Moreover, unlike the symbiotic constitutional relationship between the states and the federal government, tribal nations’ authority derives from their original independence. As the Supreme Court said in The Kansas Indians in 1867, when that state attempted to tax the treaty-allotted lands of the Shawnee, Miami, and Wea tribes:
If the tribal organization of the Shawnees is preserved intact, and recognized by the political department of the government as existing, then they are a “people distinct from others,” capable of making treaties, separated from the jurisdiction of Kansas, and to be governed exclusively by the government of the Union. If under the control of Congress, from necessity, there can be no divided authority. If they have outlived many things, they have not outlived the protection afforded by the Constitution, treaties and laws of Congress. It may be that they cannot exist much longer as a distinct people in the presence of the civilization of Kansas, “but until they are clothed with the rights and bound to all the duties of citizens,” they enjoy the privilege of total immunity from state taxation.232
The Supreme Court noted that the conferring of other rights and privileges did not affect the Indians’ distinctive situation, which, the Court stated and the Indians understood, could “only be changed by treaty stipulation, or a voluntary abandonment of their tribal organization. As long as the United States recognizes their national character they are under the protection of treaties and the laws of Congress, and their property is withdrawn from the operation of state laws.”233
This decision had predated the General Allotment Act by twenty years. And while the Allotment Act authorized state taxation of fee-patented lands, this could only occur when certain conditions were met: namely, the individual allottee had voluntarily abandoned the tribe; had received full citizenship privileges; and had asked the Department of the Interior to lift the trust protection which was restored in 1927 and reconfirmed in 1934 in the IRA. Furthermore, Washington State’s constitution, like that of Kansas, contained the disclaimer clause which clearly evidences that state’s understanding that it could only tax the lands of individual Indians who had “severed” tribal relations and had received a patent or other grant.
A case more directly related to the case at hand is Choate v. Trapp.234 Choate involved an explicit federal law, not a mere proviso on a repudiated law, which purportedly lifted previously imposed restrictions against the selling of allotted Indian land. In Choate, which according to Felix Cohen implicitly overruled The Cherokee Tobacco, the Supreme Court unanimously ruled that the State of Oklahoma’s plans to tax the individual allotments of more than 8,000 Choctaw and Chickasaw—explicitly authorized by a 1908 federal law235 which (1) removed restrictions from the sale or encumbrance of land held by allottees and (2) provided that lands from which restrictions had been removed should be subject to state taxation—were invalid because Congress had previously, in 1897 and 1898, provided that all allotted lands were to remain nontaxable so long as the original allottee held the title. The State of Oklahoma argued that the tax was a legitimate exercise of governmental authority and that Congress had acted, in the later laws, to withdraw its protection of the Indians’ tax-exempt status. The Indians, on the other hand, asserted that the 1908 Act was a violation of the contract they had made with the United States, and that their tax-exempt status was a property right which could not be divested without due process of law.236
The 8,110 Chickasaw and Choctaw plaintiffs lost in Oklahoma’s trial court and then in the State Supreme Court. They appealed to the United States Supreme Court. The critical questions were: Had the Indians acquired vested rights under the Curtis Act of 1898 which were protected by the Fifth Amendment of the Constitution? and What was the validity of the congressional enactment which purportedly subjected the Indian land to state taxation? The Court carefully drew a distinction between “tribal property and private property” and affirmed that “Congress, in consideration of the Indians’ relinquishment of all claims to the common property [in the 1897 and 1898 laws], and for other satisfactory reasons” extended vested rights to the tribal individuals.237 These rights could not be taken without the individual Indians’ consent. The right to remove the restriction, said Justice Joseph Lamar, “was in pursuance of the power under which Congress could legislate as to the status of the ward and lengthen or shorten the period of disability. But the provision that the land should be non-taxable was a property right, which Congress undoubtedly had the power to grant. That right [was] fully vested in the Indians and was binding upon Oklahoma.”238
These passages illustrate the distinctive manner in which tribal sovereignty and the Constitution’s Fifth Amendment were applied in this case. As the Court noted: “Under the provisions of the Fifth Amendment there was no more power to deprive him [the Indian] of the exemption than of any other right in the property. . . . After he accepted the patent the Indian could not be heard, either at law or in equity, to assert any claim to the common property. If he is bound [by the agreement], so is the tribe and the Government when the patent is issued.”239 Congress, therefore, could not impair an Indian’s vested private property rights, which “are secured and enforced to the same extent and in the same way as other residents or citizens of the United States.”240 And finally, the Indian’s private property “is not subject to impairment by legislative action, even while he is, as a member of a tribe and subject to the guardianship of the United States as to his political and personal status.”241
Justice Antonin Scalia for the majority and the dissenting justices in Yakima disregarded this important Supreme Court case. In order to reach the conclusion that the state could tax Indian land, Scalia had to find a way, because of the Commerce Clause’s conferral of plenary power in Indian affairs which necessarily extinguishes a state’s authority over Indians or Indian property, to locate a specific grant of authority from the Congress to the states that would authorize this intrusion. This he found in the General Allotment Act. He had, moreover, to ignore the doctrine of tribal sovereignty, which is relevant to individual Indians living on fee-patented estates who have the “same rights in the tribe as those whose estates are held in common.”242
The Masks of “Unmistaken Intent,” “County Sovereignty,” “Implied Repeals,” and “Categorical Allowances”
Scalia’s main arguments were the following. First, in a threshold assessment, he declared that section 6 of the General Allotment Act, in providing that Indian allottees were to be subject to all civil and criminal state laws, provided the necessary explicit authorization, thereby allowing states to tax Indians. Although this law was amended by the Burke Act of 1906,243 which precluded state jurisdiction over allottees until the end of the twenty-five-year trust period, a proviso in that act gave the President discretionary authority to expedite state jurisdiction over allottees by the termination of the trust relationship, though only when the individual allottee was deemed “competent and capable.” This limited proviso, according to Scalia, entailed “unmistakably clear” congressional intent to allow state taxation of Indian-owned fee-patented lands. Moreover, Scalia maintained that nothing Congress had done subsequently effected an express repeal of the General Allotment Act. Therefore, it remained good law, according to Scalia.
Second, on the subject of state sovereignty, Scalia said that it had gradually eclipsed tribal sovereignty. Dismissing Chief Justice John Marshall’s depiction of tribal sovereignty, which Justice Thurgood Marshall in the 1973 McClanahan decision had termed “a platonic notion of Indian sovereignty” that had lost its “independent sway,”244 Scalia noted that “this Court’s more recent cases have recognized the rights of States, absent a congressional prohibition, to exercise criminal (and, implicitly, civil) jurisdiction over non-Indians located on reservation lands.”245
Third, the Washington State Constitution, which expressly disallowed state taxation of fee-patented Indian lands, except of those Indians who had terminated their tribal affiliations, did, however, according to Scalia, contain
a clause which allowed the taxation of certain Indian land. The pertinent clause reads:
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 patent 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 an extent as such acts of congress may prescribe.246 (emphasis original)
Scalia agreed with the Court of Appeals that under this language, the Indian lands not covered by the quoted proviso were not exempted from taxation but merely committed to “the absolute jurisdiction and control of [Congress]. . . . If Congress has permitted taxation, the provision is not violated.”247
Fourth, Scalia, citing the misnamed “cardinal rule” that says repeals by implication are not favored by the judicial branch, distanced the Court from the Moe decision wherein the Rehnquist-led unanimous Court had said that the IRA and other statutes repudiated the jurisdictional force of the Allotment Act. Scalia, instead, insisted that the Yakima Nation and the United States as amici had misunderstood Moe and had a “misperception of the structure of the General Allotment Act.”248 The “misunderstanding” arose, said Scalia, because the government and the Indians wrongly thought that Moe had held that section 6 of the General Allotment Act had been repealed by implication. And since Moe had not mentioned “implied repeal,” and because of this abstract theory of the “cardinal rule,” they had misstated the Moe case.
The so-called misperception of the Allotment Act arose, according to Scalia, because while the Yakima focused on section 6 of the Act as the culprit, it was actually section 5 which was of “central significance.”249 This section dealt with the “alienability of the allotted lands.” In other words, after the trust period had expired, the allotted lands could be sold or encumbered, which meant that they also became subject to “assessment and forced sale for taxes.”250 But Scalia then admitted, in conflict with his earlier denouncement of “implied repeals,” that section 5 of the General Allotment Act only “implied” that patented allotments were subject to real estate taxes.
Fifth, Scalia rejected the Yakima Nation’s political argument that state taxation of Indian land was wholly contrary to the announced federal Indian policy of self-determination and self-governance which has been Congress’s official orientation—both in policy announcement and in statutory enactment—beginning with the 1934 IRA and restated in Richard Nixon’s 1970 Self-Determination policy, which has been followed by every administration thereafter. In Scalia’s words, “this seems to us a great exaggeration.”251 Rather, he stated that while the in-personam (against the person) jurisdiction over reservation Indians at issue in Moe would be significantly disruptive, “the mere power to assess and collect a tax on certain real estate is not as disruptive.”252 Furthermore, even if the tribe’s objections were valid, they were told—as were the Indians in Smith and in most of the decisions we have reviewed—that their complaints would have to be taken to Congress since justices could not “pick and choose” among congressional laws. Thus, Scalia held that if the Yakima believed that the objectives of the IRA were obstructed by what Scalia called “the clearly retained remnant of an earlier policy,” they would have to go to Congress for relief.253 From this statement it is easy to see that one of the Court’s earlier “cardinal rules,” first expressed in The Cherokee Tobacco, the so-called last-in-time rule wherein the Court held that a later statute must overrule an earlier explicit treaty, had now been turned on its head.
After having announced these five major rationales, Scalia moved to address the two specific taxes: the excise tax and the property tax. Scalia declared that the state could not impose an excise tax on the Yakima. In order to deny the state’s right to tax the “proceeds of the land,” when it had just allowed the state to tax the “land itself,” Scalia proceeded to engage in a fascinating discourse on shielding the Indians from the excise tax: “It is quite reasonable to say, in other words, that though the object of the sale here is land, that does not make land the object of the tax, and hence does not invoke the Burke Act proviso [emphasis original].”254 And then, in a brief flash of insight that one can only wish might have held sway for the entire case, Scalia said, “[w]hen we are faced with these two possible constructions, our choice between them must be dictated by a principle deeply rooted in this Court’s Indian jurisprudence: ‘statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.’”255
Why Scalia was so eager to follow the liberal construction “principle” for this tax on cigarette sales and certain personal property items such as automobiles but refused to even consider it for the more destructive ad valorem “property” tax, which, as specified in the General Allotment and the Burke acts, flows exclusively from ownership of real estate on the anual date of assessment, and of which nonpayment can lead to foreclosure on Indian holdings, is hard to understand. His following the “liberal construction” principle here, but not in his reading of the Yakima treaty, the Washington State Constitution, the General Allotment Act, the Burke Act, the IRA, and the policies of Indian self-determination, is equally hard to fathom. Perhaps the Court felt that the excise tax, which in Scalia’s definition was a “tax upon the Indians’ activity of selling the land,” was undesirable because the ultimate and unspoken goal of the Court was to encourage Indians to sell their allotments, and it believed that the excise tax might be constraining the Indians from making such a sale. This would fit the Court’s contemporary stance, which seems to have aimed at revitalizing the assimilation process that slowed when the allotment and termination policies were abandoned.
Returning to the ad valorem tax, Scalia held that it was prima facie valid. Scalia distinguished the Court’s recent Brendale case on the grounds that that decision involved the Yakima’s wish to expand their inherent power to zone, whereas the pending case involved the tribe’s “asserted restriction of a State’s congressionally conferred powers.”256 There had, indeed, been historic conferral. First, the state’s constitutional disclaimer acknowledged that the state would not seek to tax Indian lands; second, the IRA had forcibly repudiated allotment proceedings and in the process had reestablished federal trust restrictions aimed at keeping the states at arm’s length from both tribal and individual Indian property.
More importantly, Scalia turned yet another Supreme Court rule on its head—the per se rule, discussed under the Cabazon case. This involved the well-established categorical prohibition of state taxation of Indians in Indian country. Scalia disingenuously asserted that while the categorical prohibitions have most often been applied in state taxation cases, “we think it also applies to produce categorical allowance of State taxation when it has in fact been authorized by Congress.”257 Scalia was somehow able to assert that Congress could categorically prohibit and categorically allow state taxation simultaneously, overlooking that one emphatically denies the other. Since Scalia had “categorically” ejected the prohibition of state taxation and had inserted his opposite categorical enunciation, it was unnecessary to consider either a balancing test or even to use the Brendale “demonstrably serious” test. Such categorical pronouncements preclude such activities.
In closing, and over the objections of the Yakima, who contended that it was not clear whether the foreclosed parcels had been patented under the General Allotment Act or might, in fact, have been patented under some other statute, Scalia brushed past this salient point and simply remanded the case to have this issue answered.
JUSTICE BLACKMUN’S DISSENT
In two powerful statements, Justice Harry Blackmun challenged the majority’s arguably implausible opinion:
I have wandered the maze of Indian statutes and case law tracing back 100
years. Unlike the Court, however, I am unable to find an “unmistakably clear” intent of Congress to allow the States to tax Indian-owned fee-patented lands.258
I am mystified how this Court, sifting through the wreckage of the Dawes Act, found any “clearly retained remnant,” . . . justifying further erosions—through tax foreclosure actions as in this case—to the land holdings of the Indian people.259
Blackmun asserted that the Court, in its application of the “unmistakably clear” intent, was wrong on three counts. First, he described how Scalia had drawn this unmistakable intent from the 1906 Burke Act proviso, which, by its very description, applied only to prematurely patented lands—that is, to allottees who were unilaterally declared “competent” by the Indian affairs commissioner and the secretary of the interior. All the other patented lands, which remained in the hands of allegedly “non-competent allottees” under the Burke Act, were not subject to state taxation. This is important because, as Scalia noted in his conclusion, it was not even clear that the Yakima families had secured their patents under the General Allotment Act, which the Burke Act had amended. If they had secured allotments through other statutes, then, legally, this proviso would not apply to them.
Furthermore, as Blackmun stated, and as Scalia himself had conceded, the proviso had itself been “orphaned” and thus had no force of law because “its antecedent principal clause”—section 6 of the Allotment Act—was no longer operative. In addition to the later congressional repudiation of the Burke Act under the IRA, the Supreme Court’s Matter of Heff decision was also overruled by the Supreme Court in United States v. Nice. Nice effectively locked tribal citizens into the dual status of being American citizens while remaining Indians under federal trusteeship.
American Indian Sovereignty and the U.S. Supreme Court Page 40