In effect, two related but distinctive legislative thrusts were underway—the legislation being pushed by the largely non-Indian movement seeking restoration of the compelling interest test; and the AIRFC-inspired legislation which had a broader goal of recognizing traditional Indian religious rights. While some members of Congress questioned the need for separate bills, one for Native Americans and another for all other religions, Senator Paul Wellstone (D., Minnesota), a cosponsor of the 1993 version of the Indian religion bill, put it best in addressing this issue:
Throughout the series of hearings held around the country on NAFERA [Native American Free Exercise Religious Act] one theme repeated itself over and over again: our traditional understanding of how to protect religious freedom, based on a European understanding of religion, is insufficient to protect the rights of the first Americans. . . . The question is not, should we protect Indian religious freedom? Instead, we must ask, how can we best live up to our obligation to protect that freedom? This is an important question, because one might legitimately want to ask why we need a bill to address specifically the religious freedom of Native Americans, instead of a bill that addresses all religions at one time. There is, of course, such a bill, the Religious Freedom Restoration Act (RFRA), which has recently been introduced by my colleague from Massachusetts, Senator Kennedy, and of which I am an original co-sponsor. I believe that there is a strong argument to be made that both of these bills ought to be made into law. RFRA is designed to respond in a very general way to judicial decisions that have been made in recent years restricting the right to free practice of religion. . . . But leaving the definition of such standards up to the judiciary has not proven very effective for Native American religions. In NAFERA, on the other hand, we provide language that makes clear the particularities of Native religious practices we intend to address.166
CONCLUSION
The more comprehensive Indian religious bill, excluding the peyote aspect, which was directly aimed at the protection of all traditional Indian religions, was never enacted, while the Religious Freedom Restoration Act (RFRA), which was supported by western religions, did become law. This failure is yet another stark testimony to the difficulty tribal nations have experienced in their quest for permanent recognition of their unique religious and cultural traditions.
Though Indian tribes and individuals were on the receiving end of three disastrous Supreme Court decisions involving religion—Bowen, Lyng, and Smith—which sparked a successful counterrevolution of religious organizations and constitutional scholars, American Indian tribal nations who practice traditional religions that do not involve the use of peyote have yet to receive the basic constitutional protection which has been legislatively “restored” for other Americans under the RFRA and for the use of peyote under the AIRFA.
County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation
THE RETURN OF OLD MASKS: THE RESURRECTION OF DISAVOWED NINETEENTH-CENTURY POLICIES
In the celebrated Worcester v. Georgia (1832), the United States Supreme Court acknowledged that tribes were sovereign nations with broad, inherent powers of self-government. Moreover, Indian Country, Chief Justice Marshall said, was excluded from the application of state law because of the extraterritorial status of tribes, their preexisting sovereignty, and the supremacy of Indian treaties which affirmed the independent status of tribes and the plenary power of Congress over the federal government’s trade relations with Indian tribes as identified in the Commerce Clause of the Constitution. Over the past 150 years, however, the Worcester ruling has been modified and the once-impregnable wall shielding tribes from state jurisdictional authority may now be breached, according to the United States, by federal legislation or with Supreme Court authorization, if one of two conditions is met. In Cohen’s words: “. . . either that Congress has expressly delegated back to the State, or recognized in the State, some power of government respecting Indians; or that a question involving Indians involved non-Indians to a degree which calls into play the jurisdiction of a State government. Of these two situations, the former is undoubtedly more definite and therefore simpler to analyze. Such an analysis requires a listing of the acts of Congress which confer upon the States, or recognize in the States, specific powers of government with respect to Indians.”167
Examples of the first condition include the General Allotment Act of 1887, which applied the states’ inheritance laws over allotted lands in reservations;168 state laws regarding inspection of health and educational conditions;169 state criminal laws which apply where the offense involves non-Indians against Indians or Indians against non-Indians;170 and specific tribal termination statutes enacted in the 1950s and 1960s and Public Law 280, which gave certain states partial civil and criminal jurisdiction over specific parts of Indian country.171
Examples of the second situation include United States v. Bailey,172 United States v. Ward,173 and United States v. McBratney.174 These cases involved crimes by non-Indians committed in Indian country. In each decision, the Supreme Court held that state courts had exclusive jurisdiction over the crime, although the Court’s decision in McBratney is particularly problematic.175 These cases illustrate a central dynamic: “The rights of the States within Indian country are based ultimately on the presence of non-Indian citizens within Indian country. As non-Indians moved in, so too did State law.”176
THE ASCENDANCY OF STATE POWER
Importantly, each of the cases just cited involved only non-Indians. And, notwithstanding the few statutes previously cited, until the advent of the Rehnquist Court the general principle guiding tribal-state affairs remained as follows: “That State laws have no force within the territory of an Indian tribe in matters affecting Indians. . . .”177 Although this principle emerged clearly from Worcester and is imbedded in tribal sovereignty, three major Supreme Court decisions, Williams v. Lee,178 Warren Trading Post Co. v. Arizona State Tax Commission,179 and McClanahan v. Arizona State Tax Commission,180 set the stage for what has become a dramatically altered tribal-state relationship. All of these involved Navajo individuals or private businesses doing business on Navajo lands and all produced important precedential modifications to Worcester.181
Williams involved the Arizona Supreme Court’s effort to wield civil jurisdiction over a case in which a non-Indian had sought to collect on an overdue debt for goods he had sold to a Navajo couple on the reservation. The Supreme Court held that the case should have been heard in tribal court. While Navajo sovereignty was reaffirmed, the Supreme Court departed from the Worcester ruling of complete state exclusion from Indian country by holding that the states might be allowed to extend their jurisdiction into tribal trust land, unless their action “infringed on the right of the reservation Indians to make and enforce their own laws and be ruled by them.”182 Justice Hugo Black dulled the emphatic Worcester holding by noting that “over the years this Court has modified these principles in cases where essential tribal relations were not involved and where the rights of Indians would not be jeopardized. . . .”183
Six years later, Arizona once again tried to extend its regulatory authority into Navajo country. The state levied a two percent tax on the gross proceeds of the Warren Trading Post Company, which conducted a retail trading business on the Navajo reservation. The Supreme Court in Warren Trading Post Co. v. Arizona State Tax Commission overturned the State Supreme Court’s ruling and held that the state could not tax the income of a federally licensed trader that had been earned through trade with Navajos within the Navajo Nation. The Court based its decision on federal preemption grounds, and also emphasized the lack of benefits afforded by the states to the Navajo Indians. The preemption test posits that Congress has the legislative authority to control any subject matter. If the federal government has acted affirmatively in a field, then the state is effectively “preempted” and cannot claim any jurisdictional authority over the same subject matter. The Court further noted that the federal policy of letting the tribes “r
un the reservation and its affairs without state control . . . [had] . . . automatically relieved [the State] of all burdens of carrying on those same responsibilities.”184
In 1973, Arizona’s Tax Commission once again sought to extend state law into Navajo country. In McClanahan v. Arizona State Tax Commission, Rosalind McClanahan, an enrolled citizen of the Navajo Nation, contended that Arizona’s state income tax on wages was unlawful as applied to reservation Indians. The State Supreme Court dismissed McClanahan’s claim. On appeal to the United States Supreme Court, Justice Thurgood Marshall, speaking for a unanimous Court, held that Indians and Indian property on an Indian reservation were not subject to state taxation “except by virtue of express authority conferred upon the State by Act of Congress, and that the Navajo treaty precludes extension of state law, including state tax law, to Indians on the Navajo reservation.”185
While the Court’s decision to strike down Arizona’s personal income tax on Indians who earned their income in Indian Country was certainly important for tribal self-government, additional language employed by the Court signified the reduced viability of the tribal sovereignty concept. Sovereignty, the Court said, was to be used only as a “backdrop” against which the applicable treaties and statutes must be read. The question was not so much that of tribal sovereignty, but whether the treaties, statutes, and tribal laws had given rise to a preemption of the subject field so as to preclude state intrusion. In other words, Arizona’s tax law was excluded because of the doctrine of preemption, not because of the Navajo Nation’s inherent sovereignty.
In 1980, in White Mountain Apache Tribe v. Bracker,186 departing even further from tribal sovereignty as an independent defense against intrusive state law, the Supreme Court asserted that “there is no rigid rule” available to the Court to determine whether a state law may be applied in Indian country.187 Here the High Court combined the preemption and infringement doctrines into a two-part test to determine which state laws could be enforced in Indian Country without congressional or tribal consent. A state law, Justice Marshall insisted, must pass both tests before it can be applied. “The two barriers,” the Court maintained, “are independent because either, standing alone, can be a sufficient basis for holding state law inapplicable to activity undertaken on the reservation or by tribal members.”188 Marshall then added that the two were related and that tribal government was “dependent on and subject to the broad power of Congress,” while the idea of Indian self-governance remained important merely as a “backdrop.”189 This so-called tradition of Indian sovereignty, Marshall concluded, “must inform the determination” of whether a state’s exercise of authority has been preempted by federal law or whether it infringed on tribal self-government.190
In a fairly substantial follow-up case, California v. Cabazon Band of Mission Indians,191 the Supreme Court in 1987 upheld the right of tribal governments to regulate gaming in Indian Country free from state and local government interference. California had sought to impose its bingo laws, limiting the profits from the operation of bingo games to charitable purposes, placing a ceiling of 250 dollars per pot, and requiring that the people who operated the games do so without compensation. In addition, the county wanted to impose a local ordinance to prohibit the operations of a card parlor.
The Supreme Court rebuffed the state and reaffirmed in a majority opinion written by Justice Byron White that in the area of a state’s efforts to tax Indian tribes and their members, the “per se rule” held sway. This rule, laid out in Montana v. Blackfeet Tribe,192 holds that while Congress, in its exercise of exclusive plenary authority, may authorize a state to tax a tribe or its members, “[i]t has not done so often, and the Court consistently has held that it will find the Indians’ exemption from state taxes lifted only when Congress has made its intention to do so unmistakably clear.”193 Justice White continued, “We have repeatedly addressed the issue of state taxation of tribes and tribal members and the state, federal, and tribal interests which it implicates. We have recognized that the federal tradition of Indian immunity from state taxation is very strong and that the state interest in taxation is correspondingly weak [emphasis mine].”194
The “tradition of sovereignty” and Indian immunity from state taxation are, of course, very much subject to interpretation and may or may not be adhered to. And, as the Rehnquist Court gained new members, a conservative ideology became predominant and these two “traditions” were less and less respected. In 1989, the Supreme Court was asked to decide in Cotton Petroleum Corporation v. New Mexico195 whether the State of New Mexico could impose a severance tax on oil and gas produced on tribal land by a non-Indian company which was already paying a similar tribal tax. The Supreme Court held that the federal government’s extensive regulation of reservation oil and gas development and the tribe’s preexisting tax did not constitute “preemption” and the state could enforce its own taxing schemes. The majority thereby dramatically altered a fundamental principle that had existed for years in Indian law—that a state’s effort to tax reservation-based activities is invalid unless Congress has expressly authorized the activity. Instead, Justice John Paul Stevens asserted that “more recently such taxes have been upheld unless expressly or impliedly prohibited by Congress.”196 This ruling dictated a significant shift in what the courts would allow regarding state power vis-à-vis tribes. The presumption of state authority in Indian country unless specifically prohibited by Congress is in striking contrast to the preemption test. As Blackmun noted in dissent, “Under the majority’s approach, there is no pre-emption unless the States are entirely excluded from a sphere of activity and provide no services to the Indians or to the lessees they seek to tax”197 (emphasis original).
In another case decided in the same term, Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation,198 the Supreme Court, in a vociferously divided opinion, held that the State of Washington had the power to zone non-Indian land within the exterior boundaries of an Indian reservation. The Yakima tribe, conversely, could only enforce its zoning laws on non-Indian landowners within the reservation if the landowner was engaged in “demonstrably serious” activity that threatened to “imperil the political integrity, economic security or the health and welfare of the tribe.”199 “This standard,” claimed Justice White, would give the tribe sufficient protection “while at the same time avoiding undue interference with state sovereignty and providing the certainty needed by property owners.”200 Brendale, with its presumption of state authority in Indian country, is a clear departure from past understandings of the tribal-state relationship. Interestingly, it involves the same tribe and the same subsidiary issue of state authority in Indian Country as the case we are about to consider—County of Yakima v. Yakima Indian Nation. The latter case, however, directly involves the application of state power over Indian landowners inside a reservation.
HISTORICAL BACKGROUND
The Confederated Tribes and Bands of the Yakima Indian Nation have inhabited parts of the area now known as Washington State for more than 12,000 years. Their diplomatic relations with the United States, however, were not confirmed until they entered into a treaty with the United States on June 9, 1855.201 Primarily a land cession agreement (the Yakima ceded over ten million acres to the federal government), the treaty also established a 1.3-million-acre reservation out of the remaining tribal lands which were “set apart” and demarcated for the “exclusive use and benefit of said confederated tribes and bands of Indians. . . .” No whites, save for Bureau of Indian Affairs officials, were allowed on the reservation “without permission of the tribe.” Besides the establishment of a permanently recognized homeland, the treaty, by its very negotiation, confirmed the sovereign status of the Yakima Nation. The Confederated Tribes, in compensation for their ceded lands, much of central Washington, received monetary and material compensation and also secured explicit recognition of their fishing rights. The fishing rights issue would later prove a most contentious point between the Indians an
d non-Indian settlers, businesses, and governments.
Washington joined the United States as a constituent state in 1889, and in so doing was required to give both the federal government and the tribes in the area assurance that it would not interfere with the rights of Indians. Article 26 of the Washington State Constitution declared the following:
That the people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries of this state, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title there too shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian land shall remain under the absolute jurisdiction and control of the Congress of the United States . . .; Provided, That nothing in this ordinance shall preclude the state from taxing as other lands are taxed any lands owned or held by any Indian who has severed his tribal relations, and has obtained from the United States or from any person a title thereto by patented or other grant, save and except such lands as have been or may be granted to any Indian or Indians under any act of Congress containing a provision exempting the lands thus granted from taxation, which exemption shall continue so long and to such extent as such act of Congress may prescribe.202 (emphasis original)
Two years earlier Congress had enacted the General Allotment Act, which was designed to speed up the individualization and ultimate absorption of American Indians into American society. The President was authorized, “whenever in his opinion any reservation or any part thereof, of such Indians is advantageous for agriculture or grazing purposes . . . to conduct negotiations with tribes for the allotment of their lands and possession of the surplus (unallotted lands left over) to the government for settlement.”
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