County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation/Concurrence Blackmun
Justice BLACKMUN, concurring in part and dissenting in part.
I have wandered the maze of Indian statutes and case law tracing back 100 years. Unlike the Court, however, I am unable to find an "unmistakably clear" intent of Congress to allow the States to tax Indian-owned fee-patented lands. Accordingly, while I concur with the majority's conclusion that Yakima County may not impose excise taxes, I dissent from their conclusion that the county may impose ad valorem taxes on Indian-owned fee-patented lands.
The Court correctly sets forth the "unmistakably clear" intent standard to be applied. Ante, at 258. But then, in my view, it seriously misapplies it, over the well-taken objections of the Yakima Nation and against the sound guidance of the United States as amicus curiae. At bottom, I believe the Court misapprehends the nature of federal pre-emption analysis and, as a result, dramatically devalues longstanding federal policies intended to preserve the integrity of our Nation's Indian tribes. As I see it, the Court errs in three ways in arriving at its finding of "unmistakably clear" intent to allow taxation of Indian-owned fee-patented lands. First, it divines "unmistakably clear" intent from a proviso, which by its very terms applies only to land patented prematurely (and not to all patented land) and which is now orphaned, its antecedent principal clause no longer having any force of law. Second, acting on its own intuition that it would be "strange" for land to be alienable and encumberable yet not taxable, the Court infers "unmistakably clear" intent of Congress from an otherwise irrelevant statutory section that itself makes no mention of taxation of fee lands. Finally, misapprehending the nature of federal pre-emption of state laws taxing the Indians, the Court mistakenly assumes that it cannot give any effect to the many complex intervening statutes reflecting a complete turnabout in federal Indian policy-now aimed at preserving tribal integrity and the Indian land base-since enactment at the turn of the century of the statutory provisions upon which the Court relies. These current and now longstanding federal policies weigh decisively against the Court's finding that Congress has intended the States to tax-and, as in this case, to foreclose upon-Indian-held lands.
1. The majority concedes that the principal clause of § 6 of the Dawes Act, which subjected allottees to the plenary civil and criminal jurisdiction of the States, can "no longer be read to provide . . . plenary jurisdiction even as to those residing on reservation fee lands." Ante, at 261. See also DeCoteau v. District County Court, 420 U.S. 425, 427, n. 2, 95 S.Ct. 1082, 1084, n. 2, 43 L.Ed.2d 300 (1975) (recognizing that statutory definition of "Indian country," which includes all reservation land "notwithstanding the issuance of any patent," 18 U.S.C. § 1151, demarcates general boundary of civil jurisdiction of States); McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 177-178, and n. 17, 93 S.Ct. 1257, 1265, and n. 17, 36 L.Ed.2d 129 (1973) (discussing more recent congressional enactments, i.e., Pub.L. 280 and the Indian Civil Rights Act of 1968, giving States civil and criminal jurisdiction over reservations but only upon consent of the affected tribe).
Rather than rely on the principal clause of § 6, the Court turns to a proviso added by the Burke Act of 1906.  Ante, at 264. It acknowledges that the proviso was not even mentioned in Goudy v. Meath, 203 U.S. 146, 27 U.S. 48, 51 L.Ed. 130 (1906),  a case upon which the majority relies. Ante, at 258-259. As an initial matter, the proviso's attachment to an obsolete principal clause, if anything, must diminish its force as a measure of congressional intent. Moreover, by its terms, the proviso does not remove "restrictions as to . . . taxation" from all allotted land. It removes restrictions solely from allotted land that happened to be patented in fee "prematurely," i.e., prior to the expiration of the 25-year trust period. To be sure, the proviso could be read to suggest that Congress possibly intended taxation of allotted lands other than those lands patented prematurely.  But a possibility, or even a likelihood, does not meet this Court's demanding standard of "unmistakably clear" intent.
2. And so the Court turns to § 5 of the Dawes Act for support. The majority claims that "the proviso reaffirmed for such 'prematurely' patented land what § 5 of the [Dawes Act] implied with respect to patented land generally: subjection to state real estate taxes." Ante, at 264 (emphasis added). Because § 5 renders fee-patented lands alienable and encumberable, the majority suggests that " 'it would seem strange to withdraw [the] protection [of the restriction on alienation] and permit the Indian to dispose of his lands as he pleases, while at the same time releasing it [sic ] from taxation.' " Ante, at 263 (quoting Goudy v. Meath, 203 U.S., at 149, 27 S.Ct., at 50).
The majority concedes that § 5 only "implied" this conclusion. Ante, at 263. In my view, a "mere implication" falls far short of the "unmistakably clear" intent standard. Cf. EEOC v. Arabian American Oil Co., --- U.S. ----, ----, 111 S.Ct. 1227, 1237, 113 L.Ed.2d 274 (1991) ("Given the presumption against extraterritoriality . . . and the requirement that the intent to overcome it be 'clearly expressed,' it is in my view not reasonable to give effect to mere implications from the statutory language as the EEOC has done") (SCALIA, J., concurring in part and concurring in the judgment).
Nor can what this Court finds "strange" substitute for the "unmistakably clear" intent of Congress. To impute to Congress an intent to tax Indian land, because the Court thinks it "strange" not to do so, overlooks the countervailing presumption that "Congress has . . . acted consistently upon the assumption that the States have no power to regulate the affairs of Indians on a reservation." Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 271, 3 L.Ed.2d 251 (1959). I need not pass upon the wisdom of the majority's fiscal theory that if land is alienable and encumberable, it must be taxable. I pause only to comment that Congress has made its own agreement with this particular economic theory less than "unmistakably clear." Cf. Lochner v. New York, 198 U.S. 45, 75, 25 S.Ct. 539, 546, 49 L.Ed. 937 (1905) (Holmes, J., dissenting) ("This case is decided upon an economic theory which a large part of the country does not entertain.").
3. In any event, if "strangeness" is the benchmark of what Congress unmistakably intends, I find it stranger still to presume that Congress intends States to tax-and, as in this case, foreclose upon-Indian-owned reservation lands. This presumption does not account for Congress' "abrupt" termination of the assimilationist policies of the Dawes Act in favor of the Indian Reorganization Act's now well-established "principles of tribal self-determination and self-governance." See ante, at 255.
The Court announces that the Yakima's "policy objections do not belong in this forum." Ante, at 265. Yet, not to consider the policies of the Indian Reorganization Act is to forget that "we previously have construed the effect of legislation affecting reservation Indians in light of 'intervening' legislative enactments." Bryan v. Itasca County, 426 U.S. 373, 386, 96 S.Ct. 2102, 2110, 48 L.Ed.2d 710 (1976). See also Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463, 479, 96 S.Ct. 1634, 479, 48 L.Ed.2d 96 (1976) (noting that State's interpretation of § 6 of the Dawes Act cannot survive "the many and complex intervening jurisdictional statutes" subsequently enacted). The majority appears to assume that these intervening enactments need not be given any effect here, because they do not rise to the level of a "repeal" of the Dawes and Burke Acts. Ante, at 262. I agree with the majority that implied repeals are not favored. But this is beside the point. A "repeal"-whether express or implied-need not be shown to preclude the States from taxing Indian lands.
As in all state-Indian jurisdiction cases, the relevant inquiry is whether Congress has pre-empted state law, not whether it has repealed its own law. See, e.g., California v. Cabazon Band of Mission Indians, 480 U.S. 202, 216, 107 S.Ct. 1083, 1092, 94 L.Ed.2d 244 (1987); Bryan v. Itasca County, 426 U.S., at 376, n. 2, 96 S.Ct., at 2105, n. 2. Under established principles of pre-emption, and notwithstanding the majority's derisive characterizations, see ante, at 264-265, state laws may in fact give way to "mere" federal policies and interests. See English v. General Electric Co., 496 U.S. ----, ----, 110 S.Ct. 2270, 2275, 110 L.Ed.2d 65 (1990) (state law is pre-empted to the extent that it " 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress' " (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941) (emphasis added))). Thus, in the Indian context, " '[s]tate jurisdiction is pre-empted . . . if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority' " (emphasis added). California v. Cabazon Band of Mission Indians, 480 U.S., at 216, 107 S.Ct., at 1092 (quoting New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 334, 103 S.Ct. 2378, 2386, 76 L.Ed.2d 611 (1983)).  See also White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143-145, 100 S.Ct. 2578, 2583-2584, 65 L.Ed.2d 665 (1980) (recognizing "firm federal policy" of promoting tribal self-sufficiency and economic development and noting that the pre-emption inquiry "call[s] for a particularized inquiry into the nature of the state, federal, and tribal interests at stake").
Accordingly, this Court has made clear that "the inquiry is to proceed in light of traditional notions of Indian sovereignty and the congressional goal of Indian self-government, including its 'overriding goal' of encouraging tribal self-sufficiency and economic development." Cabazon, 480 U.S., at 216, 107 S.Ct., at 1092. In Cabazon, for example, the Court gave weight to recent policy statements by Congress and the President in support of Indian autonomy and self-determination, deeming them to be "particularly significant in this case." Id., at 216, n. 19, 107 S.Ct., at 1092; see also id., at 217-218, & nn. 20-21, 107 S.Ct., at 1092-1093, & nn. 20-21. 
I believe that if the majority were inclined to give federal policy interests any effect, its conclusion as to Congress' "unmistakably clear" intent would doubtless be different today. The nature of federal policy interests emerges clearly from a review of the effects of the Indian land-allotment policies. During the allotment period from 1887 to 1934, Indian landholdings were reduced nationwide, through a combination of sales by allottees to non-Indians and government sales of "surplus" unallotted lands, from about 138 million acres to 48 million acres. See F. Cohen, Handbook of Federal Indian Law 138 (1982 ed.). Of the 90 million acres lost, about 27 million acres passed from Indians to non-Indians, as a result of the alienability of the newly allotted land. Ibid. See also Hearings on H.R. 7902 (Readjustment of Indian Affairs (Index)) before the House Committee on Indian Affairs, 73d Cong., 2d Sess., 17 (Comm.Print 1984) (Hearings) (Memorandum of John Collier, Commissioner of Indian Affairs).
For 12,000 years, the Yakima Indians have lived on their lands in Eastern Washington. See H. Schuster, The Yakima 14 (1990). Because of the allotment policies, non-Indians today own more than a quarter million acres, more than half the land originally allotted to individual members of the Yakimas. Id., at 83. "Allotment and the subsequent sale or lease of Indian lands accomplished what the 'genocide' of epidemics, war, and bootlegged alcohol had not been able to do: a systematic 'ethnocide' brought about by a loss of Indian identity with the loss of land." H. Schuster, The Yakimas: A Critical Bibliography 70 (1982).
It is little wonder that, as Congress moved toward repudiating the allotment system in 1934, the Commissioner of Indian Affairs informed Congress:
"It is difficult to imagine any other system which with equal effectiveness would pauperize the Indian while impoverishing him, and sicken and kill his soul while pauperizing him, and cast him in so ruined a condition into the final status of a nonward dependent upon the States and counties." Hearings, at 18.
I am mystified how this Court, sifting through the wreckage of the Dawes Act, finds any "clearly retained remnant," ante, at 265, justifying further erosions-through tax foreclosure actions as in this case-to the land holdings of the Indian people. 
The majority deems any concerns for tribal self-determination to be a "great exaggeration." Ante, at 265. I myself, however, am "far from convinced that when a State imposes taxes upon reservation members without their consent, its action can be reconciled with tribal self-determination." McClanahan v. Arizona State Tax Comm'n, 411 U.S., at 179, 93 S.Ct., at 1266. The majority concludes that, as a practical matter, "mere" property taxes are less disruptive of tribal integrity than cigarette sales taxes and certain personal property taxes (as on automobiles) that were at issue in Moe. Ante, at 264-265. I cannot agree that paying a few more pennies for cigarettes or a tax on some personal property is more a threat to tribal integrity and self-determination than foreclosing upon and seizing tribal lands.
Finally, the majority platitudinously suggests that the Yakima "must make [their policy] argument to Congress." Ante, at 265. I am less confident than my colleagues that the 31 Yakima Indian families likely to be rendered landless and homeless by today's decision are well-positioned to lobby for change in the vast corridors of Congress.
^1 The proviso states in pertinent part:
"[T]he Secretary of the Interior may, in his discretion . . . whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs at any time to cause to be issued to such allottee a patent in fee simple, and thereafter all restrictions as to sale, incumbrance, or taxation of said land shall be removed. . . ." 25 U.S.C. § 349.
^2 Goudy relied upon the principal clause of § 6. Even if this principal clause had any continuing vitality, whether Goudy would still be good law is questionable in light of the Court's more recent decision in Bryan v. Itasca County, 426 U.S. 373, 96 S.Ct. 2102, 48 L.Ed.2d 710 (1976), where it declined to find a clear intent of Congress to allow a State to tax Indians on the basis of a statute, § 4(a) of Pub.L. 280, that on its face conferred upon the State general civil jurisdictional powers over Indian country.
^3 This reading, which would imply the taxability of all fee-patented lands regardless of whether the owner was an original allottee, is in some tension with what the majority points out to be the "literal coverage ('each and every allottee ')" of the principal general-jurisdiction-conferring clause. Ante, at 262.
^4 In Cabazon, the Court reiterated that "the federal tradition of Indian immunity from state taxation is very strong and that the state interest in taxation is correspondingly weak." 480 U.S., at 215, n. 17, 107 S.Ct., at 1091, n. 17.
^5 I have previously observed:
"Surely, in considering whether Congress intended tribes to enjoy civil jurisdiction, . . . this Court should direct its attention not to the intent of the Congress that passed the Dawes Act, but rather to the intent of the Congress that repudiated the Dawes Act, and established the Indian policies to which we are heir."
Brendale v. Confederated Yakima Indian Nation, 492 U.S. 408, 464, 109 S.Ct. 2994, 3025, 106 L.Ed.2d 343 (1989) (opinion concurring in part and dissenting in part).
^6 The Court concludes that Congress' decision in the Indian Reorganization Act not to reimpose restraints on alienation of land already patented suggests that Congress also "chose not to terminate state taxation upon those lands as well." Ante, at 264. In 1934, when the process of allotment was halted, 246,569 assignments had been made nationwide, totaling nearly 41 million acres (slightly less than the entire acreage of the State of Washington). Indian Heirship Land Survey, Memorandum of the Chairman to the Senate Committee on Interior and Insular Affairs, 86th Cong., 2d Sess., Part I, p. 2 (Comm.Print 1960). In my judgment, Congress' choice not to effect a taking of this magnitude does not reflect an intent to continue other policies contributing to the loss of Indian lands. If anything, Congress' intent is to be gauged not by negative implication from what it failed to do, but from provisions in the Act that stop further allotment, that freeze in trust already allotted-but-not-yet-patented land, and that affirmatively authorize repurchases of Indian lands to rebuild the tribal land base. See generally 25 U.S.C. §§ 461-465.