TONASKET v. WASHINGTON
Argument of Slade Gorton
Chief Justice Warren E. Burger: We’ll resume arguments in 71-1031, you may proceed.
Mr. Slade Gorton: Mr. Chief Justice and may it please the Court.
This case involves the first assertion in this Court that an individual Indian citizen may engage in a private commercial venture literally, any private commercial venture in direct competition with other citizens of the state or for that matter even with other Indians so unfortunate as to have been declared competent or to have moved off the reservation with paying or collecting any of the excise taxes applicable to all such businesses on an equal basis conducted by other citizens of the state.
It involves a claim of a right literally to destroy those other competing businesses, a claim, which is asserted again by a citizen entitled by the Constitution to every right and privilege extended by the state to every other citizen.
The factual setting and which this claim arrives is this.
The Colville Reservation is not an isolated track in the State of Washington occupied only by Indians.
Nor for that matter are the amicus reservations.
They lie close Tacoma, to Olympia, to Seattle and the various other major metropolitan areas of the State of Washington.
Unknown Speaker: Now, those are the amicus, but where is the Colville?
Mr. Slade Gorton: The Colville is this very large one here.
The amicus are here, here, here and here.
Unknown Speaker: Any big cities near the Colville.
Mr. Slade Gorton: I am getting to the city, which is partly on the Colville reservation right now.
The Colville reservation under the 1970 census figures has 1,779 Indian inhabitants and 2,429 or 58% non-Indian inhabitants on the reservation.
This is a BIA map, the upper right hand corner shows the entire reservation, which is in yellow on the other map.
This section is the Northwest corner of the map.
The city of Omak, Washington incidentally both our briefs and the other briefs are in error in speaking of the city called East Omak.
There is simply in Washington a City of Omak, Washington, which lies on both sides of the Okanogan River, which is the boundary of the Colville reservation and roughly this portion of the reservation is inside the City of Omak.
The white areas on this map are allotted Indian lands.
The park outline in red is where the particular cigarette sales of Mr. Tonasket take place.
Green are tribal lands both white and green are therefore restricted in the terms that have been used here for the last two days.
The yellow lands are those lands on this part of the Indian reservation only, which have been patented and which are therefore subject to taxation.
Most of which have probably been sold to non-Indians, but even if they are still retained by Indians, those yellows lands on the reservation do not support the peculiar claims for their owners, which the appellant makes here for his land.
Which is still restricted as far as alienation and taxation is concerned.
This portion, which is the upper part of this Section (a), is in the City of Omak.
Some tribal land, some allotted land, a larger amount of patented land.
Unknown Speaker: How many cities?
Mr. Slade Gorton: Just over 4000 people and it is the largest city on the reservation -- the City of Okanogan, which is the county city has about half that number.
There are several other incorporated towns on or immediately adjacent to that reservation.
It’s not until you get to the amicus tribes that you get to the extremely large cities of the State of Washington or their immediate area.
Justice William O. Douglas: The yellow section doesn’t concern us here then?
Mr. Slade Gorton: The only section does not concern you here.
This is just that if we’re off the reservation.
The point, Mr. Justice Douglas is that on reservations in the State of Washington not just the Colville reservation.
This is a very typical pattern.
We’re not dealing with the situation the Navajos described yesterday where Indian country is simply [Voice Overlap]
Justice William O. Douglas: This – that is tough for the jury, I think because I happen to know that some reservation in Washington is not true.
Mr. Slade Gorton: There are maybe a few of the (Inaudible).
Justice William O. Douglas: But this one is the Yakima and they don’t have any such --
Mr. Slade Gorton: Oh!
Yes, they do Mr. Justice Douglas.
The City of Toppenish is entirely located within the exterior boundaries of the Yakima.
Justice William O. Douglas: Which are under lease in them -- the Indian tribal council?
Mr. Slade Gorton: Patented land.
Justice William O. Douglas: What made the town a Toppenish but not the land around it?
Mr. Slade Gorton: Much land on the Yakima Reservation has been patented.
Not the upper parts of the reservation in the rural areas.
Justice William O. Douglas: Just for the big California canners have their big crust of land.
Mr. Slade Gorton: Where the -- where Wapato and Toppenish of that area is mostly patented land.
Though, again there is a mixture as there is here.
There’s land retained by Indians even down there.
Moreover, there’s one other point, far from all of the Indians on the Colville -- in the Colville tribe live on the reservation.
The record in this case indicates that between half and three quarters of them leave off the reservation add to that number, those Indians living on patented lands on the reservation and it’s clear that the extraordinary privileges claimed by appellant are likely to be available only to a capriciously fortunate minority of Colville or other Indians.
And it’s this integration in these reservations, which gives rise to the importance of this case.
Indeed, I think to its very existence and presence before you.
It’s this integration, I believe, which accounts for the fact that until a last-ditch effort to show up appellant’s claim to tax exemption last spring.
The Federal Indian Trader Act was simply unused in the State of Washington except on two isolated coastal reservations.
They were all together.
They shop in the same store as whether they were Indian or non-Indians.
Now, the approach of Congress to Indian tax exemptions has been to set out post exemptions explicitly by statute.
Mr. Cohen’s Treaties are written for that Bureau of Indian Affairs, which was quoted here yesterday.
It says, “Indeed, such exemptions as apply to specific federal or state taxes on the income of Indians or on their property must be found then or derived from statutes and treaties or agreements with the Indian tribes.”
The approach of this Court for many years has been identical.
It has based successful exemption claims only on specific acts of Congress and not since the demise of implied governmental immunity 34 years ago in the Helvering case on general philosophical concepts.
Now, appellants first and chief claim to a statutory exemption is based on the Indian Trader Act and this Court’s decision in Warren Trading Post.
The exemption, which this Court found there was limited specifically and cautiously and by its expressed terms to sales by a license Indian trader to Indians, a class of sales of cigarettes which Washington statutes themselves exempt at the present time.
The Indian Trader Act, the First Section of which is 25 U.S.C. 261 speaks directly of sales to Indians.
In fact, should the sec -- should the Act be construed to apply to sales by Indians to non-Indians.
Section 262 and 264 clearly require each non-Indian purchaser to obtain an Indian trader’s license, to go and buy these cigarettes.
The absurdity of this result indicates the absurdity of appellant’s claim that he is exempted by the Indian Trader Act from a general non-discriminatory excise tax on his sales to non-Indians.
Unknown Speaker: General Gorton, I understood the opinion of the -- of your state Court to all of the taxes applicable whether the sales were to Indians or non-Indians.
Mr. Slade Gorton: I will certainly get to that what I consider to be a philosophical point because we will claim that Warren Trading Post is not applicable to the State of Washington because of PL 83-280.
The point I'm making now is that those cigarettes which we actually our attempting to tax.
I think that exemption may have come into existence since the -- this since is rather -- this case has gone a long time since it came into existence.
But the point that we’re arguing for here is solely the proposition of sales to non-Indians.
We are not now trying to impose a cigarette tax on Indians.
We would claim under PL 280 that we could if we wish, but we are not trying to do that now in this case.
Unknown Speaker: But your state court understood that the issue was involved sales to Indians or non-Indians?
Mr. Slade Gorton: I did not argue the case and the State Supreme Court.
I think Mr. Pirtle statement yesterday was right that the distinction was made in the Supreme Court argument.
It was not made by our State Supreme Court.
In any event, it’s conscious of our state statutes in the exemption which they provide not just for sales by red license Indian Traders, but simply sales to non-Indians by any Indians tribe or through any Indian tribe.
Unknown Speaker: Are you thinking account on the Washington law passed February of this year?
Mr. Slade Gorton: Yes, Your Honor I am.
To the contrary of the position of even the Solicitor of much less the appellants, that Act doesn’t -- was designed to close the cigarette tax loopholes against Indians.
The same legislature, which passed that statute, passed a conditional Appropriations Act of $8 million based on the usefulness of that Act in closing of these Indian cigarettes sales.
In October this year for example, the loss to the state from Indian cigarettes sales of taxes alone was -- cigarette taxes alone was well over $600,000.
That Act by its terms simply says that the state will no longer engage in useless Acts.
This Court has recognized -- the Court has recognized that a state can’t collect an excise tax from the purchaser after he has made a purchase and distribute it himself to his home.
An excise tax like this has got to be collected to the seller to be collected at all.
There was an error in fact in the argument yesterday about competing cigarette taxes.
Our tax is 16 cents, Oregon’s tax is 9 cents, Idaho’s tax is 9.1 cents, but this does mean that people will try to get away from taxes when they can.
That’s why these people are selling cigarettes.
What this --
Justice William O. Douglas: Are these separate law of this year as I understand, that allows sales to non-Indians of two cartons?
Mr. Slade Gorton: No sir, it does not.
It allows the possession by any one for use of two cartons of cigarettes.
Justice William O. Douglas: What does the cigarette exempt?
Mr. Slade Gorton: No sir, it does not exempt any sale.
It does not exempt any sale if there interpretation --
Justice William O. Douglas: Well, if the -- it releases the Indians from being the Indian seller from being a reporter or collector?
Mr. Slade Gorton: It does not Mr. Justice Douglas.
It says, solely and only that the possession of two cartons of cigarettes at a time is not subject to a tax.
It does not allow anyone to sell cigarettes even two cartons much less to posses 400 or 500.
It is design solely to prevent the theoretical application to allot to someone who buys two cartons of cigarettes.
Justice William O. Douglas: So the Solicitor General has misread the Act then?
Mr. Slade Gorton: It’s -- the Act is clear.
The Act -- that portion of the Act is absolutely clear that exemption applies only to possession and never to sale.
Not to the sale of a single cigarette and it’s like many --
Justice William O. Douglas: Possession by the seller -- Indian seller?
Mr. Slade Gorton: Possession by any purpose for purposes other than resale.
This what the statute says, if acquired and possessed for purposes other than resale 400 or less cigarettes at any single time.
Now, this appellant is out of that for two reasons.
First, of course he obviously has more than 400 cigarettes at the time, and secondly, he holds them for resale.
That’s what he’s doing, that’s with this case is all about.
Chief Justice Warren E. Burger: What is it in effect an exemption from a use tax that would otherwise [Voice Overlap]?
Mr. Slade Gorton: To the effect that the exemption from a use tax which we just couldn’t collect and which no state can collect.
This kind of exemption I'm sure exists in many state excise tax statutes where you don’t -- it’s impractical to try to make a criminal out of the purchaser.
You must collect these taxes from the seller or you can’t collect them at all.
Now, appellant’s next claim to a statutory exemption from these particular excise taxes is based on Section 6 of the General Allotment Act is applied by this Court in Squire versus Capoeman.
In that case, Chief Justice Warren stated that income from a timber sale from Mr. Capoeman’s allotment.
The sale over which he had no control was exempt from the federal tax on capital gains.
This Court found the sale to be the equivalent of a sale of the land itself.
The finding was obviously correct and equally obviously inapplicable here.
Timber can be cut from land such as Mr. Capoeman’s, literally once in a lifetime or less and the land that was found by the Court had little, if any additional value so that the proceeds of the timber sale constituted the only income in all probability, which the allotment would provide for Mr. Capoeman in his lifetime and amounted for his purposes were concern to a sale of the whole property.
He had control over neither the fact nor the timing of the sale.
Mr. Tonasket’s income here however is continuing.
It is neither based on the fruits of the land nor on its exhaustion.
It is simple business income.
Moreover, Mr. Capoeman’s tax exemption had no adverse effects on timber sales by non-exempt landowners.
Mr. Tonasket’s claim on the other hand, if upheld can and will destroy the businesses of competing sellers of cigarettes or of any other commodity, which Mr. Tonasket chooses to sell at retail.
Finally, it seems doubtful that Mr. Tonasket’s inevitable claim to a federal income tax exemption on the profits of his sales is likely to have much appeal to this Court.
Yet, it is the logical corollary of the extension of Squire versus Capoeman to a situation now before you, which was certainly not in the minds of the Court at the time that which that case was decided.
Appellant’s final statutory claim to exemption is based on Section 4 of PL 83-280 itself.
A statute designed to authorize the extension of state jurisdiction over Indian reservations.
The statute itself provides that it shall not “authorize the encumbrance or taxation of any real or personal property belonging to any Indian that is subject to a restriction against alienation imposed by the United States”.
First of course, that statute doesn’t grant any tax exemption.
It simply preserves those granted by other statutes from encroachment by the state.
Moreover, it like all of those other statutes except perhaps the Indian Trader Act deals solely with property taxation.
Nothing can be more clear from the decisions this Court and for that matter practically every other court in the land then the distinction between property and non-property taxes.
This Court in U.S. v. Detroit even allowed the taxation on the leasehold interest on federal lands leased to private persons.
The cigarette taxes and the sales taxes here in question are in no way property taxes.
In addition, these excise taxes have two distinguishing features not shared by inheritance taxes involved in the Oklahoma cases or for that matter even by net income taxes.
First of course, the ultimate burden of these taxes does not normally rest on the business charge with paying or collecting them.
They are passed on to the ultimate purchaser of the cigarettes or other items offered for sale by the retailer.
In fact, Mr. Justice Rehnquist, Washington State law requires that the sales tax be passed on.
It is not permitted to be absorbed by the retailer.
Second of course, appellant’s claim involves the right to destroy all of his competition in the sale of cigarettes.
Appellant asserts in his brief that the 3 cents tax by the Colville tribe on each pack if added to the state 16 cent tax will wipe out his ability to sell cigarettes.
How many cigarettes then will a competitor in the City of Omak without appellant’s claim the exemptions sale subject to a 16-cent tax in competition with appellant’s 3 cents?
For that matter, how many appliances can a non-Indian businessman in Omak sell on which he must charge of 5% sales tax in competition with appellant who claims the right to sell the same article free from taxes?
For that matter, referring back to one of yesterday’s cases, can a similar businessman in Seattle sells cigarettes or appliances in competition with an Indian seller for whom that BIA acquires property in Seattle under the claim of right asserted here yesterday by the appellant in Skelera (ph).
Please remember that this appellant is a citizen of the State of Washington entitled to the rights of every other citizen including police protection, schools, and every other state and local governmental service.
Nor is this a theoretical entitlement.
All state and local governmental services are actually extended to Indians by Washington State often that a per capital cost to the state in excess of that to the average of non-Indians.
In point of fact, we can at least asked the rhetorical question whether Congress could consistent with the Equal Protection Clause of the Constitution require us first in 1924 to have all Indians as citizens and then say that they should pay no taxes at all and this arises in these cases not an income tax cases or inheritance tax cases, which affect only the state.
But in this case which affects other citizens of the state and their ability to do business.
Now, at this point except in passing, I haven’t mentioned PL 83-280 for what I consider to be good reason.
I do not believe that it extended the jurisdiction of the state to impose cigarette sales taxes, cigarette taxes, and sales taxes in Colville reservation.
Because the state already had that right, but if there is any doubt about that jurisdiction, it is surely dispelled by PL 83-280.
And that statute is relevant in connection with the one point in this case and which the Solicitor General asserts the possession, sales of cigarettes to Indians which are tax-exempt under the doctrine of Warren Trading Post in the absence of PL 83-280.
Now, appellant has labored long in this murky legislative history of PL 83-280 without I submit producing a shred of evidence that it was intended to bar these taxes.
He asserts that the law does nothing more than to extend state court jurisdiction.
The statute help --
Justice William O. Douglas: Bring Governor Evans’ veto message, isn’t it.
It indicates that this law legitimatize uses the word individual possession of two cartons or less of other stomp cigarettes if held for personal use, thus legitimatizing to that extent non-Indian purchases from Indian seller?
Mr. Slade Gorton: Mr. Justice Douglas, Governor Evans is a good personal friend of mine, but he is not a lawyer and he is clearly in error in that statement.
That Indian cigarette tax statute is clear on its face and it just simply does not legitimize such sales and --
Justice William O. Douglas: Well apparently, this is not as clear as to the Solicitor General as you indicate nor the Governor Evans?
Mr. Slade Gorton: No, it is from reading that statute which is the place where one will normally go to determining its meaning.
Justice William O. Douglas: Well, I’ve just been reading it that it says, that the Indians are exempt if they have a permit from the state?
Mr. Slade Gorton: To sell to Indians, Your Honor.
If you will read the Titles 82, 24 and 28, this is what my answer was here.
This has been a case.
This was a case before 1972.
The 1972 Statute did not extend any right to sell by Indians to Indians which didn’t previously exist in our statute.
That was already there -- the 1972 Act added the provision in this particular respect not with the person, this is any person may acquire and to physically possess if acquired and declared and possessed for purposes other than resale “for purposes other than resale” 400 or less cigarettes in any single time without incurring tax liability and that was the only addition, which was made by the statute, which is relevant to this particular question.
Unknown Speaker: When was the statute passed?
Mr. Slade Gorton: In the 1972 Session of State Legislation.
Unknown Speaker: So this was after the decision of the Supreme Court?
Mr. Slade Gorton: Yes.
Unknown Speaker: Do you suppose that the Supreme Court would have any different view of this case, had there -- had it had the new statute before it?
Mr. Slade Gorton: No way, Your Honor.
As I say, there’s other legislative history of this Act, which indicates that the legislature felt that it was closing an $8 million per loophole by passing this Act in imposing the cigarette tax on the -- at the moment the cigarettes came in to the state and before even arrived on an Indian reservation.
Unknown Speaker: But let’s assume – let’s assume that the Act was construable.
You say it isn’t, let suppose that was construable to say that the Indians could sell some exempt sales and the Supreme Court of your state construed the Act that way.
Would it [Voice Overlap]?
Mr. Slade Gorton: That would be -- that would govern.
Unknown Speaker: Well, that was -- so there would have been a quite a different result in this case or not?
Mr. Slade Gorton: If it had, it is if you’re correct that my position is that it is not construable that’s clear on its face, but this --
Unknown Speaker: Attorney General, you have one view of it, but -- the Solicitor General and others have a different view of it.
Since your Supreme Court didn’t have it before it when it decided the case, why don’t we not send this back, vacate this judgment, send it back for reconsideration on light of the new statute?
Let your Supreme Court after all has finally decide it.
Then you won’t have to have this argument with the bench.
[Laughter] If you’re so correct.
Mr. Slade Gorton: Your Honor, we have --
Unknown Speaker: Governor Evans is surrounded by very talented lawyers, he doesn’t write these things in vacuole?
Mr. Slade Gorton: You’re asking me to testify in this particular case, Your Honor [Laughter].
Unknown Speaker: No, we’re just asking you to do what’s you’ve have been doing, argue it.
Mr. Slade Gorton: No.
Well, not when you ask me what Governor Evans was advised Your Honor.
[Laughter] My point in this particular case though, is that that is essentially a useless Act.
You have this case in all of its panoply before you.
Unknown Speaker: That’s what Mr. (Inaudible) has used.
To send it back would be useless?
Mr. Slade Gorton: Yes, because you will get an inevitable answer, Your Honor.
Unknown Speaker: Are you sure that Your Supreme Court’s going to construe the statute to a new view?
Mr. Slade Gorton: Edit the state taxing statute.
Now, if you feel in an excess of caution that you wish to do that, you nonetheless have the right and I believe this is the right time to construe [Voice Overlap].
Unknown Speaker: Well, why should we decide a federal question if this case goes away, if your Supreme Court construes your new statute, contrary to the way you look at it?
Mr. Slade Gorton: Well, I suppose my answer to that has to be that you are at least as capable of reading a statute as our State Supreme Court is and when we [Voice Overlap].
Unknown Speaker: We may be as capable but their view of the statute is what governs us.
We can’t construe it for ourselves.
Mr. Slade Gorton: Well, you have two other cases here in front of you which involved at least some of the same questions except for the effect of PL 83-280.
You were asked yesterday by appellant to send that back to our Supreme Court to determine whether it was correctly passed.
Our Supreme Court already ruled on that, so as our Federal District Court, so as our Ninth Circuit Court.
That too would be frivolous act.
Those cases are already in our –- cited in our briefs.
We have a case here on federal law, on federal questions, which is right then which is before you. On those federal questions and under which you don’t need to get to this.
This man by his complaint is engaged in this resale of cigarettes.
That’s a plain term, that’s what his business is -- the resale of cigarettes.
Forever, [Voice Overlap].
Unknown Speaker: And of course you would say -- you would say it.
Now, let’s assume you agreed for the moment that the statute was ambiguous.
Would you suggest then that we send it back or not?
Mr. Slade Gorton: If the state statute is ambiguous and if it controls your decision in the case, you would have to.
Unknown Speaker: So, it’s just of really comes down to a matter whether we agree with you that the statute is so clear on its face that any arguments that -- has to its meaning contrary to yours is frivolous?
Mr. Slade Gorton: I think that that is essential in the case, Your Honor.
As long as you decide that this case would be governed by a state statute even if that we’re construed the other way.
What if it was construed to allow someone to possess and resale two cartons of cigarettes, which is all they claim for.
Still we’re not dealing with a person here who buys and resale two cartons of cigarettes.
This is a big business.
Unknown Speaker: So you say that whatever the construction of the 72 Act whichever way it’s construed it wouldn’t control the outcome of this particular case?
Mr. Slade Gorton: It will not help Mr. Tonasket who is not a purchaser and seller of two cartons of cigarettes under any set of circumstances.
Unknown Speaker: Just awhile ago, I thought you said that it would made quite a difference if the statute have been before your State Supreme Court and the State Supreme Court took up the same view of the statute -- took a view of statute contrary to yours.
Mr. Slade Gorton: Well, there are many ways to I which they can take a contrary to mine, Your Honor.
They could say that a person may sell two cartons of cigarettes in an isolated sale without being subject to the statute.
That would be contrary to my view, but that wouldn’t help Mr. Tonasket.
He is a commercial seller of cigarettes.
He doesn’t buy two cartons of cigarettes and sell them to a particular friend and then go buy two more and sell them to a friend.
He is engaged in a commercial enterprise in competition with those --
Unknown Speaker: I know, but I thought the Solicitor General construed the statute to mean that a seller could sell two cartons to anyone person at anyone time?
Mr. Slade Gorton: The Solicitor General did, but the Solicitor General I will submit in this particular case totally misconstrued if the [Voice Overlap].
Unknown Speaker: Well, I know.
Now, we’re back to the same old thing.
How about your Governor, he construed at the same way, didn’t he?
Mr. Slade Gorton: No, he did not.
Unknown Speaker: He didn’t?
Mr. Slade Gorton: Unless, you can say for his construction was the one that we’ve -- I discussed here with Mr. Justice Rehnquist.
We have, yes and excuse me, the sales tax issue is still here with you.
The fact that the sales taxes applicable to these sales and that this particular claimant, claims the right to sell this article and other articles free from the state sales tax, which includes no such exemption in it.
So, in any event, you have that matter before you.
Chief Justice Warren E. Burger: When you say -- when argued that this case is governed by the federal statute and what we can really lay aside the state statute, were you addressing yourself to the said part of Section 280 that provides that the state has jurisdiction over everything that applies to all other people in the State of Washington?
Mr. Slade Gorton: Yes Your Honor, I was and it was in that connection that this so-called new legislative history was brought up and sent to us about 10 days ago.
And we on Monday, found something in the file, which we’re not supplied by the Solicitor General.
A letter from the Assistant Secretary to the Interior to the House Committee, the Original Bill in 1953 HR10-63 included only the language on jurisdiction over civil causes of action in this particular respect.
The Secretary suggested the language in which the Bill actually passed and said this that it was to extend to those reservations the substantive civil laws of the state in so far, as these laws are of general application to private persons or private property.
Anyone on the call for the preservation on Indian law were not inconsistent with applicable state laws to assure “the predominance of state authority”.
Now, can anyone seriously assert that the state excise tax laws are not substantive civil laws of general application?
To state that question is simply to answer it.
Chief Justice Warren E. Burger: In other words when they seek to have all the benefits of citizenship and the protection of the substantive law then they take with that the burden a tax except as Congress or the state expressly exempts?
Mr. Slade Gorton: Precisely and that is what Congress did Mr. Chief Justice in PL-280.
It accepted the property taxes on allotted lands, it accepted to a certain extent Indian laws where they want inconsistent with state law.
That’s why it was not a Termination Act.
The same Congress passed a group of termination acts.
They wiped out the Indian tribes as entities.
The existence of their reservations and property tax exemptions, this was not a Termination Act, but it was an Act which says that except where we have said specifically to the contrary, the state has all jurisdictions.
You just can’t get any clearer, actually it’s a --
Unknown Speaker: But what about income tax on farm income from allotted lands after that 280?
Mr. Slade Gorton: That would be an extension I think, not as great in the extension as this Squire versus Capoeman. Capoeman, I believe went off on the proposition, that you got this income only once in your lifetime?
Effectively cutting timber was not like farming.
Farming was -- [Voice Overlap]
Unknown Speaker: But arguably Squire would govern that?
Mr. Slade Gorton: Arguably, Squire would govern that case, but Squire certainly doesn’t govern this case.
This isn’t income from land.
Unknown Speaker: It’s from transactions.
Mr. Slade Gorton: It’s from transactions.
There’s no way that these taxes can be construed to be property taxes.
It is simply aren’t property taxes in any respect whatsoever and it is only property taxes or taxes which have construed to be property taxes of which this Court has ever exempted in the Indian farms except in Warren Trading which itself was based on a specific statute.
Chief Justice Warren E. Burger: Thank you Mr. Attorney General.
Mr. Pirtle, we will enlarge your time little bit because we have gone over with a lot of questions.
So, you may proceed.
Argument of Robert L. Pirtle
Mr. Robert L. Pirtle: Mr. Chief Justice and may it please the Court.
There were -- there are several points that do need answering here and I would take them in order.
First, I am not surprised that the Attorney General came up finally with the bootstrap argument.
That argument is the state provides services therefore it should have the ability to tax.
That’s a normative argument.
It has nothing to do with the statutory problem of acquiring jurisdiction for taxing.
Chief Justice Warren E. Burger: Then what does Section 280 mean when it says as to civil jurisdiction the states after they have gone under 280 will have jurisdiction over civil cases.
And to the same extents and this is the general part to the same extent that such state has jurisdiction over other several causes of action and those civil laws of such state that are of general application to private in persons and property?
Mr. Robert L. Pirtle: But Your Honor, the answer to that is twofold.
First, the language in there is not language of plenary grant such as you find in the Termination Acts, Klamath and Menominee.
It’s very concise and it’s restricted to private persons and private property.
Now, when you get to the cases and you can find this on page 7.
The cases are enumerated on the brief of NCAI.
You’ll find that civil law and criminal law are not the entire body of law.
There is an additional third class which is that law of the sort of interface between sovereignty and the citizen.
The sovereignty of the state government or the federal government and the citizen mostly it comes up in connection with cases of administrative proceedings.
But a tax power is a sovereign power.
In this case, we’re discussing the conflict between tribal tax power and state tax power.
That is not a law of governing private persons and private property to use that narrow language.
And the Attorney General failed to read to you from the last sentence in that letter from Ormie Louis which by the language with the published reports.
So, it’s nothing new.
He said, but with he said, this should make the state laws apply and to civil transactions among Indians.
Taxing power by either state or the tribe is not a civil transaction.
That clearly is outside the meaning of that narrow language and then he goes on to say, but with a minimum of interference with Indian control of Indian affairs.
Now, the Court might say to itself that language is rather broad perhaps, it’s overly broad if the Court feels it’s overly broad, the Court can restrict it.
And I suggest that the Court should restrict in accordance with the Court’s rule in the Holy Church case in which the church in New York imported a vicar from England for its preacher.
And they clearly violated a federal statute they said, you shall not import people from outside the country to take jobs for you.
And this Court said, when language can be extended beyond the meaning of the legislature, it must be restricted to the intent of the legislature.
When it says as specifically, here we don’t even have it specifically.
We have just broad language of civil law as true, but then it’s narrowed by those modifiers to private persons and private property.
Chief Justice Warren E. Burger: But you’ve indicated that perhaps, there might be some ambiguity in 280 in the passage that are I was reading.
But the Committee Report on that after some preliminaries about the efforts to draw all Indians into the total culture goes on to say that it extends to those reservations the substantive civil laws of the respective States.
Now, do you say that substantive civil laws do not include the tax statutes?
Mr. Robert L. Pirtle: Well, Your Honor you have to read that in context.
It says substantive civil laws of the States and it goes on to talk about civil transactions among Indians.
Chief Justice Warren E. Burger: Now, I want to read the rest of the sentence.
Substantive civil laws of the respective States in so far as those laws are general application to the private persons or private property?
Mr. Robert L. Pirtle: Yes, Your Honor.
Chief Justice Warren E. Burger: But now, isn’t the tax on sales?
Doesn’t that have something to do with private persons and private property?
Mr. Robert L. Pirtle: I think not.
I would say that that has to do with the sovereign ability of a state to tax.
The tax may fall on many areas of private property, transactions, excise, etcetera.
But I think that that language when you look at the entire statute, look at the entire legislative history, there’s no tax talk specifically tax talk except on that discussion in the sub-committee hearing.
And there it’s made very clear that Congress does not intend to any tax to be levied from the Indian people.
It was never discussed and clearly, the Congress first purpose in the 1968 Act would be frustrated if they were eluding on of state taxes prior to the consent by the Indian people to jurisdiction.
Now, I answer one additional argument Your Honors and that is -- this is the bootstrap argument.
The argument that the state provides services and therefore they should have the power to tax.
Unknown Speaker: Well, Section 2 (b) and 4 (b) as I read them cited that this Section which is the at new law 280 shall -- nothing in this Section shall authorize the taxation of any real or personal property of any Indian or Indian tribe.
Mr. Robert L. Pirtle: That’s true Your Honor and it also says, or regulation of the use of such property inconsistent with federal policies and statutes.
Chief Justice Warren E. Burger: But does that do any more than preserve the exemptions which Congress had already explicitly extended to Indian lands?
It’s a Saving Clause, isn’t it?
Mr. Robert L. Pirtle: I think it is Your Honor, but there are two points to be made here.
One is that the language of encumbrance -- this Court found on the Squire case to include also the federal income tax of problem.
And this Court ruled in the Rickert case that the General Allotment Act which required that there be no, at the end of the trust period, there’ll be no lien, there’ll be no prior debt which could attach to the property said.
That language in extends not only to the land, but to the horse, the plow and the barns on that building.
That’s the personal property needed to use the land.
Chief Justice Warren E. Burger: That’s what went way off from cigarettes, cartons of cigarettes, isn’t it?
Mr. Robert L. Pirtle: I think not Your Honor, because it take -- compare Mr. Tonasket with Squire.
Squire was lucky enough, fortunate enough not to have growing timber on his land.
Mr. Tonasket has nothing but grass.
Now, the Congress -- the purpose of Congress today is in the promulgating the Tobacco Ordinance of the Colville tribe for example is clearly that trust land be utilized in a modern way.
It is no part in expecting the Indian the poor Indian to be a farmer on his land in East Omak which is an Indian village.
When he has no timber on it and when the only really legitimate and sensible method of developing the land is some kind of a commercial enterprise.
Now, I would say additionally, Your Honors, that in the Kansas Indians case, this Court said specifically that conferring rights and privileges on the Indians cannot affect their situation which can only be changed by treaty stipulation or voluntary abandonment of their tribe and organization.
In the case which the Attorney General cited in his opinion as direct President Goody versus Smith, the Court the quotations there are from the In re. Heff case.
Those are the ones in which the Court had earlier said Mr. Justice Rutledge and in a not very well thought out opinion that the General Allotment Act which conferred citizenship and the right to vote and participate in Government also made people subject to taxation and this Court specifically overruled Heff in United States versus Nice in 1916.
So, the very foundation of the Goody versus Smith case has been overruled by this Court.
Chief Justice Warren E. Burger: I think your time is up now counsel.
Mr. Robert L. Pirtle: Thank you Your Honor.
Chief Justice Warren E. Burger: Thank you gentlemen.
The case is submitted.