The Supreme Court/The Supreme Court.iso/pc/ascii/1994/94_771/94_771.zx

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SUPREME COURT OF THE UNITED STATES
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No. 94-771
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OKLAHOMA TAX COMMISSION, PETITIONER v.
CHICKASAW NATION
on writ of certiorari to the united states court
of appeals for the tenth circuit
[June 14, 1995]

  Justice Breyer, with whom Justice Stevens,
Justice O'Connor, and Justice Souter join, concurring
in part and dissenting in part.
  I dissent from the portion of the Court's decision that
permits Oklahoma to tax the wages that (1) the Tribe
pays (2) to members of the Tribe (3) who work for the
Tribe (4) within Indian country, but (5) who live outside
Indian country, and, apparently, commute to work.  The
issue is whether such a tax falls within the scope of a
promise this Nation made to the Chickasaw Nation in
1837-a promise that no -State shall ever have a right
to pass laws for the government of the [Chickasaw]
Nation of Red People and their descendants . . . but the
U. S. shall forever secure said [Chickasaw] Nation from,
and against, all laws- except those the Tribe made itself
(and certain others not relevant here).  Treaty of
Dancing Rabbit Creek, 7 Stat. 333-334 (1830); Treaty of
Jan. 17, 1837, 11 Stat. 573.  In my view, this language
covers the tax.
  For one thing, history suggests that the signatories to
the Treaty intended the language to provide a broad
guarantee that state law would not apply to the Chicka-
saws if they moved west of the Mississippi River-which
they did.  The promise's broad reach was meant initially
to induce the Choctaws to make such a move in 1830,
and it was extended, in 1837, to the Chickasaws for the
same reason, all with the hope that other tribes would
follow.  See A. DeRosier, Removal of the Choctaw
Indians 46, 100-128 (1970); id., at 104 (quoting, among
other things, President Jackson's statement to Congress,
in 1829, that -if the Indians remained east of the
Mississippi River, they would be subject to the laws of
the several states,- but, if they accepted the Treaty and
moved west, they would be -free of white men except for
a few soldiers-).
  For another thing, the language of this promise, read
broadly and in light of its purpose, fits the tax at issue.
The United States promised to secure the -[Chickasaw]
Nation from, and against, all laws- for the government
of the Nation, except those the Nation made itself or
that Congress made.  Treaty of Dancing Rabbit Creek,
supra (emphasis added).  The law in question does not
fall within one of the explicit exceptions to this promise.
Nor need the Court read the Treaty as creating an
additional implied exception where, as here, the law in
question likely affects significantly and directly the way
in which the Tribe conducts its affairs in areas subject
to tribal jurisdiction-how much, for example, it will
likely have to pay workers on its land and what kinds
of tribal expenditures it consequently will be able to
afford.  The impact of the tax upon tribal wages, tribal
members, and tribal land makes it possible, indeed
reasonable, to consider Oklahoma's tax (insofar as it
applies to these tribal wages) as amounting to a law -for
the government of- the Tribe.  Indeed, in 1837, when
the United States made its promise to the Chickasaws,
the law considered a tax like the present one to be a tax
on its source-i.e., the Tribe itself.  See, e.g., Dobbins v.
Commissioners of Erie County, 16 Pet. 435, 445-448
(1842) (Federal Government employee salaries exempt
from state tax laws).  Although tax law subsequently
changed, see Graves v. New York ex rel. O'Keefe, 306
U. S. 466, 480 (1939), the empirical connection between
tax and Tribe has not.  The Treaty's basic objective,
namely practical protection for the Tribe, suggests that
this unchanging empirical impact, rather than shifting
legal tax theory, is the critical consideration.
  The majority sets forth several strong arguments
against the Treaty's application.  But, ultimately, I do
not find them convincing.  It is true, as the majority
points out, that well-established principles of tax law
permit States to tax those who reside within their
boundaries.  It is equally true that the Chickasaws
whom Oklahoma seeks to tax live in the State at large,
although they work in Indian country.  But, these truths
simply pose the question in this case: Does the Treaty
provide an exception to well-established principles of tax
law, roughly the same way as do, say, treaties governing
diplomats and employees of international organizations?
See, e.g., Toll v. Moreno, 458 U. S. 1, 14-15 (1982)
(explaining that some such individuals are exempt from
federal, state, and local income taxation).  The statement
of basic tax principles, by themselves, cannot provide the
answer.
  The majority is also concerned about a -line-drawing-
problem.  If the Treaty invalidates the law before us,
what about an Oklahoma tax, for example, on residents
who work for, but are not members of, the Tribe?  I
acknowledge the problem of line drawing, but that
problem exists irrespective of where the line is drawn
here.  And, because this tax (1) has a strong connection
to tribal government (i.e., it falls on tribal members, who
work for the Tribe, in Indian country), (2) does not
regulate conduct outside Indian country, and (3) does not
(as the Solicitor General points out) represent an effort
to recover a proportionate share of, say, the cost of
providing state services to residents, I am convinced that
it falls on the side of the line that the Treaty's language
and purpose seek to prohibit.  To decide that the Treaty
prohibits the law here is not to decide whether or not it
would prohibit a law with a weaker link to tribal
government or a stronger impact outside Indian country.
  One final legal consideration strengthens the conclu-
sion I reach.  The law requires courts to construe
ambiguous treaties in favor of the Indians.  County of
Oneida v. Oneida Indian Nation, 470 U. S. 226, 247
(1985).  The majority believes that even a -liberal
construction cannot save the Tribe's claim,- ante, at 15,
because the Treaty says that the United States is
-obliged to secure to the said [Chickasaw] Nation . . .
the jurisdiction and government of all the persons and
property that may be within their limits west.-  Treaty
of Dancing Rabbit Creek, 7 Stat. 333-334 (emphasis
added).  This language, when viewed in its historical
context, however, seems primarily designed to point out
that the Treaty operates only in respect to Chickasaw
lands west of the Mississippi-i.e., that the Chickasaws
would receive no protection unless they moved there.
Regardless, the Oklahoma tax in question does affect
-persons,- namely tribal members, and -property,-
namely their wages, which members work and which
wages are paid well -within- the Nation's -limits,- i.e.,
in Indian country.  Admittedly, the quoted language, by
itself, does not say for certain that such effects are
sufficient to bring the state law within the Treaty's
prohibition, but neither does it clearly make residency
(rather than, say, place of employment) an absolute
prerequisite.  In these circumstances, the law requires
us to give the Tribe the benefit of the doubt.
  Thus, in my view, whether we construe the Treaty's
language liberally or literally, Oklahoma's tax falls
within its scope.  For these reasons, I believe the Treaty
bars the tax.  And, although I join the remainder of the
Court's opinion, I respectfully dissent on this point.