Merrion V Jicarillo
Merrion V Jicarillo
Merrion V Jicarillo
894 Page 1
455 U.S. 130, 102 S.Ct. 894, 71 L.Ed.2d 21
(Cite as: 455 U.S. 130, 102 S.Ct. 894)
of self-government and territorial management which enables tribal government to raise rev-
enues for its essential services. Indian Reorganization Act, 16, 25 U.S.C.A. 476.
[2] Indians 209 225
209 Indians
209V Government of Indian Country, Reservations, and Tribes in General
209k225 k. Taxes Imposed by Tribe. Most Cited Cases
(Formerly 209k2)
Power of Indian tribe to tax does not derive solely from Indian tribe's power to exclude
non-Indians from tribal lands; instead, it derives from tribe's general authority as sovereign, to
control economic activity within its jurisdiction and to defray cost of providing governmental
services by requiring contributions from persons or enterprises engaged in economic activities
within that jurisdiction. Indian Reorganization Act, 16, 25 U.S.C.A. 476.
[3] Indians 209 120
209 Indians
209I In General
209k120 k. Regulation of Intercourse with Indians. Most Cited Cases
(Formerly 209k33)
Indians 209 225
209 Indians
209V Government of Indian Country, Reservations, and Tribes in General
209k225 k. Taxes Imposed by Tribe. Most Cited Cases
(Formerly 209k33, 209k32(9))
Where non-Indian oil and gas lessees availed themselves of substantial privilege of carry-
ing on business on Indian reservation and lessees benefited from provision of police protec-
tion and other governmental services, as well as from advantages of civilized society that were
assured by existence of tribal government, there was nothing exceptional in requiring lessees
to contribute through taxes to general cost of tribal government. Indian Reorganization Act,
16, 25 U.S.C.A. 476.
[4] Indians 209 225
209 Indians
209V Government of Indian Country, Reservations, and Tribes in General
209k225 k. Taxes Imposed by Tribe. Most Cited Cases
(Formerly 209k32(9), 209k32)
Mere fact that Indian tribe which imposed a severance tax on oil and gas production on tri-
bal reservation land also enjoyed rents and royalties as lessor of mineral lands did not under-
mine tribe's authority to impose severance tax. Indian Reorganization Act, 16, 25 U.S.C.A.
476.
[5] Indians 209 223
209 Indians
209V Government of Indian Country, Reservations, and Tribes in General
209k223 k. Regulation of Non-Members by Tribe or Tribal Government. Most Cited
Cases
(Formerly 209k33)
Indians 209 225
209 Indians
209V Government of Indian Country, Reservations, and Tribes in General
209k225 k. Taxes Imposed by Tribe. Most Cited Cases
(Formerly 209k33)
Indian tribe's authority to tax non-Indians who conduct business on reservation does not
simply derive from tribe's power to exclude such persons, but is inherent power necessary to
tribal self-government and territorial management. Indian Reorganization Act, 16, 25
U.S.C.A. 476.
[6] Indians 209 120
209 Indians
209I In General
209k120 k. Regulation of Intercourse with Indians. Most Cited Cases
(Formerly 209k33)
Indians 209 225
209 Indians
209V Government of Indian Country, Reservations, and Tribes in General
209k225 k. Taxes Imposed by Tribe. Most Cited Cases
(Formerly 209k33)
Indian tribe's authority to tax nonmembers is subject to constraints not imposed on other
governmental entities: federal government can take away this power and tribe must obtain ap-
proval of Secretary of Interior before any tax on nonmembers can take effect; these additional
constraints minimize potential concern that Indian tribes will exercise power to tax in unfair
or unprincipled manner and ensure that any exercise of tribal power to tax will be consistent
with national policies. Indian Reorganization Act, 16, 25 U.S.C.A. 476.
[7] Indians 209 223
209 Indians
209V Government of Indian Country, Reservations, and Tribes in General
209k223 k. Regulation of Non-Members by Tribe or Tribal Government. Most Cited
Cases
(Formerly 209k33)
Indians 209 225
209 Indians
209V Government of Indian Country, Reservations, and Tribes in General
209k225 k. Taxes Imposed by Tribe. Most Cited Cases
(Formerly 209k33)
Source of Indian tribe's authority to tax non-Indians is not limited to tribe's power to ex-
clude such persons from tribal lands, since limiting tribes' authority to tax in that manner con-
tradicts conception that Indian tribes are domestic, dependent nations, as well as common un-
derstanding that sovereign taxing power is tool for raising revenue necessary to cover costs of
government. Indian Reorganization Act, 16, 25 U.S.C.A. 476.
[8] Indians 209 120
209 Indians
209I In General
209k120 k. Regulation of Intercourse with Indians. Most Cited Cases
(Formerly 209k33)
Indians 209 223
209 Indians
209V Government of Indian Country, Reservations, and Tribes in General
209k223 k. Regulation of Non-Members by Tribe or Tribal Government. Most Cited
Cases
(Formerly 209k33)
Although there is significant territorial component to tribal power in that tribe has no au-
thority over nonmember until nonmember enters tribal lands or conducts business with tribe,
that territorial component to Indian taxing power does not mean that tribal authority to tax de-
rives solely from tribe's power to exclude nonmembers from tribal lands. Indian Reorganiza-
tion Act, 16, 25 U.S.C.A. 476.
[9] Indians 209 225
209 Indians
209V Government of Indian Country, Reservations, and Tribes in General
209k225 k. Taxes Imposed by Tribe. Most Cited Cases
(Formerly 209k33)
Even if Indian tribe's authority to tax nonmembers derives solely from its power to ex-
clude non-Indians from reservation, Indian tribe has authority to impose severance tax on oil
and gas production on tribal reservation land. Indian Reorganization Act, 16, 25 U.S.C.A.
476.
[10] Indians 209 223
209 Indians
209V Government of Indian Country, Reservations, and Tribes in General
209k223 k. Regulation of Non-Members by Tribe or Tribal Government. Most Cited
Cases
(Formerly 209k33)
Indians 209 225
209 Indians
209V Government of Indian Country, Reservations, and Tribes in General
209k225 k. Taxes Imposed by Tribe. Most Cited Cases
(Formerly 209k33)
Nonmembers who lawfully enter tribal lands remain subject to tribe's power to exclude
them and this power necessarily includes lesser power to place conditions on entry, on contin-
ued presence, or on reservation conduct, such as tax on business activities conducted on reser-
vation. Indian Reorganization Act, 16, 25 U.S.C.A. 476.
[11] Indians 209 223
209 Indians
209V Government of Indian Country, Reservations, and Tribes in General
209k223 k. Regulation of Non-Members by Tribe or Tribal Government. Most Cited
Cases
(Formerly 209k33)
Indians 209 225
209 Indians
209V Government of Indian Country, Reservations, and Tribes in General
209k225 k. Taxes Imposed by Tribe. Most Cited Cases
(Formerly 209k33)
When Indian tribe grants non-Indian right to be on Indian land, tribe agrees not to exercise
its ultimate power to oust non-Indian as long as non-Indian complies with initial conditions of
entry; however, it does not follow that lawful property right to be on Indian land also immun-
izes non-Indian from tribe's exercise of its lesser included power to tax or to place other con-
ditions on non-Indian's conduct or continued presence on reservation. Indian Reorganization
Act, 16, 25 U.S.C.A. 476.
[12] Indians 209 120
209 Indians
209I In General
209k120 k. Regulation of Intercourse with Indians. Most Cited Cases
(Formerly 209k33)
Nonmember who enters jurisdiction of Indian tribe remains subject to risk that tribe will
later exercise its sovereign power. Indian Reorganization Act, 16, 25 U.S.C.A. 476.
[13] Indians 209 120
209 Indians
209I In General
Differences in attributes of sovereignty between federal, state and local governments and
of Indian tribes do not alter principles for determining whether any of those governments has
waived through contract the sovereign power to impose tax. Indian Reorganization Act, 16,
25 U.S.C.A. 476.
[21] Constitutional Law 92 1120
92 Constitutional Law
92VII Constitutional Rights in General
92VII(B) Particular Constitutional Rights
92k1118 Freedom of Contract; Liberty of Contract
92k1120 k. Exercise of Police Power in General; Public Interest or Welfare in
General. Most Cited Cases
(Formerly 92k89(1))
Without regard to its source, sovereign power, even when unexercised, is enduring pres-
ence that governs all contracts subject to sovereign's jurisdiction, and will remain intact unless
surrendered in unmistakable terms.
[22] Indians 209 106
209 Indians
209I In General
209k106 k. Authority Over and Regulation of Tribes in General. Most Cited Cases
(Formerly 209k2)
To presume that Indian tribe forever waives right to exercise one of its sovereign powers
unless it expressly reserves the right to exercise that power in commercial agreement turns
concept of sovereignty on its head. Indian Reorganization Act, 16, 25 U.S.C.A. 476.
[23] Indians 209 225
209 Indians
209V Government of Indian Country, Reservations, and Tribes in General
209k225 k. Taxes Imposed by Tribe. Most Cited Cases
(Formerly 209k32(9), 209k32)
Proper respect both for tribal sovereignty itself and for plenary authority of Congress in
this area cautions that Supreme Court tread lightly in absence of clear indications of legislat-
ive intent to deprive Indian tribes of their authority to impose severance tax on oil and gas
production on tribal reservation land. 25 U.S.C.A. 396a-396g, 396b, 398a-398e, 398c; Nat-
ural Gas Policy Act of 1978, 110(a), (c)(1), 15 U.S.C.A. 3320(a), (c)(1).
[24] Indians 209 212
209 Indians
209V Government of Indian Country, Reservations, and Tribes in General
209k212 k. Preemption. Most Cited Cases
(Formerly 209k32(9), 209k32)
3320(a), (c)(1).
[28] Indians 209 225
209 Indians
209V Government of Indian Country, Reservations, and Tribes in General
209k225 k. Taxes Imposed by Tribe. Most Cited Cases
(Formerly 209k32(9), 209k32)
Federal government has not divested Indian tribe of its inherent authority to tax mining
activities on its land, whether this authority derives from tribe's power of self-government or
from its power to exclude. Indian Reorganization Act, 16, 25 U.S.C.A. 476.
[29] Commerce 83 62.71
83 Commerce
83II Application to Particular Subjects and Methods of Regulation
83II(E) Licenses and Taxes
83k62.70 Taxation in General
83k62.71 k. In General. Most Cited Cases
(Formerly 83k62.70)
State tax may violate negative implications of interstate commerce clause by unduly
burdening or discriminating against interstate commerce. U.S.C.A.Const.Art. 1, 8, cl. 3.
[30] Commerce 83 62.71
83 Commerce
83II Application to Particular Subjects and Methods of Regulation
83II(E) Licenses and Taxes
83k62.70 Taxation in General
83k62.71 k. In General. Most Cited Cases
(Formerly 83k62.70)
Judicial review of state taxes under interstate commerce clause is intended to ensure that
states do not disrupt or burden interstate commerce when Congress' power remains unexer-
cised: it protects free flow of commerce, and thereby safeguards Congress' latent power from
encroachment by the several states. U.S.C.A.Const.Art. 1, 8, cl. 3.
[31] Commerce 83 62.71
83 Commerce
83II Application to Particular Subjects and Methods of Regulation
83II(E) Licenses and Taxes
83k62.70 Taxation in General
83k62.71 k. In General. Most Cited Cases
(Formerly 83k62.70)
Once Congress acts, courts are not free to review state taxes or other regulations under
dormant commerce clause; when Congress has struck balance it deems appropriate, courts are
no longer needed to prevent states from burdening commerce, and it matters not that courts
would invalidate state tax or regulation under commerce clause in absence of congressional
action. U.S.C.A.Const.Art. 1, 8, cl. 3.
[32] Commerce 83 10
83 Commerce
83I Power to Regulate in General
83k2 Constitutional Grant of Power to Congress
83k10 k. Nonexercise of Power by Congress. Most Cited Cases
Courts are final arbiters under commerce clause only when Congress has not acted.
U.S.C.A.Const.Art. 1, 8, cl. 3.
[33] Commerce 83 64.5
83 Commerce
83II Application to Particular Subjects and Methods of Regulation
83II(E) Licenses and Taxes
83k63 Licenses and Privilege Taxes
83k64.5 k. Production and Severance Taxes. Most Cited Cases
Since Congress has affirmatively acted by providing series of federal checkpoints that
must be cleared before Indian tribal tax can take effect, it was not necessary for Supreme
Court to determine whether Indian-imposed severance tax violated interstate commerce
clause. Indian Reorganization Act, 16, 17, 25 U.S.C.A. 476, 477; U.S.C.A.Const.Art. 1,
8, cl. 3.
[34] Indians 209 225
209 Indians
209V Government of Indian Country, Reservations, and Tribes in General
209k225 k. Taxes Imposed by Tribe. Most Cited Cases
(Formerly 209k32(9), 209k2)
Although Congress retains plenary power to limit tribal taxing authority or to alter current
scheme under which Indian tribes may impose taxes, it is not Supreme Court's function nor its
prerogative to strike down tax that has traveled through precise channels established by Con-
gress and has obtained specific approval of Secretary of Interior. Indian Reorganization Act,
16, 17, 25 U.S.C.A. 476, 477; U.S.C.A.Const.Art. 1, 8, cl. 3.
[35] Commerce 83 64.5
83 Commerce
83II Application to Particular Subjects and Methods of Regulation
83II(E) Licenses and Taxes
83k63 Licenses and Privilege Taxes
83k64.5 k. Production and Severance Taxes. Most Cited Cases
Severance tax imposed by Indian tribe on oil and gas production on tribal reservation land
does not violate interstate commerce clause, since tax does not treat minerals transported away
from reservation differently than it treats minerals that might be sold on reservation, nor does
the tax ordinance exempt minerals ultimately received by individual members of tribe.
U.S.C.A.Const.Art. 1, 8, cl. 3.
[36] Commerce 83 64.5
83 Commerce
83II Application to Particular Subjects and Methods of Regulation
83II(E) Licenses and Taxes
83k63 Licenses and Privilege Taxes
83k64.5 k. Production and Severance Taxes. Most Cited Cases
Although ordinance by which Indian tribe imposed severance tax on oil and gas produc-
tion on tribal reservation land exempted minerals received by tribe as in-kind payments on
leases in use for tribal purposes, that exemption merely avoided administrative make-work
that would ensue if tribe, as local government, taxed amount of minerals that tribe, as com-
mercial partner, received in royalty payments, and, therefore, that exemption could not be
deemed discriminatory preference for local commerce. U.S.C.A.Const.Art. 1, 8, cl. 3.
**898 *130 Syllabus FN*
FN* The syllabus constitutes no part of the opinion of the Court but has been prepared
by the Reporter of Decisions for the convenience of the reader. See United States v.
Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.
Respondent Indian Tribe, pursuant to its Revised Constitution (which had been approved
by the Secretary of the Interior (Secretary) as required by the Indian Reorganization Act of
1934), enacted an ordinance (also approved by the Secretary) imposing a severance tax on oil
and gas production on the tribal reservation land. Oil and gas received by the Tribe as in-kind
royalty payments from lessees of mineral leases on the reservation are exempted from the tax.
Petitioners, lessees under Secretary-approved long-term leases with the Tribe to extract oil
and natural gas deposits on reservation land, brought separate actions in Federal District Court
to enjoin enforcement of the tax. The District Court, consolidating the actions, entered a per-
manent injunction, ruling that the Tribe had no authority to impose the tax, that only state and
local authorities had the power to tax oil and gas production on Indian reservations, and that
the tax violated the Commerce Clause. The Court of Appeals reversed, holding that the taxing
power is an inherent attribute of tribal sovereignty that has not been divested by any treaty or
Act of Congress, and that there was no Commerce Clause violation.
Held:
1. The Tribe has the inherent power to impose the severance tax on petitioners' mining
activities as part of its power to govern and to pay for the costs of self-government. Pp.
901-909.
(a) The power to tax is an essential attribute of Indian sovereignty because it is a necessary
instrument of self-government and territorial management. This power enables a tribal gov-
ernment to receive revenues for its essential services. The power does not derive solely from
the Tribe's power to exclude non-Indians from tribal lands but from the Tribe's general author-
ity, as sovereign, to control economic activities within its jurisdiction, and to defray the cost
of providing governmental services by requiring contributions from persons or enterprises en-
gaged in such activities. Here, petitioners, who have availed themselves of *131 the privilege
of carrying on business on the reservation, benefit from police protection and other govern-
mental services, as well as from the advantages of a civilized society assured by tribal govern-
ment. Under these circumstances, there is nothing exceptional in requiring petitioners to con-
tribute through taxes to the general cost of such government. The mere fact that the Tribe en-
joys rents and royalties as the lessor of the mineral lands does not undermine its authority to
impose the tax. Pp. 901-905.
(b) Even if the Tribe's power to tax were derived solely from its power to exclude non-
Indians from the reservation, the Tribe has the authority to impose the severance tax. Non-
Indians who lawfully enter tribal lands remain subject to a tribe's power to exclude them,
which power includes the lesser power to tax or place other conditions on the non-Indian's
conduct or continued presence on the reservation. The Tribe's role as commercial partner with
petitioners should not be confused with its role as sovereign. It is one thing to find that the
Tribe has agreed to sell the right to use the land and take valuable minerals from it, and quite
another to find that the Tribe has abandoned its sovereign powers simply because it has not
expressly reserved them through a contract. To presume that a sovereign forever waives the
right to exercise one of its powers unless it expressly reserves the right to exercise that power
in a commercial agreement turns the concept of sovereignty on its head. Pp. 905-907.
**899 (c) The Federal Government did not deprive the Tribe of its authority to impose the
severance tax by Congress' enactment of the 1938 Act establishing the procedures for leasing
oil and gas interests on tribal lands. Such Act does not prohibit the Tribe from imposing the
tax when both the tribal Constitution and the ordinance authorizing the tax were approved by
the Secretary. Nor did the 1927 Act permitting state taxation of mineral leases on Indian reser-
vations divest the Tribe of its taxing power. The mere existence of state authority to tax does
not deprive an Indian tribe of its power to tax. Moreover, the severance tax does not conflict
with national energy policies. To the contrary, the fact that the Natural Gas Policy Act of 1978
includes taxes imposed by an Indian tribe in its definition of costs that may be recovered un-
der federal energy pricing regulations, indicates that such taxes would not contravene such
policies and that the tribal authority to do so is not implicitly divested by that Act. Pp.
907-909.
2. The severance tax does not violate the negative implications of the Commerce Clause.
Pp. 909-913.
(a) Courts are final arbiters under the Commerce Clause only when Congress has not ac-
ted. Here, Congress has affirmatively acted by providing a series of federal checkpoints that
must be cleared before a tribal *132 tax can take effect, and in this case the severance tax was
enacted in accordance with this congressional scheme. Pp. 910-911.
(b) Even if judicial scrutiny under the Commerce Clause were necessary, the challenged
tax would survive such scrutiny. The tax does not discriminate against interstate commerce
since it is imposed on minerals either sold on the reservation or transported off the reservation
before sale. And the exemption for minerals received by the Tribe as in-kind payments on the
leases and used for tribal purposes merely avoids the administrative make-work that would
ensue if the Tribe taxed the minerals that it, as a commercial partner, received in royalty pay-
ments, and thus cannot be deemed a discriminatory preference for local commerce. Pp.
911-912.
617 F.2d 537, 10th Cir., affirmed.
Jason W. Kellahin, Santa Fe, N.M., for petitioners in 80-11.
John R. Cooney, Albuquerque, N.M., for petitioners in 80-15.
Robert J. Nordhaus, Albuquerque, N.M., and Louis F. Claiborne, Washington, D.C., for re-
spondents.
FN2. The proviso reads as follows: this order shall not be so construed as to deprive
any bona fide settler of any valid rights he may have acquired under the law of the
United States providing for the disposition of the public domain. 1 C. Kappler, supra,
at 875.
The Tribe is organized under the Indian Reorganization Act of 1934, ch. 576, 48 Stat. 984,
25 U.S.C. 461 et seq., which authorizes any tribe residing on a reservation to adopt a con-
stitution and bylaws, subject to the approval of the Secretary of the Interior (Secretary).FN3
The Tribe's first Constitution, approved by the Secretary on August 4, 1937, preserved all
powers conferred by 16 of the Indian Reorganization Act of 1934, ch. 576, 48 Stat. 987, 25
U.S.C. 476. In 1968, the Tribe revised its Constitution to specify:
FN3. The Tribe is also chartered under the Indian Reorganization Act of 1934, ch. 576,
48 Stat. 988, 25 U.S.C. 477, which permits the Secretary to issue to an Indian tribe a
charter of incorporation that may give the tribe the power to purchase, manage, oper-
ate, and dispose of its property.
The inherent powers of the Jicarilla Apache Tribe, including those conferred by Section
16 of the Act of June 18, 1934 (48 Stat. 984), as amended, shall vest in the tribal council and
shall be exercised thereby subject only to limitations imposed by the Constitution of the
United States, applicable Federal statutes and regulations of *135 the Department of the In-
terior, and the restrictions established by this revised constitution. Revised Constitution of
the Jicarilla Apache Tribe, Art. XI, 1.
The Revised Constitution provides that [t]he tribal council may enact ordinances to gov-
ern the development of tribal lands and other resources, Art. XI, 1(a)(3). It further provides
that [t]he tribal council may levy and collect taxes and fees on tribal members, and may enact
ordinances, subject to approval by the Secretary of the Interior, to impose taxes and fees on
non-members of the tribe doing business on the reservation, Art. XI, 1(e). The Revised
Constitution was approved by the Secretary on February 13, 1969.
To develop tribal lands, the Tribe has executed mineral leases encompassing some 69% of
the reservation land. Beginning in 1953, the petitioners entered into leases with the Tribe. The
Commissioner of Indian Affairs, on behalf of the Secretary, approved these leases, as required
by the Act of May 11, 1938, ch. 198, 52 Stat. 347, 25 U.S.C. 396a-396g (1938 Act). In ex-
change for a cash bonus, royalties, and rents, the typical lease grants the lessee the exclusive
right and privilege to drill for, mine, extract, remove, and dispose of all the oil and natural gas
deposits in or under the leased land for as long as the minerals are produced in paying quant-
ities. App. 22. Petitioners may use oil and gas in developing the lease without incurring the
royalty. Id., at 24. In addition, the Tribe reserves the rights to use gas without charge for any
of its buildings on the leased land, and to take its royalties in kind. Id., at 27-28. Petitioners'
activities on the leased land have been subject to taxes imposed by the State of New Mexico
on oil and gas severance and on oil and gas production equipment. Id., at 129. See Act of Mar.
3, 1927, ch. 299, 3, 44 Stat. 1347, 25 U.S.C. 398c (permitting state taxation of mineral
production on Indian reservations) (1927 Act).
Pursuant to its Revised Constitution, the Tribal Council adopted an ordinance imposing
**901 a severance tax on oil and gas *136 production on tribal land. See App. 38. The ordin-
ance was approved by the Secretary, through the Acting Director of the Bureau of Indian Af-
fairs, on December 23, 1976. The tax applies to any oil and natural gas severed, saved and
removed from Tribal lands.... Ibid. The tax is assessed at the wellhead at $0.05 per million
Btu's of gas produced and $0.29 per barrel of crude oil or condensate produced on the reserva-
tion, and it is due at the time of severance. Id., at 38-39. Oil and gas consumed by the lessees
to develop their leases or received by the Tribe as in-kind royalty payments are exempted
from the tax. Ibid.; Brief for Respondent Jicarilla Apache Tribe 59, n. 42.
In two separate actions, petitioners sought to enjoin enforcement of the tax by either the
tribal authorities or the Secretary. The United States District Court for the District of New
Mexico consolidated the cases, granted other lessees leave to intervene, and permanently en-
joined enforcement of the tax. The District Court ruled that the Tribe lacked the authority to
impose the tax, that only state and local authorities had the power to tax oil and gas produc-
tion on Indian reservations, and that the tax violated the Commerce Clause.
The United States Court of Appeals for the Tenth Circuit, sitting en banc, reversed. 617
F.2d 537 (1980).FN4 The Court of Appeals reasoned that the taxing power is an inherent at-
tribute of tribal sovereignty that has not been divested by any treaty or Act of Congress, in-
cluding the 1927 Act, 25 U.S.C. 398c. The court also found no Commerce Clause violation.
We granted certiorari, 449 U.S. 820, 101 S.Ct. 71, 66 L.Ed.2d 21 (1980), and we now affirm
the decision of the Court of Appeals.
FN4. Two judges dissented. Both argued that tribal sovereignty does not encompass
the power to tax non-Indian lessees, 617 F.2d, at 551-556 (Seth, C. J., dissenting); id.,
at 556-565 (Barrett, J., dissenting) (also arguing the tax violates the Commerce
Clause).
II
Petitioners argue, and the dissent agrees, that an Indian tribe's authority to tax non-Indians
who do business on the *137 reservation stems exclusively from its power to exclude such
persons from tribal lands. Because the Tribe did not initially condition the leases upon the
payment of a severance tax, petitioners assert that the Tribe is without authority to impose
such a tax at a later time. We disagree with the premise that the power to tax derives only
from the power to exclude. Even if that premise is accepted, however, we disagree with the
conclusion that the Tribe lacks the power to impose the severance tax.
A
[1][2] In Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134,
100 S.Ct. 2069, 65 L.Ed.2d 10 (1980) (Colville), we addressed the Indian tribes' authority to
impose taxes on non-Indians doing business on the reservation. We held that [t]he 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. Id., at 152, 100 S.Ct. at 2080-81. The
power to tax is an essential attribute of Indian sovereignty because it is a necessary instrument
of self-government and territorial management. This power enables a tribal government to
raise revenues for its essential services. The power does not derive solely from the Indian
tribe's power to exclude non-Indians from tribal lands. Instead, it derives from the tribe's gen-
eral authority, as sovereign, to control economic activity within its jurisdiction, and to defray
the cost of providing governmental services by requiring contributions from persons or enter-
prises engaged in economic activities within that jurisdiction. See, e.g., Gibbons v. Ogden, 9
Wheat. 1, 199, 6 L.Ed. 23 (1824).
**902 [3] The petitioners avail themselves of the substantial privilege of carrying on
business on the reservation. Mobil Oil Corp. v. Commissioner of Taxes, 445 U.S. 425, 437,
100 S.Ct. 1223, 1231, 63 L.Ed.2d 510 (1980); Wisconsin v. J. C. Penney Co., 311 U.S. 435,
444-445, 61 S.Ct. 246, 249-50, 85 L.Ed. 267 (1940). They benefit from the provision of police
protection and other governmental services, as well as from the advantages*138 of a civil-
ized society that are assured by the existence of tribal government. Exxon Corp. v. Wiscon-
sin Dept. of Revenue, 447 U.S. 207, 228, 100 S.Ct. 2109, 2122, 65 L.Ed.2d 66 (1980) (quoting
Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 445, 99 S.Ct. 1813, 1819-20, 60
L.Ed.2d 336 (1979)). Numerous other governmental entities levy a general revenue tax similar
to that imposed by the Jicarilla Tribe when they provide comparable services. Under these cir-
cumstances, there is nothing exceptional in requiring petitioners to contribute through taxes to
the general cost of tribal government.FN5 Cf. Commonwealth Edison Co. v. Montana, 453
U.S. 609, 624-629, 101 S.Ct. 2946, 2957-2960, 69 L.Ed.2d 884 (1981); id., at 647, 101 S.Ct.,
at 2969 (BLACKMUN, J., dissenting); Mobil Oil Corp. v. Commissioner of Taxes, supra, 445
U.S. at 436-437, 100 S.Ct. at 1231.
FN5. Through various Acts governing Indian tribes, Congress has expressed the pur-
pose of fostering tribal self-government. Colville, 447 U.S., at 155, 100 S.Ct., at
2081. We agree with Judge McKay's observation that [i]t simply does not make sense
to expect the tribes to carry out municipal functions approved and mandated by Con-
gress without being able to exercise at least minimal taxing powers, whether they take
the form of real estate taxes, leasehold taxes or severance taxes. 617 F.2d, at 550
(McKay, J., concurring).
[4] As we observed in Colville, supra, the tribe's interest in levying taxes on nonmembers
to raise revenues for essential governmental programs ... is strongest when the revenues are
derived from value generated on the reservation by activities involving the Tribes and when
the taxpayer is the recipient of tribal services. 447 U.S., at 156-157, 100 S.Ct., at 2082-83.
This surely is the case here. The mere fact that the government imposing the tax also enjoys
rents and royalties as the lessor of the mineral lands does not undermine the government's au-
thority to impose the tax. See infra, at 906-907. The royalty payments from the mineral leases
are paid to the Tribe in its role as partner in petitioners' commercial venture. The severance
tax, in contrast, is petitioners' contribution to the general cost of providing governmental ser-
vices. Commonwealth Edison Co. v. Montana, supra, at 623, 101 S.Ct., at 2956. State gov-
ernments commonly receive both royalty payments and severance taxes from lessees of miner-
al lands within their borders.
*139 Viewing the taxing power of Indian tribes as an essential instrument of self-
government and territorial management has been a shared assumption of all three branches of
the Federal Government. Cf. Colville, supra, 447 U.S., at 153, 100 S.Ct., at 2081. In Colville,
the Court relied in part on a 1934 opinion of the Solicitor for the Department of the Interior.
In this opinion, the Solicitor recognized that, in the absence of congressional action to the
contrary, the tribes' sovereign power to tax may be exercised over members of the tribe and
over nonmembers, so far as such nonmembers may accept privileges of trade, residence, etc.,
to which taxes may be attached as conditions. 447 U.S., at 153, 100 S.Ct., at 2081 (quoting
Powers of Indian Tribes, 55 I.D. 14, 46 (1934)). Colville further noted that official executive
pronouncements have repeatedly recognized that Indian tribes possess a broad measure of
civil jurisdiction over the activities of non-Indians on Indian reservation lands in which the
tribes have a significant interest ..., including jurisdiction to tax. 447 U.S., at 152-153, 100
S.Ct., at 2080-2081 (citing 23 Op.Atty.Gen. 214 (1900); 17 Op.Atty.Gen. 134 (1881); 7
Op.Atty.Gen. 174 **903 (1855)).FN6
FN6. Moreover, in its revision of the classic treatise on Indian Law, the Department of
the Interior advances the view that the Indian tribes' power to tax is not limited by the
power to exclude. See U.S. Solicitor for Dept. of Interior, Federal Indian Law 438
(1958) (The power to tax does not depend upon the power to remove and has been up-
held where there was no power in the tribe to remove the taxpayer from the tribal juris-
diction) (footnote omitted). See also F. Cohen, Handbook of Federal Indian Law 142
(1942) (One of the powers essential to the maintenance of any government is the
power to levy taxes. That this power is an inherent attribute of tribal sovereignty which
continues unless withdrawn or limited by treaty or by act of Congress is a proposition
which has never been successfully disputed) (footnote omitted).
Similarly, Congress has acknowledged that the tribal power to tax is one of the tools ne-
cessary to self-government and territorial control. As early as 1879, the Senate Judiciary*140
Committee acknowledged the validity of a tax imposed by the Chickasaw Nation on non-
Indians legitimately within its territory:
We have considered [Indian tribes] as invested with the right of self-government and jur-
isdiction over the persons and property within the limits of the territory they occupy, except so
far as that jurisdiction has been restrained and abridged by treaty or act of Congress. Subject
to the supervisory control of the Federal Government, they may enact the requisite legislation
to maintain peace and good order, improve their condition, establish school systems, and aid
their people in their efforts to acquire the arts of civilized life; and they undoubtedly possess
the inherent right to resort to taxation to raise the necessary revenue for the accomplishment
of these vitally important objects -a right not in any sense derived from the Government of the
United States. S.Rep.No.698, 45th Cong., 3d Sess., 1-2 (1879) (emphasis added).
[5] Thus, the views of the three federal branches of government, as well as general prin-
ciples of taxation, confirm that Indian tribes enjoy authority to finance their governmental ser-
vices through taxation of non-Indians who benefit from those services. Indeed, the conception
of Indian sovereignty that this Court has consistently reaffirmed permits no other conclusion.
As we observed in United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 711, 42 L.Ed.2d
706 (1975), Indian tribes within Indian country are a good deal more than private, volun-
tary organizations. They are unique aggregations possessing attributes of sovereignty over
both their members and their territory. Ibid. See, e.g., Worcester v. Georgia, 6 Pet. 515, 557,
8 L.Ed. 483 (1832); Iron Crow v. Oglala Sioux Tribe of Pine Ridge Reservation, 231 F.2d 89,
92, 99 (CA8 1956); Crabtree v. Madden, 54 F. 426, 428-429 (CA8 1893); Cohen, The Span-
ish Origin of Indian Rights in the Law of the United States, in The Legal Conscience 230, 234
(L. Cohen ed. *141 1960). Adhering to this understanding, we conclude that the Tribe's au-
thority to tax non-Indians who conduct business on the reservation does not simply derive
from the Tribe's power to exclude such persons, but is an inherent power necessary to tribal
self-government and territorial management.
[6] Of course, the Tribe's authority to tax nonmembers is subject to constraints not im-
posed on other governmental entities: the Federal Government can take away this power, and
the Tribe must obtain the approval of the Secretary before any tax on nonmembers can take
effect. These additional constraints minimize potential concern that Indian tribes will exercise
the power to tax in an unfair or unprincipled manner, and ensure that any exercise of the tribal
power to tax will be consistent with national policies.
[7] We are not persuaded by the dissent's attempt to limit an Indian tribe's authority to tax
non-Indians by asserting that its only source is the tribe's power to exclude such persons from
tribal lands. Limiting the tribes' authority to tax in this manner contradicts the conception that
Indian**904 tribes are domestic, dependent nations, as well as the common understanding that
the sovereign taxing power is a tool for raising revenue necessary to cover the costs of gov-
ernment.
[8] Nor are we persuaded by the dissent that three early decisions upholding tribal power
to tax nonmembers support this limitation. Post, at 917-920, discussing Morris v. Hitchcock,
194 U.S. 384, 24 S.Ct. 712, 48 L.Ed. 1030 (1904); Buster v. Wright, 135 F. 947 (CA8 1905),
appeal dism'd, 203 U.S. 599, 27 S.Ct. 777, 51 L.Ed. 334 (1906); Maxey v. Wright, 3 Ind.T.
243, 247-250, 54 S.W. 807, 809 (Ct.App.Ind.T.), aff'd, 105 F. 1003 (CA8 1900). In discussing
these cases, the dissent correctly notes that a hallmark of Indian sovereignty is the power to
exclude non-Indians from Indian lands, and that this power provides a basis for tribal author-
ity to tax. None of these cases, however, establishes that the authority to tax derives solely
from the power to exclude. Instead, these cases demonstrate that a tribe has the power to tax
nonmembers only to the extent the nonmember enjoys the *142 privilege of trade or other
activity on the reservation to which the tribe can attach a tax. This limitation on tribal taxing
authority exists not because the tribe has the power to exclude nonmembers, but because the
limited authority that a tribe may exercise over nonmembers does not arise until the nonmem-
ber enters the tribal jurisdiction. We do not question that there is a significant territorial com-
ponent to tribal power: a tribe has no authority over a nonmember until the nonmember enters
tribal lands or conducts business with the tribe. However, we do not believe that this territorial
component to Indian taxing power, which is discussed in these early cases, means that the tri-
bal authority to tax derives solely from the tribe's power to exclude nonmembers from tribal
lands.
Morris v. Hitchcock, for example, suggests that the taxing power is a legitimate instrument
for raising revenue, and that a tribe may exercise this power over non-Indians who receive
privileges from the tribe, such as the right to trade on Indian land. In Morris, the Court ap-
proved a tax on cattle grazing and relied in part on a Report to the Senate by the Committee
on the Judiciary, which found no legal defect in previous tribal tax legislation having a two-
fold object-to prevent the intrusion of unauthorized persons into the territory of the Chickasaw
Nation, and to raise revenue. 194 U.S., at 389, 24 S.Ct., at 714 (emphasis added). In Maxey
v. Wright, the question of Indian sovereignty was not even raised: the decision turned on the
construction of a treaty denying the Tribe any governing or jurisdictional authority over non-
members. 3 Ind.T., at 247-248, 54 S.W., at 809.FN7
FN7. The governing treaty in Maxey v. Wright restricted the tribal right of self-
government and jurisdiction to members of the Creek or Seminole Tribes. The court
relied, at least in part, on opinions of the Attorney General interpreting this treaty. For
example, one such opinion stated that, whatever the meaning of the clause limiting to
tribal members the Tribes' unrestricted rights of self-government and jurisdiction, it
did
not limit the right of these tribes to pass upon the question, who ... shall share their
occupancy, and upon what terms. That is a question which all private persons are al-
lowed to decide for themselves; and even wild animals, not men, have a certain re-
spect paid to the instinct which in this respect they share with man. The serious
words jurisdiction and self-government are scarcely appropriate to the right of a
hotel keeper to prescribe rules and charges for persons who become his fellow occu-
pants. 3 Ind.T., at 250, 54 S.W., at 809 (quoting 18 Op.Atty.Gen. 4, 36, 37
(1884)).
The court, as well as the opinion of the Attorney General, found that the Tribes'
natural instinct to set terms on occupancy was unaltered by the treaty. Neither the
court nor the Attorney General addressed the scope of Indian sovereignty when un-
limited by treaty; instead, they identified a tribe's right, as a social group, to exclude
intruders and place conditions on their occupancy. The court's dependence on this
reasoning hardly bears on the more general question posed here: what is the source
of the Indian tribes' sovereign power to tax absent a restriction by treaty or other fed-
eral law?
*143 Finally, the decision in Buster v. Wright actually undermines the theory that the
tribes' taxing authority derives solely from the power to exclude non-Indians from tribal**905
lands. Under this theory, a non-Indian who establishes lawful presence in Indian territory
could avoid paying a tribal tax by claiming that no residual portion of the power to exclude
supports the tax. This result was explicitly rejected in Buster v. Wright. In Buster, deeds to in-
dividual lots in Indian territory had been granted to non-Indian residents, and cities and towns
had been incorporated. As a result, Congress had expressly prohibited the Tribe from remov-
ing these non-Indian residents. Even though the ownership of land and the creation of local
governments by non-Indians established their legitimate presence on Indian land, the court
held that the Tribe retained its power to tax. The court concluded that [n]either the United
States, nor a state, nor any other sovereignty loses the power to govern the people within its
borders by the existence of towns and cities therein endowed with the usual powers of muni-
cipalities, nor by the ownership nor occupancy of the land within its territorial jurisdiction by
citizens or foreigners. *144135 F., at 952 (emphasis added).FN8 This result confirms that the
Tribe's authority to tax derives not from its power to exclude, but from its power to govern
and to raise revenues to pay for the costs of government.
FN8. Both the classic treatise on Indian Law and its subsequent revision by the Depart-
ment of the Interior, see n. 6, supra, agree with this reading of Buster v. Wright. Feder-
al Indian Law, supra, n. 6, at 438; Cohen, supra, n. 6, at 142 (both citing Buster v.
Wright for the proposition that the power to tax is an inherent sovereign power not de-
pendent on the power to exclude).
We choose not to embrace a new restriction on the extent of the tribal authority to tax,
which is based on a questionable interpretation of three early cases. Instead, based on the
views of each of the federal branches, general principles of taxation, and the conception of In-
dian tribes as domestic, dependent nations, we conclude that the Tribe has the authority to im-
pose a severance tax on the mining activities of petitioners as part of its power to govern and
to pay for the costs of self-government.
B
[9][10][11][12][13] Alternatively, if we accept the argument, advanced by petitioners and
the dissent, that the Tribe's authority to tax derives solely from its power to exclude non-
Indians from the reservation, we conclude that the Tribe has the authority to impose the sever-
ance tax challenged here. Nonmembers who lawfully enter tribal lands remain subject to the
tribe's power to exclude them. This power necessarily includes the lesser power to place con-
ditions on entry, on continued presence, or on reservation conduct, such as a tax on business
activities conducted on the reservation. When a tribe grants a non-Indian the right to be on In-
dian land, the tribe agrees not to exercise its ultimate power to oust the non-Indian as long as
the non-Indian complies with the initial conditions of entry. However, it does not follow that
the lawful property right to be on Indian land also immunizes the non-Indian from the tribe's
exercise of its lesser-included power to tax or to *145 place other conditions on the non-In-
dian's conduct or continued presence on the reservation.FN9 A nonmember who enters the
jurisdiction of the tribe remains subject to the risk that the tribe will later exercise its sover-
eign power. The fact that the tribe chooses not to exercise its power to tax when it initially
grants a non-Indian entry onto the reservation does not permanently divest the tribe of its au-
thority to impose such a tax.FN10
FN9. See also Barta v. Oglala Sioux Tribe of Pine Ridge Reservation, 259 F.2d 553
(CA8 1958) (lessees of tribal lands subject to Indian tax on use of land).
FN10. Here, the leases extend for as long as minerals are produced in paying quantit-
ies, in other words, until the resources are depleted. Thus, under the dissent's approach,
the Tribe would never have the power to tax petitioners regardless of the financial bur-
den to the Tribe of providing and maintaining governmental services for the benefit of
petitioners.
Petitioners argue that their leaseholds entitle them to enter the reservation and **906 ex-
empt them from further exercises of the Tribe's sovereign authority. Similarly, the dissent as-
serts that the Tribe has lost the power to tax petitioners' mining activities because it has leased
to them the use of the mineral lands and such rights of access to the reservation as might be
necessary to enjoy the leases. Post, at 927-929.FN11 However, this conclusion is not com-
pelled by linking the taxing power to the power to exclude. Instead, it is based on additional
assumptions and confusions about the consequences of the commercial arrangement between
petitioners and the Tribe.
FN11. But see Buster v. Wright, 135 F., at 958:
The ultimate conclusion of the whole matter is that purchasers of lots in town sites
in towns or cities within the original limits of the Creek Nation, who are in lawful
possession of their lots, are still subject to the laws of that nation prescribing permit
taxes for the exercise by noncitizens of the privilege of conducting business in those
towns....
Most important, petitioners and the dissent confuse the Tribe's role as commercial partner
with its role as sovereign.*146 FN12 This confusion relegates the powers of sovereignty to
the bargaining process undertaken in each of the sovereign's commercial agreements. It is one
thing to find that the Tribe has agreed to sell the right to use the land and take from it valuable
minerals; it is quite another to find that the Tribe has abandoned its sovereign powers simply
because it has not expressly reserved them through a contract.
FN12. In contrast, the 1958 treatise on Indian law written by the United States Solicit-
or for the Department of the Interior recognized and distinguished the scope of these
two roles when it embraced as the present state of the law the following summary:
Over tribal lands, the tribe has the rights of a landowner as well as the rights of a
local government, dominion as well as sovereignty. But over all the lands of the re-
servation, whether owned by the tribe, by members thereof, or by outsiders, the tribe
has the sovereign power of determining the conditions upon which persons shall be
permitted to enter its domain, to reside therein, and to do business, provided only
such determination is consistent with applicable Federal laws and does not infringe
any vested rights of persons now occupying reservation lands under lawful author-
ity. Federal Indian Law, supra, n.6, at 439 (quoting Solicitor's Opinion of Oct. 25,
1934) (emphasis added).
See Cohen, supra, n.6, at 143.
Confusing these two results denigrates Indian sovereignty. Indeed, the dissent apparently
views the tribal power to exclude, as well as the derivative authority to tax, as merely the
power possessed by any individual landowner or any social group to attach conditions, includ-
ing a tax or fee, to the entry by a stranger onto private land or into the social group, and not
as a sovereign power. The dissent does pay lipservice to the established views that Indian
tribes retain those fundamental attributes of sovereignty, including the power to tax transac-
tions that occur on tribal lands, which have not been divested by Congress or by necessary im-
plication of the tribe's dependent status, see Colville, 447 U.S., at 152, 100 S.Ct., at 2080, and
that tribes are a good deal more than private, voluntary organizations. United States v.
Mazurie, 419 U.S., at 557, 95 S.Ct., at 718. However, in arguing that the Tribe somehow
lost its power to tax petitioners by not including*147 a taxing provision in the original
leases or otherwise notifying petitioners that the Tribe retained and might later exercise its
sovereign right to tax them, the dissent attaches little significance to the sovereign nature of
the tribal authority to tax, and it obviously views tribal authority as little more than a
landowner's contractual right. This overly restrictive view of tribal sovereignty is further re-
flected in the dissent's refusal to apply established principles for determining whether other
governmental bodies have waived a sovereign power through contract. See post, at 928-929,
n. 50. See also infra, at 907.
[14][15][16] Moreover, the dissent implies that the power to tax depends on the consent of
the taxed as well as on the Tribe's power to exclude non-Indians. Whatever place consent may
have in contractual matters and in the creation of democratic governments, it has little if any
role in measuring the validity of an exercise of **907 legitimate sovereign authority. Requir-
ing the consent of the entrant deposits in the hands of the excludable non-Indian the source of
the tribe's power, when the power instead derives from sovereignty itself. Only the Federal
Government may limit a tribe's exercise of its sovereign authority. E.g., United States v.
Wheeler, 435 U.S. 313, 322, 98 S.Ct. 1079, 1085, 55 L.Ed.2d 303 (1978).FN13 Indian sover-
eignty is not conditioned on the assent of a nonmember; to the contrary, the nonmember's
presence and conduct on Indian lands are conditioned by the limitations the tribe may choose
to impose.
FN13. See also P. Maxfield, M. Dieterich, & F. Trelease, Natural Resources Law on
American Indian Lands 4-6 (1977). Federal limitations on tribal sovereignty can also
occur when the exercise of tribal sovereignty would be inconsistent with overriding na-
tional interests. See Colville, 447 U.S., at 153, 100 S.Ct., at 2081. This concern is not
presented here. See ibid.
[17][18][19] Viewed in this light, the absence of a reference to the tax in the leases them-
selves hardly impairs the Tribe's authority to impose the tax. Contractual arrangements remain
subject to subsequent legislation by the presiding sovereign. See, e.g., *148Veix v. Sixth Ward
Building & Loan Assn. of Newark, 310 U.S. 32, 60 S.Ct. 792, 84 L.Ed. 1061 (1940); Home
Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413 (1934). Even
where the contract at issue requires payment of a royalty for a license or franchise issued by
the governmental entity, the government's power to tax remains unless it has been specific-
ally surrendered in terms which admit of no other reasonable interpretation. St. Louis v.
United R. Co., 210 U.S. 266, 280, 28 S.Ct. 630, 634, 52 L.Ed. 1054 (1908).
[20][21] To state that Indian sovereignty is different than that of Federal, State, or local
Governments, see post, at 928-929, n. 50, does not justify ignoring the principles announced
by this Court for determining whether a sovereign has waived its taxing authority in cases in-
volving city, state, and federal taxes imposed under similar circumstances. Each of these gov-
ernments has different attributes of sovereignty, which also may derive from different sources.
These differences, however, do not alter the principles for determining whether any of these
governments has waived a sovereign power through contract, and we perceive no principled
reason for holding that the different attributes of Indian sovereignty require different treatment
in this regard. Without regard to its source, sovereign power, even when unexercised, is an en-
during presence that governs all contracts subject to the sovereign's jurisdiction, and will re-
main intact unless surrendered in unmistakable terms.
[22] No claim is asserted in this litigation, nor could one be, that petitioners' leases contain
the clear and unmistakable surrender of taxing power required for its extinction. We could
find a waiver of the Tribe's taxing power only if we inferred it from silence in the leases. To
presume that a sovereign forever waives the right to exercise one of its sovereign powers un-
less it expressly reserves the right to exercise that power in a commercial agreement turns the
concept of sovereignty on its head, and we do not adopt this analysis.FN14
FN14. Petitioners and the dissent also argue that we should infer a waiver of the taxing
power from silence in the Tribe's original Constitution. Although it is true that the
Constitution in force when petitioners signed their leases did not include a provision
specifically authorizing a severance tax, neither the Tribe's Constitution nor the Feder-
al Constitution is the font of any sovereign power of the Indian tribes. E.g., Iron Crow
v. Oglala Sioux Tribe of Pine Ridge Reservation, 231 F.2d 89, 94 (CA8 1956); Buster
v. Wright, 135 F., at 950. Because the Tribe retains all inherent attributes of sover-
eignty that have not been divested by the Federal Government, the proper inference
from silence on this point is that the sovereign power to tax remains intact. The Tribe's
Constitution was amended to authorize the tax before the tax was imposed, and this is
the critical event necessary to effectuate the tax. See Barta v. Oglala Sioux Tribe of
Pine Ridge Reservation, 259 F.2d, at 554, 556; Iron Crow v. Oglala Sioux Tribe of
Pine Ridge Reservation, supra, at 99.
*149 **908 C
The Tribe has the inherent power to impose the severance tax on petitioners, whether this
power derives from the Tribe's power of self-government or from its power to exclude. Be-
cause Congress may limit tribal sovereignty, we now review petitioners' argument that Con-
gress, when it enacted two federal Acts governing Indians and various pieces of federal en-
ergy legislation, deprived the Tribe of its authority to impose the severance tax.
[23] In Colville, we concluded that the widely held understanding within the Federal
Government has always been that federal law to date has not worked a divestiture of Indian
taxing power. 447 U.S., at 152, 100 S.Ct., at 2080 (emphasis added). Moreover, we noted
that [n]o federal statute cited to us shows any congressional departure from this view. Id., at
153, 100 S.Ct., at 2081. Likewise, petitioners can cite to no statute that specifically divests the
Tribe of its power to impose the severance tax on their mining activities. Instead, petitioners
argue that Congress implicitly took away this power when it enacted the Acts and various
pieces of legislation on which petitioners rely. Before reviewing this argument, we reiterate
here our admonition in Santa Clara Pueblo v. Martinez, 436 U.S. 49, 60, 98 S.Ct. 1670, 1678,
56 L.Ed.2d 106 (1978): a proper respect both for tribal sovereignty itself and for the plenary
authority of Congress in this area cautions that we tread lightly in the absence of clear indica-
tions of legislative intent.
*150 [24] Petitioners argue that Congress pre-empted the Tribe's power to impose a sever-
ance tax when it enacted the 1938 Act, 25 U.S.C. 396a-396g. In essence, petitioners argue
that the tax constitutes an additional burden on lessees that is inconsistent with the Act's regu-
latory scheme for leasing and developing oil and gas reserves on Indian land. This Act, and
the regulations promulgated by the Department of the Interior for its enforcement, establish
the procedures to be followed for leasing oil and gas interests on tribal lands. However, the
proviso to 25 U.S.C. 396b states that the foregoing provisions shall in no manner restrict
the right of tribes ... to lease lands for mining purposes ... in accordance with the provisions of
any constitution and charter adopted by any Indian tribe pursuant to sections 461, 462, 463,
[464-475, 476-478], and 479 of this title (emphasis added).FN15 Therefore, this Act does
not prohibit the Tribe from imposing a severance tax on petitioners' mining activities pursuant
to its Revised Constitution, when both the Revised Constitution and the ordinance authorizing
the tax are approved by the Secretary.FN16
FN15. The Secretary has implemented the substance of this proviso by the following
regulation:
The regulations in this part may be superseded by the provisions of any tribal con-
stitution, bylaw or charter issued pursuant to the Indian Reorganization Act of June
18, 1934 (48 Stat. 984; 25 U.S.C. 461-479), ... or by ordinance, resolution or other
action authorized under such constitution, bylaw or charter. The regulations in this
part, in so far as they are not so superseded, shall apply to leases made by organized
tribes if the validity of the lease depends upon the approval of the Secretary of the
Interior. 25 CFR 171.29 (1980).
FN16. In arguing that the 1938 Act was intended to pre-empt the severance tax, peti-
tioners attach great significance to the Secretary's approval of the leases. Curiously,
they attach virtually no significance to the fact that the Secretary also approved the tax
ordinance that they challenge here.
[25][26] Petitioners also assert that the 1927 Act, 25 U.S.C. 398a-398e, divested the
Tribe's taxing power. We disagree. The 1927 Act permits state taxation of mineral lessees
*151 on Executive Order reservations, but it indicates no change in the taxing power of the af-
fected tribes. See 25 U.S.C. 398c. Without mentioning the tribal authority to tax, the Act au-
thorizes state taxation of royalties from mineral production on all Indian lands. Petitioners ar-
gue that the Act transferred the Indian power to tax mineral production to the States in ex-
change for the royalties assured**909 the tribes. This claim not only lacks any supporting
evidence in the legislative history, it also deviates from settled principles of taxation: different
sovereigns can enjoy powers to tax the same transactions. Thus, the mere existence of state
authority to tax does not deprive the Indian tribe of its power to tax. Fort Mojave Tribe v.
County of San Bernardino, 543 F.2d 1253 (CA9 1976), cert. denied, 430 U.S. 983, 97 S.Ct.
1678, 52 L.Ed.2d 377 (1977). Cf. Colville, 447 U.S., at 158, 100 S.Ct., at 2084 (There is no
direct conflict between the state and tribal schemes, since each government is free to impose
its taxes without ousting the other).FN17
FN17. The Tribe argues that the 1927 Act granting the States the power to tax mineral
production on Indian land is inapplicable because the leases at issue here were signed
pursuant to the 1938 Act. The 1938 Act, which makes uniform the laws applicable to
leasing mineral rights on tribal lands, does not contain a grant of power to the States
comparable to that found in the 1927 Act. As a result, the Tribe asserts that the State of
New Mexico has no power to tax the production under petitioners' leases with the
Tribe. Because the State of New Mexico is not a party to this suit, the Court of Ap-
peals did not reach this issue. See 617 F.2d, at 547-548, n. 5. For this reason, and be-
cause we conclude that the 1927 Act did not affect the Tribe's authority to tax, we like-
wise do not reach this issue.
[27] Finally, petitioners contend that tribal taxation of oil and gas conflicts with national
energy policies, and therefore the tribal tax is pre-empted by federal law. Again, petitioners
cite no specific federal statute restricting Indian sovereignty. Nor do they explain why state
taxation of the same type of activity escapes the asserted conflict with federal policy. Cf.
Commonwealth Edison Co. v. Montana, 453 U.S. 609, 101 S.Ct. 2946, 69 L.Ed.2d 884 (1981).
Indeed, rather than forbidding tribal severance taxes, Congress has included taxes imposed by
an Indian *152 tribe in its definition of costs that may be recovered under federal energy pri-
cing regulations. Natural Gas Policy Act of 1978, Pub.L. 95-621, 110(a), (c)(1), 92 Stat.
3368, 15 U.S.C. 3320(a), (c)(1) (1976 ed., Supp.IV). Although this inclusion may not re-
flect Congress' view with respect to the source of a tribe's power to impose a severance tax,
FN18 it surely indicates that imposing such a tax would not contravene federal energy policy
and that the tribal authority to do so is not implicitly divested by that Act.
FN18. The statute provides that Indian severance taxes may be recovered through fed-
eral energy pricing. However, the legislative history indicates that Congress took no
position on the source of the Indian tribes' power to impose the tax in the first place:
While severance taxes which may be imposed by an Indian tribe are to be treated in
the same manner as State imposed severance taxes, the conferees do not intend to
prejudge the outcome of the cases on appeal before the Tenth Circuit Court of Ap-
peals respecting the right of Indian tribes to impose taxes on persons or organizations
other than Indians who are engaged in business activities on Indian reservations. The
outcome of the cases on appeal will determine the legality of imposing such taxes.
S.Conf.Rep.No.95-1126, p. 91 (1978); H.R.Conf.Rep.No.95-1752, p. 91 (1978),
U.S.Code Cong. & Admin.News 1978, p. 8800.
[28] We find no clear indications that Congress has implicitly deprived the Tribe of its
power to impose the severance tax. In any event, if there were ambiguity on this point, the
doubt would benefit the Tribe, for [a]mbiguities in federal law have been construed gener-
ously in order to comport with ... traditional notions of sovereignty and with the federal policy
of encouraging tribal independence. White Mountain Apache Tribe v. Bracker, 448 U.S. 136,
143-144, 100 S.Ct. 2578, 2583-2584, 65 L.Ed.2d 665 (1980). Accordingly, we find that the
Federal Government has not divested the Tribe of its inherent authority to tax mining activit-
ies on its land, whether this authority derives from the Tribe's power of self-government or
from its power to exclude.
III
Finding no defect in the Tribe's exercise of its taxing power, we now address petitioners'
contention that the severance tax violates the negative implications of the **910 Commerce
Clause because it taxes an activity that is an integral *153 part of the flow of commerce, dis-
criminates against interstate commerce, and imposes a multiple burden on interstate com-
merce. At the outset, we note that reviewing tribal action under the Interstate Commerce
Clause is not without conceptual difficulties. E.g., nn. 21 and 24, infra. Apparently recogniz-
ing these difficulties, the Solicitor General, on behalf of the Secretary, argues that the lan-
guage,FN19 the structure, and the purposes of the Commerce Clause support the conclusion
that the Commerce Clause does not, of its own force, limit Indian tribes in their dealings with
non-Indians. Brief for Secretary of Interior 35-40. The Solicitor General reasons that the
Framers did not intend the courts, through the Commerce Clause, to impose their own views
of the proper relationship between Indians and non-Indians and to strike down measures adop-
ted by a tribe with which the political departments of government had not seen fit to dis-
agree. Id., at 39. Instead, where tribal legislation is inimical to the national welfare, the Soli-
citor asserts that the Framers contemplated that the remedies would be the negotiation or rene-
gotiation of treaties, the enactment of legislation governing trade and other relations, or the
exertion of superior force by the United States Government. Id., at 38-39. Using similar reas-
oning, the Solicitor suggests that if the Commerce Clause does impose restrictions on tribal
activity, those restrictions must arise from the Indian Commerce Clause, and not its interstate
counterpart. Id., at 40-43.
FN19. The Commerce Clause empowers Congress [t]o regulate Commerce with for-
eign Nations, and among the several States, and with the Indian Tribes. U.S.Const.,
Art. I, 8, cl. 3 (emphasis added).
To date, however, this Court has relied on the Indian Commerce Clause as a shield to pro-
tect Indian tribes from state *154 and local interference, and has not relied on the Clause to
authorize tribal regulation of commerce without any constitutional restraints. We see no need
to break new ground in this area today: even if we assume that tribal action is subject to the
limitations of the Interstate Commerce Clause, this tax does not violate the negative implica-
tions of that Clause.
A
[29][30] A state tax may violate the negative implications of the Interstate Commerce
Clause by unduly burdening or discriminating against interstate commerce. See, e.g., Com-
monwealth Edison Co. v. Montana, 453 U.S. 609, 101 S.Ct. 2946, 69 L.Ed.2d 884 (1981);
Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977).
Judicial review of state taxes under the Interstate Commerce Clause is intended to ensure that
States do not disrupt or burden interstate commerce when Congress' power remains unexer-
cised: it protects the free flow of commerce, and thereby safeguards Congress' latent power
from encroachment by the several States.
[31][32] However, we only engage in this review when Congress has not acted or purpor-
ted to act. See, e.g., Prudential Insurance Co. v. Benjamin, 328 U.S. 408, 421-427, 66 S.Ct.
1142, 1150-1153, 90 L.Ed. 1342 (1946). Once Congress acts, courts are not free to review
state taxes or other regulations under the dormant Commerce Clause. When Congress has
struck the balance it deems appropriate, the courts are no longer needed to prevent States from
burdening commerce, and it matters not that the courts would invalidate the state tax or regu-
lation under the Commerce Clause in the absence of congressional action. See Prudential In-
surance Co. v. Benjamin, supra, at 431, 66 S.Ct. at 1155-56.FN20 Courts are *155 final arbit-
ers under **911 the Commerce Clause only when Congress has not acted. See Japan Line,
Ltd. v. County of Los Angeles, 441 U.S., at 454, 99 S.Ct., at 1824.
FN20. In Prudential Insurance Co. v. Benjamin, this Court refused to invalidate a
South Carolina tax on out-of-state insurance companies despite appellant's contention
that the tax impermissibly burdened interstate commerce. The Court refused to enter-
tain appellant's argument because Congress, in passing the McCarran-Ferguson Act,
had provided that silence on the part of the Congress shall not be construed to impose
any barrier to the regulation or taxation of [the business of insurance] by the several
States. 59 Stat. 33, 15 U.S.C. 1011.
[33] Here, Congress has affirmatively acted by providing a series of federal checkpoints
that must be cleared before a tribal tax can take effect. FN21 Under the Indian Reorganization
Act, 25 U.S.C. 476, 477, a tribe must obtain approval from the Secretary before it adopts or
revises its constitution to announce its intention to tax nonmembers. Further, before the ordin-
ance imposing the severance tax challenged here could take effect, the Tribe was required
again to obtain approval from the Secretary. See Revised Constitution of the Jicarilla Tribe,
Art. XI, 1(e), 2. Cf. 25 U.S.C. 476, 477; 25 CFR 171.29 (1980) (implementing the
proviso to 25 U.S.C. 369b, quoted in n. 15, supra).
FN21. Although Congress has not expressly announced that Indian taxes do not
threaten its latent power to regulate interstate commerce, it is unclear how Congress
could articulate that intention any more convincingly than it has done here. In contrast
to when Congress acts with respect to the States, when Congress acts with respect to
the Indian tribes, it generally does so pursuant to its authority under the Indian Com-
merce Clause, or by virtue of its superior position over the tribes, not pursuant to its
authority under the Interstate Commerce Clause. This is but one of the difficulties in-
herent in reviewing under the Interstate Commerce Clause both tribal action and con-
gressional action regulating the tribes. Therefore, in determining whether Congress has
acted to preclude judicial review, we do not find it significant that the congressional
action here was not taken pursuant to the Interstate Commerce Clause.
As we noted earlier, the severance tax challenged by petitioners was enacted in accordance
with this congressional scheme. Both the Tribe's Revised Constitution and the challenged tax
ordinance received the requisite approval from the Secretary. This course of events fulfilled
the administrative process established by Congress to monitor such exercises of tribal author-
ity. As a result, this tribal tax comes to us in a *156 posture significantly different from a
challenged state tax, which does not need specific federal approval to take effect, and which
therefore requires, in the absence of congressional ratification, judicial review to ensure that it
does not unduly burden or discriminate against interstate commerce. Judicial review of the In-
dian tax measure, in contrast, would duplicate the administrative review called for by the con-
gressional scheme.
[34] Finally, Congress is well aware that Indian tribes impose mineral severance taxes
such as the one challenged by petitioners. See Natural Gas Policy Act of 1978, 15 U.S.C.
3320(a), (c)(1) (1976 ed., Supp.IV). Congress, of course, retains plenary power to limit tribal
taxing authority or to alter the current scheme under which the tribes may impose taxes.
However, it is not our function nor our prerogative to strike down a tax that has traveled
through the precise channels established by Congress, and has obtained the specific approval
of the Secretary.
B
The tax challenged here would survive judicial scrutiny under the Interstate Commerce
Clause, even if such scrutiny were necessary. In Complete Auto Transit, Inc. v. Brady, supra,
430 U.S. at 279, 97 S.Ct. at 1079, we held that a state tax on activities connected to interstate
commerce is sustainable if it is applied to an activity with a substantial nexus with the taxing
State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly re-
lated to the services provided by the State. Petitioners do not question that the tax on the sev-
erance of minerals from the mines FN22 meets the first and the *157 **912 second tests: the
mining activities taxed pursuant to the ordinance occur entirely on reservation land. Further-
more, petitioners do not challenge the tax on the ground that the amount of the tax is not fairly
related to the services provided by the Tribe. See Supplemental Brief for Petitioners in No.
80-15, pp. 11, 17-20.FN23
FN22. Petitioners initially contend that the ordinance taxes the transportation of the
minerals from the reservation, not their severance from the mines. As a result, they ar-
gue that the ordinance impermissibly burdens interstate commerce by taxing the move-
ment in commerce itself, which is not a local event. The tax, by its terms, applies to re-
sources that are produced on the Jicarilla Apache Tribe Reservation and sold or trans-
ported off the reservation. App. 39. The Tribe explains that this language was used
because no sale occurs prior to the transportation off the reservation. The Tribe's tax is
due at the time of severance. Id., at 38. Therefore, we agree with the Court of Appeals
that the taxable event defined by the ordinance is the removal of minerals from the
soil, not their transportation from the reservation. See 617 F.2d, at 546.
FN23. The Court of Appeals noted that, because the lessees chose not to build a factual
foundation to challenge the tax on this ground, there was no basis on which to find that
the tax was not fairly related to the services provided by the Tribe. See id., at 545, n. 4.
Indeed, when the Tribe attempted to introduce at trial evidence of the services it had
provided to establish this relationship, the District Court rejected this evidence upon
petitioners' objection that such evidence was irrelevant to their challenge. Brief for Re-
spondent Jicarilla Apache Tribe 7-8; 6 Record 278-290, 294, 300-308.
[35][36] Instead, petitioners focus their attack on the third factor, and argue that the tax
discriminates against interstate commerce. In essence, petitioners argue that the language
sold or transported off the reservation exempts from taxation minerals sold on the reserva-
tion, kept on the reservation for use by individual members of the Tribe, and minerals taken
by the Tribe on the reservation as in-kind royalty. Although petitioners admit that no sales
have occurred on the reservation to date, they argue that the Tribe might induce private in-
dustry to locate on the reservation to take advantage of this allegedly discriminatory taxing
policy. We do not accept petitioners' arguments; instead, we agree with the Tribe, the Solicitor
General, and the Court of Appeals that the tax is imposed on minerals sold on the reservation
or transported off the reservation before sale. See 617 F.2d, at 546. Cf. n. 22, supra.FN24 Un-
der this interpretation, the tax does not *158 treat minerals transported away from the reserva-
tion differently than it treats minerals that might be sold on the reservation. Nor does the
Tribe's tax ordinance exempt minerals ultimately received by individual members of the
Tribe. The ordinance does exempt minerals received by the Tribe as in-kind payments on the
leases and used for tribal purposes,FN25 but this exemption merely avoids the administrative
make-work that would ensue if the Tribe, as local government, taxed the amount of minerals
that the Tribe, as commercial partner, received in royalty payments. Therefore, this exemption
cannot be deemed a discriminatory preference for local commerce.FN26
FN24. The ordinance does not distinguish between minerals remaining within New
Mexico and those transported beyond the state boundary. As a result, petitioners' argu-
ment that the tax discriminates against interstate commerce by favoring local sales fo-
cuses on the boundary between the reservation and the State of New Mexico and not
on any interstate boundaries. We will assume for purposes of this argument only that
this alleged reservation-state discrimination could give rise to a Commerce Clause vi-
olation.
FN25. Paragraph 4 of the ordinance specifies that [r]oyalty gas, oil or condensate
taken by the Tribe in kind, and used by the Tribe shall be exempt from taxation. App.
39.
FN26. Petitioners contend that because New Mexico may tax the same mining activity
at full value, the Indian tax imposes a multiple tax burden on interstate commerce in
violation of the Commerce Clause. The multiple taxation issue arises where two or
more taxing jurisdictions point to some contact with an enterprise to support a tax on
the entire value of its multistate activities, which is more than the contact would justi-
fy. E.g., Standard Oil Co. v. Peck, 342 U.S. 382, 384-385, 72 S.Ct. 309, 310-311, 96
L.Ed. 427 (1952). This Court has required an apportionment of the tax based on the
portion of the activity properly viewed as occurring within each relevant State. See,
e.g., Exxon Corp. v. Wisconsin Dept. of Revenue, 447 U.S. 207, 219, 100 S.Ct. 2109,
2118, 65 L.Ed.2d 66 (1980); Washington Revenue Dept. v. Association of Washington
Stevedoring Cos., 435 U.S. 734, 746, and n. 16, 98 S.Ct. 1388, 1397, and n. 16, 55
L.Ed.2d 682 (1978).
This rule has no bearing here, however, for there can be no claim that the Tribe seeks
to tax any more of petitioners' mining activity than the portion occurring within Tri-
bal jurisdiction. Indeed, petitioners do not even argue that the Tribe is seeking to
seize more tax revenues than would be fairly related to the services provided by the
Tribe. See supra, at 911, and n. 23. In the absence of such an assertion, and when the
activity taxed by the Tribe occurs entirely on tribal lands, the multiple taxation issue
would arise only if a State attempted to levy a tax on the same activity, which is
more than the State's contact with the activity would justify. In such a circumstance,
any challenge asserting that tribal and state taxes create a multiple burden on inter-
state commerce should be directed at the state tax, which, in the absence of congres-
sional ratification, might be invalidated under the Commerce Clause. These cases, of
course, do not involve a challenge to state taxation, and we intimate no opinion on
the possibility of such a challenge.
*159 **913 IV
In Worcester v. Georgia, 6 Pet., at 559, 8 L.Ed. 483, Chief Justice Marshall observed that
Indian tribes had always been considered as distinct, independent political communities, re-
taining their original natural rights. Although the tribes are subject to the authority of the
Federal Government, the weaker power does not surrender its independence-its right to self-
government, by associating with a stronger, and taking its protection. Id., at 561, 8 L.Ed.
483. Adhering to this understanding, we conclude that the Tribe did not surrender its authority
to tax the mining activities of petitioners, whether this authority is deemed to arise from the
Tribe's inherent power of self-government or from its inherent power to exclude nonmembers.
Therefore, the Tribe may enforce its severance tax unless and until Congress divests this
power, an action that Congress has not taken to date. Finally, the severance tax imposed by
the Tribe cannot be invalidated on the ground that it violates the negative implications of
the Commerce Clause.
Affirmed.
Justice STEVENS, with whom THE CHIEF JUSTICE and Justice REHNQUIST join, dissent-
ing.
The Indian tribes that occupied North America before Europeans settled the continent
were unquestionably sovereigns. They ruled themselves and they exercised dominion over the
lands that nourished them. Many of those tribes, and some attributes of their sovereignty, sur-
vive today. This Court, since its earliest days, has had the task of identifying*160 those inher-
ent sovereign powers that survived the creation of a new Nation and the introduction of an en-
tirely new system of laws applicable to both Indians and non-Indians.
In performing that task, this Court has guarded carefully the unique status of Indian tribes
within this Nation. Over its own members, an Indian tribe's sovereign powers are virtually un-
limited; the incorporation of the tribe into the United States has done little to change internal
tribal relations. In becoming part of the United States, however, the tribes yielded their status
as independent nations; Indians and non-Indians alike answered to the authority of a new Na-
tion, organized under a new Constitution based on democratic principles of representative
government. In that new system of government, Indian tribes were afforded no general powers
over citizens of the United States. Many tribes, however, were granted a power unknown to
any other sovereignty in this Nation: a power to exclude nonmembers entirely from territory
reserved for the tribe. Incident to this basic power to exclude, the tribes exercise limited
powers of governance over nonmembers, though those nonmembers have no voice in tribal
government. Since a tribe may exclude nonmembers entirely from tribal territory, the tribe ne-
cessarily may impose conditions on a right of entry granted to a nonmember to do business on
the reservation.
The question presented in these cases is whether, after a tribe has granted nonmembers ac-
cess to its reservation on specified terms and conditions to engage in an economic venture of
mutual benefit, the **914 tribe may impose a tax on the nonmembers' share of benefits de-
rived from the venture. The Court today holds that it may do so. In my opinion this holding
distorts the very concept of tribal sovereignty. Because I am convinced that the Court's treat-
ment of these important cases gives inadequate attention to the critical difference between a
tribe's powers over its own members and its powers over nonmembers, I set forth my views at
greater length than is normally appropriate in a dissenting opinion.
*161 I
The 2,100 members of the Jicarilla Apache Tribe live on a reservation in northern New
Mexico.FN1 The area encompassed by the reservation became a part of the United States in
1848 when the Mexican War ended in the Treaty of Guadalupe Hidalgo. See 9 Stat. 922.
Between 1848 and 1871, the United States did not enter into any treaty with the Jicarillas or
enact any special legislation relating to them; in 1871 Congress outlawed any future treaties
with Indian tribes.FN2 In 1887, President Cleveland issued an Executive Order setting aside a
tract of public lands in the Territory of New Mexico as a reservation for the use and occupa-
tion of the Jicarilla Apache Indians. Except for a provision protecting bona fide settlers from
deprivation of previously acquired rights, the Executive Order contained no special rules ap-
plicable to the reservation.FN3 The mineral leases at issue in this case *162 were granted by
the Jicarilla Apache Tribe on these reservation lands.
FN1. See Plaintiff's Exhibit E, p. 4.
FN2. [H]ereafter no Indian nation or tribe within the territory of the United States
shall be acknowledged or recognized as an independent nation, tribe, or power with
whom the United States may contract by treaty: Provided, further, That nothing herein
contained shall be construed to invalidate or impair the obligation of any treaty hereto-
fore lawfully made and ratified with any such Indian nation or tribe. 16 Stat. 566, cur-
rent version at 25 U.S.C. 71.
FN3. The entire Executive Order reads as follows:
EXECUTIVE MANSION, FEBRUARY 11, 1887.
It is hereby ordered that all that portion of the public domain in the Territory of
New Mexico which, when surveyed, will be embraced in the following townships,
viz:
27, 28, 29, and 30 north, ranges 1 east, and 1, 2, and 3 west; 31 and 32 north, ranges
2 west and 3 west, and the south half of township 31 north, range 1 west, be, and the
same is hereby, set apart as a reservation for the use and occupation of the Jicarilla
Apache Indians: Provided, That this order shall not be so construed as to deprive any
bona fide settler of any valid rights he may have acquired under the law of the United
States providing for the disposition of the public domain.
Grover Cleveland.
and without obligation to the United States. The executive orders of 1879 and 1884
were simply an exercise of this power of termination, and the payment of compensa-
tion was not required. Id., at 330-331, 62 S.Ct., at 1101.
See also Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279-282, 75 S.Ct. 313,
317-319, 99 L.Ed. 314.
*163 **915 In 1927 Congress enacted a statute expressly providing that unallotted lands
on any Indian reservation created by Executive Order could be leased for oil and gas mining
purposes with the approval of the Secretary of the Interior.FN5 The statute directed that all
rentals, royalties, or bonuses for such leases should be paid to the Treasurer of the United
States for the benefit of the tribe for which the reservation was created.FN6 The statute further
provided that state taxes *164 could be levied upon the output of such oil and gas leases,FN7
but made no mention of the possibility that the Indian tribes, in addition to receiving royalties,
could impose taxes on the output.FN8
FN5. Act of Mar. 3, 1927, 44 Stat. (part 2) 1347, current version at 25 U.S.C. 398a.
Section 1 of the Act provided:
[U]nallotted lands within the limits of any reservation or withdrawal created by Ex-
ecutive order for Indian purposes or for the use or occupancy of any Indians or tribe
may be leased for oil and gas mining purposes in accordance with the provisions
contained in the Act of May 29, 1924 [25 U.S.C. 398].
See also 25 U.S.C. 398. Unalloted land is land that had not been allotted in sever-
alty to individual Indians pursuant to the General Allotment Act of 1887, 24 Stat.
388.
FN6. Section 2 of the Act provided:
[T]he proceeds from rentals, royalties, or bonuses of oil and gas leases upon lands
within Executive order Indian reservations or withdrawals shall be deposited in the
Treasury of the United States to the credit of the tribe of Indians for whose benefit
the reservation or withdrawal was created or who are using and occupying the land,
and shall draw interest at the rate of 4 per centum per annum and be available for ap-
propriation by Congress for expenses in connection with the supervision of the de-
velopment and operation of the oil and gas industry and for the use and benefit of
such Indians: Provided, That said Indians, or their tribal council, shall be consulted
in regard to the expenditure of such money, but no per capita payment shall be made
except by Act of Congress. 44 Stat. (part 2) 1347, current version at 25 U.S.C.
398b.
FN7. Section 3 of the Act provided:
[T]axes may be levied and collected by the State or local authority upon improve-
ments, output of mines or oil and gas wells or other rights, property, or assets of any
lessee upon lands within Executive order Indian reservations in the same manner as
such taxes are otherwise levied and collected, and such taxes may be levied against
the share obtained for the Indians as bonuses, rentals, and royalties, and the Secretary
of the Interior is authorized and directed to cause such taxes to be paid out of the tri-
bal funds in the Treasury: Provided, That such taxes shall not become a lien or
charge of any kind against the land or other property of such Indians. 44 Stat. (part
2) 1347, current version at 25 U.S.C. 398c.
FN8. In 1938, Congress passed the Act of May 11, 1938, 52 Stat. 347, 25 U.S.C.
396a-396g, which was designed in part to achieve uniformity for all mineral leases of
Indian lands. Like the 1927 Act, the statute provided that the tribes were entitled to the
royalties from such leases. The statute made no mention of taxes. See n. 45, infra.
**916 In 1934, Congress enacted the Indian Reorganization Act, 48 Stat. 984, 25 U.S.C.
461 et seq., which authorized any Indian tribe residing on a reservation to adopt a constitution
and bylaws, subject to the approval of the Secretary of the Interior. The Act provided that,
[i]n addition to all powers vested in any Indian tribe or tribal council by existing law, the
constitution should vest certain specific powers, such as the power to employ legal counsel, in
the tribe.FN9 The Act *165 also authorized the Secretary of the Interior to issue a charter of
incorporation to an Indian tribe, and provided that the charter could convey to the tribe the
power to purchase, manage, and dispose of its property.FN10 The 1934 Act was silent con-
cerning the right of an Indian tribe to levy taxes.FN11 The first Jicarilla Apache Constitution
was approved by the Secretary of the Interior in 1937.FN12
FN9. The statute provided, in part:
Any Indian tribe, or tribes, residing on the same reservation, shall have the right to
organize for its common welfare, and may adopt an appropriate constitution and
bylaws, which shall become effective when ratified by a majority vote of the adult
members of the tribe, or of the adult Indians residing on such reservation, as the case
may be, at a special election authorized and called by the Secretary of the Interior un-
der such rules and regulations as he may prescribe....
In addition to all powers vested in any Indian tribe or tribal council by existing law,
the constitution adopted by said tribe shall also vest in such tribe or its tribal council
the following rights and powers: To employ legal counsel, the choice of counsel and
fixing of fees to be subject to the approval of the Secretary of the Interior; to prevent
the sale, disposition, lease, or encumbrance of tribal lands, interests in lands, or other
tribal assets without the consent of the tribe; and to negotiate with the Federal, State,
and local Governments. 25 U.S.C. 476.
FN10. The statute provided:
The Secretary of the Interior may, upon petition by at least one-third of the adult In-
dians, issue a charter of incorporation to such tribe: Provided, That such charter shall
not become operative until ratified at a special election by a majority vote of the
adult Indians living on the reservation. Such charter may convey to the incorporated
tribe the power to purchase, take by gift, or bequest, or otherwise, own, hold, man-
age, operate, and dispose of property of every description, real and personal, includ-
ing the power to purchase restricted Indian lands and to issue in exchange therefor
interests in corporate property, and such further powers as may be incidental to the
conduct of corporate business, not inconsistent with law; but no authority shall be
granted to sell, mortgage, or lease for a period exceeding ten years any of the land in-
cluded in the limits of the reservation. Any charter so issued shall not be revoked or
surrendered except by Act of Congress. 25 U.S.C. 477.
FN11. See F. Cohen, Handbook of Federal Indian Law 267 (1942) (hereinafter Cohen).
FN12. The 1937 Constitution made no reference to any power to assess taxes against
nonmembers. See 1937 Constitution and By-Laws of the Jicarilla Apache Tribe, De-
fendants' Exhibit G.
*166 In 1953, the Tribe executed an oil and gas lease with the Phillips Petroleum Co. App.
22-30. The lease, prepared on a form provided by the Bureau of Indian Affairs of the Depart-
ment of the Interior, presumably is typical of later leases executed between other companies
and the Tribe. FN13 The lease provides that in return for certain rents, royalties, and a cash
bonus of $71,345.99, all to be paid to the treasurer of the Tribe, the Tribe as lessor granted to
the lessee the exclusive right and privilege to drill for, mine, extract, remove, and dispose of
all the oil and natural gas deposits in or under the described tracts of land, together with the
right to construct and maintain buildings, plants, tanks, and other necessary structures on the
surface. Id., at 22-23. The lease is for a term of 10 years following approval by the Secretary
of the Interior and as much longer thereafter as **917 oil and/or gas is produced in paying
quantities from said land. Ibid. The lessee is obligated to use reasonable diligence in the de-
velopment of the property, and to pay an annual rental of $1.25 per acre and a royalty of 12
1/2 % of the value or amount of all oil and gas produced and saved from the leased land.
Id., at 24, 26. Oil and gas used by the lessee for development and operation of the lease is roy-
alty-free. Id., at 24. The Tribe reserved the rights to use free of charge sufficient gas for any
school or other building owned by the Tribe on the leased premises, and to take its royalty in
kind. Id., at 27-28.
FN13. This lease is attached to petitioners' complaint in No. 80-11. The lease attached
to the complaint in No. 80-15 was also executed in 1953. See App. 62. The record does
not disclose the date on which most of the leases with petitioners were executed, but
the record does indicate that leases were executed as late as 1967. See Plaintiffs' Ex-
hibit 1. Leases of Jicarilla tribal property cover in the aggregate over 500,000 acres of
land, comprising almost 69% of the acreage within the Jicarilla Reservation. Brief for
Respondent, Jicarilla Apache Tribe 2.
The lease contains no reference to the payment of taxes. The lessee does, however, agree
to comply with all regulations of the Secretary of the Interior
now or hereafter in force relative to such leases: Provided, That no regulation hereafter
approved shall effect *167 a change in rate or royalty or annual rental herein specified without
the written consent of the parties to this lease. Id., at 27.
The lease was approved by the Commissioner of Indian Affairs on behalf of the Secretary
of the Interior. Id., at 32. Both of the 1953 leases described in the record are still producing.
In 1968, the Tribe adopted a Revised Constitution giving its Tribal Council authority, sub-
ject to approval by the Secretary of the Interior, to impose taxes and fees on non-members of
the tribe doing business on the reservation. FN14 Eight years later, the Tribal Council en-
acted an Oil and Gas Severance Tax Ordinance, which was approved by the Secretary of the
Interior. The tribal ordinance provides that a severance tax is imposed on any oil and natural
gas severed, saved and removed from Tribal lands.... Id., at 38. The rate of the tax is $.05 per
million Btu's of gas produced on the reservation and sold or transported off the reservation
and $0.29 per barrel of crude or condensate produced on the reservation and sold or transpor-
ted off the reservation. Id., at 39. Royalty gas or oil taken by the Tribe, as well as gas or oil
used by the Tribe, is exempt from the tax. Ibid. Thus the entire burden of the tax apparently
will fall on nonmembers of the Tribe. The tax, if sustained, will produce over $2 million in
revenues annually.FN15
FN14. App. to Brief for Petitioners in No. 80-15, pp. 12a-13a. An earlier Constitution
adopted in 1960 contained a similar provision permitting taxes and fees on persons
doing business on the reservation. See 1960 Constitution of the Jicarilla Apache
Tribe, Art. VI, 5, Defendant's Exhibit A.
FN15. See District Court's Findings of Fact and Conclusions of Law, Finding No. 32,
App. 130. The Tribe's answers to interrogatories indicate that in 1976 the royalties on
the leases received by the Tribe amounted to $3,995,469.69. See Plaintiff's Exhibit E,
p. 7; Tr. 269.
*168 II
The powers possessed by Indian tribes stem from three sources: federal statutes, treaties,
and the tribe's inherent sovereignty. Neither the Tribe nor the Federal Government seeks to
justify the Jicarilla Tribe's severance tax on the basis of any federal statute,FN16 and the Ji-
carilla Apaches, who reside on an Executive Order reservation, executed no treaty with the
United States from which they derive sovereign powers. Therefore, if the severance tax is val-
id, it must be as an exercise of the Tribe's inherent sovereignty.
FN16. Congress may delegate sovereign powers to the tribes. See United States v.
Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706. As indicated, however, neither
the 1927 statute permitting Indians to receive royalties from the lease of tribal lands
nor the Indian Reorganization Act of 1934 conveys authority to the Indian tribes to tax.
See supra, at 915-916.
Tribal sovereignty is neither derived from nor protected by the Constitution. FN17 **918
Indian tribes have, however, retained many of the powers of self-government that they pos-
sessed at the time of their incorporation into the United States. As stated by Justice M'Lean in
Worcester v. Georgia, 6 Pet. 515, 580, 8 L.Ed. 483 (concurring opinion):
FN17. The only reference to Indian tribes in the Constitution is in Art. I, 8, cl. 3,
which provides that [t]he Congress shall have Power ... [t]o regulate Commerce with
foreign Nations, and among the several States, and with the Indian Tribes. More sig-
nificant than this reference to Indian tribes is the absence of any mention of the tribes
in the Tenth Amendment, which provides:
The powers not delegated to the United States by the Constitution, nor prohibited by
it to the States, are reserved to the States respectively, or to the people.
At no time has the sovereignty of the country been recognised as existing in the Indians,
but they have been always admitted to possess many of the attributes of sovereignty. All the
rights which belong to self-government have been recognised as vested in them.
*169 Similarly, the Court in United States v. Kagama, 118 U.S. 375, 381-382, 6 S.Ct.
1109, 1112-13, 30 L.Ed. 228, stated:
[The Indians] were, and always have been, regarded as having a semi-independent posi-
tion when they preserved their tribal relations; not as States, not as nations, not as possessed
of the full attributes of sovereignty, but as a separate people, with the power of regulating
their internal and social relations, and thus far not brought under the laws of the Union or of
the State within whose limits they resided.
Two distinct principles emerge from these early statements of tribal sovereignty: that Indi-
an tribes possess broad powers of self-governance over tribal members, but that tribes do not
possess the same attributes of sovereignty that the Federal Government and the several States
enjoy. FN18 In determining the extent of the sovereign powers that the tribes retained in sub-
mitting to the authority of the United States, *170 this Court has recognized a fundamental
distinction between the right of the tribes to govern their own internal affairs and the right to
exercise powers affecting nonmembers of the tribe.
FN18. The Indian tribes often have been described as domestic dependent nations.
The term was first used in Cherokee Nation v. Georgia, 5 Pet. 1, 8 L.Ed. 25, where
Chief Justice Marshall, writing for the Court, explained:
Though the Indians are acknowledged to have an unquestionable, and, heretofore,
unquestioned right to the lands they occupy, until that right shall be extinguished by
a voluntary cession to our government; yet, it may well be doubted whether those
tribes which reside within the acknowledged boundaries of the United States can,
with strict accuracy, be denominated foreign nations. They may, more correctly, per-
haps, be denominated domestic dependent nations. They occupy a territory to which
we assert a title independent of their will, which must take effect in point of posses-
sion when their right of possession ceases. Meanwhile they are in a state of pupilage.
Their relation to the United States resembles that of a ward to his guardian. Id., at
17, 8 L.Ed. 25.
The United States retains plenary authority to divest the tribes of any attributes of
sovereignty. See United States v. Wheeler, 435 U.S. 313, 319, 98 S.Ct. 1079, 1083,
55 L.Ed.2d 303; Winton v. Amos, 255 U.S. 373, 391-392, 41 S.Ct. 342, 349, 65 L.Ed.
684; Lone Wolf v. Hitchcock, 187 U.S. 553, 565, 23 S.Ct. 216, 221, 47 L.Ed. 299; 1
American Indian Policy Review Commission, Final Report 106-107 (1977)
(hereinafter AIPRC Final Report). Thus, for example, Congress can waive the tribes'
sovereign immunity. See United States v. United States Fidelity & Guaranty Co.,
309 U.S. 506, 512, 60 S.Ct. 653, 656, 84 L.Ed. 894.
The Court has been careful to protect the tribes from interference with tribal control over
their own members. The Court has recognized that tribes have the power to prosecute mem-
bers for violations of tribal criminal law, and that this power is an inherent attribute of tribal
sovereignty. United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303. The
tribes also retain the power to create substantive law governing internal tribal affairs. Tribes
may define rules of membership, and thus determine who is entitled to the benefits of tribal
citizenship, Roff v. Burney, 168 U.S. 218, 18 S.Ct. 60, 42 L.Ed. 442; establish rules of inherit-
ance, which supersede applicable state law, Jones v. Meehan, 175 U.S. 1, 29, 20 S.Ct. 1, 12,
44 L.Ed. 49; and determine rights to custody of a child of divorced parents of the tribe, and
thus pre-empt adoption proceedings brought in state court. Fisher v. District Court, 424 U.S.
382, 96 S.Ct. 943, 47 L.Ed.2d 106. This substantive tribal law may be enforced in tribal
courts. **919Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251; Fisher v. District
Court, supra.
In many respects, the Indian tribes' sovereignty over their own members is significantly
greater than the States' powers over their own citizens. Tribes may enforce discriminatory
rules that would be intolerable in a non-Indian community. The equal protection components
of the Fifth and Fourteenth Amendments, which limit federal or state authority, do not simil-
arly limit tribal power. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56, and n. 7, 98
S.Ct. 1670, 1675, and n. 7, 56 L.Ed.2d 106.FN19 The criminal jurisdiction of the tribes over
their own members is similarly unconstrained*171 by constitutional limitations applicable to
the States and the Federal Government.FN20 Thus the use of the word sovereign to charac-
terize tribal powers of self-government is surely appropriate.
FN19. The Indian Civil Rights Act of 1968, 82 Stat. 77, 25 U.S.C. 1301-1303, pro-
hibits Indian tribes from denying to any person within its jurisdiction the equal pro-
tection of its laws. 1302(8). In Santa Clara Pueblo, however, the Court held that
sovereign immunity protected a tribe from suit under the Act, that the Act did not cre-
ate a private cause of action cognizable in federal court, and that a tribal court was the
appropriate forum for vindication of rights created by the Act.
FN20. In Talton v. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196, the Court held
that the Fifth Amendment right to indictment by grand jury does not apply to prosecu-
tions in tribal courts. See also United States v. Wheeler, supra, at 328-329, 98 S.Ct., at
1088-1089.
In sharp contrast to the tribes' broad powers over their own members, tribal powers over
nonmembers have always been narrowly confined.FN21 The Court has emphasized that
exercise of tribal power beyond what is necessary to protect tribal self-government or to con-
trol internal relations is inconsistent with the dependent status of the tribes, and so cannot sur-
vive without express congressional delegation. Montana v. United States, 450 U.S. 544, 564,
101 S.Ct. 1245, 1257, 67 L.Ed.2d 493. In Oliphant v. Suquamish Indian Tribe, 435 U.S. 191,
98 S.Ct. 1011, 55 L.Ed.2d 209, the Court held that tribes have no criminal jurisdiction over
crimes committed by nonmembers within the reservations.FN22 In Montana v. United States,
supra, the Court held that the Crow Tribe could not prohibit hunting and fishing by nonmem-
bers on reservation*172 land no longer owned by the Tribe, and indicated that the principle
underlying Oliphant -that tribes possess limited power over nonmembers-was applicable in a
civil as well as a criminal context. As stated by the Court, [t]hough Oliphant only determined
inherent tribal authority in criminal matters, the principles on which it relied support the gen-
eral proposition that the inherent sovereign powers of an Indian tribe do not extend to the
activities of nonmembers of the tribe. Montana v. United States, supra, at 565, 101 S.Ct., at
1258 (footnote omitted).FN23
FN21. Certain treaties that specifically granted the right of self-government to the
tribes also specifically excluded jurisdiction over nonmembers. See, e.g., Treaty with
the Cherokees, Art. 5, 7 Stat. 481 (1835); Treaty with the Choctaws and Chickasaws,
Art. 7, 11 Stat. 612 (1855); Treaty with the Creeks and Seminoles, Art. 15, 11 Stat.
703 (1856).
FN22. In support of that holding, the Court stated:
Upon incorporation into the territory of the United States, the Indian tribes thereby
come under the territorial sovereignty of the United States and their exercise of sep-
arate power is constrained so as not to conflict with the interests of this overriding
sovereignty. [T]heir rights to complete sovereignty, as independent nations, [are]
necessarily diminished. Johnson v. M'Intosh, 8 Wheat. 543, 574 [5 L.Ed. 681]
(1823). 435 U.S., at 209, 98 S.Ct., at 1021.
See also New York ex rel. Ray v. Martin, 326 U.S. 496, 499, 66 S.Ct. 307, 308, 90
L.Ed. 261 (state court has jurisdiction to try a non-Indian for a crime committed
against a non-Indian on a reservation).
FN23. Preceding this statement the Court noted that the Court [in Oliphant] quoted
Justice Johnson's words in his concurrence in Fletcher v. Peck, 6 Cranch 87, 147, 3
L.Ed. 162-the first Indian case to reach this Court-that the Indian tribes have lost any
right of governing every person within their limits except themselves. 435 U.S., at
209 [98 S.Ct., at 1021]. Montana v. United States, 450 U.S., at 565, 101 S.Ct., at
1258. See also Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 94 S.Ct. 772,
39 L.Ed.2d 73 (tribes cannot freely alienate to non-Indians the land they occupy);
Cherokee Nation v. Georgia, 5 Pet. 1, 17-18, 8 L.Ed. 25 (tribes cannot enter into direct
commercial or foreign relations with other nations).
In United States v. Wheeler, supra, the Court held that the tribes' power to prosecute
its members for tribal offenses was not implicitly lost by virtue of their dependent
status, but stated:
The areas in which such implicit divestiture of sovereignty has been held to have
occurred are those involving the relations between an Indian tribe and nonmembers
of the tribe....
These limitations rest on the fact that the dependent status of Indian tribes within
our territorial jurisdiction is necessarily inconsistent with their freedom independ-
ently to determine their external relations. But the powers of self-government, in-
cluding the power to prescribe and enforce internal criminal laws, are of a different
type. They involve only the relations among members of a tribe. Thus, they are not
such powers as would necessarily be lost by virtue of a tribe's dependent status.
[T]he settled doctrine of the law of nations is, that a weaker power does not sur-
render its independence-its right to self government, by associating with a stronger,
and taking its protection. Worcester v. Georgia [6 Pet.], at 560-561. 435 U.S., at
326, 98 S.Ct., at 1088.
**920 The tribes' authority to enact legislation affecting nonmembers is therefore of a dif-
ferent character than their broad power to control internal tribal affairs. This difference is
*173 consistent with the fundamental principle that [i]n this Nation each sovereign governs
only with the consent of the governed. Nevada v. Hall, 440 U.S. 410, 426, 99 S.Ct. 1182,
1191, 59 L.Ed.2d 416. Since nonmembers are excluded from participation in tribal govern-
ment, the powers that may be exercised over them are appropriately limited. Certainly, tribal
authority over nonmembers-including the power to tax-is not unprecedented. An examination
of cases that have upheld this power, however, demonstrates that the power to impose such a
tax derives solely from the tribes' power to exclude nonmembers entirely from territory that
has been reserved for the tribe. This power to exclude logically has been held to include the
lesser power to attach conditions on a right of entry granted by the tribe to a nonmember to
engage in particular activities within the reservation.
III
A study of the source of the tribes' power to tax nonmembers must focus on the extent of
the tribal power to tax that existed in 1934, when the Indian Reorganization Act was enacted
to prevent further erosion of Indian sovereign powers.FN24 *174 Shortly after the Act was
passed, the Solicitor of the Department of the Interior issued a formal opinion setting forth his
understanding of the powers that might be secured by an Indian tribe and incorporated in its
constitution by virtue of the reference in the Reorganization Act to powers vested in an **921
Indian tribe by existing law. FN25 Solicitor Margold concluded*175 that among those
powers was a power of taxation; his opinion described the permissible exercise of that power:
FN24. The Indian Reorganization Act of 1934 confirmed but did not enlarge the inher-
ent sovereign powers of the Indian tribes. Congress intended the Act to stabilize the
tribal organization of Indian tribes by vesting such tribal organizations with real,
though limited, authority.... S.Rep. No. 1080, 73d Cong., 2d Sess., 1 (1934). As one
commentator interpreted 16 of the Act:
[I]t would appear that powers originally held by tribes that were recognized and al-
lowed to be retained by treaties or prior statutes, as well as any additional powers
conferred in the same manner, would be retained by tribes that accepted the terms of
the 1934 Act.... The provision is consistent with the act's purpose of enhancing tribal
government in that it recognized and reconfirmed those powers a tribe may already
have had as a government. Mettler, A Unified Theory of Indian Tribal Sovereignty,
their reasoning. In each the court upheld the tax; in each the court relied on the Tribe's power
to exclude non-Indians from its reservation and concluded that the Tribe could condition entry
or continued presence within the reservation on the payment of a license fee or tax; and in
each the court assumed that the ultimate remedy for nonpayment of the tax would be exclu-
sion from the reservation.
FN26. Felix Cohen, in his Handbook on Federal Indian Law published in 1942, also
relies on these cases in his discussion of tribal taxation of nonmembers. Cohen
266-267. The Court in Washington v. Confederated Tribes of Colville Reservation, 447
U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10, cited both Buster v. Wright and Morris v.
Hitchcock in upholding an exercise of the tribal power to tax. 447 U.S., at 153, 100
S.Ct., at 2081. See infra., at 926.
In the first of these cases, Maxey v. Wright, the Court of Appeals of Indian Territory af-
firmed an order by a federal territorial court dismissing a complaint filed by non-Indian law-
yers practicing in the Creek Nation. The complaint sought to enjoin the Indian agent for the
Five Civilized Tribes from collecting an annual occupation tax of $25 assessed on each non-
Indian lawyer residing and practicing *176 his profession on the reservation. In rejecting the
attorneys' claim, the Court of Appeals first analyzed the relevant treaties between the United
States and the Creeks and noted that the Indians had carefully guarded their sovereignty, and
their right to admit, and consequently to exclude, all white persons, except such as are named
in the treaty. 3 Ind.T., at 247, 54 S.W., at 809. The court noted that the United States had
agreed that all persons who were not expressly excepted and were present in the Creek Nation
without the consent of that Nation [were] deemed to be intruders, and that the Government
had pledge[d] itself to remove them. Id., at 248, 54 S.W., at 809. Because attorneys were
not within any excepted class,FN27 the court concluded **922 that the Tribe had the authority
to require them either to pay the license fee or to be removed as intruders. FN28 The court
held:
FN27. Attorneys practicing in the United States courts are not persons who come
within the exceptions, for they are not in the employment of the government of the
United States, or persons peaceably traveling or temporarily sojourning in the coun-
try, or trading therein under license from the proper authority of the United States. 3
Ind.T., at 248-249, 54 S.W., at 809.
FN28. In reaching this conclusion the court relied heavily on two opinions of the At-
torney General of the United States. In the first opinion, issued in 1881, Attorney Gen-
eral MacVeagh supported the validity of Indian permit laws that determined which per-
sons would be permitted to reside on the Choctaw and Chickasaw Reservations. 17
Op.Atty.Gen. 134. In his discussion of the right of non-Indians to enter and remain on
tribal lands, MacVeagh stated:
Replying to your fourth question: it seems from what has been already said that, be-
sides those persons or classes mentioned by you, only those who have been permitted
by the Choctaws or Chickasaws to reside within their limits, or to be employed by
their citizens as teachers, mechanics, or skilled agriculturists, have a right to enter
and remain on the lands of these tribes; and the right to remain is gone when the per-
mit has expired. Id., at 136 (emphasis added).
In a second opinion on the same subject, Attorney General Phillips stated in 1884
that, in the absence of a treaty or statute, the power of an Indian tribe to regulate its
own rights of occupancy, and to say who shall participate therein and upon what con-
ditions, can not be doubted. 18 Op.Atty.Gen. 34, 36. Although the treaties applic-
able to the Choctaw and Chickasaw Tribes specifically excepted from the grant of
self-government the power over nonmembers, the Attorney General did not construe
this provision to limit the Tribes' power to exclude:
I submit that whatever this may mean it does not limit the right of these tribes to
pass upon the question, who (of persons indifferent to the United States, i.e., neither
employs, nor objectionable) shall share their occupancy and upon what terms. That
is a question which all private persons are allowed to decide for themselves .... Id.,
at 37.
*177 [T]he Creek nation had the power to impose this condition or occupation tax, if it
may be so called, upon attorneys at law (white men) residing and practicing their profession in
the Indian Territory. And inasmuch as the government of the United States, in the treaty, had
declared that all persons not authorized by its terms to reside in the Creek Nation should be
deemed to be intruders, and had obligated itself to remove all such persons from the Creek
Nation, the remedy to enforce this provision of the treaty was a removal by the United States
from the Creek Nation of the delinquent as an intruder. 3 Ind.T., at 250, 54 S.W., at 809-810.
FN29
FN29. In other parts of its opinion, the court restated the propositions that the Tribe
was clothed with the power to admit white men, or not, at its option, which, as we
hold, gave it the right to impose conditions, 3 Ind.T., at 253, 54 S.W., at 811, and that
a lawyer who refused to pay for the privilege of remaining would become an
intruder:
On the whole case we therefore hold that a lawyer who is a white man, and not a
citizen of the Creek Nation, is, pursuant to their statute, required to pay for the priv-
ilege of remaining and practicing his profession in that nation the sum of $25; that, if
he refuse the payment thereof, he becomes, by virtue of the treaty, an intruder, and
that in such a case the government of the United States may remove him from the na-
tion; and that this duty devolves upon the interior department. Whether the interior
department or its Indian agents can be controlled by the courts by the writs of man-
damus and injunction is not material in this case, because, as we hold, an attorney
who refuses to pay the amount required by the statute by its very terms becomes an
intruder, whom the United States promises by the terms of the treaty to remove, and
therefore in such cases the officers and agents of the interior department would be
acting clearly and properly within the scope of their powers. Id., at 256-257, 54
S.W., at 812.
*178 Morris v. Hitchcock, 194 U.S. 384, 24 S.Ct. 712, 48 L.Ed. 1030, decided by this
Court in 1904, also arose from a challenge to an enactment of one of the Five Civilized Tribes
that required non-Indians to pay annual permit fees. The complainants owned cattle and
horses that were grazing on land in the Chickasaw Nation pursuant to contracts with individu-
al members of the Tribe. Complainants filed suit in the District of Columbia seeking an in-
junction preventing federal officials from removing their cattle and horses from the Indian
Territory for failure to pay the permit fees assessed by the Tribe. An order dismissing the
complaint was affirmed by the **923 Court of Appeals for the District of Columbia and by
this Court.
This Court's opinion first noted that treaties between the United States and the Chickasaw
Nation had granted the Tribe the right to control the presence within the territory assigned to
it of persons who might otherwise be regarded as intruders, FN30 and that the United States
had assumed the obligation of protecting the Indians from aggression by persons not subject to
their jurisdiction. Id., at 389, 24 S.Ct., at 714. The Court then reviewed similar legislation that
had been adopted by the Chickasaw Nation in 1876, FN31 and noted that in 1879 the Senate
Committee on the Judiciary had specifically referred to the 1876 legislation and expressed an
opinion that it was valid. Id., at 389-390, 24 S.Ct., at 714-15.
FN30. The Court stated:
And it is not disputed that under the authority of these treaties, the Chickasaw Na-
tion has exercised the power to attach conditions to the presence within its borders of
persons who might otherwise not be entitled to remain within the tribal territory.
194 U.S., at 389, 24 S.Ct., at 714.
FN31. The 1876 legislation required licensed merchants and traders to obtain a permit
and pay a fee of $25.
The Court also reviewed two opinions of the Attorney General that had concluded that the
power of the Chickasaw to impose permit fees had not been withdrawn by Congress.FN32
*179 Although Congress subsequently had created an express exception in favor of owners of
town lots and thus protected them from eviction as intruders, the Court noted that no compar-
able protection had been given to owners of cattle and horses. Id., at 392-393, 24 S.Ct., at
715-716. On the basis of these authorities, the Court concluded that the Chickasaw legislation
imposing grazing fees was valid.
FN32. The Court relied on 23 Op.Atty.Gen. 214 (1900) and 23 Op.Atty.Gen. 528
(1901). In the first opinion, Attorney General John W. Griggs stated:
The treaties and laws of the United States make all persons, with a few specified ex-
ceptions, who are not citizens of an Indian nation or members of an Indian tribe, and
are found within an Indian nation without permission, intruders there, and require
their removal by the United States. This closes the whole matter, absolutely excludes
all but the excepted classes, and fully authorizes these nations to absolutely exclude
outsiders, or to permit their residence or business upon such terms as they may
choose to impose, and it must be borne in mind that citizens of the United States,
have, as such, no more right or business to be there than they have in any foreign na-
tion, and can lawfully be there at all only by Indian permission; and that their right to
be or remain or carry on business there depends solely upon whether they have such
permission.
As to the power or duty of your Department in the premises there can hardly be a
doubt. Under the treaties of the United States with these Indian nations this Govern-
ment is under the most solemn obligation, and for which it has received ample con-
sideration, to remove and keep removed from the territory of these tribes, all this
class of intruders who are there without Indian permission. The performance of this
obligation, as in other matters concerning the Indians and their affairs, has long been
devolved upon the Department of the Interior. 23 Op.Atty.Gen., at 218.
In the third case, Buster v. Wright, 135 F. 947 (CA8 1905), nonmembers of the Creek Na-
tion brought suit against federal inspectors to enjoin them from stopping the plaintiffs from
doing business within the reservation; the nonmembers feared such action because they had
refused to pay a permit tax assessed on traders by the Tribe. The Court of Appeals relied on
Morris v. Hitchcock and Maxey v. Wright in upholding the tax. The opinion for the court by
Judge Walter H. Sanborn emphasized that the tax was in the nature of a condition precedent to
transacting business within the reservation and that the plaintiffs had ample notice of the tax:
*180 The permit tax of the Creek Nation, which is the subject of this controversy, is the
annual price fixed by the act of its national council, which was approved by the President of
the United States in the year 1900, for the privilege which it offers to those who are not cit-
izens of its nation of trading within its borders. The payment of this tax is a mere condition of
the exercise of this privilege. No **924 noncitizen is required to exercise the privilege or to
pay the tax. He may refrain from the one and he remains free from liability for the other.
Thus, without entering upon an extended discussion or consideration of the question whether
this charge is technically a license or a tax, the fact appears that it partakes far more of the
nature of a license than of an ordinary tax, because it has the optional feature of the former
and lacks the compulsory attribute of the latter.
Repeated decisions of the courts, numerous opinions of the Attorneys General, and the
practice of years place beyond debate the propositions that prior to March 1, 1901, the Creek
Nation had lawful authority to require the payment of this tax as a condition precedent to the
exercise of the privilege of trading within its borders, and that the executive department of the
government of the United States had plenary power to enforce its payment through the Secret-
ary of the Interior and his subordinates, the Indian inspector, Indian agent, and Indian police.
135 F., at 949-950.
The court noted that the traders, who had purchased town lots of the Creek Nation pursu-
ant to a 1901 agreement between the Creeks and the United States, could not rely on that
agreement as an implied divestiture of a pre-existing power to tax.FN33 The court held that
even though noncitizens *181 of the Tribe had acquired lawful ownership of lots pursuant to
the 1901 agreement and could not be evicted from those lots, they had no right to conduct
business within the reservation without paying the permit taxes.FN34
FN33. After citing the opinion of Attorney General Griggs quoted at length in Morris
v. Hitchcock, Judge Sanborn wrote:
Pursuant to this decision the civilized tribes were charging, and the Indian agent
was collecting, taxes from noncitizens engaged in business in these nations. It was
under this state of facts that the United States and the Creek Nation made the agree-
ment of 1901. Did they intend by that agreement that the Creek Nation should
thereby renounce its conceded power to exact these permit taxes? Both parties knew
that this power existed, and the United States, by the act of its President approving
the law of the Creek national council, and the Secretary of the Interior by enforcing
it, had approved its exercise. The subject of these taxes was presented to the minds of
the contracting parties and was considered during the negotiation of the agreement,
for that contract contains express stipulations that cattle grazed on rented allotments
shall not be liable to any tribal tax (chapter 676, 31 Stat. 871, 37), and that no non-
citizen renting lands from a citizen for agricultural purposes as provided by law,
whether such lands have been selected as an allotment or not, shall be required to pay
any permit tax (chapter 676, 31 Stat. 871, 39). But they made no provision that
noncitizens who engaged in the mercantile business in the Creek Nation should be
exempt from these taxes. As the law then in force required such noncitizens to pay
such taxes, as both parties were then aware of that fact and considered the question,
and as they made no stipulation to abolish these taxes, the conclusive presumption is
that they intended to make no such contract, and that the power of the Creek Nation
to exact these taxes, and the authority of the Secretary of the Interior and of his sub-
ordinates to collect them, were neither renounced, revoked, nor restricted, but that
they remained in full force and effect after as before the agreement of 1901. 135 F.,
at 954.
FN34. Ibid. The court stated:
The legal effect ... of the law prescribing the permit taxes is to prohibit noncitizens
from conducting business within the Creek Nation without the payment of these
taxes. Id., at 955.
Prior to the enactment of the Indian Reorganization Act in 1934, these three cases were the
only judicial decisions considering the power of an Indian tribe to impose a tax on nonmem-
bers.FN35 These cases demonstrate**925 that the power of an *182 Indian tribe to impose a
tax solely on nonmembers doing business on the reservation derives from the tribe's power to
exclude those persons entirely from tribal lands or, in the alternative, to impose lesser restric-
tions and conditions on a right of entry granted to conduct business on the reservation.FN36
This interpretation is supported by the fact that the *183 remedy for the nonpayment of the tax
in all three cases was exclusion from the reservation.FN37
FN35. Two decades after the Reorganization Act was passed the problem was revisited
by the Eighth Circuit. In Iron Crow v. Oglala Sioux Tribe of Pine Ridge Reservation,
231 F.2d 89 (1956), the court held that the Tribe had the power to assess a tax on a
nonmember lessee of land within the reservation for the privilege of grazing stock on
reservation land. And in Barta v. Oglala Sioux Tribe of Pine Ridge Reservation, 259
F.2d 553 (1958), the court held that the United States could bring an action on behalf
of the Tribe to collect a license tax of 3 cents per acre per annum for grazing land and
15 cents per acre per annum for farm land levied on nonmember lessees. The court in
Barta held that the tax did not violate the constitutional rights of the nonmember less-
ees, stating in part:
The tribe by provisions of its treaty with the United States has power to provide for
the admission of nonmembers of the tribe onto the reservation. Having such power, it
has the authority to impose restrictions on the presence of nonmembers within the re-
servation. Id., at 556.
Language in both Iron Crow and Barta suggests that the Court of Appeals, unlike the
earlier courts, may not have rested the taxing power solely on the power to exclude.
The Court of Appeals of course did not have the benefit of our decisions in Oliphant
v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209, Wheeler,
and Montana v. United States.
FN36. In the chapter of his treatise entitled Taxation, Felix Cohen states:
Though the scope of the power [to tax] as applied to nonmembers is not clear, it ex-
tends at least to property of nonmembers used in connection with Indian property as
well as to privileges enjoyed by nonmembers in trading with the Indians. The power
to tax nonmembers is derived in the cases from the authority, founded on original
sovereignty and guaranteed in some instances by treaties, to remove property of non-
members from the territorial limits of the tribe. Since the tribal government has the
power to exclude, it can extract a fee from nonmembers as a condition precedent to
granting permission to remain or to operate within the tribal domain. Cohen
266-267 (footnotes omitted).
In another chapter, entitled The Scope of Tribal Self-Government, cited by the
Secretary of the Interior and the Tribe here, Cohen describes the power of taxation as
an inherent attribute of tribal sovereignty which continues unless withdrawn or lim-
ited by treaty or by act of Congress.... Id., at 142. After discussing Buster v. Wright,
Cohen cites that case for the proposition that [t]he power to tax does not depend
upon the power to remove and has been upheld where there was no power in the tribe
to remove the taxpayer from the tribal jurisdiction. Cohen 143. As demonstrated
above, however, the license tax in Buster was predicated on the tribe's right to attach
conditions on the right of nonmembers to conduct business on the reservation; the
tribe could prevent such nonmembers from doing business regardless of whether it
could physically remove them from the reservation. Moreover, in that same chapter
on tribal self-government, Cohen recognizes that tribal taxes have been upheld on the
basis of the tribe's power to remove nonmembers from the reservation, and that [i]t
is therefore pertinent, in analyzing the scope of tribal taxing powers, to inquire how
far an Indian tribe is empowered to remove nonmembers from its reservation. Co-
hen 143.
The American Indian Policy Review Commission recognized that the court decisions
upholding the tribes' taxing powers rely largely upon the power of tribes to remove
persons from the reservation, and consequently, to prescribe the conditions upon
which they shall enter, but argued for a broader source of the right to tax. AIPRC
Final Report 178-179.
FN37. In Buster v. Wright, the penalty for nonpayment of the tax was the closing of the
nonmember's business, enforced by the Secretary of the Interior. 135 F., at 954. In
Morris v. Hitchcock, the remedy was the removal of the nonmember's cattle from the
reservation, again enforced by the United States. 194 U.S., at 392, 24 S.Ct., at 715. In
Maxey v. Wright, an attorney refusing to pay the license fee to the Interior Department
was subject to removal from the reservation. 3 Ind.T., at 250, 54 S.W., at 810.
As I have noted, a limitation on the power of Indian tribes to tax nonmembers is not
simply an archaic concept derived from three old cases that has no basis in logic or equity.
Tribal powers over nonmembers are appropriately limited because nonmembers are foreclosed
from participation in tribal government. If the power to tax is limited to situations in which
the tribe has the power to exclude, then the nonmember is subjected to the tribe's jurisdiction
only if he accepts the conditions of entry imposed by the tribe.FN38 The limited source of the
power to tax nonmembers-the power to exclude intruders-is thus consistent with this Court's
recognition*184 of the limited character of the power of Indian tribes over nonmembers in
general.FN39 The proper **926 source of the taxing authority asserted by the Jicarilla Apache
Tribe in these cases, therefore, is not the Tribe's inherent power of self-government, but rather
its power over the territory that has been set apart for its use and occupation.FN40
FN38. No noncitizen is required to exercise a privilege or to pay the tax. He may re-
frain from the one and he remains free from liability for the other. Buster v. Wright,
135 F., at 949.
FN39. See supra, at 919. As I have indicated, see n. 21, supra, treaties recognizing the
inherent power of tribal self-government have also deprived the tribes of jurisdiction
over nonmembers. Nevertheless, those same treaties often specifically recognized the
right of the tribe to exclude nonmembers from the reservation or to attach conditions
on their entry. See e.g., Treaty with the Choctaw and Chickasaw, Art. 7, 11 Stat. 612
(1855); Treaty with the Creeks and Seminoles, Art. 15, 11 Stat. 699 (1856). See 2 C.
Kappler, Indian Affairs, Laws and Treaties 7, 9, 12, 15, 17, 20, 21, 27, 30, 42, 75, 418,
682, 699, 703, 719, 761, 774, 779, 790, 794, 800, 866, 886, 888, 929, 985, 990, 998,
1008, 1016, 1021 (1904).
FN40. The various tribes may have taken a similar view of their power to tax at the
time of the Indian Reorganization Act. Cohen's treatise notes:
The power of an Indian tribe to levy taxes upon its own members and upon non-
members doing business within the reservations has been affirmed in many tribal
constitutions approved under the Wheeler-Howard Act [Indian Reorganization Act],
as has the power to remove nonmembers from land over which the tribe exercises
FN44. In some respects the tribal power to tax nonmembers may be greater than the
taxing power of other sovereigns. States do not have any power to exclude nonresid-
ents from their borders. Moreover, their taxing statutes, like their other laws, must
comply with the Equal Protection Clause of the Fourteenth Amendment. They may
not, therefore, impose discriminatory taxes as a condition attached to entry into the jur-
isdiction in order to engage in economic activity. But since an Indian tribe has exclus-
ive control over the use and occupancy of land within its reservation, it arguably
could attach special discriminatory conditions to any license to a nonmember to use or
occupy a portion of that land. As stated earlier, at a minimum the equal protection
components of the Fifth and Fourteenth Amendments, which limit the sovereign
powers of the Federal and State Governments, do not similarly restrict the sovereign
powers of an Indian tribe. See supra., at 919.
*186 **927 IV
The power to exclude petitioners would have supported the imposition of a discriminatory
tribal tax on petitioners when they sought to enter the Jicarilla Apache Reservation to explore
for minerals. Moreover, even if no tax had been imposed at the time of initial entry, a discrim-
inatory severance tax could have been imposed as a condition attached to the grant of the priv-
ilege of extracting minerals from the earth.FN45 But the Tribe did not impose any tax prior to
petitioners' entry or as a condition attached to the privileges granted by the leases in 1953. As
a result, the tax imposed in 1976 is not valid unless the Tribe retained its power either to ex-
clude petitioners from the reservation or to prohibit them from continuing to extract oil and
gas from reservation lands.
FN45. [A]s the payment of a tax or license fee may be made a condition of entry upon
tribal land, it may also be made a condition to the grant of other privileges, such as the
acquisition of a tribal lease. Cohen 143.
The leases executed by the Tribe and petitioners are clearly valid and binding on both
parties. The Tribe does not contend that the leases were not the product of arm's-length bar-
gaining. Moreover, the leases were executed on a form prepared by the Department of the In-
terior, the Department gave specific approval to the terms of the leases, and they were ex-
ecuted pursuant to explicit congressional authority.FN46 Under the leases petitioners clearly
have the *187 right to remain on the reservation to do business for the duration of the con-
tracts.FN47
FN46. Congress intended the Act of March 3, 1927, to make applicable to Executive
Order reservations the leasing provisions already applicable to treaty reservations pur-
suant to the Act of May 29, 1924, ch. 210, 43 Stat. 244. S.Rep. No. 1240, 69th Cong.,
2d Sess., 3 (1927). The 1927 Act thus permitted the leasing of unallotted Indian land
for terms not to exceed 10 years and as much longer as oil and gas in paying quantities
were found on the land. 44 Stat. (part 2) 1347. Among the purposes of the 1927 statute
were to [p]ermit the exploration for oil and gas on Executive-order Indian Reserva-
tions, to [g]ive the Indian tribes all the oil and gas royalties, and to [p]lace with
Congress the future determination of any changes of boundaries of Executive-order re-
servations or withdrawals. S.Rep. No. 1240, supra, at 3. In light of these purposes, it
is clear that Congress intended leases executed pursuant to the 1927 Act to be binding.
The Tribe contends that the leases in these cases were executed pursuant to the Act
of May 11, 1938, 52 Stat. 347, and not the 1927 Act. The Tribe notes that the lease in
No. 80-15 states that it was executed pursuant to the 1938 Act. See App. 64. In re-
sponse, petitioners note that, although the Tribe argues that the 1938 Act-unlike the
1927 Act-does not require that royalties be paid to the Secretary of the Interior for
the benefit of the Tribe, petitioners make their royalty payments to the United States
Geological Survey for the benefit of the Jicarilla Apache. See Tr. 79-80. There is no
need to resolve this question, because for our purposes the provisions of the 1938
Act do not vary significantly from the provisions of the 1927 Act. The 1938 Act, like
the 1927 Act, permits the leasing of Indian lands for a period not to exceed ten
years and as long thereafter as minerals are produced in paying quantities. 25
U.S.C. 396a. One of the purposes of the 1938 Act was to establish uniformity in
the leasing of tribal lands by applying the law governing oil and gas leasing to all
other mineral leasing as well. S.Rep. No. 985, 75th Cong., 1st Sess., 1-2 (1937). Oth-
er purposes were to bring all mineral leasing matters in harmony with the Indian
Reorganization Act, id., at 3, and to enact changes designed to give the Indians the
greatest return from their property. Id., at 2. There is no indication in the legislative
history that the purposes of the 1938 Act are in any way inconsistent with the pur-
poses of the 1927 Act and prior legislation. Presumably the purposes of the earlier le-
gislation were incorporated into the uniform scheme intended by the 1938 Act.
FN47. As Attorney General MacVeagh stated in 1881, only those permitted by the
tribe to remain on the reservation may do so, and the right to remain is gone when the
permit has expired. 17 Op.Atty.Gen., at 136.
**928 There is no basis for a claim that exercise of the mining rights granted by the leases
was subject to an additional, unstated condition concerning the payment of severance taxes.
FN48 *188 At the time the leases contained in the record were executed, the Jicarilla Apache
Constitution contained no taxing authorization whatever; the severance tax ordinance was not
enacted until many years after all lessees had been granted an unlimited right to extract oil and
gas from the reservation. In addition, the written leases unambiguously stated:
FN48. In Colville, the nonmember desiring to purchase cigarettes on the reservation
knew that his right to do so was conditioned on his consent to pay the tax. Attorney
General Griggs, in his 1900 opinion on Trespassers on Indian Lands, discussed in
similar terms the effect on tribal laws of a federal statute providing for the sale of re-
servation lots to non-Indians:
[T]he legal right to purchase land within an Indian nation gives to the purchaser no
right of exemption from the laws of such nation, nor does it authorize him to do any
act in violation of the treaties with such nation. These laws requiring a permit to
reside or carry on business in the Indian country existed long before and at the time
this act was passed. And if any outsider saw proper to purchase a town lot under this
act of Congress, he did so with full knowledge that he could occupy it for residence
U.S.N.M.,1982.
Merrion v. Jicarilla Apache Tribe
455 U.S. 130, 102 S.Ct. 894, 71 L.Ed.2d 21
END OF DOCUMENT
1 Merrion v. Jicarilla Apache Tribe, 617 F.2d 537 (10th Cir.(N.M.) Feb 22, 1980)
(NO. 78-1154, 78-1251)
Certiorari Granted by
2 Merrion v. Jicarilla Apache Tribe, 449 U.S. 820, 101 S.Ct. 71, 66 L.Ed.2d 21
(U.S.N.M. Oct 06, 1980) (NO. 80-11, 80-15)
AND Judgment Affirmed by
=> 3 Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 102 S.Ct. 894, 71 L.Ed.2d 21
(U.S.N.M. Jan 25, 1982) (NO. 80-11, 80-15)
AND Appeal After Remand
4 Amoco Production Co. v. Jicarilla Apache Tribe, 842 F.2d 1200 (10th Cir.(N.M.)
Mar 24, 1988) (NO. 82-1502)
Court Documents
Appellate Court Documents (U.S.A.)
12 Squaxin Island Tribe v. State of Wash., 781 F.2d 715, 720+, 4 Fed.R.Serv.3d
881, 881+ (9th Cir.(Wash.) Jan 24, 1986) (NO. 85-3509)
13 Donovan v. Coeur d'Alene Tribal Farm, 751 F.2d 1113, 1117+, 12 O.S.H. Cas.
(BNA) 1169, 1169+, 1984-1985 O.S.H.D. (CCH) P 27,162, 27162+ (9th Cir. Jan
15, 1985) (NO. 84-7031) HN: 23 (S.Ct.)
Discussed
34 Bowen v. Public Agencies Opposed To Social Sec. Entrapment, 106 S.Ct. 2390,
2397+, 477 U.S. 41, 52+, 91 L.Ed.2d 35, 35+, 54 USLW 4699, 4699+, 14
Soc.Sec.Rep.Serv. 3, 3+, Unempl.Ins.Rep. (CCH) P 16,785, 16785+ (U.S.Cal.
Jun 19, 1986) (NO. 85-521) " HN: 18,20,21 (S.Ct.)
35 Kerr-McGee Corp. v. Navajo Tribe of Indians, 105 S.Ct. 1900, 1902+, 471 U.S.
195, 198+, 85 L.Ed.2d 200, 200+, 53 USLW 4451, 4451+ (U.S.Ariz. Apr 16,
1985) (NO. 84-68) " HN: 1,33 (S.Ct.)
36 New Mexico v. Mescalero Apache Tribe, 103 S.Ct. 2378, 2385+, 462 U.S. 324,
333+, 76 L.Ed.2d 611, 611+ (U.S.N.M. Jun 13, 1983) (NO. 82-331)
37 John v. City of Salamanca, 845 F.2d 37, 42+ (2nd Cir.(N.Y.) Apr 19, 1988) (NO.
203, 87-7404) HN: 24 (S.Ct.)
38 Charter Federal Sav. Bank v. Office of Thrift Supervision, 976 F.2d 203, 211+,
61 USLW 2218, 2218+ (4th Cir.(Va.) Sep 25, 1992) (NO. 91-2647, 91-2708) "
HN: 18,21,22 (S.Ct.)
Cited
81 Kinnison v. Cherokee Nation, 1996 WL 1132747, *5, 5 Okla. Trib. 103, 103
(Cherokee Jun 03, 1996) (NO. JAT 96-03) HN: 20 (S.Ct.)
82 Wagnon v. Prairie Band Potawatomi Nation, 126 S.Ct. 676, 690, 546 U.S. 95,
116, 163 L.Ed.2d 429, 429, 74 USLW 4023, 4023, 05 Cal. Daily Op. Serv.
10,218, 10218, 2005 Daily Journal D.A.R. 13,941, 13941, 19 Fla. L. Weekly Fed.
S 13, 13 (U.S. Dec 06, 2005) (NO. 04-631) " (in dissent) HN: 1 (S.Ct.)
83 Northwest Airlines, Inc. v. County of Kent, Mich., 114 S.Ct. 855, 866+, 510 U.S.
355, 374+, 127 L.Ed.2d 183, 183+, 62 USLW 4103, 4103+, 73 A.F.T.R.2d
94-784, 94-784+ (U.S.Mich. Jan 24, 1994) (NO. 92-97) " HN: 31 (S.Ct.)
84 Duro v. Reina, 110 S.Ct. 2053, 2064, 495 U.S. 676, 694, 109 L.Ed.2d 693, 693,
58 USLW 4643, 4643 (U.S.Ariz. May 29, 1990) (NO. 88-6546) HN: 8 (S.Ct.)
85 Iowa Mut. Ins. Co. v. LaPlante, 107 S.Ct. 971, 975+, 480 U.S. 9, 14+, 94 L.Ed.2d
10, 10+, 55 USLW 4170, 4170+ (U.S.Mont. Feb 24, 1987) (NO. 85-1589) "
86 National Farmers Union Ins. Companies v. Crow Tribe of Indians, 105 S.Ct.
2447, 2452+, 471 U.S. 845, 852+, 85 L.Ed.2d 818, 818+, 53 USLW 4649, 4649+,
25 Ed. Law Rep. 30, 30+ (U.S.Mont. Jun 03, 1985) (NO. 84-320) HN: 9 (S.Ct.)
87 Sporhase v. Nebraska, ex rel. Douglas, 102 S.Ct. 3456, 3466, 458 U.S. 941, 960,
73 L.Ed.2d 1254, 1254, 12 Envtl. L. Rep. 20,749, 20749 (U.S.Neb. Jul 02, 1982)
(NO. 81-613)
88 Akins v. Penobscot Nation, 130 F.3d 482, 490+ (1st Cir.(Me.) Nov 17, 1997)
(NO. 97-1644) " HN: 2 (S.Ct.)
89 Rhode Island Higher Educ. Assistance Authority v. Secretary, U.S. Dept. of
Mentioned
270 U.S. v. Cherokee Nation of Oklahoma, 107 S.Ct. 1487, 1491, 480 U.S. 700, 707,
94 L.Ed.2d 704, 704, 55 USLW 4403, 4403 (U.S.Okla. Mar 31, 1987) (NO.
85-1940) HN: 21 (S.Ct.)
271 Ninigret Development Corp. v. Narragansett Indian Wetuomuck Housing Author-
ity, 207 F.3d 21, 29, 30 Envtl. L. Rep. 20,481, 20481 (1st Cir.(R.I.) Mar 22,
2000) (NO. 99-1828) HN: 20 (S.Ct.)
272 New England Legal Foundation v. Massachusetts Port Authority, 883 F.2d 157,
174 (1st Cir.(Mass.) Aug 17, 1989) (NO. 88-1971, 88-1972, 88-1973, 88-2227)
273 Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 889 (2nd Cir.(N.Y.)
May 16, 1996) (NO. 95-7490, 95-7492, 95-7498, 95-7502, 95-7504)
274 Oneida Indian Nation of New York State v. Oneida County, 719 F.2d 525, 545
(2nd Cir.(N.Y.) Sep 29, 1983) (NO. 545, 546, 643, 82-7436, 82-7486, 82-7526)
(in dissent) HN: 20 (S.Ct.)
275 U.S. v. Bailey, 115 F.3d 1222, 1237 (5th Cir.(Tex.) Jun 12, 1997) (NO.
95-50721) (in dissent)
F.C.C. Decisions
NLRB Decisions
341 In re San Manuel Indian Bingo and Casino, 341 NLRB 1055, 1061+, 341 NLRB
No. 138, 138+, 2004 WL 1283584, *11+, 174 L.R.R.M. (BNA) 1489, 1489+
(N.L.R.B. May 28, 2004) (NO. CASES 31-CA-23673 AN) " HN:
1,23,24 (S.Ct.)
342 Sac and Fox Industries, Ltd., Employer and Patricia Maxson, Petitioner and
United Garment Workers of America, Local 427, AFL-CIO, Union, 307 NLRB
241, 245, 307 NLRB No. 34, 34, 1992 WL 90688, *6, 140 L.R.R.M. (BNA)
1054, 1054 (N.L.R.B. Apr 24, 1992) (NO. 17-RD-1192)
OSAHRC Decisions
344 SECRETARY OF LABOR, COMPLAINANT v. MASHANTUCKET SAND &
GRAVEL, RESPONDENT, 1995 WL 561587, *4, 17 O.S.H. Cas. (BNA) 1391,
1391, 1995-1997 O.S.H.D. (CCH) P 30,895, 30895 (O.S.H.R.C. Sep 20, 1995)
(NO. 93-1985) HN: 16 (S.Ct.)
345 SECRETARY OF LABOR, COMPLAINANT v. COEUR D'ALENE TRIBAL
FARM, RESPONDENT, 1983 WL 23795, *5+, 11 O.S.H. Cas. (BNA) 1705,
1705+, 1983-1984 O.S.H.D. (CCH) P 26,732, 26732+ (O.S.H.R.C. Nov 16,
1983) (NO. 78-6081, 78-6082) " HN: 10,23 (S.Ct.)
Registers (U.S.A.)
370 Navajo Nation; Underground Injection Control (UIC) Program; Primacy Approv-
al, 73 Federal Register 65556 (Nov 04, 2008)
371 State Program Requirements; Approval of Application by Maine To Administer
the National Pollutant Discharge Elimination System (NPDES) Program; Maine,
68 Federal Register 65052 (Nov 18, 2003)
Citing Applications
377 US PAT APP 20100318388 NATIVE AMERICAN INDIAN COMPLIANT FIN-
ANCIAL SERVICES METHODOLOGYPublished Application Date: Dec 16,
2010
Appellate Briefs
1215 United States of America v. Jicarilla Apache Nation, 2011 WL 661710,
*661710+ (Appellate Brief) (U.S. Feb 22, 2011) Brief for the United States
(NO. 10-382) HN: 24 (S.Ct.)
1216 Madison County v. Oneida Indian Nation of New York, 2010 WL 4973153,
*4973153+ (Appellate Brief) (U.S. Dec 03, 2010) Brief for the Petitioners (NO.
10-72) " HN: 1,8 (S.Ct.)
1217 Hemi Group, LLC v. City of New York, 2009 WL 2172504, *2172504+
(Appellate Brief) (U.S. Jul 17, 2009) Brief for Petitioners (NO. 08-969) "
HN: 1,20,22 (S.Ct.)
1218 United States of America v. Navajo Nation, 2008 WL 5027914, *5027914+
(Appellate Brief) (U.S. Nov 26, 2008) Brief for the United States (NO.
07-1410)
1219 Plains Commerce Bank v. Long Family Land, 2008 WL 742923, *742923+
(Appellate Brief) (U.S. Mar 19, 2008) Brief for the United States as Amicus
Curiae Supporting Respondents (NO. 07-411) " HN: 2 (S.Ct.)
1220 Plains Commerce Bank v. Long Family Land & Cattle Co., Inc., 2008 WL
749303, *749303+ (Appellate Brief) (U.S. Mar 19, 2008) Brief of Amici Curiae
the National Network to End Domestic Violence, Sacred Circle, National Re-
source Center to End Violence Against Native Women, Et Al. in Support of
Respondents (NO. 07-411) HN: 8,10 (S.Ct.)
1221 Plains Commerce Bank v. Long Family Land and Cattle Company, Inc., 2008
WL 782553, *782553+ (Appellate Brief) (U.S. Mar 19, 2008) Brief for Amicus
Curiae Cheyenne River Sioux Tribe in Support of Respondents (NO. 07-411)
HN: 5 (S.Ct.)
1382 THE COUNTY OF ONEIDA, NEW YORK, and The County of Madison, New
York, Petitioners, v. THE ONEIDA INDIAN NATION OF NEW YORK STATE,
et al., Respondents. The State of New York, Petitioner, v. The Oneida Indian Na-
tion of New York State, et al., Respondents., 1984 WL 566159, *566159+
(Appellate Brief) (U.S. Jun 15, 1984) Brief of C. H. Albright and Other South
Joint Appendices
1748 EL PASO NATURAL GAS COMPANY, Cyprus Foote Mineral Company, and
Cyprus Amax Minerals Company, Petitioners, v. Laura NEZTSOSIE; Arlinda
Neztsosie; and Zonnie Marie Dandy Richards, Individually and as Representative
of the Estate of Harold J. Richards, Sr., Respondents., 1998 WL 34082186,
*34082186 (Joint Appendix) (U.S. Dec 08, 1998) (NO. 98-6) " HN: 20
Trial Pleadings
1751 Donald TURNER, Plaintiff, v. John O'BRIEN, individually Kerr Brosseau Bart-
lett O'Brien LLC Peoples Credit Union Garth Nieschburg, individually Tom Mor-
row, individually Dennis P Friedrich individually M Jon Kolomitz individually
Deann Billings individually Brandon Grogan individually Bob Wallace individu-
ally Herb Brown individually Dennis Jordan individually Linda Lusk individually
Steve Salzbreenner individually Dan McVey individually 1 to, 2008 WL
2276605, *2276605 (Trial Pleading) (D.Colo. Apr 15, 2008) Complaint (NO.
108CV00529) HN: 22 (S.Ct.)
1752 MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, a federally-recognized In-
dian Tribe, Petitioner, v. UNITED STATES OF AMERICA, Respondent., 2010
WL 4896697, *4896697+ (Trial Pleading) (S.D.Fla. Sep 29, 2010) Petition to
Quash Summons to Citibank (South Dakota), N.A. for Records of the Mic-
cosukee Tribe of Indians of Florida (NO. 110CV23508) " HN: 8 (S.Ct.)
1753 MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, a federally-recognized In-
dian Tribe, Petitioner, v. UNITED STATES OF AMERICA, Respondent., 2010
WL 4896699, *4896699+ (Trial Pleading) (S.D.Fla. Sep 29, 2010) Petition to
Quash Summons to American Express Company for Records of the Miccosu-
kee Tribe of Indians of Florida (NO. 110CV23509) " HN: 8 (S.Ct.)
1754 MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, a federally-recognized In-
dian Tribe, Petitioner, v. UNITED STATES OF AMERICA, Respondent., 2010
WL 4896700, *4896700+ (Trial Pleading) (S.D.Fla. Sep 29, 2010) Petition to
Quash Summons to Wachovia Bank for Records of the Miccosukee Tribe of
Indians of Florida (NO. 110CV23511) " HN: 8 (S.Ct.)
1782 STOP THE CASINO 101 COALTION, Robert Aherne, Amy Boyd, Lisa
CATELANI, Frank Egger Michael Erickson, Michael Healy, Linda Long, Lisa
Mcelroy, Pam Miller, Marilee Montgomery, Fred Soares, Jamie WALLACE,
Chip Worthington and Linda Worthington, Plaintiffs, v. Dirk KEMPTHORNE,
Secretary of the United States Department of the Interior; Carl J. Artman, As-
sisant Secretary of the United States Department of the Interior for Indian Af-
fairs; United States Department of the, 2009 WL 3502588, *3502588+ (Trial Mo-
tion, Memorandum and Affidavit) (N.D.Cal. Mar 14, 2009) Plaintiffs' Corrected
Opposition to Intervenor Federated Indians of Gration Rancheria's Motion
to Dismiss (NO. 308CV02846) HN: 20 (S.Ct.)
1783 Pearl ALVARDO, et al., Plaintiffs, v. TABLE MOUNTAIN RANCHERIA, et
al., Defendants., 2005 WL 3705064, *3705064+ (Trial Motion, Memorandum
and Affidavit) (N.D.Cal. May 28, 2005) Memorandum of Points and Authorit-
ies in Support of Motion to Dismiss Plaintiffs' Complaint for Lack of Juris-
diction By Defendants Table Mountain Rancheria, Lewis Barnes, William
Walker, Carolyn ... (NO. C0500093MHP)
1784 Pearl ALVARADO, et al., Plaintiffs, v. TABLE MOUNTAIN RANCHERIA, et
al., Defendants., 2005 WL 3705066, *3705066+ (Trial Motion, Memorandum
and Affidavit) (N.D.Cal. Mar 28, 2005) Memorandum of Points and Authorit-
ies in Support of Motion to Dismiss Plaintiffs' Complaint for Lack of Juris-
diction by Defendants Table Mountain Rancheria, Lewis Barnes, William
Walker, Carolyn ... (NO. C0500093MHP)
1785 In the Matter of THE SONOMA COUNTY FIRE CHIEF'S APPLICATION for
An Inspection Warrant Re Sonoma County Assessor's Parcel Number
131-040-001 or 3250 Highway 128, Geyserville., 2005 WL 3689167, *3689167
(Trial Motion, Memorandum and Affidavit) (N.D.Cal. Mar 25, 2005) Reply
Memorandum of Points and Authorities in Support of Respondent's Motion
for Summary Judgment Or, in the Alternative, Summary Adjudication of Is-
sues F.R.C.P. Rule 56 (NO. C024873JSW)
1786 In the Matter of THE SONOMA COUNTY FIRE CHIEF'S APPLICATION for
An Inspection Warrant Re Sonoma County Assessor's Parcel Number
131-040-001 or 3250 Highway 128, Geyserville., 2005 WL 3689165, *3689165+
(Trial Motion, Memorandum and Affidavit) (N.D.Cal. Mar 04, 2005) Memor-
andum of Points and Authorities in Support of Respondent's Motion for
Summary Judgment or, in the Alternative, Summary Adjudication of Issues
F.R.C.P. Rule 56 (NO. C024873JSW)
1787 SONOMA FALLS DEVELOPERS, LLC, Sonoma Falls Lender, LLC, and
Sonoma Falls Manager, LLC, Plaintiff, v. DRY CREEK RANCHERIA BAND
1813 Jerry BAINBRIDGE, et al, Plaintiffs, v. John BUSH, Governor of the State of
Florida, et al, Defendants., 2001 WL 34780792, *34780792 (Trial Motion,
Memorandum and Affidavit) (M.D.Fla. Mar 23, 2001) Defendant's Memor-
andum in Support of His Motion for Summary Judgment (NO.
899-CV-2681-T-27E)
1814 PPI, INC., Plaintiff, v. Dirk KEMPTHORNE, in his Official Capacity as Secret-
ary of the Interior, George Skibine, in his Official Capacity as Acting Assistant
Secretary of the Interior - Indian Affairs and Charles Crist, in his Official Capa-
city as Governor of Florida., Defendants., 2008 WL 4076377, *4076377 (Trial
Motion, Memorandum and Affidavit) (N.D.Fla. Jun 17, 2008) Governor Crist's
Memorandum in Opposition to Plaintiff's Motion for Preliminary Injunction
1896 M.S., Plaintiff, v. Richard CORDRAY, Ohio Attorney General, Defendant., 2009
WL 5057182, *5057182 (Trial Motion, Memorandum and Affidavit) (S.D.Ohio
Jul 16, 2009) Defendant Ohio Attorney General Richard Cordray's Reply in
Support of Motion for Summary Judgment (NO. 18-CV-00427) " HN:
30,31 (S.Ct.)
1897 G.B., Plaintiff, v. Richard CORDRAY, Ohio Attorney General, Defendant., 2009
WL 5057185, *5057185 (Trial Motion, Memorandum and Affidavit) (S.D.Ohio
Jul 15, 2009) Defendant's Motion for Summary Judgment (NO. 18-CV-00437)
" HN: 30,31 (S.Ct.)
1898 Scott B. MAYBEE, Plaintiff, v. Richard A. LEVIN, et al., Defendants., 2009 WL
1971117, *1971117+ (Trial Motion, Memorandum and Affidavit) (S.D.Ohio May
26, 2009) Plaintiff's Memorandum in Opposition to Defendants' Motion to
Dismiss and Plaintiff's Cross-Motion for A Preliminary Injunction (NO.
309-CV-3) HN: 30 (S.Ct.)
1899 Scott B. MAYBEE, Plaintiff, v. Richard A. LEVIN, et al., Defendants., 2009 WL
1971116, *1971116+ (Trial Motion, Memorandum and Affidavit) (S.D.Ohio May
22, 2009) Plaintiff's Memorandum in Opposition to Defendants' Motion to
Dismiss and Plaintiff's Cross-Motion for A Preliminary Injunction (NO.
309-CV-3) HN: 30 (S.Ct.)
1900 In Re: MRA NATIONAL CENTURY FINANCIAL ENTERPRISES, INC. City
of Chandler, et al., v. Bank One, N.A., et al., State of Arizona, et al. v. Credit
Suisse First Boston Corp., et al., Crown Cork & Seal Company, Inc. Master Re-
tirement Trust, et al., v. Credit Suisse First Boston Corp., et al., 2004 WL
2156663, *2156663+ (Trial Motion, Memorandum and Affidavit) (S.D.Ohio May
03, 2004) Arizona Noteholder Plaintiffs' Consolidated Master Brief in Re-
sponse and Opposition to All Motions to Dismiss their Claims (NO.
203-MD-1565-JLGCV03-) " HN: 30,31 (S.Ct.)
1901 In Re: MRA NATIONAL CENTURY FINANCIAL ENTERPRISES, INC. City
of Chandler, et al., v. Bank one, N.A., et al., State of Arizona, et al. v. Credit
Suisse First Boston Corp., et al., Crown Cork & Seal Company, Inc. Master Re-
Trial Filings
1979 (1) TARRANT REGIONAL WATER DISTRICT, a Texas State Agency,
Plaintiff, v. (1) Rudolf John HERRMANN, (2) Jess Mark Nichols, (3) Linda
Lambert, (4) Ford Drummond, (5) Joseph E. Taron, (6) Ed Fite, (7) Jack W. Kee-
ley, (8) Kenneth K. Knowles, and (9) Richard Sevenoaks, in Their Official Capa-
cities as Members of the Oklahoma Water Resources Board (OWRB) and the Ok-
lahoma Water Conservation Storage Commission, Defendants., 2009 WL
5865231, *5865231 (Trial Filing) (W.D.Okla. Nov 16, 2009) Final Pretrial Re-
port (NO. 507CV00045) HN: 31 (S.Ct.)
1980 THE PEOPLE OF THE STATE OF CALIFORNIA, et al. Plaintiff, v. James Lee
MOHOFF, One of the people of California (the sovereignty) jus soli, nunc pro
tune. Defendant., 2005 WL 6051659, *6051659 (Trial Filing) (Cal.Superior Jan
14, 2005) Order to Dismiss All Charges in the Interest of Justice, with Preju-
dice; Order to Show Cause (NO. 04HF1743FA)
Jury Instructions
1981 UNITED STATES OF AMERICA, v. Charles P. REDEYE, Defendant., 1999
WL 34843512, *34843512+ (Jury Instruction) (W.D.N.Y. Apr 01, 1999) Defend-
ant's Requested Jury Instructions (NO. 98-CR-144A)