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Indian Law Cases Before the United States Supreme Court 1988 - 1998 Chronology of a Decade

Of 26 Indian law cases heard by the United States Supreme Court in the last decade, 21 of these cases were decided against Indian tribes, Indian country, or Indian individual rights such as religious freedom; and 2 more of the cases were partial losses. Since 1994, there has been a single Indian law case decided in favor of Indians (Kiowa Tribe v. Manufacturing Technologies), and one case which was a partial victory for Indians (Oklahoma Tax Comm'n v. Chickasaw Nation).

CASE NAME: For or against Indian country?
1988 Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534 5-3 AGAINST
1989 Oklahoma Tax Comm'n v. Graham, 489 U.S. 838, 109 S.Ct. 1519, 103 L.Ed.2d 924 Per Curiam AGAINST
Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 6-3 FOR
Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 109 S.Ct. 1698, 104 L.Ed.2d 209 6-3 AGAINST
Brendale v. Confederated Tribes and Bands of Yakima Indian Nation, 492 U.S. 408, 109 S.Ct. 2994, 106 L.Ed.2d 343 Plurality AGAINST
1990 Employment Div., Dept. Of Human Resources of State of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 6-3 AGAINST
Duro v. Reina, 495 U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693 7-2 AGAINST
1991 Oklahoma Tax Comn'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 111 S.Ct. 905,109 L. Ed.2d 112 Unanimous PARTIAL
Blatchford v. Native Village of Noatak and Circle Village 501 U.S. 775, 111 S.Ct. 2578, 115 L.Ed.2d 686 6-3 AGAINST
1992 County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation, 502 U.S. 251, 112 S.Ct. 688,116 L.Ed.2d 687 7-1 AGAINST
1993 Negonsott v. Samuels, 507 U.S. 99, 113 S.Ct. 1119,122 L.Ed.2d 457 Unanimous AGAINST
OklahomaTax Comm'n v. Sac and Fox Nation, 508 U.S. 114, 113 S.Ct. 1985, 124 L.Ed.2d 30 Unanimous FOR
South Dakota v. Bourland, 508 U.S. 679, 113 S.Ct. 2309,124 L.Ed.2d 606 7-2 AGAINST
Lincoln v. Vigil, 508 U.S. 182, 113 S.Ct. 2024,124 L.Ed.2d 101 Unanimous AGAINST
1994 Hagen v. Utah, 510 U.S. 399, 114 S.Ct. 958,127 L.Ed.2d 252 7-2 AGAINST
Dept. Of Taxation and Finance of New York v. Milhelm Attea & Bros, Inc., 512 U.S. 61, 114 S.Ct. 2028, 129 L.Ed.2d.52 Unanimous AGAINST
1995 Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S. 450, 115 S.Ct. 2214, 132 L.Ed.2d 400 5-4 PARTIAL
1996Seminole Tribe of Florida v. Florida, 517 U.S. 44,116 S.Ct. 1114, 134 L.Ed.2d 252 5-3 AGAINST
1997 Babbitt v. Youpee, 519 U.S. 234, 117 S.Ct. 727,136 L.Ed. 2d 696 8-1 AGAINST
Strate v. A-1 Contractors, 520 U.S. 438, 117 S.Ct. 1404, 137 L.Ed.2d 661 Unanimous AGAINST
Idaho v. Coeur d' Alene Tribe of Idaho, 521 U.S. 261,117 S.Ct. 2028, 138 L.Ed.2d 438 5-3 AGAINST
1998 South Dakota v. Yankton Sioux Tribe, 118 S.Ct. 789,139 L.Ed.2d 773 Unanimous AGAINST
Alaska v. Native Vllage of Venetie Tribal Government,118 S.Ct. 948, 140 L.Ed.2d 30 Unanimous AGAINST
Montana v. Crow Tribe of Indians, 118 S.Ct. 1650,140 L.Ed.2d 898 7-2 AGAINST
Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 118 S.Ct. 1700, 140 L.Ed.2d 981 6-3 FOR
Cass County, Minn. v. Leech Lake Band of Chippewa Indians, 118 S.Ct. 1904, 141 L.Ed.2d 90 Unanimous AGAINST

INDEX OF CASES Alphabetical by Plaintiff Name:

Alaska v. Native Village of Venetie Tribal Government,118 S.Ct. 948, 140 L.Ed.2d 30 (1998)

Babbitt v. Youpee, 519 U.S. 234, 117 S.Ct. 727,136 L.Ed. 2d 696 (1997)

Blatchford v. Native Village of Noatak and Circle Village 501 U.S. 775, 111 S.Ct. 2578, 1 15 L.Ed.2d 686 (1991)

Brendale v. Confederated Tribes and Bands of Yakima Indian Nation, 492 U.S. 408, 109 S.Ct. 2994, 106 L.Ed.2d 343 (1989)

Cass County, Minn. v. Leech Lake Band of Chippewa Indians, 118 S.Ct. 1904, 141 L.Ed.2d 90 (1998)

Cotton Petroleum Corp. v. New Mexico,490 U.S. 163, 109 S.Ct. 1698, 104 L.Ed.2d 209 (1989)

County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation, 502 U.S. 251, 112 S.Ct. 688,116 L.Ed.2d 687 (1992)

Dept. Of Taxation and Finance of New York v. Milhelm Attea & Bros, Inc., 512 U.S. 61, 114 S.Ct. 2028, 129 L.Ed.2d. 52 (1994)

Duro v. Reina, 495 U.S. 676, 110 S.Ct. 2053,109 L. Ed.2d 693 (1990)

Employment Div., Dept. Of Human Resources of State of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990)

Hagen v. Utah, 510 U.S. 399, 114 S.Ct. 958,127 L.Ed.2d 252 (1994)

Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261,117 S.Ct. 2028, 138 L.Ed.2d 438 (1997)

Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998)

Lincoln v. Vigil, 508 U.S. 182, 113 S.Ct. 2024,124 L.Ed.2d 101 (1993)

Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988)

Mississippi Band of Choctaw Indians v. Holyfield,490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989)

Montana v. Crow Tribe of Indians, 118 S.Ct. 1650,140 L.Ed.2d 898 (1998)

Negonsott v. Samuels, 507 U.S. 99, 113 S.Ct. 1119,122 L.Ed.2d 457 (1993)

Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S. 450, 115 S.Ct. 2214, 132 L.Ed.2d 400 (1995)

Oklahoma Tax Comn'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 111 S.Ct. 905,109 L. Ed.2d 112 (1991)

Oklahoma Tax Comm'n v. Graham, 489 U.S. 838, 109 S.Ct. 1519, 103 L.Ed.2d 924 (1989)

Oklahoma Tax Comm'n v. Sac and Fox Nation, 508 U.S. 114, 113 S.Ct. 1985, 124 L.Ed.2d 30 (1993)

Seminole Tribe of Florida v. Florida, 517 U.S. 44,1 16 S.Ct. 1114, 134 L.Ed.2d 252 (1996)

South Dakota v. Bourland, 508 U.S. 679, 113 S.Ct. 2309,124 L.Ed.2d 606 (1993)

South Dakota v. Yankton Sioux Tribe, 118 S.Ct. 789,139 L.Ed.2d 773 (1998)

Strate v. A-1 Contractors, 520 U.S. 438, 117 S.Ct. 1404,137 L.Ed.2d 661 (1997)


Lyng, Secretary of Agriculture, et al. v. Northwest Indian Cemetery Protective Association, et al.

Docket No. 86-1013 Argued November 30, 1987 Decided April 19, 1988

CITATION: 485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988)

SYNOPSIS: The U. S Supreme Court held that protecting American Indian sacred sites is not a cognizable claim under the American Indian Religious Freedom Act, and is not protected by the Free Exercise Clause of the First Amendment to the Constitution. The Court rejected the traditional balancing test (governmental interest versus burden on free exercise of religion) in favor of holding that where the federal government does not coerce individuals into violating their religious beliefs or penalize their religious activities by denying them rights and benefits available to others, the government may develop its own property without regard to its interference with religious practices. At issue in this case was whether the First Amendment's Free Exercise Clause prohibits the Government from permitting timber harvesting in, or constructing a road through, a portion of a National Forest that has traditionally been used for religious purposes by members of three American Indian tribes in northwestern California. The Supreme Court held that it did not. Justice O'Connor filed the opinion for the majority, joined by Justices Rehnquist, White, Stevens and Brennan. Justices Brennan, Marshall and Blackmun filed a dissenting opinion. Justice Kennedy took no part in the consideration or decision of the case.

HISTORY: In 1982, the United States Forest Service prepared a final environmental impact statement for constructing a paved road through federal land, including the Chimney Rock area of the Six Rivers National Forest. This area, as reported in a study commissioned by the Service, had historically been used by certain American Indian tribes for religious rituals that depend on privacy, silence, and an undisturbed natural setting. The Service rejected the study's recommendation that the road not be completed through the Chimney Rock area because it would irreparably damage the sacred areas, and also rejected alternative routes outside the National Forest. Instead, the Service selected a route through the Chimney Rock area that avoided archeological sites and was removed as far as possible from the sites used by the Indians for specific spiritual activities. About the same time, the Service adopted a management plan that allowed for timber harvesting in these same areas, providing for protective zones around all the religious sites identified in the study. After exhausting administrative remedies, the respondents filed suit in Federal District Court challenging the road-building and the timber-harvesting decisions. The court issued a permanent injunction that prohibited the Government from constructing the Chimney Rock section of the road or putting the timber-harvesting into effect, holding, inter alia, that such actions would violate the Indians' rights under the Free Exercise Clause of the First Amendment and would violate certain federal statutes. The Court of Appeals affirmed.

HELD: 1) The courts below did not clearly explain whether - in keeping with the principle requiring that courts reach constitutional questions only when necessary - they determined that a decision on the First Amendment was necessary because it might entitle respondents to relief beyond that to which they were entitled on their statutory claims. The structure and working of the District Court's injunction, however, suggest that the statutory holding would have supported all of the relief granted, and the Court of Appeals' silence as to the necessity of reaching the First Amendment issue may have reflected its understanding that the District Court's injunction necessarily rested in part on constitutional grounds. Because it appears reasonably likely that the First Amendment issue was necessary to the decisions below, and because the Government is confident that it can cure the statutory defects identified below, it would be inadvisable for this Court to vacate and remand without addressing the constitutional question on the merits. Pp. 445-447.

2) The Free Exercise Clause does not prohibit the Government from prohibiting timber harvesting in the Chimney Rock area or constructing the proposed road. Pp. 447-458.

a) In Bowen v. Roy, 476 US 693 (which held that a federal statute requiring States to use Social Security numbers in administering certain welfare programs did not violate Indian religious rights under the Free Exercise Clause) this Court rejected the same kind of challenge that respondents assert. Just as in Roy, the affected individuals here would not be coerced by the Government's action into violating their religious beliefs; nor would the governmental action penalize the rights,benefits and privileges enjoyed by other citizens. Incidental effects of government programs, which may interfere with the practice of certain religions,but which have no tendency to coerce individuals into acting contrary to their religious beliefs, do not require government to bring forward a compelling justification for its otherwise lawful actions. The Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government. Even assuming that the Government's actions here will virtually destroy the Indians' ability to practice their religion, the Constitution simply does not provide a principle that could justify upholding the respondents' legal claims. Pp. 447-453.

b) The Government's right to the use of its own lands need not and should not discourage it from accommodating religious practices like those engaged in by the Indian respondents. The Government has taken numerous steps to minimize the impact that construction of the road will have on the Indians' religious activities - such as choosing the route that best protects sites of specific rituals from adverse audible intrusions, and planning steps to reduce the visual impact of the road on the surrounding country. Such solicitude accords with the policy and requirements of the American Indian Religious Freedom Act. Contrary to the respondents' contention, however, that Act does not create any enforceable right that could authorize the District Court's injunction. Pp. 453-455. 795 F.2d688, reversed and remanded.

Oklahoma Tax Commission v. Graham, et al.

Docket No. 88-266 Argued February 21, 1989 Decided March 29, 1989

CITATION: 489 US 838, 109 S.Ct. 1519, 103 L.Ed.2d 924 (1989)

SYNOPSIS: The U. S. Supreme Court found that the federal tribal immunity defense to state claims does not permit removal of the underlying action to federal court in this opinion. At issue in this case was whether a tribe may remove a state action to federal court where the complaint is facially based on state law, but contains the implicit federal question of tribal sovereign immunity. Per Curiam decision.

HISTORY: Respondent Chickasaw Nation owns and operates a motor in Oklahoma, where it conducts bingo games and sells cigarettes. The state filed a state-court suit against the Tribe and respondent inn manager to collect unpaid state taxes on these activities. The Tribe, asserting federal-question jurisdiction, removed the action to Federal District Court. The State's motion to remand the case to state court on the grounds that the complaint alleged only state statutory violations and state tax liabilities was denied by the District Court, which held that the complaint implicated the federal question of tribal immunity since it sought to apply state law to an Indian tribe. Thereafter,the court dismissed the suit, finding it barred by tribal sovereign immunity. The Court of Appeals affirmed, noting that as a prerequisite to stating jurisdiction over an Indian tribe, an alleged waiver or consent to suit is a necessary element of a well-pleaded complaint. The Court held to that decision on remand from the U.S. Supreme Court, finding that the rule of Caterpillar Inc. v.Williams, 483 U.S. 386 (in order to support federal-question removability, a complaint on its face must present a federal claim) did not apply to the State's complaint. It held that although nothing within the complaint's literal language suggested the implication of a federal question, such a question was inherent within the complaint because of the parties subject to the action.

HELD:This case was improperly removed from the Oklahoma courts. The Court of Appeals' decision is plainly inconsistent with Caterpillar. The possible existence of a federal tribal immunity defense to the State's claims did not convert a suit arising under state law to one which, in the statutory sense, arises under federal law. And there was no independent basis for original federal jurisdiction to support removal. This jurisdictional question was not affected by the fact that tribal immunity is governed by federal law, since Congress has expressly provided by statute for removal when it desired federal courts to adjudicate defenses based on federal immunities. 846F.2d 1258, reversed.

Mississippi Choctaw Indian Band v. Holyfield, et al.

Docket No. 87-980 Argued January 11, 1989 Decided April 3, 1989

CITATION: 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989)

SYNOPSIS: The U. S. Supreme Court found that the definition of "domicile" under the Indian Child Welfare Act should be defined by federal common law, versus state law, upholding ICWA's purpose of removing jurisdiction of child custody proceedings from state courts to tribal courts. The case establishes that a legitimate child takes the domicile of its parents, and an illegitimate child takes the domicile of its mother. At issue in this case was whether provisions of the Indian Child Welfare Act establishing tribal jurisdiction over child custody proceedings are limited to Indian children domiciled on the tribe's reservation. Justice Brennan filed the majority opinion, joined by Justices White, Marshall, Blackmun,O'Connor and Scalia. Justices Stevens, Rehnquist, and Kennedy filed a dissenting opinion.

HISTORY: On the basis of extensive evidence indicating that large numbers of Indian children were being separated from their families and tribes and were being placed in non-Indian homes through state adoption, foster care, and parental rights termination proceedings, and that this practice caused serious problems for the children, their parents, and their tribes, Congress enacted the Indian Child Welfare Act of 1978 (ICWA) which, inter alia, gives tribal courts exclusive jurisdiction over custody proceedings involving an Indian child "who resides or is domiciled within" a tribe's reservation. This case involves the status of twin illegitimate babies, whose parents were enrolled members of appellant Tribe and residents and domiciliaries of its reservation in Neshoba County, Mississippi. After the twins' births in Harrison County, some 200 miles from the reservation, and their parents' execution of consent-to-adoption forms, they were adopted in that county's Chancery Court by the appellees Holyfield, who were non-Indian. That court subsequently overruled appellant's motion to vacate the adoption decree, which was based on the assertion that under the ICWA exclusive jurisdiction was vested in appellant's tribal court. The Supreme Court of Mississippi affirmed, holding, among other things, that the twins were not "domiciled" on the reservation under state law, in light of the Chancery Court's findings (1) that they had never been physically present there, and (2) that they were "voluntarily surrendered" by their parents, who went to some efforts to see that they were born outside the reservation and promptly arranged for their adoption. Therefore, the court said, the twins' domicile was in Harrison County and the Chancery Court properly exercised jurisdiction over the adoption proceedings.

HELD: The twins were "domiciled"on the Tribe's reservation within the meaning of the ICWA's exclusive tribal jurisdiction provision, and the Chancery Court was, accordingly, without jurisdiction to enter the adoption decree. Pp. 42-54.

a) Although the ICWA does not define "domicile," Congress clearly intended a uniform federal law of domicile for the ICWA and did not consider the definition of the word to be a matter of state law. The ICWA's purpose was, in part, to make clear that in certain situations the state courts did not have jurisdiction over child custody proceedings. In fact, the statutory congressional findings demonstrate that Congress perceived the States and their courts as partly responsible for the child separation problem it intended to correct. Thus, it is most improbable that Congress would have intended to make the scope of the statute's key jurisdictional provision subject to definition by state courts as a matter of state law. Moreover, Congress could hardly have intended the lack of nationwide uniformity that would result from state-law definitions of "domicile,"whereby different rules could apply from time to time to the same Indian child, simply as a result of his or her being moved across state lines. Pp. 43-47.

b) The generally accepted meaning of the term "domicile" applies under the ICWA to the extent that it is not inconsistent with the objectives of the statute. In the absence of a statutory definition, it is generally assumed that the legislative purpose is expressed by the ordinary meaning of the words used, in light of the statute's object and policy. Well-settled common-law principles provide that the domicile of minors, who generally are legally incapable of forming the requisite intent to establish a domicile, is determined by that of their parents, which has traditionally meant the domicile of the mother in the case of illegitimate children. Thus, since the domicile of the twins' mother (as well as their father) has been, at all relevant times, on appellant's reservation, the twins were also domiciled there even though they have never been there. The result is not altered by the fact that they were "voluntarily surrendered" for adoption. Congress enacted the ICWA because of concerns going beyond the wishes of individual parents, finding that the removal of Indian children from their cultural setting seriously impacts on long-term tribal survival and has a damaging social and psychological impact on many individual Indian children. These concerns demonstrate that Congress could not have intended to enact a rule of domicile that would permit individual Indian parents to defeat the ICWA's jurisdictional scheme simply by giving birth and placing the child for adoption off the reservation. Pp. 47-53. 511 So. 2d 918, reversed and remanded.

Cotton Petroleum Corp., et al., v. New Mexico, et al.

Docket No. 87-1327 Argued November 30, 1988 Decided April 25, 1989

CITATION: 490 U.S. 163, 109 S.Ct. 1698, 104 L.Ed.2d 209 (1989)

SYNOPSIS: The U. S. Supreme Court upheld the State of New Mexico's right to impose a severance tax on non-Indian oil and gas lessees on the Jicarilla Apache Indian Reservation, despite the fact that the Tribe imposed the same severance tax on the same lessees. Thus, a tribal tax does not preempt a state tax even where the result is double taxation on businesses who deal with tribes, and the outcome is an economic disadvantage to the tribe. At issue in this case is whether the State of New Mexico can impose its severance taxes on the production of oil and gas by non-Indian lessees of wells located on the Jicarilla Apache Tribe's reservation, and on which the Tribe also has power to impose severance taxes. Justice Stevens delivered the opinion of the Court, joined by Justices Rehnquist, White, O'Connor, Scalia, and Kennedy. Justices Blackmun, Brennan and Marshall filed a dissenting opinion.

HISTORY: Pursuant to authority granted by the Indian Mineral Leasing Act of 1938 (1938 Act), the Jicarilla Apache Tribe leased lands on its New Mexico reservation to appellant Cotton Petroleum Corp., a non-Indian company, for the production of oil and gas. Cotton's on reservation production is subject to both a 6% tribal severance tax and appellee State's 8% severance taxes, which apply to all producers throughout the State. In 1982, Cotton paid its state taxes under protest and then brought an action in state court under, inter alia, the Commerce Clause of the Federal Constitution, contending that the state taxes were invalid on the basis of evidence tending to prove that the amount of such taxes imposed on reservation activity far exceeded the value of services the State provided in relation to such activity. The Tribe filed a brief amicus curiae arguing that a decision upholding the state taxes would substantially interfere with the Tribe's ability to raise its own tax rates and would diminish the desirability of reservation leases. The trial court upheld the state taxes, concluding, among other things, that the State provides substantial services to both the Tribe and Cotton, that the theory of public finance does not require that expenditures equal revenues, that the taxes' economic and legal burden falls on Cotton and has no adverse impact on tribal interests, and that the taxes were not preempted by federal law. The State Court of Appeals affirmed. The U.S. Supreme Court noted probable jurisdiction and invited the parties to brief and argue the additional question whether the Commerce Clause requires a tribe to be treated as a "State" for purposes of determining whether a state tax on nontribal activities conducted on a reservation must be apportioned to account for taxes the tribe imposed on the same activity.

HELD: 1) The State may validly impose severance taxes on the same on-reservation production of oil and gas by non-Indian lessees as is subject to the Tribe's own severance tax. Pp.173-193.

a) Under this Court's modern decisions, on-reservation oil and gas production by non-Indian lessees is subject to nondiscriminatory state taxation unless Congress has expressly or impliedly acted to pre-empt the state taxes. See, e.g. Helvering v. Mountain Producers Corp., 303 U. S. 376, 387. Pp. 173-176.

b) The state taxes in question are not pre-empted by federal law, even when it is given the most generous construction under the relevant pre-emption test, which is flexible and sensitive to the particular facts and legislation involved and requires a particularized examination of the relevant state, federal, and tribal interests, including tribal sovereignty and independence. The 1938 Act neither expressly permits nor precludes state taxation, but simply authorizes the leasing for mining purposes of Indian lands. Moreover, that Act's legislative history sheds little light on congressional intent. The statement therein that pre-existing law was inadequate to give Indians the greatest return for their property does not embody a broad congressional policy of maximizing tribes' revenues without regard to competing state interests, but simply suggests that Congress sought to remove disadvantages in mineral leasing on Indian lands that were not present with respect to public lands, which were, at the time, subject to state taxation. Montana v. Blackfeet Tribe, 471 US 759, 767, n. 5, distinguished. The fact that the 1938 Act's omission of that waivers simply reflects congressional recognition that this Court's intervening decisions had repudiated the preexisting doctrine of intergovernmental tax immunity, under which such state taxation was barred absent congressional authorization. White Mountain Apache Tribe v. Bracker 448 U. S. 136, and Ramah School Board, Inc. v. Bureau of Revenue of New Mexico, 458 U.S.832, are distinguished on the ground that, here, the State provides substantial services to the Tribe and Cotton that justify the tax; the tax imposes no economic burden on the Tribe; and federal and tribal regulation is not exclusive, since the State regulates the spacing and mechanical integrity of on-reservation wells. Pp. 176-187.

c) There is no merit to Cotton's contention that the State's severance taxes - insofar as they are imposed without allocation or apportionment on top of tribal taxes - impose an unlawful multiple tax burden on interstate commerce. The fact that the State and the Tribe tax the same activity is not dispositive, since each of those entities has taxing jurisdiction over the non-Indian wells by virtue of the location of Cotton's leases entirely on reservation lands within a single State. That the total tax burden on Cotton is greater than the burden of off-reservation producers is also not determinative, since neither taxing jurisdiction's tax is discriminatory, and the burdensome consequence is entirely attributable to the fact of concurrent jurisdiction. The argument that the state taxes generate revenues that far exceed the value of the State's on-reservation services is also rejected. Moreover, there is no constitutional requirement that the benefits received from a taxing authority by an ordinary commercial taxpayer - or by those living in the taxpayer's community - must equal the amount of its tax obligations. Pp. 187-191.

d) The express language, distinct applications, and judicial interpretations of the Interstate Commerce and Indian Commerce Clauses establish that Indian tribes may not be treated as 'States' for tax apportionment purposes. Pp. 191-193. 106 N. M. 517, 745 P. 2d 1170, affirmed.

Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, et al.

Consolidated Docket Nos. 87-1622, 87-1697, and 87-1711 Argued January 10, 1989 Decided June 29, 1989

CITATION:492 U.S. 408, 109 S.Ct. 2994, 106 L.Ed.2d 343 (1989)

SYNOPSIS: The US Supreme Court denied Indian tribes treaty rights to exclusive use and occupation, and thus the power to regulate non-Indian use of land, where land had been lost by tribe via the Indian General Allotment Act despite the fact that the Act was later repudiated. In this very split decision, the Court compromised in its final judgment by establishing a judicial distinction between "open"and "closed" Indian lands, and assigning tribal sovereignty rights according to that distinction. At issue in the three consolidated cases in this matter, is whether the Yakima Indian Nation or the County of Yakima, a governmental unit of the State of Washington, has the authority to zone fee lands owned by nonmembers of the Tribe located within the boundaries of the Yakima Reservation. The Supreme Court held that the Nation only had jurisdiction over non-member Indians on such lands where lands were "closed," versus "open" lands. There was no majority in the case, but Justice White's concurrence won enough votes to carry the decision. Justice White announced the judgment in Docket Nos. 87-1697 and 87-1711, joined by Justices Rehnquist, Scalia and Kennedy. Justice Stevens announced the judgment in Docket No. 87-1622, and concurred in the opinion for Docket Nos. 87-1697 and 87-1711, joined by Justice O'Connor. Justices Blackmun, Brennan and Marshall concurred in the judgment in Docket No. 87-1622. Justices White, Rehnquist, Scalia and Kennedy dissented in the judgment in Docket No.87-1622. Justices Blackmun, Brennan and Marshall dissented in the judgment in Docket Nos. 87-1697 and 87-1711.

HISTORY: The treaty between the United States and the Yakima Indian Nation provided that the Tribe would retain its reservation for its "exclusive use and benefit," and that "no white man [shall] be permitted to reside upon the said reservation without [the Tribe's] permission." Much of the reservation is located in Yakima County, Washington. Roughly 80% of the reservation land is held in trust by the United States for the Tribe or its individual members, and the remaining 20% is owned in fee by Indian or non-Indian owners. Most of the fee land is found in three towns, and the rest is scattered throughout the reservation in a "checkerboard" pattern. The reservation is divided into two parts, a "closed area," which is so named because it has been closed to the general public, and an "open area," which is not so restricted. Only a small portion of the closed area consists of fee land, while almost half of the open area is fee land. The Tribe's zoning ordinance applies to all lands within the reservation, including fee lands owned by Indians or non-Indians, while the county's zoning ordinance applies to all lands within its boundaries, except for Indian trust lands. Petitioners Brendale and Wilkinson, who own land in the closed and open areas, respectively, filed applications with the Yakima County Planning Department to develop their lands in ways not permitted by the Tribe's ordinance but permitted by the county ordinance. The department issued declarations to both petitioners which, in effect, authorized their developments, and the Tribe appealed the declarations to the county board of commissioners on the ground, inter alia, that the county had no zoning authority over the land in question. After the board concluded that the appeals were properly before it and issued decisions, the Tribe filed separate actions in District Court challenging the proposed developments and seeking declaratory judgments that the Tribe had exclusive authority to zone the properties at issue and injunctions barring any county action inconsistent with the Tribe's ordinance. The Court held that the Tribe had exclusive jurisdiction over the Brendale properly but lacked authority over the Wilkinson property, concluding that Brendale's development, but not Wilkinson's, posed a threat to the Tribe's political integrity, economic security, and health and welfare, and therefore was impermissible under Montana v. United States, 450 US 544. The court also determined that the county was pre-empted from exercising concurrent zoning authority over closed area lands because its interests in regulating these lands were minimal while the Tribe's were substantial. The Court of Appeals consolidated the cases and affirmed as to the Brendale property but reversed as to the Wilkinson property. In upholding the Tribe's zoning authority, the court concluded that, because fee land is located throughout the reservation in a checkerboard pattern, denying the Tribe its right under its local governmental police power to zone fee land would destroy its capacity to engage in comprehensive planning.

HELD: In Nos. 87-1697 and 87-1711:1) The Tribe does not have authority to zone fee lands owned by nonmembers within the reservation. Pp. 421-433.

a) Any regulatory power the Tribe might have under its treaty with the United States cannot apply to lands held in fee by non-Indians. Montana, 450 US at 559. The Tribe no longer retains the "exclusive use and benefit" of such lands within the meaning of the treaty, since the Indian General Allotment Act allotted significant portions of the reservation, including the lands at issue, to individual members of the Tribe, and those lands subsequently passed, through sale or inheritance, to nonmembers such as petitioners. The Tribe's treaty rights must be read in light of those subsequent alienations, it being unlikely that Congress intended to subject non-Indian purchasers to tribal jurisdiction when an avowed purpose of the allotment policy was to destroy tribal government. Id., at 560, n.9, 561. The fact that the Allotment Act was repudiated in 1934 by the Indian Reorganization Act is irrelevant, since the latter Act did not restore exclusive use of the lands in question to the Tribe. Id., at 560, n. 9. Pp. 422-425.

b) Nor does the Tribe derive authority from its inherent sovereignty to impose its zoning ordinance on petitioners' lands. Such sovereignty generally extends only to what is necessary to protect tribal self-government or to control internal relations, and is divested to the extent it is inconsistent with a tribe's dependent status, i.e., to the extent it involves the tribe's external relations with nonmembers - unless there has been an express congressional delegation of tribal power to the contrary. Montana, supra., at 564. Washington v. Confederated Tribes of Colville Indian Reservation, 447 US 134, 153; and United States v. Wheeler, 435 US 313, 326, reconciled. There is no contention here that Congress has expressly delegated to the Tribe the power to zone the fee lands of nonmembers. Pp. 425-428.

c) Although Montana, supra., At 566, recognized, as an exception to its general principle, that a tribe "may" retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the tribe's political integrity, economic security, or health and welfare, that exception does not create tribal authority to zone reservation lands. The fact that the exception is prefaced by the word "may" indicates that a tribe's authority need not extend to all conduct having the specified effects, but, instead, depends on the circumstances. To hold that the Tribe has authority to zone fee land when the activity on that land has the specified effects on Indian properties would mean that the authority could only last so long as the threatened use continued, would revert to the county when that use ceased and, conceivably, could switch back and forth depending on what uses the county permitted, thereby engendering uncertainty that would further neither the Tribe's nor the county's interests and would be chaotic for landowners. Accordingly, Montana should be understood to generally prohibit tribes from regulating the use of fee lands by way of tribal ordinance or actions in the tribal courts, but to recognize, in the special circumstance of checkboard ownership of reservation lands, a protectible tribal interest under federal law, defined in terms of a demonstrably serious impact by the challenged uses that imperils tribal political integrity, economic security, or health and welfare. Since the Supremacy Clause requires state and local governments, including the county's zoning authorities, to recognize and respect that interest in the course of their activities, the Tribe should have argued in the zoning proceedings, not that the county was without zoning authority over reservation fee lands, but that its tribal interests were imperiled. The District Court had jurisdiction to entertain the Tribe's suit, but, given that the county has jurisdiction to zone reservation fee lands, could enjoin county action only if the county failed to respect the Tribe's federal-law rights. Pp. 428-432.

2) In light of the District Court's findings that the county's exercise of zoning power over the Wilkinson property would have no direct effect on the Tribe and would not threaten its political integrity, economic security, or health and welfare, the judgment in Nos. 87-1697 and 87-1711 must be reversed. Pp. 432-433. In No. 87-1622 (concurring in 87-1697 and 87-1711):

1) The Tribe's power to exclude nonmembers from its reservation - which derived from its aboriginal sovereignty and the express provisions of its treaty with the United States - necessarily includes the lesser power to regulate land use in the interest of protecting the tribal community. Although, at one time, the Tribe's power to exclude was virtually absolute, the General Allotment Act (Dawes Act) in some respects diminished tribal authority by providing for the allotment of reservation lands in severalty to resident Indians, who were eventually free to sell to nonmembers. While the Indian Reorganization Act repudiated that allotment policy, large portions of reservation lands were conveyed to nonmembers in the interim. To the extent that large portions of reservation land were sold in fee, such that the Tribe could no longer determine the region's essential character by setting conditions on entry to those parcels, the Tribe's legitimate interest in land-use regulation was also diminished. Although it is inconceivable that Congress would have intended that the sale of a few lots would divest the Tribe of the power to determine the character of the region, it is equally improbable that Congress envisioned that the Tribe would retain its interest in regulating the use of vast ranges of land sold in fee to nonmembers who lack any voice in setting tribal policy. Thus, the resolution of these cases depends on the extent to which the Tribe's virtually absolute power to exclude has been either diminished by statute or voluntarily surrendered by the Tribe itself with respect to the relevant areas of the reservation. Pp.433-437.

2) The Tribe has the power to zone the Brendale property, which is in the reservation's closed area. Although the presence of logging operations, the construction of the Bureau of Indian Affairs roads, and the transfer of ownership of a relatively insignificant amount of land in that area unquestionably have diminished the Tribe's power to exclude non-Indians from the area, this does not justify the conclusion that the Tribe has surrendered its historic right to regulate land use there. To the contrary, by maintaining the power to exclude nonmembers from entering all but a small portion of that area, the Tribe has preserved the power to define the area's essential character and has, in fact, exercised that power through its zoning ordinance. Moreover,the Tribe has authority to prevent the few individuals who own portions of the closed area in fee from undermining its general plan to preserve the area's unique character by developing their isolated parcels without regard to an otherwise common scheme, it seems necessary to a reasonable operation of the allotment process that Congress could not possibly have intended in enacting the Dawes Act that tribes would lose control over the character of their reservations upon the sale of a few, relatively small parcels of land. Cf. Seymour v. Superintendent of Washington State Penitentiary, 368 US 351, 356; Mattz v. Arnett, 412 US 481, 497. Rather, the tribe's power to zone is like an equitable servitude in that the burden of complying with the zoning rules runs with the land without regard to how a particular estate is transferred. Montana v. United States, 450 US 544, does not require a different result, since, unlike the tribal regulation considered in that case, the Yakima Nation's zoning rule is neutrally applied to Indians and non-Indians alike, is necessary to protect the welfare of the Tribe, and does not interfere with any significant state or county interest. Pp. 438-444.

3) The Tribe lacks authority to zone the Wilkinson property, which is in the reservation's open area. Given that about half of the open area land is owned by nonmembers, the Tribe no longer possesses the power to determine the basic character of that area, and allowing a nonmember to use his lands in a manner that might not be approved by the Tribe does not upset an otherwise coherent scheme of land use. Moreover, it is unlikely that Congress intended to give the Tribe the power to determine the character of an area that is predominantly owned and populated by nonmembers, who represent 80% of the population yet lack a voice in tribal governance. Furthermore, to the extent the open area has lost its character as an exclusive tribal resource, and has become, as a practical matter, an integrated portion of the county that is not economically or culturally delimited by reservation boundaries, the Tribe has lost any claim to an interest analogous to an equitable servitude. Thus, the Tribe's power to zone the open area has become outmoded. Pp. 444-447. 828 F.2d 529: No. 87-1622, affirmed; Nos. 87-1697 and 8 7-1711, reversed.

Employment Division, Oregon Department of Human Resources, et al. v. Smith, et al.

Docket No. 88-1213 Argued November 6, 1989 Decided April 17, 1990

CITATION: 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990)

SYNOPSIS: The U. S. Supreme Court found that the criminal laws of the State of Oregon banning the use of peyote were generally applicable laws, not intended to prohibit of burden religion. Thus, the religious rights of Native American Church members to ingest peyote for sacramental purposes was considered an incidental effect of the laws, negating any right of the members to bring a Free Exercise claim under the First Amendment to the Constitution. As in Lyng; a balancing test between governmental interest and free exercise of religion was deemed inapplicable in this case. At issue in this case was whether the Free Exercise Clause of the First Amendment permits the State of Oregon to include religiously inspired peyote use within the reach of its general criminal prohibition on the use of that drug, and thus permits the State to deny unemployment benefits to persons dismissed from their jobs because of such religiously inspired use. The Supreme Court held that the State could do so. Justice Scalia filed the opinion for the majority, joined by Justices Rehnquist, White, Stevens and Kennedy. Justice O'Connor concurred in the judgment, in Parts I and II of which Justices Brennan, Marshall and Blackmun joined, without concurring in the judgment. Justices Blackmun, Brennan and Marshall filed a dissenting opinion.

HISTORY: Respondents Smith and Black were fired by a private drug rehabilitation organization because they ingested peyote, a hallucinogenic drug, for sacramental purposes at a ceremony of their Native American Church. Their applications for unemployment compensation were denied by the State of Oregon under a state law disqualifying employees discharged for work-related "misconduct." Holding that the denials violated respondents' First Amendment free exercise rights, the State Court of Appeals reversed. The State Supreme Court affirmed, but this Court vacated the judgment and remanded for a determination whether sacramental peyote use is proscribed by the State's controlled substance law, which makes it a felony to knowingly or intentionally possess the drug. Pending that determination, the Court refused to decide whether such use is protected by the Constitution. On remand, the State Supreme Court held that sacramental peyote use violated, and was not excepted from, the state law prohibition, but concluded that prohibition was invalid under the Free Exercise Clause.

HELD: 1) The Free Exercise Clause permits the State to prohibit sacramental peyote use, and thus to deny unemployment benefits to persons discharged for such use. Pp. 876-890.

a) Although a State would be "prohibiting the free exercise [of religion]" in violation of the Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires(or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons. See, e.g., Reynolds v. United States, 98 US 145, 166-167. The only decisions in which this Court has held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action are distinguished on the ground that they involved not the Free Exercise Clause alone, but that Clause in conjunction with other constitutional (494 US 873) protections. See, e.g., Cantwell v. Connecticut, 310 US 296,304-307; Wisconsin v. Yoder, 406 US 205. Pp. 876-882.

b) Respondents' claim for a religious exemption from the Oregon law cannot be evaluated under the balancing test set forth in the line of cases following Sherbert v. Verner, 374 US 398, 402-403, whereby governmental actions that substantially burden a religious practice must be justified by a "compelling governmental interest." That test was developed in a context -- unemployment compensation eligibility rules -- that lent itself to individualized governmental assessment of the reasons for the relevant conduct. The test is inapplicable to an across-the-board criminal prohibition on a particular form of conduct. A holding to the contrary would create an extraordinary right to ignore generally applicable laws that are not supported by "compelling governmental interest"on the basis of religious belief. Nor could such a right be limited to situations in which the conduct prohibited is "central" to the individual's religion, since that would enmesh judges in an impermissible inquiry into the centrality of particular beliefs or practices to a faith. Cf. Hernandez v. Commissioner, 490 US 680,699. Thus, although it is constitutionally permissible to exempt sacramental peyote use from the operation of drug laws, it is not constitutionally required. Pp.882-890. 307 Or. 68, 763 P.2d 146, reversed.

Duro v. Reina, Chief of Police, Salt River Department of Public Safety

Docket No. 88-6546 Argued November 29, 1989 Decided May 29, 1990

CITATION:495 U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990)

SYNOPSIS: The US Supreme Court found that an Indian tribe may not assert criminal jurisdiction over a nonmember Indian for a crime committed on the tribe's reservation. At issue in this case is whether an Indian tribe may assert criminal jurisdiction over a defendant who is an Indian but not a tribal member. The Supreme Court held that the tribe could not. Justice Kennedy filed the majority opinion, joined by Justices Rehnquist, White, Blackmun, Stevens, O'Connor, and Scalia. Justices Brennan and Marshall filed a dissenting opinion.

HISTORY: While living on one Indian Tribe's Reservation, petitioner Duro, an enrolled member of another Tribe, allegedly shot and killed an Indian youth within the Reservation's boundaries. He was charged with the illegal firing of a weapon on the Reservation under the Tribal criminal code, which is confined to misdemeanors. After the Tribal court denied his petition to dismiss the prosecution for lack of jurisdiction, he filed a habeas corpus petition in the Federal District Court. The court granted the writ, holding that assertion of jurisdiction by the Tribe over a nonmember Indian would constitute discrimination based on race in violation of the equal protection guarantees of the Indian Civil Rights Act, since, under Oliphant v. Suquamish Indian Tribe, 435 US 191, non-Indians are exempt from Tribal courts' criminal jurisdiction. The Court of Appeals reversed. It held that the distinction drawn between a Tribe's members and nonmembers throughout United States v. Wheeler, 435 US 313 -- which, in upholding Tribal criminal jurisdiction over Tribe members, stated that tribes do not possess criminal jurisdiction over "nonmembers" -- was "indiscriminate," and should be given little weight. Finding the historical record "equivocal," the court held that the applicable federal criminal statutes supported the view that the Tribes retain jurisdiction over minor crimes committed by Indians against other Indians without regard to Tribal membership. It also rejected Duro's equal protection claim, finding that his significant contacts with the prosecuting Tribe -- such as residing with a Tribe member on the Reservation and working for the Tribe's construction company -- justified the exercise of the Tribe's jurisdiction. Finally, it found that the failure to recognize Tribal jurisdiction over Duro would create a jurisdictional void, since the relevant federal criminal statute would not apply to this charge, and since the State had made no attempt, and might lack the authority, to prosecute him.

HELD: 1) An Indian Tribe may not assert criminal jurisdiction over a nonmember Indian. Pp. 684-698.

a) The rationale of Oliphant, Wheeler, and subsequent cases compels the conclusion that Indian Tribes lack jurisdiction over nonmembers. Tribes lack the power to enforce laws against all who come within their borders, Oliphant supra. They are limited sovereigns, necessarily subject to the overriding authority of the United States, yet retaining the sovereignty needed to control their own internal relations and preserve their own unique customs and social order,Wheeler, supra. Their power to prescribe and enforce rules of conduct for their own members falls outside that part of their sovereignty that they implicitly lost by virtue of their dependent status, but the power to prosecute an outsider would be inconsistent with this status, and could only come from a delegation by Congress. The distinction between members and nonmembers and its relation to self-governance is recognized in other areas of Indian law. See, e.g., Moe v. Salish & Kootenai Tribes, 425 U. S. 463; Montana v. United States, 450 US 544. Although broader retained Tribal powers have been recognized in the exercise of civil jurisdiction, such jurisdiction typically involves situations arising from property ownership within the Reservation or consensual relationships with the Tribe or its members, and criminal jurisdiction involves a more direct intrusion on personal liberties. Since, as a nonmember, Duro cannot vote in Tribal elections, hold Tribal office, or sit on a Tribal jury, his relationship with the Tribe is the same as the non-Indian's in Oliphant Pp. 684-688.

b) A review of the history of the modern Tribal courts and the opinions of the Solicitor of the Department of the Interior on the Tribal codes at the time of their enactment also indicates that Tribal courts embody only the powers of internal self-governance. The fact that the Federal Government treats Indians as a single large class with respect to federal programs is not dispositive of a question of Tribal power to treat them by the same broad classification. Pp. 688-692.

c) This case must be decided in light of the fact that all Indians are now citizens of the United States. While Congress has special powers to legislate with respect to Indians, Indians, like all citizens, are entitled to protection from unwarranted intrusions on their personal liberty. This Court's cases suggest constitutional limits even on the ability of Congress to subject citizens to criminal proceedings before a tribunal, such as a Tribal court, that does not provide constitutional protections as a matter of right. In contrast, retained jurisdiction over members is accepted by the Court's precedents and justified by the voluntary character [495 US 678] of Tribal membership and the concomitant right of participation in a Tribal government. Duro's enrollment in one Tribe says little about his consent to the exercise of authority over him by another Tribe. Tribes are not mere fungible groups of homogeneous persons among whom any Indian would feel at home, but differ in important aspects of language, culture, and tradition. The rationale of adopting a "contacts" test to determine which nonmember Indians must be subject to Tribal jurisdiction would apply to non-Indian residents as well, and is little more than a variation of the argument, already rejected for non-Indians, that any person entering the Reservation is deemed to have given implied consent to Tribal criminal jurisdiction. Pp. 692-696.

d) This decision does not imply endorsement of a jurisdictional void over minor crime by nonmembers. Congress is the proper body to address the problem if, in fact, the present jurisdictional scheme proves insufficient to meet the practical needs of Reservation law enforcement. Pp. 696-698. 851 F.2d 1136 (9th Cir. 1987), reversed.

Oklahoma Tax Commission v. Citizen Band, Potawatomi Indian Tribe of Oklahoma

Docket No. 89-1322 Argued January 7, 1991 Decided February 26, 1991

CITATION: 498 U.S. 505, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991)

SYNOPSIS: The U. S. Supreme Court found that where a state has not asserted Public Law 280 jurisdiction over Indian lands, it may not tax sales of goods on the reservation to tribal members, but may tax sales to nontribal members. The result is that states have enforcement powers over tribal sellers; the state may tax sales of cigarettes to nonmembers by a tribal shop, and require the tribal seller to collect and remit the tax to the state. At issue in this case is whether a State that has not asserted jurisdiction over Indian lands under Public Law 280 may validly tax sales of goods to tribesmen and nontribal members occurring on land held in trust for a federally recognized Indian tribe. Justice Rehnquist delivered the opinion of a unanimous court. Justice Stevens filed a concurring opinion.

HISTORY: Although, for many years, respondent Indian Tribe has sold cigarettes at a convenience store that it owns and operates in Oklahoma on land held in trust for it by the Federal Government, it has never collected Oklahoma's cigarette tax on these sales. In 1987, petitioner, the Oklahoma Tax Commission (Oklahoma or Commission), served the Tribe with an assessment letter, demanding that it pay taxes on cigarette sales occurring between 1982 and 1986. The Tribe filed suit in the District Court to enjoin the assessment, and Oklahoma counterclaimed to enforce the assessment and to enjoin the Tribe from making future sales without collecting and remitting state taxes. The court refused to dismiss the counterclaims on the Tribe's motion, which was based on the assertion that the Tribe had not waived is sovereign immunity from suit. The court held on the merits that the Commission lacked authority to tax on-Reservation sales to tribal members or to tax the Tribe directly, and therefore that the Tribe was immune from Oklahoma's suit to collect past unpaid taxes directly, but that the Tribe could be required to collect taxes prospectively for on-Reservation sales to nonmembers. The Court of Appeals reversed, holding, inter alia, that the lower court erred in entertaining Oklahoma's counterclaims because the Tribe enjoys absolute sovereign immunity from suit and had not waived that immunity by filing its action for injunctive relief, and that Oklahoma lacked authority to tax any on-Reservation sales, whether to tribesmen or nonmembers.

HELD: 1) Under the doctrine of tribal sovereign immunity, a State that has not asserted jurisdiction over Indian lands under Public Law 280 may not tax sales of goods to tribesmen occurring on land held in trust for a federally recognized Indian tribe, but is free to collect taxes on such sales to nonmembers of the tribe. Pp. 509-514.

a) The Tribe did not waive its inherent sovereign immunity from suit merely by seeking an injunction against the Commission's proposed tax assessment. United States v. United States Fidelity and Guaranty Co., 309 U.S. 506, 511-512, 513. In light of this Court's reaffirmation, in a number of cases, of its longstanding doctrine of tribal sovereign immunity, and Congress' consistent reiteration of its approval of the doctrine in order to promote Indian self-government, self-sufficiency, and [498 U.S. 506] economic development, the Court is not disposed to modify or abandon the doctrine at this time. Nor is there merit to Oklahoma's contention that immunity should not apply because the Tribe's cigarette sales do not occur on a formally designated "Reservation." Trust land qualifies as a Reservation for tribal immunity purposes where, as here, it has been "validly set apart for the use of the Indians as such, under the superintendence of the Government." United States v. John, 437 U.S. 634, 648-649. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-149, which approved nondiscriminatory state taxation of activities on non-Reservation, nontrust Government land leased by Indians, is not to the contrary. Pp. 509-511.

b) Nevertheless, the Tribe's sovereign immunity does not deprive Oklahoma of the authority to tax cigarette sales to nonmembers of the Tribe at the Tribe's store, and the Tribe has an obligation to assist in the collection of validly imposed state taxes on such sales. Moe v. Confederated Salish and Kootenai Tribes, 425 U. S.463, 482, 483; Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134. This case is not distinguishable from Moe and Colville on the ground that Oklahoma disclaimed jurisdiction over Indian lands upon entering the Union and did not reassert jurisdiction over civil causes of action in such lands as permitted by Public Law 280. Neither of those cases depended on the assertion of such jurisdiction by the State in question, and it is simply incorrect to conclude that the Public Law was the essential (yet unspoken) basis for the Court's decision in Colville. Although the Tribe's sovereign immunity bars Oklahoma from pursuing its most efficient remedy -- a lawsuit -- to enforce its rights, adequate alternatives may exist, since individual Indians employed in "smoke-shops" may not share tribal immunity, and since States are free to collect their sales taxes from cigarette wholesalers or to enter into mutually satisfactory agreements with Tribes for the collection of taxes. If these alternatives prove to be unsatisfactory, States may seek appropriate legislation from Congress. Pp. 511-514. 888 F.2d1303 (10 Cir. 1989), affirmed in part and reversed in part.

Blatchford, Commissioner, Dept. Of Community and Regional Affairs of Alaska v.

Native Village of Noatak, et al.

Docket No. 89-1782 Argued February 19, 1991 Decided June 24, 1991

CITATION: 501 U.S. 775, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991)

SYNOPSIS: The U. S. Supreme Court held that the State was immune from a suit for damages by an Indian tribe based on Eleventh Amendment sovereign immunity. At issue in this case was whether state sovereign immunity extended to lawsuits by Indian tribes. Justice Scalia delivered the opinion of the Court, joined by Justices Rehnquist, White, O'Connor, Kennedy and Souter. Justices Blackmun, Marshall and Stevens filed a dissenting opinion.

HISTORY: Respondents, Alaska Native villages, brought suit against petitioner, a state official, seeking an order requiring payment to them of money allegedly owed under a state revenue-sharing statute. The District Court dismissed the suit as violating the Eleventh Amendment. The Court of Appeals reversed, first on the ground that 28 U.S.C. 1362 constituted a congressional abrogation of Eleventh Amendment immunity, and then, upon reconsideration, on the ground that Alaska had no immunity against suits by Indian Tribes.

HELD: 1) The Eleventh Amendment bars suits by Indian Tribes against States without their consent. Respondents' argument that traditional principles of sovereign immunity restrict suits only by individuals, and not by other sovereigns, was rejected in Principality of Monaco v. Mississippi, 292 US 313, 322-323. Nor is there merit to respondents' contention that the States consented to suits by Tribes in the "plan of the convention." See ibid. Just as in Monaco with regard to foreign sovereigns, see id. at 330, there is no compelling evidence that the Founders thought that the States waived their immunity with regard to Tribes when they adopted the Constitution. Although Tribes are in some respects more like States -- which may sue each other, South Dakota v. North Carolina, 192 US 286, 318 -- than like foreign sovereigns, it is the mutuality of concession that makes the States' surrender of immunity from suits by sister States plausible. There is no such mutuality with Tribes, which have been held repeatedly to enjoy immunity against suits by States. Oklahoma Tax Comm'n v. Citizen Band of Potawatomi Tribe of Okla., 498 U. S. 505, 509. Pp. 7 79-782.

2) Section 1362 -- which grants district courts original jurisdiction to hear "all civil actions, brought by any Indian Tribe . . . wherein the matter in controversy arises under "federal law -- does not operate to void the Eleventh Amendment's bar of Tribes' suits against States. Pp. 782-788. [501 U. S. 776]

a) Assuming the doubtful proposition that the Federal Government's exemption from state sovereign immunity can be delegated, 1362 does not embody a general delegation to Tribes of the Federal Government's authority, under United States v. Minnesota, 270 US 181, 195, to sue States on the Tribes' behalf. Although Moe v Confederated Salish and Kootenai Tribes, 425 US 463 -- which held that 1362 revoked as to Tribes the Tax Injunction Act's denial of federal court access to persons other than the United States seeking injunctive relief from state taxation -- equated tribal access to federal court with the United States' access, it did not purport to do so generally, nor on the basis of a "delegation" theory, nor with respect to constitutional (as opposed to merely statutory) constraints. Pp. 783-786.

b) Nor does 1362 abrogate Eleventh Amendment immunity. It does not satisfy the standard for congressional abrogation set forth in Dellmuth v. Muth, 491 U.S.223, 227-228, since it does not reflect an "unmistakably clear" intent to abrogate immunity, made plain "in the language of the statute." Nor was it a sufficiently clear statement under the less stringent standard of Parden v.Terminal Railway of Alabama Docks Dept., 377 US 184, which case (unlike Dellmuth had already been decided at the time of 1362's enactment in1966. That case neither mentioned nor was premised on abrogation (as opposed to consensual waiver) -- and indeed the Court did not even acknowledge the possibility of congressional abrogation until 1976, Fitzpatrick v. Bitzer, 427 US 445. Pp. 786-788. 3) Respondents' argument that the Eleventh Amendment does not bar their claim for injunctive relief must be considered initially by the Court of Appeals on remand. P. 788.896 F.2d 1157, reversed and remanded.

County of Yakima, et al. v. Confederated Tribes and Bands of the Yakima Indian Nation

Docket Nos. 90-408, 90-577 Argued November 5, 1991 Decided January 14, 1992

CITATION: 502 U.S. 251, 112 S.Ct. 683, 116 L.Ed.2d 687 (1992)

SYNOPSIS: The U S. Supreme Court held that state and local governments have been authorized by the General Allotment Act to impose real property taxes on fee lands alienated under the Act and owned by Indians within reservations. At issue in the consolidated cases is whether the County of Yakima may impose an ad valorem tax on so-called "fee patented" land located within the Yakima Indian Reservation, and an excise tax on sales of such land. Justice Scalia delivered the opinion of the Court, joined by Justices Rehnquist, White, Stevens, O'Connor, Kennedy, Souter and Thomas. Justice Blackmun filed an opinion concurring in part and dissenting in part.

HISTORY: Yakima County, Washington, imposes an ad valorem levy on taxable real property within its jurisdiction and an excise tax on sales of such land. The County proceeded to foreclose on various properties for which these taxes were past due, including certain fee-patented lands held by the Yakima Indian Nation or its members on the Tribe's Reservation within the County. Contending that federal law prohibited the imposition or collection of the taxes on such lands, the Tribe filed suit for declaratory and injunctive relief and was awarded summary judgment by the District Court. The Court of Appeals agreed that the excise tax was impermissible, but held that the ad valorem tax would be impermissible only if it would have a '"demonstrably serious'" impact on the Tribe's "'political integrity, economic security or...health and welfare'" (quoting Brendale v. Confederated Yakima Indian Nation, 492 US 408, 431 (opinion of WHITE, J.), and remanded to the District Court for that determination.

HELD:1) The Indian General Allotment Act of 1887 permits Yakima County to impose an ad valorem tax on Reservation land patented in fee pursuant to the Act and owned by Reservation Indians or the Yakima Indian Nation itself, but does not allow the County to enforce its excise tax on sales of such land. Pp. 257-270.

a) As the Court held in Goudy v. Meath, 203 US 146, 149, the Indian General Allotment Act authorizes taxation of fee-patented land. This determination was explicitly confirmed in a 1906 amendment to the Act, known as the Burke Act, which includes a proviso authorizing the Secretary of the Interior, "whenever . . .satisfied that any [Indian] allottee is competent . . . [,] to . . . issu[e] to such allottee a patent in fee simple," and provides that "thereafter all restrictions as to. . . taxation of said land shall be removed." (Emphasis added). Thus, the Indian General Allotment Act contains the unmistakably clear expression of intent that [502 US 252] is necessary to authorize state taxation of Indian lands. See, e.g., Montana v. Blackfeet Tribe of Indians 471 US 759, 765. The contention of the Tribe and the United States that this explicit statutory conferral of taxing power has been repudiated by subsequent Indian legislation rests upon a misunderstanding of this Court's precedents, particularly Moe v. Confederated Salish & Kootenai Tribes, 425 US 463, and a misperception of the structure of the Indian General Allotment Act. Pp. 257-266.

b) Because, under state law, liability for the ad valorem tax flows exclusively from ownership of realty on the annual assessment date, and the tax creates a burden on the property alone, this tax constitutes "taxation of . . . land" within the meaning of the Indian General Allotment Act, and is therefore prima facie valid. Nevertheless, Brendale, supra, and its reasoning are inapplicable to the present case, which involves an asserted restriction on a State's congressionally conferred powers over Indians, rather than a proposed extension of a tribe's inherent powers over the conduct of non-Indians on Reservation fee lands. Moreover, application of a balancing test under Brendale would contravene the per se approach traditionally followed by this Court in the area of state taxation of tribes and tribal members, under which taxation is categorically allowed or disallowed, as appropriate, depending exclusively upon whether it has in fact been authorized by Congress. Pp. 266-268.

c) However, the excise tax on sales of fee-patented Reservation land cannot be sustained. The Indian General Allotment Act explicitly authorizes only "taxation of. . . land," not "taxation with respect to land," "taxation of transactions involving land," or "taxation based on the value of land." Because it is eminently reasonable to interpret that language as not including a tax upon the activity of selling real estate, this Court's cases require that interpretation be applied for the benefit of the Tribe. See, e.g., Blackfeet Tribe, supra, at 766. Pp. 268-270.

d) The factual question whether the parcels at issue were patented under the Indian General Allotment Act or some other federal allotment statute, and the legal question whether it makes any difference, are left for resolution on remand. Pp. 270. 903 F.2d 1207 (9th Cir. 1990), affirmed and remanded.

Negonsott v. Samuels, Warden, et al.

Docket No. 91-5397 Argued January 11, 1993 Decided February 24, 1993

CITATION: 507 U.S. 99, 113 S.Ct. 1119, 122 L.Ed.2d 457 (1993)

SYNOPSIS: The U S. Supreme Court found that the Kansas Act provided an unqualified grant of jurisdiction to the State to define and enforce such criminal laws as it may enact, even for an offense committed by an Indian against another Indian on a reservation, normally chargeable under the Indian Major Crimes Act. At issue in this case is whether the Kansas Act, 18 U.S.C. 3243, confers jurisdiction on the State of Kansas to prosecute petitioner, a Kickapoo Indian, for the state law offense of aggravated battery committed against another Indian on an Indian reservation. Justice Rehnquist delivered the opinion of the Court, joined by Justices White, Blackmun, Stevens, O'Connor, Kennedy and Souter. Justices Scalia and Thomas joined in all but Part II-B of the opinion.

HISTORY: Petitioner Negonsott, a member of the Kickapoo Tribe and a resident of the Kickapoo Reservation in Kansas, was convicted by a County District Court jury of aggravated battery for shooting another Indian on the Reservation. The court set aside the conviction on the ground that the Federal Government had exclusive jurisdiction to prosecute Negonsott for the shooting under the Indian Major Crimes Act, 18 U.S.C. 1153, which encompasses 13 enumerated felonies committed by "[a]ny Indian against . . . the person or property of another Indian or other person . . . within the Indian country." However, the State Supreme Court reinstated the conviction, holding that the Kansas Act, 18 U.S.C. 3243, conferred on Kansas jurisdiction to prosecute all crimes committed by or against Indians on Indian Reservations in the State. Subsequently, the Federal District Court dismissed Negonsott's petition for a writ of habeas corpus, and the Court of Appeals affirmed.

HELD:1) The Kansas Act explicitly confers jurisdiction on Kansas over all offenses involving Indians on Indian Reservations. Congress has plenary authority to alter the otherwise exclusive nature of federal jurisdiction under 1153. Standing alone, the Kansas Act's first sentence -- which confers jurisdiction on Kansas over offenses committed by or against Indians on Indian Reservations . . . to the same extent as its courts have jurisdiction over offenses committed elsewhere within the State in accordance with the laws of the State -- is an unambiguous grant of jurisdiction over both major and minor offenses. And the most logical meaning of the Act's second sentence -- which provides that nothing in the Act shall "deprive" federal courts of their "jurisdiction over offenses defined by the laws of the United States" -- is that federal courts shall retain their jurisdiction to try all offenses subject to federal jurisdiction, while Kansas courts shall have jurisdiction to try persons for the same conduct when it violates state law. This is the only reading of the Kansas Act that gives effect to every clause and word of the statute, and it is supported by the Act's legislative history. In contrast, if this Court were to accept Negonsott's argument that the second sentence renders federal jurisdiction exclusive whenever the underlying conduct is punishable under federal law, Kansas would be left with jurisdiction over only those minor offenses committed by one Indian against [507 US, 100] the person or property of another, a result that can hardly be reconciled with the first sentence's unqualified grant of jurisdiction. There is no need to resort to the canon of statutory construction that ambiguities should be resolved in favor of Indians, since the Kansas Act quite unambiguously confers jurisdiction on the State. Pp. 102-110. 933 F. 2d 818 (10th Cir. 1991), affirmed.

Oklahoma Tax Commission v. Sac and Fox Nation

Docket No. 92-259 Argued March 23, 1993 Decided May 18, 1993

CITATION: 508 U.S. 114, 113 S.Ct. 1985, 124 L.Ed.2d 30 (1993)

SYNOPSIS: The U. S. Supreme Court found that tribal tax immunities extend to trust lands on the same basis as they do to reservation lands, and tribal members residing and earning income on such lands are immune from state income taxation. At issue in this case is whether the State of Oklahoma can impose income taxes or motor vehicle taxes on the members of the Sac and Fox Nation. Justice O'Connor delivered the opinion for a unanimous Court.

HISTORY: Respondent Sac and Fox Nation (Tribe) is a federally recognized Indian Tribe located in Oklahoma. It brought this action seeking a permanent injunction barring petitioner Oklahoma Tax Commission (Commission) from, among other things, taxing the income of tribal members who work or reside within tribal jurisdiction, and imposing the State's motor vehicle excise tax and registration fees on tribal members who live and garage their cars principally on tribal land and register those cars with the Tribe. In large part, the Tribe based its claims of immunity from those state taxes on McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, in which the Court held that a State could not subject a tribal member living on the Reservation, and whose income derived from Reservation sources, to a state income tax absent an express authorization from Congress. The Commission responded that the State had complete taxing jurisdiction over the Tribe because McClanahan and the Court's other immunity cases applied only to Tribes on established Reservations, whereas the Tribe's 1891 Treaty with the Government disestablished the Sac and Fox Reservation in favor of allotments of trust land for individual tribal members. In affirming the District Court's rulings on cross-motions for summary judgment, the Court of Appeals held, among other things, that the income of tribal members who work for the Tribe was immune from state taxation under McClanahan and Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505. In so ruling, the court rejected the Commission's contention that the tribal member's residence was relevant in addition to the status of the land on which the income was earned. The court also concluded that the State's vehicle taxes were flatly prohibited under Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463, and Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134.

HELD:1) Absent explicit congressional direction to the contrary, it must be presumed that a State does not have jurisdiction to tax tribal members who live and work in Indian country, whether the particular territory consists of a formal or informal Reservation, allotted lands, or dependent Indian communities. Pp. 123-128.

a) The Court of Appeals erred to the extent that it did not determine the residence of the tribal members working for the Tribe. The residence of a tribal member is a significant component of the McClanahan presumption against state taxing authority. Contrary to the Commission's contention, that presumption applies not only to formal Reservations, but also to all "Indian country." Citizen Band Potawatomi Indian Tribe of Okla., supra, 498 U. S. at 511. Title 18 U.S.C. 1151 broadly defines the quoted phrase to include formal and informal Reservations, dependent Indian communities, and Indian allotments, whether restricted or held in trust by the United States. If it is determined on remand that the relevant tribal members do live in Indian country, the Court of Appeals must analyze the relevant treaties and federal statutes against the backdrop of Indian sovereignty. Unless Congress expressly authorized state tax jurisdiction in Indian country, the McClanahan presumption counsels against finding such jurisdiction. Because all of the tribal members earning income from the Tribe may live within Indian country, this Court need not determine whether the Tribe's right to self-governance could operate independently of its territorial jurisdiction to preempt the State's ability to tax income earned from work performed for the Tribe itself when the employee does not reside in Indian country. See, e.g., White Mountain Apache Tribe v. Bracker 448 U.S. 136, 142.Pp. 123-126.

b) Oklahoma's vehicle excise tax and registration fees are no different than the state taxes the Court held preempted in Colville and Moe. The Commission's argument that neither of those cases applies, because the Sac and Fox live on scattered allotments, rather than a Reservation, fails for the same reasons it fails with regard to income taxes. Pp. 126-128.

c) Because the Court of Appeals did not determine whether the tribal members on whom Oklahoma attempts to impose its income and motor vehicle taxes live in Indian country, its judgment must be vacated. P. 128. 967 F.2d 1425 (10th Cir.1992), vacated and remanded.

South Dakota v. Bourland

Docket No. 91-2051 Argued March 2, 1993 Decided June 14, 1993

CITATION: 508 U.S. 679, 113 S.Ct. 2309, 124 L.Ed.2d 606 (1993)

SYNOPSIS: The U. S. Supreme Court held that the alienation of the Cheyenne River Sioux Indian Tribe's lands by the Flood Control and Cheyenne River Acts eliminated the Tribe's power to exclude nonmembers from lands taken by these Acts and its power to exercise regulatory jurisdiction over non-Indians on these lands the resultant rule is that where there is a taking of a portion of a reservation by the federal government for construction of a dam and reservoir, a tribe's treaty right to regulate hunting and fishing by non-members in the taken area is abrogated. At issue in this case is whether the Cheyenne River Sioux Tribe may regulate hunting and fishing by non-Indians on lands and overlying waters located within the Tribe's reservation but acquired by the United States for the operation of the Oahe Dam and Reservoir. Justice Thomas delivered the opinion of the Court, joined by Justices Rehnquist, White, Stevens, O'Connor, Scalia, and Kennedy. Justices Blackmun and Souter filed a dissenting opinion.

HISTORY: In 1868, the Fort Laramie Treaty established the Great Sioux Reservation and provided that it be held for the "absolute and undisturbed use and occupation" of Sioux Tribes. The Flood Control Act of 1944 authorized the establishment of a comprehensive flood control plan along the eastern border of the Cheyenne River Reservation, which is part of what was once the Great Sioux Reservation, and mandated that all water project lands be open for the general public's use and recreational enjoyment. Subsequently, in the Cheyenne River Act, the Cheyenne River Sioux Tribe conveyed all interests in 104,420 acres of former trust lands to the United States for the Oahe Dam and Reservoir Project. The United States also acquired an additional 18,000 acres of Reservation land previously owned in fee by non-Indians pursuant to the Flood Control Act. Among the rights the Cheyenne River Act reserved to the Tribe or tribal members was a right of free access [to the taken lands] including the right to hunt and fish, subject . . . to regulations governing the corresponding use by other [United States] citizens, 10. Until 1988, the Tribe enforced its game and fish regulations against all violators, while petitioner South Dakota limited its enforcement to non-Indians. However, when the Tribe announced that it would no longer recognize state hunting licenses, the State filed this action against tribal officials, seeking to enjoin the Tribe from excluding non-Indians from hunting on nontrust lands within the Reservation and, in the alternative, a declaration that the federal takings of tribal lands for the Oahe Dam and Reservoir had reduced the Tribe's authority by withdrawing the lands from the Reservation. The District Court ruled, inter alia, that 10 of the Cheyenne River Act clearly abrogated the Tribe's right to exclusive use and possession of the former trust lands and that Congress had not expressly delegated to the Tribe hunting and fishing jurisdiction over nonmembers on the taken lands. It therefore permanently enjoined the Tribe from exerting such authority. The Court of Appeals affirmed in part, reversed in part, and remanded. It ruled that the Tribe had authority to regulate non-Indian hunting and fishing on the 104,420 acres because the Cheyenne River Act did not clearly reveal [508 U.S. 680] Congress' intent to divest the Tribe of its treaty right to do so. As for the 18,000 acres of former fee lands, the court held that Montana v. United States, 450 US 544, and Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 US 408, controlled, and therefore that the Tribe's regulatory authority was divested unless one of the Montana exceptions was met.

HELD:1) Congress, in the Flood Control and Cheyenne River Acts, abrogated the Tribe's rights under the Fort Laramie Treaty to regulate non-Indian hunting and fishing on lands taken by the United States for construction of the Oahe Dam and Reservoir. Pp. 687-698.

a) Congress has the power to abrogate Indians' treaty rights, provided that its intent is clearly expressed. The Tribe's original treaty right to exclude non-Indians from Reservation lands (implicit in its right of "absolute and undisturbed use and occupation"), and its incidental right to regulate non-Indian use of these lands were eliminated when Congress, pursuant to the Cheyenne River and Flood Control Acts, took the lands and opened them for the use of the general public. See Montana v. United States, supra; Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, supra. Section 4 of the Flood Control Act opened the water project lands for "recreational purposes," which includes hunting and fishing. The Cheyenne River Act declared that the sum paid by the Government to the Tribe for the 104,420 acres "shall be in final and complete settlement of all [of the Tribe's] claims, rights, and demands." Had Congress intended to grant the Tribe the right to regulate non-Indian hunting and fishing, it would have done so by an explicit statutory command, as it did with other rights in 10 of the Cheyenne River Act. And since Congress gave the Army Corps of Engineers regulatory control over the area, it is irrelevant whether respondents claim the right to exclude nonmembers or only the right to prevent nonmembers from hunting or fishing without tribal licenses. Montana cannot be distinguished from this case on the ground that the purpose of the transfers in the two cases differ, because it is a transfer's effect on preexisting tribal rights, not congressional purpose, that is the relevant factor. Moreover, Congress' explicit Reservation of certain rights in the taken area does not operate as an implicit Reservation of all former rights. See United States v. Dion, 476 US 734.Pp. 68 7-694.

b) The alternative arguments -- that the money appropriated in the Cheyenne River Act did not include compensation for the Tribe's loss of licensing revenue, that general principles of "inherent sovereignty" enable the Tribe to regulate non-Indian hunting and fishing in the area, and that Army Corps regulations permit the Tribe to regulate non-Indian hunting and fishing -- do not undercut this statutory analysis. Pp. 694-697. 949 F.2d 984 (8th Cit. 1991), reversed and remanded.

Lincoln v. Vigil

Docket No. 91-1833 Argued March 3, 1993 Decided May 24, 1993

CITATION: 508 U.S. 182, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993)

SYNOPSIS: The U. S. Supreme Court held that the Indian Health Services decision to terminate the Indian Childrens' Program was not reviewable under the Administration Procedures Act because it involved the allocation of funds from a lump sum appropriation, which the Court held was a decision committed to agency discretion by law. At issue in this case was whether the Indian Health Services' decision to discontinue diagnostic and treatment services, known as the Indian Children's Program, to handicapped Indian children in the Southwest and reallocate IHS resources elsewhere was subject to judicial review under the Administrative Procedures Act. Justice Souter delivered the opinion for a unanimous Court.

HISTORY: The Indian Health Service receives yearly lump-sum appropriations from Congress, and expends the funds under authority of the Snyder Act and the Indian Health Care Improvement Act to provide health care for American Indian and Alaska Native people. Out of these appropriations, the Service funded, from 1978 to 1985, the Indian Children's Program, which provided clinical services to handicapped Indian children in the Southwest. Congress never expressly authorized or appropriated funds for the Program, but was apprised of its continuing operation. In 1985, the Service announced that it was discontinuing direct clinical services under the Program in order to establish a nationwide treatment program. Respondents, Indian children eligible to receive services under the Program, filed this action against petitioners (collectively, the Service), alleging, inter alia, that the decision to discontinue services violated the federal trust responsibility to Indians, the Snyder Act, the Improvement Act, the Administrative Procedure Act (APA), and the Fifth Amendment's Due Process Clause. In granting summary judgment for respondents, the District Court held that the Service's decision was subject to judicial review, rejecting the argument that the decision was "committed to agency discretion by law" under the APA, 5 U.S.C. 701(a)(2). The court declined to address the merits of the Service's action, however, holding that the decision to discontinue the Program amounted to a "legislative rule" subject to the APA's notice and comment requirements, 553, which the Service had not fulfilled. The Court of Appeals affirmed, holding that, even though no statute or regulation mentioned the Program, the repeated references to it in the legislative history of the annual appropriations Acts, in combination with the special relationship between Indian people and the Federal Government, provided a basis for judicial review. The court also reasoned that this Court's decision in Morton v Ruiz, 415 U.S. 199, required the Service to abide by the APA's notice and comment procedures before cutting back on a congressionally created and funded program for Indians.

HELD:1) The Service's decision to discontinue the Program was "committed to agency discretion by law," and therefore not subject to judicial review under 701(a)(2). Pp. 190-195.

a) Section 701(a)(2) precludes review of certain categories of administrative decisions that courts traditionally have regarded as "committed to agency discretion." The allocation of funds from a lump-sum appropriation is such a decision. It is a fundamental principle of appropriations law that where Congress merely appropriates lump-sum amounts without statutory restriction, a clear inference may be drawn that it does not intend to impose legally binding restrictions, and indcia in committee reports and other legislative history as to how the funds should, or are expected to, be spent do not establish any legal requirements on the agency. As long as the agency allocates the funds to meet permissible statutory objectives, courts may not intrude under 701(a)(2). Pp.190-193.

b) The decision to terminate the Program was committed to the Service's discretion. The appropriations Acts do not mention the Program, and both the Snyder and Improvement Acts speak only in general terms about Indian health. The Service's representations to Congress about the Program's operation do not translate through the medium of legislative history into legally binding obligations, and reallocating resources to assist handicapped Indian children nationwide clearly falls within the Service's statutory mandate. In addition, whatever its contours, the special trust relationship existing between Indian people and the Federal Government cannot limit the Service's discretion to reorder its priorities from serving a subgroup of beneficiaries to serving the class of all Indians nationwide. Pp. 193-195.

c) Respondents' argument that the Program's termination violated their due process rights is left for the Court of Appeals to address on remand. While the APA contemplates that judicial review will be available for colorable constitutional claims absent a clear expression of contrary congressional intent, the record at this stage does not allow mature consideration of constitutional issues. P. 195.

2) The Service was not required to abide by 553's notice and comment rulemaking procedures before terminating the Program, even assuming that the statement terminating the Program would qualify as a "rule" within the meaning of the APA. Termination of the Program might be seen as affecting the Service's organization, but 553(b)(A) exempts "rules of agency organization" from notice and comment requirements. Moreover, 553(b)(A) exempts "general statements of policy," and, whatever else that term may cover, it surely includes announcements (508 U.S. 184) of the sort at issue here. This analysis is confirmed by Citizens to Preserve Overton Park Inc.v. Volpe, 401 U.S. 402, which stands for the proposition that decisions to expend otherwise unrestricted funds are not, without more, subject to 553's notice and comment requirements. Finally, the Court of Appeals erred in holding that Morton v. Ruiz, supra, required the Service to abide by 553's notice and comment requirements. Those requirements were not at issue in Ruiz Pp. 195-199. 953 F.2d 1225 (10 Cir. 1992) reversed and remanded.

Hagen v. Utah

Docket No. 92-6281 Argued November 2, 1993 February 23, 1994

CITATION: 510 U.S. 399, 114 S.Ct. 958, 127 L.Ed.2d (1994)

SYNOPSIS: The U. S. Supreme Court found that the Uintah Valley Reservation had been diminished by a 1902 Act, and so State had jurisdiction over an Indian who had committed a crime within the original boundaries of the reservation. At issue in this case was whether the Uintah Indian Reservation was diminished by Congress when it was opened to non Indian settlers at the turn of the century, resulting in state jurisdiction over areas that had been within the original boundaries of the reservation. Justice O'Connor delivered the opinion of the Court, joined by Judges Rehnquist, Stevens, Scalia, Kennedy, Thomas, and Ginsburg joined. Justices Blackmun and Souter filed a dissenting opinion.

HISTORY: Petitioner, an Indian, was charged in Utah state court with distribution of a controlled substance in the town of Myton, which lies within the original boundaries of the Uintah Indian Reservation on land that was opened to non-Indian settlement in 1905. The trial court rejected petitioner's claim that it lacked jurisdiction over him because he was an Indian and the crime had been committed in "Indian country," see 18 U.S.C. 1151, such that federal jurisdiction was exclusive. The state appellate court, relying on Ute Indian Tribe v. State of Utah, 773 F.2d 1087 (10 Cir.), cert. denied, 479 US 994, agreed with petitioner's contentions and vacated his conviction. The Utah Supreme Court reversed and reinstated the conviction, ruling that Congress had "diminished" the Reservation by opening it to non-Indians, that Myton was outside its boundaries, and thus that petitioner's offense was subject to state criminal jurisdiction. See Solem v. Bartlett, 465 US 463, 467 ("States have jurisdiction over . . . opened lands if the applicable surplus land Act freed that land of its Reservation status and thereby diminished the Reservation boundaries").

HELD: 1) Because the Uintah Reservation has been diminished by Congress, the town of Myton is not in Indian country and the Utah courts property exercised criminal jurisdiction over petitioner. Pp. 9-22.

a) This Court declines to consider whether the State of Utah, which was a party to the Tenth Circuit proceedings in Ute Indian Tribe, should be collaterally estopped from relitigating the Reservation boundaries. That argument is not properly before the Court because it was not presented in the petition for a writ of certiorari and was expressly disavowed by petitioner in his response to an amicus brief. Pp. 9-10.

b) Under this Court's traditional approach, as set forth in Solem v. Bartlett, supra, and other cases, whether any given surplus land Act diminished a Reservation depends on all the circumstances, including (1) the statutory language used to open the Indian lands, (2) the contemporaneous understanding of the particular Act, and (3) the identity of the persons who actually moved onto the opened lands. As to the first, the most probative, of these factors, the statutory language must establish an express congressional purpose to diminish, but no particular form of words is prerequisite to a finding of diminishment. Moreover, although the provision of a sum certain payment to the Indians, when coupled with a statutory expression of intent, can certainly provide additional evidence of diminishment, the lack of such a provision does not lead to the contrary conclusion. Throughout the diminishment inquiry, ambiguities are resolved in favor of the Indians, and diminishment will not lightly be found. Pp. 10-12.

c) The operative language of the Act of May 27, 1902, ch. 888, 32 Stat. 263 -- which provided for allotments of some Uintah Reservation land to Indians, and that "all the unallotted lands within said Reservation shall be restored to the public domain" (emphasis added) -- evidences a congressional purpose to terminate Reservation status. See, e.g., Seymour v. Superintendent, 368 U.S.351, 354-355. Solem, supra, at 472-476, distinguished. Contrary to petitioner's argument, this baseline intent to diminish was not changed by the Act of March 3, 1905, ch. 1479, 33 Stat. 1069. Language in that statute demonstrates that Congress clearly viewed the 1902 Act as the basic legislation upon which the 1905 Act and intervening statutes were built. Furthermore, the structure of the statutes -- which contain complementary, nonduplicative essential provisions -requires that the 1905 and 1902 Acts be read together. Finally, the general rule that repeals by implication are disfavored is especially strong here, because the 1905 Act expressly repealed a provision in the intervening statute passed in 1903; if Congress had meant to repeal any part of any other previous statute, it could easily have done so. Pp. 12-17.

d) The historical evidence -- including letters and other statements by Interior Department officials, congressional bills and statements by Members of Congress, and the text of the 1905 Presidential Proclamation that actually opened the Uintah Reservation to settlement -- clearly indicates the contemporaneous understanding that the Reservation would be diminished by the opening of the unallotted lands. This conclusion is not altered by inconsistent references to the Reservation in both the past and present tenses in the post-1905 legislative record. These must be viewed merely as passing references in text, not deliberate conclusions about the congressional intent in 1905. Pp. 17-21.

e) Practical acknowledgment that the Reservation was diminished is demonstrated by the current population situation in the Uintah Valley, which is approximately 85 percent non-Indian in the opened lands and 93 percent non-Indian in the area's largest city; by the fact that the seat of local tribal government is on Indian trust lands, not opened lands; and by the State of Utah's assumption of jurisdiction over the opened lands from 1905 until the Tenth Circuit decided Ute Indian Tribe. A contrary conclusion would seriously disrupt the justifiable expectations of the people living in the area. Pp. 21-22. 858 P.2d 925, affirmed.

Dept. Of Taxation & Finance of New York, v. Milhelm Attea & Bros., Inc.

Docket No. 93-377 Argued March 23, 1994 Decided June 13, 1994

CITATION: 512 U.S. 61, 114 S.Ct. 2028, 129 L.Ed.2d 52 (1994)

SYNOPSIS: The U. S. Supreme Court upheld New York's cigarette regulations, which required the precollection of state taxes on cigarettes to be sold to non-Indians by making the wholesaler/Indian trader responsible for the precollection and payment of tax, the Court found that the regulations did not impose an excessive burden on Indian traders by imposing state record keeping requirements and quantity limitations on untaxed cigarettes. At issue in this case is whether New York's cigarette regulations are preempted by federal statutes governing trade with Indians. Justice Stevens delivered the opinion for a unanimous Court.

HISTORY: Enrolled tribal members purchasing cigarettes on Indian Reservations are exempt from a New York cigarette tax, but non-Indians making such purchases are not. Licensed agents precollect the tax by purchasing stamps and affixing them to cigarette packs in advance of their first sale. Determining that a large volume of unstamped cigarettes was being purchased by non-Indians on Reservations, petitioner tax department enacted regulations imposing recordkeeping requirements and quantity limitations on cigarette wholesalers selling untaxed cigarettes to Reservation Indians. As relevant here, the regulations set quotas on the quantity of untaxed cigarettes that wholesalers may sell to Tribes and tribal retailers, and petitioner must approve each such sale. Wholesalers must also ensure that a buyer holds a valid state tax exemption certificate, and must keep records of their tax-exempt sales, make monthly reports to petitioners, and, as licensed agents, precollect taxes on nonexempt sales. Respondent wholesalers are licensed by the Bureau of Indian Affairs to sell cigarettes to Reservation Indians. They filed separate suits in state court alleging that the regulations were preempted by the federal Indian Trader Statutes. The trial court issued an injunction. Ultimately, the Appellate Division upheld the regulations, but the Court of Appeals reversed, distinguishing this Court's decisions upholding taxes imposed on non-Indian purchasers of cigarettes, see Moe v. Confederated Salish and Kootenai Tribes of Flathead Reservation, 425 U. S. 463; Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134, on the ground that they involved regulating sales to non-Indian consumers whereas New York's regulations applied to sales by non-Indian wholesalers to Reservation Indians. The court concluded that the Indian Trader Statutes, as construed in Warren Trading Post v. Arizona Tax Comm'n., 380 US 685, deprived the States of all power to impose regulatory burdens on licensed Indian traders, and, alternatively, that if States could impose minimal burdens on the traders, the State's regulations were invalid because the burdens were significant.

HELD: 1) New York's regulations do not, on their face, violate the Indian Trader Statutes.

a) Because respondents have made essentially a facial challenge, this case is confined to those alleged defects that inhere in the regulations as written, and the Court need not assess for all purposes each feature of the tax scheme that might affect tribal self-government or federal authority over Indian affairs,

b) Indian traders are not wholly immune from state regulation that is reasonably necessary to the assessment or collection of lawful state taxes. Although broad language in Warren Trading Post suggests such immunity, that proposition has been undermined by subsequent decisions in Moe (upholding a state law requiring Indian retailers on tribal land to collect a state cigarette tax imposed on sales to non-Indians), Colville (upholding in relevant part a state law requiring tribal retailers on Reservations to collect cigarette taxes on sales to nonmembers and to keep extensive records), and Oklahoma Tax Comm'n v. Citizen Band of Potawatomi Tribe of Okla., 498 US 505. These cases have made clear that the States have a valid interest in ensuring compliance with lawful taxes that might easily be evaded through purchases of tax-exempt cigarettes on Reservations; that interest outweighs Tribes' modest interest in offering a tax exemption to customers who would ordinarily shop elsewhere. Thus, there is more room for state regulation in this area. In particular, these cases have decided that States may impose on Reservation retailers minimal burdens reasonably tailored to the collection of valid taxes from non-Indians. It would be anomalous to hold that a State could impose tax collection and bookkeeping burdens on Reservation retailers who are enrolled tribal members but not on wholesalers, who often are not.

c) New York's scheme does not impose excessive burdens on Indian traders. Respondents' objections to the regulations setting quotas and requiring that petitioner preapprove deliveries provide no basis for a facial challenge, although the possibility of inadequate quotas may provide a basis for a future challenge to the regulations' application. The requirements that wholesalers sell untaxed cigarettes only to persons with valid exemption certificates and keep detailed records are no more demanding than comparable measures approved in Colville. Moreover, the precollection obligation placed on wholesalers is the same as the obligation that, under Moe and Colville, may be imposed on Reservation retailers. The United States' arguments supporting its position that the scheme improperly burdens Indian trading are also rejected. 81 N.Y. 2d 417, 615 N.E.2d 994, reversed.

Oklahoma Tax Comm'n v. Chickasaw Nation

Docket No. 94-771 Argued April 24, 1995 Decided June 14, 1995

CITATION: 515 U.S. 450, 115 S.Ct. 2214, 132 L.Ed.2d 400 (1995)

SYNOPSIS: The U. S Supreme Court held that Oklahoma could not apply its motor fuels tax to fuel sold by the Chickasaw Nation in Indian Country, but could tax the income of tribal members who work for the Tribe but reside in the State outside of Indian Country. At issue in this case is the taxing authority of the State of Oklahoma over the Chickasaw Nation, namely 1) whether Oklahoma may impose its motor fuels excise tax upon fuel sold by Chickasaw Nation retail stores on tribal trust land and 2) whether Oklahoma may impose its income tax upon members of the Chickasaw Nation who are employed by the Tribe but who reside in the State outside of Indian country. Justice Ginsburg delivered the opinion of an unanimous court, with respect to Parts I and II, and the opinion of the Court with respect to Part III, in which Rehnquist, Scalia, Kennedy and Thomas joined. Justice Breyer filed an opinion concurring in part and dissenting in part, joined by Justices Stevens, O'Connor and Souter.

HISTORY: Respondent Chickasaw Nation filed this action to stop Oklahoma from enforcing several state taxes against the Tribe and its members. Pertinent here, the District Court held for the State on the motor fuels question, and largely for the Tribe on the income tax issue. The Court of Appeals ruled for the Tribe and its members on both issues, determining: (1) that, without congressional authorization, the State could not impose a motor fuels tax on fuel sold by the Tribe at its retail stores on tribal trust land: and (2) that the State could not tax the wages of tribal members employed by the Tribe, even if they reside outside Indian country.

HELD: 1) Oklahoma may not apply its motor fuels tax, as currently designed, to fuel sold by the Tribe in Indian Country. Pp. 4-12.

a) The Court declines to address the State's argument, raised for the first time in its brief on the merits, that the Hayden-Cartwright Act expressly authorizes States to tax motor fuel sales on Indian reservations. Pp. 5-6.

b) When a State attempts to levy a tax directly on Indian tribes or their members inside Indian country, the proper approach is not, as the State contends, to weight the relevant state and tribal interests. Rather, a more categorical approach should be employed: Absent clear congressional authorization, a State is without power to tax reservation lands and reservation Indians. The initial and frequently dispositive question in Indian tax cases, therefore, is who bears the legal incidence of the tax, for if it is a tribe or tribal members inside Indian country, the tax cannot be enforced absent federal legislation permitting the impost. The inquiry proper in this case is whether the fuels tax rests on the Tribe as retailer, or on who sells to the Tribe, or the consumer who buys from the Tribe. Judicial focus on legal incidence accords due deference to Congress' lead role in evaluating state taxation as it bears on Indian tribes and tribal members. A 'legal incidence' test, furthermore, provides a reasonably bright-line standard accommodating the reality that tax administration requires predictability. And a State unable to enforce its tax because the legal incidence falls on tribes or on Indians within Indian country, generally is free to amend its law to shift the tax's legal incidence. Pp. 6-10.

c) The Court of Appeals' ruling that the fuel tax's legal incidence rests on the retailer is reasonable. The state legislation does not expressly identify who bears the tax's legal incidence. Nor does it contain a provision requiring that the tax be passed on to consumers. In the absence of such dispositive language, the question is one of fair interpretation of the taxing statute as written and applied. In this case, the fuels tax law's language and structure indicate that the tax is imposed on fuel retailers. Pp. 10-12.

2) Oklahoma may tax the income of tribal members who work for the Tribe but reside in the State outside Indian country. The Court of Appeals' holding to the contrary conflicts with the well-established principle of interstate and international taxation that a jurisdiction may tax all the income of its residents, even income earned outside the taxing jurisdiction. The exception that the Tribe would carve out of the State's taxing authority gains no support from the rule that Indians and tribes are generally immune from state taxation, as this principle does not operate outside Indian country. In addition, the Treaty of Dancing Rabbit Creek, which guarantees the Tribe and its members that "no Territory or State shall ever have a right to pass laws for the [Tribe's]government," provides only for the Tribe's sovereignty within Indian country and does not confer super-sovereign authority to interfere with another jurisdiction's sovereign right to tax income, from all sources, of those who choose to live within that jurisdiction's limits. Nor can the Treaty be read to incorporate the repudiated doctrine that an income tax imposed on government employees should be treated as a tax on the government. The Treaty's signatories likely gave no thought to a State's authority to tax income of tribal members living in the State's domain, since the Treaty's purpose was to move the Tribe to unsettled land not then within a State. Moreover, if that doctrine were to apply, it would require exemption for nonmember as well as tribal member employees of the Tribe. Pp. 12-17. 31 F.3d 964, affirmed in part, reversed in part, and remanded.

Seminole Tribe of Florida v. Florida

Docket No. 94-12 Argued October 11, 1995 Decided March 27, 1996

CITATION: 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996)

SYNOPSIS: The US Supreme Court held that states and state officials are immune, under the Eleventh Amendment to the Constitution, from suits brought by Indian tribes to enforce the compact negotiation requirement of the Indian Gaming Regulatory Act. At issue in this case was the constitutionality of the provisions of the Indian Gaming Regulatory Act that impose upon States a duty to negotiate in good faith with an Indian tribe toward the formation of a compact, 25 U.S.C. 2710(d)(3)(A), and authorize a tribe to bring suit in federal court against a State to compel performance of that duty, 25 U.S.C. 2710(d)(7). Justice Rehnquist delivered the opinion of the Court, joined by Justices O'Connor, Scalia, Kennedy and Thomas. Justice Souter filed a dissenting opinion, joined by Justices Ginsburg and Breyer.

HISTORY: The Indian Gaming Regulatory Act, passed by Congress pursuant to the Indian Commerce Clause, allows an Indian Tribe to conduct certain gaming activities only in conformance with a valid compact between the Tribe and the State in which the gaming activities are located. 25 U.S.C. 2710(d)(1)(C). Under the Act, States have a duty to negotiate in good faith with a Tribe toward the formation of a compact, 2710(d)(3)(A), and a Tribe may sue a State in federal court in order to compel performance of that duty, 2710(d)(7). In this 2710(d)(7) suit, respondents, Florida and its Governor, moved to dismiss petitioner Seminole Tribe's complaint on the ground that the suit violated Florida's sovereign immunity from suit in federal court. The District Court denied the motion, but the Court of Appeals reversed, finding that the Indian Commerce Clause did not grant Congress the power to abrogate the States' Eleventh Amendment immunity, and that Ex parte Young, 209 US 123, does not permit an Indian Tribe to force good faith negotiations by suing a State's Governor.

HELD: 1) The Eleventh Amendment prevents Congress from authorizing suits by Indian Tribes against States to enforce legislation enacted pursuant to the Indian Commerce Clause.

a) The Eleventh Amendment presupposes that each State is a sovereign entity in our federal system, and that "' [i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without [a State's] consent."' Hans v. Louisiana, 134 US 1, 13. However, Congress may abrogate the States' sovereign immunity if it has "unequivocally expresse[d] its intent to abrogate theimmunity"and has acted "pursuant to a valid exercise of power." Green v. Mansour, 474 US 64, 68. Here, through the numerous references to the "State" in 2710(d)(7)(B)'s text, Congress provided an "unmistakably clear" statement of its intent to abrogate,

b) The inquiry into whether Congress has the power to abrogate unilaterally the States' immunity from suit is narrowly focused on a single question: was the Act in question passed pursuant to a constitutional provision granting Congress such power? This Court has found authority to abrogate under only two constitutional provisions: the Fourteenth Amendment, see, e.g., Fitzpatrick v. Bitzer, 427 U.S.445, and, in a plurality opinion, the interstate Commerce Clause, Pennsylvania v. Union Gas Co., 491 U.S. 1. The Union Gas plurality found that Congress' power to abrogate came from the States' session of their sovereignty when they gave Congress plenary power to regulate commerce. Under the rationale of Union Gas, the Indian Commerce Clause is indistinguishable from the Interstate Commerce Clause.

c) However, in the five years since it was decided, Union Gas has proven to be a solitary departure from established law. Reconsidering that decision, none of the policies underlying stare decisis require this Court's continuing adherence to its holding. The decision has been of questionable precedential value, largely because a majority of the Court expressly disagreed with the plurality's rationale. Moreover, the deeply fractured decision has created confusion among the lower courts that have sought to understand and apply it. The plurality's rationale also deviated sharply from this Court's established federalism jurisprudence and essentially eviscerated the Court's decision in Hans, since the plurality's conclusion "that Congress could under Article I expand the scope of the federal courts' Article III jurisdiction" contradicted the fundamental notion that Article III sets forth the exclusive catalog of permissible federal court jurisdiction. Thus, Union Gas was wrongly decided, and is overruled. The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.

2) The doctrine of Ex parte Young may not be used to enforce 2710(d)(3) against a state official. That doctrine allows a suit against a state official to go forward, notwithstanding the Eleventh Amendment's jurisdictional bar, where the suit seeks prospective injunctive relief in order to end a continuing federal law violation. However, where, as here, Congress has prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an Ex parte Young action. The intricate procedures set forth in 2710(d)(7) show that Congress intended not only to define, but also significantly to limit, the duty imposed by 2710(d)(3). The Act mandates only a modest set of sanctions against a State, culminating in the Secretary of the Interior prescribing gaming regulations where an agreement is not reached through negotiation or mediation. In contrast, an Ex parte Young action would expose a state official to a federal court's full remedial powers, including, presumably, contempt sanctions. Enforcement through an Ex parte Young suit would also make 2710(d)(7) superfluous, for it is difficult to see why a Tribe would suffer through 2710(d)(7)'s intricate enforcement scheme if Ex parteYoung's more complete and more immediate relief were available. The Court is not free to rewrite the statutory scheme in order to approximate what it thinks Congress might have wanted had it known that 2710(d)(7) was beyond its authority. 11 F.3d1016, affirmed.

Babbitt, Secretary of the Interior v. Youpee

Docket No.95-1595 Argued December 2, 1996 Decided January 21, 1997

CITATION: 519 U.S. 234, 117 S.Ct. 727, 136 L.Ed. 2d 696 (1997)

SYNOPSIS: The U. S. Supreme Court struck down the tribal "escheat" provision of the amended Indian Land Consolidation Act, designed to deal with fractionated allotments. The Court held that permitting certain fractionated allotments to escheat to the tribe, in order to re-establish and repair a tribe's land base divided by the General Allotment Act, was an unconstitutional taking in violation of the Fifth Amendment. At issue in this case was the constitutionality of an escheat-to-tribe provision of the Indian Land Consolidation Act, as amended, 25 U.S.C. 2206. Justice Ginsburg delivered the opinion of the Court, joined by Justices Rehnquist, O'Connor, Scalia, Kennedy, Souter, Thomas, and Bryer. Justice Stevens filed a dissenting opinion.

HISTORY: In the late Nineteenth Century, Congress initiated an Indian land program that authorized the allotment of communal Indian property to individual tribal members. This allotment program resulted in the extreme fractionation of Indian lands as allottees passed their undivided interests on to multiple heirs through descent or devise. In 1983, Congress adopted the Indian Land Consolidation Act in part to reduce fractionated ownership of allotted lands. Section 207 of the Act--the "escheat" provision--prohibited the descent or devise of fractional interests that constituted 2 percent or less of the total acreage in an allotted tract and earned less than $100 in the preceding year. Instead of passing to heirs, the interests described in 207 would escheat to the Tribe, thereby consolidating the ownership of Indian lands. Section 207 made no provision for the payment of compensation to those who held such fractional interests. In Hodel v. Irving, 481 US 704, this Court invalidated the original version of 207 on the ground that it effected a taking of private property without just compensation, in violation of the Fifth Amendment. Id., at 716-718. Considering, first, the economic impact of 207, the Court observed that the provision's income generation test might fail to capture the actual economic value of the land. Id., at 714. Weighing most heavily against the constitutionality of 207, however, was the "extraordinary" character of the Government regulation, Id., at 716, which amounted to the virtual abrogation of the rights of descent and devise, Id, at 716-717. While Irving was pending in the Court of Appeals, Congress amended 207. Amended 207 differs from the original provision in three relevant respects: it looks back five years instead of one to determine the income produced from a small interest, and creates a rebuttable presumption that this income stream will continue; it permits devise of otherwise escheatable interests to persons who already own an interest in the same parcel; and it authorizes Tribes to develop their own codes governing the disposition of fractional interests. The will of William Youpee, an enrolled member of the Sioux and Assiniboine Tribes, devised to respondents, all of them enrolled tribal members, his several undivided interests in allotted lands on Reservations in Montana and North Dakota. Each interest was devised to a single descendant. Youpee's will thus perpetuated existing fractionation, but it did not splinter ownership further by bequeathing any single fractional interest to multiple devisees. In a proceeding to determine claims against and heirs to Youpee's estate, an administrative law judge in the Department of the Interior found that Interests devised to each of the respondents fell within the compass of amended 207 and should therefore escheat to the relevant tribal governments. Respondents, asserting the unconstitutionality of amended 207, appealed the order to the Board of Indian Appeals. The Board, stating that it did not have jurisdiction to consider respondents' constitutional claim, dismissed the appeal. Respondents then filed this suit against the Secretary of the Interior, alleging that amended 207 violates the Just Compensation Clause of the Fifth Amendment. The District Court agreed with respondents and granted their request for declaratory and injunctive relief. The Ninth Circuit affirmed. HELD: Amended 207 does not cure the constitutional deficiency this Court identified in the original version of 207. The Court is guided by Irving in determining whether the amendments to 207 render the provision constitutional. The United States maintains that the amendments moderate the economic impact of the provision and temper the character of the Government's regulation. However, the narrow revisions Congress made to 207, without benefit of this Court's ruling in Irving; do not warrant a disposition different than the one announced and explained in Irving. Amended 207 permits a five year window rather than a one year window to assess the income generating capacity of a fractional interest, and the United States urges that this alteration substantially mitigates the economic impact of 207. But amended 207 still trains on income generated from the land, not on the value of the parcel. Even if the income generated by such parcels may be typed de minimis, the value of the land may not fit that description. 481 U. S., at 714. The United States correctly comprehends that Irving rested primarily on the "extraordinary" character of the governmental regulation: the "virtual abrogation" of the right of descent and devise, id., at 716. The United States contends, however, that Congress cured the fatal infirmity in 201 when it revised the section to allow transmission of fractional interests to successors who already own an interest in the allotment. But this change does not rehabilitate the measure. Amended 207 severely restricts the right of an individual to direct the descent of his property by shrinking drastically the universe of possible successors. And, as the Ninth Circuit observed, the "very limited group [of permissible devisees] is unlikely to contain any lineal descendants." 67 F. 3d 194, 199-200. Moreover, amended 207 continues to restrict devise "even in circumstances when the governmental purpose sought to be advanced, consolidation of ownership of Indian lands, does not conflict with the further descent of the property." 481 U. S., at 718. As the United States acknowledges, giving effect to Youpee's directive bequeathing each fractional interest to one heir would not further fractionate Indian land holdings. The United States' arguments that amended 207 satisfies the Constitution's demand because it does not diminish the owner's right to use or enjoy property during his lifetime and does not affect the right to transfer property at death through non probate means are no more persuasive today than they were in Irving. See id., At 716-718. The third alteration made in amended 207 also fails to bring the provision outside the reach of this Court's holding in Irving. Tribal codes governing disposition of escheatable interests have apparently not been developed. Pp. 8-1 1. 67 F. 3d 194, affirmed.

Strate, Association Tribal Judge, Tribal Court of the Three Affiliated Tribes of the Fort Berthold Indian Reservation v. A-1 Contractors

Docket No. 95-1872 Argued January 7, 1997 Decided April 28, 1997

CITATION: 520 U.S. 438, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997)

SYNOPSIS: The U. S. Supreme Court found that tribal courts may not entertain claims against nonmembers arising out of accidents on state highways running through Indian reservations, absent a statute or treaty authorizing the tribe to govern the conduct of nonmembers on the highway in question. Thus, the Court departed from the usual presumption that tribal sovereignty exists, requiring a search of statutes or treaties for language that negates the presumption, and established a rule that tribal sovereignty does NOT exist unless Congress has specifically stated that it does exist. At issue in this case was the question, when an accident occurs on a portion of public highway maintained by the State under a federally granted right of way over Indian reservation land, may tribal courts entertain a civil action against an allegedly negligent driver and the driver's employer, neither of whom is a member of the tribe? Justice Ginsburg delivered the opinion for a unanimous court.

HISTORY: Vehicles driven by petitioner Fredericks and respondent Stockert collided on a portion of a North Dakota state highway that runs through the Fort Berthold Indian Reservation. The 6.59 mile stretch of highway within the reservation is open to the public, affords access to a federal water resource project, and is maintained by North Dakota under a federally granted right of way that lies on land held by the United States in trust for the Three Affiliated Tribes and their members. Neither driver is a member of the Tribes or an Indian, but Fredericks is the widow of a deceased tribal member and has five adult children who are also members. The truck driven by Stockert belonged to his employer, respondent A-1 Contractors, a non Indian owned enterprise with its principal place of business outside the reservation. At the time, A-1 was under a subcontract with LCM Corporation, a corporation wholly owned by the Tribes, to do landscaping within the reservation. The record does not show whether Stockert was engaged in subcontract work at the time of the accident. Fredericks filed a personal injury action in Tribal Court against Stockert and A-1, and Fredericks' adult children filed a loss of consortium claim in the same lawsuit. The Tribal Court ruled that it had jurisdiction over Fredericks, claim and therefore denied respondents' motion to dismiss, and the Northern Plains Intertribal Court of Appeals affirmed. Respondents then commenced this action in the Federal District Court against Fredericks, her adult children, the Tribal Court, and Tribal Judge Strate, seeking a declaratory judgment that, as a matter of federal law, the Tribal Court lacked jurisdiction to adjudicate Fredericks' claims; respondents also sought an injunction against further Tribal Court proceedings. Relying particularly on National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, and Iowa Mut. Ins. Co. v. LaPlante, 480 US 9, the District Court dismissed the action, determining that the Tribal Court had civil jurisdiction over Fredericks' complaint against respondents. The en banc Eighth Circuit reversed, concluding that the controlling precedent was Montana v. United States, 450 US 544, and that, under Montana, the Tribal Court lacked subject matter jurisdiction over the dispute.

HELD: When an accident occurs on a public highway maintained by the State pursuant to a federally granted right of way over Indian reservation land, a civil action against allegedly negligent nonmembers falls within state or federal regulatory and adjudicatory governance; absent a statute or treaty authorizing the tribe to govern the conduct of nonmembers driving on the State's highway, tribal courts may not exercise jurisdiction in such cases. This Court expresses no view on the governing law or proper forum when an accident occurs on a tribal road within a reservation. Pp. 4-20.

a) Absent express authorization by federal statute or treaty, tribal jurisdiction over nonmembers' conduct exists only in limited circumstances. In Oliphant v. Suquamish Tribe, 435 US 191, the Court held that tribes lack criminal jurisdiction over non Indians. Later, in Montana v. United States, the Court set forth the general rule that, absent a different congressional direction, Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation, subject to exceptions relating to (1) the activities of nonmembers who enter consensual relationships with the tribe or its members and (2) nonmember conduct that threatens or directly affects the tribe's political integrity, economic security, health, or welfare. 450 US, at 564-567. Pp. 4-7.

b) Montana controls this case. Contrary to petitioners' contention, National Farmers and Iowa Mutual do not establish a rule converse to Montana. Neither case establishes that tribes presumptively retain adjudicatory authority over claims against nonmembers arising from occurrences anywhere within a reservation. Rather, these cases prescribe a prudential, nonjurisdictional exhaustion rule requiring a federal court in which tribal court jurisdiction is challenged to stay its hand, as a matter of comity, until after the tribal court has had an initial and full opportunity to determine its own jurisdiction. See 471 US, at 857; 480 US, at 20, n.14; see also id., at 16, n.8. This exhaustion rule, as explained in National Farmers, 471 US, at 855-856, reflects the more extensive jurisdiction tribal courts have in civil cases than in criminal proceedings and the corresponding need to inspect relevant statutes, treaties, and other materials in order to determine tribal adjudicatory authority. National Farmers' exhaustion requirement does not conflict with Montana, in which the Court made plain that the general rule and exceptions there announced govern only in the absence of a delegation of tribal authority by treaty or statute. See 450 US, at 557-563. Read in context, the Court's statement in Iowa Mutual, 480 US, at 18, that "[c]ivil jurisdiction over [the] activities [of non Indians on reservation lands] presumptively lies in the tribal courts," addresses only situations in which tribes possess authority to regulate nonmembers' activities. As to nonmembers, a tribe's adjudicative jurisdiction does not exceed its legislative jurisdiction, absent congressional direction enlarging tribal court jurisdiction. Pp. 7-13.

c) It is unavailing to argue, as petitioners do, that Montana does not govern this case because the land underlying the accident scene is held in trust for the Three Affiliated Tribes and their members. Petitioners are correct that Montana and the cases following its instruction- -Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 US 408, and South Dakota v. Bourland, 508 U.S.679--all involved alienated, non Indian owned reservation land. However, the right of way North Dakota acquired for its highway renders the 6.59 mile stretch here at issue equivalent, for nonmember governance purposes, to such alienated, non-Indian land. The right of way was granted to facilitate public access to a federal water resource project, forms part of the State's highway, and is open to the public. Traffic on the highway is subject to the State's control. The granting instrument details only one specific reservation to Indian land owners, the right to construct necessary crossings, and the Tribes expressly reserved no other right to exercise dominion or control over the right of way. Rather, they have consented to, and received payment for, the State's use of the stretch at issue, and so long as that stretch is maintained as part of the State's highway, they cannot assert a landowner's right to occupy and exclude. Pp. 13-16.

d) Petitioners refer to no treaty or federal statute authorizing the Three Affiliated Tribes to entertain highway accident tort suits of the kind Fredericks commenced against A-1 and Stockert. Nor have they shown that Fredericks' tribal court action qualifies under either of the exceptions to Montana's general rule. The tortious conduct alleged by Fredericks does not fit within the first exception for "activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing contracts, leases, or other arrangements," 450 US, at 565, particularly when measured against the conduct at issue in the cases cited by Montana, id, at 565-566, as fitting within the exception, Williams v. Lee, 358 US 217, 223; Morris v. Hitchcock, 194 U.S.384; Buster v. Wright, 135 F. 947, 950; and Washington v. Confederated Tribes of Colville Reservation, 447 US 134, 152-154. This dispute is distinctly nontribal in nature, arising between two non-Indians involved in a run of the mill highway accident. Although A-1 was engaged in subcontract work on the reservation, and therefore had a "consensual relationship" with the Tribes, Fredericks was not a party to the subcontract, and the Tribes were strangers to the accident. Montana's second exception, concerning conduct that "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe," 450 US, at 566, is also inapplicable. The cases cited by Montana as stating this exception each raised the question whether a State's (or Territory's) exercise of authority would trench unduly on tribal self government. Fisher v. District Court of Sixteenth Judicial Dist. of Mont., 424 U. S. 382, 386; Williams, 358 US, at 220; Montana Catholic Missions v. Missoula County, 200 US 118, 128-129; and Thomas v. Gay, 169 US 264, 273. Opening the Tribal Court for Fredericks' optional use is not necessary to protect tribal self government; and requiring A-1 and Stockert to defend against this commonplace state highway accident claim in an unfamiliar court is not crucial to the Tribes' political integrity, economic security, or health or welfare. Pp. 16-20. 76 F. 3d 930, affirmed.

Idaho v. Coeur d'Alene Tribe of Idaho

Docket No. 94-1474 Argued October 16, 1996 Decided June 23, 1997

CITATION:521 U.S. 261, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1977)

SYNOPSIS: The US Supreme Court held that the Eleventh Amendment to the Constitution barred claims brought against the state of Idaho and its officials by the Coeur d"Alene Tribe. At issue in this case was whether the Eleventh Amendment bars a federal court from hearing the Tribe's claim to ownership in the submerged lands and bed of Lake Coeur d'Alene and the various navigable rivers and streams that are part of its water system. Justice Kennedy delivered the opinion of the Court with respect to Parts I, II-A, and III, joined by Justices Rehnquist, O'Connor, Scalia, and Thomas, and an opinion with respect to Parts II-B, II-C, and II-D, joined by Justice Rehnquist. Justice O'Connor filed an opinion concurring in part and concurring in the judgment, joined by Justices Scalia and Thomas. Justices Stevens, Ginsburg, and Breyer filed a dissenting opinion. HISTORY: Alleging ownership in the submerged lands and bed of Lake Coeur d'Alene and various of its navigable tributaries and effluents lying within the original boundaries of the Coeur d'Alene Reservation (the submerged lands), the Coeur d'Alene Tribe and various of its members (collectively, the Tribe) filed this federal court action against the State of Idaho, various state agencies, and numerous state officials in their individual capacities. The Tribe sought, inter alia, a declaratory judgment establishing its entitlement to the exclusive use and occupancy and the right to quiet enjoyment of the submerged lands, a declaration of the invalidity of all Idaho laws, customs, or usages purporting to regulate those lands, and a preliminary and permanent injunction prohibiting defendants from taking any action in violation of the Tribe's rights in the lands. The District Court dismissed the suit, but the Ninth Circuit affirmed in part, reversed in part, and remanded. As here relevant, the latter court agreed with the District Court that the Eleventh Amendment barred all claims against the State and its agencies, as well as the quiet title action against the officials. However, it found the doctrine of Ex parte Young, 209 US 123, applicable and allowed the claims for declaratory and injunctive relief against the officials to proceed insofar as they sought to preclude continuing violations of federal law. The court reasoned that those claims are based on Idaho's ongoing interference with the Tribe's alleged ownership rights, and found it conceivable that the Tribe could prove facts entitling it to relief on the claims.

HELD: Justice Kennedy delivered the opinion of the Court with respect to Parts I, II-A,and III, concluding that the Tribe's suit against the state officials may not proceed in federal court. Pp. 4-8, 18-26.

a) Because States enjoy Eleventh Amendment immunity in suits by Indian tribes, Blatchford v. Native Village of Noatak, 501 U. S. 775, 782, the present suit is barred unless it falls within the exception this Court has recognized for certain suits seeking declaratory and injunctive relief against state officers in their individual capacities, see, e.g., Ex parte Young; supra. The Court does not question the continuing validity of the Young doctrine, but acknowledges that questions will arise as to its proper scope and application. In resolving these questions, the Court must ensure that the sovereign immunity doctrine remains meaningful, while also giving recognition to the need to prevent violations of federal law. In a suit commenced against such officials, even if they are named and served as individuals, the State itself will have a continuing interest in the litigation whenever state policies or procedures are at stake. See, e.g., Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 114, n. 25. Pp. 4-8. The Tribe may not avoid the Eleventh Amendment bar and avail itself of the Young exception in this action. In support of Young's applicability, the Tribe alleges an ongoing violation of its property rights under federal law, seeks prospective injunctive relief, and attempts to rely on the plurality decision in Florida Dept. of State v. Treasure Salvors, Inc., 458 US 670. The latter case is not helpful because the state officials there were acting beyond their state conferred authority, Id, at 696-697, a theory the Tribe does not even attempt to pursue in this case. Moreover, although a request for prospective relief from an allegedly ongoing federal law violation is ordinarily sufficient to invoke the Young fiction, this case is unusual in that the Tribe's suit is the functional equivalent of a quiet title implicating special sovereignty interests: This is especially troubling when coupled with the far reaching and invasive relief the Tribe seeks, which would shift substantially all benefits of ownership and control of vast areas from the State to the Tribe, and thereby entail consequences going well beyond those typically present in a real property quiet title action. Furthermore, the requested relief would divest the State of its control over lands underlying navigable waters, which have historically been considered uniquely "sovereign lands," see, e.g., Utah Div. of State Lands v. United States, 482 U. S.193, 195-198, title to which is conferred on the States by the Constitution itself, see Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 US 363,374. Indeed, Idaho law views its interest in the submerged lands in such terms. Under these particular and special circumstances, the Young exception is inapplicable. The dignity and status of its statehood allows Idaho to rely on its Eleventh Amendment immunity and to insist upon responding to these claims in its own courts, which are open to hear and determine the case. Pp. 18-26. The judgment is reversed in part, and the case is remanded. 42 F. 3d 1244, reversed in part and remanded.

South Dakota v. Yankton Sioux Tribe

Docket No. 96-1581 Argued December 8, 1997 Decided January 26, 1998

CITATION: 118 S.Ct. 789, 139 L.Ed.2d 773 (1998)

SYNOPSIS: The U.S. Supreme Court held that by an 1897 statute ratifying an agreement for the sale of surplus tribal lands, Congress diminished the boundaries of the Yankton Sioux Reservation. At issue in this case is whether a landfill constructed on non-Indian fee land within the boundaries of the original Yankton Reservation remains subject to federal environmental regulations. Justice O'Connor delivered the opinion for a unanimous Court.

HISTORY: The Yankton Sioux Reservation in South Dakota was established pursuant to an 1858 Treaty between the United States and the Yankton Tribe. Congress subsequently retreated from the reservation concept and passed the 1887 Dawes Act, which permitted the Government to allot tracts of tribal land to individual Indians and, with tribal consent, to open the remaining holdings to non-Indian settlement. In accordance with the Dawes Act, members of the respondent Tribe received individual allotments and the Government then negotiated with the Tribe for the cession of the remaining, unallotted reservation lands. An agreement reached in 1892 provided that the Tribe would "cede, sell, relinquish, and convey to the United States" all of its unallotted lands; in return, the Government agreed to pay the Tribe $600,000. Article XVII of the agreement, a saving clause, stated that nothing in its terms "shall be construed to abrogate the [1858] treaty", and that "all provisions of the said treaty . . . shall be in full force and effect, the same as though this agreement had not been made." Congress ratified the agreement in an 1894 statute, and non-Indians rapidly acquired the ceded lands. In this case, tribal, federal, and state officials disagree as to the environmental regulations applicable to a solid waste disposal facility that lies on unallotted, non-Indian fee land, but falls within the reservation's original 1858 boundaries. The Tribe and the Federal Government contend that the site remains part of the reservation and is therefore subject to federal environmental regulations, while petitioner State maintains that the 1894 divestiture of Indian property effected a diminishment of the Tribe's territory, such that the ceded lands no longer constitute "Indian country" under 18 U.S.C. 1151(a), and the State now has primary jurisdiction over them. The District Court declined to enjoin construction of the landfill but granted the Tribe a declaratory judgment that the 1894 Act did not alter the 1858 reservation boundaries, and consequently that the waste site lies within an Indian reservation where federal environmental regulations apply. The Eighth Circuit affirmed.

HELD: The 1894 Act's operative language and the circumstances surrounding its passage demonstrate that Congress intended to diminish the Yankton Reservation. Pp. 11-27.

a) States acquired primary jurisdiction over unallotted opened lands if the applicable surplus land Act freed those lands of their reservation status and thereby diminished the reservation boundaries, Solem v. Bartlett 465 US 463, 467, but the entire opened area remained Indian country if the Act simply offered non-Indians the opportunity to purchase land within established reservation boundaries, id., at 470. The touchstone to determine whether a given statute diminished or retained reservation boundaries is congressional purpose, see Rosebud Sioux Tribe v. Kneip, 430 US 584, 615, and Congress' intent to alter an Indian treaty's terms by diminishing a reservation must be "clear and plain," United States v. Lion, 476 US 734, 738-739. The most probative evidence of congressional intent is the statutory language, but the Court will also consider the historical context surrounding the Act's passage, and, to a lesser extent, the subsequent treatment of the area in question and the pattern of settlement there. Hagen v. Utah, 510 US 399, 411. Ambiguities must be resolved in favor of the Indians, and the Court will not lightly find diminishment. Ibid. Pp. 11-12.

b) The plain language of the 1894 Act evinces congressional intent to diminish the reservation Article I's "cession" language-the Tribe will "cede, sell, relinquish, and convey to the United States all their claim, right, title, and interest in and to all the unallotted lands" and Article II's "sum certain" language-whereby the United States pledges a fixed payment of $600,000 in return-is "precisely suited" to terminating reservation status. See DeCoteau v. District County Court for Tenth Judicial Dist., 420 US 425, 445. Indeed, when a surplus land Act contains both explicit cession language, evidencing "the present and total surrender of all tribal interests," and a provision for a fixed-sum payment, representing "an unconditional commitment from Congress to compensate the Indian tribe for its opened land," a "nearly conclusive," or "almost insurmountable," presumption of diminishment arises. See Solem, supra, at 470; see also Hagen, supra, at 411.Pp. 13-14.

c) The Court rejects the Tribe's argument that, because the 1894 Act's saving clause purported to conserve the 1858 Treaty, the existing reservation boundaries were maintained. Such a literal construction would eviscerate the 1892 agreement by impugning the entire sale. Rather, it seems most likely that the parties inserted Article XVIII, including both the general statement regarding the force of the 1858 Treaty and a particular provision ensuring that the "Yankton Indians shall continue to receive their annuities under [that Treaty]," for the limited purpose of assuaging the Tribe's concerns about their entitlement to annuities. Discussion of the annuities figured prominently in the negotiations that led to the 1892 agreement, but no mention was made of the preservation of the 1858 boundaries. Pp. 14-18.

d) Neither the 1894 Act's clause reserving sections of each township for schools nor its prohibition on liquor within the ceded lands supports the Tribe's position. The Court agrees with the State that the school sections clause reinforces the view that Congress intended to extinguish the reservation status of the unallotted land. See, e.g., Rosebud, supra, at 601; but see Solem, supra, at 474. Moreover, the most reasonable inference from the inclusion of the liquor prohibition is that Congress was aware that the opened, unallotted areas would henceforth not be"Indian country," where alcohol already had been banned. Rosebud supra, at 613. Pp. 18-20.

e) Although the Act's historical context and the area's subsequent treatment are not such compelling evidence that, standing alone, they would indicate diminishment, neither do they rebut the "almost insurmountable presumption" that arises from the statute's plain terms. The manner in which the Government negotiated the transaction with the Tribe and the tenor of the legislative reports presented to Congress reveal a contemporaneous understanding that the 1894 Act modified the reservation. See Solem, supra, at 471. The legislative history itself adds little because Congress considered several surplus land sale agreements at the same time, but the few relevant references from the floor debates support a finding of diminishment. In addition, the Presidential Proclamation opening the lands to settlement contains language indicating that the Nation's Chief Executive viewed the reservation boundaries as altered. See Rosebud, supra, at 602-603. Pp. 20-23.

f) Despite the apparent contemporaneous understanding that the 1894 Act diminished the reservation, in the years since, both Congress and the Executive Branch have described the reservation in contradictory terms and treated the region in an inconsistent manner. The mixed record reveals no dominant approach, and it carries but little force in light of the strong textual and contemporaneous evidence of diminishment. E.g., Rosebud, supra, at 605, n.27. Pp. 23-25.

g) Demographic factors also signify diminishment: The Yankton population in the region promptly and drastically declined after the 1894 Act, and the area remains predominantly populated by non Indians with only a few surviving pockets of Indian allotments. Solem, 465 US, at 471, and n.12. The Court's holding is further reinforced by the State's assumption of jurisdiction over the ceded territory almost immediately after the 1894 Act, and by the lack of evidence that the Tribe has attempted until recently to exercise jurisdiction over nontrust lands. Id., at 1456. Finally, the Yankton Constitution, drafted in 1932 and amended in 1962, defines the Tribe's territory to include only those tribal lands within the 1858 boundaries "now owned" by the Tribe. Pp. 25-26.

h) The conflicting understandings about the status of the reservation, together with the fact that the Tribe continues to own land in common, caution the Court to limit its holding to the narrow question presented: whether unallotted, ceded lands were severed from the reservation. The Court need not determine whether Congress disestablished the reservation altogether in order to resolve this case, and accordingly declines to do so. See, e.g., Hagen, supra, at 421. P. 27. 99 F.3d 1439, reversed and remanded.

Alaska v. Native Village of Venetie Tribal Government

Docket No. 96-1577 Argued December 10, 1997 Decided February 25, 1998

CITATION: 118 S.Ct. 948, 140 L.Ed.2d 30 (1998)

SYNOPSIS: The U. S. Supreme Court held that land held in fee simple by the Native Village of Venetie Tribal Government pursuant to the Alaska Native Claims Settlement Act did not constitute "Indian country." At issue in this case was whether approximately 1.8 million acres of land in northern Alaska owned in fee simple by the Native Village of Venetie Tribal Government pursuant to the Alaska Native Claims Settlement Act, 43 U.S.C. 1601, et seq., is "Indian country." Justice Thomas delivered the opinion of a unanimous court.

HISTORY: In 1943, the Secretary of the Interior created a reservation for the Neets'aii Gwich'in Indians on approximately 1.8 million acres surrounding Venetie and another tribal village in Alaska. In 1971, Congress enacted the Alaska Native Claims Settlement Act (ANCSA), which, inter alia, revoked the Venetie Reservation and all but one of the other reserves set aside for Native use by legislative or executive action, 43 U.S.C. 1618(a); completely extinguished all aboriginal claims to Alaska land, 1603; and authorized the transfer of $962.5 million in federal funds and approximately 44 million acres of Alaska land to state-chartered private business corporations to be formed by Alaska Natives, Sections 1605, 1607, 1613. Such corporations received fee simple title to the transferred land, and no federal restrictions applied to subsequent land transfers by them. Section 1613. In 1973, the two Native corporations established for the Neets'aii Gwich'in elected to make use of an ANCSA provision allowing them to take title to former reservation lands in return for forgoing the statute's monetary payments and transfers of nonreservation land. See Section 1618(b). The United States conveyed fee simple title to the land constituting the former Venetie Reservation to the corporations as tenants in common; thereafter, they transferred title to respondent Native Village of Venetie Tribal Government (the Tribe). In 1986, Alaska entered into a joint venture with a private contractor to construct a public school in Venetie. After the contractor and the State refused the Tribe's demand for approximately $161, 000 in taxes for conducting business on tribal land, the Tribe sought to collect in tribal court. In the State's subsequent suit to enjoin collection of the tax, the Federal District Court held that, because the Tribe's ANCSA lands were not "Indian country" within the meaning of 18 U.S.C. 1151(b), the Tribe lacked the power to impose a tax upon nonmembers of the Tribe. The Ninth Circuit disagreed and reversed.

HELD: The Tribe's land is not "Indian country." Pp. 4-13.

a) As here relevant, "Indian country" means "all dependent Indian communities within the . . . United States . . . ." Section 1151(b). "[D]ependent Indian communities" refers to a limited category of Indian lands that are neither reservations nor allotments (the other categories of Indian country set forth in Section 1151), and that satisfy two requirements-first, they must have been set aside by the Federal Government for the use of the Indians as Indian land; second, they must be under federal superintendence. See United States v. Sandoval, 231 U.S. 28, 46, United States v. Pelican, 232 U.S. 442, 449, and United States v. McGowan, 302 U.S. 535, 538-539. Those cases held that these two requirements were necessary for a finding of "Indian country" generally before Section 1151 was enacted, and Congress codified these requirements in enacting Section 1151. Section 1151 does not purport to alter the cases' definition of Indian country. Section 1151(b)'s text, moreover, was taken virtually verbatim from Sandoval, supra, at 46, which language was later quoted in McGowan, supra, at 538. The legislative history states that Section 1151(b)'s definition is based on those cases, and the requirements are reflected in Section 1151(b)'s text: The federal set-aside requirement ensures that the land in question is occupied by an "Indian community"; the federal superintendence requirement guarantees that that community is sufficiently "dependent" on the Federal Government that the Government and the Indians involved, rather than the States, are to exercise primary jurisdiction over the land. Pp. 4-10.

b) The Tribe's ANCSA lands do not satisfy either of these requirements. The federal set-aside requirement is not met because ANCSA, far from designating Alaskan lands for Indian use, revoked all existing Alaska reservations "set aside by legislation or by Executive or Secretarial Order for Native use, " save one. 43 U.S.C. 1618(a) (emphasis added). Congress could not more clearly have departed from its traditional practice of setting aside Indian lands. Cf. Hagen v. Utah, 510 U.S. 399, 401. The difficulty with the Tribe's argument that the ANCSA lands were set apart for the use of the Neets'aii Gwich'in, "as such," by their acquisition pursuant to Section 1618(b) is that ANCSA transferred reservation lands to private, state-chartered Native corporations, without any restraints on alienation or significant use restrictions, and with the goal of avoiding "any permanent racially defined institutions, rights, privileges, or obligations," Section 1601(b); see also Sections 1607, 1613. Thus, Congress contemplated that non-Natives could own the former Venetie Reservation, and the Tribe is free to use it for non-Indian purposes. Equally clearly, ANCSA ended federal superintendence over the Tribe's lands by revoking all existing Alaska reservations but one, see Section 1618(a), and by stating that ANCSA's settlement provisions were intended to avoid a "lengthy wardship or trusteeship," Section 1601(b). Although ANCSA exempts the Tribe's land, as long as it has not been sold, leased, or developed, from adverse possession claims, real property taxes, and certain judgments, see Section 1636(d), these protections simply do not approach the level of active federal control and stewardship over Indian land that existed in this Court's prior cases. See, e.g., McGowan, supra, at 537-539. Moreover, Congress' conveyance of ANCSA lands to state-chartered and state-regulated private business corporations is hardly a choice that comports with a desire to retain federal superintendence. The Tribe's contention that such superintendence is demonstrated by the Government's continuing provision of health, social, welfare, and economic programs to the Tribe is unpersuasive because those programs are merely forms of general federal aid, not indicia of active federal control. Moreover, the argument is severely undercut by the Tribe's view of ANCSA's primary purposes, namely, to effect Native self-determination and to end paternalism in federal Indian relations. The broad federal superintendence requirement for Indian country cuts against these objectives, but this Court is not free to ignore that requirement as codified in Section 1151. Whether the concept of Indian country should be modified is a question entirely for Congress. Pp. 10-13. 101 F. 3d 1286, reversed.

Montana v. Crow Tribe of Indians

Docket No. 96-1829 Argued February 24, 1998 Decided May 18, 1998

CITATION: 118 S.Ct. 1650, 140 L.Ed.2d 898 (1998)

SYNOPSIS: The U S. Supreme Court held that the Crow Tribe of Indians was not entitled to restitution for severance taxes wrongfully paid to the State of Montana for coal production conducted on land held in trust for the tribe. At issue in this case is whether the Tribe and the United States may recover coal-related taxes once paid to the State and counties by Westmoreland Resources, Inc., a nontribal enterprise that mined coal under a lease from the Tribe. Justice Ginsburg delivered the opinion of the court, joined by Justices Rehnquist, Stevens, Scalia, Kennedy, Thomas and Breyer. Justice Souter filed an opinion concurring in part and dissenting in part, in which Justice O'Connor joined.

HISTORY: In 1904, the Crow Tribe ceded part of its Montana Reservation to the United States for settlement by non-Indians. The United States holds rights to minerals underlying the ceded strip in trust for the Tribe. In 1972, with the approval of the Department of the Interior and pursuant to the Indian Mineral Leasing Act of 1938 (IMLA), Westmoreland Resources, Inc., a non-Indian company, entered into a mining lease with the Tribe for coal underlying the ceded strip. After executing the lease, Westmoreland signed contracts with its customers, four utility companies, allowing it to pass on to the utilities the cost of valid taxes. Westmoreland and the Tribe renegotiated the lease in 1974. The amended lease had an extendable ten-year term, and set some of the highest royalties in the United States. In 1975, Montana imposed a severance tax and a gross proceeds tax on all coal produced in the State, including coal underlying the reservation proper and the ceded strip. Westmoreland paid these taxes without timely pursuit of the procedures Montana law provides for protests and refunds. Some six months after the State imposed its taxes, the Crow Tribal Council adopted its own severance tax. The Department of the Interior approved the Tribe's tax as applied to coal underlying the reservation proper but, because of a limitation in the Tribe's constitution, did not approve as to coal beneath the ceded strip. The Tribe again enacted a tax for coal mined on the ceded strip in 1982, and again the Department rejected the tax. In 1978, the Tribe brought a federal action for injunctive and declaratory relief against Montana and its counties, alleging that the State's severance and gross proceeds taxes were preempted by the IMLA and infringed on the Tribe's right to govern itself. The District Court dismissed the complaint. The Ninth Circuit reversed, holding that the Tribe's allegations, if proved, would establish that the IMLA preempted the State's taxes. The Court of Appeals noted, however, that the Tribe had paid none of Westmoreland's taxes and apparently would not be entitled to any refund in the event that the taxes were declared invalid. Crow Tribe v. Montana, 650 F. 2d 1 104, 1113, n. 13 (Crow I). In 1982, the Tribe and Westmoreland entered into an agreement, with Interior Department approval, under which Westmoreland agreed to pay the Tribe a tax equal to the State's then existing taxes, less any tax payments Westmoreland was required to pay to the State and its subdivisions. The agreement achieved, prospectively, the federal permission the Tribe had long sought. It allowed the Tribe to have an approved tax in place so that, if successful in the litigation against Montana, the Tribe could claim for itself any tax amounts Westmoreland would be ordered to pay into the District Court's registry pendente lite. It also enabled Westmoreland to avoid double taxation, and absolved the company from any tax payment obligation to the Tribe for the 1976-1982 period. In 1983, the District Court granted a motion by the Tribe and Westmoreland to deposit severance tax payments into the District Court's registry, pending resolution of the controversy over Montana's taxing authority. In 1987, the court granted the same interim relief for the gross proceeds taxes. Later that year, the United States intervened on behalf of the Tribe to protect its interests as trustee of the coal upon which Montana's taxes were levied. After trial, the District Court determined that federal law did not preempt the State's taxes on coal mined at the ceded strip. The Ninth Circuit again reversed, concluding that the taxes were both preempted by the IMLA and void for interfering with tribal self-governance. Crow Tribe v. Montana, 819 F. 2d 895, 903 (Crow II) . The Court of Appeals stressed, inter alia, that the State's taxes had at least some negative impact on the marketability of the Tribe's coal. Id., at 900. This Court summarily affirmed. When the case returned to the District Court in 1988, the court ordered distribution of the funds in its registry to the United States as trustee for the Tribe. Subsequently, the United States and the Tribe filed amended complaints against Montana and Big Horn County to recover taxes paid by Westmoreland prior to the 1983 and 1987 orders directing deposits into the court's registry. Neither the Tribe nor the United States requested, as additional or alternate relief, recovery for the Tribe's actual financial losses attributable to the State's taxes. After trial, the District Court concluded that the disgorgement remedy sought by the Tribe was not appropriate. Key to the court's decision was this Court's holding in Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, that both State and Tribe may impose severance taxes on on-reservation oil and gas production by a non-Indian lessee. Cotton Petroleum indicated that Montana's taxes on ceded strip coal were invalidated in Crow II not because the State lacked power to tax the coal at all, but because its taxes were "extraordinarily high." Id., at 186-187, n.17. The District Court also considered that Westmoreland would not have paid coal taxes to the Tribe before 1983, for Interior Department approval was essential to allow pass through to the company's customers. Furthermore, under the 1982 lease agreement, the Tribe and Westmoreland stipulated that Westmoreland would have no tax liability to the Tribe for the 1976-1982 period. Moreover, the deposited funds, Westmoreland's post-1982 tax payments, had been turned over in full to the United States for the benefit of the Tribe. The court further noted that Westmoreland did not timely endeavor to recover taxes paid to the State and counties, and the Tribe did nothing to prompt Westmoreland to initiate appropriate refund proceedings. The court received additional evidence concerning the effect of Montana's taxes on the marketability of Montana coal and described the parties' conflicting positions on that issue, but made no findings on the matter. The Ninth Circuit again reversed, holding that the District Court had ignored the law of the case and abused its discretion.

HELD: The restitution sought for the Tribe is not warranted. Pp. 14-21.

a) As a rule, a nontaxpayer may not sue for a refund of taxes paid by another. The Ninth Circuit evidently had that rule in mind when it noted, in Crow I, that the Tribe was apparently not entitled to any refund of taxes Westmoreland had paid to Montana. The Tribe maintains, however, that the disgorgement remedy it gained does not fall within the "refund" category. The Tribe's disgorgement claim must be examined in light of this Court's pathmarking decision in Cotton Petroleum Corp. v. New Mexico, 490 US 163. There, the Court clarified that neither the IMLA, nor any other federal law, categorically preempts state nondiscriminatory severance taxes on all extraction enterprises in a State, including on-reservation operations. Both State and Tribe have taxing jurisdiction over on-reservation production. The Court in Cotton Petroleum distinguished Crow II in a footnote,indicating that Montana had the power to tax Crow coal, but not at an exorbitant rate. Pp. 14-17.

b) The Tribe first argues that it, not Montana, should have received Westmoreland's 1975-1982 coal tax payments; therefore the proper remedy is to require the state to turn all taxes it collected from Westmoreland over to the Tribe. However, as Cotton Petroleum makes plain, neither the State nor the Tribe enjoys authority to tax to the total exclusion of the other. This situation differs from cases like Valley County v. Thomas, 109 Mont. 345, 97 P. 2d 345, in which only one jurisdiction could tax a particular activity. Moreover, the Tribe could not have taxed Westmoreland during the period in question, for the Interior Department had withheld the essential permission, further distancing this case from Valley County. The District Court correctly took these and other factors into account in holding disgorgement an exorbitant, and therefore inequitable, remedy. Pp.17-18.

c) The Tribe and the United States urge the negative impact of Montana's high taxes on the marketability of the Tribe's coal as an alternative justification for requiring Montana to disgorge the taxes collected from Westmoreland. This claim rests on the concern that, by taxing the coal actually mined and sold, Montana deprived the Tribe of its fair share of the economic rent. Again, however, the Tribe could not have exacted a tax from Westmoreland before 1983, because the Interior Department withheld approval. And no evidence suggests that Westmoreland would have agreed to pay even higher royalties to the Tribe in 1974, but for Montana's tax. It merits emphasis also that under Cotton Petroleum, Montana could have imposed a severance tax, albeit not one so extraordinarily high. The District Court did not consider awarding the Tribe, in lieu of all the 1975-1982 taxes Montana collected, damages based on actual losses the Tribe suffered. This was not an oversight. The complaint contained no prayer for compensatory damages. Nor did the proof establish entitlement to such relief. The Tribe concentrated on disgorgement as the desired remedy; it deliberately sought and proved no damages attributable to coal not sold because the State's tax made the price too high. Federal Rule of Civil Procedure 54(c) therefore could not aid the Tribe, for the Tribe had not shown entitlement to actual damages. While not foreclosing the District Court from any course the Federal Rules and that court's thorough grasp on this litigation may lead it to take, this Court is satisfied that the Court of Appeals improperly overturned the District Court's judgment. Pp. 18-21. 92 F. 3d 826, 98F. 3d 1194, reversed and remanded.


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