*1 Anderson, A. Petitioner-Appellant-Petitioner, John

v. Respondent- Department Wisconsin of Revenue. Respondent. Supreme Court May 28, argument No. 91-0167. Oral June 1992. Decided 1992.

(Also 914.) reported in 484 N.W.2d *5 petitioner-appellant-petitioner there briefs For the Foley Flanagan by Lardner, & D. Milwau- Michael Flanagan. argument Mr. kee and oral respondent-respondent the cause was For the attorney general, argued Wilcox, S. assistant Gerald Doyle, attorney E. the brief was James with whom on general. CECI, the court J. J. This case is before

LOUIS published petition for review of a decision of on Dept. appeals, Revenue, Anderson v. 163 Wis. court of 1991). (Ct. App. 520 The court of 2d 473 N.W.2d appeals judgment affirmed a of the circuit court for Saw L. yer County, Kelsey, Judge, had Alvin Circuit which decision and order of the Wisconsin Tax affirmed a (the commission). Appeals Commission The commission (Anderson), A. had determined that John Anderson an enrolled member of the Lac Courte Oreilles Band of the (the tribe), Superior Chippewa Lake Indians owed income taxes for income he earned on the Lac Courte (the reservation). The issue Oreilles reservation presented is whether the state of Wisconsin has the authority , tribe, tax the a member of the income of on earned from tribal educational activities conducted reservation, when the member lives the reserva off tion. We hold that it does.

The relevant facts are as follows. is an member of the tribe. Anderson did not file Wis- enrolled years During income tax returns consin for the 1980-83. years, Hayward, Wisconsin, those Anderson lived employed capacities by was various educational August 1982, tribe on the reservation. From 1980 to he guidance high school, served as a counselor at the tribe's tribe, public as director of education for and as infor- elementary officer for the high tribe's mation From August schools. until the end of 1983 he *6 president served as of the Lac Oreilles Courte Commu- nity College. (the Department department)

The of Revenue against issued a notice of assessment Anderson based upon department's estimate of his income for the years petition 1980-83. Anderson filed a for redetermi- estimate, nation of that which was denied. Anderson petition department's then filed a for review action with the commission. subsequently

Anderson filed Wisconsin individual years income tax returns for the 1980-83. On those returns, he identified his income earned from investment speaking by income and outside income as taxable state, but subtracted his wages earned on the reservation as nontaxable. commission,

At the hearing before the Anderson obligation pay contended that he had no to Wisconsin state income taxes on the he earned while wages employed by the tribe on the reservation. The commis- agree sion did not and determined that because Ander- reservation, subject son lived off the his income was the state income tax. The commission therefore affirmed department's against assessment Anderson. argues ability that Wisconsin's to tax his law, is that preempted on-reservation income federal places impermissible the tax an burden on the tribe and is infringes sovereignty, on the tribe's and that the tax contrary in McClana to the Court's decision Comm'n, (1973). han v. Arizona State Tax 411 U.S. 164 department responds that because Anderson is a reservation, his income resident of the state and not the taxation; ability is the state's to tax subject preempted law; Anderson's income is not impermissibly the tax burden the tribe nor does infringe upon sovereignty; the tribe's and that the tax agree depart- does not violate McClanahan. We with the arguments. ment's application involves the of law to undis-

This case puted question law, facts. Because this is a we are not by the Local No. v. bound LIRC, commission's conclusions. 75, 82,

154 Wis. 2d 452 N.W.2d 368 As impression is a this case of first and there is no evidence any special expertise experi- that the commission has or presented by deciding give case, ence in the issue we weight the commission's determination no and review Id. its decision de novo. at 84. *7 may levy an

Wisconsin income tax on all citizens state, domiciled within the as "domicile in itself estab- lishes a basis for taxation." Lawrence v. State Tax (1932). "Enjoyment Comm., 276, 286 U.S. 279 of the privileges state, within residence and the attend- right protection insepa- laws, ant to invoke the of its are responsibility sharing rable from the government." the costs of authority tax, Id. Pursuant to this to Wis- imposes personal upon "every consin income tax natu- person residing ral within the . . .." state Section 71.01(1), Wisconsin, Stats. 1983-84. In all income of resident individuals followsthe residence of the individ- 71.07(1), Therefore, ual. Section Stats. because Ander- Hayward, Wisconsin, son in lives and not on the reserva- subject tion, he is to the state income tax on all of his income, whether in earned this state or elsewhere. See Dromey Comm., 267, 273, v. Tax 227 Wis. 278 N.W. 400 (1938). nondiscriminatory, As the income tax is it applies pre- to Indians outside the reservation unless

262 Department empted. Revenue, v. See Webster (Ct. 1981). App. 332, 337, 306 N.W.2d 701 Wis. 2d ability argues that Wisconsin's to tax his preempted by income is federal law and on-reservation analysis appeals White that the court of erred its (1980), Apache Bracker, v. Mountain Tribe 448 U.S. 136 Navajo Revenue, School Bd. v. Bureau and Ramah (1982). agree. 458 U.S. 832 We do not analysis preemption developed Under the cases, U.S. Court federal Indian law we must concep- rigidly applying "mechanical or absolute avoid sovereignty . . .." White Moun- tions of state or tribal " pre-emption tain, [Questions 448 U.S. at 145. pre- reference to standards of area are not resolved emption developed in other areas of the law that have Corp. Mexico, . . v. New 490 U.S. .." Cotton Petroleum pre- apply Rather, we must "a flexible emption analysis particular sensitive to the facts and legislation Id. must therefore conduct "a involved." We particularized inquiry state, into the nature of the fed- inquiry designed stake, eral, an and tribal interests specific whether, context, in the the exercise determine authority violate federal law." White of state would " [A]mbiguities Mountain, in federal law 448 U.S. at 145. pre-emption generously, and federal should be construed Congress those situations where has is not limited to pre-empt explicitly announced an intention to activity." Ramah, 458 U.S. at 838. state *8 ensuring in an interest that all The state has responsibility sharing the state bear their residents of imposed government. an the costs of Wisconsin has upon upon residents, tax all income help government. Here, case, bear the cost of this seeking govern- is to assess its tax return for state provides the state to those who must mental functions paying bear the the tax. We find that this is a burden state interest. vital the vital state interests at stake contrast to implicated case, mini- the federal interests here are attempts to characterize the federal inter-

mal. Anderson by significant comparing ests at stake here as this case to Supreme Ramah, White Mountain and where the U.S. preempted. Court found state taxes For the reasons comparison below, find that stated we Anderson's fails. Mountain, In White Court held that a state motor carrier license tax and a state excise use fuel upon logging company tax levied whose activities were performed solely pre- on an Indian reservation were pervasive empted regulatory gov- scheme operations erning timber on Indian reservations. The regulation Court noted that "the Federal Government's harvesting comprehensive. of the of Indian timber is regulation Congress, That takes the form of Acts of regulations promulgated Secretary detailed of the day-to-day supervision by Interior, and the Bureau of Mountain, Indian Affairs." White 448 U.S. at 145. The may only Court noted that timber on Indian land be sold Secretary Interior, with the consent of the of the and the Secretary granted power disposition is to determine the proceeds of the from timber Id. sales. at 146. Secretary promulgated had "a detailed set of regulations" objective "promoting with self-sus- taining may communities, to the end that the Indians property receive from their own . . . the benefit of profit capable yielding whatever it is . . ..'' Id. at regulations governed every aspect 146-47. The almost operations, the timber and the Court noted that "the literally daily supervi- Bureau of Indian Affairs exercises *9 harvesting management sion over the and tim- tribal addition, In ber." Id. at 147. the state being tax was imposed operations being solely for that were conducted upon Bureau and tribal roads. Id. at 148.

The Court held that there was "no room for these in comprehensive taxes federal In regulatory scheme. variety ways, the assessment of state taxes would policies. equally important, obstruct federal respon- And dents identify any regulatory have been unable to func- performed by tion or service justify that would State the assessment of taxes for activities on Bureau and tribal roads within the reservation." Id. at 148-49. The Court reiterated that White Mountain in was not a case which seeking the state was to assess in taxes return for governmental performed functions it upon for those whom the taxes fell. Id. at 150. Ramah, gross Court found that a

receipts imposed upon tax company a construction building a school on an Indian pre- reservation was empted by federal law. The Court stated that the case indistinguishable respects was all relevant White from Ramah, Mountain. 458 U.S. at 839. The Court noted in question the school was being built with exten- (BIA). sive involvement the Bureau of Indian Affairs BIA The was contracted with for the design both school, any construction of the subcontracts had to specifically approved by be BIA. Id. BIA at 839. The required inspections prepare was to conduct on-site project cooperation cost estimates for the with the organization. tribal Id. at 841. Secretary promulgated of the Interior had comprehensive regulations"

"detailed and regulating Funding construction of the school. Id. at 840-41. for the provided by appro- school was a series of congressional priations specifically particular earmarked policy of encour- Id. 835. There was a

school. aging development institutions of Indian-controlled Financing reservation, Indian as codified on the *10 A) (the IF Self-Determina- and the Indian Act of 1974 (the ISDEAA). Id. Act at Education Assistance tion and regulation of the that "Federal The Court concluded 840. financing insti- of Indian educational construction and pervasive." comprehensive Id. at 839. and tutions is both regulatory federal The found that the detailed Court governing schools was at construction of Indian scheme comprehensive found to be as the federal scheme least as preemptive Id. in White Mountain. at 841. noted that Ramah was not a case

The Court also seeking assess its tax return for which the state was provided governmental to those functions the state paying tax. Id. 843. who must bear the burden of receipts gross justification tax—that for the The state's compensation granting to the state for "the the tax was apply privilege engaging in where business"—did constructing privilege of a school on tribal lands was "exclusively Government." Id. bestowed the Federal directly upon addition, the tax fell tribal at 844. organization the contractor for the because it reimbursed paid. Id. taxes at 835. appeals properly bar,

In the case at the court of distinguished Anderson, White Mountain and Ramah. below, is 163 Wis. 2d at 1022. As will be discussed governed by pervasive regulatory not a case scheme, the case in both White Mountain as was opposed Mountain, in White Ramah. As to the situation daily supervision logging BIA exercised where organi- operations, Ramah, that in tribal where the super- BIA BIA zation contracted with the and the had visory powers project over minute details of the includ- ing Secretary subcontracts, here neither the of the significant Interior nor the BIA has involvement operation of the schools at which Anderson was employed. Furthermore, bar, in the case at Wisconsin is seeking governmental to assess its tax in return for the provides functions the state to those who must bear the paying tax, burden of which is in direct contrast to Ramah, White both Mountain and where there were no justifications state for the taxes. imposition of the tax in the case at bar does not policies upon

obstruct federal and does not fall the tribe. responsible payment Anderson himself is for the of his only income taxes. The tax will burden the if tribe only Anderson continues to reside off-reservation if successfullypasses *11 he the tax on to the tribe. Even if the upon economic burden of tribe, the tax were to fall the necessarily preempted. the tax would not have to be Although significant the Court found it in both Ramah White and Mountain that the economic burden of the ultimately upon organiza- asserted taxes fell the tribal emphasized tions, the decision in White Mountain that comprehensive regulatory there must be a federal preempted: scheme before the state tax will be course, Of the fact that the economic burden of the tax falls on the Tribe does not itself mean that pre-empted.... today the tax is Our decision is based pre-emptive on the comprehensive effect of the fed- scheme, regulatory eral which . . . leaves no room for sought imposed by the additional burdens to be state law. (citations Mountain,

White 448 U.S. at 151 n.15 omitted).

267 by pervasive governed Arguing a this is a case regulatory scheme, Anderson cites treaties Chippewa the United States Nation and the between ISDEAA, 1837,11842,2 1854;3 25 and entered into (1988); Tribally Controlled 450-450n U.S.C. secs. Community College 1978, U.S.C. Act of 25 Assistance TCCCAA); (1988) (the IFA, and the secs. 1801-1836 (1988), evidence of the 1451-1543 as U.S.C. secs. scheme. they regard Anderson, cited to the treaties

With purposes review, illustrate, little more of this for the Chippewa 1837,1842, that in and than the fact States, and, to the United Nation ceded lands exchange, government res- States established the United money, paid Chippewa sums of Nation ervations goods, provisions, guns, cattle, tobacco, furniture, traps, clothing, cooking ammunition, uten- beaver (1837); (1842); Stat. 591-92 See 7 Stat. 536-37 sils. (1854). treaty 1109-11 The 1837 mentioned and 10 Stat. only if when it stated that the Indians should education annuity appropriate portion a of that "conclude support among of a school or schools establishment (1837). granted them, this shall be them." 7 Stat. 537 treaty only by stating The 1842 mentioned education portion payment of the annual was to be used "for party that a treaty support of schools for the Indians to this treaty manner, . ..." 7 Stat. 592 like the 1854 only by stating portion mentioned education money paid moral was to be used "for and educa- *12 purposes, sum, tional per of which last three hundred dollars paid Portage band, be to the Grand to annum shall (1837). Stat. 536 1 7 (1842).

2 591 7 Stat. (1854). 3 10 Stat. 1109

268 enable them to a village." maintain school their 10 1111 Stat.

We do think that these treaties evidence a fed- regulatory eral scheme of Indian education. Wisconsin's taxation of Anderson's income from his on-reservation employment educational does not conflict with the However, in any above treaties manner. we understand citing together Anderson to be these treaties with the federal statutes as perva- evidence his assertion regulatory sive federal scheme of Indian education. We will therefore consider the treaties that context as we examine the federal statutes. cites,

The federal statutes that Anderson ISDEAA, TCCCAA, IFA, and the do evidence a comprehensive policy favoring Indian education. The ISDEAA states: Congress major goal declares that a national provide quantity

of the is to United States quality opportunities of educational services and permit compete which will Indian children to choice, excel in life of their areas and to achieve measure self-determination essential their well-being. social and economic 450a(c). 25 U.S.C. sec. The TCCCAA states its purpose provide grants is "to operation for the improvement tribally community colleges controlled expanded opportu- to insure continued and educational students, improve- nities Indian and to allow for the and expansion physical ment of the resources of such Similarly, institutions." U.S.C. sec. 1802. the IFA states: hereby policy Congress

It is declared to be the provide capital on a help reimbursable basis to *13 resources, develop physical utilize Indian both and fully human, point a the Indians will to where responsibility utilization and man- for the exercise they will agement own resources and where of their productive own enjoy living from their a standard comparable enjoyed to non-Indians efforts that neighboring communities.

25 U.S.C. sec. 1451. Congress

These that has three statutes show important goal. education to be an declared Indian statutes, with These combination the above-cited treaties, that the United States has been con- illustrate How- cerned with Indian education since least 1837. finding ever, Indian has education been declared Congress important goal equate an does to to be finding pervasive regulatory regarding scheme relationship such between the tribe income that the state's tax on Anderson's on-reservation preempted. be When statutes must we examine three closely, tax more we find on Anderson's Wisconsin's with income not obstruct or interfere the statutes. does purposes delegate One of of the ISDEAA was to responsibility substantial control and over educa- tribal Ramah, tribes. U.S. at Prior to tion Indian 840. ISDEAA, of the of Indian enactment Bureau (BIA) Affairs exercised control Indian extensive over Congress education. found that this extensive control has progress served to retard rather than enhance the people by depriving of Indian and their communities opportunity develop leadership full Indians of the self-government, skills crucial to the realization of people and has denied to the Indian an effective voice implementation planning programs responsive of Indians are benefit which to the true needs of Indian communities . . .. 450(a)(1). Consequently,

25 U.S.C. sec. the ISDEAA Secretary "upon request directed the Interior the the any resolution, Indian tribe tribal to enter into a or self-determination contract contracts awith tribal organization plan, programs conduct, to and administer portions including programs thereof, or construction 450f(a)(1). empowers . . .." 25 sec. U.S.C. The ISDEAA Secretary promulgate regulations accomplish the to to purposes the of the ISDEAA. 25 U.S.C. sec. 450k. As Secretary promulgated Ramah, discussed in the has comprehensive regulations governing detailed and the Ramah, construction Indian schools. U.S. 458 regulations governing grants 840-41. are There also under the ISDEAA. See 25 C.F.R. secs. 272.1-272.55 (1991). However, there are similar detailed and com prehensive regulations promulgated pursuant to the. governing compensation paid ISDEAA the individu to contrary, very purpose als such as Anderson. To the the give right of the ISDEAA was to Indians of self- the determination, to leave the control of Indian education up themselves, to Indians and to refrain extensive from federal involvement. purpose "provide grants"

The of the TCCCAA is to community colleges. for Indian sec. 1802. U.S.C. pursuant go Grants made to the TCCCAA into "shall general operating defray, the funds of the to institution tribally at the determination of the nity controlled commu- expenditures college, educational, academic, for purposes operation administrative the and main- college." 1803(b). tenance The BIA of the 25 U.S.C. sec. comprehensive promulgated regulations pertaining has providing to to financial and technical assistance Indian colleges. community See 25 CFR secs. 41.1-41.13 not, however, comprehensive promulgated BIA has compen- governing under TCCCAA regulations paid individuals such as Anderson. sation to manner, IFA, pro- is to In like which intended development Indian res- for economic on financing vide ervations, regulations governing does not entail detailed such Anderson. compensation paid to individuals as any has not cited sections ISDÉAA, TCCCAA, IFA, regulations promul- or would lead us pursuant to those Acts which gated ability to tax Anderson's conclude that Wisconsin's any lack of preempted. income is There is a evidence Those significant regulatory regulations scheme. are closest to even relevant this review being come in 25 Parts 32 41. found CFR *15 The title of 25 CFR Part 32 is Education "Indian policies is to the to be fol- purpose Policies." Its "state programs all schools and under the lowed education (1991). One of the 25 CFR sec. 32.1 jurisdiction [BIA]." policies of those is that Indians should be recruited 32.4(m) positions education on reservations. 25 CFR sec. only to regulation support This is the that lends a argument regulatory Anderson's federal scheme However, any possible Indian education. even construing Anderson, ambiguities in favor of it does establish a not between regulatory governing relationship scheme Anderson and the tribe. Tribally

The 25 CFR 41 is title of Part "Grants to Community Community Colleges Navajo Controlled and College," provision it to tribal governs funds community CFR also colleges. Similar to 25 Part it up regulatory not a the rela- governing does set scheme tionship regula- between Anderson and the tribe. These regulatory tions not do constitute a "detailed scheme" preempt such was to as found in both state taxes Ramah and White Mountain. regulations

The statutes and cited only employment establish that at Indian educational is derivative is institutions from federal funds. There no regulation employment evidence of federal of such beyond provision sug- of funds in a manner which gests Congress preclude intended state taxation employees who, of those Indian educational institution provi- Anderson, such as live off-reservation. The mere upon sion of federal funds is not a sufficient basis which pervasive comprehensive regulation to find employment. Indian educational Applying Mountain, Ramah and White we find that in the federal implicated at interests stake Indian education not are require preemp- this case manner tion of Wisconsin's tax on income. Anderson's impli-

The tribal here also interests stake are not require preemption. cated such a manner as to upon above, tax not fall As does tribe. stated the tax only will burden if the tribe Anderson continues to live only successfully passes

off if the reservation he possible us, On tax on to tribe. the record before speculative. burden on the is too tribe Having found the tax on Anderson's is income preempted by law, we now address Ander- argument places impermissible son's that the tax an bur- *16 infringes sovereignty. den on the tribe and on the tribe's argument, primarily upon For this Anderson relies above, Ramah and White Mountain. As illustrated those point Nonetheless, cases not are on with the case at bar. argues places Anderson that the tax on his income an

273 infringes the on the burden on tribe inevitable by own laws be ruled them. right to make its tribe's Governing the Tribal Quaderer, a member of John the tribe has Board, the commission that testified before He experienced problems. economic further testi- serious to employees if are subject fied that tribal educational wages, the tribe would higher state and demand taxation current services. be forced to cut back educational if his Anderson testified before the commission that taxation, subject state he would be forced wages were to higher wages employment to or seek elsewhere. demand argues the will be able to meet that tribe employ- its salary the increased demands of educational ees, this will lead to a "brain drain." Anderson also today compel him to argues that result we reach will quit, burdening thus the tribe. not persuaded by arguments.

We are Anderson's On us, speculative before these are too arguments record weight. be given may be Whatever incidental burden placed by on the tribe the state's tax on Anderson's right income does not interfere with the tribe's to make department its laws and be them. The own ruled has right admits that tribe to tax Anderson's income, it is as earned on-reservation. Wisconsin's tax right. on Anderson's income does not with this interfere "If As are func- Rehnquist, stated Justice Indians States, quasi co-sovereigns they tion as with like the States, adjust must to the sta- economic realities every sovereign tus other for tax competing as revenues Tribes, Washington v. . . .." 447 U.S. Confederated reh'g denied J., (Rehnquist, 186 concurring), 448 U.S. We opinion are not the tribe's income, right to tax Anderson's the absence of *17 precludes right, co-equal right exercise of that the state's to tax.

This is from case different White Mountain and Ramah, where both cases the not a .state did have justification right valid to tax. All states the have to tax governmental their residents return for the functions Lawrence, provides state the to those residents. 286 U.S. Here, at 279. protections Anderson receives the and ben- government, help efits the state and he must to bear burden of government the that as must all other upon residents of the state. The tax Anderson's income only exists because Anderson lives off-reservation. As department the conceded at oral argument, there would not be a tax on the income at here if issue Anderson on lived the reservation.

We find that tax on the Anderson's income does not place impermissible an on tribe burden and does not interfere with the tribe's sovereignty. We therefore deny decline to state sovereignty of Wisconsin to tax income. Anderson's

We now address Anderson's argument that court appeals opinion contrary is to McClanahan. McClanahan, may Court held that a state "tax a reservation Indian for income earned exclu- McClanahan, sively on the reservation." 411 U.S. at 168. bar, appeals In the case at interpreted the court term "reservation Indian" to refer to living an Indian on Anderson, the reservation. 2dWis. at 1019. Ander- incorrect, argues interpretation son that is "reservation Indian" refers rather orientation cultural location, geographic than a "reservation Indian" is an Indian who has not been assimilated into community. general argues that he views himself as reserva- tribe, membership tion Indian due to his in the his dedi- education, and the retention his to tribal cation heritage. commis- testified before the cultural He Indian *18 period during he considered the that the relevant sion professional home, his situated his to be reservation there, the service area of the and lived within career reservation. by persuaded argument. In

We are not Anderson's appellant of McClanahan, an member the was enrolled Navajo Navajo reservation. and lived on the the tribe agree McClanahan, 411 at We with the court U.S. 165. appeals refers to an that the term "reservation Indian" living did on the reservation. McClanahan Indian today. would, therefore, the we face We address issue apply in here. to extend McClanahan order it to have was decline to do so. McClanahan decided the We Supreme the basis as White Mountain Court on same question preempted Ramah: the whether tax was policies treaties, statutes, and the behind the relevant above, them. As stated we do not think that Wisconsin's preempted by on income is the relevant tax Anderson's policies treaties, statutes, and behind them. We the appeals opinion that the court of is not therefore find contrary to McClanahan.

By appeals the Court.—The decision of court of is affirmed. (dissenting). ABRAHAMSON, J. I

SHIRLEY S. preempts I because believe federal law dissent taxing from the income John Ander- State Wisconsin earned on Lac Courte son from educational activities is an member of Oreilles reservation. Anderson enrolled tribe who lives off reservation. He has served high guidance counselor, education as a school tribal public elementary high information officer for the 276 president schools, tribe, director of education for the Community College. of the Lac Courte Oreilles majority analyzing states, As when state taxa- reservation, tion of income on earned a the United preemption States has Court established a analysis applied distinct from other areas of the "particular- case, law. In each the court must conduct state, federal, ized examination of the relevant and tribal Corp. Mexico, v. interests." Cotton Petroleum New 109 (1989) Navajo (quoting S. Ct. Ramah School Mexico, Board v. Bureau Revenue New 458 U.S. (1982)). Determining 832, 838 whether law preempts primarily state taxation "is an exercise congressional examining Cotton, intent." S. Ct. examining 1707. the relevant federal statutes and recognize treaties, the court must tradition tribal *19 sovereignty policy promoting and of the broad tribal independence development. preemption Moreover, and Congress is not limited to situations in which has expressly preempt activity; stated its intent to state may implied Congressional preemption. court find Ambiguities in law are of federal "resolved favor tribal independence." Cotton, sum, 109 S. at Ct. 1707. "the preemption relevant test is a flexible one to the sensitive particular federal, state, and tribal interests involved." Cotton, S. Ct. 1711. 109 Supreme applying case- Court's decisions this

by-case analysis preemption provide guidance uncertain to state and federal courts. One commentator described law Court Indian decisions as "a chaotic lot" critiqued pre- concerning Congress's and the decisions emption of state taxation as follows: requires case:by-case

[The Court] a of consideration "preempted"by whetherthe state utes and is stat- tax supposedly federal pre- generously treaties, read to

277 immunity. no statute or Since serve tribal law, expressly preempts state these cases treaty unguided necessarily judicial excursions iden- become weighing the interests taxation tifying and state policy particular ... for a on a matter and the federal to particular The Court seems have reservation. judicial manageable standards ignored the of value ,1 . . Rehnquist to which wrote that the extent Justice activity on reservations tax economic Indian states can its destined to demand within their borders "seems again until sees fit to over and over the Court attention predictable articulate, follow, rule and and consistent Navajo Board Bureau Reve- Ramah School v. law." (1982) (Rehn- Mexico, nue New 847 U.S. quist, dissenting). J., Examining Congressional intent the statements Congress case, I has relevant this conclude implicitly preempted taxation of the income state on the res- Anderson earned from educational activities clearly affirmatively Congress has ervation. expressed primary policy: goal As a of fed- relevant improve promote policy, Congress eral seeks tri- through accomplish goal bal education and to tribal policies.2 The Bureau self-determination of educational Congressional Intent, Practical Reason 1Philip Frickey, P. Law, ing, Dynamic Nature Federal Indian 78 Cal. L. Note, 1137, 1187, Charley Carpenter, Rev. See also Preempting Preemption: Corp. Cotton Petroleum v. New Indian Mexico, Note, (1990); Bogardus, 39 Cath. U. L. Rev. 639 Kristina *20 Petroleum, Picks New Test in Court Cotton Resources J. 30 Nat. 919

2See, e.g., 450a(c), 25 Congress sec. U.S.C. which declared provide major goal that "a national of the United States is to the quantity quality opportunities and of services and educational permit compete which excel in life will Indian children to and (BIA) promulgated regulations of Indian Affairs has appropriate policy. policy all, to this federal consist- ently implements Congressional by reserving intent great and control discretion to individual tribes in the policies ensuring of determination educational while support govern- technical and financial from the federal necessary. scheme, ment as I this believe when pre- examined accordance with Court's emption analysis favoring preempts independence, tribal the state taxation at issue this case.

Congress's policy clearest statement of its is the Indian Self-Determination and Education Assistance seq. passage Act of 25 U.S.C. et secs. 450 Before of government completely act, the federal controlled passing most facets Indian education. In Self- Congress pro- Act, Determination stated its desire to orderly mote "an transition from the Federal domination programs for, to, and services Indians to effective and meaningful participation by people the Indian in the planning, programs conduct, and administration those 450a(b). implement and services." 25 sec. To U.S.C. policy, Congress expressed its intention to refrain from comprehensive regulation of education: hereby Congress recognizes obligation of the respond strong expression

United States to people by assuring the Indian for self-determination participation maximum Indian in the direction of . . services Indian educational. communities so as responsive to render such services more to the needs desires those communities. 25 U.S.C. sec. 450a(a). choice,

areas of their the measure to achieve of self-determi- well-being." nation essential to their social economic *21 "parental Congress and Furthermore, found process community cru- is of control of the educational people." importance sec. to Indian 25 U.S.C. cial 450(b)(3). regulations promulgated to enact these

The BIA goal achieving policies. self- of tribal Consistent with regulations concerning education, in determination goals policy BIA's not extensive. The educational are "fully ensuring that tribes exercise self-determi- include develop- planning, priority-setting, in nation and control management, operation, staffing ment, and evaluation process;" encouraging aspects and of the education all govern defending right "to their own internal the tribes' ensuring relating education;" to and affairs all matters "qualified . . for . Indian educators are recruited background positions appropriate to their cultural (m) 32.4(a)(3), qualifications." (g)(2), and 25 C.F.R. secs. Congress's regulations lim- BIA's are laws and the necessary help the tribes achieve control ited to those provision including education, of technical and over practical support. purposes, fact, In all financial supported exclusively by Lac Courte Oreilles schools are Findings DOR, Fact, v. federal funds. No. 1987). (Tax App. 3, addition, Comm'n, Mar. 1-11838 Tribally Community College Controlled Assistance etseq., helped 1801, Act, enacted 25 U.S.C. secs. Community College, Lac Courte Oreilles create the president. The BIA which Anderson served as ingly promulgated regulations accord- support encourage

"to operation, improvement" establishment, (1991), community colleges, C.F.R. 41.1 these sec. extensively. regulate their functions positions in similar Anderson and others goals advance federal scheme. Anderson advances goals through position regardless these his he where *22 majority any lives. DOR Neither the nor the cites federal policy encourages that tribal educators to live on the reservation. Taxation of the income Anderson earned from educational activities burdens the achievement of goals tapping federally provided these federal funds promote used to tribal education.3 concluding preempt In that federal law does not majority case, state in this taxation the understates the relevant federal and tribal concerns and the overstates majority essentially relevant state interests. The relies support on two considerations to its conclusion (1) preempted: "perva- is state tax the absence of a regulatory governing sive federal scheme" tribal educa- (2) regulations tion and the absence of detailed federal specifically governing compensation paid to individuals position. in Anderson's While these considerations are ’ certainly preemption analysis, they to the in relevant no way preclude preempts the conclusion that law federal state taxation this case. agree majority's reading

First, I with the White Apache (1980), Bracker, Mountain Tribe v. 448 U.S. 136 Navajo and Ramah School Board v. Bureau Revenue Mexico, New 458 U.S. 832 holding these cases the Supreme preemption Court based its of federal part "comprehensive" regulations gov- at least on BIA logging erning and the construction of facili- educational ties, the on-the-reservation state. activities taxed regulations These left "no room" for additional state only elementary principles need 3One look to economic certainly understand the tribe will almost bear all or some of imposition Wages from the burden the state income tax. paid equivalent higher to educators on reservation will be only wages paid to educators off the reservation if the reservation exempt wage is from state income tax. Ramah, Mountain, 145-48; 448 U.S. at

burdens. White Supreme Despite the Court's reli- U.S. at 839-42. pervasive regulatory schemes on the federal ance Supreme Ramah, used White Mountain and Court preemption; only pervasive as evidence of schemes those way pervasive federal in no indicated that a the Court necessary regulatory is to hold that federal law scheme preempts a state tax. particularly pur- is

The Ramah case instructive poses Ramah, us. In of the issue before preempted imposition that federal law Court ruled receipts gross on Mexico's tax a non-Indian com- New pany constructing school facilities on a reservation. comprehensive regulations governing Court cited financing of Indian school facili- the construction *23 tax, state ties. The Court wrote that the burden the "although nominally falling on non-Indian contrac- the necessarily clearly impedes expressed tor, the federal promoting 'quality quantity' the and of educa- interest by depleting opportunities for Indians the funds tional of Indian schools." available for the construction Ramah, U.S. at 842.

Despite "comprehensive the in this case of absence development implemen- regulations" governing and the policy, "clearly tation of tribal educational the same preempts expressed imposition federal interest" the resulting depletion income tax and the of funds the state quantity regulation is for education. The not available preemption. appropriate Rather, measure of federal the clearly regulation case, in this the absence of reflects expressed policy. federal

Second, the Court's Indian law decisions require preemption specific activity do of the taxed support preemption. majority Ramah, to In federal the opinion totality that the court must examine the noted specific the federal scheme and not the of the target Ramah, tax. totality 458 U.S. at 841-42 n.5. The of the governing preempts scheme tribal education the tax in this case.

Finally, majority describes as a state "vital interest" the assessment income taxes return for the governmental provides functions the state taxpayers living pro- outside the reservation. The services state vides to pro- to Anderson are similar those New Mexico vided taxpayers non-Indian in Ramah. Although the Ramah decision does not discuss the off-reservation of the company, activities construction one must assume activities, that planning management support staff functions, acquisition storage of equipment for the project construction all off the occurred reserva- tion in locations serviced state government. Ramah, the Supreme rejectéd Court New Mexico's attempt justify compensation its tax as for state ser- benefiting vices these off-reservation activities: "The only arguably specific interest advanced the State is provides that it services to school construction com- [the pany] interest, for its activities reservation. This off however, legitimate is not a for justification a tax whose organization." ultimate burden falls on the tribal Ramah, 458 Similarly, U.S. 843-44. provides the state directly Anderson, services that benefit but the state's justify necessarily interest does not a tax which impedes clearly expressed federal interest edu- promoting opportunities cational by depleting the tribe *24 funds available for education.

Accordingly, I dissent.

I am authorized to state that Chief Justice Nathan S. HEFFERNAN joins dissent.^