ALLEN D. POWELL, Appellant, v. HAROLD FARRIS, Respondent.
No. 46949
Supreme Court of Washington
December 4, 1980
94 Wn.2d 782
The Court of Appeals is reversed and the case is remanded to Snohomish County Superior Court for a decision on petitioner‘s petition for deferred prosecution, reached in accordance with this opinion.
UTTER, C.J., and ROSELLINI, STAFFORD, BRACHTENBACH, HOROWITZ, DOLLIVER, and HICKS, JJ., concur.
Christopher R. Boutelle, for respondent.
WILLIAMS, J.—In March 1977, appellant Allen Powell, respondent Harold Farris, and one Frank LePonis entered into a business relation with the purpose of establishing a smokeshop on the Puyallup Indian Reservation. It was contemplated that cigarette sales and certain gambling operations were to be the mainstay of the business. The parties’ partnership agreement provided that LePonis, a non-Indian, would deed certain real property to respondent, an enrolled member of the Puyallup Tribe of Indians, on condition that respondent arrange for restoration of Indian trust land status to the property. Appellant, also a non-Puyallup Indian, was to provide the initial capital to establish the business. Each party was to share equally in the anticipated profits.
There is no dispute that the business was duly registered with the Puyallup Tribe, that all necessary paperwork was filed according to the tribal rules, and that required tribal taxes were paid. In March of 1978, however, the tribal council revoked the smokeshop‘s business license because of the inclusion of a nonenrolled Puyallup Indian in the venture, a circumstance not permitted by the tribe‘s business code. After appellant and LePonis (who is not a party to this litigation) left the business, the tribal council renewed the business license, and respondent has been operating the business since that time.
The sole issue we must decide at this stage of the proceedings is whether the state court has jurisdiction over the subject matter of an action for dissolution of a partnership and an accounting where the defendant is an enrolled tribal Indian, the plaintiff is a non-Indian, and the accounting is sought from proceeds of a business located on tribal trust land and licensed by the tribal council.1 In deciding this question, we think it may be helpful to set forth a few of the principles governing assertions of state power over the affairs of Indians and Indian tribes on federal reservations.
It is by now axiomatic that state power over Indians on a reservation is limited to the power granted by Congress in
Respondent argues that since Washington in
It is well settled that even without the jurisdiction conferred by Congress in Public Law 280, the state may exercise some jurisdiction over some reservation conduct. In particular, it may impose its laws on reservation conduct involving only non-Indians. It may, for example, impose a tax on a non-Indian‘s personal property held on tribal land. Chief Seattle Properties, Inc., at 18. It may impose a tax on non-Indian customers of Indian retailers doing business on the reservation. Washington v. Confederated Tribes, 447 U.S. 134, 159, 65 L. Ed. 2d 10, 32, 100 S. Ct. 2069 (1980); Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 48 L. Ed. 2d 96, 96 S. Ct. 1634 (1976).
It is equally clear that an individual Indian who is off the reservation is subject to the laws of the State of Washington to the same extent that a non-Indian or alien is so subject. State v. Williams, 13 Wash. 335, 339, 43 P. 15 (1895); United States Department of the Interior, Federal Indian Law 363 (1958); see also 1 Studies in American Indian Law 241 (R. Johnson ed. June 9, 1970) (unpublished study in Washington State Law Library).
Essentially, absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.
Williams v. Lee, supra at 220. The court later refined the infringement test as follows:
It must be remembered that cases applying the Williams test have dealt principally with situations involving non-Indians. See also Organized Village of Kake v. Egan, 369 U. S., at 75-76 [7 L. Ed. 2d 573, 82 S. Ct. 562 (1962)]. In these situations, both the tribe and the State could fairly claim an interest in asserting their respective jurisdictions. The Williams test was designed to resolve this conflict by providing that the State could protect its interest up to the point where tribal self-government would be affected.
McClanahan v. Arizona State Tax Comm‘n, 411 U.S. 164, 179, 36 L. Ed. 2d 129, 93 S. Ct. 1257 (1973). See also Washington v. Confederated Tribes, supra at 156.
We come then to deciding, where the State has not assumed jurisdiction under Public Law 280, whether the assertion of state jurisdiction would infringe the right of the Puyallup Tribe of Indians to “make their own laws and be
The parties concur that the contract in this case was executed off the reservation. By its terms the parties agreed to establish a business on the reservation, although at the time of contracting the real property involved was not tribal trust property; indeed, one of the explicit conditions of the agreement was that respondent would procure trust status for the land on which the business was to be located. While part of the performance of the contract occurred on the reservation, the promise of appellant to provide capital and of LePonis to convey the land could have been performed elsewhere. The record does not specify.
The relief sought by appellant is simply a dissolution of the partnership established pursuant to the contract. Partnership dissolution is a common law form of action ordinarily heard in state courts of general jurisdiction. Moreover, it is not asserted that a tribe has an interest in regulating a contract made off the reservation.
Under these circumstances, we cannot say that state court jurisdiction over this matter would infringe the sovereignty of the tribe. The business is still in existence, and the parties do not dispute that it meets the requirements of the tribe‘s business code. There is nothing to indicate the tribe cannot continue to tax and otherwise regulate the smokeshop. Indeed, that the tribe retains its regulatory authority is shown by its denial of the business permit because of appellant‘s participation and its subsequent reinstatement of the permit after he had been asked to leave the reservation. Thus, any dissolution of the partnership created by this contract will have little or no effect on the tribe‘s continuing authority over the business. Williams v. Lee, supra; Washington v. Confederated Tribes, supra at 156. The effect of a state court judgment would simply be to declare that the partnership is dissolved.
As to the accounting, appellant merely seeks a money judgment from respondent personally. Since an accounting is an equitable action, Koehler v. Wales, 16 Wn.
The order of the dismissal is vacated, and the cause is remanded to Pierce County Superior Court for further proceedings not inconsistent with this opinion.
UTTER, C.J., and ROSELLINI, STAFFORD, BRACHTENBACH, HOROWITZ, and HICKS, JJ., concur.
DOLLIVER J. (dissenting)—Do the courts of the State of Washington have jurisdiction over the business activities of a member of an Indian tribe when such activities are conducted on trust lands and are within the boundary of an Indian reservation? Contrary to the views expressed by the majority, I do not believe such jurisdiction exists, and, therefore, dissent.
Subject matter jurisdiction is “the authority of the court to hear and determine the class of actions to which the case belongs. . . . A court lacking such jurisdiction may do nothing other than enter an order of dismissal.” (Citations omitted.) In re Adoption of Buehl, 87 Wn.2d 649, 655, 555 P.2d 1334 (1976). In McClanahan v. Arizona State Tax Comm‘n, 411 U.S. 164, 170-71, 36 L. Ed. 2d 129, 93 S. Ct. 1257 (1973), the Supreme Court, quoting from the United States Department of the Interior, Federal Indian Law 845 (1958), said “‘State laws generally are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply.‘” It is conceded that defendant is a tribal Indian on an Indian
In Williams v. Lee, 358 U.S. 217, 3 L. Ed. 2d 251, 79 S. Ct. 269 (1959), the Supreme Court laid down the rationale for the rule on state jurisdiction: “Essentially, absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.” Williams, at 220.
Given the clear language of McClanahan, the circumstances of this case and the fact that the actions brought by plaintiff, if allowed, would obviously infringe on the right of the Puyallup Tribe to make its own laws and be ruled by them, I would think the matter to be ended and the dismissal of the trial court upheld.
The majority, believing otherwise, begins its analysis by pointing to what it calls a “refine[ment]” of the Williams test which it claims is found in McClanahan and in Washington v. Confederated Tribes, 447 U.S. 134, 65 L. Ed. 2d 10, 100 S. Ct. 2069 (1980). McClanahan involved the imposition of state taxes upon a member of an Indian tribe living on a reservation. No consent was given by the tribal member. The court did not rely upon Williams, stating that it applied principally to situations involving non-Indians (the exact case here). Confederated Tribes said the application of the state cigarette tax to non-Indian purchases of cigarettes on an Indian reservation did not infringe on the right of the reservation Indians to “make their own laws and be ruled by them.” The real nexus of Confederated, of course, was not non-Indian against Indian but rather the application of the tax laws of the State of Washington to an activity on an Indian reservation. I see nothing in either McClanahan or Confederated which in any way either weakens or refines Williams as it applies to this case.
Next the majority finds comfort in that the contract was executed off the reservation. I fail to see the relevance of
The majority says the exercise of state jurisdiction here would not infringe on the sovereignty of the tribe or lessen the tribe‘s ability to tax and otherwise regulate the smokeshop. Again, this is irrelevant to the issue. Williams v. Lee, supra, was an action to collect for goods on credit sold by Lee, a non-Indian, who operated a general store on the Navajo Indian Reservation, to Williams, a Navajo Indian. As in this case, the exercise of state jurisdiction would not have prevented the Navajo Indian Tribe from “tax[ing] and otherwise regulat[ing]” the general store. The majority asserts this bringing of the action for partnership dissolution and accounting to be talismanic on the question of jurisdiction. I fail to see, however, where this type of action provides subject matter jurisdiction any more than an action to collect for goods sold on credit did in Williams v. Lee, supra.
I can understand the interest of the plaintiff in attempting to bring this suit in state courts. However, he made the agreement with a Puyallup Indian to take part in the operation of the business on the Puyallup reservation. The situation in which the plaintiff now finds himself may be one for which he is entitled to redress, but it cannot be through the courts of this state. If this seems harsh, the remedy is with the Congress which alone can grant jurisdiction by the state over Indians on Indian reservations. Williams v. Lee, supra.
I dissent.