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COUNTY YAKIMA v. CONFEDERATED TRIBES AND BANDS YAKIMA INDIAN NATION CONFEDERATED TRIBES AND BANDS YAKIMA INDIAN NATION

decided*fn*: January 14, 1992.

COUNTY OF YAKIMA, ET AL., PETITIONERS v. CONFEDERATED TRIBES AND BANDS OF THE YAKIMA INDIAN NATION CONFEDERATED TRIBES AND BANDS OF THE YAKIMA INDIAN NATION, PETITIONER V. COUNTY OF YAKIMA AND DALE A. GRAY, YAKIMA COUNTY TREASURER


ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Stevens, O'connor, Kennedy, Souter, and Thomas, JJ., joined. Blackmun, J., filed an opinion concurring in part and dissenting in part.

Author: Scalia

JUSTICE SCALIA delivered the opinion of the Court.

The question presented by these consolidated cases is whether the County of Yakima may impose an ad valorem tax on so-called "fee-patented" land located within the Yakima Indian Reservation, and an excise tax on sales of such land.

I

A

In the late 19th Century, the prevailing national policy of segregating lands for the exclusive use and control of the Indian tribes gave way to a policy of allotting those lands to tribe members individually. The objectives of allotment were simple and clear-cut: to extinguish tribal sovereignty, erase reservation boundaries, and force the assimilation of Indians into the society at large. See, e. g., In re Heff, 197 U.S. 488, 499 (1905). Congress was selective at first, allotting lands under differing approaches on a tribe-by-tribe basis. See F. Cohen, Handbook of Federal Indian Law 129-130 (1982); Gates, Indian Allotments Preceding the Dawes Act, in The Frontier Challenge 141 (J. Clark ed. 1971). These early efforts were marked by failure, however. Because allotted land could be sold soon after it was received, see, e. g., Treaty with the Wyandots, Apr. 1, 1850, 9 Stat. 987, 992, many of the early allottees quickly lost their land through transactions that were unwise or even procured by fraud. See Cohen, supra, at 130. Even if sales were for fair value, Indian allottees divested of their land were deprived of an opportunity to acquire agricultural and other self-sustaining economic skills, thus compromising Congress' purpose of assimilation.

Congress sought to solve these problems in the Indian General Allotment Act of 1887, also known as the Dawes Act, 24 Stat. 388, as amended, 25 U.S.C. § 331 et seq., which empowered the President to allot most tribal lands nationwide without the consent of the Indian nations involved. The Dawes Act restricted immediate alienation or encumbrance by providing that each allotted parcel would be held by the United States in trust for a period of 25 years or longer; only then would a fee patent issue to the Indian allottee. 24 Stat. 389; see United States v. Mitchell, 445 U.S. 535, 543-544 (1980). Section 6 of the Act furthered Congress' goal of assimilation by providing that "each and every member of the respective bands or tribes of Indians to whom allotments have been made shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside." 24 Stat. 390.

In In re Heff, supra, at 502-503, we held that this latter provision subjected Indian allottees to plenary state jurisdiction immediately upon issuance of a trust patent (and prior to the expiration of the 25-year trust period). Congress promptly altered that disposition in the Burke Act of 1906, 34 Stat. 182, decreeing that state civil and criminal jurisdiction would lie "at the expiration of the trust period . . . when the lands have been conveyed to the Indians by patent in fee." A proviso, however, gave the President authority, when he found an allottee "competent and capable of managing his or her affairs," to "issue. . . a patent in fee simple" prior to the expiration of the relevant trust period. Upon such a premature patenting, the proviso specified (significantly for present purposes) not that the patentee would be subject to state civil and criminal jurisdiction but that "all restrictions as to sale, incumbrance, or taxation of said land shall be removed." Id., at 183.

The policy of allotment came to an abrupt end in 1934 with passage of the Indian Reorganization Act. See 48 Stat. 984, 25 U.S.C. § 461 et seq. Returning to the principles of tribal self-determination and self-governance which had characterized the pre-Dawes Act era, Congress halted further allotments and extended indefinitely the existing periods of trust applicable to already allotted (but not yet fee-patented) Indian lands. See 25 U.S.C. §§ 461, 462. In addition, the Act provided for restoring unallotted surplus Indian lands to tribal ownership, see 25 U.S.C. § 463, and for acquiring, on behalf of the tribes, lands "within or without existing reservations." 25 U.S.C. § 465. Except by authorizing reacquisition of allotted lands in trust, however, Congress made no attempt to undo the dramatic effects of the allotment years on the ownership of former Indian lands. It neither imposed restraints on the ability of Indian allottees to alienate or encumber their fee-patented lands, nor impaired the rights of those non-Indians who had acquired title to over two-thirds of the Indian lands allotted under the Dawes Act. See W. Washburn, Red Man's Land/White Man's Law 145 (1971).

B

The Yakima Indian Reservation, which was established by treaty in 1855, see Treaty between the United States and Yakama Nation of Indians, 12 Stat. 951, covers approximately 1.3 million acres in southeastern Washington State. Eighty percent of the reservation's land is held by the United States in trust for the benefit of the Tribe or its individual members; 20 percent is owned in fee by Indians and non-Indians as a result of patents distributed during the allotment era. See Brendale v. Confederated Yakima Indian Nation, 492 U.S. 408, 415 (1989) (plurality opinion). Some of this fee land is owned by the Yakima Indian Nation itself.

The reservation is located almost entirely within the confines of petitioner/cross-respondent Yakima County. Pursuant to Washington law, Yakima County imposes an ad valorem levyon taxable real property within its jurisdiction, and an excise tax on sales of such land. Wash. Rev. Code §§ 84.52.030, 82.45.070 (1989). According to the County, these taxes have been levied on the Yakima Reservation's fee lands and collected without incident for some time. In 1987, however, as Yakima County proceeded to foreclose on properties throughout the County for which ad valorem and excise taxes were past due, including a number of reservation parcels in which the Tribe or its members had an interest, respondent/cross-petitioner Yakima Nation commenced this action for declaratory and injunctive relief, contending that federal law prohibited these taxes on fee patented lands held by the Tribe or its members.

On stipulated facts, the District Court awarded summary judgment to the Tribe, and entered an injunction prohibiting the imposition or collection of the taxes on such lands. On appeal, the Court of Appeals for the Ninth Circuit agreed that the excise tax was impermissible, but held that the ad valorem tax would be impermissible only if it would have a "'demonstrably serious'" impact on the " political integrity, economic security, or the health and welfare of the tribe,'" and remanded to the District Court for that determination to be made. 903 F.2d 1207, 1218 (CA9 1990) (emphasis deleted) (quoting Brendale, supra, at 431). We granted certiorari. 500 U.S. (1991).

II

The Court's earliest cases addressing attempts by States to exercise dominion over the reservation lands of Indians proceeded from Chief Justice Marshall's premise that the "several Indian nations [constitute] distinct political communities, having territorial boundaries, within which their authority is exclusive . . . ." Worcester v. Georgia, 6 Pet. 515, 556-557 (1832). Because Congress, pursuant to its constitutional authority both "to regulate Commerce . . . with the Indian Tribes" and to make treaties, U.S. Const., Art. I, § 8, cl. 3; Art II, § 2, cl.2, had determined by law and treaty that "all intercourse with them [would] be carried on exclusively by the [Federal Government]," Worcester v. Georgia, supra, at 557, the Court concluded that within reservations state jurisdiction would generally not lie. The assertion of taxing authority was not excepted from this principle. E. g., The Kansas Indians, 5 Wall. 737, 755-757 (1867); The New York Indians, 5 Wall. 761, 771-772 (1867).

The "platonic notions of Indian sovereignty" that guided Chief Justice Marshall have, over time, lost their independent sway. See McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 172 and n. 8 (1973); Organized Village of Kake v. Egan, 369 U.S. 60, 71-73 (1962). Congress abolished treaty-making with the Indian nations in 1871, Rev. Stat. § 2079, as amended, 25 U.S.C. § 71, and has itself subjected the tribes to substantial bodies of state and federal law. This Court's more recent cases have recognized the rights of States, absent a congressional prohibition, to exercise criminal (and, implicitly, civil) jurisdiction over non-Indians located on reservation lands, see, e. g., New York ex rel. Ray v. Martin, 326 U.S. 496 (1946); see also F. Cohen, Handbook of Federal Indian Law, at 352 and n.39. We have even observed that state jurisdiction over the relations between reservation Indians and non-Indians may be permitted unless the application of state laws "would interfere with reservation self-government or impair a right granted or reserved by federal law." Organized Village of Kake, supra, at 75. In the area of state taxation, however, Chief Justice Marshall's observation that "the power to tax involves the power to destroy," McCulloch v. Maryland, 4 Wheat. 316, 431 (1819), has counseled a more categorical approach: "Absent cession of jurisdiction or other federal statutes permitting it," we have held, a State is without power to tax reservation lands and reservations Indians. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148 (1973). And our cases reveal a consistent practice of declining to find that Congress has authorized state taxation unless it has "made its intention to do so unmistakably clear." Montana v. Blackfeet Tribe, 471 U.S. 759, 765 (1985); see also California v. Cabazon Band of Mission Indians, 480 U.S. 202, 215, n. 17 (1987).

Yakima County persuaded the Court of Appeals, and urges upon us, that express authority for taxation of fee-patented land is found in § 6 of the General Allotment Act, as amended.*fn1 We have little doubt about the accuracy of that threshold assessment. Our decision in Goudy v. Meath, 203 U.S. 146, 149 (1906), without even mentioning the Burke Act proviso, held that state tax laws were "among the laws to which [Indian allottees] became subject" under § 6 upon the expiration of the Dawes Act trust period. And we agree with the Court of Appeals that by specifically mentioning immunity from land taxation "as one of the restrictions that would be removed upon conveyance in fee," Congress in the Burke Act proviso "manifested a clear intention to permit the state to tax" such Indian lands. 903 F.2d, at 1211.

Neither the Yakima Nation nor its principal amicus, the United States, vigorously disputes this.*fn2 Instead, they contend that § 6 of that Act -- the Burke Act proviso included -- is a dead letter, at least within the confines of an Indian reservation. The Tribe argues that, by terminating the allotment program and restoring tribal integrity through the Indian Reorganization Act of 1934, Congress impliedly repealed § 6's jurisdictional grant and returned the law to its pre-Allotment Act foundations. Congress's subsequent actions, according to the Tribe, confirm this implication. In 1948, for instance, Congress defined "Indian country" to include all fee land within the boundaries of an existing reservation, whether or not held by an Indian, and preempted state criminal laws within "Indian country" insofar as offenses by and against Indians were concerned. See Act of June 25, 1948, 62 Stat. 757-758, as amended 18 U.S.C. §§ 1151-1153; Seymour v. Superintendent of Washington State Penitentiary, 368 U.S. 351 (1962). And in ...


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