Article I, Section 8, Clause 3:

[The Congress shall have Power . . . ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . .

Although in 1871, Congress forbade making further treaties with the tribes,1 cases disputing the application of old treaties, and especially their effects upon attempted state regulation of on-reservation activities, continue to appear on the Supreme Court’s docket.2 Given the broad federal power to legislate on tribal affairs, the Court has generally used a preemption-like doctrine as the analytical framework with which to judge the permissibility of assertions of state jurisdiction over tribes:

Accordingly, state regulation of tribal activities is preempted by federal law if the state scheme is incompatible with federal and tribal interests, unless the state’s interests are substantial enough to justify the assertion of its authority.4 If a detailed, federal regulatory framework exists and would be compromised by incompatible state regulation, the state action may be preempted by federal law.5 Tribal gaming, for instance, is subject to a detailed federal regulatory scheme that preempts state law for certain types of gaming on tribal land, but preserves state regulation of tribal gaming on non-tribal land.6

, 102 Stat. 2467 (1988) (codified at 25 U.S.C. §§ 2701–2721; 18 U.S.C. §§ 1166–1168). Notably, just as federal statutes are generally construed to the benefit of Native Americans, the preemption doctrine will not be applied strictly to prevent states from aiding tribes.7

The Supreme Court has also clarified that “States have no authority to reduce federal reservations lying within their borders.” 8 In a leading case involving settlement of Native land claims, the Court ruled in County of Oneida v. Oneida Indian Nation9 that a tribe could obtain damages for wrongful possession of land conveyed in 1795 without federal approval, as required by the Nonintercourse Act.10 The Act reflected the accepted principle that extinguishment of title to Native American land requires the United States’ consent. The Court reiterated the rule that enactments are construed liberally in favor of Native Americans; Congress may abrogate Native treaty rights or extinguish aboriginal land title only if it does so clearly and unambiguously. Consequently, federal approval of land-conveyance treaties containing references to earlier conveyances that violated the Nonintercourse Act do not constitute ratification of the invalid conveyances.11

In addition to federal preemption, the impact on tribal sovereignty is a determinant of relative state and tribal regulatory authority.12 A tribe has the power to regulate its members and, unless so provided by Congress, a state may not regulate in a manner that would infringe upon this tribal authority.13 In other words, the “semi-autonomous status” of tribes is an “independent but related” barrier to the exercise of state authority over commercial activity on a reservation.14 If state regulation of activities on tribal lands would interfere with the tribe’s sovereignty and self-governance, the state is generally divested of jurisdiction under federal law.15 Substantial tribal interests in on-reservation activities could outweigh the state’s interests in the off-reservation effects of on-reservation activities.16 However,a tribe may not offer on-reservation activities to avoid state off-reservation law.17

In sum, there are two independent barriers to state regulation of tribal reservations and members, either of which can independently bar the application of a state law: (1) preemption by federal law and (2) tribal sovereignty.18 Accordingly, the Court’s preemption inquiry in this context requires an examination of applicable federal law as well as the nature of state, federal, and tribal interests to determine whether the exercise of state authority is permissible.19 The preemption inquiry considers traditional notions of tribal sovereignty and the federal goal of tribal self-governance, including tribal self-sufficiency and economic development.20

Generally, however, Native Americans on reservations are not subject to state law unless Congress has expressly legislated otherwise,21 because the federal interest in encouraging tribal self-government is strongest on the reservation, while the state’s regulatory interest is likely to be low.22 On the other hand, beyond reservation boundaries, Native Americans are subject to generally applicable state laws as long as they are not discriminatory or preempted by federal law.23 And when state interests outside the reservation are implicated on the reservation, such as in the context of a state’s police powers, states may regulate the activities of tribe members on tribal land under certain circumstances.24

With regard to regulation of on-reservation activities of non-Natives, in Montana v. United States,25 the Supreme Court articulated the so-called Montana Doctrine under which a tribe may not “exercise criminal jurisdiction over non-Indians” with two notable exceptions.26 First, “[a] tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” 27 Second, a tribe may address “the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” 28 Applying the Montana Doctrine’s second exception, in United States v. Cooley, the Court held that a “tribal officer possesses the authority . . . to detain temporarily and to search a non-Indian on a public right-of-way that runs through an Indian reservation.” 29

As suggested by the first exception to the Montana Doctrine, among the fundamental attributes of sovereignty a tribe possesses, unless divested by federal law, is the power to tax non-Natives entering the reservation to engage in economic activities.30 Over time, the Court has recognized additional inherent tribal sovereign powers.31

The scope of state taxing powers—the conflict of “the plenary power of the States over residents within their borders with the semi-autonomous status of Indians living on tribal reservations” 32 —has been frequently litigated. Absent cession of jurisdiction or other congressional consent, states possess no power to tax reservation lands or tribal income from activities carried on within a reservation’s boundaries.33 Off-reservation Native activities require an express federal exemption to deny state taxing power.34 State taxation of non-Natives doing business with Natives on the reservation involves a close analysis of the federal statutory framework, although the operating premise was for many years to deny state taxation power because of its burdens upon the development of tribal self-sufficiency and interference with the tribes’ ability to exercise their sovereign functions.35

The Supreme Court appears to have moved away from this operating premise to some extent. For example, in Cotton Petroleum Corp. v. New Mexico,36 the Court upheld a state oil and gas severance tax applied to on-reservation operations by non-Natives, which were already taxed by the Tribe,37 finding the impairment of tribal sovereignty was “too indirect and too insubstantial” to warrant preemption. The Court found the fact that the state provided significant services to the oil and gas lessees justified state taxation, while distinguishing earlier cases in which the state “asserted no legitimate regulatory interest that might justify the tax.” 38 In a later case where the Court confronted arguments that the imposition of particular state taxes on reservation property was inconsistent with self-determination and self-governance, the Court denominated these as “policy” arguments properly presented to Congress rather than to the Court.39

Footnotes

1

Act of March 3, 1871, 16 Stat. 544, 566 (codified at 25 U.S.C. § 71).

2

E.g., Puyallup Tribe v. Wash. Game Dep’t, 433 U.S. 165 (1977); Washington v. Wash. State Com. Passenger Fishing Vessel Ass’n, 443 U.S. 658 (1979); McGirt v. Oklahoma, No. 18-9526 (U.S. July 9, 2020). With regard to tribal regulation of on-reservation activities of non-Indians, see generally Montana v. United States, 450 U.S. 544 (1981) (articulating the so-called “Montana Doctrine” ).

3

Ramah Navajo Sch. Bd., Inc. v. Bureau of Revenue of N.M., 458 U.S. 832, 838 (1982). See also New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983).

4

California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987); White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980).

5

Three Affiliated Tribes of Fort Berthold Rsrv. v. Wold Eng’g, 476 U.S. 877 (1986).

6

Indian Gaming Regulatory Act (IGRA), Pub. L. No.

100-497

, 102 Stat. 2467 (1988) (codified at 25 U.S.C. §§ 2701–2721; 18 U.S.C. §§ 1166–1168).

7

Three Affiliated Tribes of the Fort Berthold Rsrv., v. Wold Eng’g, P.C., 467 U.S. 138 (1984) (upholding state-court jurisdiction to hear claims of Native Americans against non-Natives involving transactions that occurred in Indian Country). Attempts by states to retrocede jurisdiction favorable to tribes, however, may be held to be preempted. Three Affiliated Tribes of the Fort Berthold Rsrv., 476 U.S. at 877.

8

McGirt v. Oklahoma, No. 18-9526, slip. op. at 7 (July 9, 2020) (emphasis added).

9

Oneida Cnty. v. Oneida Indian Nation of New York State, 470 U.S. 226 (1985).

10

Act of Mar. 1, 1793, Pub. L. No. 2-19, § 8, 1 Stat. 329, 330.

11

Oneida Indian Nation of New York State, 470 U.S. at 246–48.

12

E.g., New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983).

13

Three Affiliated Tribes of Fort Berthold Rsrv., 476 U.S. at 877.

14

White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142–43 (1980); Ramah Navajo Sch. Bd., Inc. v. Bureau of Revenue of N.M., 458 U.S. 832, 837–38 (1982). The Ramah Court stated: “The two barriers are independent because either, standing alone, can be a sufficient basis for holding state law inapplicable to activity undertaken on the reservation or by tribal members.” Id. at 837 (quoting White Mountain Apache Tribe, 448 U.S. at 143).

15

Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987). Notably, this protective rule is inapplicable to state regulation of liquor because there is no tradition of tribal sovereignty with respect to that subject. Rice v. Rehner, 463 U.S. 713 (1983). Similarly, the Supreme Court has repeatedly held that the Indian Commerce Clause “affords Congress the power to prohibit or regulate the sale of alcoholic beverages to tribal Indians, wherever situated, and to prohibit or regulate the introduction of alcoholic beverages into Indian country.” United States v. Mazurie, 419 U.S. 544, 554 (1975) (citing United States v. Holliday, 3 Wall. 407, 417–18 (1866); United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 194–95 (1876); Ex parte Webb, 225 U.S. 663, 683–84 (1912); Perrin v. United States, 232 U.S. 478, 482 (1914); Johnson v. Gearlds, 234 U.S. 422, 438–39 (1914); United States v. Nice, 241 U.S. 591, 597 (1916)).

16

California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987).

17

Washington v. Confederated Tribes of Colville Indian Rsrv., 447 U.S. 134 (1980).

18

Cabazon Band of Mission Indians, 480 U.S. at 202; New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983); White Mountain Apache Tribe, 448 U.S. at 136.

19

Three Affiliated Tribes of Fort Berthold Rsrv. v. Wold Eng’g, 476 U.S. 877 (1986).

20

Cabazon Band of Mission Indians, 480 U.S. at 202.

21

Id.

22

White Mountain Apache Tribe, 448 U.S. at 136.

23

Michigan v. Bay Mills Indian Cmty., 572 U.S. 782 (2014); White Mountain Apache Tribe, 448 U.S. at 136; Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973).

24

Nevada v. Hicks, 533 U.S. 353 (2001).

25

450 U.S. 544 (1981).

26

Id. at 565. See also United States v. Bryant, 579 U.S. 140 (2016), as revised (July 7, 2016) ( “Most States lack jurisdiction over crimes committed in Indian country against Indian victims.” (citing United States v. John, 437 U.S. 634, 651 (1978))).

27

Montana, 450 U.S. at 565.

28

Id. at 566.

29

No. 19-1414, slip op. at 1 (U.S. June 1, 2021).

30

Montana, 450 U.S at 565; see also Washington v. Confederated Colville Tribes, 447 U.S. 134 (1980); United States v. Jicarilla Apache Nation, 455 U.S. 130 (2011).

31

See, e.g., United States v. Wheeler, 435 U.S. 313 (1978) (recognizing Tribe’s inherent sovereign power to punish tribal offenders); California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987) (finding state regulation of on-reservation bingo “would impermissibly infringe on tribal government” ). But see Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408 (1989) (holding extensive ownership of land within “open areas” of reservation by non-members of tribe precludes application of tribal zoning within such areas); Hagen v. Utah, 510 U.S. 399 (1994).

32

McClanahan v. Ariz. Tax Comm’n, 411 U.S. 164, 165 (1973).

33

Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148 (1973); McClanahan, 411 U.S. at 164; Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463 (1976); Bryan v. Itasca Cnty., 426 U.S. 373 (1976); Confederated Colville Tribes, 447 U.S. at 134; Montana v. Blackfeet Tribe, 471 U.S. 759 (1985). See also Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 (1991). An easing of the Court’s apparent reluctance to find congressional cession is reflected in more recent cases. See Cnty. of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251 (1992).

34

Mescalero Apache Tribe, 411 U.S. at 148–49. Cf. Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95, 115 (2005) (holding that a Kansas motor fuel tax imposed on non-Indian fuel distributors who subsequently deliver the fuel to a gas station owned by and located on a reservation is “a nondiscriminatory tax imposed on an off-reservation transaction between non-Indians” and therefore “the tax is valid and poses no affront to the Nation’s sovereignty” ).

35

White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980); Cent. Mach. Co. v. Ariz. State Tax Comm’n, 448 U.S. 160 (1980); Ramah Navajo School Board v. Bureau of Revenue of N.M., 458 U.S. 832 (1982).

36

Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989).

37

Held permissible in Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982).

38

Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 185 (1989) (distinguishing White Mountain Apache Tribe, 448 U.S. at 136, and Ramah Navajo Sch. Bd., Inc., 458 U.S. at 832).

39

Cnty. of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251, 265 (1992). For other tax controversies, see Okla. Tax Comm’n v. Sac & Fox Nation, 508 U.S. 114 (1993); Dep’t of Tax’n & Fin. v. Milhelm Attea & Bros., 512 U.S. 61 (1994); Okla. Tax Comm’n v. Chickasaw Nation, 515 U.S. 450 (1995).