVES GREAT PRACTICAL IMPORT LO

LH QUESTION PRESENTED

IRIBAL TAXATION IS AIMED

MOSTLY ALT NONINDIANS

LH DECISION OF THRE TENTH CIRCULT

IS IN CONFLICT WITH DECISIONS OF

IHIS COURT AS WELL AS THE NINTH

CIRCULE COURT OF APPEALS

A. There Is a Presumption That NonIndian-

Owned Fee Lands Are Subject to State and

Local, Not Tnbal, Regulatory and Taxation

Junsdiction, the Fenth Circuit’s Ruling Is

in Conflict with This Presumption 2.2.0... .

B. The Decision Below Cannot Be Reconciled

with the Opimons of the Ninth Circuit 22...

1. Cases Like Big Horn County Electric

Cooperative v. Addams Are Better

Reasoned Than Atkinson 2.0.0.0... ...

Bugenig v. Hoopa Valley Tribe

Demonstrates a Proper Understanding

of Tribal Jurisdiction .............::.

ee ee ee a a a a ae ee ar ee ee ee a a ee ee ke er ee

TABLE OF AUTHORITIES

Page

Cases

Atkinson Trading Company, Inc. v. Shirley,

210 F.3d 1247 (10th Cir. 2000) 20... Se eae

Big Horn County Electric Cooperative, Inc. v

Adams, 219 F.3d 944 (9th Cir. 2000) 200000000... = i

Brendale v. Confederated Tribes and Bands of the

Yakima Indian Nation, 492 U.S. 408 (1989). 008... 10

Bugenig v. Hoopa Valley Tribe,

No. 99-15654, 2000 U.S. App. LEXIS

24746 (9th Cir. Oct. 3, 2000) ............... 1, 12-13

County of Yakima v. Confederated Tribes

and Bands of Yakima Indian Nation.

Re EO) a 9-10)

In re Haines, 245 B.R. 401 (D. Mont. 2000),

appeal pending sub nom. Crow Tribe v.

Haines, Ninth Circuit Case No. 00-35176 2200000... 12

Moe v. Confederated Salish and Kootenai

Tribes of the Flathead Reservation,

eww wn )

Montana v. United States.

i ee ec kw nee 2.81013

Puyallup Tribe, Inc. v. Department of Game

of Washington, 433 U.S. 165 (1977) 220 ee. 8

Rose v. Adams, U.S. District Court

Case No. 99-126, appeal pending ...........0..... 12

Seymour v. Superintendent of Washington

State Penitentiary, 368 U.S. 351 (1962) ....000000.... 9)

South Dakota v. Bourland, SO8 U.S. 679 (1993) 2.00.0... S

TABLE OF AUTHORITIES—Continued

Page

Strate v. A-1 Contractors, 520 U.S. 438 (1997) ...... 2,13

Taiton v. Mayes, 163 U.S. 376 (1896)-................. 6

Thompson v. Adams, Montana

epemeract (omit Padi. Sah Se ce i oe oa ee we ees 1-2, 12

Statutes

9 USAC. 8329 CER oo ri ce ora ek eee 4

S S51, CONES A Pe ae eee 7

O DF 5 CCR ERE ER Cee ee ee ee 7-8

Rules

SMTOING LOE HN BT ans Sa ek decane eee 3

Rae STO ia eA ee ee Rae ee eee 2

POUND TAD eon a wk a Bek ed KOR eee |

Miscellaneous

BIA Geographic Data Service Center, Judicially

Established Indian Land Areas 1978 (1998) ......... 3

Bureau of the Census, U.S. Department

of Commerce, 1/990 Census of Population,

Social and Economic Characteristics, American

Indian and Alaska Native Areas (1990) ............. 4

Bureau of the Census, U.S. Department of

Commerce, We the... First Americans (1993) ....... 4

Edna L. Paisano, U.S. Census Bureau, 7he

American Indian, Eskimo, and Aleut

Population (2000) (last modified Jan. 29, 1999)

<http://www.census.gov/population/www/

PORN SNE i bs ek own ne pau 3

TABLE OF AUTHORITIES—Continued

Felix S. Cohen, Handbook of Federal

UD oe ce ae ck uckwan 4-5

Population Growth Rate Remains Stable,

Census Bureau Reports, United States

Department of Commerce News, June 4,

1999, <http://www.census.gov/Press-

Release/www/1999/cb99-101.html>. 2.20.00... 3-4, 6

William C. Canby, Jr., American Indian

Law ina Nutshell (3d ed. 1998) ................. 5-6

INTEREST OF AMICI

Pacific Legal Foundation is a nonprofit public interest

legal foundation that specializes in defending property rights

and other individual liberties. Since its inception 26 years ago,

PLF has had extensive litigation experience in cases involving

individuals adversely affected by government regulation of

private property. In recent years, the Foundation has become

increasingly concerned over the scope of regulatory and taxing

authority asserted by Indian tribes over nonIndian-owned fee

property located within the extenor boundanes of Indian

reservations.

In this regard, Foundation attorneys are representing

Amici James D. and Julia R. Thompson and the Custer

Battlefield Trading Company in Thompson v. Adams, Montana

District Court No. 98-110, a case now pending before the Ninth

Circuit Court of Appeals. In Thompson, the Montana Federal

District Court held that the Crow Indian Tribe could not impose

a 4% “resort tax” on all gross receipts on a nonIndian business

located on nonIndian fee land within the exterior boundaries of

the Crow Indian Reservation.

Foundation attorneys are also representing Amicus

Mrs. Roberta Bugenig, in the case of Bugenig v. Hoopa Valley °

Tribe, No. 99-15654, 2000 U.S. App. LEXIS 24746 (9th Cir.

Oct. 3, 2000), a case where the Ninth Circuit found that the

Hoopa Valley Indian Tribe lacks regulatory jurisdiction over

timber harvesting activity on Mrs. Bugenig’s fee property.

' Pursuant to Supreme Court Rule 37.6, Amici Curiae Pacific Legal

Foundation, Roberta Bugenig, James D. and Julia R. Thompson, and

the Custer Battlefield Trading Company affirm that no counsel for

any party in this case authored this brief in whole or in part; and,

furthermore, that no person or entity has made a monetary contribu-

tion specifically for the preparation or submission of this brief.

Ihe decision in the case that 1s subject to the pending

petition for wnt of certioran, Atkinson Trading Company, Inc

v. Shirley, 210 F.3d 1247 (10th Cir. 2000), implicates issues

similar to those that the courts addressed 1n the 7hompson and

Bugenig cases. For that reason, these Amici have an interest in

seeing that the Court addresses the reasoning in Atkinson in

order to ensure uniformity of decisionmaking in the circuit

courts of apneals.

Pursuant to Supreme Court Rule 37.2(a), written

permission from all parties for Pacific Legal Foundation to file

this brief has been lodged with the Clerk of this Court.

STATEMENT OF THE CASE

Amici adopt Petitioner's Statement of the Case.

REASONS FOR GRANTING THE WRIT

INTRODUCTION

The issue of when an Indian tnbe may extend its

regulatory and taxing jurtsdiction over nonindian-owned fee

property continues to vex the lower courts despite numerous

opinions from this Court. The decision below is the most

recent manifestation of the difficulties that the courts have had .

in setting limits upon tnbal junsdiction over nonIndian-owned

fee land. Despite this Court’s admonitions in cases from

Montana v. United States, 450 U.S. 544 (1981), to Strate v. A-1

Contractors, 520 U.S. 438 (1997), the lower courts have

sometimes strayed, most notably in the decision below when

the Tenth Circuit extended taxing authority over nonIndian-

owned fee simple property. While the circuit below upheld a

tax upon transactions taking place on nonIndian owned fee

property, the Ninth Circuit and its district courts have rejected

similar assertions of taxing authority. Similarly, the reasoning

of the Ninth Circuit on other matters of regulatory jurisdiction

show how different circuits are approaching these cases in ways

that suggest further guidance from this Court is appropriate.

tod

THE EXTENT OF NONINDIAN PRESENCE

AND LAND ON INDIAN RESERVATIONS

GIVES GREAT PRACTICAL IMPORT TO

THE QUESTION PRESENTED

The seemingly narrow circumstances of this case-—taxing

nonIndian travelers on a state highway for lodging the night on

nonIndian fee simple property—may mask the practical import

of the doctrinal question presented. In fact, the potential

quantum of inappropnate tribal regulation and taxation of

nonIndians on nonIndian land is very great. The presumptive

rule against tribal authority over nonIndian fee simple land is a

quantitatively and historically important limitation on such

unfaimess. Accordingly, the Amici wish to “bring[] to the

attention of the Court relevant matter not already brought to its

attention by the parties,” Rule 37.1, specifically the extent of

nonIndian population and fee simple land and equivalent land

on Indian reservations and the increasing focus of tribal taxes

on nonIindians.

As last revised by the Bureau of Indian Affairs Geographic

Data Service Center in 1998, there are approximately

1,135,874,716 acres of Indian trust land in the United States

located on 314 reservations. BIA Geographic Data Service

Center, Judicially Established Indian Land Areas 1978 (1998).

They range from extensive tracts larger than some states to

parcels of only a few acres. They are found in rural, suburban.

and even urban areas.

As of the 1990 census there were 1,878,285 American

Indians. Edna L. Paisano, U.S. Census Bureau, The American

Indian, Eskimo, and Aleut Population | (2000) (last modified

Jan. 29, 1999) <http://www.census.gov/population/www/pop-

profile/amerind.html>. In 1999, that population was estimated

at 2.4 million. Population Growth Rate Remains Stable.

Census Bureau Reports, United States Department of

Commerce News, June 4, 1999, at 1, <http://www.census.gov/

Press-Release/www/1999/cb99-101.html>. Only 22.3% of

American Indians live on reservations. Bureau of the Census,

U.S. Department of Commerce, We the. . . First Americans 7

(1993). Significantly, of the 808,070 people living on Indian

reservations, 370,543, or 45.8%, are nonIndians. Bureau of the

Census, U.S. Department of Commerce, /990 Census of

Population, Social and Economic Characteristics, American

Indian and Alaska Native Areas 3 (1990).

_ Data are not available from the Bureau of Indian Affairs

or elsewhere on the precise amount of nonIndian fee land on

Indian reservations. However, the Nineteenth Century policy

of allotment, first by special statutes and then universally by the

General Aliotment Act of 1887, resulted in much land on many

reservations passing into fee title and entering the stream of

commerce. See Felix S. Cohen, Handbook of Federal Indian

Law 130-35 (1982 ed.).

Federally granted easements and nghts-of-way on

reservation land, often to nonIndians, have historically

promoted development of Indian lands as well as the needs of

Indians and nonIndians alike for transportation and other

access. Such rights-of-way lead to the most casual and frequent

presence of nonIndians on Indian reservations, the kind found

in this case—travelers on state and federal highways who cross

Indian lands merely in getting from one place to another.

The most permanent nonIndian presence and the strongest

expectation of autonomy from tribal control and taxation on the

reservation comes from owning land in fee simple or its

equivalent. Federal grants of easements and rights-of-way are

also the modern mechanism for giving secure titles equivalent

to fee simple for major capital investments on the reservation.

The federal policy of inducing investment for the mutual

benefit of Indians and nonIndians on easements and rights-of-

way was codified in 1948 in 25 U.S.C. § 323, et seq. That

statute is a general authorization of such federal grants in lieu

of the earlier practices of special laws and narrower statutes

allowing such grants for more limited purposes or for specific

reservations. Cohen, supra, at 543-44.

Thus, tribal regulation and taxation of nonIndians

potentially affects hundreds of thousands of people living on

reservations and innumerable other nonIndians.

TRIBAL TAXATION IS AIMED

MOSTLY AT NONINDIANS

From the beginning of the Republic, it has been federal

policy to protect the cultural and political autonomy of Indians

who maintain their tribal relations. The most important tool of

that policy has been the tribal power of self-government.

Cohen, supra, at 660-63. It is in the nature of tribal self-

government that only members of the tribe participate in that

government. See id. at 662.

It is no surprise that in the resurgence of tribal taxation in

the last two decades, tribes have sought largely to tax

nonIndians, to whom tribal governments need not answer. A

prominent commentator on Indian law has recently concluded:

Some of the tribes have imposed taxes on

business activity within Indian country, and those

taxes have fallen largely upon non-Indian

enterprises. ...

There has recently been a sharp increase in

tribal taxes on non-Indian businesses, arising from a

new awareness of the governmental powers of the

tribes, along with heightened revenue needs. In

some cases there is also a conviction that non-Indian

enterprises have been granted leases or licenses that

are unduly advantageous to them and

disadvantageous to the tnbes. Taxation is seen as

one means of recouping the loss.

William C. Canby, Jr., American Indian Law ina Nutshell 261

(3d ed. 1998).

We know trom the experience of parallel governments in

our federal system that taxation of outsiders rather than insiders

is primordial human behavior. In the interstate context, the

Constitution itself consciously curbs that behavior through the

Commerce Clause, the Privileges and Immunities Clauses, the

Equal Protection Clause, and the Due Process Clauses.

However, those constitutional limitations are usually found

inapplicable to Indian tnbes. Talton v. Mayes, 163 U.S. 376,

384 (1896). Therefore, in the absence of statutes, the federal

common law of Indian relations must strike the nght balance

between tribal self-government, our democratic commitment to

consent of the governed, and the civil nghts interests of persons

who are excluded by the immutable circumstances of their birth

from a voice in a government that would take part of their

treedom and property.

De facto and even de jure discrimination against

nonmembers in tribal taxation is receiving the attention of

lower courts. As shown in section III B below, the treatment by

the lower courts has been inconsistent and requires the attention

of this Court on broad doctrinal grounds. The first protection

against such inappropriate taxation has been the recognition that

nonIndian fee land is presumptively not subject to tnbal

regulatory jurisdiction or taxation. Whether that historic rule

should be abandoned, as the Tenth Circuit now holds, or

maintained, as the Ninth Circuit holds, merits the consideration

of this Court.

THE DECISION OF THE TENTH CIRCUIT

IS IN CONFLICT WITH DECISIONS OF

THIS COURT AS WELL AS THE NINTH

CIRCUIT COURT OF APPEALS

A. There Is a Presumption That NonIndian-

Owned Fee Lands Are Subject to State

and Local, Not Tribal, Regulatory and

Taxation Jurisdiction; the Tenth Circuit's

Ruling Is in Conflict with This Presumption

This Court has established a presumption that tribal

governments do not have jurisdiction over fee property

belonging to nonmembers. The origins of this presumption can

be traced to the history, nature, and status of the fee simple

property. However, the Tenth Circuit rejected the force of this

Court’s pronouncements on the nature of this presumption

when it held that the status of the land as fee simple is not

particularly important in determining the existence of tribal

jurisdiction. See decision of Tenth Circuit, reproduced in

Petitioner's Appendix (PA) at, e.g., 25a (“Our reading of

Supreme Court precedent rejects the arbitrary factual basis of

fee status as the determinative factor of the Montana

standard.”’).

It is undisputed that the fee land that is now owned by the

Atkinson Trading Company is fee simple property. See PA at

2a. Within the boundaries of Indian reservations throughout the

United States there are numerous similarly situated fee simple

properties belonging to nonIndians, most of which first became

private property as a result of the General Allotment Act of

1887, 24 Stat. 390 (current version at 25 U.S.C. § 331, et seq.).

Significantly, there is a general presumption that such

nonIndian-owned fee simple land created through the allotment

acts is subject to state, not tribal, jurisdiction. For example, the

General Allotment Act, after the passage of a trust period,

provided that patent should issue and “then each and every

aaa Ul ee

allottee shall have the benefit of and be subject to the laws, both

civil and criminal, of the State or Territory in which they may

reside.” 25 U.S.C. § 349.

The General Allotment Act, as well as other allotment

acts, had a dramatic impact not only on tribal land ownership

patterns but also on tribal versus state jurisdiction. With respect

to all fee lands within Indian reservations, this Court has stated

the “general proposition” that “the inherent sovereign powers

of an Indian tribe do not extend to the activities of nonmembers

of the tbe,” Montana, 450 U.S. at 565. This Court has spelled

out the limited nature of any remaining tribal jurisdiction over

nonIndian land:

Although Indian tnbes retain inherent authority to

punish members who violate tnbal law, to regulate

tribal membership, and to conduct internal tribal

relations, United States v. Wheeler, 435 U.S. 313,

326, 55 L. Ed. 2d 303, 98 S. Ct. 1079 (1978), the

“exercise of tribal power beyond what is necessary to

protect tribal self-government or to control internal

relations is inconsistent with the dependent status of

the tribes, and so cannot survive without express

congressional delegation,” Montana, 450 U.S. at

564.

South Dakota v. Bourland, 508 U.S. 679, 694-95 (1993). See

also Montana, 450 U.S. at 560 (citing to Puyallup Tribe, Inc. v.

Department of Game of Washington, 433 U.S. 165 (1977), and

noting that neither the acts of Congress, under which tnbal trust

lands were alienated, nor any treaty language establishing a

reservation gave the Puyallup Tribe regulatory authority over

land owned by nonIndians).

The effect of the allotment acts was to expand state

regulatory jurisdiction over most fee land owned by nonIndians.

Although Congress became disenchanted with and ultimately

repealed the allotment acts, those repeals did not reverse the

jurisdictional changes affected by the allotment acts. For that

reason, this Court has never held that Congress ever reversed

the state’s assumption of regulatory jurisdiction over fee lands

owned by nonIndians.

In recent years, this Court has also made it clear that while

the Allotment Act expanded the potential of state jurisdiction

over privately owned fee property within Indian country, such

expansion was limited. Thus the Court has found that states

lacked “plenary power” over Indians residing on reservation fee

lands. For example, in Moe v. Confederated Salish and

Kootenai Tribes of the Flathead Reservation, 425 U.S. 463

(1976), this Court found that the State of Montana could not

impose its cigarette sales and personal property taxes and

certain licensing fees on /ndian residents of a reservation. It

noted that the Allotment Act did not itself establish

‘“Montana’s jurisdiction as to those Indians living on ‘fee

patented’ lands.” 425 U.S. at 478. Earlier, in Seymour v.

Superintendent of Washington State Penitentiary, 368 U.S. 351,

357-58 (1962), this Court found that it was unreasonable to

suggest that section 6 of the Allotment Act removed patented

fee land from the reservations and thus denied the tribes of

criminal jurisdiction over /ndian defendants residing on fee

lands. To hold otherwise, this Court noted, would require law

enforcement officers to research the land ownership patterns

every time a criminal offense occurs within reservation

boundaries. /d.

But just because this Court noted in cases like Moe and

Seymour that the states do not have plenary jurisdiction over fee

lands within Indian reservations, and just because the fee land

remains within Indian country, that does not mean that the

presumption against tribal regulatory jurisdiction over

nonIndian fee lands articulated in Montana lacks force. In fact,

in County of Yakima v. Confederated Tribes and Bands of

Yakima Indian Nation, 502 U.S. 251 (1992), this Court was

confronted with the question of whether the county could

impose certain real estate taxes on fee lands within the Yakima

Reservation. The tribe argued, citing Moe, that the Allotment

Act had essentially been repealed and that any state assertion of

jurisdiction over fee lands was unlawful. This Court disagreed.

It acknowledged initially that section 6 of the Allotment Act did

not give “in personam jurisdiction . . . to include subsequent

Indian owners.” /d. at 262. But when looking at the entirety of

the Allotment Act, this Court concluded that because “Yakima

County’s assertion of jurisdiction over reservation fee-patented

land. ... is in rem rather than in personam, it is assuredly not

Moe-condemned; and it is not impracticable either.” /d. at 264-

65. This Court therefore found that the county could impose

certain taxes over all fee lands—owned by Indians and

nonIndians alike.”

The end result of the allotment acts was to diminish tribal

jurisdiction over certain nonIndian-owned fee lands. As this

Court has made clear, because the intent of the allotment acts

was to do away with the reservation system, it was only natural

that the nonIndian owners of the allotments were to be under

state, rather than tribal, jurisdiction. ;

It defies common sense to suppose that Congress

would intend that non-Indians purchasing allotted

lands would become subject to tribal jurisdiction

when an avowed purpose of the allotment policy was

the ultimate destruction of tribal government.

Montana, 450 U.S. at 559 n.9; quoted in Brendale vy.

Confederated Tribes and Bands of the Yakima Indian Nation,

492 U.S. 408, 423 (1989) (plurality opinion).

* Interestingly, all the parties to the case agreed that the state could

tax fee lands owned by nonmembers of the Tribe. 502 U.S. at 265

(tribe and amicus) “would allow state taxation of only those fee lands

owned . . . by nonmembers of the Tribe.”

In contrast to this strong presumption against finding tribal

jurisdiction over fee simple property belonging to nonIndians,

the Tenth Circuit chose to minimize the import of the land’s

status. See, e.g., PA at 16a-19a, 25a. This cannot be reconciled

with the opinions of this Court. Granting the petition for wnt

of certiorari is the only way to resolve this conflict.

B. The Decision Below Cannot Be Reconciled

with the Opinions of the Ninth Circuit

1. Cases Like Big Horn County

Electric Cooperative v. Adams Are

Better Reasoned Than Atkinson

Ever since Montana, and despite the lessons of Montana,

the Crow Tribe has attempted to extend its regulatory and

taxing jurisdiction over nonIndian-owned lands. The most

recent Ninth Circuit opinion on this issue, Big Horn County

Electric Cooperative, Inc. v. Adams, 219 F.3d 944 (9th Cir.

2000), and the case of Amici James D. and Julia R. Thompson

and the Custer Battlefield Trading Company in 7hompson v.

Adams, reflect this continuing difficulty.

In Big Horn, the Crow Tribe imposed an ad valorem tax

on easements owned by an electric cooperative and the

cooperative sued in federal district court. 219 F.3d at 948-49.

Finding that the utility’s easements were the functional

equivalent of fee land, id. at 950, the court proceeded to find

that the tribe had no taxing authority over the property. It

rejected first the argument that there was a “consensual

agreement” because the tax was imposed upon property, not

actions arising out of consensual relationships. /d. at 951. The

tribe also argued that tribal integrity would be threatened if it

could not raise the revenues, which it needed to finance tribal

services. The Ninth Circuit rejected this argument also, finding

that it would swallow the rule of Montana. Id. at 951-52.

The Thompsons, who are not Indians, face a similar

problem in their case, which is now pending before the Ninth

Circuit, Case No. 00-35805. They own a trading post on fee

land upon which the tribe has imposed a 4% resort tax upon all

gross receipts. In an order dated August 7, 2000, the Montana

District Court struck down the tax because the tribe “does not

have jurisdiction to tax transactions between non-Indians which

occur entirely on non-Indian fee land.” Order at 1-2. The

emphasis upon the nature of the land ownership is an analysis

that is more consistent with this Court’s holdings than the

holding of the Tenth Circuit in Atkinson.

Additionally, the district court in Thompson relied upon

the reasoning in two other Montana Federal District Court

challenges to the identical resort tax on the Crow Reservation,

in re Haines, 245 B.R. 401 (D. Mont. 2000), appeal pending

sub nom. Crow Tribe v. Haines, Ninth Circuit Case No. 00-

35176, and Rose v. Adams, U.S. District Court Case No. 99-

126, appeal pending. |

If this Court were to resolve the outstanding issues in

Atkinson, it would help clarify that the Ninth Circuit is on the

right track with its decision in Big Horn. Furthermore, if this

Court were to address the issues raised in Atkinson, then the

Ninth Circuit would be able to better analyze the legality of the

Crow resort tax at issue in Thompson, Haines, and Rose.

2. Bugenig v. Hoopa Valley Tribe

Demonstrates a Proper Understanding

of Tribal Jurisdiction

Amicus Mrs. Roberta Bugenig is a nonIndian whose

ancestors migrated to the Hoopa Valley, California, area

approximately 150 years ago. Bugenig v. Hoopa Valley Tribe,

2000 U.S. App. LEXIS 24746, at *4. In 1995, the tribe passed

an ordinance establishing a buffer zone of one-half mile in

every direction from the location of the White Deerskin Dance

Trail. /d. Shortly after the establishment of the half-mile buffer

zone around the dance trail site, Mrs. Bugenig purchased in fee

simple 40 acres of land located within the reservation’s external

boundaries and the buffer zone. /d. Mrs. Bugenig sought and

obtained permission from the California Department of Forestry

to remove second-growth trees from approximately three acres

on her property in order to facilitate the building of a home. /d.

at *5. After she began cutting trees, the tribe moved for an

injunction in tribal court to prevent Mrs. Bugenig from

harvesting her trees. /d. at *6.

After exhausting her tribal court remedies in a losing

effort, Mrs. Bugenig sued in federal district court. The tnal

court ruled that based upon the Hoopa-Yurok Settlement Act,

the tribe had jurisdiction over Mrs. Bugenig’s fee simple

property. /d. at *8.

The Ninth Circuit reversed. It found first that the terms of

the Settlement Act did not reflect an intent of Congress to grant

the tribe jurisdiction over fee property. /d. at *22. Secondly, it

found on the basis of cases such as Montana and Strate that the

relatively insignificant impacts of Mrs. Bugenig’s activities on

her land did not implicate the second Montana exception.’ Id.

at *23-*33. Tellingly, the court rejected the notion that an

“aggregation” of impacts on fee simple property could justify

tribal jurisdiction over fee property within a reservation. /d. at

*29. In reaching this decision, the Ninth Circuit recognized the

import of the nature of the underlying property:

[A]n Indian tnbe’s claim of jurisdiction is

significantly strengthened when the events at issue

took place on land owned and controlled exclusively

by tribal members. Conversely, when a tribe

attempts to assert regulatory authority over land that

is owned and controlled by a nonmember, it

confronts a nearly impossible task.

Id. at *33.

* The second Montana exception is that the activity would have an

adverse impact of the ability of the tnbe to govern itself.

This decision in Bugenig, to the extent that it involves an

interpretation of the Hoopa-Yurok Settlement Act, does not, of

course, implicate any conflict with the case below. Likewise,

the facts of Bugenig (regulating a minor timber harvest) are

uniquely different from those in Atkinson (taxing trading post

transactions) and one cannot say how the Tenth Circuit would

have ruled in Bugenig simply based on its holding in Atkinson.

Nevertheless, the differing understandings of these two circuits

toward basic principles of Indian law and this Court’s

precedents regarding the importance of the fee simple status of

property, point out a need for this Court to once again step in

and provide needed guidance to the Tenth Circuit.

CONCLUSION

For the above reasons, the Petition for Writ of Certiorari

should be granted.

DATED: October, 2000.

Respectfully submitted,