Tribal sovereignty,

a/k/a Tribal lottery,

a/k/a SCOTUS pomposity =

ZERO ENFORCEMENT =

NO TRIBAL POLICE FORCE =

NATO (No Action Talk Only)…and we keep on talking….

(Tribal Law Class: November 7, 2015)

  • Talton v. Mayes, 163U.S.376(1896)- tribal jurisdiction is supreme; federal laws when in conflict with Indian laws, are inapplicable to Indians - Jackpot.
  • Oklahoma Tax Commission v. United States, 319U.S.598(1943)– Indian land exempted from direct taxation by a state is also exempt from state estate taxes - Jackpot.
  • Williams v. Lee, 358U.S.217(1959) – state courts have no jurisdiction over Indian affairs – the proper forum is a tribal court- Jackpot.
  • Menominee Tribe v. United States, 391U.S.404(1968) – the tribe kept their historical hunting and fishing rights even after the federal government ceased to recognize the tribe which had several treaties with the fedreals which made n mention of hunting or fishing.= BIG JACKPOT
  • Bryan v. Itasca County, 426U.S.373(1976) – a State did not have the right to assess a tax on the property of a Native American Indian living on tribal land absent a specific congressional grant of authority to do so (18 USC 1151 – jackpot
  • Oliphant v. Suquamish Indian Tribe, 435U.S.191(1978) – DISASTER – 6/2 decision – one justice decided not to take part – he dare not vote - tribal courts have no jurisdiction to try and punish non-Indians. The Court refused to look at 18 USC 1152, instead stupidly and brazenly relied on the doctrine invented by CJ John Marshall – “domestic dependent nations” – that placed tribes in a subservient position. Common law reigned supreme. Not statutory law. – 500 rotten eggs on our face.
  • United States v. Wheeler, 435U.S.313(1978)– a Native punished by the tribal court can be punished by federal prosecutors and this does not trigger the Double Jeopardy cause although the Supreme Court recognized tribal authority and jurisdiction – 1000 rotten eggs on our face.
  • Santa Clara Pueblo v. Martinez, 436U.S.49(1978) – tribal law and tribal self-determination upheld.Jackpot.
  • Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439U.S.463(1979) – state law has some application over Indian affairs. Half-baked decision under PL 280 which the federals seemingly handed over federal authority to the States – here and there, nothing concrete, anything goes, no specific limits on PL 280.More egg on our faces. Not rotten, but smelly eggs.
  • Washington v. Confederated Tribes of Colville Reservation, 447U.S.134(1980)–READ THIS CONVOLUTED DECISION CAREFULLY.
  • 1. The Tribes' Commerce Clause claims are not "insubstantial," and are not rendered inescapably frivolous by the decisions inMescalero Apache Tribe v. Jones,411 U. S. 145, andMcClanahan v. Arizona State Tax Comm'n,411 U. S. 164, so as to defeat application of § 2281. In addition, the Tribes' attack on the official seizure of cigarettes bound for the reservations also triggers the three-judge requirement of § 2281. Accordingly, this Court has jurisdiction over the appeals under 28 U.S.C. § 1253, which authorizes a direct appeal to this Court from an order granting an injunction in a suit "required by any Act of Congress to be heard and determined by a district court of three judges." Pp.447 U. S. 145-149.
  • 2. The State's motion for a new trial on issues other than the motor vehicle tax and assumption of jurisdiction issues rendered nonfinal the disposition of all issues between the parties, and thus the State's appeal from the District Court's resolution of those two issues was timely under 28 U.S.C. § 2101(b), where it was filed within 60 days of the denial of the motion for a partial new trial but more than 60 days after the District Court's decision on those two issues. Accordingly, the appeal from such decision is properly before this Court. Pp.447 U. S. 149-150. – SEE HOW THE 60 DAY RULE GETS APLPLIED.
  • 3. The imposition of Washington's cigarette and sales taxes on on-reservation purchases by nonmembers of the Tribes is valid. Pp.447 U. S. 150-162.

(a) The Tribes have the power to impose their cigarette taxes on nontribal purchases, since the power to tax transactions occurring on trust lands and significantly involving a tribe or its members is a fundamental attribute of sovereignty which the tribes retain unless divested of it by federal law or necessary implication of their dependent status. Here, there is no federal statute showing any congressional departure from the view that tribes have such power, and tribal powers are not implicitly divested by virtue of the tribes' dependent status.(MARSHAL’S GHOST ALLOWS RESURRECTED. This is dicta not a decision, a by the way” dicta”…which has weight since 1832) Pp.447 U. S. 152-154.

(b) But the Tribes' involvement in the operation and taxation of cigarette marketing on the reservation does not oust the State from any power to exact its sales and cigarette taxes from nonmembers purchasing cigarettes at tribal smokeshops. Principles of federal Indian law, whether stated in terms of preemption, tribal self-government, or otherwise, do not authorize Indian tribes to market an exemption from state taxation to persons who would normally do their business elsewhere. Federal statutes, such as the Indian Reorganization Act of 1934, the Indian Financing Act of 1974, and the Indian Self-Determination and Education Assistance Act of 1975, while evidencing a congressional concern with fostering tribal self-government and economic development, do not go so far as to grant tribal enterprises selling goods to nonmembers an artificial competitive advantage over all other businesses in a State. Washington does not infringe the right of reservation Indians to make their own laws and be ruled by them merely because the result of imposing taxes will be to deprive the Tribes of revenues which they currently are receiving. Pp.447 U. S. 154-157.

(c) The Indian Commerce Clause does not, of its own force, automatically bar all state taxation of matters significantly touching the political and economic interests of the Tribes. (Stupids did not realize that Art. 1, sec. 8. Cl. 3 gives NO power to States) That Clause may have a more limited role to play in preventing undue discrimination against, or burdens on, Indian commerce, but Washington's taxes are applied in a nondiscriminatory manner(when was taxation on any commodity not discriminatory????)to all transactions within the State, and do not burden commerce that would exist on the reservations without respect to the tax exemption. Although the result of these taxes will be to lessen or eliminate tribal commerce with nonmembers, that market existed in the first place only because of a claimed exemption for these very taxes. Such taxes do not burden commerce that would exist on the reservations without respect to the tax exemption. P.447 U. S. 157.

(d) The Tribes failed to show that business at the smokeshops would be significantly reduced by a state tax without a credit as compared to a state tax with a credit (PPP stealth).Pp.447 U. S. 157-158.

(e) There is no direct conflict between the state taxes and the Tribes' cigarette ordinances so as to warrant invalidation of the state taxes on grounds of preemption or violation of the principle of tribal self-government. Pp.447 U. S. 158-159. (The SCOTUS must have been high on cocaine and booze when they wrote this part)

(f) The State may validly require, as a minimal burden, the tribal smokeshops to affix tax stamps purchased from the State to individual packages of cigarettes prior to the time of sale to nonmembers of the Tribe.Cf. Moe v. Salish & Kootenai Tribes,425 U. S. 463. P.447 U. S. 159.

(g) The State's recordkeeping requirements are validin toto.The Tribes failed to demonstrate that such requirements for exempt sales are not reasonably necessary as a means of preventing fraudulent transactions. Pp.447 U. S. 159-160. (Tribal self-government and sovereignty conveniently ignored).

(h) The State's interest in taxing nontribal purchasers outweighs any tribal interest that may exist in preventing the State from imposing its taxes. Pp.447 U. S. 160-161.( After stealing our lands, they still want to steal – Took Took tribe has more rights?)

(i) The State's interest in enforcing its taxes is sufficient to justify its seizure of unstamped cigarettes as contraband if the Tribes do not cooperate in collecting the taxes. Pp.447 U. S. 161-162.

4. The motor vehicle and mobile home, camper, and trailer taxes cannot properly be imposed upon vehicles owned by the Tribes or their members and used both on and off the reservations.Moe, supra.Pp.447 U. S. 162-164.

5. The District Court erred in holding that the State's assumption of civil and criminal jurisdiction over the Makah and Lummi Reservations was unlawful.Washington v. Yakima Indian Nation,439 U. S. 463, controlling.P.447 U. S. 164.

446 F. Supp. 1339, affirmed in part and reversed in part. . Little bit rotten eggs,little bit jackpot.

YOU WOULD THINK THE SCOTUS IS THE FINAL ARBITER OF OUR RIGHTS, right? W R O N G -

  • White Mountain Apache Tribe v. Bracker, 448U.S.136(1980) – federal taxes applied to a non-Indian contractor working on an Indian Reservation. Why didn’t this contractor become a tax exempt tribal corporation or an enrolled tribal member?

Montana v. United States, 450U.S.544(1981) - “exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation.” Killed by the decision of Oliphant. Same Rehnquist Court. CJ Marshal’s ghost resurrected agin with this bovine excrement called “domestic dependent wards.”

  • Merrion v. Jicarilla Apache Tribe, 455U.S.130(1982) – Indian tribes can tax non-Indian business conducted on tribal land as an extension of tribal sovereignty. JACKPOT. Compare Bracker and Bryanabove !
  • Ramah Navajo School Bd., Inc. v. Bureau of Revenue of N.M., 458U.S.832(1982) - a State is not authorized to impose taxes on a construction company building a school on a native American Indian Reservation. Jackpot. Compare Bracker and Bryan above.
  • New Mexico v. Mescalero Apache Tribe, 462U.S.324(1983) – Application of New Mexico’s laws to on-reservation fishing by nonmembers of the Tribe is preempted by the operation of federal law. State laws win - WHY didn’t these nonmembers apply for tribal membership when they chose to go on-reservation fishing obviously looking for advantages.
  • National Farmers Union Ins. Cos. v. Crow Tribe, 468U.S.1315(1984) – Your homework. Read, examine and analyze this crazy decision by Justice Rehnquist who said in his decision that he has “no answers” to this issue.
  • Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467U.S.138(1984)
  • 1. No federal law or policy required the North Dakota courts to forgo in this case the jurisdiction recognized in Vermillion, supra.
  • (a) The exercise of state court jurisdiction in this case would not interfere with the right of tribal Indians to govern themselves under their own laws. As a general matter, tribal self-government is not impeded when a State allows an Indian to seek relief against a non-Indian concerning a claim arising in Indian country. The exercise of state jurisdiction is particularly compatible with tribal autonomy when, as here, the suit is brought by the tribe itself and the tribal court lacked jurisdiction over the claim at the time the suit was instituted.
  • (b) Nor would the exercise of state jurisdiction here be inconsistent with the federal and tribal interests reflected in North Dakota's Enabling Act or in Pub.L. 280. The legislative record suggests only that the Enabling Act's phrase "absolute [congressional] jurisdiction and control" was meant to foreclose state regulation and taxation of Indians and their lands, not that Indians were to be prohibited from entering state courts to pursue judicial remedies against non-Indians. Public Law 280 does not either require North Dakota to disclaim the basic jurisdiction recognized in Vermillionor authorize it to do so. Nothing in Pub.L. 280's language or legislative history indicates that it was meant to divest States of preexisting and otherwise lawfully assumed jurisdiction.
  • 2. Where it is uncertain whether the North Dakota Supreme Court's interpretation of Chapter 27-19 rested on a misconception of federal law, its judgment will be vacated, and the case will be remanded to that court for reconsideration of the state law question.
  • (a) The court's incorrect assumption that Pub.L. 280 and the Civil Rights Act of 1968 either authorized North Dakota to disclaim jurisdiction or affirmatively forbade the exercise of jurisdiction absent tribal consent appears to have been the sole basis relied upon by the court to avoid holding the jurisdictional disclaimer unconstitutional as applied in this case.
  • (b) The manner in which the court rejected the availability of "residuary jurisdiction" leaves open the possibility that, despite the court's references to state law, it regarded federal law as an affirmative bar to the exercise of jurisdiction here and interpreted state law to avoid a perceived conflict.
  • (c) The conclusion that the North Dakota Supreme Court's state law decision may have rested on federal law is buttressed by prudential considerations. If that court is not given an opportunity to reconsider its conclusions with the proper understanding of federal law, this Court, contrary to the fundamental rule that it will not reach constitutional questions in advance of the necessity of deciding them, will be required to decide whether North Dakota has denied petitioner equal protection under the Fourteenth Amendment. Pp.467 U. S. 157-158.
  • Cotton Petroleum Corp. v. New Mexico, 490U.S.163(1989)
  • Held: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.
  • (a) Under this Court's modern decisions, (to hell with the old even if it was pro-Indian, right) on-reservation oil and gas production by non-Indian lessees is subject to nondiscriminatory state taxation unless Congress has expressly or impliedly acted to preempt the state taxes.See, e.g., Helvering v. Mountain Producers Corp.,303 U. S. 376,303 U. S. 386-387.
  • (b) The state taxes in question are not preempted by federal law, even when it is given the most generous construction under the relevant preemption 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 preexisting 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 U. S. 759,471 U. S. 767, n. 5, distinguished. The fact that the 1938 Act's statutory predecessor expressly waived immunity from state taxation of oil and gas lessees on reservations demonstrates that there is no history of tribal independence from such taxation, while the 1938 Act's omission of that waiver 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 express congressional authorization.White Mountain Apache Tribe v. Bracker,448 U. S. 136, andRamah Navajo School Bd., 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.
  • (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 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 on 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 service 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..
  • (d) The express language, distinct applications, and judicial interpretation of the Interstate Commerce and Indian Commerce Clauses establish that Indian tribes may not be treated as "States" for tax apportionment purposes.
  • Brendale v. Confederated Yakima Indian Nation, 492U.S.408(1989)

Duro v. Reina, 495U.S.676(1990) – Indian tribes could not prosecute Indians who were members of other tribes for crimes committed by those nonmember Indians on their reservations. The decision was not well received by the tribes, because it defanged their criminal codes by depriving them of the power to enforce them against anyone except their own members. In response, Congress amended a section of theIndian Civil Rights Act,25 U.S.C.§1301, to include the power to "exercise criminal jurisdiction over all Indians" as one ofthe powers of self-government. Egg on the face first, then a jackpot. BUT what about the litigant who suffered?

Oklahoma Tax Comm'n v. Citizen Band of Potawatomi Tribe of Okla., 498U.S.505(1991) – tribe was not subject to state sales taxes on sales made to tribal members, but that they were liable for taxes on sales to non-tribal members.[1]

  • Yakima v. Confederated Tribes, 502U.S.251(1992)
  • Dept. of Taxation and Finance of N.Y. v. MilhelmAttea & Bros., Inc., 512U.S.61(1994)

C & L Enterprises, Inc. v. Citizen Band, Potawatomi Indian Tribe of Okla., 532U.S.411(2001) – the tribe waived its sovereign immunity when it agreed to a contract containing an arbitration agreement. – Improper legal advice from the get go.