MOE v. SALISH & KOOTENAI TRIBES

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Argument of Sam E. Haddon

Chief Justice Warren E. Burger: We will hear arguments next in 1656, the Moe against the Confederated Tribes in 75-50, a cross-appeal.

Mr. Haddon you may proceed when you are ready.

Mr. Sam E. Haddon: Mr. Chief Justice and may it please the Court.

The consolidated appeals arise out of final judgment of a three-judge court of the District of Montana in two companion cases.

Both actions were filed by the Confederated Tribes of the Flathead Reservation and certain individual tribal members against the State of Montana and certain of its public officials seeking in the so-called cigarette case to enjoin the state from requiring a cigarette dealer’s license tax for Indian retailers and to enjoin the pre-collection of state cigarette taxes on cigarettes which were sold by these Indian retail dealers.

The other case, the personal property tax sought to enjoin the state from the collection of personal property taxes on property owned by tribal members residing within the Flathead Reservation.

The three-judge court was convened under 28 U.S.C. 2284 and the Court by divided vote.

Judge Smith dissenting in both cases held that that the Montana Cigarette Tax, the excise tax on dealers and on the sale of cigarettes themselves were in part invalid and then final injunction was entered against the State of Montana prohibiting the State from requiring a cigarette dealers license tax of the dealers on the reservation, and also enjoining the State of Montana from collecting the tax on sales of cigarettes to Indians.

The Court in the cigarette tax case also ruled that the State of Montana could require the pre-collection of the tax on sales of cigarettes made to non-Indians.

In the personal property tax case, the collection of personal property taxes from individual Indian residents of the Flathead Reservation was enjoined.

The state by these consolidated appeals has appealed from the portion of the judgment in both cases which enjoins the collection on the one hand of the cigarette tax and on the other the personnel property tax.

Justice William H. Rehnquist: Mr. Haddon, let me ask you something about the Montana Personal Property Tax for licensing vehicles and perhaps I can best put the question by telling you what I understand to be the Virginia Law which is the jurisdiction.

I happen to live.

In Virginia, we pay a personal property tax on personal property including automobiles and then you pay an additional fee to license the vehicle to travel on the roads.

Is that the law in Montana or the two combined under one?

Mr. Sam E. Haddon: The tax is paid at one time, Mr. Justice Rehnquist but there is both a personal property tax on the vehicle itself and a separate fee for registration of the vehicle.

Unknown Speaker: Does the District Court enjoin the enforcement of the fee for the registration of the vehicle?

Mr. Sam E. Haddon: No, the District Court did not, the tribes and the individual members of the tribe who were acting as plaintiffs had indicated their willingness to pay the registration fee not the tax.

Unknown Speaker: And that fee is not an issue here?

Mr. Sam E. Haddon: That fee is not an issue, Your Honor.

Unknown Speaker: What is an issue in addition to the cigarette taxes, simply the personal property tax on the automobile, is that it?

Mr. Sam E. Haddon: Primarily upon automobiles but also other types of personal property, cattle, farm equipment, items of that sort which are classified under Montana Law as personal property.

These appeals raise the core issue to which this argument will be principally addressed of whether the immunity from state taxation in favor of Indian citizens on the Flathead Reservation are found by the District Court to be available and this additional immunity from state taxation which the tribes and their members seek with regard to sales of cigarettes to non-Indians.

Whether this immunity in its entirety in invalid and unconstitutional under the Due Process and Equal Protection concepts of the Fifth and Fourteenth Amendments.

The Flathead Reservation in Northwestern Montana and from which these cases arise is a unique geographical area.

And as an Indian Reservation and as a part of Montana it is unique.

In order to appreciate the factual concept, I would like to go in some detail to the facts which give rise to this case.

The Flathead Reservation is approximately 1,250,000 acres.

It comprises four parts of Montana Counties.

Polson, one of the county seats of Montana is located entirely within the confines of the reservation.

It was created by the Treaty of Hellgate in 1855 from lands which were a part of the then Washington Territory and which of course later became the State of Montana.

In 1904, Congress enacted legislation which opened the reservation for allotment to individual Indians and for sale of surplus un-allotted lands to non-Indians.

As a result of this opening of the reservation, something over 400,000 acres were sold to non-Indians.

An additional 60,000 acres was granted to the state of Montana for school purposes.

Other acreages were passed to religious institutions, to school and others.

So at the present time the mix on the reservation and so far as land ownership is concerned, is that over one-half of the land on the reservation is held in fee principally by non-Indian owners.

The balance of the reservation property something slightly less than one-half is held in part by individual Indians in trust title and in part of the tribes in tribal status.

The tribal lands as the record shows are being principally located and sparsely populated, foothill and mountain areas.

The Flathead reservation at the present time is a well-developed agricultural area.

It is an area with farms, ranches, communities scattered all over its inhabited parts.

It has an elaborate irrigation system which serves the farm and ranching communities and farming ranching areas which was created under congressional action in part and by use of state law and through use of the State Courts of the state of Montana.

And it is not and we think it is important, a place where Indian lives or Indians live alone or in isolation, they are scattered randomly throughout the reservation.

They live in integrated communities.

They participate in all of Indian or all of community activities and service.

Unknown Speaker: There is no question to put it, it does remain a reservation?

Mr. Sam E. Haddon: That is correct Mr. Justice.

There is no issue on this appeal as to the continuation of the status of the reservation.

There are approximately 18,000 people who live within the confines of this reservation.

Less than 20% of whom are classified as Indians.

The Indians themselves are ethnically mixed group of individuals.

Something over 4,000 are less than one-half Indian blood.

Some are small as 1/16 Indian blood.

Families themselves are mixed with one parent or one of the members of the family being an Indian or an enrolled tribal member, the other not being so.

In some instances, children of a particular family are in part tribal members and in part non-tribal members.

It remains however that the only way that one can claim status as an Indian is to be born as such within a requisite amount of Indian blood.

The Indian citizen on the Flathead Reservation participates in all facets of community life.

They vote.

They hold office.

They have access to the Court.

They attend schools provided by the State of Montana.

In short, they are totally integrated into the society of the area and they all participate in all aspects of citizen life of the State of Montana.

Unknown Speaker: Mr. Haddon, as to all this, there is not any dispute as there I think.

We know this background, I am anxious for you to get to the issues.

Mr. Sam E. Haddon: Sorry.

The tribes themselves lease land to the individual Indian plaintiffs where the smoke shops were erected and took action to file the instant case after the state of Montana attempted to preclude the sale of the cigarettes without tax stamps affixed.

The personal property tax suit was likewise instituted following refusal of the State of Montana to omit the Indian citizens from payment of the tax.

We suggest that the approach which is taken by the tribes and by the individual Indian citizens in this case seeks to draw what amounts to a line around a portion of the State of Montana.

And to say that if a particular individual citizen of the state is a member of a particular ethnic or racial groups that is an Indian and that if he resides within that area, then he must not pay taxes to the Sate of Montana.

Unknown Speaker: Who drew that line originally?

Mr. Sam E. Haddon: The line, of course Your Honor is the direct result of the establishment of the confines of the Flathead Indian Reservation by the treaty of Hellgate in1855.

Unknown Speaker: So it is not a new line, is it?

Mr. Sam E. Haddon: Indeed, it is not as it existed for over 100 years.

Our position is not with standing the existence of the Flathead Reservation is that this treatment of Indian citizens for tax purposes differently form other citizens of the State of Montana cannot be carried into practice without creating a conflict between the requirements of Equal Protection and Due Process under the Fifth and Fourteenth Amendment and the particular practice.

The practice as we see it allows the Indian citizen to have and to continue to receive all of the benefits of citizenship of the state and yet not be responsible for the fair share of burdens of that citizenship.

We suggest that this Court has already considered the question of benefits versus burdens or benefits and burdens as a part of role of citizenship in the Oklahoma Tax Commission case and the facts are not unlike the facts which are before the Court in this case and there the Court noted that tax exemptions were not to be granted by implication and that the tax which was sought to be imposed by the State of Oklahoma was valid.

We suggest that the reasoning and analysis found to be applicable in that case is equally applicable to the case at bar.

We suggest that constitutional issues aside that the facts of the Oklahoma Tax Commission case are better suited, are fit more precisely with the facts of the case at bar than under the facts in McClanahan.

In McClanahan there was little interaction between the Indian community and the non-Indian community.

The Navajos lived apart on a separate reservation.

There was by Williams versus Lee, no state responsibility toward those Indian citizens although the opinion of the Court in McClanahan indicates that there was some extension of state services and some state responsibilities toward those Indian residents of the Flathead, of the Navajo Reservation.

In McClanahan, there was no opening of the reservation to ownership of land by non-Indians and no general occupancy of that area by non-Indians.

Unknown Speaker: According to your arguments, Mr. Haddon, I take it that at least part of your argument is that you are asserting Fourteenth Amendment Claims are you or Fifth Amendment Claims, Equal Protection Claims on behalf of the non-Indian citizens of Montana?

Mr. Sam E. Haddon: That is correct Your Honor.

We believe that the matter is in fact two-fold.

That on the one hand --

Unknown Speaker: That is why you need basis for the state to collect the tax is it not?

Mr. Sam E. Haddon: I acknowledge that.

I am unaware of any case prior to this case in which this particular argument has been advanced.

We feel as was found by judge Smith in his dissent that if this program is carried into effect that it has the ultimate result of relieving one racial class of a burden of citizenship, namely taxation which we suggest is violative of the Fifth Amendment because it is mandated by the United States and that on the other hand imposes upon another class of citizens namely the non-Indian citizens of the state of Montana, an obligation to provide services to those who are exempt from the taxation.

Unknown Speaker: Mr. Haddon, let me interrupt you further.

Does an Indian vendor who has his place of business on a reservation have to purchase a Montana license to sell cigarettes?

Mr. Sam E. Haddon: The ruling of the District Court was that he did not.

There is a dealers license tax that is required of the State of Montana or by the State of Montana. One of the issues determined by the Lower Court was that that dealers license tax did not have to be paid by the individual Indian dealers.

Unknown Speaker: Is this separate and distinct from the tax on the cigarettes themselves?

Mr. Sam E. Haddon: It is a different kind of tax and is imposed upon a different individual, Your Honor?

Unknown Speaker: Is it at issue here?

Mr. Sam E. Haddon: Yes, it is.

Unknown Speaker: Next, is there any Montana statute that makes it a criminal offense for anyone to use a cigarette from an unstamped package?

Mr. Sam E. Haddon: It is a criminal offense to buy untaxed paid cigarettes.

I am unaware of a criminal offense directly related to the license tax itself with the dealer.

Unknown Speaker: Well then do you argue that the State of Montana has an interest, a distinct interest in preventing anyone from violating that statute namely the purchase of a non-stamp cigarette package?

Mr. Sam E. Haddon: We certainly do Your Honor and we feel that the decision of the District Court to the extent that it upheld the position of the State of Montana that the tax could be pre-collected from non-Indian purchasers is entirely valid because to rule to the contrary would have been an invitation for all of those non-Indian purchasers of cigarettes to violate the law.

Unknown Speaker: I guess I did not get that argument from your brief focusing on that state interest but you satisfied me now.

Alright.

Mr. Sam E. Haddon: Another factor of some importance in connection with this appeal while not directly related to the issue of constitutional Due Process and Equal Protection.

Is the application of the General Allotment Act to the Flathead Reservation?

Unknown Speaker: The Act of 1877?

Mr. Sam E. Haddon: Yes, the record shows that the Flathead Reservation was open for settlement.

I beg your pardon, opened for allotment of individual Indians in severalty under the provisions of the General allotment Act.

And that General Allotment Act by its specific terms recites that upon expiration of the Trust Patent Period, the individual Indian patentee is to be considered as a citizen of the state and to be entitled to all of the benefits of state citizenship and subject to the laws of the state.

Unknown Speaker: Now was that Act applicable to the Flathead Reservation in 1877?

Mr. Sam E. Haddon: No, it was not Your Honor.

Unknown Speaker: And is there any significance in the fact that did not become applicable until when?

1904?

Mr. Sam E. Haddon: 1904.

I think there is no significance other than the fact that reservation was not open for general allotment prior to 1904.

We suggest that the specific language of the General allotment Act is consistent with the position found by this Court in the Oklahoma Tax Commission Case.

That the burdens of citizenship go with the benefits of state citizenship and there are on the Flathead Reservation at this time, as the record will show, individual Indian citizens who received patents under the terms of the General Allotment Act.

And if this Court should uphold the position of the Lower Court we suggest that it creates a very anomalous situation that the General Allotment Act having been intended to protect the interest of the individual Indian patentee and having said that that Indian patentee is to be protected until such time as the patent trust expires.

That if that individual by the language of the Act to be subject to the laws of the state and no others are to be subject to the laws of the state then those who have not received patents are those who benefit from the decision of the Lower Court.

We suggest that the issue which we present here has not been presented in any case prior to this one.

The case of Morton versus Mancari which considered the particular and unique relationship of the members of recognized Indian Tribes in their employment with the Bureau of Indian Affairs does not, we think reads the issue before this Court.

We would point out that the Court in Morton versus Mancari was concerned about whether or not a general rule could be laid down that would apply a special kind of exemption for Indians in all matters of civil service employment and we think that sets the tone and pattern for the issue here.

That while that particular case was justifiable on its facts because of the unique relationship of the Federal Government to Indians through the Bureau of Indian Affairs that its concepts and precepts cannot be applied to the facts of the case at bar.

We feel that there is in reality, no true conflict between the general regulatory provisions of Article 1 Section 8 Clause 3 and the position which we assert here.

Congress remains, we suggest free to do whatever it deems necessary in carrying out it practices and policies with regard to Indian Citizens.

In particular, it can continue to control the disposition and use of Indian lands but the rights to which we speak rest on a different level and we think that no additional congressional action is necessary to make these rights operative as we feel they should be.

The rights if they exists, the state, we suggest do all that is necessary to carry those rights into implementation including exercise of whatever jurisdiction is necessary to ensure collection of the taxes.

Unknown Speaker: You are arguing both cigarettes and property?

Mr. Sam E. Haddon: Yes.

Justice Byron R. White: Now how about, assume an automobile was used solely on a reservation, never went off the reservation, solely on a property that had been an Indian Reservation for hundred years?

Mr. Sam E. Haddon: Our basic position Mr. Justice White is that it makes no difference whether the particular personal property is used on the reservation entirely --.

Justice Byron R. White: You figure out, you could put your personal property tax on property owned by soldiers on the military reservation.

Mr. Sam E. Haddon: We suggest that that is not the same proposition.

Justice Byron R. White: You say that that is different?

Mr. Sam E. Haddon: Yes.

We feel that the unique status of the military and the role that it plays is not the same as that of a citizen of this country who except for the fact that he is an Indian, is no different from any other citizens.

Unknown Speaker: So, your personal property tax could be applied to any personal property that an Indian owned even though he lived on the reservation.

Mr. Sam E. Haddon: Correct.

Unknown Speaker: And there is only.

Mr. Sam E. Haddon: Even though if it were use there only.

Unknown Speaker: I take that any authority to that effect you have cited in your brief.

Mr. Sam E. Haddon: We have cited all the authority that we have and we have no case specifically in point on that subject obviously.

We feel that the position that we assert here is that the case is more basic because of the considerations of Due Process and Equal Protection than any of the precedent hereto involved.

Unknown Speaker: You were permitted to have the Indians the collect the sales tax on sales on non-Indians?

Mr. Sam E. Haddon: That is correct and that is the subject --

Unknown Speaker: But not to on sales to Indians.

Mr. Sam E. Haddon: That is correct.

Unknown Speaker: And you could not make them get a license?

Mr. Sam E. Haddon: That is correct.

To elaborate very briefly on one of the questions that you ask Mr. Justice White, one of the problems as we view it in this case is that the Court ruled in the cigarette tax case that the State of Montana could not collect the tax from anyone who was classified as an Indian.

That term remains undefined.

Unknown Speaker: Mr. Haddon, do you think the Court rule that Montana not only could not put the personal property tax on an automobile but could not put it on the automobile even though it was used of the reservation?

Mr. Sam E. Haddon: That is the effect as we read the Lower Court’s decision.

Unknown Speaker: So you think the Court has already decided that Montana may not say to the Indians if you want to use your automobile off the reservation you must pay that?

Mr. Sam E. Haddon: That is our understanding of the Lower Courts decision.

It is one of the matters specifically to which Judge Smith's dissenting opinion is addressed.

Justice John Paul Stevens: Mr. Haddon, if your argument is valid about the discrimination aspects, I take it the same argument would apply to a reservation which had 100% Indian population and also full-bloodied Indians?

I am just wondering if there is really anything.

I do not quite understand the relevance of your initial description of the unique character of this reservation.

How does that relate to the argument you are making?

Mr. Sam E. Haddon: Like, all advocates, perhaps Mr. Justice Stevens we like to have a position to fall back to.

Our basic position is that it makes no difference, if a citizen is a citizen it makes no difference what his race is nor where he lives he has the same obligations as any other citizen.

Justice John Paul Stevens: To the position to which you are falling back that is what I like to know?

Mr. Sam E. Haddon: The position to which we fall back is that if the Court should deem it appropriate to accept that interpretation of the law, that we have in this particular case, a unique set of factual circumstances akin to the Oklahoma tax commission case which dictate the application of the rule of that case rather than the application the rule of McClanahan.

Unknown Speaker: The rule being what?

Maybe you better state it for me.

I am not as familiar with the case I should be.

Mr. Sam E. Haddon: As I read the rule of McClanahan --

Unknown Speaker: Now what is the rule of the case in which you rely?

Mr. Sam E. Haddon: That the individual Indian citizen residents of the State of Oklahoma where subject to in that instance an inheritance tax imposed by the State of Oklahoma.

The Court being concerned with and pointing to the fact that they were essentially amalgamated into the Oklahoma Society and were citizens in all respects of the State of Oklahoma.

That being distinguishable from the situation in McClanahan where the Court points out that the individual Navajo resident of the Navajo Reservation lives largely a part and without influence by our responsibility to or from the State of Arizona.

Chief Justice Warren E. Burger: No time if you hope to save that in fact I think you have used it up.

Mr. Sam E. Haddon: Thank you very much.

Argument of Richard A. Baenen

Mr. Richard A. Baenen: Mr. Chief Justice and may it please the Court.

I think perhaps we can approach this argument by noting one or two matters at the outset.

The 1970 census prepared by the Department of Congress shows that there are 115 Reservations in the United States which are recognized by the secretary of the Interior pursuant to the Congressional authority contained in the Indian re-organization or Wheeler-Howard Act as it is properly known.

In addition, that in fiscal 1975, the United States spent through federal appropriations $766 million in pursuant to its Federal Policy on Indians and Indian affair.

In 1790, the United States enacted its first statute with 18 Indians, the Indian Non-Intercourse Act.

The United States has been imminently involved in Indian affairs from then down to this date.

We have under Flathead Reservation a situation whereby virtue of the historical development and certain Congressional activities an integrated reservation.

We do not have and the counsel for the state has been unable to point to a single case or a single legal ruling or a single Federal statute which would say the Flathead Reservation and the question of State Jurisdiction as it applies to Indians on that reservation is any different than in the cases involving the Navajo Reservation such as McClanahan, the Navajo reservation such as Williams v. Lee, the Flathead Reservation or excuse me, the Blackfoot Reservation such a find in Kennerly.

Unknown Speaker: (Inaudible) disposes of all these issues?

Mr. Richard A. Baenen: In our view, the McClanahan case and the cases that preceded it Williams v. Lee, Warren Trading Post, Kennerly, Mescalero Apache disposed off this issue with the exception for the one decision by the Court below holding that the State of Montana could force tribal members residing on the reservation to pre-collect the personal property tax that is owed by the non-Indian purchaser when he purchases from a tribal smoke shop as they are called. We do not believe and we believe that McClanahan v. Arizona settled that question that the state cannot force a tribal member to collect a cigarette tax owed by a non-member and for which a non-member is guilty of a state violation should he purchase and have in his property or in his possession such a cigarette tax and the state of Montana has criminal jurisdiction over that non-Indian should he violate the State Law.

Unknown Speaker: Do we have an issue similar to that in the Tonasket case three or four terms ago that we remanded to the State of Washington Court.

Mr. Richard A. Baenen: You did Your Honor.

In the Tonasket case, the issue relate to the question of pre-collection from non-Indians.

You remanded the case to the Supreme Court of the State of Washington for reconsideration of its decision which held that the state could force the Indian salesman to collect the tax from the non-Indian purchaser in light of a Washington Enactment which was passed by the Washington and legislature after the state or Supreme Court decision which held that non-Indians could possess two cartons at any one time of unstamped cigarettes and there would not be violation of the Washington Law.

The Supreme Court of Washington upon remand from this Court determined that the pre-collection requirement did not violate the constitutional statutory rights of the Indians on the call of reservation.

This Court did not review the case on the grounds that there was want of a substantial Federal question.

Five months later the State of Washington revoked the law by which non-Indians could possess two cartons of unstamped cigarettes.

That is a present status as it relates to Washington.

Unknown Speaker: So, if I understood you correctly, the Law of Washington now is the same as the Law of Montana now?

Mr. Richard A. Baenen: The Law of Washington is the same as the three-judge Court below.

That is correct.

The Law in --

Unknown Speaker: The state may collect from Indian sellers the prepayment of taxes on cigarettes sold to non-Indian buyers, is that it?

Mr. Richard A. Baenen: Well we get into a very difficult and sticky wicket here.

The three-judge Court below said that the state may force that the Indian must collect the cigarette tax, the sales tax and admitted however that how this would be implemented, how it would be carried out since the state does not have jurisdiction over the tribal members who are effectuating the sale.

They recognize that this will be an extremely difficult problem.

They suggested in their order that they assumed this Court would perhaps review its decision and that based upon whatever guidance it might receive from this Court assuming that it was not reversed, that we would try to work out some type of a procedure.

We submit that the question was raised in McClanahan and the state had no answer when the question was asked as to how the state could allege and assert that its income taxes are enforceable against Mrs. McClanahan for income earned while residing on the reservation when the state conceded that it had no jurisdiction over her to compel the collection of that tax.

Unknown Speaker: How is it done in of State of Washington in the wake of the Tonasket litigation?

Mr. Richard A. Baenen: I have no knowledge Your Honor; I cannot answer your question.

I do not know.

Unknown Speaker: That is the law there.

Mr. Richard A. Baenen: That is the law, I understand however that there is a case pending in the Ninth Circuit which involves that issue and I understand further that the Ninth Circuit had stayed consideration of the particular issue until upon granting of jurisdiction in this case.

The Ninth Circuit State and the determination until this Court should speak in this case.

That is the preset status.

We do not believe that the Court need go beyond McClanahan and the cases cited as supported of it to affirm the decision of the Court below as it relates to the inapplicability of the cigarette licensing and the cigarette sales tax on Indians as far as transactions are concerned under the reservation nor the reverse the Court below on the requirement that an Indian telling the non-Indians on that reservation must pre-collect in turnover of the tax to the state.

Justice William H. Rehnquist: Mr. Baenen, are you going to devote some part of your oral argument to the Anti-Injunction Act?

Mr. Richard A. Baenen: Most certainly, if the Court would please.

Justice William H. Rehnquist: I would like to ask you a question such time as you get to it.

Your opposing counsel did not devote any of his oral argument and you are certainly not obligated.

Mr. Richard A. Baenen: Fine.

Your Honor, I am happy to entertain a question because we believe that McClanahan supports our position down the line and I do not believe that anything is gained by me reasserting that so if you --

Justice William H. Rehnquist: McClanahan came up on the Supreme Court of Arizona.

Mr. Richard A. Baenen: Correct.

Justice William H. Rehnquist: So you do not have any problem with the Anti-Injunction Act in McClanahan?

Mr. Richard A. Baenen: Correct.

Justice William H. Rehnquist: So how does McClanahan bear one way or the other on the anti-injunction?

Mr. Richard A. Baenen: I am sorry Your Honor.

I was not trying to answer your question on the Anti-Injunction Act by citing McClanahan.

I meant on the merits.

Justice William H. Rehnquist: On the merits.

Mr. Richard A. Baenen: Correct.

Unknown Speaker: It is before then you leave the merits to move on to my brother Rehnquist’s interest in the Anti-Injunction Act.

McClanahan and no other case in this Court so far as I know and you tell me if I am mistaken I may well be considered this constitutional argument, did it?

Mr. Richard A. Baenen: To my knowledge --

Unknown Speaker: This Equal Protection argument is what I am talking about?

Mr. Richard A. Baenen: Not addressed as an argument as certainly a number of the decision of this Court in which treaty rights have been vindicated by Indians by implication carry with it the fact that they will be treated in a way different from the way that non-Indians are treated.

I think for example, and what we call Puyallup 2, the second fishing case where in a concurring opinions it was pointed out that state money derived from the sale of fishing licenses was used in part to replenish the stock that was involved in the fishing case.

There is implicit recognition there.

We have, for example in the Mazurie case where the state is precluded and a non-Indian on free land is precluded from having a business under state law relation to the dispensation of liquor within an Indian Reservation.

He is treated differently than somebody outside the reservation.

There are, in almost every case I believe these implications to be found but you are correct.

It has not been raised and addressed as such which explains of course the paucity of citations by the state parties.

Unknown Speaker: We had the case last term I cannot think, the style for the moment or even the precise issue in which Justice Blackmun wrote the opinion for the Court involving a claim that a preferential hiring policy for Indians on reservations violated both the constitution and their statute.

Mr. Richard A. Baenen: Right, Your Honor that was Morton v. Mancari.

Unknown Speaker: That is the case we have just been discussing.

Mr. Richard A. Baenen: Correct and also cited on his brief.

Chief Justice Warren E. Burger: The claim is one that can be raised by the state of should be raise by someone who claims that he or she is being denied Equal Protection?

Mr. Richard A. Baenen: Your Honor we debated within our own offices to whether or not we should raised that as an issue before the Court.

We concluded that the state as the tax gathering body perhaps could stand in the position of tax payers to raise it.

We do believe that it is an open question but we did not challenge it.

I assume that --

Unknown Speaker: The source of the Indian immunity is?

Mr. Richard A. Baenen: It is a jurisdictional source Your Honor based upon the fact that Congress historically has exercised jurisdiction pursuant to its authority granted by Article 2 Clause 8 Section 3 of the Constitution.

Unknown Speaker: I take it, you decided to concede whatever authority the United States had with respect to Indians whether it is rests on the constitution or in the statute ought to be exercised consistent with the Fifth Amendment?

Mr. Richard A. Baenen: Certainly any authority that the United States has in terms of Indian affairs has to be exercised consistently with other constitutional provisions just as the authority has to raise and maintain armies must be exercised consistently with other statutory --

Justice William H. Rehnquist: So, you did not raise the issue, about whether the state could raise this question of Equal Protection?

Mr. Richard A. Baenen: We did not raise it Your Honor.

The Court below raised it sue sponte by Judge Smith writing for a dissent.

We believe frankly that state parties are entitled to a hearing on it.

Mr. Justice Rehnquist --

Chief Justice Warren E. Burger: If there is any other questions but if you wanted to get back to Montana tonight and could finish in five minutes.

We will leave it to you and to the other questions.

Mr. Richard A. Baenen: Your Honor, I can easily finish in five minutes.

Chief Justice Warren E. Burger: If I will let you.[Laughter]

Mr. Richard A. Baenen: If permitted.

Unknown Speaker: I have just one question Mr. Baenen.

I will cooperate in every way with the seemingly consensual desire of everybody to get you back to Montana.

Mr. Richard A. Baenen: That is alright Your Honor, I live here.

Unknown Speaker: Oh! That is good that you live here.

Mr. Richard A. Baenen: It is my brethren that I worry about.

Unknown Speaker: Is there any doubt that United States could have brought an action on behalf of the Indian tribes seeking this same sort of relief in its own Courts?

Mr. Richard A. Baenen: There is no doubt in my mind.

It is our opinion that the United States not only could have brought the lawsuit but that if the Court should determine that Section 1341 was at bar to the Court hearing the cases down below.

In light of what has transpired we believe the United States in fulfilling its trust obligation to these Indians will have to turn around and file the identical lawsuit.

Unknown Speaker: But that cuts both ways I suppose, because clearly the Indian rights could have been vindicated by the United States and then there will be no question of the applicability of Anti-Injunction Act.

When the tribe itself sues, it may not be suing with all the matter that is brought at least with respect to the Anti-Injunction Act when the suit is brought by the United States?

Mr. Richard A. Baenen: That is a distinct possibility.

Certainly, if we go back and take a look at the cases that have interpreted the Anti-Injunction Act which have canvassed the reason for the enactment of the same and pay particular attention to say the Livingston) case where the United States was joined in a lawsuit in which the DuPont Demours Company was involved.

The Lower Court had no problem in entertaining the suit with both parties made no effort to say that the DuPont Demours could not be present and this Court affirmed albeit not with opinion.

However, that case, I think stands for strong precedent that the tribes particularly operating pursuant to 28 U.S.C. Section 1362 of the legislative history of which shows Congress was very intent because it recognizes the United States as trustee has insufficient resources in terms of personnel and finances to bring all of the lawsuit it ought to bring to vindicate Indian tribal rights allowed Indian tribes if recognized by the Secretary of the Interior to file a lawsuit that the United States could have filed.

Unknown Speaker: In 1362 also?

Mr. Richard A. Baenen: Yes, 1362 was a very --

Unknown Speaker: This is providing a specific statutory exception to the Anti-Injunction Act?

Mr. Richard A. Baenen: No Sir, I believe that you have to read Section 1362 in context with the decisions of this Court such as Oneida dealing with the scope and thrust of the jurisdiction that Congress intended to give the Indian Tribe.

We have --

Unknown Speaker: 1962 was enacted when?

In 1966, was it not?

Mr. Richard A. Baenen: 66 or 68.

Unknown Speaker: Certainly, long after the Anti-Injunction Act was on the books.

Mr. Richard A. Baenen: Correct.

I believe it has to be construed.

I believe it is an imperative construction of several statutes and we have to take into new account some of the judicial decisions that were on the books at that time This court has dealt in the case of case, the first name of which I can never pronounce, Quaffabidity (ph) holding that an individual Indian can bring a suit because very often, The United States does not want to because of a conflict of interest or does not have time.

And we think that the 1968 jurisdictional grant under 1362 should be construed as fitting in to the exceptions that we find affirmed by Lower Courts and this Court in Livingston as it relates to the Anti-Injunction Act.

Thank You.

Chief Justice Warren E. Burger: Thank you gentlemen.

This case is submitted.