BRYAN v. ITASCA COUNTY
Legal provision: 28 U.S.C. 1360
Argument of Bernard P. Becker
Chief Justice Warren E. Burger: We will hear arguments next in 75-5027, Bryan against the Itasca County, Minnesota.
Mr. Becker, you may proceed when you are ready.
Mr. Bernard P. Becker: Mr. Chief Justice and may it please the Court.
This case is here on a writ of certiorari to the Minnesota Supreme Court.
The Court sustained the lower court decision, imposing and granting of judgment for a tax on a mobile home owned by an Indian, which is placed on trust land.
The case originated in 1972 in the County Court, District Court in the Northern part of the Leech Lake Reservation.
When the County assessed certain taxes, which are referred to in state law as mobile home tax or personal property taxes on this mobile home owned by Mr. Bryan who is an enrolled member of the tribe, lives with his family in this house trailer at Sequoia Lake on the reservation.
He has an assignment of Tribal Trust land from the Tribe which he uses as his home plot upon which that trailer rests.
It is hooked to water sewer and electricity.
The District Court held that Public Law 280, authorized Minnesota to place and impose a tax on this kind of property, a mobile home used by an Indian as his home.
The Minnesota Supreme Court sustained that reading of the statute and concluded that the Congress changed the authority that had heretofore been denied to the states and allow the states to impose their tax laws, including a Tax Law, which permitted the Counties to collect the tax on this Indian’s mobile home.
The statute involved here is commonly known as Public Law 280 and if the Court please, I would refer to it as Public Law 280 throughout.
It has become the jargon of the trade so to speak.
The citations are in the briefs.
It was passed in 1953.
Prior to that time and as confirmed by this Court as late as 1973, states, absence on express authorization from Congress, had no authority to impose their tax laws within the boundaries of an Indian reservation on an Indian member of the tribe, we are not discussing non-Indians.
In 1953, due, as the legislative history indicates to a large measure, a breakdown on some reservations of law and order and in effect to Tribal Court Justice System, the Congress passed Public Law 280.
Public Law 280 provided that criminal offenses committed by or against Indians within the Indian country in certain specified states, along which was Minnesota, accepting the Red Lake reservation, would be prosecutable in state courts.
On the civil side, as long as courts of the states were effectuating some order, hopefully and justice on the criminal side the legislation included a provision for causes of action, involving Indians which had heretofore been outside of the boundaries of state court Jurisdiction to be subject to adjudication in the state trial courts.
The language of the statute, we think is of critical importance.
The language of statute, it is 28 U.S.C. 1360 is the codification of the statute, after the clause, indicating which states would mandatorily be subject to its term sets, “Following states shall have jurisdiction over civil causes of action between Indians or to which Indians are parties, which arise in the areas of Indian countries listed” and then the statute goes on, “And those civil laws of such state or territory that are of general applications to private persons or private property shall have the same force and effect within such Indian Country as they had elsewhere in the state.”
Now, that is the A-part of the statutes.
C, we believe has to be read in conjunction with A.
We -- our position very quickly is, that this is a cause of action, this is a lawyer’s statute.
Nobody uses words causes of action in general forums because somebody is going to say laws or applicability, you are subject to that law and nobody says you shall have a cause of action and what it shall be.
It is just not the kind of language most people would use unless they happen to be trained in the law or mis-trained or whatever.
But the C-section, I think nails down that cause of action reading of Section A and that is the last line.
It reaffirms the idea that the Tribal Governments will continue to have authority to promulgate Ordinances and Regulations and Customs which will govern their members in their daily lives as Indians on the reservation.
The last --
Justice Byron R. White: Well, what kind of civil law of the state have general applicability under law?
Does not 280 make that applicable on an Indian reservation?
Mr. Bernard P. Becker: State law of General applicability in connection with causes of action, yes and the question is what kind of laws are those?
Our position is --
Justice Byron R. White: That -- I know you tie the civil laws to a causes of action?
But the -- (Voice overlap)
Mr. Bernard P. Becker: I think that is the only way to read, otherwise --
Justice Byron R. White: Well, I know used to -- I know you do, but -- but it just says, and those civil laws of such state or territory that are of general application to private persons or private properties shall have the same force and effect.
Mr. Bernard P. Becker: Well, I think if you look at the C-section, Your Honor, it says and the Indian law shall be given full force and effect in the determination of civil causes of action pursuant to this Section and I think that --
Justice William H. Rehnquist: (Inaudible) is not inconsistent with any applicable civil law of the state?
Mr. Bernard P. Becker: That is correct, but the point I wanted to make is that determination.
That determination again is a word of adjudication.
It is a word that lawyers use for adjudging, you know, disputes between individuals.
The argument that civil laws of general application here means all laws, irrespective, negates the whole idea of causes of civil -- of cause of action as being an adjudicatory --
Justice William H. Rehnquist: If I live in Itasca County and do not pay my taxes, does not either that county or the state have a cause of action against me for failure to pay the taxes?
Mr. Bernard P. Becker: That is correct, but it would have what we would call, they would bring us -- they could bring a civil action against you for to foreclose on any property or in some cases depending on the tax where judgment for those taxes is correct and that is a cause of action.
But I think you misread -- this statute if you read it as a termination statute because that is the way that is comes out.
Civil cause of action is a peculiar word.
You are reading it Mr. Justice Rehnquist, I think as termination acts have been read, that is all laws, civil and criminal shall be applicable.
Our reading of this is and we think consistent with the legislative history is that this statute talks about making a forum for adjudicating disputes between Indians and non-Indians available on the reservation where they had heretofore been unavailable.
Once that decision to afford a forum has been made, the problem arises what kind of law is applied in that forum?
What are the rules or decisions?
Justice William H. Rehnquist: Subsection (b) then, which purports to be an exemption from a much more general type of authority I think that you are talking about?
Mr. Bernard P. Becker: We read subsection (b) very differently and I think that that is the mistake that the Minnesota Supreme Court has made.
The Minnesota Supreme Court argues A, it means everything goes and B says this does not go and we do not think that that is a proper reading.
B, in our view is there for one purpose.
It is there in the criminal sections and the civil sections.
It is there for the purpose of assuring the Indians that there would be no change in the Federal Trust Relationship and the Federal Trust Responsibility and the fact that that trust property taxes are referred to is part of that attempt by Congress to assure the Indians that this would work no change --
Justice William H. Rehnquist: But you said a moment of ago this was a lawyer’s statute, that was drafted by lawyers and presumably using legal language rather than just language of general applicability.
Now, certainly a lawyer would read subsection (b) as carving out a portion of authority that is otherwise delegated, would he not?
Mr. Bernard P. Becker: Not necessarily.
I think you -- that that is the simple way to read it, but I think we are reading this against the background of Indian Legislation in which prior to this time, there had been no authority at all.
Justice Byron R. White: You want to make it -- you give the Indians some insurance, you would say, nothing in this Section shall authorize any taxes on Indians or their property.
Mr. Bernard P. Becker: Well, that is certainly would be one way of doing --
Justice Byron R. White: I do not want be complicated about it, but in talking about trust property, you just give the broad exemption, which is what you are arguing for anyway?
Mr. Bernard P. Becker: Well, is that -- we argued that that is the proper reading of the statute, Your Honor, but I think that the words causes of action combined with civil laws of general applicability to indicate to us that it is an adjudicatory section, but at worst or at best if you will, it is an ambiguous statute.
Certainly, it is not easy to figure out exactly what it means and I think the legislative history nails down that taxes were not intended to be authorized by the A portion or any other part of the statute.
The legislative history is clear that this is a law and order statute.
The legislative history is clear that those states that were possibly coming under the terms of the statute because it was going to be at that time in 1953, a consent feature, a number of them, Nevada for example, refused to come in.
They refused to come in because they would not have been able to recoup what they felt was their cost through taxation and not just taxation on trust properties.
There is discussions in the legislative history about taxation on sales and where they take place on and off the reservation and discussion of income taxes and corporate taxes and other kinds of taxes.
And it is -- if anything is clear from the language in the legislative history on the discussions is that nobody conceives this statute as changing in one-eye order, the tax status of Indian reservations.
I might add that nobody was also sure what the tax status was of Indian Reservations until 1973.
So in a sense, that is an additional nail to the idea that that Congress was not sitting there, trying to figure out which taxes are we going to authorize, which are we not going to authorize.
The legislative history read in total, seems to us to says we are not doing anything with regard to taxes on this and B is in there, we want to assure you that the trust relationship is not changing.
Remember, in a sense this statute was not imposed upon the Indians.
The Indians came looking for the statute.
The Government indicates the Indians agreed.
It was not a matter of the Government saying, we are going to terminate you.
We are going to impose these alien courts on you.
There was agreement.
Those reservations that did not agree, that felt that they had adequate law and order situations, that felt they had an adequately sophisticated Tribal Government, the Red Lake Reservation, the Warm Spring Reservation in Ohio, the Menomonee Reservation in Wisconsin, they were exempted without any difficulty.
Nobody fought about it, nobody argued about it.
It is not a matter of them arguing, well, we want to be outside of the scope of taxes.
I think it is relatively clear from the legislative history that taxes were not to be included.
Agreed, the choice of language, you know, is not, but not the easiest of -- for resolution of problems that could arise.
I do not -- we do not deny that.
There would have been better ways to do it, but the fact is that if you read all laws, civil and criminal into this, you are reading it in the face of contemporaneously adopted termination statutes which accomplish that particular end and you are making this statute a termination act because under the statute in 19 --
Justice Byron R. White: But only with the respect to the specific areas to which it applied?
Mr. Bernard P. Becker: It would apply that -- of to a large part of tribal life.
Justice Byron R. White: Not to all, and they excluded certain parts of certain states?
Mr. Bernard P. Becker: Mr. Justice White, I think you misunderstand the statute.
The statute gave a 1953 consent to every state in the union to assume jurisdiction unilaterally under the statute.
That was not changed in 1968, and the passage of the Indian Civil Rights Act with the amendments, the Public Law 280.
In 1953, any State that wanted could have picked up jurisdiction under the statute.
No -- most states did not, no fact almost, maybe two States did it, and they were not out in the Middle West of the West and they picked it up, that those States indeed that did not pick it up, like South Dakota did not pick it up because of the tax problem because they felt they were not going to get the revenue to achieve that end.
The discussion is relatively clear and again, I think in the legislative history that the costs, whatever cost the additions of the court services and there is a discussion in the legislative history that this is dealing with court services, whatever additional cost that were going to be involved in this would have to be borne by the states.
That Congress and the Department of the Interior was not going to put in additional funds, was not going to funds this as a separate matter.
That is why many states opted out and I think that that was the intent.
It is clear whether the language may not be sufficient, we agree, but it is clearly unclear language where the legislative history has to provide the backdrop for reading it, otherwise --
Justice John Paul Stevens: I am a little confused by part of your argument, I want you to straighten it to me.
I understood you at one point indicate that the statute was enacted in response to a request from the Indians and now I understand that you would be saying that that -- it was up to the states to opt it, I may have misunderstood the first part of your argument?
Mr. Bernard P. Becker: That is correct.
The statute was adopted in conjunction with the Indians.
There was -- the Government and the Indians did want a consent feature in the Bill.
In the original, some of the original drafts of the Bill had a consent feature.
In other words, the Tribes will have to consent with the State.
Justice Byron R. White: What I am really interested in, so you can explain it so that I understand it, is the principle on which some states are in and some are out.
Is that prime -- is that entirely up to the states to make the decision or was there Indian participation in the various decisions?
Mr. Bernard P. Becker: In the initial -- for the initial states, each -- the Department of the Interior indicated that they had conversations with both the State Governments and the Tribes in those states and that on the five mandatory states, there was agreement, except for the reservations that were exempted, Red Lake, Warm Springs and Menominee.
As far as the remaining states of the union, who had any Indian Country, as that is defined by the statutes within it, the statute as finally enacted by the Congress in 1953 had not -- did not have a mandatory Indian consent feature.
There had been a consent feature in one draft and then a consultation provision and that was dropped out eventually on the theory that there would have to be consultation anyway, which in effect occurred I think.
Chief Justice Warren E. Burger: We will resume there at 1 o’clock, Mr. Becker.[Luncheon Break]
Mr. Becker, you may continue.
Mr. Bernard P. Becker: Thank you, Your Honor.
With my response to Mr. Justice Stevens' question a little more on the consent feature, in 1968, Congress changed the consent feature of the statute to make it mandatory that the Tribes’ consent to the assumption of jurisdiction.
They did not alter the language of the civil section or the criminal section at all.
So that whatever the meaning or reading was in 1953 would be the same in 1968.
It seems to me almost beyond understanding to -- for the Congress to expect the Tribes voluntarily to consent to coming under -- the Lower Courts held it would be essentially total state jurisdiction, if in fact that would subject their members for the full panoply of state taxes.
Justice Potter Stewart: But the fact was Mr. Becker, was it not that as of that time the taxability of the personal property of -- personal property on Indian Reservations, both of Indians and a non-Indians was not at all settled --
Mr. Bernard P. Becker: That is correct, Your Honor --
Justice Potter Stewart: -- is that correct?
Mr. Bernard P. Becker: -- and that is why I think the reading that the lower court, the state give this indicate that Congress somehow went through and understood what the tax situation was and indicated that that ought to pass to the states as well.
I think that it is clear from the history and knowing that that question is unclear and it was only partially settled in 1973 that there was no discussion one way or another about taxes and taxes as a concept as an idea were accepted from this statute.
The statute basically has nothing to do with taxes.
The B proviso, which appears both on the criminal side and on the civil side seems to us is the kind of a provision that was put in there to assuage as we indicated the Indian fears that there was any change in the trust relationship and secondly, that there would be no reason to put that in on a criminal side.
Why would you put a statute that says, exactly as it does on the civil side, no taxes on trust property, no alienation of land when we are talking about offense, criminal offense jurisdiction.
For the most part, that would not arise.
The authority to the tax if it came would not come from the authority over the criminal section, it would become because of all civil laws being applicable and somebody fails to pay and the failure to pay maybe a criminal offense.
But the authority would come from the civil side and yet that appears throughout the statute, which indicates to me, it was, I do not want to call it a Congressional, whatever, but a provision that appears in other places as well to make it clear to the Indians that they are not changing their status vis-a-vis the Federal Government.
Now, the way that State Courts have read that is B in fact, turns out to be the Section by which you find the authority.
Suppose Congress had not put B in there, they had said we do not have to worry about assuaging any of the fears, there is nothing to have to fear, alright, and they took B out and they did not put it in, all you have is the A section, it would be awful tough to read that as conveying taxing authority.
The only way the State Courts read it is by coming back in through B and saying well, then why did they put B in if A did not convey General Taxing Authority.
Justice William H. Rehnquist: Well, I thought the Supreme Court of Minnesota’s opinion seem to go on the idea that A was ambiguous when you talk about all Civil Laws, but some light is thrown on its meaning when you cease B, which apparently carves out otherwise existing authority to tax?
Mr. Bernard P. Becker: Well, I think that they relied very heavily on B as indicating their reading of A, that is correct and without B being there that they would have read A very possibly as not conveying the taxing authority.
By putting in B, and in our view of the Congress put in B there as a help, as a method of persuading or assuring the Indians that they would not be changed in their status vis-a-vis the Federal, but that their trust relationship, the historic Federal trust responsibility would not be altered at all.
All that was happening is they were now getting a forum for adjudication of criminal matters and civil matters, which is what they wanted.
Now, to come in and to say Congress by putting in B and telling them now that we are going to not change anything, has in fact slipped one by the Indians.
They slipped it by because by putting in B, you read that as mini A, conveys general taxing authority to the extent that B does not exempt it and I think that is an awful burden to put on the Congress in terms of its general methodology of supposedly dealing with Indians with some degree of good faith.
I think the only way to read that A, B the way the state and the lower court does is in fact, it was either inadvertent which I doubt or was slipped by the Tribes and I do not think that is true at all.
The Tribes agreed.
They know what was happening to a degree.
By the statute, the language is not very good, we all agree, that the language of civil causes of action in general law is not the kind of the best kind of language and someone is going to have to make sense of it while it still stands, but the one thing it does not seem to us that it did was convey general taxing authority.
Another matter I would like to raise --
Justice William H. Rehnquist: Is there any other kind of authority you think it does not convey other than taxing authority?
Mr. Bernard P. Becker: Well, that of course, is one of the key problems.
I do not know completely the answer to that.
I think that arguments can be made in given cases that certain other clients of regulatory powers over matters that are peculiarly involved with tribal life may not be conveyed, but I have nothing on which to work in this case.
This case deals with taxes and taxes have always been treated as a special case under Federal laws.
The McClanahan, Mescalero, there is always been this special taxing jurisdiction requirements.
Congress has to expressly convey the authority.
No other way to explain Squire versus Capoeman, expect by virtue of a special kind of taxing statute reading rule, if you will, with regard to Indians.
So on that side, I think the tax part of it is clear.
What else is involved, I think is going to have wait for some adjudication to take place and one of the reasons it has not taken place interestingly enough is because the states I think only rather recently caught on to the effect that taxes may have been of the things included.
This is the first case on 280 directly to reach this Court.
There is only two other cases on 280, you know, both of them deal with this issue one way or the other.
The lower court opinion here in the Peters case.
The rest of it are, you know, references here and there in Kennerly and a couple of other cases of 280, but there has been very little litigation over 280 and it is only been very recent that the states, from what we have been out gather, had been attempting to assert this new found taxing authority.
Indeed, I would venture to say, it might be contemporaneous with the McClanahan and Mescalero decisions.
Justice Potter Stewart: Did not we have this in Tonasket --
Mr. Bernard P. Becker: That arouse, that arouse in a very different kind of situation I think it is -- Tonasket.
Justice Potter Stewart: Tonasket --
Mr. Bernard P. Becker: Tonasket versus Washington, yes, which was remanded back and there was a change of statute there.
There was a tax imposed, an attempt to impose the collecting tax for cigarettes on an Indian seller selling to non-Indians and the question is not, like here you are talking about taxing an Indian on a home that he lives on and it is quiet a bit different.
The question is whether non-Indians who might buy cigarettes would be subject to the state's tax law whether through some means or rather the state could compel the Indian to pre-collect that tax.
Justice Potter Stewart: That was 280 we were dealing with --
Mr. Bernard P. Becker: That was 280.
Justice Potter Stewart: -- was it not?
Mr. Bernard P. Becker: That is correct, to a degree.
The State and the Tribe had worked out the 280 arrangement there between them and only certain areas were conveyed and certain areas, they did it a --
Justice Potter Stewart: There was a dispute?
Mr. Bernard P. Becker: Right.
Justice Byron R. White: (Inaudible) The tax law might have been the same without 280?
Mr. Bernard P. Becker: That is a good possibility.
You had the Moe case before you.
It was recently argued in which that issue came up was the 280 question would not be applicable to the collection.
Justice Potter Stewart: Is that your position on that?
Mr. Bernard P. Becker: Our position is that as far as the pre-collection and imposing the state law obligation to pre-collect on the Indians that the answer is yes.
That might be the same irrespective of 280 on any reservation.
That is the different matter.
One more point I would like to make before I reserve some time and that is this.
There is a narrower way to decide this case.
The Minnesota Supreme Court said, it was not raised properly.
I think that is a mistake in view of the record in this case.
The Attorney General has indicated that the question of whether this is personal property was for some reason rather not raised.
The only question that did not appear to be raised from the record in the trial court was the question of this was personal property attached to the land for purposes of Minnesota’s land tax exemption for Indian land, we have that in our statute, it is in the appendix.
The question here has nothing to do with that.
The question is how is 280, a Federal statute read which is a federal question, the question being does the B proviso of 280 about regulation of Indian trust land also mean that an Indian who buys a mobile home because he is not rich enough to put a foundation and a concrete in the ground and most of -- the 15% of the Tribe in our state uses mobile homes because that is the only thing that they can afford over for housing.
Chief Justice Warren E. Burger: (Inaudible) tradition to it, is it not, to keep mobility?
Mr. Bernard P. Becker: Well, that is yes.
How much mobility?
Then you get into -- one of the problems is, you get into how much, if you take the state's point of view, you get in to how much is attached?
How many concrete posts do we have to put in before it is attached?
How many sewer lines, do we need a sewer connected to outside sewer?
What about cesspool or drain field or any of the local kinds of the sewers, the treatment proposals used.
Our problem is that B we think clearly treats this as it would a home.
The only -- otherwise, you end up with the rather absurd reading that an Indian who was wealthy enough and I do not want to make this an emotional, but it does seem to follow, an Indian who builds a home, has sufficient income to build a home however small and put a foundation in, he is home free because his property cannot be taxed, there is no question.
But an Indian who buys a mobile home, you know, then has to be judged by the number of bricks or blocks underneath the home to determine whether it is attached.
Now, we do not think the Federal Law requires that.
We think B protects in that instance any kind of a thing, if you will, used as a home on the trust land.
It flows with part of the Government's guarantee when they set that reservation apart in 1855.
Chief Justice Warren E. Burger: Very well.
Argument of C. H. Luther
Mr. C. H. Luther: Mr. Chief Justice and may it please the Court.
The respondent's position in this case of course is that the Public Law 280 does authorize the states to tax Indians on Indian reservations with the exception that is specifically spelled out in the law itself.
Justice Byron R. White: Perhaps 280, I take it you would agree would not have the power?
Mr. C. H. Luther: Yes, Your Honor, I would.
The respondents’ position is based on four considerations.
One is the statute itself, the second is the legislative history, third, is the judicial decisions and the fourth is the policy.
With respect to the statute itself, the Minnesota Supreme Court and our position is that the statute grants the authority to the states to have the civil laws, that are general application apply in Indian territory, except that any real or personal property that is held in trust by the United States or subject to restriction against alienation imposed by United States shall not be subject to taxation.
We are not talking about the accepted property in this case.
We are talking about personal property which is not held in trust and which is not subject to restriction against alienation.
I would like to come back, but perhaps this is a good time to deal with the question of whether or not it is personal property or real property.
If this mobile home were real property, it would be exempt from taxation under the provisions of the statute.
This case was tried from the beginning on the assumption that we were talking about here is a tax on personal property, it has not been contended in the District Court nor in the Minnesota Supreme Court or until now that this mobile home for the purpose of this litigation constitutes real property.
But as I say if this Court were to assume that this issue were open in the case which I do not believe it is, and were to assume that this mobile home is real property and not personal property, the statute exempts that property from taxation, there is no question about it.
Anyway, that is our reading of the statute.
Secondly, as far as the Congressional history, the legislative history, we have examined that very carefully and it is not helpful.
There is nothing that we were able to find in the Congressional hearings where this question of the taxation, whether the states were being granted authority to subject the Indians to these taxes was definitively discussed by anybody.
So I am afraid that we cannot have any, there is no help, of course, in the legislative history of this case.
As far as the judicial decisions are concerned we have four, the Minnesota District Court, the Minnesota Supreme Court, the Federal District Court in Nebraska in the Peter’s case which was affirmed by the Eighth Circuit Court of Appeals.
We have only these four judicial decisions that each hold that Public Law 280 does grant to the states the authority and jurisdiction to tax the Indians, except for the accepted property which I have mentioned.
Justice Harry A. Blackmun: Has the Ninth Circuit gone the other way, Mr. Luther?
Mr. C. H. Luther: Not to my knowledge, Your Honor.
Justice Harry A. Blackmun: Not in the Santa Rosa case?
Mr. C. H. Luther: No, Your Honor.
That was quiet a different issue before the case -- the Court in that case.
Justice Byron R. White: And what other taxes that might be involved here, income taxes?
Mr. C. H. Luther: Yes, Your Honor.
Income tax was the issue in the Peter’s case --
Justice Byron R. White: And how about gasoline, state gasoline taxes?
How about sales tax?
Mr. C. H. Luther: Sales tax?
Well, to answer your question, if your question is what taxes do I contend that this Public Law 208 authorizes the states to levy, yes.
Sales tax, income tax, gasoline tax --
Justice Byron R. White: Any tax of general applicability?
Mr. C. H. Luther: Yes sir.
Yes, Your Honor.
Any tax except those on the property and the trust property itself or unrestricted Indian property.
Justice Byron R. White: I suppose you have a state gasoline tax?
Mr. C. H. Luther: Yes, we do.
Justice Byron R. White: Is it being collected on the reservation?
Mr. C. H. Luther: Yes, it is.
Sales tax also and the income tax too.
Justice Byron R. White: Inheritance?
Mr. C. H. Luther: I do not know, Your Honor that --
Justice Byron R. White: Let us put the property (Inaudible) trust property?
Mr. C. H. Luther: Well, the Indians are selling properties that it is dealt -- inheritance tax would apply.
Justice Byron R. White: (Unaudible)
Mr. C. H. Luther: Well, this is the personal property tax that we are talking about.
I might mention that this is a rarity because the personal property tax is no longer operative in the State of Minnesota except with respect to certain property such as mobile homes which are taxed as real property -- as personal property because they are so frequently on leased land that it is not administratively feasible to tax them as real property.
Other than that, there are no personal property taxes in Minnesota.
Justice Thurgood Marshall: (Inaudible)
Mr. C. H. Luther: You are absolutely right sir, we could not tax the land.
Justice Thurgood Marshall: Well, could you tax the furniture in the home on the land?
Mr. C. H. Luther: If we had a personal property tax which was applicable to that kind of personal property, yes.
Justice Thurgood Marshall: You just could not tax the building?
Mr. C. H. Luther: You cannot tax the land itself or a building which is part of the land in the sense that is real property.
Justice Thurgood Marshall: Anything else?
Mr. C. H. Luther: Yes.
Justice Byron R. White: The Court said that extending the taxing power of the state is not quiet responsive to the need that was being expressed at the time, is it?
I mean it --
Mr. C. H. Luther: No Your Honor.
I do not believe it is.
I think I would agree with Mr. Becker that this legislation as Public Law 280, when it started out, it started out as a very, it started out having, it was going to be applicable only to the State of California and only to certain Indians in the State of California and was --
Justice Byron R. White: I know.
Then the problem that precipitated the issue was --
Mr. C. H. Luther: Criminal.
Justice Byron R. White: -- the lack of remedies and the lack of standing?
Mr. C. H. Luther: Well, I think the problem that precipitated it, was it started out as a criminal statute essentially and as it progressed through the Congress, it expanded in its scope and then expanded from merely a criminal, subjecting the Indians to the state criminal laws and state jurisdiction in criminal matters to civil which is the Section that we are speaking off and then that expanded and progressed to the point where it included not only giving the Indians access to the State Courts for civil litigation purposes.
Justice Byron R. White: Subject to rules?
Mr. C. H. Luther: Exactly, which maybe appropriate now to bring up the fourth point that I want to bring up which is the policy question.
The express policy of Congress at that the time this law was enacted was one of integration of the Indians into the community, integration and assimilation.
And this law was a step as the Courts have all mentioned, this Public Law 280 was a step forward affecting that Congressional policy of assimilation and integration and I wish to make this very clear that in considering and in construing this law that policy be kept in mind.
State-wise, we have a policy consideration too and that is the Indians are citizens of the state.
They have all the rights and all the privileges of all the other citizens of the state and as a matter of policy, we feel it only just and perhaps this is what Congress had in mind, only just improper that they bear their fair share of the expenses of the state.
Now, of course the biggest tax impact on people of this kind is the tax on your real property and that property is not taxable.
That is never has been and has not specifically excluded in taxation in this law, but why should not these citizens of the state who are enjoying all the rights and privileges of all the other citizens of the state share in the expenses at least to the extent of these lesser taxes which we have talked about, the sales tax, the gas tax, personal property tax.
Justice Harry A. Blackmun: I suppose that same argument could have been made in McClanahan --
Mr. C. H. Luther: Yes, Your Honor, it could have been made in McClanahan, but McClanahan did not have Public Law 280 and this was of course is the major difference because our position is that Public Law 280 authorizes, grants us jurisdiction to the State and Public Law 280 did not apply in the McClanahan case.
It did not apply to Arizona.
Justice John Paul Stevens: General Luther, may I ask you a question please?
Is it your view that the selection of the states originally were going to be subject to a law 280, the various lands were subjected?
Were they chosen on the ground that they are more ready for assimilation and than the higher developed areas or were they areas where there was a greater breakdown in law and order, and therefore, a greater need for State Criminal Jurisdiction or is it clear?
Mr. C. H. Luther: I am not clear on that Your Honor, I think perhaps --
Justice John Paul Stevens: You might make quite a difference in whether you think they are ready to pay their share of the taxes or not?
Which view you take?
Mr. C. H. Luther: Yes.
I suppose it would.
I honestly do not know that much about it.
I am afraid I could not answer you question.
Justice John Paul Stevens: (Inaudible)
Justice Harry A. Blackmun: Do you know why Red Lake was exempted?
Mr. C. H. Luther: Well, I would defer with Mr. Becker, he is more an expert than I.
I think it was because they had a -- what can I say, a better tribal operation there.
In another words, they were able to handle their problems internally, tribally where this other tribes that did not have as effective an organization.
That is why --
Justice Harry A. Blackmun: And that is a partial answer, the question posed by Mr. Justice Stevens, I suppose --
Mr. C. H. Luther: Yes.
It could be.
If there is no further questions, that is all.
Chief Justice Warren E. Burger: Very well.
Rebuttal of Bernard P. Becker
Mr. Bernard P. Becker: Thank you, Your Honor.
Let me respond to a number of things.
As far as the gasoline and sales tax, the Buck Act passed by Congress a number of years ago, authorizes the imposition and collection of both sales and gasoline taxes on Indian reservations and other Federal enclaves, multi-reservations.
The sales act is not all clear as to whether the sales act part of it makes it applicable to Indians buying from traders or non-Indians.
Justice Byron R. White: How about the sales tax on a reservation, absent 280?
Mr. Bernard P. Becker: Absent 280, in a sale to an Indian, clearly no.
The question is still open --
Justice Byron R. White: Despite the Buck Act?
Mr. Bernard P. Becker: Despite the Buck Act.
As far as the -- on the point, I would like to -- as far as Red Lake is concerned, I think Red Lake and Warm Springs and Menominee was specifically exempted up because they did have on-going Tribal Governments and they were -- if the idea is that this statute should be read against an assimilationist, terminationist background, then you would think that Congress would pick for termination and assimilation those tribes that had advanced over the peopleage state, which was, you know the concept in Kagama and the older cases is what the Government was supposed to be doing.
Yet in fact, it was only that the Tribes and the areas where the tribes were least developed, where there was less involvement that 280 was made mandatorily applicable and the reservations that will further this advance will have the greatest assets, Menominee and Warm Springs were exempted from the --
Justice Potter Stewart: (Inaudible), is it not?
I mean, if the -- you under an assimilative integrationist policy to the extent that there was a great strong tribal identification, you might mitigate that policy a little bit into the extent that there was not, you would pursue the policy.
Well, now of course the policy is changed or simply as 1953 had changed and it is -- the whole policy now is to preserve the integrity of the tribe?
Mr. Bernard P. Becker: My problem is I do not -- I am not even sure you can necessarily read this as, you know, a terminationist statute.
You could -- obviously the House Concurrent Resolution 108 was there, there is nothing I can do to make it go away, you know.
But this statute itself, you know, was something significantly less than a terminationist, assimilationist statute.
One can make the argument that it was designed to help the tribal Governments along over a difficult period by allowing the C provision and authorizing the Courts as vehicles for bringing about some level of order, so that some --
Justice Byron R. White: It did something that was not, that did not exist before though, did not it?
Mr. Bernard P. Becker: That it did.
It made State Courts available.
Justice Byron R. White: It worked a major change?
Mr. Bernard P. Becker: It worked a major change, but I do not think it worked a major change of subjecting the Indians to State taxes, the full panoply of State taxes.
That would have generated an awful lot of opposition from an awful lot of tribes and it just does not come up anywhere in the legislative history.
Justice Potter Stewart: Except, but you I thought considered earlier for all that Congress knew or all the Indians knew, they were subjected to the full panoply State taxes as it is was?
Mr. Bernard P. Becker: Well, they have been fighting (Voice overlap)
Justice Potter Stewart: (Voice Overlap) this would not affected any change?
Mr. Bernard P. Becker: Of course, they have been fighting on that for a while.
That have never given in on that subject --
Justice Potter Stewart: Wholly unsettled and unclear, was it not?
Mr. Bernard P. Becker: Wholly unsettled and unclear, however, by no means acquiesced in by the Indians.
They have been fighting that issue.
It is just that never reached this Court.
There have been a number of state court decisions.
Justice Potter Stewart: (Inaudible)
Mr. Bernard P. Becker: Yes.
Chief Justice Warren E. Burger: Thank you gentlemen.
The case is submitted.