Of 26 Indian law cases heard by the United States Supreme Court in the last decade, 21 of these cases were decided against Indian tribes, Indian country, or Indian individual rights such as religious freedom; and 2 more of the cases were partial losses. Since 1994, there has been a single Indian law case decided in favor of Indians (Kiowa Tribe v. Manufacturing Technologies), and one case which was a partial victory for Indians (Oklahoma Tax Comm'n v. Chickasaw Nation).

INDEX OF CASES Alphabetical by Plaintiff Name:

Alaska v. Native Village of Venetie Tribal Government,118 S.Ct. 948, 140 L.Ed.2d 30 (1998)

Babbitt v. Youpee, 519 U.S. 234, 117 S.Ct. 727,136 L.Ed. 2d 696 (1997)

Blatchford v. Native Village of Noatak and Circle Village 501 U.S. 775, 111 S.Ct. 2578, 1 15 L.Ed.2d 686 (1991)

Brendale v. Confederated Tribes and Bands of Yakima Indian Nation, 492 U.S. 408, 109 S.Ct. 2994, 106 L.Ed.2d 343 (1989)

Cass County, Minn. v. Leech Lake Band of Chippewa Indians, 118 S.Ct. 1904, 141 L.Ed.2d 90 (1998)

Cotton Petroleum Corp. v. New Mexico,490 U.S. 163, 109 S.Ct. 1698, 104 L.Ed.2d 209 (1989)

County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation, 502 U.S. 251, 112 S.Ct. 688,116 L.Ed.2d 687 (1992)

Dept. Of Taxation and Finance of New York v. Milhelm Attea & Bros, Inc., 512 U.S. 61, 114 S.Ct. 2028, 129 L.Ed.2d. 52 (1994)

Duro v. Reina, 495 U.S. 676, 110 S.Ct. 2053,109 L. Ed.2d 693 (1990)

Employment Div., Dept. Of Human Resources of State of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990)

Hagen v. Utah, 510 U.S. 399, 114 S.Ct. 958,127 L.Ed.2d 252 (1994)

Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261,117 S.Ct. 2028, 138 L.Ed.2d 438 (1997)

Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998)

Lincoln v. Vigil, 508 U.S. 182, 113 S.Ct. 2024,124 L.Ed.2d 101 (1993)

Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988)

Mississippi Band of Choctaw Indians v. Holyfield,490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989)

Montana v. Crow Tribe of Indians, 118 S.Ct. 1650,140 L.Ed.2d 898 (1998)

Negonsott v. Samuels, 507 U.S. 99, 113 S.Ct. 1119,122 L.Ed.2d 457 (1993)

Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S. 450, 115 S.Ct. 2214, 132 L.Ed.2d 400 (1995)

Oklahoma Tax Comn'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 111 S.Ct. 905,109 L. Ed.2d 112 (1991)

Oklahoma Tax Comm'n v. Graham, 489 U.S. 838, 109 S.Ct. 1519, 103 L.Ed.2d 924 (1989)

Oklahoma Tax Comm'n v. Sac and Fox Nation, 508 U.S. 114, 113 S.Ct. 1985, 124 L.Ed.2d 30 (1993)

Seminole Tribe of Florida v. Florida, 517 U.S. 44,1 16 S.Ct. 1114, 134 L.Ed.2d 252 (1996)

South Dakota v. Bourland, 508 U.S. 679, 113 S.Ct. 2309,124 L.Ed.2d 606 (1993)

South Dakota v. Yankton Sioux Tribe, 118 S.Ct. 789,139 L.Ed.2d 773 (1998)

Strate v. A-1 Contractors, 520 U.S. 438, 117 S.Ct. 1404,137 L.Ed.2d 661 (1997)

Lyng, Secretary of Agriculture, et al. v. Northwest Indian Cemetery Protective Association, et al.

Docket No. 86-1013 Argued November 30, 1987 Decided April 19, 1988

CITATION: 485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988)

SYNOPSIS: The U. S Supreme Court held that protecting American Indian sacred sites is not a cognizable claim under the American Indian Religious Freedom Act, and is not protected by the Free Exercise Clause of the First Amendment to the Constitution. The Court rejected the traditional balancing test (governmental interest versus burden on free exercise of religion) in favor of holding that where the federal government does not coerce individuals into violating their religious beliefs or penalize their religious activities by denying them rights and benefits available to others, the government may develop its own property without regard to its interference with religious practices. At issue in this case was whether the First Amendment's Free Exercise Clause prohibits the Government from permitting timber harvesting in, or constructing a road through, a portion of a National Forest that has traditionally been used for religious purposes by members of three American Indian tribes in northwestern California. The Supreme Court held that it did not. Justice O'Connor filed the opinion for the majority, joined by Justices Rehnquist, White, Stevens and Brennan. Justices Brennan, Marshall and Blackmun filed a dissenting opinion. Justice Kennedy took no part in the consideration or decision of the case.

HISTORY: In 1982, the United States Forest Service prepared a final environmental impact statement for constructing a paved road through federal land, including the Chimney Rock area of the Six Rivers National Forest. This area, as reported in a study commissioned by the Service, had historically been used by certain American Indian tribes for religious rituals that depend on privacy, silence, and an undisturbed natural setting. The Service rejected the study's recommendation that the road not be completed through the Chimney Rock area because it would irreparably damage the sacred areas, and also rejected alternative routes outside the National Forest. Instead, the Service selected a route through the Chimney Rock area that avoided archeological sites and was removed as far as possible from the sites used by the Indians for specific spiritual activities. About the same time, the Service adopted a management plan that allowed for timber harvesting in these same areas, providing for protective zones around all the religious sites identified in the study. After exhausting administrative remedies, the respondents filed suit in Federal District Court challenging the road-building and the timber-harvesting decisions. The court issued a permanent injunction that prohibited the Government from constructing the Chimney Rock section of the road or putting the timber-harvesting into effect, holding, inter alia, that such actions would violate the Indians' rights under the Free Exercise Clause of the First Amendment and would violate certain federal statutes. The Court of Appeals affirmed.

HELD: 1) The courts below did not clearly explain whether - in keeping with the principle requiring that courts reach constitutional questions only when necessary - they determined that a decision on the First Amendment was necessary because it might entitle respondents to relief beyond that to which they were entitled on their statutory claims. The structure and working of the District Court's injunction, however, suggest that the statutory holding would have supported all of the relief granted, and the Court of Appeals' silence as to the necessity of reaching the First Amendment issue may have reflected its understanding that the District Court's injunction necessarily rested in part on constitutional grounds. Because it appears reasonably likely that the First Amendment issue was necessary to the decisions below, and because the Government is confident that it can cure the statutory defects identified below, it would be inadvisable for this Court to vacate and remand without addressing the constitutional question on the merits. Pp. 445-447.

2) The Free Exercise Clause does not prohibit the Government from prohibiting timber harvesting in the Chimney Rock area or constructing the proposed road. Pp. 447-458.

a) In Bowen v. Roy, 476 US 693 (which held that a federal statute requiring States to use Social Security numbers in administering certain welfare programs did not violate Indian religious rights under the Free Exercise Clause) this Court rejected the same kind of challenge that respondents assert. Just as in Roy, the affected individuals here would not be coerced by the Government's action into violating their religious beliefs; nor would the governmental action penalize the rights,benefits and privileges enjoyed by other citizens. Incidental effects of government programs, which may interfere with the practice of certain religions,but which have no tendency to coerce individuals into acting contrary to their religious beliefs, do not require government to bring forward a compelling justification for its otherwise lawful actions. The Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government. Even assuming that the Government's actions here will virtually destroy the Indians' ability to practice their religion, the Constitution simply does not provide a principle that could justify upholding the respondents' legal claims. Pp. 447-453.

b) The Government's right to the use of its own lands need not and should not discourage it from accommodating religious practices like those engaged in by the Indian respondents. The Government has taken numerous steps to minimize the impact that construction of the road will have on the Indians' religious activities - such as choosing the route that best protects sites of specific rituals from adverse audible intrusions, and planning steps to reduce the visual impact of the road on the surrounding country. Such solicitude accords with the policy and requirements of the American Indian Religious Freedom Act. Contrary to the respondents' contention, however, that Act does not create any enforceable right that could authorize the District Court's injunction. Pp. 453-455. 795 F.2d688, reversed and remanded.

Oklahoma Tax Commission v. Graham, et al.

Docket No. 88-266 Argued February 21, 1989 Decided March 29, 1989

CITATION: 489 US 838, 109 S.Ct. 1519, 103 L.Ed.2d 924 (1989)

SYNOPSIS: The U. S. Supreme Court found that the federal tribal immunity defense to state claims does not permit removal of the underlying action to federal court in this opinion. At issue in this case was whether a tribe may remove a state action to federal court where the complaint is facially based on state law, but contains the implicit federal question of tribal sovereign immunity. Per Curiam decision.

HISTORY: Respondent Chickasaw Nation owns and operates a motor in Oklahoma, where it conducts bingo games and sells cigarettes. The state filed a state-court suit against the Tribe and respondent inn manager to collect unpaid state taxes on these activities. The Tribe, asserting federal-question jurisdiction, removed the action to Federal District Court. The State's motion to remand the case to state court on the grounds that the complaint alleged only state statutory violations and state tax liabilities was denied by the District Court, which held that the complaint implicated the federal question of tribal immunity since it sought to apply state law to an Indian tribe. Thereafter,the court dismissed the suit, finding it barred by tribal sovereign immunity. The Court of Appeals affirmed, noting that as a prerequisite to stating jurisdiction over an Indian tribe, an alleged waiver or consent to suit is a necessary element of a well-pleaded complaint. The Court held to that decision on remand from the U.S. Supreme Court, finding that the rule of Caterpillar Inc. v.Williams, 483 U.S. 386 (in order to support federal-question removability, a complaint on its face must present a federal claim) did not apply to the State's complaint. It held that although nothing within the complaint's literal language suggested the implication of a federal question, such a question was inherent within the complaint because of the parties subject to the action.

HELD:This case was improperly removed from the Oklahoma courts. The Court of Appeals' decision is plainly inconsistent with Caterpillar. The possible existence of a federal tribal immunity defense to the State's claims did not convert a suit arising under state law to one which, in the statutory sense, arises under federal law. And there was no independent basis for original federal jurisdiction to support removal. This jurisdictional question was not affected by the fact that tribal immunity is governed by federal law, since Congress has expressly provided by statute for removal when it desired federal courts to adjudicate defenses based on federal immunities. 846F.2d 1258, reversed.

Mississippi Choctaw Indian Band v. Holyfield, et al.

Docket No. 87-980 Argued January 11, 1989 Decided April 3, 1989

CITATION: 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989)

SYNOPSIS: The U. S. Supreme Court found that the definition of "domicile" under the Indian Child Welfare Act should be defined by federal common law, versus state law, upholding ICWA's purpose of removing jurisdiction of child custody proceedings from state courts to tribal courts. The case establishes that a legitimate child takes the domicile of its parents, and an illegitimate child takes the domicile of its mother. At issue in this case was whether provisions of the Indian Child Welfare Act establishing tribal jurisdiction over child custody proceedings are limited to Indian children domiciled on the tribe's reservation. Justice Brennan filed the majority opinion, joined by Justices White, Marshall, Blackmun,O'Connor and Scalia. Justices Stevens, Rehnquist, and Kennedy filed a dissenting opinion.

HISTORY: On the basis of extensive evidence indicating that large numbers of Indian children were being separated from their families and tribes and were being placed in non-Indian homes through state adoption, foster care, and parental rights termination proceedings, and that this practice caused serious problems for the children, their parents, and their tribes, Congress enacted the Indian Child Welfare Act of 1978 (ICWA) which, inter alia, gives tribal courts exclusive jurisdiction over custody proceedings involving an Indian child "who resides or is domiciled within" a tribe's reservation. This case involves the status of twin illegitimate babies, whose parents were enrolled members of appellant Tribe and residents and domiciliaries of its reservation in Neshoba County, Mississippi. After the twins' births in Harrison County, some 200 miles from the reservation, and their parents' execution of consent-to-adoption forms, they were adopted in that county's Chancery Court by the appellees Holyfield, who were non-Indian. That court subsequently overruled appellant's motion to vacate the adoption decree, which was based on the assertion that under the ICWA exclusive jurisdiction was vested in appellant's tribal court. The Supreme Court of Mississippi affirmed, holding, among other things, that the twins were not "domiciled" on the reservation under state law, in light of the Chancery Court's findings (1) that they had never been physically present there, and (2) that they were "voluntarily surrendered" by their parents, who went to some efforts to see that they were born outside the reservation and promptly arranged for their adoption. Therefore, the court said, the twins' domicile was in Harrison County and the Chancery Court properly exercised jurisdiction over the adoption proceedings.

HELD: The twins were "domiciled"on the Tribe's reservation within the meaning of the ICWA's exclusive tribal jurisdiction provision, and the Chancery Court was, accordingly, without jurisdiction to enter the adoption decree. Pp. 42-54.

a) Although the ICWA does not define "domicile," Congress clearly intended a uniform federal law of domicile for the ICWA and did not consider the definition of the word to be a matter of state law. The ICWA's purpose was, in part, to make clear that in certain situations the state courts did not have jurisdiction over child custody proceedings. In fact, the statutory congressional findings demonstrate that Congress perceived the States and their courts as partly responsible for the child separation problem it intended to correct. Thus, it is most improbable that Congress would have intended to make the scope of the statute's key jurisdictional provision subject to definition by state courts as a matter of state law. Moreover, Congress could hardly have intended the lack of nationwide uniformity that would result from state-law definitions of "domicile,"whereby different rules could apply from time to time to the same Indian child, simply as a result of his or her being moved across state lines. Pp. 43-47.

b) The generally accepted meaning of the term "domicile" applies under the ICWA to the extent that it is not inconsistent with the objectives of the statute. In the absence of a statutory definition, it is generally assumed that the legislative purpose is expressed by the ordinary meaning of the words used, in light of the statute's object and policy. Well-settled common-law principles provide that the domicile of minors, who generally are legally incapable of forming the requisite intent to establish a domicile, is determined by that of their parents, which has traditionally meant the domicile of the mother in the case of illegitimate children. Thus, since the domicile of the twins' mother (as well as their father) has been, at all relevant times, on appellant's reservation, the twins were also domiciled there even though they have never been there. The result is not altered by the fact that they were "voluntarily surrendered" for adoption. Congress enacted the ICWA because of concerns going beyond the wishes of individual parents, finding that the removal of Indian children from their cultural setting seriously impacts on long-term tribal survival and has a damaging social and psychological impact on many individual Indian children. These concerns demonstrate that Congress could not have intended to enact a rule of domicile that would permit individual Indian parents to defeat the ICWA's jurisdictional scheme simply by giving birth and placing the child for adoption off the reservation. Pp. 47-53. 511 So. 2d 918, reversed and remanded.

Cotton Petroleum Corp., et al., v. New Mexico, et al.

Docket No. 87-1327 Argued November 30, 1988 Decided April 25, 1989

CITATION: 490 U.S. 163, 109 S.Ct. 1698, 104 L.Ed.2d 209 (1989)

SYNOPSIS: The U. S. Supreme Court upheld the State of New Mexico's right to impose a severance tax on non-Indian oil and gas lessees on the Jicarilla Apache Indian Reservation, despite the fact that the Tribe imposed the same severance tax on the same lessees. Thus, a tribal tax does not preempt a state tax even where the result is double taxation on businesses who deal with tribes, and the outcome is an economic disadvantage to the tribe. At issue in this case is whether the State of New Mexico can impose its severance taxes on the production of oil and gas by non-Indian lessees of wells located on the Jicarilla Apache Tribe's reservation, and on which the Tribe also has power to impose severance taxes. Justice Stevens delivered the opinion of the Court, joined by Justices Rehnquist, White, O'Connor, Scalia, and Kennedy. Justices Blackmun, Brennan and Marshall filed a dissenting opinion.

HISTORY: Pursuant to authority granted by the Indian Mineral Leasing Act of 1938 (1938 Act), the Jicarilla Apache Tribe leased lands on its New Mexico reservation to appellant Cotton Petroleum Corp., a non-Indian company, for the production of oil and gas. Cotton's on reservation production is subject to both a 6% tribal severance tax and appellee State's 8% severance taxes, which apply to all producers throughout the State. In 1982, Cotton paid its state taxes under protest and then brought an action in state court under, inter alia, the Commerce Clause of the Federal Constitution, contending that the state taxes were invalid on the basis of evidence tending to prove that the amount of such taxes imposed on reservation activity far exceeded the value of services the State provided in relation to such activity. The Tribe filed a brief amicus curiae arguing that a decision upholding the state taxes would substantially interfere with the Tribe's ability to raise its own tax rates and would diminish the desirability of reservation leases. The trial court upheld the state taxes, concluding, among other things, that the State provides substantial services to both the Tribe and Cotton, that the theory of public finance does not require that expenditures equal revenues, that the taxes' economic and legal burden falls on Cotton and has no adverse impact on tribal interests, and that the taxes were not preempted by federal law. The State Court of Appeals affirmed. The U.S. Supreme Court noted probable jurisdiction and invited the parties to brief and argue the additional question whether the Commerce Clause requires a tribe to be treated as a "State" for purposes of determining whether a state tax on nontribal activities conducted on a reservation must be apportioned to account for taxes the tribe imposed on the same activity.

HELD: 1) The State may validly impose severance taxes on the same on-reservation production of oil and gas by non-Indian lessees as is subject to the Tribe's own severance tax. Pp.173-193.

a) Under this Court's modern decisions, on-reservation oil and gas production by non-Indian lessees is subject to nondiscriminatory state taxation unless Congress has expressly or impliedly acted to pre-empt the state taxes. See, e.g. Helvering v. Mountain Producers Corp., 303 U. S. 376, 387. Pp. 173-176.

b) The state taxes in question are not pre-empted by federal law, even when it is given the most generous construction under the relevant pre-emption test, which is flexible and sensitive to the particular facts and legislation involved and requires a particularized examination of the relevant state, federal, and tribal interests, including tribal sovereignty and independence. The 1938 Act neither expressly permits nor precludes state taxation, but simply authorizes the leasing for mining purposes of Indian lands. Moreover, that Act's legislative history sheds little light on congressional intent. The statement therein that pre-existing law was inadequate to give Indians the greatest return for their property does not embody a broad congressional policy of maximizing tribes' revenues without regard to competing state interests, but simply suggests that Congress sought to remove disadvantages in mineral leasing on Indian lands that were not present with respect to public lands, which were, at the time, subject to state taxation. Montana v. Blackfeet Tribe, 471 US 759, 767, n. 5, distinguished. The fact that the 1938 Act's omission of that waivers simply reflects congressional recognition that this Court's intervening decisions had repudiated the preexisting doctrine of intergovernmental tax immunity, under which such state taxation was barred absent congressional authorization. White Mountain Apache Tribe v. Bracker 448 U. S. 136, and Ramah School Board, Inc. v. Bureau of Revenue of New Mexico, 458 U.S.832, are distinguished on the ground that, here, the State provides substantial services to the Tribe and Cotton that justify the tax; the tax imposes no economic burden on the Tribe; and federal and tribal regulation is not exclusive, since the State regulates the spacing and mechanical integrity of on-reservation wells. Pp. 176-187.

c) There is no merit to Cotton's contention that the State's severance taxes - insofar as they are imposed without allocation or apportionment on top of tribal taxes - impose an unlawful multiple tax burden on interstate commerce. The fact that the State and the Tribe tax the same activity is not dispositive, since each of those entities has taxing jurisdiction over the non-Indian wells by virtue of the location of Cotton's leases entirely on reservation lands within a single State. That the total tax burden on Cotton is greater than the burden of off-reservation producers is also not determinative, since neither taxing jurisdiction's tax is discriminatory, and the burdensome consequence is entirely attributable to the fact of concurrent jurisdiction. The argument that the state taxes generate revenues that far exceed the value of the State's on-reservation services is also rejected. Moreover, there is no constitutional requirement that the benefits received from a taxing authority by an ordinary commercial taxpayer - or by those living in the taxpayer's community - must equal the amount of its tax obligations. Pp. 187-191.

d) The express language, distinct applications, and judicial interpretations of the Interstate Commerce and Indian Commerce Clauses establish that Indian tribes may not be treated as 'States' for tax apportionment purposes. Pp. 191-193. 106 N. M. 517, 745 P. 2d 1170, affirmed.

Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, et al.

Consolidated Docket Nos. 87-1622, 87-1697, and 87-1711 Argued January 10, 1989 Decided June 29, 1989

CITATION:492 U.S. 408, 109 S.Ct. 2994, 106 L.Ed.2d 343 (1989)

SYNOPSIS: The US Supreme Court denied Indian tribes treaty rights to exclusive use and occupation, and thus the power to regulate non-Indian use of land, where land had been lost by tribe via the Indian General Allotment Act despite the fact that the Act was later repudiated. In this very split decision, the Court compromised in its final judgment by establishing a judicial distinction between "open"and "closed" Indian lands, and assigning tribal sovereignty rights according to that distinction. At issue in the three consolidated cases in this matter, is whether the Yakima Indian Nation or the County of Yakima, a governmental unit of the State of Washington, has the authority to zone fee lands owned by nonmembers of the Tribe located within the boundaries of the Yakima Reservation. The Supreme Court held that the Nation only had jurisdiction over non-member Indians on such lands where lands were "closed," versus "open" lands. There was no majority in the case, but Justice White's concurrence won enough votes to carry the decision. Justice White announced the judgment in Docket Nos. 87-1697 and 87-1711, joined by Justices Rehnquist, Scalia and Kennedy. Justice Stevens announced the judgment in Docket No. 87-1622, and concurred in the opinion for Docket Nos. 87-1697 and 87-1711, joined by Justice O'Connor. Justices Blackmun, Brennan and Marshall concurred in the judgment in Docket No. 87-1622. Justices White, Rehnquist, Scalia and Kennedy dissented in the judgment in Docket No.87-1622. Justices Blackmun, Brennan and Marshall dissented in the judgment in Docket Nos. 87-1697 and 87-1711.

HISTORY: The treaty between the United States and the Yakima Indian Nation provided that the Tribe would retain its reservation for its "exclusive use and benefit," and that "no white man [shall] be permitted to reside upon the said reservation without [the Tribe's] permission." Much of the reservation is located in Yakima County, Washington. Roughly 80% of the reservation land is held in trust by the United States for the Tribe or its individual members, and the remaining 20% is owned in fee by Indian or non-Indian owners. Most of the fee land is found in three towns, and the rest is scattered throughout the reservation in a "checkerboard" pattern. The reservation is divided into two parts, a "closed area," which is so named because it has been closed to the general public, and an "open area," which is not so restricted. Only a small portion of the closed area consists of fee land, while almost half of the open area is fee land. The Tribe's zoning ordinance applies to all lands within the reservation, including fee lands owned by Indians or non-Indians, while the county's zoning ordinance applies to all lands within its boundaries, except for Indian trust lands. Petitioners Brendale and Wilkinson, who own land in the closed and open areas, respectively, filed applications with the Yakima County Planning Department to develop their lands in ways not permitted by the Tribe's ordinance but permitted by the county ordinance. The department issued declarations to both petitioners which, in effect, authorized their developments, and the Tribe appealed the declarations to the county board of commissioners on the ground, inter alia, that the county had no zoning authority over the land in question. After the board concluded that the appeals were properly before it and issued decisions, the Tribe filed separate actions in District Court challenging the proposed developments and seeking declaratory judgments that the Tribe had exclusive authority to zone the properties at issue and injunctions barring any county action inconsistent with the Tribe's ordinance. The Court held that the Tribe had exclusive jurisdiction over the Brendale properly but lacked authority over the Wilkinson property, concluding that Brendale's development, but not Wilkinson's, posed a threat to the Tribe's political integrity, economic security, and health and welfare, and therefore was impermissible under Montana v. United States, 450 US 544. The court also determined that the county was pre-empted from exercising concurrent zoning authority over closed area lands because its interests in regulating these lands were minimal while the Tribe's were substantial. The Court of Appeals consolidated the cases and affirmed as to the Brendale property but reversed as to the Wilkinson property. In upholding the Tribe's zoning authority, the court concluded that, because fee land is located throughout the reservation in a checkerboard pattern, denying the Tribe its right under its local governmental police power to zone fee land would destroy its capacity to engage in comprehensive planning.

HELD: In Nos. 87-1697 and 87-1711:1) The Tribe does not have authority to zone fee lands owned by nonmembers within the reservation. Pp. 421-433.

a) Any regulatory power the Tribe might have under its treaty with the United States cannot apply to lands held in fee by non-Indians. Montana, 450 US at 559. The Tribe no longer retains the "exclusive use and benefit" of such lands within the meaning of the treaty, since the Indian General Allotment Act allotted significant portions of the reservation, including the lands at issue, to individual members of the Tribe, and those lands subsequently passed, through sale or inheritance, to nonmembers such as petitioners. The Tribe's treaty rights must be read in light of those subsequent alienations, it being unlikely that Congress intended to subject non-Indian purchasers to tribal jurisdiction when an avowed purpose of the allotment policy was to destroy tribal government. Id., at 560, n.9, 561. The fact that the Allotment Act was repudiated in 1934 by the Indian Reorganization Act is irrelevant, since the latter Act did not restore exclusive use of the lands in question to the Tribe. Id., at 560, n. 9. Pp. 422-425.

b) Nor does the Tribe derive authority from its inherent sovereignty to impose its zoning ordinance on petitioners' lands. Such sovereignty generally extends only to what is necessary to protect tribal self-government or to control internal relations, and is divested to the extent it is inconsistent with a tribe's dependent status, i.e., to the extent it involves the tribe's external relations with nonmembers - unless there has been an express congressional delegation of tribal power to the contrary. Montana, supra., at 564. Washington v. Confederated Tribes of Colville Indian Reservation, 447 US 134, 153; and United States v. Wheeler, 435 US 313, 326, reconciled. There is no contention here that Congress has expressly delegated to the Tribe the power to zone the fee lands of nonmembers. Pp. 425-428.

c) Although Montana, supra., At 566, recognized, as an exception to its general principle, that a tribe "may" retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the tribe's political integrity, economic security, or health and welfare, that exception does not create tribal authority to zone reservation lands. The fact that the exception is prefaced by the word "may" indicates that a tribe's authority need not extend to all conduct having the specified effects, but, instead, depends on the circumstances. To hold that the Tribe has authority to zone fee land when the activity on that land has the specified effects on Indian properties would mean that the authority could only last so long as the threatened use continued, would revert to the county when that use ceased and, conceivably, could switch back and forth depending on what uses the county permitted, thereby engendering uncertainty that would further neither the Tribe's nor the county's interests and would be chaotic for landowners. Accordingly, Montana should be understood to generally prohibit tribes from regulating the use of fee lands by way of tribal ordinance or actions in the tribal courts, but to recognize, in the special circumstance of checkboard ownership of reservation lands, a protectible tribal interest under federal law, defined in terms of a demonstrably serious impact by the challenged uses that imperils tribal political integrity, economic security, or health and welfare. Since the Supremacy Clause requires state and local governments, including the county's zoning authorities, to recognize and respect that interest in the course of their activities, the Tribe should have argued in the zoning proceedings, not that the county was without zoning authority over reservation fee lands, but that its tribal interests were imperiled. The District Court had jurisdiction to entertain the Tribe's suit, but, given that the county has jurisdiction to zone reservation fee lands, could enjoin county action only if the county failed to respect the Tribe's federal-law rights. Pp. 428-432.

2) In light of the District Court's findings that the county's exercise of zoning power over the Wilkinson property would have no direct effect on the Tribe and would not threaten its political integrity, economic security, or health and welfare, the judgment in Nos. 87-1697 and 87-1711 must be reversed. Pp. 432-433. In No. 87-1622 (concurring in 87-1697 and 87-1711):

1) The Tribe's power to exclude nonmembers from its reservation - which derived from its aboriginal sovereignty and the express provisions of its treaty with the United States - necessarily includes the lesser power to regulate land use in the interest of protecting the tribal community. Although, at one time, the Tribe's power to exclude was virtually absolute, the General Allotment Act (Dawes Act) in some respects diminished tribal authority by providing for the allotment of reservation lands in severalty to resident Indians, who were eventually free to sell to nonmembers. While the Indian Reorganization Act repudiated that allotment policy, large portions of reservation lands were conveyed to nonmembers in the interim. To the extent that large portions of reservation land were sold in fee, such that the Tribe could no longer determine the region's essential character by setting conditions on entry to those parcels, the Tribe's legitimate interest in land-use regulation was also diminished. Although it is inconceivable that Congress would have intended that the sale of a few lots would divest the Tribe of the power to determine the character of the region, it is equally improbable that Congress envisioned that the Tribe would retain its interest in regulating the use of vast ranges of land sold in fee to nonmembers who lack any voice in setting tribal policy. Thus, the resolution of these cases depends on the extent to which the Tribe's virtually absolute power to exclude has been either diminished by statute or voluntarily surrendered by the Tribe itself with respect to the relevant areas of the reservation. Pp.433-437.

2) The Tribe has the power to zone the Brendale property, which is in the reservation's closed area. Although the presence of logging operations, the construction of the Bureau of Indian Affairs roads, and the transfer of ownership of a relatively insignificant amount of land in that area unquestionably have diminished the Tribe's power to exclude non-Indians from the area, this does not justify the conclusion that the Tribe has surrendered its historic right to regulate land use there. To the contrary, by maintaining the power to exclude nonmembers from entering all but a small portion of that area, the Tribe has preserved the power to define the area's essential character and has, in fact, exercised that power through its zoning ordinance. Moreover,the Tribe has authority to prevent the few individuals who own portions of the closed area in fee from undermining its general plan to preserve the area's unique character by developing their isolated parcels without regard to an otherwise common scheme, it seems necessary to a reasonable operation of the allotment process that Congress could not possibly have intended in enacting the Dawes Act that tribes would lose control over the character of their reservations upon the sale of a few, relatively small parcels of land. Cf. Seymour v. Superintendent of Washington State Penitentiary, 368 US 351, 356; Mattz v. Arnett, 412 US 481, 497. Rather, the tribe's power to zone is like an equitable servitude in that the burden of complying with the zoning rules runs with the land without regard to how a particular estate is transferred. Montana v. United States, 450 US 544, does not require a different result, since, unlike the tribal regulation considered in that case, the Yakima Nation's zoning rule is neutrally applied to Indians and non-Indians alike, is necessary to protect the welfare of the Tribe, and does not interfere with any significant state or county interest. Pp. 438-444.

3) The Tribe lacks authority to zone the Wilkinson property, which is in the reservation's open area. Given that about half of the open area land is owned by nonmembers, the Tribe no longer possesses the power to determine the basic character of that area, and allowing a nonmember to use his lands in a manner that might not be approved by the Tribe does not upset an otherwise coherent scheme of land use. Moreover, it is unlikely that Congress intended to give the Tribe the power to determine the character of an area that is predominantly owned and populated by nonmembers, who represent 80% of the population yet lack a voice in tribal governance. Furthermore, to the extent the open area has lost its character as an exclusive tribal resource, and has become, as a practical matter, an integrated portion of the county that is not economically or culturally delimited by reservation boundaries, the Tribe has lost any claim to an interest analogous to an equitable servitude. Thus, the Tribe's power to zone the open area has become outmoded. Pp. 444-447. 828 F.2d 529: No. 87-1622, affirmed; Nos. 87-1697 and 8 7-1711, reversed.

Employment Division, Oregon Department of Human Resources, et al. v. Smith, et al.

Docket No. 88-1213 Argued November 6, 1989 Decided April 17, 1990

CITATION: 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990)

SYNOPSIS: The U. S. Supreme Court found that the criminal laws of the State of Oregon banning the use of peyote were generally applicable laws, not intended to prohibit of burden religion. Thus, the religious rights of Native American Church members to ingest peyote for sacramental purposes was considered an incidental effect of the laws, negating any right of the members to bring a Free Exercise claim under the First Amendment to the Constitution. As in Lyng; a balancing test between governmental interest and free exercise of religion was deemed inapplicable in this case. At issue in this case was whether the Free Exercise Clause of the First Amendment permits the State of Oregon to include religiously inspired peyote use within the reach of its general criminal prohibition on the use of that drug, and thus permits the State to deny unemployment benefits to persons dismissed from their jobs because of such religiously inspired use. The Supreme Court held that the State could do so. Justice Scalia filed the opinion for the majority, joined by Justices Rehnquist, White, Stevens and Kennedy. Justice O'Connor concurred in the judgment, in Parts I and II of which Justices Brennan, Marshall and Blackmun joined, without concurring in the judgment. Justices Blackmun, Brennan and Marshall filed a dissenting opinion.

HISTORY: Respondents Smith and Black were fired by a private drug rehabilitation organization because they ingested peyote, a hallucinogenic drug, for sacramental purposes at a ceremony of their Native American Church. Their applications for unemployment compensation were denied by the State of Oregon under a state law disqualifying employees discharged for work-related "misconduct." Holding that the denials violated respondents' First Amendment free exercise rights, the State Court of Appeals reversed. The State Supreme Court affirmed, but this Court vacated the judgment and remanded for a determination whether sacramental peyote use is proscribed by the State's controlled substance law, which makes it a felony to knowingly or intentionally possess the drug. Pending that determination, the Court refused to decide whether such use is protected by the Constitution. On remand, the State Supreme Court held that sacramental peyote use violated, and was not excepted from, the state law prohibition, but concluded that prohibition was invalid under the Free Exercise Clause.

HELD: 1) The Free Exercise Clause permits the State to prohibit sacramental peyote use, and thus to deny unemployment benefits to persons discharged for such use. Pp. 876-890.

a) Although a State would be "prohibiting the free exercise [of religion]" in violation of the Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires(or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons. See, e.g., Reynolds v. United States, 98 US 145, 166-167. The only decisions in which this Court has held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action are distinguished on the ground that they involved not the Free Exercise Clause alone, but that Clause in conjunction with other constitutional (494 US 873) protections. See, e.g., Cantwell v. Connecticut, 310 US 296,304-307; Wisconsin v. Yoder, 406 US 205. Pp. 876-882.

b) Respondents' claim for a religious exemption from the Oregon law cannot be evaluated under the balancing test set forth in the line of cases following Sherbert v. Verner, 374 US 398, 402-403, whereby governmental actions that substantially burden a religious practice must be justified by a "compelling governmental interest." That test was developed in a context -- unemployment compensation eligibility rules -- that lent itself to individualized governmental assessment of the reasons for the relevant conduct. The test is inapplicable to an across-the-board criminal prohibition on a particular form of conduct. A holding to the contrary would create an extraordinary right to ignore generally applicable laws that are not supported by "compelling governmental interest"on the basis of religious belief. Nor could such a right be limited to situations in which the conduct prohibited is "central" to the individual's religion, since that would enmesh judges in an impermissible inquiry into the centrality of particular beliefs or practices to a faith. Cf. Hernandez v. Commissioner, 490 US 680,699. Thus, although it is constitutionally permissible to exempt sacramental peyote use from the operation of drug laws, it is not constitutionally required. Pp.882-890. 307 Or. 68, 763 P.2d 146, reversed.

Duro v. Reina, Chief of Police, Salt River Department of Public Safety

Docket No. 88-6546 Argued November 29, 1989 Decided May 29, 1990

CITATION:495 U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990)

SYNOPSIS: The US Supreme Court found that an Indian tribe may not assert criminal jurisdiction over a nonmember Indian for a crime committed on the tribe's reservation. At issue in this case is whether an Indian tribe may assert criminal jurisdiction over a defendant who is an Indian but not a tribal member. The Supreme Court held that the tribe could not. Justice Kennedy filed the majority opinion, joined by Justices Rehnquist, White, Blackmun, Stevens, O'Connor, and Scalia. Justices Brennan and Marshall filed a dissenting opinion.

HISTORY: While living on one Indian Tribe's Reservation, petitioner Duro, an enrolled member of another Tribe, allegedly shot and killed an Indian youth within the Reservation's boundaries. He was charged with the illegal firing of a weapon on the Reservation under the Tribal criminal code, which is confined to misdemeanors. After the Tribal court denied his petition to dismiss the prosecution for lack of jurisdiction, he filed a habeas corpus petition in the Federal District Court. The court granted the writ, holding that assertion of jurisdiction by the Tribe over a nonmember Indian would constitute discrimination based on race in violation of the equal protection guarantees of the Indian Civil Rights Act, since, under Oliphant v. Suquamish Indian Tribe, 435 US 191, non-Indians are exempt from Tribal courts' criminal jurisdiction. The Court of Appeals reversed. It held that the distinction drawn between a Tribe's members and nonmembers throughout United States v. Wheeler, 435 US 313 -- which, in upholding Tribal criminal jurisdiction over Tribe members, stated that tribes do not possess criminal jurisdiction over "nonmembers" -- was "indiscriminate," and should be given little weight. Finding the historical record "equivocal," the court held that the applicable federal criminal statutes supported the view that the Tribes retain jurisdiction over minor crimes committed by Indians against other Indians without regard to Tribal membership. It also rejected Duro's equal protection claim, finding that his significant contacts with the prosecuting Tribe -- such as residing with a Tribe member on the Reservation and working for the Tribe's construction company -- justified the exercise of the Tribe's jurisdiction. Finally, it found that the failure to recognize Tribal jurisdiction over Duro would create a jurisdictional void, since the relevant federal criminal statute would not apply to this charge, and since the State had made no attempt, and might lack the authority, to prosecute him.

HELD: 1) An Indian Tribe may not assert criminal jurisdiction over a nonmember Indian. Pp. 684-698.

a) The rationale of Oliphant, Wheeler, and subsequent cases compels the conclusion that Indian Tribes lack jurisdiction over nonmembers. Tribes lack the power to enforce laws against all who come within their borders, Oliphant supra. They are limited sovereigns, necessarily subject to the overriding authority of the United States, yet retaining the sovereignty needed to control their own internal relations and preserve their own unique customs and social order,Wheeler, supra. Their power to prescribe and enforce rules of conduct for their own members falls outside that part of their sovereignty that they implicitly lost by virtue of their dependent status, but the power to prosecute an outsider would be inconsistent with this status, and could only come from a delegation by Congress. The distinction between members and nonmembers and its relation to self-governance is recognized in other areas of Indian law. See, e.g., Moe v. Salish & Kootenai Tribes, 425 U. S. 463; Montana v. United States, 450 US 544. Although broader retained Tribal powers have been recognized in the exercise of civil jurisdiction, such jurisdiction typically involves situations arising from property ownership within the Reservation or consensual relationships with the Tribe or its members, and criminal jurisdiction involves a more direct intrusion on personal liberties. Since, as a nonmember, Duro cannot vote in Tribal elections, hold Tribal office, or sit on a Tribal jury, his relationship with the Tribe is the same as the non-Indian's in Oliphant Pp. 684-688.

b) A review of the history of the modern Tribal courts and the opinions of the Solicitor of the Department of the Interior on the Tribal codes at the time of their enactment also indicates that Tribal courts embody only the powers of internal self-governance. The fact that the Federal Government treats Indians as a single large class with respect to federal programs is not dispositive of a question of Tribal power to treat them by the same broad classification. Pp. 688-692.

c) This case must be decided in light of the fact that all Indians are now citizens of the United States. While Congress has special powers to legislate with respect to Indians, Indians, like all citizens, are entitled to protection from unwarranted intrusions on their personal liberty. This Court's cases suggest constitutional limits even on the ability of Congress to subject citizens to criminal proceedings before a tribunal, such as a Tribal court, that does not provide constitutional protections as a matter of right. In contrast, retained jurisdiction over members is accepted by the Court's precedents and justified by the voluntary character [495 US 678] of Tribal membership and the concomitant right of participation in a Tribal government. Duro's enrollment in one Tribe says little about his consent to the exercise of authority over him by another Tribe. Tribes are not mere fungible groups of homogeneous persons among whom any Indian would feel at home, but differ in important aspects of language, culture, and tradition. The rationale of adopting a "contacts" test to determine which nonmember Indians must be subject to Tribal jurisdiction would apply to non-Indian residents as well, and is little more than a variation of the argument, already rejected for non-Indians, that any person entering the Reservation is deemed to have given implied consent to Tribal criminal jurisdiction. Pp. 692-696.

d) This decision does not imply endorsement of a jurisdictional void over minor crime by nonmembers. Congress is the proper body to address the problem if, in fact, the present jurisdictional scheme proves insufficient to meet the practical needs of Reservation law enforcement. Pp. 696-698. 851 F.2d 1136 (9th Cir. 1987), reversed.

Oklahoma Tax Commission v. Citizen Band, Potawatomi Indian Tribe of Oklahoma

Docket No. 89-1322 Argued January 7, 1991 Decided February 26, 1991

CITATION: 498 U.S. 505, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991)

SYNOPSIS: The U. S. Supreme Court found that where a state has not asserted Public Law 280 jurisdiction over Indian lands, it may not tax sales of goods on the reservation to tribal members, but may tax sales to nontribal members. The result is that states have enforcement powers over tribal sellers; the state may tax sales of cigarettes to nonmembers by a tribal shop, and require the tribal seller to collect and remit the tax to the state. At issue in this case is whether a State that has not asserted jurisdiction over Indian lands under Public Law 280 may validly tax sales of goods to tribesmen and nontribal members occurring on land held in trust for a federally recognized Indian tribe. Justice Rehnquist delivered the opinion of a unanimous court. Justice Stevens filed a concurring opinion.

HISTORY: Although, for many years, respondent Indian Tribe has sold cigarettes at a convenience store that it owns and operates in Oklahoma on land held in trust for it by the Federal Government, it has never collected Oklahoma's cigarette tax on these sales. In 1987, petitioner, the Oklahoma Tax Commission (Oklahoma or Commission), served the Tribe with an assessment letter, demanding that it pay taxes on cigarette sales occurring between 1982 and 1986. The Tribe filed suit in the District Court to enjoin the assessment, and Oklahoma counterclaimed to enforce the assessment and to enjoin the Tribe from making future sales without collecting and remitting state taxes. The court refused to dismiss the counterclaims on the Tribe's motion, which was based on the assertion that the Tribe had not waived is sovereign immunity from suit. The court held on the merits that the Commission lacked authority to tax on-Reservation sales to tribal members or to tax the Tribe directly, and therefore that the Tribe was immune from Oklahoma's suit to collect past unpaid taxes directly, but that the Tribe could be required to collect taxes prospectively for on-Reservation sales to nonmembers. The Court of Appeals reversed, holding, inter alia, that the lower court erred in entertaining Oklahoma's counterclaims because the Tribe enjoys absolute sovereign immunity from suit and had not waived that immunity by filing its action for injunctive relief, and that Oklahoma lacked authority to tax any on-Reservation sales, whether to tribesmen or nonmembers.

HELD: 1) Under the doctrine of tribal sovereign immunity, a State that has not asserted jurisdiction over Indian lands under Public Law 280 may not tax sales of goods to tribesmen occurring on land held in trust for a federally recognized Indian tribe, but is free to collect taxes on such sales to nonmembers of the tribe. Pp. 509-514.

a) The Tribe did not waive its inherent sovereign immunity from suit merely by seeking an injunction against the Commission's proposed tax assessment. United States v. United States Fidelity and Guaranty Co., 309 U.S. 506, 511-512, 513. In light of this Court's reaffirmation, in a number of cases, of its longstanding doctrine of tribal sovereign immunity, and Congress' consistent reiteration of its approval of the doctrine in order to promote Indian self-government, self-sufficiency, and [498 U.S. 506] economic development, the Court is not disposed to modify or abandon the doctrine at this time. Nor is there merit to Oklahoma's contention that immunity should not apply because the Tribe's cigarette sales do not occur on a formally designated "Reservation." Trust land qualifies as a Reservation for tribal immunity purposes where, as here, it has been "validly set apart for the use of the Indians as such, under the superintendence of the Government." United States v. John, 437 U.S. 634, 648-649. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-149, which approved nondiscriminatory state taxation of activities on non-Reservation, nontrust Government land leased by Indians, is not to the contrary. Pp. 509-511.

b) Nevertheless, the Tribe's sovereign immunity does not deprive Oklahoma of the authority to tax cigarette sales to nonmembers of the Tribe at the Tribe's store, and the Tribe has an obligation to assist in the collection of validly imposed state taxes on such sales. Moe v. Confederated Salish and Kootenai Tribes, 425 U. S.463, 482, 483; Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134. This case is not distinguishable from Moe and Colville on the ground that Oklahoma disclaimed jurisdiction over Indian lands upon entering the Union and did not reassert jurisdiction over civil causes of action in such lands as permitted by Public Law 280. Neither of those cases depended on the assertion of such jurisdiction by the State in question, and it is simply incorrect to conclude that the Public Law was the essential (yet unspoken) basis for the Court's decision in Colville. Although the Tribe's sovereign immunity bars Oklahoma from pursuing its most efficient remedy -- a lawsuit -- to enforce its rights, adequate alternatives may exist, since individual Indians employed in "smoke-shops" may not share tribal immunity, and since States are free to collect their sales taxes from cigarette wholesalers or to enter into mutually satisfactory agreements with Tribes for the collection of taxes. If these alternatives prove to be unsatisfactory, States may seek appropriate legislation from Congress. Pp. 511-514. 888 F.2d1303 (10 Cir. 1989), affirmed in part and reversed in part.

Blatchford, Commissioner, Dept. Of Community and Regional Affairs of Alaska v.

Native Village of Noatak, et al.

Docket No. 89-1782 Argued February 19, 1991 Decided June 24, 1991

CITATION: 501 U.S. 775, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991)

SYNOPSIS: The U. S. Supreme Court held that the State was immune from a suit for damages by an Indian tribe based on Eleventh Amendment sovereign immunity. At issue in this case was whether state sovereign immunity extended to lawsuits by Indian tribes. Justice Scalia delivered the opinion of the Court, joined by Justices Rehnquist, White, O'Connor, Kennedy and Souter. Justices Blackmun, Marshall and Stevens filed a dissenting opinion.

HISTORY: Respondents, Alaska Native villages, brought suit against petitioner, a state official, seeking an order requiring payment to them of money allegedly owed under a state revenue-sharing statute. The District Court dismissed the suit as violating the Eleventh Amendment. The Court of Appeals reversed, first on the ground that 28 U.S.C. 1362 constituted a congressional abrogation of Eleventh Amendment immunity, and then, upon reconsideration, on the ground that Alaska had no immunity against suits by Indian Tribes.

HELD: 1) The Eleventh Amendment bars suits by Indian Tribes against States without their consent. Respondents' argument that traditional principles of sovereign immunity restrict suits only by individuals, and not by other sovereigns, was rejected in Principality of Monaco v. Mississippi, 292 US 313, 322-323. Nor is there merit to respondents' contention that the States consented to suits by Tribes in the "plan of the convention." See ibid. Just as in Monaco with regard to foreign sovereigns, see id. at 330, there is no compelling evidence that the Founders thought that the States waived their immunity with regard to Tribes when they adopted the Constitution. Although Tribes are in some respects more like States -- which may sue each other, South Dakota v. North Carolina, 192 US 286, 318 -- than like foreign sovereigns, it is the mutuality of concession that makes the States' surrender of immunity from suits by sister States plausible. There is no such mutuality with Tribes, which have been held repeatedly to enjoy immunity against suits by States. Oklahoma Tax Comm'n v. Citizen Band of Potawatomi Tribe of Okla., 498 U. S. 505, 509. Pp. 7 79-782.

2) Section 1362 -- which grants district courts original jurisdiction to hear "all civil actions, brought by any Indian Tribe . . . wherein the matter in controversy arises under "federal law -- does not operate to void the Eleventh Amendment's bar of Tribes' suits against States. Pp. 782-788. [501 U. S. 776]

a) Assuming the doubtful proposition that the Federal Government's exemption from state sovereign immunity can be delegated, 1362 does not embody a general delegation to Tribes of the Federal Government's authority, under United States v. Minnesota, 270 US 181, 195, to sue States on the Tribes' behalf. Although Moe v Confederated Salish and Kootenai Tribes, 425 US 463 -- which held that 1362 revoked as to Tribes the Tax Injunction Act's denial of federal court access to persons other than the United States seeking injunctive relief from state taxation -- equated tribal access to federal court with the United States' access, it did not purport to do so generally, nor on the basis of a "delegation" theory, nor with respect to constitutional (as opposed to merely statutory) constraints. Pp. 783-786.

b) Nor does 1362 abrogate Eleventh Amendment immunity. It does not satisfy the standard for congressional abrogation set forth in Dellmuth v. Muth, 491 U.S.223, 227-228, since it does not reflect an "unmistakably clear" intent to abrogate immunity, made plain "in the language of the statute." Nor was it a sufficiently clear statement under the less stringent standard of Parden v.Terminal Railway of Alabama Docks Dept., 377 US 184, which case (unlike Dellmuth had already been decided at the time of 1362's enactment in1966. That case neither mentioned nor was premised on abrogation (as opposed to consensual waiver) -- and indeed the Court did not even acknowledge the possibility of congressional abrogation until 1976, Fitzpatrick v. Bitzer, 427 US 445. Pp. 786-788. 3) Respondents' argument that the Eleventh Amendment does not bar their claim for injunctive relief must be considered initially by the Court of Appeals on remand. P. 788.896 F.2d 1157, reversed and remanded.

County of Yakima, et al. v. Confederated Tribes and Bands of the Yakima Indian Nation

Docket Nos. 90-408, 90-577 Argued November 5, 1991 Decided January 14, 1992

CITATION: 502 U.S. 251, 112 S.Ct. 683, 116 L.Ed.2d 687 (1992)

SYNOPSIS: The U S. Supreme Court held that state and local governments have been authorized by the General Allotment Act to impose real property taxes on fee lands alienated under the Act and owned by Indians within reservations. At issue in the consolidated cases is whether the County of Yakima may impose an ad valorem tax on so-called "fee patented" land located within the Yakima Indian Reservation, and an excise tax on sales of such land. Justice Scalia delivered the opinion of the Court, joined by Justices Rehnquist, White, Stevens, O'Connor, Kennedy, Souter and Thomas. Justice Blackmun filed an opinion concurring in part and dissenting in part.

HISTORY: Yakima County, Washington, imposes an ad valorem levy on taxable real property within its jurisdiction and an excise tax on sales of such land. The County proceeded to foreclose on various properties for which these taxes were past due, including certain fee-patented lands held by the Yakima Indian Nation or its members on the Tribe's Reservation within the County. Contending that federal law prohibited the imposition or collection of the taxes on such lands, the Tribe filed suit for declaratory and injunctive relief and was awarded summary judgment by the District Court. The Court of Appeals agreed that the excise tax was impermissible, but held that the ad valorem tax would be impermissible only if it would have a '"demonstrably serious'" impact on the Tribe's "'political integrity, economic security or...health and welfare'" (quoting Brendale v. Confederated Yakima Indian Nation, 492 US 408, 431 (opinion of WHITE, J.), and remanded to the District Court for that determination.

HELD:1) The Indian General Allotment Act of 1887 permits Yakima County to impose an ad valorem tax on Reservation land patented in fee pursuant to the Act and owned by Reservation Indians or the Yakima Indian Nation itself, but does not allow the County to enforce its excise tax on sales of such land. Pp. 257-270.

a) As the Court held in Goudy v. Meath, 203 US 146, 149, the Indian General Allotment Act authorizes taxation of fee-patented land. This determination was explicitly confirmed in a 1906 amendment to the Act, known as the Burke Act, which includes a proviso authorizing the Secretary of the Interior, "whenever . . .satisfied that any [Indian] allottee is competent . . . [,] to . . . issu[e] to such allottee a patent in fee simple," and provides that "thereafter all restrictions as to. . . taxation of said land shall be removed." (Emphasis added). Thus, the Indian General Allotment Act contains the unmistakably clear expression of intent that [502 US 252] is necessary to authorize state taxation of Indian lands. See, e.g., Montana v. Blackfeet Tribe of Indians 471 US 759, 765. The contention of the Tribe and the United States that this explicit statutory conferral of taxing power has been repudiated by subsequent Indian legislation rests upon a misunderstanding of this Court's precedents, particularly Moe v. Confederated Salish & Kootenai Tribes, 425 US 463, and a misperception of the structure of the Indian General Allotment Act. Pp. 257-266.

b) Because, under state law, liability for the ad valorem tax flows exclusively from ownership of realty on the annual assessment date, and the tax creates a burden on the property alone, this tax constitutes "taxation of . . . land" within the meaning of the Indian General Allotment Act, and is therefore prima facie valid. Nevertheless, Brendale, supra, and its reasoning are inapplicable to the present case, which involves an asserted restriction on a State's congressionally conferred powers over Indians, rather than a proposed extension of a tribe's inherent powers over the conduct of non-Indians on Reservation fee lands. Moreover, application of a balancing test under Brendale would contravene the per se approach traditionally followed by this Court in the area of state taxation of tribes and tribal members, under which taxation is categorically allowed or disallowed, as appropriate, depending exclusively upon whether it has in fact been authorized by Congress. Pp. 266-268.

c) However, the excise tax on sales of fee-patented Reservation land cannot be sustained. The Indian General Allotment Act explicitly authorizes only "taxation of. . . land," not "taxation with respect to land," "taxation of transactions involving land," or "taxation based on the value of land." Because it is eminently reasonable to interpret that language as not including a tax upon the activity of selling real estate, this Court's cases require that interpretation be applied for the benefit of the Tribe. See, e.g., Blackfeet Tribe, supra, at 766. Pp. 268-270.

d) The factual question whether the parcels at issue were patented under the Indian General Allotment Act or some other federal allotment statute, and the legal question whether it makes any difference, are left for resolution on remand. Pp. 270. 903 F.2d 1207 (9th Cir. 1990), affirmed and remanded.

Negonsott v. Samuels, Warden, et al.

Docket No. 91-5397 Argued January 11, 1993 Decided February 24, 1993

CITATION: 507 U.S. 99, 113 S.Ct. 1119, 122 L.Ed.2d 457 (1993)

SYNOPSIS: The U S. Supreme Court found that the Kansas Act provided an unqualified grant of jurisdiction to the State to define and enforce such criminal laws as it may enact, even for an offense committed by an Indian against another Indian on a reservation, normally chargeable under the Indian Major Crimes Act. At issue in this case is whether the Kansas Act, 18 U.S.C. 3243, confers jurisdiction on the State of Kansas to prosecute petitioner, a Kickapoo Indian, for the state law offense of aggravated battery committed against another Indian on an Indian reservation. Justice Rehnquist delivered the opinion of the Court, joined by Justices White, Blackmun, Stevens, O'Connor, Kennedy and Souter. Justices Scalia and Thomas joined in all but Part II-B of the opinion.

HISTORY: Petitioner Negonsott, a member of the Kickapoo Tribe and a resident of the Kickapoo Reservation in Kansas, was convicted by a County District Court jury of aggravated battery for shooting another Indian on the Reservation. The court set aside the conviction on the ground that the Federal Government had exclusive jurisdiction to prosecute Negonsott for the shooting under the Indian Major Crimes Act, 18 U.S.C. 1153, which encompasses 13 enumerated felonies committed by "[a]ny Indian against . . . the person or property of another Indian or other person . . . within the Indian country." However, the State Supreme Court reinstated the conviction, holding that the Kansas Act, 18 U.S.C. 3243, conferred on Kansas jurisdiction to prosecute all crimes committed by or against Indians on Indian Reservations in the State. Subsequently, the Federal District Court dismissed Negonsott's petition for a writ of habeas corpus, and the Court of Appeals affirmed.

HELD:1) The Kansas Act explicitly confers jurisdiction on Kansas over all offenses involving Indians on Indian Reservations. Congress has plenary authority to alter the otherwise exclusive nature of federal jurisdiction under 1153. Standing alone, the Kansas Act's first sentence -- which confers jurisdiction on Kansas over offenses committed by or against Indians on Indian Reservations . . . to the same extent as its courts have jurisdiction over offenses committed elsewhere within the State in accordance with the laws of the State -- is an unambiguous grant of jurisdiction over both major and minor offenses. And the most logical meaning of the Act's second sentence -- which provides that nothing in the Act shall "deprive" federal courts of their "jurisdiction over offenses defined by the laws of the United States" -- is that federal courts shall retain their jurisdiction to try all offenses subject to federal jurisdiction, while Kansas courts shall have jurisdiction to try persons for the same conduct when it violates state law. This is the only reading of the Kansas Act that gives effect to every clause and word of the statute, and it is supported by the Act's legislative history. In contrast, if this Court were to accept Negonsott's argument that the second sentence renders federal jurisdiction exclusive whenever the underlying conduct is punishable under federal law, Kansas would be left with jurisdiction over only those minor offenses committed by one Indian against [507 US, 100] the person or property of another, a result that can hardly be reconciled with the first sentence's unqualified grant of jurisdiction. There is no need to resort to the canon of statutory construction that ambiguities should be resolved in favor of Indians, since the Kansas Act quite unambiguously confers jurisdiction on the State. Pp. 102-110. 933 F. 2d 818 (10th Cir. 1991), affirmed.

Oklahoma Tax Commission v. Sac and Fox Nation

Docket No. 92-259 Argued March 23, 1993 Decided May 18, 1993

CITATION: 508 U.S. 114, 113 S.Ct. 1985, 124 L.Ed.2d 30 (1993)

SYNOPSIS: The U. S. Supreme Court found that tribal tax immunities extend to trust lands on the same basis as they do to reservation lands, and tribal members residing and earning income on such lands are immune from state income taxation. At issue in this case is whether the State of Oklahoma can impose income taxes or motor vehicle taxes on the members of the Sac and Fox Nation. Justice O'Connor delivered the opinion for a unanimous Court.

HISTORY: Respondent Sac and Fox Nation (Tribe) is a federally recognized Indian Tribe located in Oklahoma. It brought this action seeking a permanent injunction barring petitioner Oklahoma Tax Commission (Commission) from, among other things, taxing the income of tribal members who work or reside within tribal jurisdiction, and imposing the State's motor vehicle excise tax and registration fees on tribal members who live and garage their cars principally on tribal land and register those cars with the Tribe. In large part, the Tribe based its claims of immunity from those state taxes on McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, in which the Court held that a State could not subject a tribal member living on the Reservation, and whose income derived from Reservation sources, to a state income tax absent an express authorization from Congress. The Commission responded that the State had complete taxing jurisdiction over the Tribe because McClanahan and the Court's other immunity cases applied only to Tribes on established Reservations, whereas the Tribe's 1891 Treaty with the Government disestablished the Sac and Fox Reservation in favor of allotments of trust land for individual tribal members. In affirming the District Court's rulings on cross-motions for summary judgment, the Court of Appeals held, among other things, that the income of tribal members who work for the Tribe was immune from state taxation under McClanahan and Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505. In so ruling, the court rejected the Commission's contention that the tribal member's residence was relevant in addition to the status of the land on which the income was earned. The court also concluded that the State's vehicle taxes were flatly prohibited under Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463, and Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134.

HELD:1) Absent explicit congressional direction to the contrary, it must be presumed that a State does not have jurisdiction to tax tribal members who live and work in Indian country, whether the particular territory consists of a formal or informal Reservation, allotted lands, or dependent Indian communities. Pp. 123-128.

a) The Court of Appeals erred to the extent that it did not determine the residence of the tribal members working for the Tribe. The residence of a tribal member is a significant component of the McClanahan presumption against state taxing authority. Contrary to the Commission's contention, that presumption applies not only to formal Reservations, but also to all "Indian country." Citizen Band Potawatomi Indian Tribe of Okla., supra, 498 U. S. at 511. Title 18 U.S.C. 1151 broadly defines the quoted phrase to include formal and informal Reservations, dependent Indian communities, and Indian allotments, whether restricted or held in trust by the United States. If it is determined on remand that the relevant tribal members do live in Indian country, the Court of Appeals must analyze the relevant treaties and federal statutes against the backdrop of Indian sovereignty. Unless Congress expressly authorized state tax jurisdiction in Indian country, the McClanahan presumption counsels against finding such jurisdiction. Because all of the tribal members earning income from the Tribe may live within Indian country, this Court need not determine whether the Tribe's right to self-governance could operate independently of its territorial jurisdiction to preempt the State's ability to tax income earned from work performed for the Tribe itself when the employee does not reside in Indian country. See, e.g., White Mountain Apache Tribe v. Bracker 448 U.S. 136, 142.Pp. 123-126.

b) Oklahoma's vehicle excise tax and registration fees are no different than the state taxes the Court held preempted in Colville and Moe. The Commission's argument that neither of those cases applies, because the Sac and Fox live on scattered allotments, rather than a Reservation, fails for the same reasons it fails with regard to income taxes. Pp. 126-128.

c) Because the Court of Appeals did not determine whether the tribal members on whom Oklahoma attempts to impose its income and motor vehicle taxes live in Indian country, its judgment must be vacated. P. 128. 967 F.2d 1425 (10th Cir.1992), vacated and remanded.

South Dakota v. Bourland

Docket No. 91-2051 Argued March 2, 1993 Decided June 14, 1993

CITATION: 508 U.S. 679, 113 S.Ct. 2309, 124 L.Ed.2d 606 (1993)

SYNOPSIS: The U. S. Supreme Court held that the alienation of the Cheyenne River Sioux Indian Tribe's lands by the Flood Control and Cheyenne River Acts eliminated the Tribe's power to exclude nonmembers from lands taken by these Acts and its power to exercise regulatory jurisdiction over non-Indians on these lands the resultant rule is that where there is a taking of a portion of a reservation by the federal government for construction of a dam and reservoir, a tribe's treaty right to regulate hunting and fishing by non-members in the taken area is abrogated. At issue in this case is whether the Cheyenne River Sioux Tribe may regulate hunting and fishing by non-Indians on lands and overlying waters located within the Tribe's reservation but acquired by the United States for the operation of the Oahe Dam and Reservoir. Justice Thomas delivered the opinion of the Court, joined by Justices Rehnquist, White, Stevens, O'Connor, Scalia, and Kennedy. Justices Blackmun and Souter filed a dissenting opinion.

HISTORY: In 1868, the Fort Laramie Treaty established the Great Sioux Reservation and provided that it be held for the "absolute and undisturbed use and occupation" of Sioux Tribes. The Flood Control Act of 1944 authorized the establishment of a comprehensive flood control plan along the eastern border of the Cheyenne River Reservation, which is part of what was once the Great Sioux Reservation, and mandated that all water project lands be open for the general public's use and recreational enjoyment. Subsequently, in the Cheyenne River Act, the Cheyenne River Sioux Tribe conveyed all interests in 104,420 acres of former trust lands to the United States for the Oahe Dam and Reservoir Project. The United States also acquired an additional 18,000 acres of Reservation land previously owned in fee by non-Indians pursuant to the Flood Control Act. Among the rights the Cheyenne River Act reserved to the Tribe or tribal members was a right of free access [to the taken lands] including the right to hunt and fish, subject . . . to regulations governing the corresponding use by other [United States] citizens, 10. Until 1988, the Tribe enforced its game and fish regulations against all violators, while petitioner South Dakota limited its enforcement to non-Indians. However, when the Tribe announced that it would no longer recognize state hunting licenses, the State filed this action against tribal officials, seeking to enjoin the Tribe from excluding non-Indians from hunting on nontrust lands within the Reservation and, in the alternative, a declaration that the federal takings of tribal lands for the Oahe Dam and Reservoir had reduced the Tribe's authority by withdrawing the lands from the Reservation. The District Court ruled, inter alia, that 10 of the Cheyenne River Act clearly abrogated the Tribe's right to exclusive use and possession of the former trust lands and that Congress had not expressly delegated to the Tribe hunting and fishing jurisdiction over nonmembers on the taken lands. It therefore permanently enjoined the Tribe from exerting such authority. The Court of Appeals affirmed in part, reversed in part, and remanded. It ruled that the Tribe had authority to regulate non-Indian hunting and fishing on the 104,420 acres because the Cheyenne River Act did not clearly reveal [508 U.S. 680] Congress' intent to divest the Tribe of its treaty right to do so. As for the 18,000 acres of former fee lands, the court held that Montana v. United States, 450 US 544, and Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 US 408, controlled, and therefore that the Tribe's regulatory authority was divested unless one of the Montana exceptions was met.

HELD:1) Congress, in the Flood Control and Cheyenne River Acts, abrogated the Tribe's rights under the Fort Laramie Treaty to regulate non-Indian hunting and fishing on lands taken by the United States for construction of the Oahe Dam and Reservoir. Pp. 687-698.

a) Congress has the power to abrogate Indians' treaty rights, provided that its intent is clearly expressed. The Tribe's original treaty right to exclude non-Indians from Reservation lands (implicit in its right of "absolute and undisturbed use and occupation"), and its incidental right to regulate non-Indian use of these lands were eliminated when Congress, pursuant to the Cheyenne River and Flood Control Acts, took the lands and opened them for the use of the general public. See Montana v. United States, supra; Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, supra. Section 4 of the Flood Control Act opened the water project lands for "recreational purposes," which includes hunting and fishing. The Cheyenne River Act declared that the sum paid by the Government to the Tribe for the 104,420 acres "shall be in final and complete settlement of all [of the Tribe's] claims, rights, and demands." Had Congress intended to grant the Tribe the right to regulate non-Indian hunting and fishing, it would have done so by an explicit statutory command, as it did with other rights in 10 of the Cheyenne River Act. And since Congress gave the Army Corps of Engineers regulatory control over the area, it is irrelevant whether respondents claim the right to exclude nonmembers or only the right to prevent nonmembers from hunting or fishing without tribal licenses. Montana cannot be distinguished from this case on the ground that the purpose of the transfers in the two cases differ, because it is a transfer's effect on preexisting tribal rights, not congressional purpose, that is the relevant factor. Moreover, Congress' explicit Reservation of certain rights in the taken area does not operate as an implicit Reservation of all former rights. See United States v. Dion, 476 US 734.Pp. 68 7-694.

b) The alternative arguments -- that the money appropriated in the Cheyenne River Act did not include compensation for the Tribe's loss of licensing revenue, that general principles of "inherent sovereignty" enable the Tribe to regulate non-Indian hunting and fishing in the area, and that Army Corps regulations permit the Tribe to regulate non-Indian hunting and fishing -- do not undercut this statutory analysis. Pp. 694-697. 949 F.2d 984 (8th Cit. 1991), reversed and remanded.

Lincoln v. Vigil

Docket No. 91-1833 Argued March 3, 1993 Decided May 24, 1993

CITATION: 508 U.S. 182, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993)

SYNOPSIS: The U. S. Supreme Court held that the Indian Health Services decision to terminate the Indian Childrens' Program was not reviewable under the Administration Procedures Act because it involved the allocation of funds from a lump sum appropriation, which the Court held was a decision committed to agency discretion by law. At issue in this case was whether the Indian Health Services' decision to discontinue diagnostic and treatment services, known as the Indian Children's Program, to handicapped Indian children in the Southwest and reallocate IHS resources elsewhere was subject to judicial review under the Administrative Procedures Act. Justice Souter delivered the opinion for a unanimous Court.

HISTORY: The Indian Health Service receives yearly lump-sum appropriations from Congress, and expends the funds under authority of the Snyder Act and the Indian Health Care Improvement Act to provide health care for American Indian and Alaska Native people. Out of these appropriations, the Service funded, from 1978 to 1985, the Indian Children's Program, which provided clinical services to handicapped Indian children in the Southwest. Congress never expressly authorized or appropriated funds for the Program, but was apprised of its continuing operation. In 1985, the Service announced that it was discontinuing direct clinical services under the Program in order to establish a nationwide treatment program. Respondents, Indian children eligible to receive services under the Program, filed this action against petitioners (collectively, the Service), alleging, inter alia, that the decision to discontinue services violated the federal trust responsibility to Indians, the Snyder Act, the Improvement Act, the Administrative Procedure Act (APA), and the Fifth Amendment's Due Process Clause. In granting summary judgment for respondents, the District Court held that the Service's decision was subject to judicial review, rejecting the argument that the decision was "committed to agency discretion by law" under the APA, 5 U.S.C. 701(a)(2). The court declined to address the merits of the Service's action, however, holding that the decision to discontinue the Program amounted to a "legislative rule" subject to the APA's notice and comment requirements, 553, which the Service had not fulfilled. The Court of Appeals affirmed, holding that, even though no statute or regulation mentioned the Program, the repeated references to it in the legislative history of the annual appropriations Acts, in combination with the special relationship between Indian people and the Federal Government, provided a basis for judicial review. The court also reasoned that this Court's decision in Morton v Ruiz, 415 U.S. 199, required the Service to abide by the APA's notice and comment procedures before cutting back on a congressionally created and funded program for Indians.

HELD:1) The Service's decision to discontinue the Program was "committed to agency discretion by law," and therefore not subject to judicial review under 701(a)(2). Pp. 190-195.

a) Section 701(a)(2) precludes review of certain categories of administrative decisions that courts traditionally have regarded as "committed to agency discretion." The allocation of funds from a lump-sum appropriation is such a decision. It is a fundamental principle of appropriations law that where Congress merely appropriates lump-sum amounts without statutory restriction, a clear inference may be drawn that it does not intend to impose legally binding restrictions, and indcia in committee reports and other legislative history as to how the funds should, or are expected to, be spent do not establish any legal requirements on the agency. As long as the agency allocates the funds to meet permissible statutory objectives, courts may not intrude under 701(a)(2). Pp.190-193.

b) The decision to terminate the Program was committed to the Service's discretion. The appropriations Acts do not mention the Program, and both the Snyder and Improvement Acts speak only in general terms about Indian health. The Service's representations to Congress about the Program's operation do not translate through the medium of legislative history into legally binding obligations, and reallocating resources to assist handicapped Indian children nationwide clearly falls within the Service's statutory mandate. In addition, whatever its contours, the special trust relationship existing between Indian people and the Federal Government cannot limit the Service's discretion to reorder its priorities from serving a subgroup of beneficiaries to serving the class of all Indians nationwide. Pp. 193-195.

c) Respondents' argument that the Program's termination violated their due process rights is left for the Court of Appeals to address on remand. While the APA contemplates that judicial review will be available for colorable constitutional claims absent a clear expression of contrary congressional intent, the record at this stage does not allow mature consideration of constitutional issues. P. 195.

2) The Service was not required to abide by 553's notice and comment rulemaking procedures before terminating the Program, even assuming that the statement terminating the Program would qualify as a "rule" within the meaning of the APA. Termination of the Program might be seen as affecting the Service's organization, but 553(b)(A) exempts "rules of agency organization" from notice and comment requirements. Moreover, 553(b)(A) exempts "general statements of policy," and, whatever else that term may cover, it surely includes announcements (508 U.S. 184) of the sort at issue here. This analysis is confirmed by Citizens to Preserve Overton Park Inc.v. Volpe, 401 U.S. 402, which stands for the proposition that decisions to expend otherwise unrestricted funds are not, without more, subject to 553's notice and comment requirements. Finally, the Court of Appeals erred in holding that Morton v. Ruiz, supra, required the Service to abide by 553's notice and comment requirements. Those requirements were not at issue in Ruiz Pp. 195-199. 953 F.2d 1225 (10 Cir. 1992) reversed and remanded.

Hagen v. Utah

Docket No. 92-6281 Argued November 2, 1993 February 23, 1994

CITATION: 510 U.S. 399, 114 S.Ct. 958, 127 L.Ed.2d (1994)

SYNOPSIS: The U. S. Supreme Court found that the Uintah Valley Reservation had been diminished by a 1902 Act, and so State had jurisdiction over an Indian who had committed a crime within the original boundaries of the reservation. At issue in this case was whether the Uintah Indian Reservation was diminished by Congress when it was opened to non Indian settlers at the turn of the century, resulting in state jurisdiction over areas that had been within the original boundaries of the reservation. Justice O'Connor delivered the opinion of the Court, joined by Judges Rehnquist, Stevens, Scalia, Kennedy, Thomas, and Ginsburg joined. Justices Blackmun and Souter filed a dissenting opinion.

HISTORY: Petitioner, an Indian, was charged in Utah state court with distribution of a controlled substance in the town of Myton, which lies within the original boundaries of the Uintah Indian Reservation on land that was opened to non-Indian settlement in 1905. The trial court rejected petitioner's claim that it lacked jurisdiction over him because he was an Indian and the crime had been committed in "Indian country," see 18 U.S.C. 1151, such that federal jurisdiction was exclusive. The state appellate court, relying on Ute Indian Tribe v. State of Utah, 773 F.2d 1087 (10 Cir.), cert. denied, 479 US 994, agreed with petitioner's contentions and vacated his conviction. The Utah Supreme Court reversed and reinstated the conviction, ruling that Congress had "diminished" the Reservation by opening it to non-Indians, that Myton was outside its boundaries, and thus that petitioner's offense was subject to state criminal jurisdiction. See Solem v. Bartlett, 465 US 463, 467 ("States have jurisdiction over . . . opened lands if the applicable surplus land Act freed that land of its Reservation status and thereby diminished the Reservation boundaries").

HELD: 1) Because the Uintah Reservation has been diminished by Congress, the town of Myton is not in Indian country and the Utah courts property exercised criminal jurisdiction over petitioner. Pp. 9-22.

a) This Court declines to consider whether the State of Utah, which was a party to the Tenth Circuit proceedings in Ute Indian Tribe, should be collaterally estopped from relitigating the Reservation boundaries. That argument is not properly before the Court because it was not presented in the petition for a writ of certiorari and was expressly disavowed by petitioner in his response to an amicus brief. Pp. 9-10.

b) Under this Court's traditional approach, as set forth in Solem v. Bartlett, supra, and other cases, whether any given surplus land Act diminished a Reservation depends on all the circumstances, including (1) the statutory language used to open the Indian lands, (2) the contemporaneous understanding of the particular Act, and (3) the identity of the persons who actually moved onto the opened lands. As to the first, the most probative, of these factors, the statutory language must establish an express congressional purpose to diminish, but no particular form of words is prerequisite to a finding of diminishment. Moreover, although the provision of a sum certain payment to the Indians, when coupled with a statutory expression of intent, can certainly provide additional evidence of diminishment, the lack of such a provision does not lead to the contrary conclusion. Throughout the diminishment inquiry, ambiguities are resolved in favor of the Indians, and diminishment will not lightly be found. Pp. 10-12.

c) The operative language of the Act of May 27, 1902, ch. 888, 32 Stat. 263 -- which provided for allotments of some Uintah Reservation land to Indians, and that "all the unallotted lands within said Reservation shall be restored to the public domain" (emphasis added) -- evidences a congressional purpose to terminate Reservation status. See, e.g., Seymour v. Superintendent, 368 U.S.351, 354-355. Solem, supra, at 472-476, distinguished. Contrary to petitioner's argument, this baseline intent to diminish was not changed by the Act of March 3, 1905, ch. 1479, 33 Stat. 1069. Language in that statute demonstrates that Congress clearly viewed the 1902 Act as the basic legislation upon which the 1905 Act and intervening statutes were built. Furthermore, the structure of the statutes -- which contain complementary, nonduplicative essential provisions -requires that the 1905 and 1902 Acts be read together. Finally, the general rule that repeals by implication are disfavored is especially strong here, because the 1905 Act expressly repealed a provision in the intervening statute passed in 1903; if Congress had meant to repeal any part of any other previous statute, it could easily have done so. Pp. 12-17.

d) The historical evidence -- including letters and other statements by Interior Department officials, congressional bills and statements by Members of Congress, and the text of the 1905 Presidential Proclamation that actually opened the Uintah Reservation to settlement -- clearly indicates the contemporaneous understanding that the Reservation would be diminished by the opening of the unallotted lands. This conclusion is not altered by inconsistent references to the Reservation in both the past and present tenses in the post-1905 legislative record. These must be viewed merely as passing references i