Section 6 of Pub.L. 280 authorizes the people of States whose
constitutions or statutes contain organic law disclaimers of
jurisdiction over Indian country to amend "where necessary" their
constitutions or statutes to remove any legal impediment to
assumption of such jurisdiction under the Act, notwithstanding the
provision of any Enabling Act for the admission of the State, but
provided that the Act shall not become effective with respect to
such assumption of jurisdiction until the people of the State have
appropriately amended their state constitution or statutes, as the
case may be. In § 7 of Pub.L. 280, Congress gave the consent of the
United States
"to any other State . . . to assume jurisdiction at such time
and in such manner as the people of the State shall, by affirmative
legislative action, obligate and bind the State to assumption
thereof."
The State of Washington's Constitution contains a disclaimer of
authority over Indian country, and hence the State is one of those
covered by § 6. In 1963, after the Washington Supreme Court, in
another case, had held that the barrier posed by the disclaimer
could be lifted by the state legislature, the legislature enacted a
statute (Chapter 36) obligating the State to assume civil and
criminal jurisdiction over Indians and Indian territory within the
State, subject only to the condition that, in all but eight subject
matter areas, jurisdiction would not extend to Indians on trust or
restricted lands unless the affected tribe so requested. Appellee
Yakima Nation, which did not make such a request, brought this
action in Federal District Court challenging the statutory and
constitutional validity of the State's partial assertion of
jurisdiction on its Reservation. The Tribe contended that the State
had not complied with the procedural requirements of Pub.L. 280,
especially the requirement that the State first amend its
constitution; that, in any event, Pub.L. 280 did not authorize the
State to assert only partial jurisdiction within an Indian
reservation; and that Chapter 36, even if authorized by Congress,
violated the equal protection and due process guarantees of the
Fourteenth Amendment. The
Page 439 U. S. 464
District Court rejected both the statutory and constitutional
claims, and entered judgment for the State. The Court of Appeals,
while rejecting the contention that Washington's assumption of only
partial jurisdiction was not authorized by Congress, reversed,
holding that the "checkerboard" jurisdictional system produced by
Chapter 36 had no rational foundation, and therefore violated the
Equal Protection Clause.
Held:
1. Section 6 of Pub.L. 280 does not require disclaimer States to
amend their constitutions to make an effective acceptance of
jurisdiction over an Indian reservation, and any Enabling Act
requirement of this nature was effectively repealed by § 6. Here,
the Washington Supreme Court, having determined that, for purposes
of the repeal of the state constitutional disclaimer, legislative
action is sufficient, and, the state legislature having enacted
legislation obligating the State to assume jurisdiction under
Pub.L. 280, it follows that the State has satisfied the procedural
requirements of § 6. Pp.
439 U. S.
478-493.
2. Once the requirements of § 6 have been satisfied, the terms
of § 7 govern the scope of jurisdiction conferred upon disclaimer
States. Statutory authorization for the partial subject matter and
geographic jurisdiction asserted by Washington is found in the
words of § 7 permitting option States to assume jurisdiction "in
such manner" as the people of the State shall, "by affirmative
legislative action, obligate and bind the State to assumption
thereof." The phrase "in such manner" means at least that an option
State can condition the assumption of full jurisdiction on an
affected tribe's consent. Here, Washington has offered to assume
full jurisdiction if a tribe so requests. The partial jurisdiction
asserted on the reservations of nonconsenting tribes reflects a
responsible attempt to accommodate both state and tribal interests,
and is consistent with the concerns that underlay the adoption of
Pub.L. 280. Accordingly, it does not violate the terms of § 7. Pp.
439 U. S.
493-499.
3. The "checkerboard" pattern of jurisdiction ordained by
Chapter 36 is not, on its face, invalid under the Equal Protection
Clause. Pp.
439 U. S.
499-502.
(a) The classifications based on tribal status and land tenure
implicit in Chapter 36 are not "suspect," so as to require that
they be justified by a compelling state interest, nor does Chapter
36 abridge any fundamental right of self-government. Pp.
439 U. S.
500-501.
(b) Chapter 36 is valid as bearing a rational relationship to
the State's interest in providing protection to non-Indian citizens
living within a reservation, while at the same time allowing scope
for tribal self-government on trust or restricted lands, the
land-tenure classification being neither an irrational nor
arbitrary means of identifying those area
Page 439 U. S. 465
within a reservation in which tribal members have the greatest
interest in being free of state police power. Pp.
439 U. S.
501-502.
552 F.2d 1332, reversed.
STEWART, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS,
JJ., joined. MARSHALL, J., filed a dissenting opinion, in which
BRENNAN, J., joined,
post, p.
439 U. S.
502.
MR. JUSTICE STEWART delivered the opinion of the Court.
In this case, we are called upon to resolve a dispute between
the State of Washington and the Yakima Indian Nation over the
validity of the State's exercise of jurisdiction on the Yakima
Reservation. In 1963, the Washington Legislature obligated the
State to assume civil and criminal jurisdiction over Indians and
Indian territory within the State, subject only to the condition
that, in all but eight subject matter areas, jurisdiction would not
extend to Indians on trust or restricted lands without the request
of the Indian tribe affected. Ch. 36, 1963 Wash.Laws. [
Footnote 1] The Yakima Nation
Page 439 U. S. 466
did not make such a request. State authority over Indians within
the Yakima Reservation was thus made by Chapter 36 to depend on the
title status of the property on which the offense or transaction
occurred and upon the nature of the subject matter.
The Yakima Nation brought this action in a Federal District
Court challenging the statutory and constitutional validity of the
State's partial assertion of jurisdiction on its Reservation. The
Tribe contended that the federal statute upon which the State based
its authority to assume jurisdiction over the Reservation, Pub.L.
280, [
Footnote 2] imposed
certain procedural requirements, with which the State had not
complied -- most notably, a requirement that Washington first amend
its own constitution -- and that, in any event, Pub.L. 280 did
not
Page 439 U. S. 467
authorize the State to assert only partial jurisdiction within
an Indian reservation. Finally, the Tribe contended that Chapter
36, even if authorized by Congress, violated the equal protection
and due process guarantees of the Fourteenth Amendment.
The District Court rejected both the statutory and
constitutional claims and entered judgment for the State. [
Footnote 3] On appeal, the contention
that Washington's assumption of only partial jurisdiction was not
authorized by Congress was rejected by the Court of Appeals for the
Ninth Circuit, sitting en banc. The en banc court then referred the
case to the original panel for consideration of the remaining
issues.
Confederated Bands and Tribes of the Yakima Indian
Nation v. Washington, 550 F.2d 443 (
Yakima I).
[
Footnote 4] The
three-judge
Page 439 U. S. 468
panel, confining itself to consideration of the constitutional
validity of Chapter 36, concluded that the "checkerboard"
jurisdictional system it produced was without any rational
foundation, and therefore violative of the Equal Protection Clause
of the Fourteenth Amendment. Finding no basis upon which to sever
the offending portion of the legislation, the appellate court
declared Chapter 36 unconstitutional in its entirety, and reversed
the judgment of the District Court.
Confederated Bands and
Tribes of the Yakima Indian Nation v. Washington, 552 F.2d
1332 (
Yakima II).
The State then brought an appeal to this Court. In noting
probable jurisdiction of the appeal, we requested the parties to
address the issue whether the partial geographic and subject matter
jurisdiction ordained by Chapter 36 is authorized by federal law,
as well as the Equal Protection Clause issue. 435 U.S. 903.
[
Footnote 5]
Page 439 U. S. 469
I
The Confederated Bands and Tribes of the Yakima Indian Nation
comprise 14 originally distinct Indian tribes that joined together
in the middle of the 19th century for purposes of their
relationships with the United States. A treaty was signed with the
United States in 1855, under which it was agreed that the various
tribes would be considered "one nation," and that specified lands
located in the Territory of Washington would be set aside for their
exclusive use. The treaty was ratified by Congress in 1859. 12
Stat. 951. Since that time, the Yakima Nation has, without
interruption, maintained its tribal identity.
The Yakima Reservation is located in the southeastern part of
the State of Washington, and now consists of approximately
1,387,505 acres of land, of which some 80% is held in trust by the
United States for the Yakima Nation or individual members of the
Tribe. The remaining parcels of land are held in fee by Indian and
non-Indian owners. Much of the trust acreage on the Reservation is
forest. The Tribe receives the bulk of its income from timber, and
over half of the Reservation is closed to permanent settlement in
order to protect the forest area. The remaining lands are primarily
agricultural.
Page 439 U. S. 470
There are three incorporated towns on the Reservation, the
largest being Toppenish, with a population of under 6,000.
The land held in fee is scattered throughout the Reservation,
but most of it is concentrated in the northeastern portion, close
to the Yakima River and within the three towns of Toppenish,
Wapato, and Harrah. Of the 25,000 permanent residents of the
Reservation, 3,074 are members of the Yakima Nation, and tribal
members live in all of the inhabited areas of the Reservation.
[
Footnote 6] In the three towns
-- where over half of the non-Indian population resides -- members
of the Tribe are substantially outnumbered by non-Indian residents
occupying fee land.
Before the enactment of the state law here in issue, the Yakima
Nation was subject to the general jurisdictional principles that
apply in Indian country in the absence of federal legislation to
the contrary. Under those principles, which received their first
and fullest expression in
Worcester v.
Georgia, 6 Pet. 515,
31 U. S. 517,
state law reaches within the exterior boundaries of an Indian
reservation only if it would not infringe "on the right of
reservation Indians to make their own laws and be ruled by them."
Williams v. Lee, 358 U. S. 217,
358 U. S.
219-220. [
Footnote
7] As a practical matter, this has meant that criminal offenses
by or against Indians have been subject only to federal or tribal
laws,
Moe v. Salish & Kootenai Tribes, 425 U.
S. 463, except where Congress, in the exercise of its
plenary and exclusive power over Indian affairs, has "expressly
Page 439 U. S. 471
provided that State laws shall apply."
McClanahan v. Arizona
State Tax Comm'n, 411 U. S. 164,
411 U. S.
170-171.
Public Law 280, upon which the State of Washington relied for
its authority to assert jurisdiction over the Yakima Reservation
under Chapter 36, was enacted by Congress in 1953 in part to deal
with the "problem of lawlessness on certain Indian reservations,
and the absence of adequate tribal institutions for law
enforcement."
Bryan v. Itasca County, 426 U.
S. 373,
426 U. S. 379;
H.R.Rep. No. 848, 83d Cong., 1st Sess., 5-6 (193). The basic terms
of Pub.L. 280, which was the first federal jurisdictional statute
of general applicability to Indian reservation lands, [
Footnote 8] are well known. [
Footnote 9] To five States, it
effected
Page 439 U. S. 472
an immediate cession of criminal and civil jurisdiction over
Indian country, with an express exception for the reservations of
three tribes. Pub.L. 280, §§ 2 and 4. [
Footnote 10] To the remaining
Page 439 U. S. 473
States it gave an option to assume jurisdiction over criminal
offenses and civil causes of action in Indian country without
consulting with or securing the consent of the tribes that
Page 439 U. S. 474
would be affected. States whose constitutions or statutes
contained organic law disclaimers of jurisdiction over Indian
country were dealt with in § 6. [
Footnote 11] The people of those States were given
permission to amend "where necessary" their state constitutions or
existing statutes to remove any legal impediment to the assumption
of jurisdiction under the Act. All others were covered in § 7.
[
Footnote 12]
The Washington Constitution contains a disclaimer of authority
over Indian country, [
Footnote
13] and the State is, therefore, one of those covered by § 6 of
Pub.L. 280. The State did not take any action under the purported
authority of Pub.L. 280 until 1957. In that year, its legislature
enacted a statute which obligated the State to assume criminal and
civil jurisdiction over any Indian reservation within the State at
the request of the tribe affected. [
Footnote 14] Under this legislation, state jurisdiction
was requested by and extended to several Indian tribes within the
State. [
Footnote 15]
Page 439 U. S. 475
In one of the first prosecutions brought under the 1957
jurisdictional scheme, an Indian defendant whose tribe had
consented to the extension of jurisdiction challenged its validity
on the ground that the disclaimer clause in the state constitution
had not been amended in the manner allegedly required by § 6 of
Pub.L. 20.
State v. Paul, 53 Wash.
2d 789,
337 P.2d
33. The Washington Supreme Court rejected the argument,
construing the state constitutional provision to mean that the
barrier posed by the disclaimer could be lifted by the state
legislature. [
Footnote
16]
In 1963, Washington enacted Chapter 36, the law at issue in this
litigation. [
Footnote 17]
The most significant feature of the new statute was its provision
for the extension of at least some jurisdiction over all Indian
lands within the State, whether or not the affected tribe gave its
consent. Full criminal and civil jurisdiction to the extent
permitted by Pub.L. 280 was extended to all fee lands in every
Indian reservation and to trust and allotted lands therein when
non-Indians were involved. Except for eight categories of law,
however, state jurisdiction was not extended to Indians on allotted
and trust lands unless the affected tribe so requested. The eight
jurisdictional categories of state law that were thus extended to
all parts of every Indian reservation were in the areas of
compulsory school attendance, public assistance, domestic
relations,
Page 439 U. S. 476
mental illness, juvenile delinquency, adoption proceedings,
dependent children, and motor vehicles. [
Footnote 18]
The Yakima Indian Nation did not request the full measure of
jurisdiction made possible by Chapter 36, and the Yakima
Reservation thus became subject to the system of jurisdiction
outlined at the outset of this opinion. [
Footnote 19] This litigation followed.
II
The Yakima Nation relies on three separate and independent
grounds in asserting that Chapter 36 is invalid. First, it argues
that, under the terms of Pub.L. 280, Washington was not authorized
to enact Chapter 36 until the state constitution had been amended
by "the people" so as to eliminate its Art. XXVI, which disclaimed
state authority over Indian lands. [
Footnote 20]
Page 439 U. S. 477
Second, it contends that Pub.L. 280 does not authorize a State
to extend only partial jurisdiction over an Indian reservation.
Finally, it asserts that Chapter 36, even if authorized
Page 439 U. S. 478
by Pub.L. 280, violates the Fourteenth Amendment of the
Constitution. We turn now to consideration of each of these
arguments.
III
We first address the contention that Washington was required to
amend its constitution before it could validly legislate under the
authority of Pub.L. 280. If the Tribe is correct, we need not
consider the statutory and constitutional questions raised by the
system of partial jurisdiction established in Chapter 36. The
Tribe, supported by the United States as
amicus curiae,
[
Footnote 21] argues that a
requirement for popular amendatory action is to be found in the
express terms of § 6 of Pub.L. 280 or, if not there, in the terms
of the Enabling Act that admitted Washington to the Union.
[
Footnote 22] The
Page 439 U. S. 479
argument can best be understood in the context of the specific
statutory provisions involved.
A
The Enabling Act under which Washington, along with the States
of Montana, North Dakota, and South Dakota, gained entry into the
Union, was passed in 1889. [
Footnote 23] Section 4 of that
Page 439 U. S. 480
Act required the constitutional conventions of the prospective
new States to enact provisions by which the people disclaimed title
to lands owned by Indians or Indian tribes and acknowledged that
those lands were to remain "under the absolute jurisdiction and
control of" Congress until the Indian or United States title had
been extinguished. The disclaimers were to be made "by ordinances
irrevocable without the consent of the United States and the people
of said States." Washington's constitutional convention enacted the
disclaimer of authority over Indian lands as part of Art. XXVI of
the state constitution. [
Footnote 24] That Article, captioned "Compact with
Page 439 U. S. 481
the Court the United States," is prefaced with the statement --
precisely tracking the language of the admitting statute -- that
"the following ordinance shall be irrevocable without the consent
of the United States and the people of [the Sate of Washington]."
Its substantive terms mirror the language used in the enabling
legislation. We have already noted that two distinct provisions of
Pub.L. 280 are potentially applicable to States not granted an
immediate cession of jurisdiction. The first, § 6, without question
applies to Washington and the seven other States admitted into the
Union under enabling legislation requiring organic law disclaimers
similar to that just described. This much is clear from the
legislative history of Pub.L. 280, [
Footnote 25] as well as from the express language of § 6.
That section provides,
"Notwithstanding the provisions of any Enabling Act for the
admission of a State, the consent of the United States is hereby
given to the people of any State to amend, where necessary, their
State constitution or existing statutes, as the case may be, to
remove any legal impediment to the assumption of civil and criminal
jurisdiction in accordance with the provisions of this Act:
Provided, That the provisions of this Act shall not become
effective with respect to such assumption of jurisdiction by any
such State until the people thereof have appropriately amended
their State constitution or statutes as the case may be."
All other States were covered by § 7. In that section, Congress
gave the consent of the United States
"to any other State . . . to assume jurisdiction at such
Page 439 U. S. 482
time and in such manner as the people of the State shall, by
affirmative legislative action, obligate and bind the State to
assumption thereof."
These provisions appear to establish different modes of
procedure by which an option State, depending on which section
applies to it, is to accept the Pub.L. 280 jurisdictional offer.
The procedure specified in § 7 is straightforward: affirmative
legislative action by which the State obligates and binds itself to
assume jurisdiction. Section 6, in contrast, is delphic. The only
procedure mentioned is action by the people "to amend . . . their
State constitutions or existing statutes, as the case may be" to
remove any legal impediments to the assumption of jurisdiction. The
phrase "where necessary" in the main clause suggests that a
requirement for popular -- as opposed to legislative -- action must
be found if at all in some source of law independent of Pub.L. 280.
The proviso, however, has a different import.
B
The proper construction to be given to the single inartful
sentence in § 6 has provoked chapters of argument from the parties.
The Tribe and the United States urge that, notwithstanding the
phrase "where necessary," § 6 should be construed to mandate
constitutional amendment by disclaimer States. It is their position
that § 6 operates not only to grant the consent of the United
States to state action inconsistent with the terms of the enabling
legislation, but also to establish a distinct procedure to be
followed by Enabling Act States. To support their position, they
rely on the language of the proviso and upon certain legislative
history of § 6. [
Footnote
26]
In the alternative, the Tribe and the United States argue that
popular amendatory action, if not compelled by the terms of § 6, is
mandated by the terms of the Enabling Act of
Page 439 U. S. 483
Feb. 22, 1889, ch 180, § 4. Although they acknowledge that
Congress, in § 6, did grant the "consent of the United States"
required under the Enabling Act before the State could remove the
disclaimer, they contend that § 6 did not eliminate the need for
the "consent of the people" specified in the Enabling Act. In their
view, the 1889 Act -- if not Pub.L. 28 -- dictates that
constitutional amendment is the only valid procedure by which that
consent can be given.
The State draws an entirely different message from § 6. It
contends that the section must be construed in light of the overall
congressional purpose to facilitate a transfer of jurisdiction to
those option States willing to accept the responsibility. Section 6
was designed, it says, not to establish, but to remove legal
barriers to, state action under the authority of Pub.L. 280. The
phrase "where necessary," in its view, is consistent with this
purpose. It would construe the word "appropriately" in the proviso
to be synonymous with "where necessary," and the entire section to
mean that constitutional amendment is required only if "necessary"
as a matter of state law. The Washington Supreme Court having found
that legislative action is sufficient to grant the "consent of the
people" to removal of the disclaimer in Art. XXVI of the state
constitution, [
Footnote 27]
the State argues that the procedural
Page 439 U. S. 484
requirements of § 6 have been fully satisfied. It finds the
Enabling Act irrelevant, since, in its view, § 6 effectively
repealed any federal law impediments in that Act to state assertion
of jurisdiction under Pub.L. 280. [
Footnote 28]
C
From our review of the statutory, legislative, and historical
materials cited by the parties, we are persuaded that Washington's
assumption of jurisdiction by legislative action fully complies
with the requirements of § 6. Although we adhere to the principle
that the procedural requirements of Pub.L. 280 must be strictly
followed,
Kennerly v. District Court of Montana,
400 U. S. 423,
400 U. S. 427;
McClanahan v. Arizona State Tax Comm'n, 411 U.S. at
411 U. S. 180,
and to the general rule that ambiguities in legislation affecting
retained tribal sovereignty are to be construed in favor of the
Indians,
see, e.g., Bryan v. Itasca County, 426 U.S. at
426 U. S. 392,
those principles will not stretch so far as to permit us to find a
federal requirement affecting the manner in which the States are to
modify their organic legislation on the basis of materials that are
essentially speculative.
Cf. Board of County Comm'rs v. United
States, 308 U. S. 343,
308 U. S.
350-351. The language of § 6, its legislative
Page 439 U. S. 485
history, and its role in Pub.L. 280 all clearly point the other
way.
We turn first to the language of § 6. The main clause is framed
in permissive, not mandatory, terms. Had the drafters intended by
that clause to require popular amendatory action, it is unlikely
that they would have included the words "where necessary." As
written, the clause suggests that the substantive requirement for
constitutional amendment must be found in some source of law
independent of § 6. The basic question, then, is whether that
requirement can be found in the language of the proviso to § 6 or
alternatively in the terms of the Enabling Act.
We are unable to find the procedural mandate missing from the
main clause of § 6 in the language of the proviso. That language,
in the abstract, could be read to suggest that constitutional
amendment is a condition precedent to a valid assumption of
jurisdiction by disclaimer States. When examined in its context,
however, it cannot fairly be read to impose such a condition. Two
considerations prevent this reading. First, it is doubtful that
Congress -- in order to compel disclaimer States to amend their
constitutions by popular vote -- would have done so in a provision
the first clause of which consents to that procedure "where
necessary" and the proviso to which indicates that the procedure is
to be followed if "appropriate." Second, the reference to popular
amendatory action in the proviso is not framed as a description of
the procedure the States must follow to assume jurisdiction, but
instead is written as a condition to the effectiveness of "the
provisions of" Pub.L. 280. When it is recalled that the only
substantive provisions of the Act -- other than those arguably to
be found in § 7 -- accomplish an immediate transfer of jurisdiction
to specifically named States, it seems most likely that the proviso
was included to ensure that § 6 would not be construed to effect an
immediate transfer to the disclaimer group of option States. The
main clause removes a federal law barrier
Page 439 U. S. 486
to any new state jurisdiction over Indian country. The proviso
suggests that disclaimer States are not automatically to receive
jurisdiction by virtue of that removal. Without the proviso, in the
event that state constitutional amendment were not found
"necessary," [
Footnote 29] §
6 could be construed as effecting an immediate cession. Congress
clearly wanted all the option States to "obligate and bind"
themselves to assume the jurisdiction offered in Pub.L. 280.
[
Footnote 30] To
Page 439 U. S. 487
be sure, constitutional amendment was referred to as the process
by which this might be accomplished in disclaimer States. But,
given the distinction that Congress clearly drew between those
States and automatic-transfer States, this reference can hardly be
construed to require that process.
Before turning to the legislative history, which, as we shall
see, accords with this interpretation of § 6, we address the
argument that popular amendatory action, if not a requirement of
Pub.L. 280, is mandated by the legislation admitting Washington to
the Union. This argument requires that two assumptions be made. The
first is that § 6 eliminated some, but preserved other, Enabling
Act barriers to a State's assertion of jurisdiction over Indian
country. The second is that the phrase "where necessary" in the
main clause of § 6 was intended to refer to those federal law
barriers that had been preserved. Only if each of these premises is
accepted does the Enabling Act have any possible application.
Since we find the first premise impossible to accept, we proceed
no further. Admitting legislation is, to be sure, the only source
of law mentioned in the main clause of § 6, and might therefore be
looked to as a referent for the phrase "where necessary" in the
clause. This reading, however, is not tenable. It supplies no
satisfactory answer to the question why Congress -- in order to
give the consent of the United States to the removal of state
organic law disclaimer -- would not also have, by necessary
implication, consented to the removal of any procedural constraints
on the States imposed by the Enabling Acts. The phrase
"[n]otwithstanding the provisions of any Enabling Act" in § 6 is
broad -- broad enough to suggest that Congress, when it referred to
a possible necessity for state constitutional amendment, did not
intend thereby to perpetuate any such requirement in an Enabling
Act. Even assuming that the phrase "consent of the people" in the
Enabling Act must be construed to preclude consent by legislative
action -- and the Tribe and the United States have offered
Page 439 U. S. 488
no concrete authority to support this restrictive reading of the
phrase [
Footnote 31] -- we
think it obvious that in the "notwithstanding" clause of § 6
Congress meant to remove any federal impediments to state
jurisdiction that may have been created by an Enabling Act.
The legislative history of Pub.L. 280 supports the conclusion
that § 6 did not, of its own force, establish a state
constitutional amendment requirement, and did not preserve any such
requirement that might be found in an Enabling Act. Public Law 280
was the first jurisdictional bill of general applicability ever to
be enacted by Congress. It reflected congressional concern over the
"law and order" problems on Indian reservations and the financial
burdens of continued federal jurisdictional responsibilities on
Indian lands,
Bryan v. Itasca County, 426 U.
S. 373. It was also, however, without question
reflective of the general assimilationist policy followed by
Congress from the early 1950's through the late 1960's. [
Footnote 32]
Page 439 U. S. 489
See H.R.Rep. No. 848, 83d Cong., 1st Sess. (1953).
See also Hearings on H.R. 459, H.R. 3235, and H.R. 3624
before the Subcommittee on Indian Affairs of the House Committee on
Interior and Insular Affairs, 82d Cong., 2d Sess. (1952)
(hereinafter 1952 Hearings). The failure of Congress to write a
tribal consent provision into the transfer provision applicable to
option States, as well as its failure to consult with the tribes
during the final deliberations on Pub.L. 280, provide ample
evidence of this. [
Footnote
33]
Page 439 U. S. 490
Indeed, the circumstances surrounding the passage of Pub.L. 280
in themselves fully bear out the State's general thesis that Pub.L.
280 was intended to facilitate, not to impede, the transfer of
jurisdictional responsibility to the States. Public Law 280
originated in a series of individual bills introduced in the 83d
Congress to transfer jurisdiction to the five willing States which
eventually were covered in §§ 2 and 4. [
Footnote 34] H.R.Rep. No. 848,
supra. Those
bills were consolidated into H.R. 1063, which was referred to the
House Committee on Interior and Insular Affairs for consideration.
Closed hearings on the bills were held before the Subcommittee on
Indian Affairs on June 29, and before the Committee on July 15,
1953. [
Footnote 35] During
the opening session on June 29,
Page 439 U. S. 491
Committee Members, counsel, and representatives of the
Department of the Interior discussed various proposals designed to
give H.R. 1063 general applicability. June 29 Hearings 1-22. It
rapidly became clear that the Members favored a general bill.
Ibid. At this point, Committee counsel noted that several
States "have constitutional prohibitions against jurisdiction."
Id. at 23. There followed some discussion of the manner in
which these States should be treated. On July 15, a version of § 6
was proposed. July 15 Hearings 6. After further discussion of the
disclaimer problem, the "notwithstanding" clause was added,
id. at 9, and the language eventually enacted as § 6 was
approved by the Committee that day. The speed and the context alone
suggest that § 6 was designed to remove an obstacle to state
jurisdiction, not to create one. And the discussion at the
hearings, which, in essence, were markup sessions, makes this
clear. [
Footnote 36]
Page 439 U. S. 492
While some Committee Members apparently thought that § 6 States,
as a matter of state law, would have to amend their constitutions
in order to remove the disclaimers found there, [
Footnote 37]
Page 439 U. S. 493
there is no indication that the Committee intended to impose any
such requirement. [
Footnote
38]
We conclude that § 6 of Pub.L. 280 does not require disclaimer
States to amend their constitutions to make an effective acceptance
of jurisdiction. We also conclude that any Enabling Act requirement
of this nature was effectively repealed by § 6. If, as a matter of
state law ,a constitutional amendment is required, that procedure
must -- as a matter of state law -- be followed. And if, under
state law, a constitutional amendment is not required, disclaimer
States must still take positive action before Pub.L. 280
jurisdiction can become effective. The Washington Supreme Court
having determined that, for purposes of the repeal of Art. XXVI of
the Washington Constitution, legislative action is sufficient,
[
Footnote 39] and
appropriate state legislation having been enacted, it follows that
the State of Washington has satisfied the procedural requirements
of § 6.
IV
We turn to the question whether the State was authorized under
Pub.L. 280 to assume only partial subject matter and geographic
jurisdiction over Indian reservations within the state. [
Footnote 40]
Page 439 U. S. 494
The argument that Pub.L. 280 does not permit this scheme of
partial jurisdiction relies primarily upon the text of the federal
law. The main contention of the Tribe and the United States is that
partial jurisdiction, because not specifically authorized, must
therefore be forbidden. In addition, they assert that the interplay
between the provisions of Pub.L. 280 demonstrates that § 6 States
are required, if they assume any jurisdiction, to assume as much
jurisdiction as was transferred to the mandatory States. [
Footnote 41] Pointing out that 18
U.S.C. § 1151 defines Indian country for purposes of federal
jurisdiction as including an entire reservation notwithstanding
"the issuance of any patent," they reason that, when Congress, in §
2, transferred to the mandatory States "criminal jurisdiction" over
"offenses committed by or against Indians in the Indian country,"
it meant that all parts of Indian country were to be covered.
Similarly, they emphasize that civil jurisdiction of comparable
scope was transferred to the mandatory
Page 439 U. S. 495
States. They stress that in both §§ 2 and 4, the consequence of
state assumption of jurisdiction is that the state "criminal laws"
and "civil laws of . . . general application" are henceforth to
"have the same force and effect within . . . Indian country as they
have elsewhere within the State." Finally, the Tribe and the United
States contend that the congressional purposes of eliminating the
jurisdictional hiatus thought to exist on Indian reservations, of
reducing the cost of the federal responsibility for jurisdiction on
tribal lands, and of assimilating the Indian tribes into the
general state population are disserved by the type of checkerboard
arrangement permitted by Chapter 36.
We agree, however, with the State of Washington that statutory
authorization for the state jurisdictional arrangement is to be
found in the very words of § 7. That provision permits option
States to assume jurisdiction "in such manner" as the people of the
State shall "by affirmative legislative action, obligate and bind
the State to assumption thereof." Once the requirements of § 6 have
been satisfied, the terms of § 7 appear to govern the scope of
jurisdiction conferred upon disclaimer States. The phrase "in such
manner" in § 7 means at least that any option State can condition
the assumption of full jurisdiction on the consent of an affected
tribe. And here Washington has done no more than refrain from
exercising the full measure of allowable jurisdiction without
consent of the tribe affected.
Section 6, as we have seen, was placed in the Act to eliminate
possible organic law barriers to the assumption of jurisdiction by
disclaimer States. The Tribe and the United States acknowledge that
it is a procedural, not a substantive, section. The clause contains
only one reference of relevance to the partial jurisdiction
question. This is the phrase "assumption of civil and criminal
jurisdiction in accordance with the provisions of this Act." As
both parties recognize, this phrase necessarily leads to other
"provisions" of the Act for
Page 439 U. S. 496
clarification of the substantive scope of the jurisdictional
grant. The first question then is which other "provisions" of the
Act govern. The second is what constraints those "provisions" place
on the jurisdictional arrangements made by option States.
The Tribe argues, as an initial matter, that § 7 is not one of
the "provisions" referred to by § 6. It relies in part upon the
contrast between the phrase "assumption of civil and criminal
jurisdiction" in § 6 and the disjunctive phrase "criminal offenses
or civil causes of action" in § 7. From this distinction between
the "civil
and criminal jurisdiction" language of § 6 and
the optional language in § 7, we are asked to conclude that § 6
States must assume full jurisdiction in accord with the terms
applicable to the mandatory States even though § 7 States are
permitted more discretion. We are unable to accept this argument,
not only because the statutory language does not fairly support it,
but also because the legislative history is wholly to the contrary.
It is clear from the Committee hearings that the States covered by
§ 6 were, except for the possible impediments contained in their
organic laws, to be treated on precisely the same terms as option
states. [
Footnote 42]
Section 6, as we have seen, was essentially an afterthought
designed to accomplish the limited purpose of removing any barrier
to jurisdiction posed by state organic law disclaimers of
jurisdiction over Indians. All option States were originally
treated under the aegis of § 7. [
Footnote 43] The record of the Committee hearings makes
clear that the sole purpose of § 6 was to resolve the disclaimer
problem. [
Footnote 44]
Indeed, to the extent that the Tribe and the United States suggest
that disclaimer States stand on a different footing from all other
option States, their argument makes no sense. It would ascribe to
Congress an
Page 439 U. S. 497
intent to require States that, by force of organic law barriers,
may have had only a limited involvement with Indian country to
establish the most intrusive presence possible on Indian
reservations, if any at all, and, at the same time, an intent to
allow States with different traditions to exercise more restraint
in extending the coverage of their law.
The Tribe and the United States urge that even if, as we have
concluded, all option States are ultimately governed by § 7, the
reference in that section to assumption of jurisdiction "as
provided for in [the] Act" should be construed to mean that the
automatic transfer provisions of §§ 2 and 4 must still apply. The
argument would require a conclusion that the option States stand on
the same footing as the mandatory States. This view is not
persuasive. The mandatory States were consulted prior to the
introduction of the single state bills that were eventually to
become Pub.L. 280. All had indicated their willingness to accept
whatever jurisdiction Congress was prepared to transfer. This,
however, was not the case with the option States. Few of those
States had been consulted, and, from the June 29 and July 15
hearings, it is apparent that the drafters were primarily concerned
with establishing a general transfer scheme that would facilitate,
not impede, future action by other States willing to accept
jurisdiction. It is clear that the "all or nothing" approach
suggested by the Tribe would impede even the most responsible and
sensitive jurisdictional arrangements designed by the States. To
find that, under Pub.L. 280, a State could not exercise partial
jurisdiction, even if it were willing to extend full jurisdiction
at tribal request, would be quite inconsistent with this basic
history.
The language of § 7, which we have found applicable here,
provides, we believe, surer guidance to the issue before us.
[
Footnote 45]
Page 439 U. S. 498
The critical language in § 7 is the phrase permitting the
assumption of jurisdiction "at such time and in such manner as the
people of the State shall . . . obligate and bind the State to
assumption thereof." Whether or not "in such manner" is fully
synonymous with "to such extent," the phrase is at least broad
enough to authorize a State to condition the extension of full
jurisdiction over an Indian reservation on the consent of the tribe
affected.
The United States argues that a construction of Pub.L. 280 which
permits selective extension of state jurisdiction allows a State to
"pick and choose" only those subject matter areas and geographical
parts of reservations over which it would like to assume
responsibility. Congress, we are told, passed Pub.L. 280 not as a
measure to benefit the States, but to reduce the economic burdens
associated with federal jurisdiction on reservations, to respond to
a perceived hiatus in law enforcement protections available to
tribal Indians, and to achieve an orderly assimilation of Indians
into the general population. That these were the major concerns
underlying the passage of Pub.L. 280 cannot be doubted.
See
Bryan v. Itasca County, 426 U.S. at
426 U. S.
379.
But Chapter 36 does not reflect an attempt to reap the benefits
and to avoid the burdens of the jurisdictional offer made by
Congress. To the contrary, the State must assume total jurisdiction
whenever a tribal request is made that it do so. Moreover, the
partial geographic and subject matter jurisdiction that exists in
the absence of tribal consent is responsive to the law enforcement
concerns that underlay the adoption of Pub.L. 280. State
jurisdiction is complete as to all non-Indians on reservations, and
is also complete as to Indians on nontrust lands. The law
enforcement hiatus that preoccupied the 83d Congress has, to that
extent, been eliminated. On trust and restricted lands within the
reservations
Page 439 U. S. 499
whose tribes have not requested the coverage of state law,
jurisdiction over crimes by Indians is, as it was when Pub.L. 280
was enacted, shared by the tribal and Federal Governments. To the
extent that this shared federal and tribal responsibility is
inadequate to preserve law and order, the tribes need only request,
and they will receive, the protection of state law.
The State of Washington, in 1963, could have unilaterally
extended full jurisdiction over crimes and civil causes of action
in the entire Yakima Reservation without violating the terms of
Pub.L. 280. We are unable to conclude that the State, in asserting
a less intrusive presence on the Reservation, while at the same
time obligating itself to assume full jurisdictional responsibility
upon request, somehow flouted the will of Congress. A State that
has accepted the jurisdictional offer in Pub.L. 280 in a way that
leaves substantial play for tribal self-government, under a
voluntary system of partial jurisdiction that reflects a
responsible attempt to accommodate the needs of both Indians and
non-Indians within a reservation, has plainly taken action within
the terms of the offer made by Congress to the States in 1963. For
Congress surely did not deny an option State the power to condition
its offer of full jurisdiction on tribal consent.
V
Having concluded that Chapter 36 violates neither the procedural
nor the substantive terms of Pub.L. 280, we turn, finally, to the
question whether the "checkerboard" pattern of jurisdiction
applicable on the reservations of nonconsenting tribes is, on its
face, invalid under the Equal Protection Clause of the Fourteenth
Amendment. [
Footnote 46] The
Court of Appeals
Page 439 U. S. 500
for the Ninth Circuit concluded that it is, reasoning that the
land-title classification is too bizarre to meet "any formulation
of the rational basis test." 552 F.2d at 1335. The Tribe advances
several different lines of argument in defense of this ruling.
First, it argues that the classifications implicit in Chapter 36
are racial classifications, "suspect" under the test enunciated in
McLaughlin v. Florida, 379 U. S. 184, and
that they cannot stand unless justified by a compelling state
interest. Second, it argues that its interest in self-government is
a fundamental right, and that Chapter 36 -- as a law abridging this
right -- is presumptively invalid. Finally, the Tribe argues that
Chapter 36 is invalid even if reviewed under the more traditional
equal protection criteria articulated in such cases as
Massachusetts Bd. of Retirement v. Murgia, 427 U.
S. 307. [
Footnote
47]
We agree with the Court of Appeals to the extent that its
opinion rejects the first two of these arguments and reflects a
judgment that Chapter 36 must be sustained against an Equal
Protection Clause attack if the classifications it employs
"rationally furthe[r] the purpose identified by the State."
Massachusetts Bd. of Retirement v. Murgia, supra at
427 U. S. 314.
It is settled that "the unique legal status of Indian tribes
under
Page 439 U. S. 501
federal law" permits the Federal Government to enact legislation
singling out tribal Indians, legislation that might otherwise be
constitutionally offensive.
Morton v. Mancari,
417 U. S. 535,
417 U. S.
551-552. States do not enjoy this same unique
relationship with Indians, but Chapter 36 is not simply another
state law. It was enacted in response to a federal measure
explicitly designed to readjust the allocation of jurisdiction over
Indians. The jurisdiction permitted under Chapter 36 is, as we have
found, within the scope of the authorization of Pub.L. 280. And
many of the classifications made by Chapter 36 are also made by
Pub.L. 280. Indeed, classifications based on tribal status and land
tenure inhere in many of the decisions of this Court involving
jurisdictional controversies between tribal Indians and the States,
see, e.g., United States v. McBratney, 104 U.
S. 621. For these reasons, we find the argument that
such classifications are "suspect" an untenable one. The contention
that Chapter 36 abridges a "fundamental right" is also untenable.
It is well established that Congress, in the exercise of its
plenary power over Indian affairs, may restrict the retained
sovereign powers of the Indian tribes.
See, e.g., United States
v. Wheeler, 435 U. S. 313. In
enacting Chapter 36, Washington was legislating under explicit
authority granted by Congress in the exercise of that federal
power. [
Footnote 48]
The question that remains, then, is whether the lines drawn by
Chapter 36 fail to meet conventional Equal Protection Clause
criteria, as the Court of Appeals held. Under those criteria,
legislative classifications are valid unless they bear no rational
relationship to the State's objectives.
Massachusetts Bd. of
Retirement v. Murgia, supra at
427 U. S. 314.
State legislation "does not violate the Equal Protection Clause
merely because the classifications [it makes] are imperfect."
Page 439 U. S. 502
Dandridge v. Williams, 397 U.
S. 471,
397 U. S. 485.
Under these standards, we have no difficulty in concluding that
Chapter 36 does not offend the Equal Protection Clause.
The lines the State has drawn may well be difficult to
administer. But they are no more or less so than many of the
classifications that pervade the law of Indian jurisdiction.
See Seymour v. Superintendent, 368 U.
S. 351;
Moe v. Salish & Kootenai Tribes,
425 U. S. 463.
Chapter 36 is fairly calculated to further the State's interest in
providing protection to non-Indian citizens living within the
boundaries of a reservation, while at the same time allowing scope
for tribal self-government on trust or restricted lands. The
land-tenure classification made by the State is neither an
irrational nor arbitrary means of identifying those areas within a
reservation in which tribal members have the greatest interest in
being free of state police power. Indeed, many of the rules
developed in this Court's decisions in cases accommodating the
sovereign rights of the tribes with those of the States are
strikingly similar.
See, e.g., United States v. McBratney,
supra; Draper v. United States, 164 U.
S. 240;
Williams v. Lee, 358 U.
S. 217;
McClanahan v. Arizona State Tax Comm'n,
411 U. S. 164. In
short, checkerboard jurisdiction is not novel in Indian law, and
does not, as such, violate the Constitution.
For the reasons set out in this opinion, the judgment of the
Court of Appeals is reversed.
It is so ordered.
[
Footnote 1]
The statute, codified as Wash.Rev.Code § 37.12.010 (1976),
provides:
"Assumption of criminal and civil jurisdiction by state. The
State of Washington hereby obligates and binds itself to assume
criminal and civil jurisdiction over Indians and Indian territory,
reservations, country, and lands within this state in accordance
with the consent of the United States given by the act of August
15, 1953 (Public Law 280, 83rd Congress, 1st Session), but such
assumption of jurisdiction shall not apply to Indians when on their
tribal lands or allotted lands within an established Indian
reservation and held in trust by the United States or subject to a
restriction against alienation imposed by the United States, unless
the provisions of R.C.W. 37.12.021 [tribal consent] have been
invoked, except for the following:"
"(1) Compulsory school attendance;"
"(2) Public assistance;"
"(3) Domestic relations;"
"(4) Mental illness;"
"(5) Juvenile delinquency;"
"(6) Adoption proceedings;"
"(7) Dependent children; and"
"(8) Operation of motor vehicles upon the public streets,
alleys, roads and highways:
Provided further, That Indian
tribes that petitioned for, were granted and became subject to
state jurisdiction pursuant to this chapter on or before March 13,
1963 shall remain subject to state civil and criminal jurisdiction
as if chapter 36, Laws of 1963 had not been enacted."
The statute will be referred to in this opinion as Chapter
36.
[
Footnote 2]
Act of Aug. 15, 1953, 67 Stat. 588-590. For the full text of the
Act,
see n 9,
infra.
[
Footnote 3]
The complaint also contained other claims that were decided
adversely to the plaintiff by the District Court. After extensive
discovery and the entry of a pretrial order, the District Court
granted partial summary judgment in favor of the State on several
of these claims. On the question of compliance with Pub.L. 280, the
District Court held that it was bound by the decision of the Court
of Appeals for the Ninth Circuit in
Quinault Tribe of Indians
v. Gallagher, 368 F.2d 648, 656-668, which had determined that
the State of Washington could accept jurisdiction under Pub.L. 280
without first amending its constitution, and that Washington's
jurisdictional arrangement did not constitute an unauthorized
partial assumption of jurisdiction. The District Court also
rejected the claim that Chapter 36 was facially invalid under the
Equal Protection and Due Process Clauses of the Fourteenth
Amendment. The question of the constitutional validity of Chapter
36 as applied to the Yakima Reservation was reserved for a hearing
and factual determination. After a one-week trial, the District
Court found that the appellee had not proved
"that the state or county have discriminated . . . to deprive
any Indian or the plaintiff Tribe of any service or protection,
resource or asset afforded under the same state law to other
citizens or similar geographic location."
The complaint was then dismissed.
The opinion of the District Court is unreported.
[
Footnote 4]
The en banc hearing was ordered by the Court of Appals
sua
sponte after the original panel had heard argument. This
hearing was limited to the question whether that court's earlier
partial jurisdiction holding in
Quinault Tribe of Indians v.
Gallagher, supra, should be overruled. A majority of the en
banc panel agreed with the result in
Quinault, finding no
statutory impediment to the assumption of partial geographic and
subject matter jurisdiction. 550 F.2d at 448. Five judges
dissented.
Id. at 449.
[
Footnote 5]
The three-judge appellate court's equal protection decision was
based upon the disparity created by Chapter 36 in making criminal
jurisdiction over Indians depend upon whether the alleged offense
occurred on fee or nonfee land. 552 F.2d at 1334-1335. The court
found this criterion for the exercise of state criminal
jurisdiction facially unconstitutional. The appellate court found
it unnecessary, therefore, to reach the Tribe's contention that the
eight statutory categories of subject matter jurisdiction are
vague, or its further contention that the
application of
Chapter 36 deprived it of equal protection of the laws. 552 F.2d at
1334.
In its motion to affirm, filed here in response to the
appellants' jurisdictional statement, the Yakima Nation invoked in
support of the judgment "each and every one" of the contentions it
had made in the District Court and Court of Appeals, but limited
its discussion to the equal protection rationale relied upon by the
appellate court. In its brief on the merits, the Tribe has
addressed -- in addition to those subjects implicit in our order
noting probable jurisdiction,
see n 20,
infra, one issue that merits
brief discussion. The Tribe contends that Chapter 36 is void for
failure to meet the standards of definiteness required by the Due
Process Clause of the Fourteenth Amendment, asserting that the
eight subject matter categories over which the State has extended
full jurisdiction are too vague to give tribal members adequate
notice of what conduct is punishable under state law. This
challenge is without merit. As the District Court observed, Chapter
36 creates no new criminal offenses, but merely extends
jurisdiction over certain classes of offenses defined elsewhere in
state law. If those offenses are not sufficiently defined,
individual tribal members may defend against any prosecutions under
them at the time such prosecutions are brought.
See Younger v.
Harris, 401 U. S. 37. The
eight subject matter areas are themselves defined with reasonable
clarity in language no less precise than that commonly accepted in
federal jurisdictional statutes in the same field.
See United
States v. Mazurie, 419 U. S. 544. The
District Court's ruling that Chapter 36 is not void for vagueness
under the Due Process Clause of the Fourteenth Amendment was
therefore correct.
[
Footnote 6]
These are the membership figures given by the District Court.
The United States, in its
amicus curiae brief, has
indicated that more than 5,000 tribal members live permanently on
the Reservation, and that the number increases during the summer
months.
[
Footnote 7]
These abstract principles do not and could not adequately
describe the complex jurisdictional rules that have developed over
the years in case involving jurisdictional clashes between the
States and tribal Indians since
Worcester v. Georgia was
decided. For a full treatment of the subject,
see
generally M. Price, Law and the American Indian (1973); U.S.
Dept. of Interior, Federal Indian Law (1958).
[
Footnote 8]
See Price,
supra, n 7, at 210. Before 1963, there had been other surrenders
of authority to some States.
See, e.g., 62 Stat. 1224, 25
U.S.C. § 232 (New York), 64 Stat. 846, 25 U.S.C. § 233 (New York);
54 Stat. 249 (Kansas); 60 Stat. 229 (North Dakota); and 62 Stat.
1161 (Iowa). Public Law 280, however, was the first federal statute
to attempt an omnibus transfer.
[
Footnote 9]
The Act provides in full:
"
AN ACT"
"To confer jurisdiction on the States of California, Minnesota,
Nebraska, Oregon, and Wisconsin, with respect to criminal offenses
and civil causes of action committed or arising on Indian
reservations within such States, and for other purposes."
"
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That
chapter 53 of title 18, United States Code, is hereby amended by
inserting at the end of the chapter analysis preceding section 1151
of such title the following new item:"
"1162. State jurisdiction over offenses committed by or against
Indians in the Indian country."
"SEC. 2. Title 18, United States Code, is hereby amended by
inserting in chapter 53 thereof immediately after section 1161 a
new section, to be designated as section 1162, as follows:"
"§ 1162. State jurisdiction over offenses committed by or
against Indians in the Indian country"
" (a) Each of the States listed in the following table shall
have jurisdiction over offenses committed by or against Indians in
the areas of Indian country listed opposite the name of the State
to the same extent that such State has jurisdiction over offenses
committed elsewhere within the State, and the criminal laws of such
State shall have the same force and effect within such Indian
country as they have elsewhere within the State:"
State of Indian country affected
California All Indian country within the State
Minnesota All Indian country within the State, except the
Red
Lake Reservation
Nebraska All Indian country within the State
Oregon All Indian country within the State, except the Warm
Springs Reservation
Wisconsin All Indian country within the State, except the
Menominee Reservation
" (b) Nothing in this section shall authorize the alienation,
encumbrance, or taxation of any real or personal property,
including water rights, belonging to any Indian or any Indian
tribe, band, or community that is held in trust by the United
States or is subject to a restriction against alienation imposed by
the United States; or shall authorize regulation of the use of such
property in a manner inconsistent with any Federal treaty,
agreement, or statute or with any regulation made pursuant thereto;
or shall deprive any Indian or any Indian tribe, band, or community
of any right, privilege, or immunity afforded under Federal treaty,
agreement, or statute with respect to hunting, trapping, or fishing
or the control, licensing, or regulation thereof."
" (c) The provisions of sections 1152 and 1153 of this chapter
shall not be applicable within the areas of Indian country listed
in subsection (a) of this section."
"SEC. 3. Chapter 85 of title 28, United States Code, is hereby
amended by inserting at the end of the chapter analysis preceding
section 1331 of such title the following new item:"
"1360. State civil jurisdiction in actions to which Indians are
parties."
"SEC. 4. Title 28, United States Code, is hereby amended by
inserting in chapter 85 thereof immediately after section 1359 a
new section, to be designated as section 1360, as follows:"
"§ 1360. State civil jurisdiction in actions to which Indians
are parties"
" (a) Each of the States listed in the following table shall
have jurisdiction over civil causes of action between Indians or to
which Indians are parties which arise in the area of Indian country
listed opposite the name of the State to the same extent that such
State has jurisdiction over other civil causes of action, and those
civil laws of such State that are of general application to private
persons or private property shall have the same force and effect
within such Indian country as they have elsewhere within the
State:"
State of Indian country affected
California All Indian country within the State
Minnesota All Indian country within the State, except the
Red
Lake Reservation
Nebraska All Indian country within the State
Oregon All Indian country within the State, except the Warm
Springs Reservation
Wisconsin All Indian country within the State, except the
Menominee Reservation
" (b) Nothing in this section shall authorize the alienation,
encumbrance, or taxation of any real or personal property,
including water rights, belonging to any Indian or any Indian
tribe, band,or community that is held in trust by the United States
or is subject to a restriction against alienation imposed by the
United States; or shall authorize regulation of the use of such
property in a manner inconsistent with any Federal treaty,
agreement, or statute or with any regulation made pursuant thereto;
or shall confer jurisdiction upon the State to adjudicate, in
probate proceedings or otherwise, the ownership or right to
possession of such property or any interest therein."
" (c) Any tribal ordinance or custom heretofore or hereafter
adopted by an Indian tribe, band, or community in the exercise of
any authority which it may possess shall, if not inconsistent with
any applicable civil law of the State, be given full force and
effect in the determination of civil causes of action pursuant to
this section."
"SEC. 5. Section 1 of the Act of October 5, 1949 (63 Stat. 705,
ch. 604), is hereby repealed, but such repeal shall not affect any
proceedings heretofore instituted under that section."
"SEC. 6. Notwithstanding the provisions of any Enabling Act for
the admission of a State, the consent of the United States is
hereby given to the people of any State to amend, where necessary,
their State constitution or existing statutes, as the case may be,
to remove any legal impediment to the assumption of civil and
criminal jurisdiction in accordance with the provisions of this
Act:
Provided, That the provisions of this Act shall not
become effective with respect to such assumption of jurisdiction by
any such State until the people thereof have appropriately amended
their State constitution or statutes as the case may be."
"SEC. 7. The consent of the United States is hereby given to any
other State not having jurisdiction with respect to criminal
offenses or civil causes of action, or with respect to both, as
provided for in this Act, to assume jurisdiction at such time and
in such manner as the people of the State shall, by affirmative
legislative action, obligate and bind the State to assumption
thereof."
[
Footnote 10]
See n 9,
supra. The five States given immediate jurisdiction were
California, Minnesota, Nebraska, Oregon, and Wisconsin. Alaska was
added to this group in 1958. Act of Aug. 8, 1958, 72 Stat. 545,
codified at 18 U.S.C.§ 1162, 28 U.S.C. § 1360.
[
Footnote 11]
See n 9,
supra.
[
Footnote 12]
See n 9,
supra.
[
Footnote 13]
Wash. Const., Art. XXVI, � 2.
[
Footnote 14]
Wash.Rev.Code, ch. 37.12 (1976).
[
Footnote 15]
For a detailed discussion of the Washington history under Pub.L.
280,
see 1 National American Indian Court Judges Assn.,
Justice and the American Indian: The Impact of Public Law 280 upon
the Administration of Justice on Indian Reservations (1974).
[
Footnote 16]
The Washington Supreme Court relied upon a previous decision in
which it had rejected a challenge to Washington legislation
permitting taxation of property leased from the Federal Government.
Boeing Aircraft Co. v. Reconstruction Finance Corp., 25
Wash. 2d 652, 171 P.2d 838. The
Boeing legislation was
challenged on the ground that the State had failed to remove by
amendment a constitutional disclaimer of authority to tax federal
property, and the Washington court held in
Boeing that
legislative action was sufficient.
[
Footnote 17]
See n 1,
supra.
[
Footnote 18]
See nn.
1 and |
1 and S. 463fn5|>5,
supra.
[
Footnote 19]
Those tribes that had consented to state jurisdiction under the
1957 law remained fully subject to such jurisdiction. Wash.Rev.Code
§ 37.12.010 (1976). Since 1963, only one tribe, the Colville, has
requested the extension of full state jurisdiction. 1 National
American Indian Court Judges,
supra, n 15, at 77-81. The Yakima Nation, ever since
1952, when its representatives objected before a congressional
committee to a predecessor of Pub.L. 280,
see n 33,
infra, has
consistently contested the wisdom and the legality of attempts by
the State to exercise jurisdiction over its Reservation lands.
See ibid.
[
Footnote 20]
Washington strenuously argues that this question is not properly
before the Court. We think that it is. The Yakima Indian Nation has
pressed this issue throughout the litigation. In its motion to
dismiss or affirm, the alleged invalidity of Washington's
legislative assumption of jurisdiction was presented as a basis
upon which the judgment below should be sustained.
See
n 5,
supra. As the
prevailing party, the appellee was, of course, free to defend its
judgment on any ground properly raised below, whether or not that
ground was relied upon, rejected, or even considered by the
District Court or the Court of Appeals.
United States v.
American Ry. Express Co., 265 U. S. 425,
265 U. S.
435-436;
Dandridge v. Williams, 397 U.
S. 471,
397 U. S. 475,
and n. 6. Moreover, the disclaimer issue was implicit in the
subjects the parties were requested to address in our order noting
probable jurisdiction of this appeal. 435 U.S. 903.
Cf. Gent v.
Arkansas, 384 U.S. 937;
Zicarelli v. New Jersey State
Comm'n, 401 U.S. 933.
Washington also contends that this Court's summary dismissals in
Makah Indian Tribe v. State, 76 Wash.
2d 485,
457 P.2d
590,
appeal dismissed, 397 U.
S. 316;
Tonasket v. State, 84 Wash. 2d
164,
525 P.2d
744,
appeal dismissed, 420 U.S. 915; and
Comenout
v. Burdman, 84 Wash. 2d
192,
525 P.2d
217,
appeal dismissed, 420 U.S. 915, should preclude
reconsideration of the disclaimer issue here. In those cases, it
had been argued that Washington's statutory assumption of
jurisdiction was ineffective under Pub.L. 280 and invalid under the
state constitution because of the absence of a constitutional
amendment eliminating Art. XXVI. In each case, the Washington
Supreme Court rejected both the state constitutional and the
federal arguments. On appeal from each, the appellants questioned
the validity of the state court's conclusion that, under the
federal statute, no constitutional amendment was required. Our
summary dismissals are, of course, to be taken as rulings on the
merits,
Hicks v. Miranda, 422 U.
S. 332,
422 U. S.
343-345, in the sense that they rejected the "specific
challenges presented in the statement of jurisdiction" and left
"undisturbed the judgment appealed from."
Mandel v.
Bradley, 432 U. S. 173,
432 U. S. 176.
They do not, however, have the same precedential value here as does
an opinion of this Court after briefing and oral argument on the
merits,
Edelman v. Jordan, 415 U.
S. 651,
415 U. S.
670-671;
Richardson v. Ramirez, 418 U. S.
24,
418 U. S. 53. A
summary dismissal of an appeal represents no more than a view that
the judgment appealed from was correct as to those federal
questions raised and necessary to the decision. It does not, as we
have continued to stress,
see, e.g., Mandel v. Bradley,
supra, necessarily reflect our agreement with the opinion of
the court whose judgment is appealed. It is not at all unusual for
the Court to find it appropriate to give full consideration to a
question that has been the subject of previous summary action.
Massachusetts Bd. of Retirement v. Murgia, 427 U.
S. 307,
427 U. S. 309
n. 1;
Usery v. Turner Elkhorn Mining Co., 428 U. S.
1,
428 U. S. 14. We
do so in this case. The question that Washington asks us to avoid
or to resolve on the basis of
stare decisis has never
received full plenary attention here. It has been the subject of
extensive briefing and argument by the parties. It has provoked
several, somewhat uncertain, opinions from the Washington courts,
see n 27,
infra whose ultimate judgments were the subjects of
summary dismissals here. Finally, it is an issue upon which the
Executive Branch of the United States Government has recently
changed its position diametrically, as explained in its
amicus brief and oral argument in this case.
[
Footnote 21]
The United States has fully briefed the constitutional amendment
question and the question whether partial jurisdiction is
authorized by Pub.L. 280. Its position on the equal protection
holding of the Court of Appeals is equivocal.
[
Footnote 22]
The Tribe also contends that, under its 1855 Treaty with the
United States, 12 Stat. 951, it was guaranteed a right of
self-government that was not expressly abrogated by Pub.L. 280. The
argument assumes that, under our cases,
see, e.g., Menominee
Tribe v. United States, 391 U. S. 404,
treaty rights are preserved unless Congress has shown a specific
intent to abrogate them. Although we have stated that the intention
to abrogate or modify a treaty is not to be lightly imputed,
id. at
391 U. S. 413;
Pigeon River Co. v. Cox Co., 291 U.
S. 138,
291 U. S. 160,
this rule of construction must be applied sensibly. In this
context, the argument made by the Tribe is tendentious. The treaty
right asserted by the Tribe is jurisdictional. So also is the
entire subject matter of Pub.L. 280. To accept the Tribe's position
would be to hold that Congress could not pass a jurisdictional law
of general applicability to Indian country unless, in so doing, it
itemized all potentially conflicting treaty rights that it wished
to affect. This we decline to do. The intent to abrogate
inconsistent treaty rights is clear enough from the express terms
of Pub.L. 280.
[
Footnote 23]
Act of Feb. 22, 1889, ch. 180, § 4, 25 Stat. 676. The Act
provides:
"
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That the
inhabitants of all that part of the area of the United States now
constituting the Territories of Dakota, Montana, and Washington, as
at present described, may become the States of North Dakota, South
Dakota, Montana, and Washington, respectively, as hereinafter
provided."
"
* * * *"
"SEC. 4. That the delegates to the conventions elected as
provided for in this act shall meet at the seat of government of
each of said Territories . . . after organization, shall declare,
on behalf of the people of said proposed States, that they adopt
the Constitution of the United States; whereupon the said
conventions shall be, and are hereby, authorized to form
constitutions and States governments for said proposed States,
respectively. The constitutions shall be republican in form, and
make no distinction in civil or political rights on account of race
or color, except as to Indians not taxed, and not be repugnant to
the Constitution of the United States and the principles of the
Declaration of Independence. And said conventions shall provide, by
ordinances irrevocable without the consent of the United States and
the people of said States:"
"
* * * *"
"Second. That the people inhabiting said proposed States do
agree and declare that they forever disclaim all right and title to
the unappropriated public lands lying within the boundaries
thereof, and to all lands lying within said limits owned or held by
any Indian or Indian tribes; and that until the title thereto shall
have been extinguished by the United States, the same shall be and
remain subject to the disposition of the United States, and said
Indian lands shall remain under the absolute jurisdiction and
control of the Congress of the United States. . . ."
Other admitting Acts requiring a disclaimer of authority over
Indian lands are Act of July 16, 1894, ch. 138, 28 Stat. 107
(Utah); Act of June 16, 1906, ch. 3335, 34 Stat. 267 (Oklahoma);
Act of June 20, 1910, ch. 310, 36 Stat. 557 (Arizona and New
Mexico). The language of these Acts is virtually the same as that
of 25 Stat. 676.
[
Footnote 24]
Article XXVI reads as follows:
"
COMPACT WIT THE UNITED STATES"
"The following ordinance shall be irrevocable without the
consent of the United States and the people of this state:"
"
* * * *"
"Second. That the people inhabiting this state do agree and
declare that they forever disclaim all right and title to the
unappropriated public lands lying within the boundaries of this
state, and to all lands lying within said limits owned or held by
any Indian or Indian tribes; and that until the title thereto shall
have been extinguished by the United States, the same shall be and
remain subject to the disposition of the United States, and said
Indian lands shall remain under the absolute jurisdiction and
control of the congress of the United States and that the lands
belonging to citizens of the United States residing without the
limits of this state shall never be taxed at a higher rate than the
lands belonging to residents thereof; and that no taxes shall be
imposed by the state on lands or property therein, belonging to or
which may be hereafter purchased by the United States or reserved
for use:
Provided, That nothing in this ordinance shall
preclude the state from taxing as other lands are taxed any lands
owned or held by any Indian who has severed his tribal relations,
and has obtained from the United States or from any person a title
thereto by patent or other grant, save and except such lands as
have been or may be granted to any Indian or Indians under any act
of congress containing a provision exempting the lands thus granted
from taxation, which exemption shall continue so long and to such
an extent as such act of congress may prescribe."
[
Footnote 25]
See H.R.Rep. No. 848, 83d Cong., 1st Sess. (1953).
According to this report accompanying H.R. 1063 (the House version
of Pub.L. 280),
"[e]xamination of the Federal statutes and State constitutions
has revealed that enabling acts for eight States, and in
consequence the constitutions of those States, contain express
disclaimers of jurisdiction. Included are Arizona, Montana, New
Mexico, North Dakota, Oklahoma, South Dakota, Utah, and
Washington."
H.R.Rep. No. 848, at 6.
[
Footnote 26]
See n 35,
infra and accompanying text.
[
Footnote 27]
The validity of Chapter 36 was first challenged in the federal
courts in
Quinault Tribe of Indians v. Gallagher, 368 F.2d
648 (CA9). In
Quinault, the Court of Appeals for the Ninth
Circuit held that, under § 6 and the Enabling Act, the consent of
the people to removal of the disclaimer need only be made in some
manner "valid and binding under state law."
Id. at 657.
Relying on the Washington Supreme Court's holding in
State v.
Paul, 53 Wash. 2d
789,
337 P.2d
33, that legislative action would suffice, it concluded that
Washington's assumption of jurisdiction was valid. When Chapter 36
was first challenged in the state courts, the Washington Supreme
Court reaffirmed its holding in
State v. Paul. See
Makah Indian Tribe v. State, 76 Wash.
2d 485,
457 P.2d
590;
Tonasket v. State, 84 Wash.
2d 164,
525 P.2d
744.
See also n
16,
supra. In
Makah, the Court reasoned, as it
had in
Paul, that the makers of the Washington
Constitution intended that for purposes of Art. XXVI "the people
would speak through the mouth of the legislature." 76 Wash. 2d at
490, 457 P.2d at 593. In addition, it relied on
Quinault
for the proposition that, under § 6, the constitutional disclaimer
need be removed only by a method binding under state law. In
Tonasket, the Washington court reaffirmed this reasoning.
It also relied on the alternative ground that the disclaimer in
Art. XXVI could be construed not to preclude "criminal and civil
regulation" on Indian lands, and therefore would not stand as a
barrier to state jurisdiction. 84 Wash. 2d at 177, 525 P.2d at
752.
[
Footnote 28]
The State asserts as well that the Washington constitutional
disclaimer does not pose any substantive barrier to state
assumption of jurisdiction over fee and unrestricted lands within
the reservation. In light of our holding that Washington has
satisfied the procedural requirements for repealing the disclaimer,
we need not consider the scope of this state constitutional
provision.
[
Footnote 29]
Disclaimer States have responded in diverse ways to the Pub.L.
280 offer of jurisdiction.
See Goldberg, Pub.L. 280: The
Limits of State Jurisdiction over Reservation Indians, 22 UCLA
L.Rev. 535, 546-548, 567-575 (1975). Only one -- North Dakota --
has amended its constitution. Art. 16, N.D.Const., amended by Art.
68, June 24, 1958 (1957 N.D.Laws, ch. 403; 1959 N.D.Laws, ch.
430).
[
Footnote 30]
In
Kennerly v. District Court of Montana, 400 U.
S. 423, we emphasized the need for the responsible
jurisdictions to "manifes[t] by political action their willingness
and ability to discharge their new responsibilities."
Id.
at
400 U. S. 427.
Kennerly involved an attempt by the state courts of Montana to
assert civil jurisdiction over a transaction that occurred within
reservation boundaries. The tribe had requested state jurisdiction,
but the State had not obligated itself to assume it. The case was
litigated on the theory that § 7 was applicable. We held that the
State must comply with the § 7 requirement of "affirmative
legislative action." 400 U.S. at
400 U. S. 427.
Two of our other cases involving Pub.L. 280 also illustrate the
need for responsible action under the federal statute. In
Williams v. Lee, 358 U. S. 217, we
held that the State of Arizona -- one of the disclaimer States --
could not validly exercise jurisdiction over a civil action brought
by a non-Indian against an Indian for a transaction that occurred
on the Navaho Reservation. We relied on the traditional principle
that a State may not infringe the right of reservation Indians "to
make their own laws and be ruled by them" without an express
authorization by Congress.
Id. at
358 U. S. 220.
In
Williams, the State had not attempted to comply with §
6: the state court had taken jurisdiction without state statutory
or constitutional authorization. A similar situation obtained in
McClanahan v. Arizona State Tax Comm'n, 411 U.
S. 164. There we held that Arizona could not, by simple
legislative enactment, tax income earned by a Navaho from
reservation sources. The tax statute at issue was not framed as a
measure obligating the State to assume responsibility under Pub.L.
280.
[
Footnote 31]
There is, for example, nothing in the legislative history of the
Enabling Act to indicate that the "consent of the people" could be
given only by a process of constitutional amendment. The scant
legislative record of the Enabling Act is devoted to a debate over
the wisdom of splitting the Dakota Territory into two States and of
admitting both immediately to the Union. In none of these debates
was there any extended discussion of the Indian land disclaimer or
any indication that the "consent of the people" to removal of the
disclaimer could not be given by the people's representatives in
the legislature.
See Adverse Reports of the House
Committee on the Territories, May 1886 and Feb. 1888, annexed to
H.R.Rep. No. 1025, 50th Cong., 1st Sess., 19-25 (1888).
See
also e.19 Cong.Rec. 2804, 2883, 3001, 3117 (1888); 20
Cong.Rec. 801, 869 (1889). The only explicit references to the
disclaimer of authority over Indian lands are found in H.R.Rep. No.
1025,
supra, at 8-9 (calling attention to fact that, by
the terms of the bill, large Indian reservations in the Dakota
Territory "remain within the exclusive control and jurisdiction of
the United States") and in 19 Cong.Rec. 2832 (1888) (Oklahoma
Delegate objecting to the disclaimer).
[
Footnote 32]
That policy was formally announced in H.R.Con.Res. 108, 67 Stat.
B132, approved on July 27, 1953, the same day that Pub.L. 280 was
passed by the House. 99 Cong.Rec. 9968 (1953). As stated in
H.R.Con.Res. 108, the policy of Congress was,
"as rapidly as possible, to make the Indians within the
territorial limits of the United States subject to the same laws
and entitled to the same privileges and responsibilities as are
applicable to other citizens of the United States, to end their
status as wards of the United States, and to grant them all of the
rights and prerogatives pertaining to American citizenship. . .
."
This policy reflected a return to the philosophy of the General
Allotment Act of 1887, ch. 119, § 1,24 Stat. 388, as amended, 25
U.S.C. § 331, popularly known as the Dawes Act, a philosophy which
had been rejected with the passage of the Indian Reorganization Act
of 1934, 48 Stat. 984.
In
Bryan v. Itasca County, 426 U.
S. 373, the Court emphasized that Pub.L. 280 was not a
termination measure, and should not be construed as such. Our
discussion here is not to the contrary. The parties agree that
Pub.L. 280 reflected an assimilationist philosophy. That Congress
intended to facilitate assimilation when it authorized a transfer
of jurisdiction from the Federal Government to the States does not
necessarily mean, however, that it intended in Pub.L. 280 to
terminate tribal self-government. Indeed, the Tribe has argued
that, even after the transfer, tribal courts retain concurrent
jurisdiction in areas in which they formerly shared jurisdiction
with the Federal Government. This issue, however, is not within the
scope of our order noting probable jurisdiction,
see
n 20,
supra, and we
do not decide it here.
[
Footnote 33]
These features of Pub.L. 280 have attracted extensive criticism.
See generally Goldberg,
supra, n 29. Indeed, the experience of the Yakima
Nation is, in itself, sufficient to demonstrate why the Act has
provoked so much criticism. In 1952, in connection with the
introduction of bills that proposed a general jurisdictional
transfer,
see 1952 Hearings, a representative of the
Yakimas testified that the Tribe was opposed to the extension of
state jurisdiction on the Yakima Reservation. He stated:
"The Yakima Indians . . . feel that, in the State Courts, they
will not be treated as well as they are in the Federal courts,
because they believe that many of the citizens of the State are
still prejudiced against the Indians."
"They are now under the Federal laws, and have their own tribal
laws, customs, and regulations. This system is working well, and
the Yakima Tribe believes that it should be continued, and not
changed at this time."
Id. at 84-85.
In 1953, when the Indian Affairs Subcommittee of the House
Committee on Indian Affairs considered the final version of Pub.L.
280, the Committee was again aware that the Yakima Nation opposed
state jurisdiction. The House Report accompanying H.R. 1063
contains a letter from the Department of the Interior listing the
Tribe as among those opposed to "being subjected to State
jurisdiction" and having a "tribal law and order organization that
functions in a reasonably satisfactory manner." H.R.Rep. No. 848,
83d Cong., 1st Sess., 7 (1953). Had Washington been included among
the mandatory States, it is thus quite possible that the Yakima
Reservation would have been excepted.
[
Footnote 34]
Similar bills had been introduced in the 82d Congress, and in
public hearings held on those the idea of a general transfer was
discussed at length.
See 1952 Hearings.
[
Footnote 35]
See unpublished transcript of Hearings on H.R. 1063
before the Subcommittee on Indian Affairs of the House Committee on
Interior and Insular Affairs, 83d Cong., 1st Sess. (June 29, 1953),
and unpublished transcript of Hearings on H.R. 1063 before the
House Committee on Interior and Insular Affairs, 83d Cong., 1st
Sess. (July 15, 1953) (hereinafter cited as June 29 Hearings and
July 15 Hearings, respectively). The transcripts of these hearings
were first made available to this Court by the United States during
the briefing of
Tonasket v. Washington, 411 U.
S. 451. They were again supplied in
Bryan v. Itasca
County, supra, and, for this appeal, have been reproduced in
full in the Appendix to Brief for Appellee. These hearings, along
with the House Report on H.R. 1063 as amended, H.R.Rep. No. 848,
supra, and the Senate Report which is virtually identical,
S.Rep. No. 699, 83d Cong., 1st Sess. (1953), constitute the primary
legislative materials on Pub.L. 280.
[
Footnote 36]
On July 15, Committee counsel presented an amendment which was
eventually to become § 6. He explained the effect of the amendment
as follows:
"[T]he legislation as acted upon by the committee would apply to
only five states. The two additional section amendments would apply
first to the eight states having constitutional or organic law
impediments and would grant consent of the United States for them
to remove such impediments and thus to acquire jurisdiction."
"The other amendment would apply to any other Indian states . .
. who would acquire jurisdiction at such time as the legislative
body affirmatively indicated their desire to so assume
jurisdiction."
July 15 Hearings 4. Immediately after the proposed § 6 was read
to the Subcommittee, the Chairman, Congressman D'Ewart,
commented:
"I do not think we have to grant permission to a state to amend
its own statutes."
July 15 Hearings 7. Committee counsel replied:
"Mr. D'Ewart, I believe the reason for this is that, in some
instances, it is spelled out both in the constitution and the
statutory provisions as a result of the Act, and it may be
unnecessary, but, by some state courts, it may be interpreted as
being necessary."
Ibid.
The version of § 6 read to the Committee Members by counsel
contained no reference to the Enabling Acts, but merely granted
consent for the States to remove existing impediments to the
assertion of jurisdiction over Indians. It was suggested that, in
order effectively to authorize the States to modify their organic
legislation, the clause should be more specific. This suggestion
resulted in the proposal of the "notwithstanding" clause. The
following exchange then took place:
"[Committee counsel]: I believe that clause 'notwithstanding any
provisions of the Enabling Act' for such states might well be
included. It would make clear that Congress was repealing the
Enabling Act."
"[Congressman Dawson]: To give permission to amend their
constitution."
"[Committee counsel]: I think that would help clarify the intent
of the committee at the present time and of Congress if they
favorably acted on the legislation."
Id. at 9.
The next day, July 16, the Committee filed its report on the
substitute bill. H.R.Rep. No. 848,
supra. The Report
explains that § 6 would
"give consent of the United States to those States presently
having organic laws expressly disclaiming jurisdiction to acquire
jurisdiction subsequent to enactment by amending or repealing such
disclaimer laws."
The Committee hearings thus make clear an intention to remove
any federal barriers to the assumption of jurisdiction by Enabling
Act States. They also make clear that that consent was not to
effect an immediate transfer of jurisdiction.
[
Footnote 37]
See June 29 Hearings 23; July 15 Hearings 6-11.
[
Footnote 38]
The House passed the bill without debate on July 27, 1953. 99
Cong.Rec. 9962-993. In the Senate, the bill was referred to the
Committee on Interior and Insular Affairs.
Id. at 10065.
That Committee held no hearings of its own, and it reported out the
bill two days later without amendment.
Id. at 10217. The
bill received only brief consideration on the Senate floor before
it was passed on August 1, 1953.
Id. at 10783-10784.
[
Footnote 39]
The Tribe has intimated that the Washington Supreme Court's
holding is incorrect. However, the procedure by which the
disclaimer might be removed or repealed -- Congress having given
its consent -- is, as we have held, a question of state law.
[
Footnote 40]
Both parties find support for their positions on this issue in
the legislative history of the amendments to Pub.L. 280 in Title IV
of the Indian Civil Rights Act of 1968, 82 Stat. 73. The 1968
legislation provides that States that have not extended criminal or
civil jurisdiction to Indian country can make future extensions
only with the consent of the tribes affected. 25 U.S.C. §§ 1321(a),
1322(a). The amendments also provide explicitly for partial
assumption of jurisdiction.
Ibid. In addition, they
authorize the United States to accept retrocessions of
jurisdiction, full or partial, from the mandatory and the § 7
States. 25 U.S.C. § 1323(a). Section 7 itself was repealed with the
proviso that the repeal was not intended to affect any cession made
prior to the repeal. 25 U.S.C. § 1323(b). Section 6 was reenacted
without change. 25 U.S.C. § 1324.
We do not rely on the 1968 legislation or its history, finding
the latter equivocal, and mindful that the issues in this case are
to be determined in accord with legislation enacted by Congress in
1953.
[
Footnote 41]
Since entire reservations were exempted from coverage in three
of the mandatory States, the Tribe and the United States concede
that the option States could probably assume jurisdiction on a
"reservation by reservation" basis. The United States also concedes
that the word "or" in § 7 might be construed to mean that option
States need not extend both civil and criminal jurisdiction.
[
Footnote 42]
See June 29 and July 15 Hearings.
[
Footnote 43]
See ibid.
[
Footnote 44]
See, e.g., July 15 Hearings 4.
[
Footnote 45]
The 1968 amendments, which reenacted § 6 without change as 25
U.S.C. § 1324 but repealed § 7, 25 U.S.C. § 1323(b), and added
substantive jurisdictional provisions covering "any State,"
see 25 U.S.C. §§ 1321, 1322, suggest that in the future
the scope of jurisdiction for all State is to be the same.
[
Footnote 46]
The Court of Appeals did not disturb the finding of the District
Court that Chapter 36 had not been applied on the Yakima
Reservation to discriminate against the Tribe or any of its
members. The District Court found that the governmental legal
services available to the Tribe and its members were not
significantly different from those offered to other rural and city
residents of Yakima County. It also concluded that the distinctions
drawn between non-Indians and Indians in the statute were not
motivated by a discriminatory purpose. In view of these findings,
our inquiry here is limited to the narrow question whether the
distinctions drawn in Chapter 36 on their face violate the Equal
Protection Clause of the Fourteenth Amendment.
[
Footnote 47]
The Court of Appeals limited its holding to the land-tenure
classification. The Tribe, in support of the judgment, has argued
that the Chapter 36 classifications based on the tribal status of
the offender, and on whether a juvenile is involved, are also
facially invalid. In our view, these status classifications of
Chapter 36 are indistinguishable from the interrelated land-tenure
classification so far as the Equal Protection Clause is
concerned.
[
Footnote 48]
This is not to hold that Pub.L. 280 was a termination measure.
Whether there is concurrent tribal and state jurisdiction on some
areas of the Reservation is an issue we do not decide.
See
n 32,
supra.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins,
dissenting.
For over 140 years, the Court has resolved ambiguities in
statutes, documents, and treaties that affect retained tribal
sovereignty in favor of the Indians. [
Footnote 2/1] This interpretive principle
Page 439 U. S. 503
is a response to the unique relationship between the Federal
Government and the Indian people, "who are the wards of the nation,
dependent upon its protection and good faith."
Carpenter v.
Shaw, 280 U. S. 363,
280 U. S. 367
(1930). More fundamentally, the principle is a doctrinal embodiment
of "the right of [Indian nations] to male their own laws and be
ruled by them,"
Williams v. Lee, 358 U.
S. 217,
358 U. S. 220
(1959), a right emphatically reaffirmed last Term in
United
States v. Wheeler, 435 U. S. 313,
435 U. S.
322-330 (1978). Although retained tribal sovereignty
"exists only at the sufferance of Congress,"
id. at
435 U. S. 323,
the States may not encroach upon an Indian nation's internal
self-government until Congress has unequivocally sanctioned their
presence within a reservation.
See ibid.; McClanahan v. Arizona
State Tax Comm'n, 411 U. S. 164,
411 U. S.
168-169,
411 U. S.
172-173;
Worcester v.
Georgia, 6 Pet. 515,
31 U. S. 554,
31 U. S. 557,
31 U. S. 561
(1832);
see also Oliphant v. Suquamish Indian Tribe,
435 U. S. 191,
435 U. S. 212
(1978) (MARSHALL, J., dissenting).
While the Court, in its discussion of the disclaimer issue,
professes to follow this settled principle of statutory
interpretation,
ante at
439 U. S. 484,
it completely ignores the rule when addressing Washington's
assertion of partial jurisdiction. In my view, the language and
legislative history of Pub.L. 280 do not unequivocally authorize
States to assume the type of selective geographic and subject
matter jurisdiction that Washington asserted in 1963. [
Footnote 2/2] Because our precedents
compel
Page 439 U. S. 504
us to construe the statute in favor of the Indians, I
respectfully dissent.
As is evident from the majority opinion, the text of Pub.L. 280
does not, on its face, empower option States to assert partial
geographic or subject matter jurisdiction over Indian reservations.
[
Footnote 2/3] The statute refers
without limitation to "criminal" and "civil" jurisdiction.
Nevertheless, because option States could have conditioned their
exercise of full jurisdiction on the consent of affected tribes,
ante at
439 U. S. 495,
439 U. S. 498,
and because Pub.L. 280 would have permitted Washington to extend
full jurisdiction over the Yakima Indian Reservation without
consulting the Tribe,
ante at
439 U. S. 499,
the Court concludes that the States can unilaterally assert less
than full jurisdiction.
I agree that Pub.L. 280 permits option States to refuse
jurisdiction absent the consent of the Indians, and that, prior to
the 1968 amendments of the Act, [
Footnote 2/4] Washington could have unilaterally
extended full jurisdiction over the Reservation. But the majority
does not explain how the statutory language governing exercise of
full jurisdiction allows the States to exercise piecemeal
jurisdiction. That Washington has done no more than "refrain from
exercising the full measure of allowable jurisdiction,"
ante at
439 U. S. 495,
raises but does not answer
Page 439 U. S. 505
the critical question whether Pub.L. 280 sanctions this
jurisdictional arrangement.
The sparse legislative history of Pub.L. 280, like the statutory
language, says nothing about the propriety of partial
jurisdictional schemes. In light of the expressed reluctance of at
least one State to assume the financial burden that jurisdiction
over Indian territory entails, [
Footnote 2/5] this silence is particularly instructive.
Although selective assertion of jurisdiction within reservations
would obviously ameliorate such fiscal concerns, at no point in the
congressional deliberations was it advanced as a solution. Rather,
Congress permitted the option States to refrain from exercising
full jurisdiction until they could meet their financial
obligations. [
Footnote 2/6] The
legislative focus was clearly on full-fledged assumption of
jurisdiction. [
Footnote 2/7]
To disregard this legislative focus and allow assumption of
partial jurisdiction undermines an important purpose behind Pub.L.
280. In enacting the statute, Congress sought to eliminate the
serious "hiatus in law enforcement authority" on Indian
reservations, H.R.Rep. No. 848,
supra, 439
U.S. 463fn2/5|>n. 5, at 6, which was attributable in large
part to the division of law enforcement functions among federal,
state, and Indian authorities. [
Footnote 2/8] It intended to accomplish this goal by
granting
Page 439 U. S. 506
to the States the authority previously exercised by the Federal
Government, thereby simplifying the administration of law on Indian
reservations.
See 1953 Subcommittee Hearings 7.
Washington's complex jurisdictional system, dependent on the status
of the offender, the location of the crime, and the type of offense
involved, by no means simplifies law enforcement on the Yakima
Reservation.
Cf. 1 National American Indian Court Judges
Assn., Justice and the American Indian: The Impact of Public Law
280 upon the Administration of Justice on Indian Reservations 6-13
(1974). To the contrary, it exacerbates the confusion that the
statute was designed to redress
Had Congress intended to condone exercise of limited subject
matter jurisdiction on a random geographic basis, it could have
easily expressed this purpose.
See Bryan v. Itasca County,
426 U. S. 373,
426 U. S.
392-393 (1976);
Mattz v. Arnett, 412 U.
S. 481,
412 U. S.
504-505 (1973);
McClanahan v. Arizona State Tax
Comm'n, 411 U.S. at
411 U. S.
173-175, and n. 13;
Menominee Tribe of Indians v.
United States, 391 U. S. 404,
391 U. S.
412-413 (1968);
Creek County Comm'rs v. Seber,
318 U. S. 705,
318 U. S. 713
(1943). Indeed, it did so in the 1968 amendments to the Act, when
it authorized partial criminal or civil jurisdiction by subject
matter, geography, or both, but only with the Indians' consent. 25
U.S.C. §§ 1321(a), 1322(a). [
Footnote
2/9] I am unwilling to
Page 439 U. S. 507
presume that Congress' failure in 1953 to sanction piecemeal
jurisdiction in similar terms was unintentional. In any event, it
is indisputable that the statute does not unambiguously authorize
assertion of partial jurisdiction. If we adhere more than nominally
to the practice of resolving ambiguities in favor of the Indians,
then Washington's jurisdictional arrangement cannot stand.
Accordingly, I dissent.
[
Footnote 2/1]
E.g., 31 U. S.
Georgia, 6 Pet. 515,
31 U. S.
580-582 (1832) (McLean, J., concurring);
72 U. S. Board of
Comm'rs of the County of Miami), 5 Wall. 737,
72 U. S. 760
(1867);
Jones v. Meehan, 176 U. S. 1,
176 U. S. 11-12
(1899);
Cherokee Intermarriage Cases, 203 U. S.
76,
203 U. S. 94
(1906);
Choate v. Trapp, 224 U. S. 665,
224 U. S. 675
(1912);
Alaska Pacific Fisheries v. United States,
248 U. S. 78,
248 U. S. 89
(1918);
Carpenter v. Shaw, 280 U.
S. 363,
280 U. S.
366-367 (1930);
United States v. Santa Fe Pacific R.
Co., 314 U. S. 339,
314 U. S.
353-354 (1941);
Squire v. Capoeman,
351 U. S. 1,
351 U. S. 6-7
(1956);
Menominee Tribe of Indians v. United States,
391 U. S. 404,
391 U. S. 406
n. 2 (1968);
McClanahan v. Arizona State Tax Comm'n,
411 U. S. 164,
411 U. S.
173-175, and n. 13 (1973);
Bryan v. Itasca
County, 426 U. S. 373,
426 U. S.
392-393 (1976).
[
Footnote 2/2]
Since I would invalidate Washington's jurisdictional arrangement
on this ground, I need not address the disclaimer issue. For
present purposes, I will assume that Washington was not required to
amend its constitutional disclaimer of authority over Indian lands
before it could exercise power over the Reservation.
[
Footnote 2/3]
It may be that the disjunctive language of § 7 allows option
States to exercise either criminal or civil jurisdiction.
See
ante at
439 U. S.
496-497, and n. 41. And perhaps extension of
jurisdiction reservation by reservation is also permissible.
See ante at
439 U. S. 494
n. 41. But neither of these questions is posed by this case. The
issue presented here is whether the language of Pub.L. 280
authorizes any patchwork jurisdictional arrangement that suits the
States' peculiar interests.
[
Footnote 2/4]
These amendments prohibit States from exercising further
jurisdiction over Indian reservations after 1968 without tribal
consent. 25 U.S.C. §§ 1321(a), 1322(b), 1326.
[
Footnote 2/5]
See Hearings on H.R. 1063 before the Subcommittee on
Indian Affairs of the House Committee on Interior and Insular
Affairs, 83d Cong., 1st Sess., 8-10, 14-15 (1953) (hereinafter 1953
Subcommittee Hearings); Hearings on H.R. 1063 before the House
Committee on Interior and Insular Affairs, 83d Cong., 1st Sess., 3,
7, 13, 17 (1953) (hereinafter 1953 Committee Hearings); H.R.Rep.
No. 848, 83d Cong., 1st Sess., 7 (1953).
[
Footnote 2/6]
See 1953 Committee Hearings 13; H.R.Rep. No. 848,
supra at 6-7.
[
Footnote 2/7]
See, e.g., 1953 Subcommittee Hearings 3, 4, 5, 7, 17;
1953 Committee Hearings 3, 8; 99 Cong.Rec. 10782-10783 (1953)
(statement of Sen. Thye; letter from Gov. Anderson to Sen.
Thye).
[
Footnote 2/8]
See H.R.Rep. No. 848,
supra at 5-6; 1953
Subcommittee Hearings 2-3, 21-22; Hearings on H.R. 459, H.R. 3235
and H.R. 3624 before the Subcommittee on Indian Affairs of the
House Committee on Interior and Insular Affairs, 82d Cong., 2d
Sess., 14 (1952) (statement of Rep. D'Ewart); Goldberg, Public Law
280: The Limits of State Jurisdiction Over Reservation Indians, 22
UCLA L.Rev. 535, 541-543 (1975).
[
Footnote 2/9]
The legislative history of the 1968 amendments provides further
evidence that Congress, in 1953, did not unambiguously sanction
assertion of selective jurisdiction. There were numerous
conflicting opinions on whether the new provisions authorizing
States to assume partial jurisdiction effected a change in the law.
In 1965, the Department of the Interior had intimated that partial
assumption of criminal jurisdiction was a novel idea when it
recommended partial jurisdiction in civil matters, but concluded
that "extension of criminal jurisdiction to the States on a
piecemeal basis needs to be considered further." Hearings on
Constitutional Rights of the American Indian before the
Subcommittee on Constitutional Rights of the Senate Committee on
the Judiciary, 89th Cong., 1st Sess., 321 (1965) (letter from Frank
J. Barry, Acting Secy. of the Interior, to Sen. Eastland). This
letter also noted that the Department of Justice was opposed to
selective extensions of criminal jurisdiction because of the
likelihood of unnecessary confusion in the enforcement of criminal
laws.
Ibid.
However, in 1968, Assistant Secretary of the Interior Harry R.
Anderson believed that authority to assume piecemeal jurisdiction
was implicit in Pub.L. 280. Hearings on H.R. 15419 and Related
Bills before the Subcommittee on Indian Affairs of the House
Committee on Interior and Insular Affairs, 90th Cong., 2d Sess., 25
(1968) (letter to Rep. Wayne N. Aspinall). By contrast, Congressman
Aspinall, who played a fundamental role in drafting Pub.L. 280,
stated that the new partial jurisdiction provisions substantially
altered prior law. 114 Cong.Rec. 9615 (1968). Similarly, Arthur
Lazarus, an attorney representing six Tribes, argued that
"[o]ne of the major objections to Public Law 280 is its 'all or
nothing' approach, requiring States to assume all jurisdiction on
Indian reservations if any jurisdiction is desired."
1968 Hearings,
supra at 116. Deputy Attorney General
Warren Christopher was noncommittal on the reading of prior law.
Id. at 28 (letter to Rep. Aspinall).
This subsequent legislative consideration of the precise issue
before us sheds light on the intent of Congress in 1953.
See
Mattz v. Arnett, 412 U. S. 481,
412 U. S. 505
n. 25 (1973);
Moe v. Salish & Kootenai Tribes,
425 U. S. 463,
425 U. S.
472-475 (1976);
Bryan v. Itasca County, 426
U.S. at
426 U. S. 386.
Given the congressional and executive equivocation, the Court's
apparent certainty is unfounded.