Interest of Amicus Curiae
The Amicus Curiae, Proper Economic Resource Management, Inc. (“PERM”) is a Minnesota non-profit corporation with approximately 1,000 members. PERM is involved in protecting and advancing the private property interests and rights of all citizens, including both members and non-members of Indian tribes. PERM is interested and involved in natural resource management policies, which balance economic growth and conservation of natural resources. PERM has a critical interest in this case because it has members who own residential, recreational and commercial land and businesses within the original boundaries of various Indian reservations in the State of Minnesota. The actions of tribal governments, whether through regulation or taxation, have impacted and have the potential to impact the fee owned lands and businesses of Minnesota citizens and the fundamental rights of individuals who are not members of tribal governments. All parties have consented by joint written stipulation to the filing of this Amicus Brief.
Summary of the Argument
The decision by the 10th Circuit Court of Appeals in Atkinson Trading Company, Inc. v. Shirley, 210 F.3d 1247 (10th Cir. 2000) creates substantial concern for PERM and its members because that decision failed to apply the analysis of this Court from Montana v. United States, 450 U.S. 544 (1981). PERM submits that this Court must reverse the 10th Circuit’s decision in Atkinson Trading, and apply Montana’s general rule that Indian tribes lack authority over non-member activity on fee lands. Because the two exceptions to Montana’s general rule are narrowly drawn, there can be no circumstance in which tribal taxation of non-member activities is permissible unless the activity occurs on tribal lands.
The 1,000 members of PERM include persons who own residential, recreational and commercial fee land, and operate related businesses, within the boundaries of several original reservations in Minnesota. Fee land ownership in those areas resulted from the United States Congress assimilation policy, as carried out in the General Allotment Act [Dawes Act], 24 Stat. 390 (1887), as amended, 25 U.S.C. §1331, et seq., and other statutes and agreements, including the Nelson Act, 25 Stat. 642 (1889). The 10th Circuit’s decision in Atkinson Trading fails to recognize fee ownership as the determinative factor, and creates a new balancing test that would improperly expand tribal taxation authority over non-member activities contrary to Montana and the fundamental rights of non-members.
Fee lands owned by non-members within the boundaries of a reservation are not subject to inherent tribal sovereignty and control. Absent an express delegation of authority by Congress, tribal sovereignty over non-members is not inherent; the only exceptions are to protect tribal self-government or to control internal relations. See South Dakota v. Bourland, 508 U.S. 679,694-95 (1993). The Congressional policy that created fee ownership within reservations was diametrically opposed to the grant of tribal jurisdiction over non-members. The assimilation policy that created fee land ownership was designed to break up tribal relations and made tribal members and their allotted fee lands subject to state laws and taxation. See County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U.S. 251,254-56 (1992).
Minnesota has a checkerboard of fee land ownership in the original reservations. Non-members owning fee lands are threatened by tribal regulation and taxation by tribal governments in which non-members cannot participate, even if the non-member resides on the land. The resulting uncertainty damages businesses and land values. The fundamental rights of non-members, as United States citizens, are violated by tribal government regulation and taxation. Tribal regulation and taxation are divisive forces in local communities and injurious to economic development. This Court must limit tribal taxation power over non-members to activities occurring on tribal lands, consistent with this Court’s decisions in Montana and Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982).
I. TO PREVENT CONTINUED UNCERTAINTY, MONTANA’S GENERAL RULE MUST BE APPLIED AND STRENGTHENED.
The original Ojibwe (Chippewa) Indian reservations in Minnesota present in a microcosm the variety of “reservations” that exist across the United States. By understanding the circumstances in Minnesota, the Court may better understand that while reservations differ, the impact of the Court’s decisions on non-members owning fee land is universal. The Red Lake Reservation in Minnesota was never ceded to the United States, and except for a few minor exceptions, the aboriginal title remains in the Red Lake Band of Chippewa. White Earth Reservation is a checkerboard consisting of non-Indian and Indian owned fee lands, plus some trust lands and fee lands owned by the White Earth Band.
All other Minnesota Chippewa reservations, including the Grand Portage Reservation, the Boise Forte Reservation, the Leech Lake Reservation and the Fond du Lac Reservation, were ceded and relinquished to the United States under the Nelson Act, 25 Stat. 642 (1889) and by agreement with the various Chippewa bands. These four “reservations” also feature a checkerboard of ownership of fee land owned by members and non-members, state, federal and local government lands, and tribal trust lands and tribal owned fee lands. Tribal governments on the one hand, and non-members and state and local governments on the other, differ as to whether these four Chippewa reservations remain intact or were disestablished or diminished by the Nelson Act.
Last, the original Mille Lacs Reservation was ceded by nearly identical 1863 and 1864 Treaties with the Mille Lacs Band, 12 Stat. 1249 (1863) and 13 Stat. 693 (1864). Later the Mille Lacs Band ceded the right of occupancy under the Nelson Act. This Court held that the Mille Lacs Reservation was ceded and relinquished, and there was a “complete extinguishment of Indian title,” United States v. Mille Lacs Band of Chippewa Indians, 229 U.S. 498,503-04 (1913), and this language is “precisely suited” to reservation disestablishment. See South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 330 (1998) citing DeCoteau v. District County Court, 420 U.S. 425,445 (1975).
Even though courts have determined that the Nelson Act ceded and relinquished all the Chippewa reservations in Minnesota except Red Lake and White Earth, Minnesota Chippewa Tribe v. United States, 11 Cl. Ct. 221,226-27 (1986); Chippewa Indians of Minnesota v. United States, 88 Ct. Cl. 1,30 (1938-39), aff’d, 307 U.S. 1,2 (1939), the Chippewa bands continue to assert that they have jurisdiction over their “territories” which they define to be all lands within the boundaries of the original reservations. See e.g. Grand Portage Band v. Melby, Amicus App. A-6, n.12, A-12. This creates uncertainty for non-members who own fee lands that non-members or their predecessors in title have owned for over a century, and on which non-members have built homes and businesses without the assistance of tribal governments.
Until recent times, tribal governments in Minnesota have not attempted to regulate or tax the activities of non-members on fee lands. See e.g. id. at A-2, A-3, n.8, A-12. Nevertheless, tribal governments in Minnesota, like many tribal governments across the United States, are viewing expansively the powers of tribal governments over all persons and land within the boundaries of original reservations as part of their “territory” subject to their inherent sovereign powers. Grand Portage held that inherent tribal sovereignty included the power to tax and regulate all commercial activity by non-members on fee lands on the reservation, and that all commercial activity by definition is “consensual.” Id. at A-9.
This Court has previously reined in attempts to expand the power of tribal governments over non-members and fee lands by making clear that National Farmers Union Insurance Co. v. Crow Tribe, 471 U.S. 845 (1985) and Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9 (1987) were limited to “a prudential exhaustion rule.” Strate v. A-1 Contractors, 520 U.S. 438,450 (1997). The general rule in Montana applies to non-member activity on fee lands, and the exceptions to Montana are to be narrowly read and applied. See Strate, 520 U.S. at 445-46. The 10th Circuit’s decision in Atkinson Trading is an erroneous attempt to expand the exceptions to Montana’s general rule governing tribal taxation of non-member activities on fee lands.
Amicus curiae submit that Montana’s general rule must be applied without exception to tribal taxation of non-members on fee lands. Otherwise, continued attempts by tribal governments to tax persons who do not have a voice in tribal government will continue to create uncertainty for fee owners, and negatively impact economic development in areas where economic development is sorely needed. The result will be continuing litigation expenses as these issues are tried in tribal and federal courts as tribal governments attempt to raise monies by taxing persons without a voice in tribal government. While there exists a checkerboard of land ownership within reservations, these areas are also communities. To give tribal members of the community the power to regulate and tax their neighbors who are denied participation in tribal government is both unfair and divisive.
Under the Nelson Act, except for the Red Lake and White Earth Reservations, the Chippewa reservations in Minnesota were ceded and relinquished to the United States and tribal members were encouraged to move to White Earth to take their allotments there under the General Allotment Act of 1887. See Cass County, Minnesota v. Leech Lake Band of Chippewa Indians, 524 U.S. 103,106-07 (1998). Band members who wished to remain on their previous reservations to take their allotments were permitted to do so, and many chose this course of action. See State v. Forge, 262 N.W.2d at 341,346. The remaining lands were then made available for sale to non-members, and this policy generally stayed in force until the Indian Reorganization Act of 1934, 48 Stat. 984. See Cass County, 524 U.S. at 108. In the meantime, under the General Allotment Act and the Burke Act, 34 Stat. 182 (1906), band members who took allotments received fee patents, and many tribal members sold the lands that they owned in fee through the allotment process to non-members. See Grand Portage, Amicus App. A-3. This process in Minnesota was remarkably similar to the pattern described by the 8th Circuit Court of Appeals in its decision in Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010 (1999), cert. denied 120 S.Ct. 2717 (2000). Over 100 years ago there came to be a new understanding of what constituted tribal lands wherein tribes continued to exercise jurisdiction.
“At the turn of the century, Indian lands were defined to include ‘only those lands which the Indians held some form of property interest: trust lands, individual allotments, and to a more limited degree, opened lands that had not yet been claimed by non-Indians’ Solem, 465 U.S. at 468. Lands to which the Indians did not have any property rights were never considered Indian Country.”
Gaffey, 188 F.3d at 1022. [citing Solem v. Bartlett, 465 U.S. 463 (1984)].
Gaffey resolved the issue of tribal claims of jurisdiction over fee lands by determining that the Yankton Sioux Reservation, as a result of the Act of 1884, 28 Stat. 286, was diminished. The 8th Circuit held that the Yankton Sioux Reservation no longer included those lands owned in fee by non-members. Id. at 1030. This non-member fee land analysis applied whether the title to that land originated in a fee patent from land ceded to the United States by the Yankton Sioux Tribe, or whether the non-member’s fee title to the land originated from an allotment to a tribal member. By eliminating these non-member owned fee lands from the reservation, the Yankton Sioux Reservation was greatly diminished, and the jurisdictional issues were resolved.
What Gaffey points to is a recognition by the 8th Circuit of the critical distinction that arises when fee land is owned by non-members. Despite the differences in the status of the various original Chippewa reservations in Minnesota, a single common thread exists with regard to fee lands. All of the fee land owned by non-members finds its origin in Congressional policies from the assimilation period, beginning with the General Allotment Act [Dawes Act] and continuing with the Nelson Act in Minnesota, and similar acts in other states, and the Burke Act. See Cass County, 524 U.S. at 108.
“The objectives of allotment were simple and clear-cut: to extinguish tribal sovereignty, erase reservation boundaries, and force the assimilation of Indians into the society at large . . . Section 6 [of the Dawes Act specified] that ‘each and every member of the respective bands or tribes of Indians to whom allotments have been made shall have the benefit of and be subject to the laws, both civil and criminal, of the state or territory in which they may reside.’ 24 Stat. 390. [With the passage of the Indian Reorganization Act] Congress made no attempt to undo the dramatic effects of the allotment years on the ownership of former Indian lands. It neither imposed restraints upon the ability of Indian allottees to alienate or encumber their fee patented lands nor impaired the rights of those non-Indians who had acquired title to over 2/3 of the Indian lands allotted under the Dawes Act.”
County of Yakima, 502 U.S. at 254-56 [emphasis added].
“It defies common sense to suppose that Congress would intend that non-Indians purchasing allotted lands would become subject to tribal jurisdiction when an avowed purpose of the allotment policy was the ultimate destruction of tribal government.”
Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408,423 (1989), (J. White plurality opinion) citing Montana, 450 U.S. at 560, n.9.
The Report of the Commissioner of Indian Affairs, September 21, 1887, stated:
“After patents have been delivered, the laws of descent and partition of the State or territory in which the lands are located shall apply to said lands . . .
After receiving his patent every allottee shall have the benefit of and be subject to the civil and criminal laws of the State or Territory in which he may reside; and no territory shall deny any Indian equal protection of law; (Id. at pages 3-4, citing Dawes Act).
Henry Dawes himself made the following comment regarding the General Allotment Act:
“I am responsible to the laws of Massachusetts alone; and so is each one of those Indians, henceforth, responsible alone to the laws of the state in which he lives.” Henry Dawes, “Proceedings of the Fifth Annual Meeting of the Lake Mohonk Conference of the Friends of the Indians,” 1887, quoted in Americanizing the American Indians (Francis Paul Prucha ed., Lincoln: University of Nebraska Press, 1978) p.105.
As Minnesota citizens over the last century purchased lands in these original Chippewa reservations, and built homes and businesses, they did so without any expectation that tribal governments would have any role in regulating or taxing their land or activities. See generally Gaffey, 188 F.3d 1022. The settled expectations of all parties were that non-members and their activities on fee lands would be subject to the state and local governments who exercised regulatory and taxing authority, the very bodies politic that these non-members participated in through election and by holding office. See Cass County, 524 U.S. at 107-08. Indeed, the expectation under the General Allotment Act was that even tribal members would be subject to state taxation and regulation for their activities on any tribal member fee owned land on the original reservation. See id. As this Court has held, while the assimilation policy that created the General Allotment Act and its progeny were ended by the Indian Reorganization Act, Congress never sought to repudiate or undo the effects of the policy that had existed during those fifty years and which had so dramatically changed the face of Indian reservation lands. See County of Yakima, 502 U.S. at 254-56.
What is needed is an articulation by this Court of a bright line rule that eliminates any question regarding the scope of tribal regulation over non-member activities on fee lands. This Court in Brendale, while badly fractured in its three opinions regarding the scope of tribal zoning jurisdiction over non-member lands, agreed uncertainty would result from case by case determinations. Brendale, 492 U.S. at 430,448-49,460. Unfortunately, the failure of the Court in Brendale to reach a majority opinion resulted in that outcome. The Brendale plurality’s approach provides a bright line rule that would eliminate the litigation that continues to reach this Court on these issues.
“The governing principle is that the tribe has no authority itself, by way of tribal ordinance or actions in the tribal courts, to regulate the use of fee land.” Id. at 430 (J. White plurality opinion).
Amicus curiae PERM submits that the best way to bring certainty to the area of tribal taxation is to hold that Montana’s general rule applies, without exception, to the taxation of non-member activities on fee lands.
Unless a bright line is drawn, tribal governments and tribal courts will understandably continue to attempt to expand the extent and reach of tribal powers. By limiting tribal regulatory and taxation powers to activities that occur on tribal lands, this Court will accomplish three things: (1) a clear, bright line standard will avoid the uncertainty and cost of litigation for non-members and tribal governments; (2) deference will be accorded to the Congressional intent that resulted in fee lands being owned by non-members within the boundaries of original reservations, consistent with this Court’s decisions regarding the extent and reach of the powers of tribal government; and, (3) the rule will protect the fundamental rights, both civil and property, of non-members on their fee lands.
Unquestionably, many original Indian reservations in the United States represent some of the worst pockets of persistent poverty in the United States. As long as uncertainty exists regarding what rights non-members have on their fee owned lands, and how non-members may be impacted by the actions of tribal governments in which those non-members cannot participate, that uncertainty will continue to create divisions between tribal members and non-members, and discourage the economic development and investment that will benefit both tribal members and non-members. A non-member operating a resort on a Minnesota lake within an original Chippewa reservation will be hesitant to invest in that business and expand its operations if tribal governments can impose taxes on non-member activities. Having no voice in tribal government increases the fear and uncertainty. As long as uncertainty exists, investment dollars will flow to areas in which non-member business activities cannot be diminished or impacted by tribal regulation and taxation. The value of fee owned lands and businesses will diminish, employment opportunities will decline, tourism will be impacted, and both the fee land owner and his Indian neighbors will be negatively impacted. The vast majority of Indian people live away from their reservation homelands at least in part because of the lack of economic activity that can sustain them in those areas.
To avoid the uncertainty of the 10th Circuit’s Atkinson Trading standard, this Court must hold that Montana’s main rule applies to taxation. The 10th Circuit’s decision in Atkinson Trading finds an “implied” consensual relationship between the petitioner’s guests and the Tribe, based upon the guest’s acceptance of the privilege of remaining on the reservation. Nothing distorts the first Montana exception more than finding that a consensual relationship can be “implied.” The implied consent analysis fails to recognize that the activity being taxed is not occurring on tribal lands, but on fee lands. While the hotel guest is free to stay elsewhere, the 10th Circuit’s analysis in Atkinson Trading further fails to recognize that the non-member landowner has no “implied consent” choice because the business location is fixed. If the guests avoid “consent” and taxation by staying elsewhere, the fee owner is damaged by the business loss.
Furthermore, to find that there is “implied consent” really means that no consent at all is necessary, that no conscious decision is required to enter into a “consensual relationship” by commercial dealings, contracts, etc. with a tribe or its members. See Montana, 450 U.S. at 565-66. At a minimum, the first Montana exception requires an express decision to enter into a contractual or other consensual relationship. Moreover, the regulation or taxation must be limited to the scope of the consensual relationship. Otherwise, non-members conducting business on fee lands will be subject to claims of tribal regulation because they incidentally do a small amount of business with tribal members. State anti-discrimination laws prohibit a non-member from refusing to do business with tribal members, negating the “consent” factor. See e.g. Minnesota Human Rights Act, Minn. Stat. §363.01 et seq. As this Court made clear in Strate, the Montana exceptions must be narrowly read.
II. FEE LAND OWNERSHIP CONTROLS THE ISSUE OF TRIBAL TAXATION.
The 10th Circuit’s decision in Atkinson Trading downplays the critical importance that fee land ownership plays in determining the issue of tribal regulatory power. Fee land ownership is more than “one factor a court should consider in applying the Montana framework” (App. 16a) and analyzing this Court’s prior decisions concerning fee land ownership is more than “a coincidence of facts.” (App.15a.) When applying Buster v. Wright, 135 F.947 (8th Cir. 1905), to this analysis, the 10th Circuit in Atkinson Trading errs by relying upon the statement that “the governmental power of a nation is not limited to the occupants of the lands in its country which the nation itself owns, but extends to all the inhabitants of its territory.” (App.15a, citing Buster, 135 F. at 952). This approach fails to acknowledge this Court’s decisions that hold that Indian tribes have a unique status as “domestic dependent nations” which lack external sovereignty powers. See Bourland, 508 U.S. at 695; Strate, 520 U.S. at 445-46; Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1,17 (1832).
The facts in Buster could not differ more from the fee lands that were transferred in Atkinson Trading or other fee lands transferred by the General Allotment Act and its progeny. In Buster, the non-members obtained their deeds from the Creek Nation. In Atkinson Trading, the fee patent issued from the United States of America. Under the General Allotment Act and its progeny, whether tribal lands were ceded to the United States and then sold to non-members, or whether the lands passed from allotment and fee patent to a tribal member and then were sold to non-members, the fee patent originated from the United States. Conversely, it is incorrect to say that those fee lands remained within the “territory” and “jurisdiction” of the tribal government that had ceded them to the United States. “[T]reaty rights with respect to reservation lands must be read in light of the subsequent alienation of those lands.” Bourland, 508 U.S. at 697 (citing Montana). This Court in Bourland noted that a majority of the Court in Brendale agreed that fee lands owned by non-members on open portions of the reservation are not subject to tribal zoning. Bourland, 508 U.S. at 689,695. This led the Court in Bourland to recognize that after Montana tribal sovereignty over non-member fee lands is “not inherent and cannot survive without express Congressional delegation.” Bourland, 508 U.S. at 695, n.15. This analysis is a recognition by this Court of both the historical Congressional policy behind the General Allotment Act that led to fee lands on reservations being owned by non-members, as well as the fact that the Supreme Court’s decisions necessarily evolved in light of the impact of changing Congressional policies on fee alienated reservation lands.
The “platonic notions of sovereignty” that guided Chief Justice Marshall in Worcester v. Georgia, 31 U.S.(6 Pet.) 515 (1832), have lost their independent sway over time. See County of Yakima, 502 U.S. at 257. In 1993 this Court in Bourland recognized that Brendale stands for the proposition that an abrogated treaty right of unimpeded use and occupation by a band can no longer serve as the basis for the exercise of the lesser included power to regulate. The loss of the power to exclude carries with it the loss of tribal regulatory authority. See Bourland, 508 U.S. at 691, n.11. In 1997, this Court held that the “pathmaking case [Montana] concerning tribal civil authority over non-members” rests upon principles that support the “general proposition” advanced by Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). Strate, 520 U.S. at 445. Oliphant found that criminal jurisdiction by a tribe over non-Indians under retained tribal sovereignty was “inconsistent with [the tribe’s dependent] status.” 435 U.S. at 208,212. Put simply, to the extent that Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982), much less Buster, stood for a different proposition regarding tribal taxation authority over non-member activities on fee lands, evolving Supreme Court opinions have undermined the reasoning that supported those decisions.
Buster is distinguishable because the fee ownership was from a tribal patent, not a United States patent issued pursuant to the General Allotment Act. Merrion concerned a severance tax on oil and natural gas removed from tribal land and the Jicarilla Apache Tribe Reservation was “held entirely as tribal trust property.” “A tribe has no authority over a non-member until the non-member enters tribal lands .…” Merrion, 455 U.S. at 142. Compare Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1980). “The power to tax transactions occurring on trust lands and significantly involving a tribe or its members is a fundamental attribute of sovereignty which tribes retain unless divested of it by federal law or necessary implication of their dependent status.” Id. at 152. “[T]ribes retain considerable control over non-member conduct on Tribal land.” Strate, 520 U.S. at 454. Tribal land was described as “land belonging to the tribe or held by the United States in trust…” Id. at 454, n.8. There is simply no support for the 10th Circuit’s decision in Atkinson Trading that this Court’s decision in Merrion must be balanced against the Montana test in order to determine whether tribal taxation of non-member activities on fee lands is permissible. Merrion concerns taxation of non-member activities on tribal lands and is not inconsistent with Montana.
This Court’s decisions reflect an evolution necessitated by changes made to the foundation laid by Chief Justice Marshall in his Trilogy. Chief Justice Marshall was attempting to determine the scope of tribal powers and sovereignty in an area in which the Cherokee Nation was a distinct community, occupying its own exclusive territory, and where state laws had no force and the Cherokee had the right to exclude non-members. See Worcester, 31 U.S. at 561-63. Conversely, when a tribe loses exclusive control and jurisdiction, based upon fee land transfers to non-members by patents issued by the United States, the tribe also loses regulatory and taxation power over the activities of non-members on fee lands which are or were within the boundaries of a reservation.
III. FEE LAND OWNERSHIP IS A CRITICAL DISTINCTION BECAUSE OF THE FUNDAMENTAL RELATIONSHIP LAND OWNERSHIP BEARS TO INDIVIDUAL LIBERTIES AND RIGHTS.
“[T]he only dependable foundation of personal liberty is the personal economic security of private property.
The teaching of history is very certain on this point. It was in the mediaeval doctrine that to kings belong authority, but to private persons, property, that the way was discovered to limit the authority of the king and to promote the liberties of the subject. Private property was the original source of freedom. It is still its main bulwark. Where men have yielded without serious resistance to the tyranny of new dictators, it is because they have lacked property. They dared not resist because resistance meant destitution. . . .
So we must not expect to find in ordinary men the stuff of martyrs, and we must, therefore, secure their freedom by their normal motives. There is no surer way to give men the courage to be free than to insure them a competence upon which they can rely. Men cannot be made free by laws unless they are in fact free because no man can buy and no man can coerce them. That is why the Englishman’s belief that his home is his castle and that the king cannot enter it, like the Americans’ conviction that he must be able to look any man in the eye and tell him to go to hell, are the very essence of the free man’s way of life.”
Walter Lippmann, The Method of Freedom, pp. 100-102 (1934), cited in Loveladies Harbor, Inc. v. United States, 28 F.3d 1171,1175, n.8 (C.A. Fed. 1994).
If private property is the foundation of American freedom, as Lippmann argues, then the relationship between fee land ownership and regulation by a tribal government in which the fee owner cannot participate bears careful scrutiny. Tribal regulation of the activities of United States citizens on their fee owned lands cannot be reconciled with the fundamental rights of that citizen to be regulated only by a government in which the individual can participate by voting and by holding elective office.
The essence of the American representative system of government is that the people of the United States are the sovereign, and this Body Politic has the power to create the constitution that controls the sovereign powers and governmental powers delegated by the people to the federal government. See John R. Tucker, The Constitution of the United States: A Critical Discussion of its Genesis, Development, and Interpretation (Henry St. George Tucker ed., Fred B. Rothman & Co. 2000) (1899), Volume 1, p.62. The doctrine is stated by Justice Matthews in Yick Wo v. Hopkins as follows:
“Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of the government, sovereignty itself remains with the people, by whom and for whom all government exists and acts.”
118 U.S. 356,370 (1886).
This principle is recognized in the United States Constitution which begins “We the People … .” The just powers of government over its citizens are derived only from the consent of the governed, and that consent is conditional on the right of those citizens to participate in that government through the right of suffrage and by holding elective office. The Declaration of Independence, in paragraph 2, established this “self-evident” truth. This principle was reaffirmed by the United States Constitution and its Tenth Amendment.
These fundamental rights of United States citizens are violated when tribal governments regulate or tax the activities of non-members on their fee lands. The independence of the American Colonies from British control arose directly from their disenchantment with taxation without representation. There was a question whether tribal governments, at least prior to the Indian Civil Rights Act of 1968, 25 U.S.C. §1302 et seq., were limited by the amendments to the United States Constitution in the exercise of their sovereignty powers. See Talton v. Mayes, 163 U.S. 376,384 (1896) (holding 5th Amendment inapplicable.) There can be no question that United States citizens are protected by the United States Constitution and its Amendments on their own fee lands. To avoid these issues, the approach this Court has taken is to examine the source and extent of tribal power over non-members on fee lands.
As “domestic dependent nations,” tribal governments can exercise only internal sovereignty powers. The people of the United States cannot properly be made subject to inherent tribal regulatory power for their activities on fee owned lands. Put another way, the ultimate sovereign, the people of the United States, cannot be made subject to regulation by tribal governments which do not, and cannot by their nature, provide non-members the fundamental rights guaranteed to the people of the United States by the United States Constitution. Compare Oliphant, 435 U.S. at 210. Because the source of tribal authority over non-members is not inherent, Bourland, 508 U.S. at 695, n.15, and cannot be inherent because of the dependent status of tribes, tribal governments lack regulatory and taxation powers over the activities of non-members on fee owned lands. Any other conclusion denies non-member landowners “the political franchise of voting” which is the “fundamental political right . . . preservative of all rights.” Yick Wo, 118 U.S. at 570. While the federal government’s special relationship with the first Americans provides for their right of self-government and limited sovereignty as “domestic dependent nations,” tribal powers are internal only unless non-member activity occurs on tribal lands. Unquestionably, non-member fee owned land in which the patent originated from the United States is not tribal land. By protecting the rights of non-members who own fee lands on reservations, this Court affirms and protects the fundamental rights and private property rights of all Americans upon which our freedom depends.
For the reasons stated above, this Court must reverse the 10th Circuit’s decision in Atkinson Trading, and hold that taxation by Indian tribes of non-member activities occurring on fee lands is subject to Montana’s general rule and is therefore prohibited as inconsistent with the dependent status of the Navajo Nation.
January 11, 2001
STAPLETON, NOLAN, MacGREGOR & THOMPSON
By Randy V. Thompson
Attorneys for Amicus Curiae Proper Economic
Resource Management, Inc.
2300 Firstar Center
101 East Fifth Street
Saint Paul, MN 55101
Telephone No. 651-227-6661