#11470 - Jurisdiction - Federal Indian Law

Rules regarding conflicts between state and tribal jurisdiction

1. outside of Indian country, a tribe and its members are generally subject to state law like anyone else

   1. unless a federal statute or treaty provide otherwise

   2. tribes are immune from suits by states

Establishing the continuing limitations on state authority in Indian country in the modern era

Williams v. Lee (1959)

1. P owned store on reservation, D was Indian, P sued D in state court and won, D appealed claiming state court had no jurisdiction

2. Hold: State court had no jurisdiction here

3. Rules:

   1. All transactions where P is non-Indian, D is Indian, and it arises on reservation, the tribe will have jurisdiction

   2. The infringement test: Whether the state action infringed on the right of the reservation Indians to make their own laws and to be ruled by them

      1. Court says in this case it does infringe, therefore state had no jurisdiction here

      2. This case is brief, likely bc huge civil rights cases were being decided at the time and court was busy with those

There is a movement away from inherent sovereignty to a reliance on federal preemption by looking to treaties and statutes – the preemption arguably takes away some sovereignty by implying that there is state power unless its preempted by the government

Warren Trading Post v. Arizona State Tax Commission

1. AZ tried to implement a tax on a business that did its business with Indians on the Navajo reservation

2. Hold: Tax not allowed

   1. Reasoning

      1. court basically uses preemption to not allow this tax

         1. but its strange Indian law preemption

            1. looks like field preemption

            2. but requires a lower threshold

               1. as in this case: field preemption usually requires overwhelming federal statutory scheme

                  1. doesn’t exist here, court finds it in the following:

                     Cong. gave Navajos the land, Congress has left Navajos to run their affairs, could place burdens on tribes which could mess with Congress’s stat. scheme, Congress hasn’t left state with any duties toward tribes so unlikely Congress meant to allow taxes

3. real probable background here: tribal sovereignty

McClanahan v. State Tax Commission of Arizona

1. case by case rule set here becomes general rule: income earned on reservation cannot be taxed by the state

2. Change in tone from Williams and Lee, dialing it back a bit

3. Looks to legislative and treaty history etc but also does a preemption analysis like Trading Post

4. Just as in Trading Post there is no federal statute or treaty that immunizes a member of the tribe from state income tax, but the court uses this different Indian Law preemption, which requires less

PL 280

1. Original reason for this law was for states to have more tools for lawlessness on reservations

2. it’s a product of the termination period

3. the goal was to give states the primary role in Indian country

   1. began by giving a handful of states authority over crimes that the federal government would usually prosecute

4. thought that federal government was overstretched and that states could do a better job

   1. states wanted the law in order to stop spill over crime in areas near reservations

   2. tribes were opposed

      1. the law was later changed to require tribal approval

5. its despised by everyone

   1. tribes don’t like states taking away their authority to punish crimes

      1. and they have jurisdiction but they don’t get funding bc they are a PL 280 state so it hurts their ability to prosecute crime on the reservation

   2. states don’t like it bc its an unfunded mandate

      1. there are some exceptions – some states and tribes have worked well together

6. Bryan v. Itasca

   1. Minn. is trying to tax mobile home on land held in trust

   2. Big Rule: without Congressional authorization state cannot tax land in trust or income

   3. Minn. argues that PL 280 allows the tax (and plain language would make it seem that it does)

      1. ct says that PL 280 allows jurisdiction for private civil disputes but not to put state regulatory schemes (like taxes) on reservations

         1. this is different than criminal side of PL 280 where state criminal law applies

         2. ct assumed that state common law, rather than statutes would apply

   4. Reasoning:

      1. Legislative history – its super sparse – random statement from some bureaucrat in Indian Affairs office

      2. In pari materia – legislature created termination they knew how to explicitly show that they intended to subject Indians to state laws and taxation

         1. but the court looked to unrelated statute to get this

      3. Pragmatic reasoning – If the court interpreted PL 280 to apply state civil laws/regs to tribes it would pretty much destroy the tribes ability to operate as a functioning government

         1. and there is no reason to do this bc government has abandoned this policy – most everyone agrees it was stupid

            Issue that lingers after this case: where do you draw the line between criminal jurisdiction and civil jurisdiction: sometimes not obvious

7. California v. Cabazon Band of Mission Indians

   1. 2 California tribes were operating bingo games that were forbidden under California law

      1. CA only allowed as charitable game etc.

   2. There are misdemeanor punishments for not following this law, the ISSUE: does the tribe have to follow this law

   3. Hold: no.

      1. To determine whether a state law applies in a PL 280 state must look to the class of law:

         1. if act is allowed with strings attached its probably regulatory – does not apply to tribes

         2. if act is completely prohibited then probably criminal – does apply to tribes

      2. In this case California has gambling, lotto, horse racing etc, so gambling is just regulated, not prohibited so tribes are allowed to have their bingo games

   4. Aftermath: difficult rule to parse out, courts going in different directions

Beginning to challenge the idea that the state has no authority in Indian country

1. Washington v. Confederated Tribes of the Colville Reservation (1989)

   1. Can Washington require the tribe to enforce the state tax against non tribal members on cigarettes sold on the reservation

   2. Holding: Yes

      1. (First the court holds that the tribe has the power to tax itself)

         1. fundamental attribute of sovereignty which the tribes maintain unless divested

   3. The court begins with a very different premise than that in Williams v. Lee: states have power on reservations unless its against federal policy

      1. the baseline has become: does the tribe have an exemption

   4. Rather than the simple preemption analysis done in Warren, the court is doing more of a preemption with balancing test: state interest v. tribal and federal interest:

      1. more searching preemption: looks to very specific statutes and their meaning

         1. here the cigarette sales are supported by federal policy and funding – but nothing specific enough to preempt the tax the court says

      2. value generated factor

         1. the fact that here the value was not generated by the tribe seems to play a big part in the court lowering the tribe’s interest

         2. also the fact that the court saw this as people just avoiding taxes

            1. though silly bc between states this happens all the time

      3. Legal incidence test

         1. the responsibility to pay the tax is on non-members and those non-members benefitting from the lack of tax receive benefits from the state

            1. thus the state’s interest is higher bc they are giving benefits to these people but not collecting taxes

            2. much better chance of getting your tax OK’s if it falls on non-Indians

               1. unfortunately, this does have huge effects on tribe that court doesn’t look at

   5. Ct. also holds that if a tax is valid, the state may impose some minimal burdens to collect the tax

      1. here they have record keeping requirements that court says is no big deal

         1. but actually substantial burden to the tribe and likely will make people even less interested in going to reservation to buy cigs

         2. also subjects the tribe to oversight by state – pretty big intrusion into their sovereign power

Returning a little to preemption as the more predominant test, though balancing here too:

1. White Mountain Apache v. Bracker

   1. Tribe’s company has a contract with non Indian contractor that does timber removal on the reservation – state wants to tax vehicles and gas, which would apply to the contractor

   2. 2 barriers to state law applying on tribal lands

      1. infringement on the right of reservation Indians to make their own laws and be ruled by them (Williams)

      2. preemption

   3. Holding: Taxes not OK here

      1. Federal/Tribal Interest

         1. there is a comprehensive federal scheme

         2. the tax would take away from tribal revenues

         3. value generated – the trees are a natural resource on tribal lands

            1. unlike the cigs

      2. State Interest

         1. the state is not paying for the contractor’s benefits like roads – the feds are

         2. this is all happening on the reservation

            general interest in raising revenues is not enough to justify state taxation of on reservation activity

            New Mexico v. Mescalero Apache Tribe

2. Tribe has with the help of federal government created a hunting resort, state wants its hunting regulations to apply to non-Indians

3. Holding: State cannot apply its regulations

   1. Again a balancing test

      1. some different factors:

         1. federal protection of tribal interests

      2. Value generated

         1. the tribe is putting input and energy to the project

            1. that’s more positive than cigs

      3. State really only has a revenue raising interest

         1. hunting licenses etc

      4. No real effect off the reservation

         1. no functions or services that the state has provided

            1. the whole thing was basically funded by the feds including the game

      5. state regulations would swamp tribal regulations bc they conflicted a lot

      6. Favorable toward tribes that this was fish and gaming

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