RESPONDENT:Jicarilla Apache Tribe
LOCATION:Indiana State Employment Security Division
DOCKET NO.: 80-11
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Tenth Circuit
CITATION: 455 US 130 (1982)
REARGUED: Nov 04, 1981
DECIDED: Jan 25, 1982
ARGUED: Mar 30, 1981
John F. Cooney – on behalf of the Petitioners Amoco Production Company and Marathon Oil Company
John R. Cooney – on behalf of the petitioners amoco and marathon — rebuttal
Jason W. Kellahin – on behalf of the Petitioners Merrion and Bayless et al
Louis F. Claiborne – on behalf of the Respondents
Robert J. Nordhaus – on behalf of the Respondents
Media for Merrion v. Jicarilla Apache Tribe
- Opinion Announcement – January 25, 1982
- Oral Reargument – November 04, 1981
- Oral Argument – March 30, 1981
Audio Transcription for Opinion Announcement – January 25, 1982 in Merrion v. Jicarilla Apache Tribe
William J. Brennan, Jr.:
The opinion and companion cases 80-11 and 80-15 will be delivered by Justice Marshal.
These cases are here on writs for certiorari to the United States Court of Appeals for the Tenth Circuit.
That court held that the respondent Indian tribe had the authority to impose a severance tax on oil and gas production on tribe or reservation land.
The Court of Appeals held that the taxing power is an inherit attribute of tribal sovereignty and had not been divested by any treaty or Act of Congress and that the tax did not violate the Commerce Clause.
Petitioners have long time leases with the tribe which was approved by the Secretary of the Interior and these leases authorized them to extract oil and natural gas deposits on reservation land.
Petitioners argue that the tribe’s power to post a tax derives solely from the tribe’s power to exclude non-Indians from tribal lands and that the tribe waived that right to tax petitioners’ mining activities when it entered into long term leases.
Ultimately, petitioners argue that the tribal power to impose the severance tax on mining activities had been divested by Congress through various federal Acts. Finally, petitioners assert that even if the tribe has authority to impose a tax, the tax violates the Commerce Clause.
In an opinion filed today with the clerk, we reject petitioner’s contentions and we uphold the challenged tribal tax.
The tribe has the inherit power to impose the tax on petitioners’ mining activities on the reservation.
And this taxing authority does not derive solely from the tribe’s power to exclude non-Indians from tribal lands, but rather from the tribe’s general authority and sovereign to control economic activities within its jurisdiction and to defray the cost of providing governmental services.
Furthermore, even if the tribe’s power to tax derived only from its power to exclude, the tribe did not waive its taxing authority by entering to leases with petitioners.
Tribal taxing power whatever its source is a sovereign power and this sovereign power remains intact unless it is surrendered in clear and unmistakable terms.
Finally, none of the federal legislations cited by the petitioners deprive the tribe’s taxing authority.
Petitioners’ Commerce Clause argument also must fail.
Courts act as final arbitrators under the Commerce Clause only when Congress has not acted.
Here, Congress has affirmatively acted by providing a series of federal checkpoints that must be cleared before tribal tax can take effect.
Both the tribal — constitution that announced the tribes’ intention to tax non-members and the ordinance imposing the challenged severance tax were approved by the Secretary pursuant to the scheme.
In any event, the challenged tax would survive judicious scrutiny under the Commerce Clause if such scrutiny were necessary.
The judgment of the Court of Appeals is thereby affirmed. Justice Stevens has filed a dissenting opinion in which the Chief Justice and Justice Rehnquist joined.
William J. Brennan, Jr.:
Thank you Justice Marshall.