Confederated Tribes of the Colville Indian Reservation v. Washington

the COL TRIBES OF CONFEDERATED RESERVATION, Lum VILLE INDIAN Makah Indian Tribe and

mi

Tribe, Plaintiffs,

v. WASHINGTON, Charles OF

STATE Individually

Hodde, and as Director Department Washington State Nelson, Individually

Revenue, Jack G. of the State of Wash

and as Director Vehicles, Department

ington of Motor O’Brien, Individually and

and Robert S. Treasurer, Washington Defend

ants. America, Plaintiff,

UNITED STATES Defendant, WASHINGTON, OF

STATE & Tribes of the

Confederated Bands Nation,

Yakima Indian

Intervenor-Plaintiff.

Nos. 3868 and 3909. Court,

United States District Washington.

E. D. 22, 1978.

Feb. Pirtle, Ziontz, Pirtle,

Robert L. Morisset, Chestnut, Ernstoff & Seattle, Wash., for plaintiffs in No. 3868. Gorton,

Slade Atty. Gen. for the State of Washington, Coyle, Matthew J. Asst. Atty. Gen., Olympia, Wash., for defendants. Smith, Dean C. Atty., U. Spokane, S. Wash., plaintiff in No. 3909. Hovis, Hovis, James B. Roy, Cockrill & Yakima, Wash., for intervenor-plaintiff. CONSOLIDATED DECISION KILKENNY, Before Circuit Judge, and TURRENTINE, EAST and District Judges.* EAST, District Judge: causes, 3909, These Nos. 3868and were by stipulation parties consolidated for hearing and submitted Court on their respective following merits argument oral Seattle, Washington 28, on March CAUSE NO. 3868 PARTIES: plaintiffs The are Confederated Tribes of Reservation, the Colville Indian Lummi In- Tribe, dian and Makah Indian Tribe (Tribes).

* Originally statutory three-judge Judge District Richard H. Chambers for the Ninth Cir- hearing comprised, pursu- 10, May 1974, above was cuit under date composi- of designation Judge ant statutory of Richard three-judge Chief tion of the District Court H. Chambers for the Ninth Circuit date redesignated by under designation herein was and 20, 1973, of June appointment Honorable John F. of the Honorable Howard B. Tur- Kilkenny, Judge Senior rentine, U.S. Circuit for the Judge U.S. District for the Southern Circuit, East, Ninth William California, G. Senior U.S. Dis- District of in lieu of the Honorable Judge Oregon, trict the District of and Powell, redesignation Charles L. and the and Powell, Judge Charles L. Senior U.S. District appointment of the Honorable John F. Kilken- Washington. for the Eastern District of There- ny and the Honorable William G. East. pursuant designation after of Chief Wash- statutes-and administrative regula- are the State’s State The defendants Director, Hodde, Depart- and imposing proce- tions taxes collection ington; Charles Revenue, Washington; upon dures on-reservation sales to nonmem- State ment Nelson, Director, Department by tribally bers of the licensed retail- Jack G. Tribes Vehicles, Washington; (Dealers) cigarettes (R.C.W. 82.24) State Motor ers O’Brien, Treasurer, State (R.C.W. 82.26), Robert S. products and tobacco (State). Washington from the statutes and administra- State’s regulations imposing taxes motor tive JURISDICTION: (R.C.W. 82.44) homes, vehicles and mobile campers (R.C.W. 82.50) travel trailers and pur- these causes jurisdiction of We note by the Tribes and/or their 1362, 2201 owned members 28 U.S.C. §§ suant to 28 U.S.C. § 2202, residing 2281.1 within the reservations. In addi- and 28 U.S.C. § tion, damages against seek OF PROCEEDINGS: HISTORY arising out of actions taken to enforce State challenged cigarette assessments of the tax- 17, May commenced on This action was relief, declaratory es. Tribes also seek Judge Powell on Novem- and District enforcement, injunctive from the 5, 1973, conformity with 28 U.S.C. ber juris- exercise of civil and criminal restraining order temporary issued § diction over the Tribes and their members еnforcing ciga- enjoining the State residing (R.C.W. on the reservations 37.12). products against taxes rette and tobacco By stipulation, parties the Tribes. restraining to the continuance agreed AND STATE’S DEFENSE CAUSE: review the full three- pending order generally contests the Tribe’s September On

judge District Court. seeks declaratory claims and relief of law- tempo- converted the the full Court challenged taxing ful enforcement of its preliminary rary restraining order into presently schemes as administered. months, During ensuing injunction. stayed discovery proceeded until this Court proceedings pending

further FACTS: in Moe v. Confederated Court’s decisions A. Tribes: & Kootenai Tribes of the Flathead Salish Each of the Tribes is a United States Reservation, 463, 96 recognized sovereign Government (1976), Bryan L.Ed.2d 96 Itasca governed by tribe a business or tribal coun- County, 426 constitution, cil bylaws ap- under and (1976). Following 710 L.Ed.2d proved by Secretary of Interior.2 of those cases and after disposition Court’s discovery proceedings and brief- extensive The Colville Indian Reservation was es- ing, the causes with the issues refined were by tablished Presidential Executive Order upon stipulated submitted for decision facts 2, 1872, Affairs, July Kapler, 1 supplemented by deposition testimony Treaties, (2d 1904), Laws and Ed. and and affidavits. encompasses 1.3 million acres in the north- Approximate- eastern section of state. THE TRIBES’ CAUSE: 3,200 5,800 ly of the Tribe’s enrolled mem- relief, reservation, declaratory constituting Tribes now seek bers live on the The enforcement, injunctive percent population. with from the about 46 of the total by repealed Interior, respective 1. 28 2281 was Act of § U.S.C. members of the Tribes 12, 1976, 94-381, 1, August Pub.L. No. voted in § 1935 not to come under the Indian However, Reorganization this action Stat. 1119. is not affected Act of § U.S.C. et Tribe, thereby pending seq. hand, since it was on the date of The Makah on the other organized Reorganization Id. 7. under § enactment. the Indian Act. Although the Lummi and Colville Tribes have by Secretary approved of the a constitution products Reservation The Lummi Indian was es- sold Indians on the Tribes’ res- treaty of Point Elliot in tablished Presently ervations. the cigarette 7,319 encompasses and Stat. amounts per to carton. The tax $1.60 peninsula primarily acres near Bell- imposed by requiring Dealers to sell 1,250 Washington. ingham, About of the cigarettes to stamps which tax have been 2,000 Tribe’s enrolled members live on the permitted affixed. Dealers are purchase to reservation. either prestamped cigarettes supply or a The Makаh Indian Reservation was es- stamps from the State are affixed to by treaty tablished 12 Stat. the cigarettes by sale, prior Dealer to 28,000 acres at the north- encompasses and which case the Dealer is entitled a speci- tip Olympic Ap- Peninsula. western fied rate of reimbursement from the State. 1,000 900 of the Tribe’s mem- proximately However, (Rule WAC 192) 458-20-192 and reservation, constituting live on the bers excise 504.08.192, tax bulletin ETB Novem- percent population of the total about 24,1976, ber restrict the taxes on the reservation. and products tobacco to sales to non-Indians Each of the reservations is isolated and Indians, Indian tribes and as defined underdeveloped; goods most essential and is, therein. That the State construes the are located off reservations.3 services being inapplicable taxes as to sales to Indi- on the Most Indian households reservations ans for their own use or for on-reservation automobile, at least one and own resale to other Indians.4 vehicles. While numerous motor some own 82.24.090, 82.32.070, Under R.C.W. Rule tribally individually owned vehi- bulletin, and the excise tax Dealers exclusively on the are operated cles are reserva- tion, required operated keep specified are on and off the certain others records Many reservation. Indian families reside in related to taxable and nontaxable transac- reservations, and other mobile homes on the tions. Neither the Tribes nor their Dealers obligated pur- for the Indian families sought have authorization from the State to purchase have the future planned chase or possess unstamped cigarette products and of mobile homes for on-reservation location. professed each has it will not comply plagued Tribes are Colville and Makah product tobacco by unemployment percent rates of 33 taxing scheme. percent, and all of the respectively, 19, 1972, On December in an effort economically develop- Tribes are desirous scheme, enforce the ing employ- their reservations to stimulate State issued orders to tribal outlets on each generate additional tax revenues ment assessing unpaid reservation alleged taxes help programs fund run the tribal 82.24, to be due under April, R.C.W. and in governments. programs These are de- unstamped cig- resorted seizures of signed improve well-being, the economic health, arettes in the stream of interstate com- eduсation and social welfare of the Tribes’ members. merce and bound for the Tribes’ reserva- Furthermore, tions. the State declared its B. State’s Enforcement of the Statutes: intention to continue such seizures in future; however, period has for a such years tempo- of nine seizures were attempted to cigarettes tax rarily enjoined and tobacco as above delineated. dispute (see assumption 3. There is no over the demarcation of discussion of the State’s the exterior jurisdiction, infra) boundaries of the several encompassed reserva- grant a tions. power However, to tax reservation Indians. theory by rejected this was the Initially, right 4. the State claimed the to tax all Bryan. Accordingly, the State has narrowed cigarette regardless they tribal sales of whether argues only and now claims tax were made to Indians or non-Indians. This cigarette tribal sales to nonmembers of the theory contention was asserted on the that the Tribes. congressional grant of civil to the by 83-280, states conferred Pub.L. No. 67 Stat. Dealers, respective : and the tax must be Taxing Schemes Retailers’ Tribal C. selling price. added to the retail The develop- Tribe, during pretrial the Each cigarette taxes are an important Tribes’ causes, in these ultimate issues ment funding source of revenue for the sale, dis- regulating enacted ordinances sponsored programs for social Tribes’ and to- cigarettes and taxation tribution development. example, economic For from reservation. Each on its products bacco through during which time the approved by Secre- tribal ordinance impose Tribes refused to ciga- Pur- State’s of the United States. tary of Interior ordinances, taxes, respective ap- rette the Colville Tribe earned suant one or more tobacco $265,760 have established Tribes proximately cigarette from its tax reservations. respective on their outlets while the Lummi and Makah Tribes earned $54,440 $13,490, approximately respec- tobacco outlet is The Dealer at each tribal tively, cigarette from their taxes. Indian trader and a federally licensed manages who tribally licensed dealer Due competitive advantage en- business outlet. owned tobacco tribally joyed by the Tribes over retailers who do the Dealer at each tribal Simultaneously, tax, impose nearly percent Resort, outlet, at the Makah except tobacco the Tribеs’ sales are made to non-Indians. separate business of sell- manages his own tacitly The State concedes the Tribes’ retail. As variety of merchandise at ing a cigarette source of dry revenue would managing a tribal tobacco remuneration for up they if were forced to add the State tax outlet, entitled to each Dealer is retain cigarettes. cost of their The facts ciga- from sale of gross revenue derived dictate that the tribal taxes could not be a in excess of the products tobáceo rettes and continuing source of income if ciga- tribal price and excise tax wholesale distribution rette sales to non-Indians are subject also respective Tribe. levied tax; cigarette cigarette tribal sales products are cigarettes All and tobacco to non-Indians would be eliminated and the federally restricted tribal purchased with cigarette sales commerce between the wholesalers out- funds and from authorized Tribes destroyed. and non-Indians would be state, shipped directly side the which are Thus, ability spon- each Tribe’s to fund its respective cargo Tribes sealed trucks programs sored would suffer substantial in- Interstate licensed carriers. Commerce terference.5 is made to the Dealers when Distribution cigarette police The ordinances exercised tribal taxes fixed tribal or Tribes’ taxing power. respec- business council are collected. as well as provide: tive ordinances tribally ranges levied (a) products, including ciga- The tobacco forty fifty per cents carton. Tribal rettes, property remain the shall ordinances read that tax im- each Tribe is a tax distribu- the Tribe until sold to the ultimate posed customer; cigarettes on the reservation by tion of Cigarettes highly price elastic and even a PhD in ceived his Economics from Harvard in price difference in can have a small substantial is a member of the American Economic purchasing Although effect on habits. and Western Associations and has Economic impose per a tax of about 40 to 50 cents served as a consultant to the American Indian carton, a carton of sells for about Policy and to several Indi- Review Commission $1.10 $1.20 less on the reservation than off published an tribes. He has also articles in the If, however, the reservation. the tribal and development. At field of Indian economic imposed, ciga- taxes were carton of оpinion, he was time he rendered his familiar per rettes would cost 40 to 50 cents more ordinances, with the State and tribal carton on reservation than off the reserva- the reservations economic conditions on tion. ciga- sale of the factors which influence the Trosper, of Mr. L. an dispute qualifi- See the affidavit Ronald his rettes. The State does specializes who in the area of Amer- economist expert. cations as an development. economic ican Indian He re- 1966). (9th We (b) tribal and Cir. find no need here for A Dealer shall first obtain elaboration of those discussions. supported federal trader’s licenses property and adequate person with judicial 1953, prior We take notice that coverage on the liability insurance Government the Federal exercised exclusive premises; Dealer’s jurisdiction over Indian tribes and their res- prod- tobacco (c) A Dealer shall not sell 1953, In Congress ervations.6 enacted minors, ucts, including cigarettes, 15, 1953, 83-280, August Act of Pub.L. No. number of nor more than a limited 505, 588-90, provided Ch. Stat. per non-Indian cigarettes cartons of five named states with civil criminal and sale; and jurisdiction over Indians and reser- Indian provided vations and “op- certain other (d) penalties. For violation (including State), tion” states with con- short, compre- reads as a each ordinance statutory stitutional or of disclaimers Indi- licensing, regulation scheme for the hensive jurisdiction, jurisdic- could assume such taxation of the on the and sale of by amending tion their constitutions or reservations. necessary statutes where to do so. Civil and Crimi- Assumption D. State’s legislature The civil State’s asserted Jurisdiction : nal jurisdiction and criminal over Indians and and assumption of civil criminal pursuant Indian reservations authori- Indian jurisdiction over Indians and tribes 1957, 240, ty by of Laws Ch. as amended by the previously has been discussed United 1963, 36, Laws of Ch. codified as R.C.W. Appeals Court the Ninth consent, Cir States 37.12. In the absence of a tribe’s and Tribes cuit. Confederated Bands jurisdiction assumed Indians over Washington, Yakima Indian Nation v. land on nontrust and non-Indians trust 2); 1977) (Yakima Con (9th F.2d 1332 Cir. per- and nontrust land to the fullest extent of Yakima federated Bands and Tribes In missible under Pub.L. No. With re- 280.7 Washington, Nation v. land, dian spect juris- 550 F.2d 443 trust State assumed 1); Quinault (Yakima 1977) (9th subject and only eight Cir. diction over Indians as to tribes, Gallagher, Tribe of Indians v. 368 F.2d consenting 648 matter areas.8 As to vations, country, principle This established 6. first lands within this state in 515, 515, Georgia, v. Worcester 6 Pet. accordance with the consent of the United years only given by L.Ed. 483 And over August States act exceptions (Public certain limited carved out. E. Session), were Congress, Law 83rd 1st Martin, g., 496, Ray New York ex rel. assumption jurisdiction but such shall not (1946), 90 L.Ed. 261 apply to Indians when on their tribal lands or jurisdiction court over crimes committed lands within allotted an established Indian res- against non-Indians on Indian each other reser- and held in ervation trust the United States vations. subject against to a restriction alienation imposed States, provi- the United unless scope jurisdiction The of civil offered 7. sions of R.C.W. 37.12.021 have [tribal consent] apparently quite Pub.L. No. 280 was limited. invoked, except following: been for the primary Congress enacting concern (1) Compulsory attendance; school No. 280 was lawlessness Pub.L. to combat assistance; (2) Public reservations, Bryan, 426 U.S. at relations; (3) Domestic only Congress S.Ct. secondarily was concerned illness; (4) Mental extending scope (5) delinquency; Juvenile jurisdiction. civil states’ (6) Adoption proceedings; that Pub.L. No. 280 not confer the found did (7) children; Dependent regulatory general au- to assume civil (8) Operation of motor vehicles Rather, thority. regard it relates in this streets, public alleys, highways: roads and Pro- pro- application to court of state civil law the ceedings. further, petitioned vided That Indian tribes that Id. for, granted subject were and became to state provides: jurisdiction pursuant chapter 37.12.010 R.C.W. to this on or be- hereby subject obligates Washington fore March 1963 shall remain “The state juris- chap- and criminal and civil state civil if to assume criminal itself binds territory, Laws of 1963 had and Indian reser- ter not been enacted.” over Indians diction past has in the responsibility enforcement jurisdiction to assume obligated itself State Ap influenced United States state exercises that this same extent “to the upholding a the Ninth Circuit in peals for both else- or jurisdiction criminal civil a three- refusal to convene District Court’s 37.12.021. R.C.W. state.” within the where Regents v. of Univer consented, judge court. Sellers while has so Tribe The Colville (9th California, 497-98 432 F.2d sity have not. and Lummi Makah denied, 1970), cert. 401 U.S. juris- “total” Cir. asserts Accordingly, State (1971). The Tribe, 28 L.Ed.2d only but the Colville over diction have failed to name argues the Tribes Makah and State jurisdiction over “partial” officers with any sig “as defendants Tribes. Lummi enforcing the responsibility full nificant state civil and criminal laws on range of AND CONCLUSIONS: DISCUSSION and that as a conse reservations” plaintiff’s Issues: A. Jurisdictional “probably” jurisdic lacks quence this Court Indian Reser- Assumption of (1) State’s appropriate officials which tion over the : vation Jurisdiction any injunction “largely issued would render outset, with the we are faced theAt We take this to be a claim that illusory.” Court, a stat- as that this contention jurisdiction State’s three-judge District Court Court, has no three-judge District utory injunc because there is no basis for lacking claim that the Tribes’ over the jurisdiction relief. tive reservation of Indian assumption State’s state officers named as de 37.12, was, to R.C.W. pursuant jurisdiction, in this action are the State Trea fendants Protection alia, Equal inter violative surer, Department the Director of the State Amendment. of the Fourteenth Clause Revenue, and the Director State Pub.L. the enactment of Prior to Vehicles. These de Department of Motor 94-381, required No. 28 U.S.C. § they have fendants were named because Dis statutory three-judge designation of a the chal responsibility over enforcement based whenever an action trict Court statutes. It is now clear lenged taxation constitutional States a substantial United assumption of validity of that the enjoin the enforcement sought to question has no rela jurisdiction Indian reservation application. a state statute of state-wide invalidity of its validity to the tionship constitutionally insubstantial A claim is products and tobacco fictitious,” “essentially “obvi only if it is sales Dealers. Cf. applied schemes frivolous,” “wholly insubstantial” or ously Bryan. merit”; is, “if its without “obviously an order 65(d) provides that Fed.R.Civ.P. pre from the clearly results unsoundness so others, binds, among injunction granting as to foreclose of this court vious decisions officers, action, their parties “the room for the infer subject and leave no servants, and attor- employees, agents, sought to be raised questions ence that party made a neys.” The has been subject controversy.” Goosby can be and, immunity except for the this action 512,518, 854, 859, Osser, 93 S.Ct. v. Eleventh Amendment byit guaranteed decision in Yaki 35 L.Ed.2d Constitution, in- any to the United States the State’s contention that ma 2 forecloses by this Court issued junctive enforcement Fourteenth Amendment claim is the Tribes’ who have officers would bind State’s insubstantial. responsibility. enforcement requisite Voyage Liquor Corp. Ep Bon Idlewild statutorily 713, 715, waived stein, The State immunity suit Amendment (1962),teaches that in order for its Eleventh L.Ed.2d 794 How courts, 4.92.100. R.C.W. its own appropriate, there such not extend to ever, does a waiver injunctive basis for relief. such must be some Motor Co. v. Ford court actions. to name individual official with federal Failure Indiana, 459, Dept. Treasury taxing 323 U.S. measures themselves is 347, (1945). S.Ct. 89 L.Ed. 389 Further 65 those measures violative of the more, the State has not authorized its court provision Indian Com- commerce immunity. 8, to waive the I, counsel Skokomish cl. merce Clause. U.S.Const. art. 3.9 § France, (9th Tribe v. 269 Indian F.2d 555 17 Note in Moe states that after Mescalero 1959). Ford Cir. See also Motor Co. Jones, 145, Apache v. 411 93 Tribe U.S. in Congress, Nevertheless the exercise its 1267, (1973), L.Ed.2d 36 114 S.Ct.. powers, strip enumerated a state itsof Comm’n, Arizona McClanahan v. State Tax immunity. Fitzpa- Eleventh Amendment 164, 1257, 411 U.S. 93 S.Ct. 36 L.Ed.2d 129 Bitzer, 445, 2666, v. trick 427 U.S. 96 S.Ct. (1973), validity stat- attacks on of state (1976); 49 L.Ed.2d 614 Parden v. Terminal utes imposing taxes reservation Indi- Co., 184, 1207, 377 R. 84 U.S. S.Ct. 12 Supremacy ans raise issues only Clause (1964). L.Ed.2d 233 Given the rationale scope which do not fall within the of 28 Moe, used the Court in 425 at U.S. Nevertheless, in Moe a U.S.C. 2281.10 § 472-75, in construing 96 S.Ct. 1634 28 three-judge had properly court been con- 1362, we conclude U.S.C. must that Con- § vened case prior because the had been filed gress has the states’ removed Eleventh to the in decisions Mescalero and McClana- immunity when Amendment a suit is han. precluded Similar treatment here is brought by an tribe. v. Aquilar Indian approx- because this action commenced 433, Kleppe, (¿.Alaska 424 436 F.Supp. imately seven weeks after those decisions. 1976). We conclude proper the State a Notwithstanding language in party any defendant in this Court and in- Moe, we conclude this Court has junctive against enforcement issued challenge over the Tribes’ of the State’s against would run officers charged its providing statutes for the enforcement of requisite responsibility. enforcement taxing through measures the declaration and seizure unstamped as contraband of (2) Tax Claims: cigarettes moving in interstate commerce. parties agree this Court has a ques That claim raises substantial federal jurisdiction over the Tribes’ attack on tion under the Commerce Clause.11 products and tobacco tax- schemes; however, a ing footnote in it may Moe State’s assertion that only necessitates a comment. The shipments depends Tribes’ seize such validi validity ty “constitutional” attack on the imposition of taxes in the first Although ing only Supremacy invalidity mount several other at Clause do not 9. taxing scope tacks on State’s scheme which are dis fall within of 28 U.S.C. 2281. Swift § infra, depend Wickham, 111, 258, cussed these attacks the final & Co. v. 382 U.S. 86 S.Ct. analysis upon Supremacy Here, however, invocation (1965). 15 L.Ed.2d 194 Dis and, therefore, require ‍​‌‌‌‌‌​​​‌‌​‌​​‌‌‌‌​​‌​​‌‌‌​‌‌‌​‌​​‌​​​​‌​​‌‌‌​‌‍Clause do not court, the con properly trict Court convened a 2281 § three-judge vocation of a court. Swift v. & Co. 258, because at the assert outset Tribes’ аttack Wickham, 111, 382 U.S. 86 S.Ct. 15 unconstitutionality ed the of these statutes under (1965). L.Ed.2d 194 Clause, a Commerce not-insubstantial claim since had Mescalero McClanahan 10. “It is thus clear that the basis for the inval- yet Osser, Goosby been See decided. v. 409 idity [imposing of these measures taxes 512, 854, (1973).” U.S. 93 S.Ct. 35 L.Ed.2d 36 Indians], on reservation which we have found Moe, n.17, 425 U.S. at 481 96 S.Ct. existing to be inconsistent with federal stat- utes, Clause, Supremacy U.S.Const., is Art. 11. The Tribes attack these insofar statutes VI, 2, exemptions cl. and not automatic ‘as apply as the State seeks them to the Tribes. matter a law’ constitutional either under the Nevertheless the Court has held that intergovernmental-im- Commerce Clause munity three-judge required a court whether the originally down doctrine as laid applied. statute was attacked its face or as 316, Maryland, 4 M'Culloch v. Wheat. 4 L.Ed. States, Dept. Employment v. United 385 U.S. so, (1819). convening If the basis 579 then 355, 464, (1966); 87 17 S.Ct. L.Ed.2d414 Steffel three-judge type a court in this of case has Thompson, n.7, v. 415 U.S. 457 94 S.Ct. effectively disappeared, for this Court has ex- L.Ed.2d pressly held that on state attacks statutes rais- challenge congressional nized that Thus, valid absent authoriza- a instance. vitiate consent, could the need validity of taxes tion or their possibly own constitutionality of the en to review enjoy federal, immunity tribes from suit is clear It provisions. forcement Puyallup state or tribal courts. Tribe v. properly con three-judge District Court Washington Dept., Game dispose case on vened (1977); L.Ed.2d Turner v. to it. Florida Lime any ground presented States, United Paul, Avocado Growers & (1919); Nakai, 291 v. L.Ed. Hamilton 453 (1963); 248 1210, 10 L.Ed.2d United 83 S.Ct. 152, (9th 1972). F.2d 158-59 Cir. im- This Comm’n, Georgia v. Pub. Serv. 371 States munity to freedom from extends suit on 397, 285, (1963). 317 83 9 L.Ed.2d S.Ct. U.S. cross claims. v. United States United jurisdiction have to only Not does Court Co., Guaranty 309 Fidelity States & U.S. so issues but to do furthers adjudicate such 506, 653, (1940). 60 S.Ct. 84 L.Ed. 894 Since deciding principle well established suit, the Tribes have not consented this if Ha necessary. issues constitutional jurisdiction has no Court entertain the 528, 1372, Lavine, 94 v. 415 U.S. S.Ct. gans claims declaratory State’s relief.12 (1974); Rosado v. Wyman, L.Ed.2d 39 577 1207, 397, 25 L.Ed.2d 442 90 S.Ct. might by 397 U.S. The fact way that State 309, Smith, King 392 U.S. 88 S.Ct. (1970); v. recoupment liability reduce its does not 2128, (1968); and Ashwan 20 L.Ed.2d 1118 it a grant right of action for affirmative Authority, Valley 297 U.S. der v. Tennessee States, 247, Bull relief. v. United 288, 347, 466, (1936). L.Ed. 688 56 80 S.Ct. (1935). 55 S.Ct. 79 L.Ed. 1421 expended has Finally, this Court sub since issues, in judicial time with it is stantial Subject : B. Matter Issues “judicial economy, conve the interest of litigants” (Unit nience and fairness to [the] (1) Cigarette : Tax Issues Gibbs, Mine ed Workers U.S. A decision in this case has been delayed 1130, 1139, 16 L.Ed.2d 218 86 S.Ct. thought the parties because one time (1966)) to retain over these Supreme forthcoming Court’s decisions in claims. Bryan dispositive and Moe would be of the presented Bryan, issues here. in eliminat- (3) Reliеf: State’s Claims for ing grant the State’s claim that the of civil a declaratory seeks jurisdiction in Pub.L. No. 280 was a con- regulations judgment its statutes and gressional grant authority to the states of retail pertaining to the taxation on-reser Indians, impose upon reservation taxes products cigarettes, sales tobacco vation help to presented did narrow the issues products produced and other reservation However, generated here. Moe more superfluous largely valid. claim is Such or disagreement par- confusion between the since, of the retail exception with the sales than it ties eliminated. The State main- question, the substantive issues raised tains that of the Moe resolved most remain- bymet by these claims must be Court ing issues in while the its favor upon claims of the Tribes. The passing argue distinguishable however, Moe is some not, challenged Tribes have respects Supreme and that validity general Court re- of the retail sales tax, long recog- R.C.W. 82.08. It has been served decision in others. (1957). provision Sherwood, urges Cf. States v.

12. The State that a the cor- United porate the Makah Tribe 85 L.Ed. 1058 charter of constitutes corporate such Consent in its consent suit. Since consent would a tribe to suit capacity amount to waiver of what amounts constitute consent to sover- does not to suit eign immunity, strictly against governmental capacity. its terms “must be in its ob- tribe Namekagon exceptions served and thereto are v. Bois Forte Res. Dev. Co. Hous. States, Auth., implied.” (D.Minn.1974), aff’d, F.Supp. Soriano v. United 269, 273, (8th 1975). F.2d 508 L.Ed.2d 306 Cir. Moe, State, however, the Confederated Salish & Koote- pointing to the language of nai Tribes and some of their members enactment, its retail sales tax a recent brought seeking declaratory two actions Act, amendment to its tax'- injunctive against cig- relief Montana’s judicial and administrative construction personal property arette and taxes and ven- thereof, argues that at least with respect to applied licensing dor statutes as to tribal retailers, legal sales incidence living members on the reservation. The tax falls the non-Indian con- rulings affirmed the sumer. Court, three-judge holding District In situations wherein federal “the personal property personal tax on immunity affected aby determination reservation; property located within party to a transaction bears the the vendor license fee to be sought applied legal tax, incidence of a state the federal to a conducting reservation Indian a ciga- courts “are not bound the state court’s rette business for the Tribe reservation characterization of the Agricul tax.” First land; tax, and the sales as applied Comm’n, tural Bank v. 339, Tax 392 U.S. to by on-reservation sales Indians to Indi- 347, 2173, 2177, 88 S.Ct. 20 L.Ed.2d 1138 ans, with the congressional conflict statutes (1968). purposes For deciding of federal provide the basis for decision with questions, constitutional “where a State re respect impositions. McClanahan, to such quires its passed that sales tax the to Jones, supra; Apache Mescalero Tribe v. purchaser and be by collected the vendor 145, 1267, 411 93 36 U.S. S.Ct. L.Ed.2d 114 him, this establishes as a matter of (1973).” 480-81, 425 Id. U.S. at 96 at S.Ct. law legal that the of incidence the tax falls 1644. The Court also the upheld District upon purchaser.” the United States v. Mis ruling Court’s that cigarette Montana’s sissippi Comm’n, 608, Tax 599, 421 U.S. 95 sales tax valid as applied to on-reserva- 1872, 1878, S.Ct. (1975). L.Ed.2d 404 See tion sales Indians to non-Indians and Bank; Agricultural also First Kern-Limer respect that Montana could with to such Scurlock, ick 110, U.S. S.Ct. “require sales the proprietor simply Indian (1954); L.Ed. 546 King Alabama v. & Booz the to the price thereby add tax sales er, S.Ct. 86 L.Ed. 3 aid the collection State’s and enforcement” This is true notwithstanding the fact that (id. 1646) at 96 S.Ct. at of the tax the is legally seller for payment liable of placing without unconstitutional burden the Mississippi Comm’n, tax. Tax self-government conflicting tribal or at congressional with any statute. Since the cigarette Court found that the Montana tax The in arguing that the inci- legal upon was levied the non-Indian consumer dence the of tax upon falls the retailer, the rather than tribe or the Indian buyer, sellers, non-Indian rather than tribal holding the did not with gener- conflict the relies by analogy provisions on the consent, al rule absent congressional that general sales tax. R.C.W. 82.08. taxation of “Indian reservation lands Such reliance is misplaced. The sales tax Indian income from activities carried on specifically provides statute that the sales within the boundaries of the is reservation” paid tax buyer seller, shall be the to the impermissible. Mescalero, 411 U.S. at that each seller shall collect the tax from 93 S.Ct. at 1270. the buyer, and that the amount of the tax “shall constitute a attempt Moe, In its debt from the distinguish buyer we are the addition, met at seller.” In provides the outset with the Tribes’ conten- that the Moe, tax separately tion that unlike in shall be stated the here must from the sell- ing legal price fail the because incidence the tax is not be included in the sales imposed dirеctly price upon the Tribe or of an item. R.C.W. 82.08.050. Under retailer rather than the the non-Indian consum- standards the Supreme announced Court, er. The that if the appear State concedes statute such terms require would construed, is so the tax must fail. tax, finding legal that incidence of the sells, uses, consumes, person who first law, purchas- upon falls a matter handles, (either physically or possesses does not contrast er. constructively im- in accordance RCW particular Of provisions. similar have 82.24.020) them this any provision or distributes absence of is the portance passed on to . the tax be state. requiring Thus, the decisions

buyer. purpose of this “It is also the intent and a conclu- necessarily require not Court do imposed the tax shall be at chapter that ciga- incidence of State’s legal sion that the first taxable place the time and buyer. tax is on the rette occurring within this state.” event language statutory Although language, Referring statutory to a conclusion irresolutely lead possess, retailers point does out tribal tax falls legal incidence handle, within and distribute the not neces it also does purchaser, their sale Washington prior the state contrary conclusion require sarily buyers. pointing Then to the non-Indian analy the final seller. upon the it falls language that the tax is to be the additional is sis, making the determination key to imposed upon the occurrence of first intent. First legislative the divination state, they within the con taxable event Bank, Agricultural of a particularly tend that absence statutory language recourse to 2173. If inescapable that the pass-on provision, may certain this Court inadequate, alone imposed of the tax is on the legal incidence interpretations from the guidance ly seek legis retailers. The Tribes claim tribal judiciary and by State’s enactment impose legal lature’s intent to incidence officers. executive further upon sup of the tax the seller is intent, Washington the decisions of the legislature’s ported determining the In must be the lan- in Makah Indian Tribe v. starting point Supreme Court the obvious Comm’n, The basic statute. 72 Wash.2d 434 P.2d 580 applicable Tax guage Service, statute scope of the Inc. v. (1967), and intended and Canteen Wash structure and 82.24.080. (1974). 82.24.020 ington, out in R.C.W. 83 Wash.2d P.2d is set tax and imposes Makah, the upheld imposition section the the The former In part: cigarette upon in excise tax sales provides Washington wholesalers to the Mukah shall be collect- levied and there “There is theory legal that the incidence upon a tax Tribe on the provided, ed as hereinafter pos- the wholesaler rather than use, handling, of the tax fell on sale, consumption, the In cigarettes, purchaser. all in Tribe as Canteen Ser the or distribution session vice, Court, Washington Supreme rate of six the hold equal to the an amount cigarette.” selling price purposes that the retail per ing mills one-half general determining the amount of the part: provided 82.24.080 Prior to § ciga the sale of applied sales tax to be chap- this purpose of is the intent and “It paid the excise tax on the rettes included articles all of the levy a tax on ter to stated: cigarettes, consumed, used, herein, sold, han- taxed legal cigarette “The incidence of the state and dled, within this distributed or who first stamp upon person tax is ‘the who person the the tax from to collect uses, consumes, handles, sells, consumes, handles, sells, uses, or dis- first them in the state.’ RCW or distributes them in the state.” tributes Thus, legal incidence of 82.24.080. to read was amended this section In upon will fall the one who first the tax as follows: state and into the brings chap- of this purpose “It is the intent acts.” 522 any of the mentioned does articles on all of the levy a tax ter to added). (Emphasis P.2d at 848. consumed, used, herein, sold, han- taxed that in Can- candidly admits The State within dled, or distributed possessed, Service, Washington teen the tax from to collect state legal published Court held that incidence its conclusion in E.T.B. 504.- cigarette upon tax fell the retailer but 08.192.13 maintains nevertheless that Canteen Ser- dispositive

vice is not of this case. The Tribes this urge give Court to weight no to the excise bulletin on the on the Focusing statutory language theory that it is “a clear subterfuge” and the tax imposes upon the occurrence attempt “an to rewrite RCW 82.24.080 in event, of the first taxable the State reads order to make . . . valid .” While imposing legal the statute as incidence recognize we agencies that the upon of the tax the seller where the trans- have place action within the and in- no legislation takes amend State non-Indians, buyer volves but bulletins, administrative rules or proper is where the transaction involves on-reser- weight to give pronouncements to such by an Indian non-Indian. vation sale to a determining meaning of its statutes. this con- State reaches conclusion County State, Pierce v. 66 Wash.2d struing language the first taxable event (1965); Pringle P.2d State, than doing merely referring more Wash.2d P.2d 425 first in the series of events enumerated in interpretation This also draws ‍​‌‌‌‌‌​​​‌‌​‌​​‌‌‌‌​​‌​​‌‌‌​‌‌‌​‌​​‌​​​​‌​​‌‌‌​‌‍support R.C.W. 82.24.020 and .080. The ar- several from other sources including a gues construed, properly statutory recent amendment to the tax stat- language means an enumerated event In September, ute. in response to an unless it not the first taxable event inquiry from a member of the state legisla- constitutionally Assuming taxable. that to ture, the Attorney General the state of case, be the since an Indian retailer is ex- Washington opinion, issued an AGO 1970 empt imposition the tax from the under 20, which recognized No. legal inci- Clause, it Supremacy follows that dence of the tax shift could depending on first taxable event would the use or surrounding circumstances consumption by buyer. the sale. non-Indian part, where this Conversely, opinion the transaction involves stated situations a seller is not immune state taxa- who wherein State lacked impose tion, Service, as in Canteen the first taxable tax upon retailers, “if possession, handling event be his would purchaser from such retailer is a non- of the cigarettes legal distribution and the . . duty the to buy the ciga- incidence the tax upon of would be him rette excise tax stamps, and thereby to pay purchaser. rather the than tax, purchaser the devolves on this . . ..” Id. at 13 n.5.14 Department significance Of more of Revenue has is the officially adopted language State, the in interpretation Tonasket v. 84 Wash.2d urged R.C.W. 82.24.080 on Court this and 525 P.2d (1974), which decision was tor, provides part: 13. E.T.B. 504.08.192 or in seller and thus the first taxable event products handled, occurs when the are first holding “Under the of our Court Canteen distributed, or sold within this Service, State, (83 Since Inc. Wn.2d 761 P.2d [522 st^ite. prior sale, this occurs ciga- to the retail 847]) (84 the and Tonasket v. State Wn.2d 761 products or part rette selling price, 744]) tobacco cigarette tax is of the P.2d the tax [164] [525 and sales, products apply even in upon the case of tobacco ble tax which the ‘first taxa- exempt sales paragraph 2, are tax under this event’ in state. This makes a different Service, by supra.” the above. Canteen measure for sales tax in the case sales Indians non-Indians to than is the case for a major premise opinion 14. A of the was that by a taxable sale non-Indian. congressional grant Pub.L. No. 280 was a by “a. an Indian Sale to a Non-Indian: to the states to assume civil possession Here the first taxable event is the including the pow- over reservation Indians the cigarette the non-Indian and the therefore theory еr of taxation. The fact this products or tobacco tax due on the sale is not repudiated by Supreme later Bryan the Court in part selling price a of the the sales opinion’s does not detract from the com- tax is due. legal ment on the issue. incidence “b. a Sale Non-Indian : Here the taxable handler, falls on the incidence first distribu- the focus of the Court on the statute’s Supreme Court Washington by the issued consump- to applicability Service. alternative use or in Canteen its decision shortly after Washington commonly imposed require- Tonasket, tion the In imposition ment that use taxes be collected retail- affirmed Court reservation In- upon ers, tax sales cigarette seems safe conclude that noting that After non-Indians. dians to use or was the consumption meant that the sales, involving upon the tax imposition recognized taxable event and thus that the likely be would Indians only reservation legal of the tax shift de- incidence could Ari- Trading Post Co. v. by Warren barred trans- pending on the circumstances of the Comm’n, zona Tax action. (1965), the Court stat- L.Ed.2d Finally, a legislature gave itself ed: strong the le- interpreted indication imposed upon sought to be tax here “The the tax as gal falling upon incidence of sales non-In- cigarette Mr. Tonasket’s purchaser non-Indian involv- transactions one levied is, among things, other dians ing on-reservation sales non-Indians in a of the ‘consumption’ ‘use’ tax Act. 1975 amendment Ex. 1st By Laws cigarettes. pro- As amended R.C.W. 82.24.260 157, 4, Sess., legislature amend- ch. § in part: vides 82.24.080, it to be by proclaiming RCWed “Any sells retailer who or otherwise dis- chapter intent of the also the unstamped poses cigarettes other time and imposed recognized than ... In- federally event. If this the first taxable place of organization respect dian tribal with expression an declaration be legislative sales to enrolled members of the tribe always legislature intended what buyer shall from the transferee collect or 82.24.080, then, respect to RCW imposed buyer thereof the tax such purchasing ciga- Tonasket was Mr. since by RCW . transferee 82.24.020 re- Oregon distributor for from rettes the same to department remit as well Indians to reservation sale (Emphasis added). . .” non-Indians, logical appear it would taxable the first event conclude sum, this In Court concludes to a be the resale of would legislature’s statute evidences the intent to non-Indian, Mr. Tonasket at which time impose incidence tax at the legal stamp the tax required tо affix could be opportunity. earliest Where constitutional collect amount tribal sales on-reservation to non-Indians P.2d at 754. customer.” 525 non-Indian is, involved, the first taxable event added). (Emphasis therefore, consumption by the use or situations, purchaser. non-Indian such is somewhat unclear Although language legal upon falls the the incidence the non-Indi denominated taxable since the Court than seller.15 cigarettes, purchaser an rather the tribal given resale of the event as the products brings, state who be reached with in this or causes conclusion cannot 15. A similar this state products brought, without the respect tax. into to State’s tobacco any products parties Although state R.C.W. the have dis- tobacco for sale.” 82.26. R.C.W. sale, 82.26.010(3). products “upon second tobacco tax- The tax is the the cussed use, handling, they together, statutory consumption, the or distribution of if stand fall es as products” Washington. language it clear that the all tobacco R.C.W. of the latter makes tax, 82.26.020(1). upon legal Unlike the there is of the Dealer. incidence the tax falls imposes upon statutory language upon Actually speci- no tax imposing two taxes the cigarettes. products the first event. tax is im- other than taxable Rather the fied tobacco imposed upon posed (a) brings, when “the distributor or caus- stocks tax is . “A floor products” brought, every to be into this without es state from distributor of tobacco clearly products 82.26.020(2). R.C.W. Dealers are the state tobacco for sale.” R.C.W. Thus, legal 82.26.020(1). in both the within terms of statute instances distributors upon “any per- the Dealer and the tax is include incidence falls distributor defined to since selling engaged invalid. of tobacco in the business son 1356 274,

Having (1946); insofar as on-res- 91 L.Ed. concluded 265 Southern Pac. Co. concerned, Arizona, 761, 769-70, to non-Indians v. ervation sales 325 65 U.S. S.Ct. 1515, tax imposes upon Gwin, a the use or (1945); the State 89 L.Ed. 1915 White & non-Indians, cigarettes by Henneford, of consumption 434, 438, Prince v. 305 U.S. 59 325, legal upon (1939). incidence which falls 83 272 S.Ct. L.Ed. See Nelson them, Sears, Co., 359, we to a v. turn consideration Roebuck & 312 U.S. 61 586, (1941); other contentions. 888 Tribes’ S.Ct. L.Ed. Henneford v. 85 Co., 577, 524, Silas Mason 300 57 U.S. S.Ct. against The first alternative claim raised (1937); 81 814 L.Ed. Monamotor Oil Co. v. of the tax is that validity Tribes Johnson, 86, 575, 292 U.S. 54 78 L.Ed. it is violative of Indian Commerce (1934). 1141 imposes multiple a Clause because which is burden on Indian commerce Moe, 17, In 425 at 481 n. 96 shared non-Indian commerce.16 In order 1645, S.Ct. at the Court made it clear that this proposition, rely to establish the Tribes after McClanahan, Mescalero and stаte tax by analogy Supreme decisions of statutes affect Indian tribes and In construing scope and effect dians will not be invalidated as a result of Clause it has applied Commerce as been “any exemptions automatic ‘as a matter of opposed interstate as Indian commerce. constitutional law’ either under the Com argue The Tribes rationale of such merce Clause or intergovernmental-im since applicable cases is is no more “[i]t munity . doctrine . . It is true for a state permissible to discriminate nevertheless that the Court has established against commerce than is to dis- the general rule a state not tax against criminate interstate commerce.” Indian reservation lands or Indian income from activities is, full these carried on within the A review of contentions bound however, aries of the unnecessary. simple congression reservation absent answer consent, al prohibited by is that such claims have been Mescalero and McClanahan.17 “special Court. The Outside the cases on which area of state taxa 18 rely support have tion” have the Tribes established burden estab lishing a doctrine of “constitutional law” based challenged regulation that a upon scope a and effect construction “frustrates self-government, tribal see Wil Lee, the Commerce in the 217, 219-220, Clause absence liams v. 358 U.S. 79 S.Ct. E. controlling g., federal statutes. Free 3 (1959), L.Ed.2d 251 or runs afoul of Hewit, 249, 252, man 329 U.S. 67 S.Ct. congressional dealing enactment Hosp., F.Supp. (W.D.Wash. 16. This Ninth Court mindful Circuit’s 278 504-05 Mojave aff’d, 1967), recent decision in Fort Tribe v. San 88 S.Ct. County, (9th Bernardino F.2d Cir. (1968), Grasso, L.Ed.2d 158 with Athanson v. 1976), denied, cert. F.Supp. 1153, (D.Conn.1976), and Ala- Mojave, 52 L.Ed.2d In both Fort bama NAACP State Conference of Branches v. county government imposed and the tribe Wallace, F.Supp. (M.D.Ala.1967). property the non-Indian lessee of Indian Nevertheless, on the reservation. without cita general 17. Even this rule was established as the authority, tion of the Court held that there was result of the conclusion that state taxation was impermissible no double taxation because the preempted considering after the relevant feder- “imposed by taxes were two different and dis al treaties statutes rather than auto- This, tinct authorities.” Id. at 1258. matic rule of constitutional law based course, merely does not resolve the issue but particular construction section of the Con- question. every restates the case in which stitution. Supreme Court has struck down state taxes being as violative of the Commerсe Clause due legal 18. Since the taxation, incidence the tax taxing involved to double more than one au upon thority purchaser actually potentially here falls the non-Indian been has in Tribes, However, disposition rather volved. in view of than the this case our falls issue, special need this there is no to consider whether outside the area of state taxation to Court, Court, three-judge this District is general appli- which the aforementioned is rule by the law in Moe, bound of the Circuit which it sits. cable. U.S. 425 at 96 S.Ct. 1634. Compare King County Jehovah’s v. Witnesses

1357 However, . Indians, every ous. . . out-of- United of reservation the affairs McGowan, made may constitutionally 58 seller 302 U.S. state v. States . . (1938) L.Ed. 410 of the use on mer payment 82 liable for S.Ct. at 1646. 483, 96 S.Ct. at Moe, purchasers to in the chandise sold State.” Society Georgraphic National v. California implements The State 551, 555, 430 97 Equalization, Board U.S. collecting it upon burden of imposing 1386, 1390, 51 L.Ed.2d 631 S.Ct. Tribes, continuing their the Dealers. in Principles process require that of due interpret- to cases analogy on the reliance requirement to be for a collection Clause, order urge Interstate Commerce ing the valid, seller must have out-of-state require- collection of the imposition that state; taxing “simple nexus to the violative of the some Dealers is upon ment is whether controlling question but Process Clause.19 Due given anything has which can contentions is answer to these The short Co., Penney v. J. ask return.” Wisconsin C. approved expressly Court that the 435, 444, 246, 250, 61 S.Ct. 85 L.Ed. in Moe. requirement such a collection . (1940) with the District agree therefore “We the ‘smoke to the extent if person This test is satisfied whom the upon to those State sell shops’ duty is imposed whom collection has or excise tax a sales validly imposed link” or connec “some definite “minimum sold, the respect to the article State with taxing jurisdiction. National tion” proprietor simply the Indian require Revenue, Hess, Dept. v. Bellas Inc. price sales tax to the add the 753, 756, 87 S.Ct. 18 L.Ed.2d U.S. collection and en- aid the State’s thereby (1967); Maryland, Miller Bros. Co. at thereof.” 425 U.S. forcement 340, 344-45, 98 L.Ed. 744 1646. S.Ct. is sufficient if the seller (1954). This link Tribes’ effort by the unpersuaded are state, We from the receives services by claim- regard Moe in this distinguish re it is irrelevant the services Moe, is here an there unlike ing that to the of the activity are unrelated ceived nexus between the required absence gave duty. rise collection seller Dealer, require- whom the collection 560-61, Geographic, National U.S. at taxing jurisdic- imposed, and ment 1386. the nexus Moe They suggest that tion. retailer’s pur- Indian supplied Thus, apparent it is the Tribes inventory from his chase of Moe, narrowly. Moe read much too In contrast, they In wholesaler. Montana require Court neither mentioned the nexus pur- Dealers neither that here the point out nor give any special significance ment did it from in-state inventories chase their to the fact that Indian secured retailer any offices they nor do maintain wholesaler inventory his from an wholesaler. in-state the reservation any agent off or send undoubtedly This was the sub because of they argue Consequently, sales. solicit presence stantial of the retailer in Indian the State sufficient no nexus with there is all, the state. After the reservation exists requirement. a collection support within the territorial boundaries of State. of the cases, Indians are citizens it has interstate commerce In it. entitled and do receive services “[sjtates recognized that neces long been justify Although this is not sufficient collecting the the burden of impose sarily seller; of Indians or direct state taxation the out-of-state tax on [use] treaties conflicting from the tribes the face of its collection impracticability statutes, consti- clearly purchasers obvi- and/or federal of individual multitude claim, Accordingly asserting consideration merce Clause itself. this neither prohibited by language validity, they rely this tax nor do claim is not attack the directly in note of Moe. the unadorned force Com- 1358 mere in a sufficient link so that Court Warren wherein an Arizona

tutes stat- requirement does imposition imposed upon of a collection ute which a tax the income of process. not violate due federally licensed Indian trader derived goods from the on-reservation sale of The argue Tribes next Noting Indians was struck down. the long by tax has preempted been history comprehensive regulation of federal Act, 261, seq.; et Indian Traders 25 U.S.C. § traders, of Indian the Court found by Re- policy underlying federal 1934, 476, organization 25 et Act U.S.C. “the congressional § evident purpose of en- seq., Indian and Educa- Self-Determination suring that no imposed burden shall be 1975, 450, Act tion Assistance 25 § U.S.C. for trading Indian traders with In- seq., et Financing and the Indian Act of dians except on reservations as authoriz- 1974, 1451, and, seq.; finally, 25 et U.S.C. § ed by Congress by Act or regula- valid compre- establishing tribal ordinances promulgated tions under those Acts.” regulatory hensive scheme for 691, 380 U.S. at at 1246. S.Ct. involving transactions on-reservation sales Consistent with the principles of federal by Indian retailers to Indians and non-Indi- preemption, the Court struck down tax. ans. otherwise, To do have would It is well when established that “put financial burdens [the trader] Congress passes legislation implementa in the Indians with whom it deals in addi- tion of powers, one of its enumerated tion Congress to those or the tribes have pervasive be so to preclude any prescribed, thereby and could disturb and regulation Warren; state in the same field. disarrange statutory plan Congress Davidowitz, v. 52, Hines 61 S.Ct. set order up protect against Indians (1941). 85 L.Ed. 581 This may be true prices deemed unfair or unreasonable though even the state regulation consist the Indian Commissioner.” Id. merely ent with and seems to supplement a recently More the Court had occasion to pervasive less federal regulatory scheme. mark the preemptive scope limit of the Campbell Hussey, congressional the Indian The Traders Act. (1961); L.Ed.2d Rice v. Fe Santa objective insulating Indian traders from Elevator Corp., U.S. regulation in their dealings Indi- L.Ed. 1447 One test which has emphasized ans Court, in Moe as the been frequently cited by the Court was first Warren, distinguishing rejected an argu- promulgated Hines, ment made similar S.Ct. at 404: placed here. fact that Montana Court, considering “This validity the non-Indian consumer state laws in the light of treaties or fed- rather than the Indian trader inas Warren eral laws touching the subject, same impose was held to no burden on the trader made use the following expressions: trigger preemption by sufficient to the In- to; conflicting; contrary occupying the dian Traders Act. field; repugnance; difference; irrecon- violation; cilability; inconsistency; cur- Moe, however, not dispose does tailment; and interference. ... In argument Tribes’ further that Warren re- analysis, final there can be no one quires the conclusion that the reporting as- crystal clear distinctly marked formula. pects requirement State’s collection have primary Our function to determine Moe, preempted. although been whether challenged stands as [a statute] approved requirement an obstacle to the accomplishment and Indian trader add the price, the sales execution of the purposes objec- full expressly judgment reserved on whether tives of Congress.” lawfully the state impose could additional preemptive scope of- Indian Traders burdens on the trader. 425 U.S. at 468 n. Act was first considered 96 S.Ct. 1634.

1359 Act, Reorganization Indian burden dian Self-Deter- collection limitеd extent a To the Act, Financing Moe, mination and the Indian it relat- Court by the approved was disagree. non-In- Act. We with transactions trader’s to the ed Thus, Indians. than rather dians do upon by The statutes relied the Tribes the Indian Warren holding in Court’s favoring general policy federal establish regula- for state left no room Act Traders self-government and economic devel Indian as a result Indian traders burdening tions Act, opment. Reorganization The Indian with In- transactions on-reservation of their example, Congress to passed by for was left intact. was dians their self- encourage tribes to revitalize government by adopting constitutions case, requirements im In this creating corporations, bylaws and chartered State, as forth in E.T.B. set posed by eco with to conduct business and 504.08.192, the trader go beyond requiring Mescalero, 151, nomic affairs. 411 U.S. at to non-Indians. on sales to collect In at 389 n. Bryan, 93 426 U.S. to Indians S.Ct. that sales recognizing Although 14, 2111, Court, tax, Supreme 96 S.Ct. at to the subject be made not Act citing Indian Self-Determination to “demonstrate the Dealers requires State Act, Financing noted that and the Indian sales without col to make such entitlement “returning policy records federal a focus keeping detailed by tax” lection tribal required upon strengthening self-govern are Indians. Dealers sales to Band the ment.” See also Santa Rosa of Indi inspection for retain record 655, (9th Kings County, v. 532 F.2d purchasers, their tribal ans all Indian names 1975). However, reservations to Cir. affiliations, Indian made, of these stat suggested has never within which sales which or poli has of its own force established a the sales. utes dates of amounts and the dollar cy implied immunity for Indian addition, purchaser the Indian unless In Dealer, Indian tribes. dealing he must or those tribes known personally fact, In Mescalero Court held a tribal identifica require presentment of did cre Reorganization Indian Act member’s tribe. issued tion card by a immunity a tax for income earned on the Dealer ate a burden This constitutes its off-reser tribally corporation run with Indi to his transactions relates activities. Further, provision no for vation makes ans. State imposed. burden compensating him for the Notwithstanding the existence of declined or Even if his sales non-Indians a review of general policy, such a federal discontinued, the burden purposely were and uncovered the cases cited the Tribes fact, would continue undiminished. own research reveals that order our avoid the record only way a Dealer could legislation “stands determine whether state cease keeping requirement would do accomplishment” of as an obstacle to the as well as with ing with Indians business compared it must be purpose, some federal pointed has to no non-Indians. Since subject. to federal enactment on the same regulations Congress pro “Acts or valid is, test is whether That the threshold (Warren, those Acts” mulgated under have at governments state and federal 1246) at which autho U.S. subject tempted to the same mat regulate such, keeping requirements rize record See, City v. g., ter. e. Burbank Lockheed are invalid. Terminal, Air 93 S.Ct. urge (1973), (regulation airport next that even if L.Ed.2d 547 levels); & noise Florida Lime Avocado the Court finds (maturity for market preempted not been Indian Growers of avocados tax has Act, preempted by (labeling of tobacco ing); Campbell Traders been Lines, marketing); Hayes Freight policy federal Castle v. “well established (1954), self-government 75 S.Ct. L.Ed. encouraging carrier); California (licensing the In- of common development” underlying economic Zook, ments an overriding 93 L.Ed. federal policy which (1949), (sale arrangement 1005 of trans- clearly adequate juris- is to defeat state on a portation public highway); (regu- Rice litigation involving diction over reserva- charged by opera- of rates lation warehouse Accordingly, tion Indians. tors); Patterson, v. Cloverleaf Butter Co. jurisdiction pre-empt- that has now been 148, 491, 62 L.Ed. 754 315 U.S. S.Ct. 86 390, ed.” Id. 96 at 948. S.Ct. (1942),(production standards for renovated Thus, legislation touching absent some butter); (registration and Hines of aliens as subject the regulated by matter the a group). distinct State, policy underlying the federal the The is difficulty they the Tribes by pre- Acts relied on the Tribes does not point can to no provision of the cited empt cigarette taxing scheme. State’s Acts attempts which implement to the fed- policy eral favoring self-government Indian We now come to the Tribes’ contention by and economic development regulating scheme preempted has been subject matter closely related to that by passage of tribal ordi- touched on tax. nances. necessity showing of such a to establish preemption is further buttressed the Su- Congress It clear that preme analysis Court’s in Fisher v. District validly delegate legislative authority an to Court, 96 47 S.Ct. L.Ed.2d Indian tribe even if the exercise of that (1976). Fisher, 106 In the Court held that a authority involves control over the conduct regulating adoption Montana statute of In- Mazurie, of non-Indians. United v. States Cheyenne dian children on Northern 42 706 S.Ct. L.Ed.2d preempted by Indian Reservation was (1975). addition, In it is clear that where passage covering of a tribal ordinance delegated Indian tribe exercises authori subject same matter. While the Court ex- ty implementation in the policy federal pressly acknowledged policy the federal un- result is a tribal ordinance which derlying passage Reorga- Indian conflicts with an otherwise valid state stat Act, nization rely it did on force of ute, general policy preempted. state statute is standing alone to Fisher. invali- Rather, date the statute. Although decision that Fisher a involved statute which the state preempted statute had been Indians, only affected there is no reason turned the implementation of the under- believe preemption precluded would lying policy federal through passage of merely because the state and tribal enact adoption tribal ordinance. also ments affected non-Indians tribal “In Cheyenne] Tribe [Northern recognized by lands and as much has been adopted a By-Laws pur- Constitution and other federal courts. In Confederated suant Reorganiza- § Indian Tribes of Coiviile Indian Reservation Act, tion ... specifically statute Washington, (E.D.Wash. F.Supp. designed to encourage Indian tribes 1976), the District Court held that a state revitalize self-government. their Mes- requiring purchase statute non-Indians to Apache Tribe, calero supra U.S.], at [411 fishing prior fishing licenses on the pursuant Acting [93 1267]. preempted Colville Indian Reservation was By-Laws, Constitution and the Tribal ordinance, of a tribal the enactment . . . Council established the Tribal pursuant federally delegated power, granted Court and over comprehensive “a pro which established adoptions . . . .” Id. at gram for the administration tribal fisher at 946. which, part, ies required resources” and

“The tribal conferring jurisdic- ordinance fishing purchase non-Indians to licenses tion on the tribal court was authorized Act, from the To the same Reorganization of the Indian tribe. effect is East § U.S.C. 476. Consequently, imple- ern § Band of Cherokee Indians v. North (8th 1956). Cohen, F.2d 89 Cir. (W.D.N.C. Au- See Hand- Carolina, BC-C-76-65 No. Indian Law at 142 book Federal 27, 1976)20 gust circumstances, these particularly Under then whether there remain questions when it recalled that notwithstanding legislative authori- delegation has been treaty rights, governments tribal their so, and, there if whether ty to subject Congress to the plenary a preemption. has been powers and so retain those Con- adopted a сon- Tribe the Makah (Lone allows them to retain gress Wolf v. pursuant bylaws stitution Hitchcock, its Act, passage the of and Reorganization (1903)), it is accurate to L.Ed. describe gov- exercise was an of cigarette ordinance exercising congressionally Tribes as the del- the 16 of § authorized power ernmental egated power. clearly Act, This consti- 476. U.S.C. § congressionally dele- of tutes exercise Once determined it been that Fisher. gated power. cigarette Tribes in their passing ordi Tribes, however, federally delegated were exercising nances Lummi The Colville and it is power, application under the Indian clear that the in to come of the voted 1935not cigarette we con- tax to non-Indians pur Act. Nevertheless Reorganization congressionally cigarettes they exercising chasing from Indian were retailers on clude cigarette their power passing preempted. the reservation has been delegated There and bylaws constitution question Their is no that the tribal ordinances. but taxing members, of the majority aby subject were ratified regulate ordinances the same mat Secretary of Interior and approved by ter as does the taxing State statute. It is provisions subject to any amendment is clear equally that the State’s statute same conditions 25 C.F.R. 53.1—the of “stands as an the accomplish obstacle to organizing tribes un- imposed are which ment and purposes execution of the full and Act. Reorganization Feder- objectives Hines, der Indian of Congress.” 312 U.S. at encourage to tribal programs designed al 61 S.Ct. at 404. development economic self-government and As the nature scope and tribal all to federal- uniformly made available regulatory taxing and scheme has been out- just those which are recognized not ly tribes above, lined to necessary only it is observe Reorganization Indian organized under the that the their Tribes established See, Financing the Indian g., 3 of Act. e. § ordinances to primary two accomplish ob- 4 of

Act, the Indian § 25 U.S.C. § jectives: the conditions regulation of under Act, 25 U.S.C. 450b. § Self-Determination cigarettes to could be sold Indians reservation, significance is primary Of the fact and non-Indians on the powers delegated generate tribal governmental gov- revenue for essential Reorganization generat- 16 of the Indian ernmental The revenue programs. under § “powers those large part Act were in vested ed has been devoted to taxes to date tribе or tribal such any partial funding programs day council care, existing power education, nutrition, protection to tax law.” both Indi fire was one of pow people. ans and non-Indians those and alcoholism of reservation Tribe, Oglala ers. Iron Crow v. Sioux from tribal 231 bulk revenue derived People regulating hunt- of State of California v. hensive scheme on-reservation Quechan Moreover, Indians, F.Supp. (S.D.Cal. ing fishing. was no inter- there Tribe 1977), contrary. objectives is the tribal ordi- not to the It is true that ference rejected that notwithstand- Tribe of Indians since found nance the Court Quechan argument ing regulation, same revenues the mere existence “[t]he of a tribal the state requiring historically purchase Tribe ordinance non-Indians available as have been fishing preempted permits tribal will continue to be licenses a state statute from sale of hunting apply regulating fishing on-reservation if is allowed available California However, game there was no indica- non-Indians. Id. at 976. fish and laws.” compre- tion the tribal ordinance established a Fifth, The of from sales non-Indians. abuse. and of singular importance taxes comes cigarette tax imposing the State’s is impact plenary Congress. It could will to the tribal tax not any in addition act at time to limit or remove competitive advantage eliminate the Tribes’ legislative powers govern- of the tribal will give but it off-reservation retailers ments. Thus, advantage. price substantial relief, ground As an alternate why the hard to understand State conceded we hold that as applied to non-Indians as a that: result of their purchases on-reservation “Assuming that the court finds Dealers, require the could Tribe and/or its State scheme constitutes an interference with retailers to add the licensed self-government. tribal price cigarettes the sale sold to non-In- dians, apparent painfully very Lee, In Williams v. few, if any, cartons of would 269, 3 (1959), L.Ed.2d 251 the Supreme added). (Emphasis have been sold.” Court considered whether a non-Indian circumstances, objectives such Under sue an could Indian in state court aon debt Congress making delegation power the arising from transaction on the reserva- passing the Tribes in the and of taxation tion. Williams teaches that “[essentially, usage obviously for tribal would ordinances governing Congress, absent Acts of the Therefore, application be frustrated. the of question been always whether the state preempted. tax has been infringed right action on thе of reservation to Indians make their own laws and be argument, In its brief and at final by urged ruled them.” Id. at that to find its S.Ct. at tax 271. Noting wreak that the upon invalid would financial disaster tribal court had broad civil jurisdiction be as the Tribes would free to create which covered civil actions tax havens for against outsiders, unlimited non-Indians on by Indians the Court held their reservations. This scenario is unlikely the state court to jurisdiction. be without First, to occur for several reasons. there is be “There can no doubt that to allow the taxation, preemption absent tribal no and exercise of state here would tax, impose to the extent the Tribes their undermine the authority the tribal Second, there is no tax haven. to the ex- courts over Reservation affairs and hence generate tent the Tribes are able to reve- infringe would on the right of the Indians services, nue the corresponding for needed govern to themselves. It is immaterial ' supply on the State to burden services respondent is not an Indian. He was Third, be reduced. the evidence indicates on the Reservation and the transaction shown the Tribes have considerable place with an Indian took there.” Id. at in this area and there is no self-restraint 223, 79 S.Ct. at 272. to will they reason assume not continue to continuing The validity Williams example, do For there is no evidence so. self-government test has been assured sought that the have tax non-Indi- McClanahan, Court. ans thus preempt State’s Fisher. tax in area other than the sale of case, In this both the State and the Tribes cigarettes. regard Even with to the sale of seek to tax non-Indians as a result of their cigarettes, currently each of the Tribes lim- on-reservation with transactions Dealers. its sales to non-Indians its Dealers to impact of superimposing the State’s per three cartons sale. Accordingly, non- tax the tribal taxes has already Indians must to buy continue bulk However, been opinion. their discussed this from non-Indian retailers subject repeating regard ‍​‌‌‌‌‌​​​‌‌​‌​​‌‌‌‌​​‌​​‌‌‌​‌‌‌​‌​​‌​​​​‌​​‌‌‌​‌‍and those sales are at to the bears least with Fourth, all taxes. subject commodity highly price ciga- ordinances elastic as approval Secretary rettes, depletion of Interior will be result of an expected and he could be already base, act the event probable limited tribal tax jects general appli- which fall within the enterprises tribal destruction laws, non-discriminatory revenues needed cation of essential elimination upon is laid where no direct burden tribally programs. sponsored instrumentality, and there governmental contesting probable really not While remote, any, upon if influence Tribes, argues the State detriment government.’ exercise of the functions of on the non-Indi- imposes tax since it Bunn, Willcuts consumer, impact on the economic 125, 75 L.Ed. 304 and illustrations S.Ct. how that no matter indirect and Tribes is cited.” 303 U.S. at at there S.Ct. is, impact it cannot such an deleterious (Emphasis added). self- with tribal an interference deemed not argument this While government. to the declaration of this The Court led force, it unpersuasive. we find without principle because courts had guiding been to be contention is of the State’s foundation private exemptions granting broad “ self- statement that the Tribe’s in its found ‘merely conceptions theoretical based on reality “in boils down claim government interference with the functions of ” immunity.” intergovernmental a claim “unjustified government’ which were rely heavily analysis, they this Based on interfering actual or destructive effects Helvering beginning cases line of performance obligations to or Corp., 303 U.S. Producers v. Mountain government, work for the state or nation- (1938), which 82 L.Ed. 907 Comm’n, al.” Tax Oklahoma 336 U.S. at deal- proposition that those establishes 363-64, Examples at 573. of this government are the federal ing with were problem cited the Court. Id. merely because from state taxation free n. 69 S.Ct. 561. may be impact of economic recognizes This and the (The government. federal passed on any application Tribes concede that course, where analysis, applies same intergovernmental doctrine of tax immuni who seeks to tax those government federal severely was ty Indian Tribes limited in governments). with state deal Moe, Mescalero. See also 425 U.S. at 481 n. Producers, limit Mountain with Prior to 17, However, 96 it equally S.Ct. as James v. Dravo Con exceptions such ed power clear that limitation on state 208, 134, Co., 82 tracting 302 U.S. 58 S.Ct. in continues established Williams unabated. mark (1937), court decisions had L.Ed. 155 Nevertheless would be a mistake for the immunity tax widening a of ever ed course courts to set same course in applying dealing state or federal for those self-government the Williams tribal test as application of the doc governments under prompted Supreme that which Court’s immunity. intergovernmental trine of respect in decision Mountain Producers with However, in that course was reversed intergovernmental immunity to the doc Tax Producers. Oklahoma Mountain trine. This does not mean as the State 364-65, Co., v. Texas Comm’n any regulation сontends of non- (1949). 721 trend 93 L.Ed. Indians as result their on-reservation limiting intergovern the reach of toward will, transactions with Indians in the ab in cases immunity continued mental statute, controlling sence of federal be Boozer, King Oklahoma Tax & such as impact valid in an indirect if results Comm’n; v. De City United States Rather, on a tribe. what the courts must L.Ed.2d troit, S.Ct. utilizing avoid is the Williams test to strike regulation down such state based on “mere Producers, Supreme In Mountain ly conceptions of interference theoretical principle Court declared government.” with the functions of [tribal] words, proved and/or not be In other if a tribe has tax should “that regulation that the state ‘by extending the constitutional a state concedes crippled per- sub- causes an actual interference with from taxation those exemption governmental obligations, immunity applied formance of the in United States v. must, Williams, City of Detroit rather the courts consistent with than the Williams test, regulation largely the result is still explainable strike the down. the same basis as is Moe. The land in- type is our belief that it was It this 1,250 volved consisted of acres which had Supreme reasoning which Court had in been leased to non-Indians with approv- test, clarifying mind when in the Williams al of the Secretary of Interior. All but Marshall, writing Justice Court in eight (99.3%) acres were leased by individu- McClanahan, stated that the Williams test al Indian allottees without tribal involve- applied “principally has been situations [to] Therefore, Moe, ment. inas absent tribal involving non-Indians. ... In these involvement, an indirect economic impact situations, both the tribe and on individual Indians was not sufficient fairly asserting could claim an in interest constitute an interference with tribal self- respective jurisdictions. their The Williams government. was, however, There tribal designed test was to resolve this conflict involvement with the remaining eight acres providing that protect State could (0.7%) as to which the possessory interest point up interest where tribal self- was also upheld. However, opinion government would be affected.” Id. 411 gives no indication that the economic im- at 1266. U.S. S.Ct. pact of the possessory interest tax would When viewed with principle the above have destroyed the leasehold value of the mind, our conclusion in this case that tribe’s land or that reduction in income State’s tax must struck down as inter tribe aas result of the state’s tax fering self-government with tribal is not deprived would have the tribe of revenues inconsistent with the Court’s deci governmental essential for its programs. sion Mоe or those of the Ninth Circuit in addition, In there was comprehensive no Mojave Fort Tribe San Bernardino Coun regulatory tribal scheme which ty, (9th 1976), 543 F.2d 1253 Cir. cert. de would have been thwarted. nied, (1977); 430 U.S. 983 Agua Cal In Fort Mojave, the Appeals Court of iente Band Mission v. County Indians reaffirmed Agua the result Caliente Riverside, 442 (9th F.2d 1184 1971), Cir. while applying the Williams test on facts denied, cert. which were superficially similar to those in (1972). Moe, L.Ed.2d 809 the cigarettes this upheld case. The Court imposition the at were by issue sold individual Indians a possessory interest tax on non-Indian operating by businesses and not tribal en lessees of Indian land in spite of the fact terprises. There was no indication that the that the tribe had imposed also its own tax financed, tribally sales of were However, on the lessees. a crucial factual managed regulated. Although the tribe difference Mojave between Fort and the apparently fee, charged an administrative Mojave instant case is that in Fort the imposed no tribal tax was on the cigarettes Court was unable to determine the degree shops, sold in the smoke and the tribe itself which, if any, the economic burden the received no direct benefits from ciga the state’s tax would have fallen on the tribe. depended rette sales which it as a facts, On such the compelled Court was programs. source of revenue for tribal “hold that the uncertain economic burden Thus, in the absence of direct involve imposed here on the tribe’s ability levy a tribe, by ment the the Court concluded tax not does interfere right with their was no there interference with tribal self- self-government.” 543 F.2d at 1258. To government. have done otherwise would have been to Caliente, Agua Appeals the Court of disregard Supreme Court’s admonitions upheld imposition of the California Pos- that a taxing power state’s should not be “ sessory Interest Tax on non-Indian lessees on ‘merely restricted concep- theoretical Although grant- Indian land. the Court tions of interference with functions ” principles ed relief on intergovernmental government.’ Comm’n, Oklahoma Tax State, However, Mescalero, relying at 573. In con- at contends that McClanahan and Moe are not taxing of the State’s trast, a restriction controlling challenged to the extent proof of an justified by in this case imposed taxes are for off-reservation use. with, if not destruction interference actual scheme, existing Under off-reservation their tax of, carry out ability Tribes’ (except, presumed apparently, use is as to There- sеlf-governing functions. financed homes), mobile and since the amount of tax contention that fore, reject we State’s regardless is the same of the payable extent here.21 Mojave the result controls Fort use, requires payment of vehicle the State tax a Home, precedent of the condition Camper Vehicle, (2) Mobile Motor licensing of the vehicle. Excise Taxes: Travel Trailer Although there no doubt that Mescale- attacks on the to their In addition ro if would control this issue involved use scheme, the Tribes State’s reservation, exclusively off the we do not excise application State’s contest the agree controlling that Moe is not on the 82.44, vehicles, R.C.W. motor taxation of presented here. A facts review of the Dis- homes, camper and travel trail and mobile trict in Moe Court’s decision reveals that 82.50, ers, owned the Tribes or R.C.W. use the vehicle there taxed was use partly Although enrolled members.22 their partly on and off Flathead Reservation. home, camper and vehicle and mobile motor Confederated Salish & Kootenai Tribes v. slightly, the State taxes differ travel trailer Montana, F.Supp. 1328-29 they practical opera acknowledges are “in aff’d, (D.Mont.1975), virtually the Each effect same.” tion and (1976) (Smith, J., L.Ed.2d con- applicable under the tax is denominated Moreover, curring dissenting). imposed tax and as statute as excise was, Montana tax invalidated in Moe except specified annually upon percentage sessed labeling, operation identical and ef- fair market value of the vehicle for imposed. fect to the tax here the vehicle within the privilege using Washington. disputing practical than Rather similarity presented has been narrowed between the tax invalidated in The issue here, the imposed that after McClan- Moe and that State seeks State’s concession Moe, distinguish on the ahan, Bryan, ground not Moe imposed vehicles owned Montana mobile homes or denominated “personal tax” while the property their members which are used Tribes or privilege is labeled an “excise” or tax. To on the reservations. exclusively Counsel Court, sure, further assures the least for the State cases, governmental immunity taxes in has impose ceased to some situations, willing great ready, placed but stands times store in the conceptual such proof property of en- differences between and able to make refunds use or previously imposed. privilege g.,E. City for such taxes taxes. United States v. titlement who, validly applied though also be to 21. of our conclusion that Indians view reservation, may validly living scheme not be on the were not enrolled However, respective applied to non-Indians under the cir- members of the Tribes. to sales present, steps adversely taken the latter issue was resolved cumstances here to the the tax also unlawful. State in No. the State to enforce were Hence, necessary is not and we do not reach it of Tribes’ claim that the merits additional argues 22. The State that 28 U.S.C. 1341 bars § measures undertaken the enforcement considering this Court these claims violative of federal law and/or they State are extent are asserted on behalf of individual independently Moe, of the United States Constitution members of the Tribes. After it is clear For the same of whether the tax itself is valid. standing that an tribe has Indian assert reason, necessary respect is and we do not reach not claims of its with to the valid- members if ity of the Tribes’ that even the merits claim of state tax laws and that 1341 does § not non-Indians, may applied bar the assertion of such claims a tribe. 1366 Supreme Second,

of Detroit. Nevertheless urge partial willingness assumption also its within expressed Court has reservations violates the Equal Protection Clause of the disregard “property labels in order to save Fourteenth 2, Amendment. In Yakima the Court if the tax was otherwise when tax” valid Appeals held assumption that the State’s solely regard to its “practical viewed partial jurisdiction territorial over the Yaki g., City Murray E. of Detroit v. operation.” ma pursuant Reservation to R.C.W. 37.12.- Corp., 78 2 S.Ct. L.Ed.2d Equal violated the Protection Clause (1958), Complete Cf. and cases cited. because the distinctions in the statute be Transit, Brady, Auto Inc. v. tween trust and nontrust land bore no ra (1977). L.Ed.2d Since S.Ct. tional relationship to the purpose statute’s Moe, approach eschewed this we of providing law enforcement on the reser can conclude it found the tax vation. The entire section of the statute improper practical operation. in its Inas- was struck down because the Court found practical as there is no difference in much the objectionable portions could not be sev schemes, the two operation between we ered from the remainder. This decision is hold that the State’s motor vehicle and mo- dispositive of the claims of the Makаh and home, camper and bile travel trailer excise Lummi pattern Tribes because the juris applied are invalid as taxes reservation diction on their reservations is based on situs vehicles which are owned R.C.W. 37.12.010and is identical Tribes and/or their reservation resident the Yakima Reservation. used, though members even they However, jurisdic the pattern of part, off the reservation. tion asserted over the Colville Reservation differs from that asserted over the Makah (3) Assumption The State’s of Indian and Lummi Reservations. Acting pursuant Reservation Jurisdiction : to R.C.W. 37.12.021 expressly re challenge The Tribes the State’s quires Tribe, the consent of the the State assumption jurisdiction pursuant Indian jurisdiction assumed “total” over the Col- being to R.C.W.37.12as violative of federal ville It argued Reservation. that such law and the Constitution the United action constitutes a of equal protec denial First, argue that they States. it violates tion because the abuses inherent par in the tial congressional assumption jurisdiction terms consent con within a res present tained in Pub.L. ervation are No. because the State also where a state ac cepts jurisdiction required total and failed to remove a dis over some but not all reservations. A review jurisdiction claimer discussionsin constitu Yakima 1 tion, and 2 partial establishes that argu and because this assumptions of ment is without merit. prohibited. were This claim is without merit. The disclaimer issue was Alternatively, it is argued that presented appeal Court on R.C.W. 37.12.021must be struck down be from adverse decision in Makah Indian cause it is not severable from R.C.W.37.12.- State, Tribe v. 76 Wash.2d 457 P.2d 590 010. This claim is also without merit. Ba (1969), dismissed, appeal 90 sically, the remaining provisions of an Act L.Ed.2d 335 The Su may stand in spite of the unconstitutionali preme Court’s appeal dismissal of the as not ty of portion another absent some indica presenting a question substantial federal tion legislature would have not binding Miranda, on this Court. Hicks v. enacted them alone and if the remaining 332, 343-45, 95 S.Ct. 45 provisions can operate independently of the (1975). L.Ed.2d 223 And it is now also portion. unconstitutional United States v. settled that Pub.L. No. 280 does not prohib Jackson, 570, 585, partial assumptions jurisdiction. of Yaki (1968); L.Ed.2d 138 Anderson, 1.ma 234, 236, Wash.2d 501 P.2d 185-86 resident members are or reservation Tribes Appeals of the Court Yakima infringement their rights as an of aspect of unlawful of one invalidation foünd treaties; federal statutes and secured under complicated have would jurisdiction partial Thus, and aspects. of other the enforcement provisions remaining held the the Court and exercise of civil crimi- (4) The State’s 37.12.010 R.C.W. struck and to be severable 37.12, reg- R.C.W. jurisdiction nal under However, the inabili- entirety. in its down thereunder, any and promulgated ulations juris- partial to enforce the ty of the State against the Lummi or thereof enforcement noncon- as to 37.12.010 of R.C.W. diction any or reservation resident Makah Tribes ability way in inhibits senting no tribes Tribe are unlawful as a members of either as assumed jurisdiction the full to enforce United equal protection under the denial of 37.12.021. under R.C.W. consenting tribes However, exercise of States Constitution. reason substantial Further, there no Tribe jurisdiction over Colville similar re- would have legislature that the assume any its reservation resident members obligating it to legislation to enact fused Equal a violation of the does not constitute consenting over jurisdiction full assume Protection Clause. unable to con- it was merely because tribes Further, that the Tribes and we conclude jurisdiction over stitutionally partial assert resident respective reservation mem- their jur- to full their consent withholding tribes permanent injunctive bers are entitled isdiction. of such declarations. relief in enforcement judicial econo- finally conclude We recover costs or attor- party Neither shall convenience, demand fairness and my, three-judge in these District Court ney fees Supremacy of the retain we proceedings. by the Tribes presented issues Clause expedient and in conservation We deem it declare: adjudication and final that the issue of judicial time and effort ciga- (1) imposition of The damages, recovery of costs the Tribes’ 82.24,the R.C.W. taxing under rette scheme therein, any, resulting attorney fees if promulgated regulations administrative Supremacy such Clause and Fourteenth thereunder, thereof any enforcement infringements should be re- Amendment against any seizure or otherwise single-judge District Court for manded retail dealers respective their Tribes or under further order. disposition cigarette tax- in State’s unlawful injunctive temporary The relief favor by tribal preempted has been ing scheme heretofore issued herein is Tribes unreasonable constitutes an ordinance and entry in force and effect until remain self-government; interference tribal judgment final herein this Court. tobacco (2) imposition of The findings This shall constitute the decision 82.26, under R.C.W. products scheme fact and conclusionsof law of this three- thereunder, if promulgated regulations required by Fed.R. judge District as any enforcement thereof any, and 52(a). Civ.P. respective or their any against requested for the Tribes is Counsel legal in that the are unlawful retail dealers days within 30 from the serve and submit Tribes or falls of the tax incidence declaratory proposed final date hereof and results respective retail dealers their re- permanent judgment decree income derived of Indian a direct taxation foregoing with the straint accordance activities; from on-reservation decision. motor (3) imposition of the State’s 82.44 and tax under R.C.W. vehicle excise NO. 3909 CAUSE home, travel trailer camper, and its mobile PARTIES: 82.50, regula- R.C.W. excise tax under thereunder, is the United any plaintiff en- States promulgated tions for the of the Confederat- the America benefit against thereof as forcement ed Tribes and Bands of the Yakima Indian ates under governing body approved by Nation, (Tribe). and the members thereof Secretary of Interior. The Yakima In- dian Reservation was treaty established The Confederated and of Bands 8, 1859, ratified March 12 Stat. Tribe) (also the Yakima Indian Nation in- encompasses 1,390,000 plaintiff approximately tervened as under Fed.R.Civ.P. acres 24.23 Washington. in south central theOf reser- population 27,000, 6,500 vation’s about Washington defendant State of 1,500 are Indians including nonmembers of (State). the Tribe.' JURISDICTION: note pur- We of these causes B. State’s Taxing Schemes:

suant to 28 U.S.C. 28 U.S.C. § § (1) Cigarette U.S.C. 2201 and and 28 §§ U.S.C. Tax: 2281.24 § aspects basic cigarette excise tax were discussed in No. 3868. Fur- OF PROCEEDINGS: HISTORY ther, inas No. the Tribe has refused filing This action was commenced and continues to refuse to seek state autho- 18, 1973, complaint July to possess rization unstamped cigarettes or thereafter the Tribe’s motion intervene to otherwise comply with the statute and granted. major all respects In other regulations promulgated thereunder. Fi- procedural history parallels that in No. nally, the State has resorted to seizures of unstamped cigarettes in interstate com- merce and bound for the Tribe’s reservation THE TRIBE’S CAUSE: to enforce assessments of its tax. declaratory The Tribe seeks relief with injunctive enforcement from the State’s

statutes and regulations administrative im- (2) Sales Tax: posing taxes procedures and collection The other tax which is also a primary on-reservation sales to nonmembers subject dispute in this cause is the by tribally (Dealers) Tribe licensed retailers (R.C.W. State’s retail sales 82.08). Un- cigarettes (R.C.W. 82.24), prod- tobacco enaсtment, der this the State asserts the (R.C.W. 82.26), general ucts retail sales right to tax goods retail sales of (including (R.C.W.82.08). addition, In the Tribe seeks cigarettes) and services the Tribe and/or damages against arising out its Dealers to nonmembers of the Tribe. actions taken to enforce assessments challenged cigarette taxes. C. Tribe’s Taxing Business and Schemes :

STATE’S DEFENSE: (1) Cigarettes: joins The State issue with the Tribe’s claims.25 respects, essential the Tribe’s products tobacco retailing and taxation FACTS: scheme is similar to those adopted by the A. Tribe: tribes in No. 3868. The Tribe passed The Tribe is a United States ordinances providing Government the taxation of recognized sovereign oper- Indian tribe and on-reservation sales of and tobac- 23. Neither the Government’s nor the Yakima’s Tribe. The Tribe contends that such claim is standing bring disputed. improper this cause is in that it is immune from Al- suit. though adversely the same issue was settled 24. See note 1 in No. 3868. the State in No. all of the issues raised by deciding the State herein be reached affirmatively 25. The State does seek relief in the claims of the Tribe. declaratory judgment against form a (2) Businesses : Other These ordinances by Dealers.26 products co Secretary of the by approved been have opera- in the engaged The Tribe is also ordinances, the its to Pursuant Interior. noncigarette business enter- tion of various wholesalers cigarettes from purchases Tribe prises.28 Although the sales of these busi- distributes it Washington which of outside subject obviously are not nesses licensed have been who tribal members to tax, the cigarette excise State does State’s shops the reser- on smoke seventeen to run the Tribe claim that sales to nonmembers of vation. subject are to its retail sales tax. The the sale picture revenue not afford a clear of The Tribe derives evidence does First, imposes it ways. two applying be of the impact what the would of carton on each sold one cent “markup” of retail tax to these a State’s sales businesses. of significant source its Dealers. A more to volume of these businesses The annual sales on each tax 22.5 cents However, the of is $2,000,000. figure revenue is this about revenue The by the Dealers. sold carton the of timber and includes sales the land substantial; is these sources generated those to tribal enterprises and members derived the Tribe example, the does not seek tax. The State $278,000 These mo- from them. than more stipulations unenlightening are on of fact fund partially available have been nies show that point. They merely the this for the programs governmental the Tribe’s enterprises] are at economic “sales these [of social, economic advance- educational, and paid if taxes are value and excise members. of its ment it of these sales will reduce income . The Tribe . . .” testimony Yakima competitive advan- As in No. Herrmann, expert, the Tribe’s economic to its refusal by the Tribe due enjoyed tage unavailing. regard With equally re- impose the State’s enterprises, he was noncigarette Tribe’s of tribal majority in the sulted questioned only as the furniture manu- nonmembers made to being sales there, facturing operation. And even his fact and testimo- stipulations The Tribe. impact analysis imposing of the that su- establish Cyril Herrmann27 ny upon retail sales tax the furniture State’s cigarette tax of perimposing sketchy and not based on a business was tribal sales would upon per carton $1.60 Thus, records. review business in No. impact as would have same certainty that the Tribe cannot be said is, cigarette enter- the tribal That 3868. an increase costs from could not offset eliminating destroyed, thus would be prises application of the State’s retail sales which the upon tax revenue source of a reducing production somehow a substan- Councilrelies for Tribal Yakima marketing Furthermore, costs. and/or capital. its operating amount of tial Among enterprises However, owned there no 28. the business to No. 3868 in contrast 26. reservation, operated Tribe Dealers are this cause that evidence in properly federally Indian Traders. sales of which the State claims are licensed tax, furniture, subject to its sales boat and Cyril manufacturing, was taken deposition housing component Herrmann unit crafts, into evi- processing been admitted and has Tribe fish and food arts and a in econom- distributing. Ph.D newspaper Herrmann received dence. The State does not University He in 1953. authority similarly from Harvard ics assert tax the now marketing taught Insti- at the Massachusetts enterprises. of the Tribe’s land and timber sales present- years Technology and is for six sales, tute of aircraft Tribe also owns an charter ly Regional Vice-President Arthur Western operated as business which is and service Little, Inc., large consulting and diversified C. corporation Tribe off the reservation. The does opin- company. his Herrmann based research liability applica- dispute taxes for state experience in market on his education ions operation ble to this business. analysis information he obtained at the to and discussions from his visitation qualifications as an His Yakima reservation. disputed by expert the State. are not (1) Tribe was offset The imposition even if the unable to such ciga- increases, cost it is not clear that the eco- rette 82.24, scheme under R.C.W. viability of the enterprise nomic furniture regulations administrative promulgated destroyed. thereunder, would be and enforcement thereof against seizure or otherwise the Tribe or Finally, there is no that the evidence its Dealers are in unlawful that the State’s adopted any regulating Tribe has ordinance cigarette taxing scheme been preempt- noncigarette the enter- and business ed tribal and ordinance constitutes an prises. unreasonable interference with tribal self- government; and DISCUSSION: (2) The imposition the State’s tobacco presented by parties The claims the in products taxing 82.26, scheme under R.C.W. this cause are the same time more limit- regulations promulgated thereunder, if presented ed and extensive more than those and any, any enforcement thereof against First, in does No. 3868. the Tribe not at- the Tribe or its Dealers are unlawful in that juris- assumption tack the of Indian State’s legal incidence of the tax falls diction, they successfully litigated since Tribe its Dealers and results in a direct in issue Confederated Bands and taxation Indian income derived from on- of Yakima Nation Wash- reservation activities. 1977). ington, (9th F.2d 1332 Cir. Nei- present any challenge ther does the Tribe TAX SALES ISSUES: providing statutes for excise State’s vehicles, campers, taxes on motor travel Although we directly were not faced with homes, mobile does trailers and nor it dis- validity of an application of the State’s pute scope three-judge of this District sales to on-reservation tribal sales in Second, jurisdiction. Court’s the conten- No. the principles preemption and since, tions are more extensive in action this self-government tribal underlying the reso- in addition to challenging validity question lution of this were discussed there- cigarette products and Therefore, tobacco in. only an abbreviated discus- taxes as applied on-reservation sales sion is necessary explain the basis for our Tribe, Dealers to nonmembers holdings of the below. In view of the underlying facts, validity Tribe also contests the question sales tax is best dis- sales applied State’s retail tax as to the cussed in two analytical segments: (A) As cigarette sales of sales; and other business applies cigarette (B) and As it operated enterprises by the Tribe on applies goods on-reservation sales of reservation. and services of noncigarette the Tribe’s businesses. CIGARETTE TAX ISSUES: Application A. Cigarette : Sales Basically, arguments same are raised against validity both for and application The of the Sale’s sales cigarette State’s ex- products tobacco tribal cigarette tax to sales would result in cise were taxes as raised in No. 3868. price Since a increase of about two cents per there are no essential factual differences package twenty or roughly per cents car cases, between the the resolution of the would, ton. Such an increase of course, products and tobacco tax claims in decrease the differential between price susceptible this cause is to the same analy- charged by tribal and that charged by non- sis as applied No. 3868. We conclude tribal retailers. Since are highly judicial convenience, economy, elastic, price even a small change price fairness demand that we retain can cause a significant change in sales. However, of the Supremacy presented Clause issues even if compelled to add the by adjudication tax, Tribe for final and de- sales State’s Dealers would still be left clare, as we did in No. a price 3868: advantage of approximately preempted tax has been or that it would eighty per cents package or per eight cents appli- that the Although self-government. we find interfere with tribal carton.29 tribal tax to sales of any touching cation of absence tribal ordinance cause a decrease would cigarette sales subject the same matter does the chal thereby sales to non-Indians lenged precludes a state statute conclusion revenues, we cannot find reduce tribal preemption. there has been be of sufficient would the decrease self-government argument tribal must fail destroy cigarette sales as magnitude to produce because Tribe evidence did thereby of tribal tax revenue source application that the of the State’s sales tax with tribal self- an actual interference work destroy would the revenue generating po Accordingly, we conclude government. tential of its various businesses. The most application of the State’s that such an hold that the evidence shows is that there would adversely affect tribal would not sales tax some be uncertain reduction in income to self-government. the Tribe. This clearly insufficient to not end the does This conclusion establish an interference with tribal self- also contends that the Tribe inquiry since Mojave government. Fort Tribe v. County to tribal sales tax of the State’s application Bernardino, (9th of San 543 F.2d 1253 Cir. preempted. been has cigarette ‍​‌‌‌‌‌​​​‌‌​‌​​‌‌‌‌​​‌​​‌‌‌​‌‌‌​‌​​‌​​​​‌​​‌‌‌​‌‍sales 1976), denied, cert. 430 U.S. 983 upon ciga a tax placing tribal ordinance Having may concluded that the State application of by and the rettes sold Dealers properly its apply sales to on-reserva- cigarette sales sales tax to such noncigarette tion business transactions in- subject matter. clearly touch on the same non-Indians, volving we are faced fur- that the Tribe intended in equally It is clear as disputes ther to who falls wit'hin the cigarette taxing ordinance to enacting its category of non-Indians as whether from the maximize tribal tax revenue sale the State’s sales tax enforcement scheme Moreover, superimposing cigarettes. lawfully may applied to tribal retailers. tax on tribal sales sales State’s substantially would decrease Tribe’s While the concedes that State Thus, we cigarette tax revenue. find that may its lawfully apply not sales tax to of the State’s sales tax application such an Tribe, it may members asserts that objective the Tribe’s in frustrate would lawfully tax Indians who are not members we hold and de its ordinance and passing sought Tribe. State has application of the State’s clare that by limiting achieve this result the definition cigarette sales to non-In tax to tribal sales “per of the term “Indian” in Rule 192 to and that preempted has been dians duly registered sons on tribal rolls of regula or enforcement thereof attempted occupying the Indian tribe an Indian reser are thereunder unlawful. promulgated tions Thus, vation.” all nonmembers of the Tribe Attributable to Sales Application B. categorized are as non-Indians and deemed Businesses: Other Tribe’s subject to A taxation. similar contention rejected by the District Court in Con also contends The Tribe Moe, federated & Kootenai Tribes v. Salish may its sales tax to sales apply not 1297, 1312 aff’d, F.Supp. (D.Mont.1975), noncig made to non-Indians Tribe’s U.S. S.Ct. 48 L.Ed.2d 96 However, enterprises. this conten arette (1976), agree and we with the view еx rejected since the Tribe has tion must be pressed residing there all Indians on a carry proving its burden of either failed application equally of the State’s sales reservation free from the that such Cigarettes $5.00 are not to nonmembers of the Tribe sell for Dealers which about 29. sold per per price subject $3.95 $1.60 carton. This which is to state taxes sell for about reflects of the State’s sales attributable to the State’s excise tax carton. The current rate percent price. $0.24 which is of the retail sales attributable to sales tax. 5.1 contrast, sold nontribal retailers regardless Bryan excise taxation of wheth- County, Itasca State’s they are members of the tribe.30 er S.Ct. (1976). Thus, 48 L.Ed.2d 710 in upholding requirement the collection validity challenging In addition to Moe, Supreme approved the exer- Tribe applied, the State's sales tax cise regulatory some power enforcement scheme. contests over reservation Indians if related their argues lawfully the State It on-reservation transactions with non-Indi- noncigarette require the Tribe’s retailers to course, ans. Of register Department Revenue, exercise with the taxes, power, applicable may impose only or a state collect and remit those bur- keep pertaining records to taxable and non- dens which have not preempted been ’ This claim is taxable transactions.31 based which do not constitute an interference contention “that the State no with tribal self-government. police power regulatory over the protects This rule the states’ regard- Nation and/or Yakima its retailers ensuring interest collection taxes ing these reservation transactions.” The validly imposed upon non-Indians while also Tribe further contends that minimizing impact on Indians. no decision in Moe is of assistance in Court’s When against viewed the above this “none resolving issue since of these standard, it is clear that the State’s collec required of burdensome duties were the registration tion and requirements are val Indian retailer [in Moe].” id. The collection requirement imposed easily We do not find that Moe is so pursuant to R.C.W. 82.08.050 requires no distinguished. There the simple more than the specifically act ap specifically approved requirement a that proved in Moe. The correctly points Tribe the Indian retailer collect and remit to the out that the Supreme Court did strike down applicable the excise tax to on-reser licensing Montana’s vendor ap statute as vation sales to non-Indians. 425 U.S. at plied to Indian retailers and contends that a 483, 96 S.Ct. 1634. Montana had not at is, therefore, similar result required here. tempted to assume civil authority The statute attacked in Moe required reservation Indians to pursuant over the the August 15, 1953, payment of a 83-280, prerequisite Act of license fee as a Pub.L. No. 588-90, It, therefore, doing 67 392 business. F.Supp. Ch. Stat. at imposed a tax upon it any attempt is now clear that the Indian retailer and could not stand to have done so would have been futile. congressional Moe, absent consent. may lawfully 30. The District Court in noted by Moe that “differ- enforce its engaging sales tax may apply ent rules ‘where Indians have left property in seizures of Indian on and/or off the the reservation and become assimilated into question reservation. doWe not reach this ” community.’ general F.Supp. at any adjudication present because of it at the quoting n.22 v. Arizona McClanahan State Tax First, premature. history time would be Comm’n, 164, 171, 411 U.S. 93 S.Ct. by exclusively enforcement seizure relates to However, Moe, L.Ed.2d 129 unlike in the seizure of aas means enforc- may the State has not asserted that it ing tax which we have reservation, Indians who reside off the and we held be to develop- invalid. There is no factual question. do not reach that The definition of so, or, ment or indication to whether if how “Indian” in Rule 192 makes no distinction be- attempt the State would to enforce its sales tax tween residents and nonresidents of a tribe’s Second, briefing argument, seizure. susceptibility reservation. A transaction’s to both in this cause and No. were devel- solely taxation is made a function of whether oped exclusively respect with to enforcement person taxed is “Indian” and where the Finally, tax. we have no rea- delivery purchased sale or of a item occurs. If son to believe the Tribe will not abide this buyer delivery is an Indian and the sale or may lawfully Court’s decision that the State reservation, occurs on the the transaction is impose its sales tax sales to non-Indians in nontaxable, deemed if both whereas occur off noncigarette enterprises. Assuming that to reservation, it is deemed taxable. case, be the the State would have no occasion to resort enforcement seizure. 31. This is one of two so-called “enforcement issues.” The other relates to whether the State contrast, hand, 475-80, requiring On other 96 S.Ct. U.S. at that be as to sales kept records nontaxable registration a imposes only here State (i. e., Indians), is placing sales State upon the imposed fee is no requirement; respect Indian retailers with burden with the collection re As retailer. Indian it normally transactions over which not, strictly is “this burden quirement power pertains no and which would have all, governed is not a tax at speaking, [and] Hence, only indirectly to taxable sales. [Apache Tribe Mescalero language of such situations the the burden to State has 145, 148, Jones, 93 S.Ct. reasonably prove regulation that the nec ‘special (1973)]dealing with the L.Ed.2d ” payment to ensure taxes which it essary Moe, state taxation.’ area of brief, impose. does have In its one-time Since the at 1646. argues opinion that it is “the State less is even bur registration requirement professional tax administrators of De requirement, than the collection densome partment of Revenue” the information lawfully imposed on may follows required by Rule about nontaxable sales with non-In doing business retailers necessary and E.T.B. 504.08.192 create dians. prevent an “audit trail” to fraudulent tax keep- the record contests The Tribe also However, the has avoidance. State offered im- which the ing requirements State evidence, otherwise, by stipulation no to taxable respect posed on Dealers support Accordingly, this contention. we 82.- transactions. R.C.W. nontaxable hold and declare seller to make out requires each 08.070 impose requirement the Tribe’s “setting forth amount monthly return noncigarette keep retailers records of non sales, sales, sales, taxable of all nontaxable taxable transactions. thereon, and such amount we Finally, conclude that the Tribe is department as the information other [of declaratory in judgment entitled to a con- ..” Fur- require . shall Revenue] formity foregoing with the declarations in ther, require 192 and E.T.B. 504.08.192 Rule injunctive this opinion permanent and to keep specified retailers to additional Indian relief in enforcement thereof. respect to nontaxable solely with records party Neither shall recover costs or attor- transactions. ney three-judge fees in these District Court power regulate to proceedings. Since adjunct no more than an retailers is it expedient We deem and in conservation non-Indians, any exer power of its judicial time effort the issue and obviously have to would cise of costs and recovery damagеs, Tribe’s payment reasonably necessary to ensure therein, attorney resulting fees if any, from non-Indians, imposed on and the of taxes infringements Supremacy such Clause is, otherwise. There does contend to a single-judge should be remanded Dis- however, in the record as to no evidence disposition trict under Court for further requirements, keeping the record whether order. reasonably as are are not promulgated, injunctive in temporary relief favor payment of lawful tax necessary ensure Tribe herein heretofore issued is to kept es. that records be requiring In until entry remain force and effect (e. transactions pertain directly to taxable judgment final herein this Court. g., the number and dollar volume sales findings This decision shall constitute the non-Indians), merely venturing is the State of fact and conclusions of law of this three- recognized, area in which it has into an judge provided by District Court as Fed.R. limited, very power. regula albeit Such 52(a). Civ.P. reasonably necessary presumed are tions requested Tribe carry Tribe failed to burden Counsel

and the days and within contrary. serve submit 30 prove ly final proposed declaratory encourage a intended to date hereof Indian tribes to permanent re- judgment and decree of self-government. revitalize their Acting foregoing in accordance with the straint pursuant to this Constitution By-Laws, and decision. the Northern Cheyenne Tribal Council es- granted tablished a Tribal Court and KILKENNY, Judge, concurring Circuit jurisdiction adoptions over “among mem- dissenting: and bers of the Cheyenne Northern Tribe.” Judge I commend East his excellent There the Court held that the state court us analysis problems only before and jurisdiction plainly would interfere with the regret fully. that I am unable concur I powers self-government conferred dissent in his conclusions that the trib- upon the Cheyenne Northern Tribe and en- cigarette preempted al ordinances the field couraged by legislation. federal Moreover, Washington and that the state of had no subject it would dispute arising a on the tax, authority to collect its among reservation reservation Indians to a accompanying sales tax on forum other than their own. The Court sales, purchasers. even to non-Indian went on to say that no federal statute sanc- Judge While East is convinced that type tioned this of interference with tribal Court, v. cases of Fisher District U.S. self-government. From there the Court 382, (1976), 96 S.Ct. 47 L.Ed.2d 106 adoption concluded that since the proceed- Lee, v. Williams 79 S.Ct. 3 ing was aрpropriately characterized as liti- (1959), controlling L.Ed.2d 251 and dis- gation arising reservation, the Indian issue, just positive of this I am as convinced in the Tribal Court was distinguishable these cases are similarity exclusive. There no between that Moe v. Confederated Salish & Kootenai the facts in Fisher and those on the record Reservation, Flathead nothing before us and is said by the (1976), 48 L.Ed.2d 96 Fisher way Court is relevant to our Mojave Fort Tribe San Bernardino Coun record. ty, (CA 1976), F.2d cert. denied Williams, Lee, respondent a non- L.Ed.2d 377 Indian, operated general store on the Na- (1977), are controlling ciga and that vajo Reservation Arizona under license purchases by rette and sales taxes on non- required by federal statute. He instituted upheld. Indians should be an action in the superior court of Arizona dispute Fisher involved a between two Williams, against a Navajo Indian and his on the Indians whether state of Montana or wife, on reservation, who lived the to collect juris- the Indian Tribal had Court exclusive goods for to sold them on credit. The Ari- adoption proceeding. There, diction an granted zona trial court judgment in favor dispute the Court that the emphasized arose of Lee. The Supreme Arizona Court af- reservation, entirely among Indians, on a firmed and the Supreme accepted Court and went on that say to to allow court certiorari. Supreme placed Court con- jurisdiction other than an Indian court emphasis siderable on Arizona’s refusal to corresponding would a cause decline accept jurisdiction over Indians pursuant to . authority “. . in the the Tribal congressional enabling act. Obviously, Here, Court.” the issue arises on Indian the Court felt that because land, non-Indians, Arizona had but as well as Indians are chosen not to accept responsibility involved. The tax here will not be levied would be anomalous to allow Fisher, it to assert against Indians. In the Court relied jurisdiction subject over a heavily agreement matter on an between the Indi- the Tribal an tribe the Courts would have United States and the full to Here, adoption by the act. the Washington tribe a Constitution and state of has By-Laws pursuant completely Reorgani- to the Indian assumed the au- congressionally Act, specifical- zation 48 Stat. a statute jurisdiction thorized over Indians. Indians, Court, to would con- tion sales Indians Furthermore, Williams like federal statutes. In so applicable on the flict Fisher, preemption analysis based its likened the holding, Court Reorga- of the Indian strong pоlicy federal to rights of the tribal members those of encourage revitalization of Act to nization itself. The then went on to majority tribe Court self-government. Since the tribal immunity is hold that the tax reservation pro- the tax rejected any claim that Act, did not constitute invidious racial Indians Reorganization by the Indian hibited against contrary discrimination non-Indians is Fisher fur- on Williams and reliance its equal protection clause of the Fifth to Mo- Additionally, the Fort ther weakened. However, the Amendment. Court limited concept support to the lends jave opinion requiring cigarette its decision taxes of Tribal Court that matters to be levied on sold to non-Indi- special preemption consideration. merit shops. ans on-reservation smoke More- on this distinguishing the Williams decision over, Court the Moe held Indian rationale, wrote: this court jurisdictional obligated be to proprietor could add the tax self- with Indian “The interference cigarette price sales and thereby aid is much in the instant case government the state’s tax collection and enforcement. is land No Indian or Indian less serious. holding, emphasized In so subjected proc- state court to direct being in collecting, minimal burden and that [Emphasis supplied]. ess.” Id. at purchasing in its absence non-Indians go Williams Fisher and Clearly, both escape payment the tribal seller would of a v. Indian issues jurisdictional rejected tax. Moe lawful contention Here, dispute. is such there no courts. self-govern- tax frustrated tribal Rather, is the validity issue here ment or conflicted with federal statutes applied taxes cigarette and sales ' dealing with reservation Indian affairs. Consequently, purchasers. non-Indian Judge attempts distinguish East Moe be con- Williams cannot deemed Fisher and arguing us from the case before trolling. management, no fi- Moe there was tribal my judgment It considered that Moe regulation. A careful consider- nancing, Tribes, su & Kootenai Confederated Salish ation extent of tribal involvement me, To Moe controlling on our facts. pra, in Moe both here and demonstrates question of when and under settles similarity. majority, cases’ overall what circumstances my preemption tribal opinion, has extended reservation. Moe collected on heights. to unprecedented challenge by the Indian tribe and involved opinion fully in Moe The district court some of members Montana’s the extent tribal involvement described personal property taxes and taxes sales cigarettes. regulation In applied vehicles as to reservation motor from the Tribes “The land is leased vendor licens dians and also the state’s of the les- approval the Tribal Council’s tribal members ing applied statute as to shop. a to erect smoke plan see’s the shops who at smoke on sell purchase ciga- the Council controls Relying upon reservation. McClanahan by for resale Tribal members rettes Comm’n., Arizona State Tax fee in connec- charges an administrative (1973), 129 L.Ed.2d Confederated Salish & tion therewith.” Jones, Apache Tribe v. Mescalero the Tribes of Flathead Reserva- Kootenai 1267, 36 (1973), the L.Ed.2d 114 Moe, tion, F.Supp. Montana v. Supreme Court in Moe held that the vendor (D.Mont.1975). prpperty fee tax on located personal license majority’s reci- reservation, as a This is be likened the applied within the to reser regula- of the Confederated Tribes’ conducting cigarette a busi tation vation Indian quickly apparent becomes the tions. It that for the tribe on reservation land ness only ex- meaningful difference between the applied tax as to on-reserva- the in the on tent of tribal involvement two cases non-Indians is a minimal burden de- signed to avoid the the likelihood that levy is Confederated Tribes’ decision its absence purchasing non-Indians from the cigarettes. The imposition a tax on mere payment tribal seller will avoid a con- the of a a tribal tax does not rise to level cededly lawful tax. . . . We see on arti- preemption the field nothing in this burden which frustrates Mojave this cle. As court noted Fort self-government tribal . . supra, County, Tribe v. San Bernardino at U.S. 96 S.Ct. at 1646. “The of the tax on the Indians effect opinion, In my this language of the Moe perhaps will be the indirect one of reduc- Court completely majority’s answers the ing they the revenues will receive from imposition view that the of the tax in the inability the as a their leases result of case self-govern- instant frustrates tribal exemption. market a tax Such an indi- ment. rect economic burden cannot be said to authority Another closely which is akin self-governing ability threaten controlling and of importance is Fort Mo- Id. at tribe.” jave Bernardino, Tribe v. County of San significance, Of further is the fact There, supra. county possesso- levied a speaks rights Moe of the tribe’s and in- ry interest tax on non-Indian lessees of land voicing volvement rather than similar con- by held in trust government for the cerns on behalf of individual smoke Mojave Fort Indian Tribe. Thе court de- shop quote opinion: dealers. I from the termined that the imposition of this type of “The carry signif- tribe would these cases tax on non-Indian lessees did not violate the done, Reorganization Indian icantly further than we have how- Act and was not in- claim ignores the District taxed, and . benefit of the terms, surable ever, impose user ans ^[******] to non-Indians because ‘[i]n ‘it who saves the tax and [the out-of-pocket urges the non-Indian consumer or . exemption.’ . tax on sales retailer] has suffered a mea- the state cannot loss.’ But Court’s ” reaps has been by finding simple Indi- this tribe itself double taxation since the taxes were being tribe’s of Indian land did not result double valid In discussing also both California Fort held that itself imposed taxation. right being Mojave imposed Fort this “double a county tax an govern improper court found no Mojave imposition infringement on the lease. Fort tax on non-Indian lessees itself. The court Mojave, Indian Tribe and taxation” of such a tax in improper cigarettes. Here, the tribe issue, imposed by simple two expedient “Without different and distinct having tax- ing authorities and concluded that the retailer un- collect the sales certain imposed economic burden there purchasers, non-Indian clear that ability levy tribe’s a tax did not wholesale violations of the law interfere right with its self-government. go virtually latter class will unchecked.” We Mojave note that the Fort court made 481-482, S.Ct. 1645. full use of the Court decision in says: Moe court then Moe in arriving its own conclusion. “The Tribe asserts that to make the Indi- Despite what is said the majority, I ‘involuntary agent’ retailer an for col- find nothing in the record to support Judge lection of taxes owed non-Indians is East’s conclusions that pre- tribe has ‘gross interference with freedom [its] empted, or attempted even to preempt, the regulation from state . . .425 entire field of taxation on Indian reserva- [Emphasis U.S. at at 1645. tions. Because the of Washington state can supplied]. impose lawfully its follows and then concludes: may the state also collect its authoriz- requirement “The ed cigarette purchases sales tax on by non- validly imposed tribal seller a tax collect Indians. The majority would find such tax- regulations. I dis- by tribal preempted es analysis foregoing my

sent based on

opinion. of Wash-

I would hold

ington validly impose can li- require question

sales tax in account for the tax on all

censed dealers to non-Indians, adequate keeping

sales tax,

record such sales. Because the that some

my opinion, legal, follows kept.

type of a record must spoken regard purposely

I have not conclusion that the state majority’s impose personal Washington by Indi- tax on automobiles owned

property The record living

ans on the reservation. totally inadequate and insuffi-

before us is precisely

cient to a tax falls consider activity totally on-reservation

between the totally and the off-reserva-

in McClanahan in Mescalero. activity

tion WOIDA, Tripp, Eugene John

Matthew Frolek, Quinn, Douglas M. E. John

Mund, Roseberg, Philip E. Caru Denver

fel, for Rural Environ States United

ment, Plaintiffs, America, Berg Bob

UNITED STATES

land, Secretary, Depart United States ‍​‌‌‌‌‌​​​‌‌​‌​​‌‌‌‌​​‌​​‌‌‌​‌‌‌​‌​​‌​​​​‌​​‌‌‌​‌‍Hamil, Agriculture, David A.

ment of

Administrator, Rural Electrification Ad

ministration, Ray, Colonel, W. District J. District,

Engineer, United States Omaha

Army Corps Engineers, United Power Cooperative

Association and Power As

sociation, Defendants.

No. 4-77 Civ. 443. Court,

United States District Minnesota,

D. Division.

Fourth

March

Case Details

Case Name: Confederated Tribes of the Colville Indian Reservation v. Washington

Court Name: District Court, E.D. Washington

Date Published: Feb 22, 1978

Citation: 446 F. Supp. 1339

Docket Number: 3868 and 3909

Court Abbreviation: E.D. Wash.