74 AMERICAN INDIAN LAW REVIEW (Vol. 8 the past doctrine of internal tribal sovereignty has been relegated to a subordinate position to a more flexible criteria-federal preemption of Indian affairs. The preemption is determined by the Court's examination of past treaties, statutes, and tribal laws. As a backdrop, Indian sovereignty assumes a role, but only in helping to measure the meaning of these treaties and statutes. There is little doubt that McClanahan and its principle of federal preemption have displaced Worcester as the primary consideration in determining when states may extend their laws onto the reservation. As important as McClanahan is, however, the opinion fails to bring much understanding to just how tribal sovereignty as a backdrop of analysis should be used. Clearly, the Court was not about to abandon the concept of sovereignty completely. But did the justices mean to place the doctrine on a back shelf in hopes that it would be lost in the dust of time? In 1980 the Court provided an answer to this question. The state of Arizona had applied a motor carrier license tax and a use fuel tax on the operations of a non-Indian logging company that had contracted with the White Mountain Apaches to sell, load, and transport timber on the White Mountain Apache Reservation. The Indian tribe and the timber company joined forces in an attempt to have the taxes declared invalid. When the issue reached the Supreme Court in White Mountain Apache Tribe v. Bracker," the Court held the taxes to be inapplicable to the reservation activity on the ground that the federal government, having undertaken a comprehensive regulation of the harvesting and sale of tribal timber, had preempted the field. This precluded the state of Arizona from imposing its taxes on the reservation. The White Mountain Apache Tribe case is extremely important in view of Justice Thurgood Marshall's discussion of the tests to be used in such disputes and the role of tribal sovereignty in making these determinations. Marshall reasons that the "semiindependent position” of Indian tribes has given rise to two independent but related barriers to the assertion of state authority over tribal reservations. The first of these is that the federal government may have preempted the field." The second barrier is that state encroachment may unlawfully infringe on the right of tribal self-government." Either of these barriers standing alone may be sufficient to invalidate the state intrusions. If there was 4. (langhan Arizona Tax Comm'n 411 U.S. 154 (1973). 23 WaramTËS A nec, 458 US 1980] STATE ENCROACHMENT 75 any doubt as to how the Court was going to approach these problems prior to the White Mountain Apache Tribe case, it is clearly resolved by this decision. In addition to delineating the role of the McClanahan and Williams doctrines, Justice Marshall proceeds to elaborate further on the concept of tribal sovereignty. "[T]raditional notions of Indian self-government are so deeply engrained in our jurisprudence," Marshall reasons, "that they have provided an important backdrop . . . against which vague or ambiguous federal enactments must always be measured."" It is not helpful in cases involving American Indians to use the general laws of federal preemption that have emerged in other non-Indian areas of the law. The tradition of Indian sovereignty "must inform the determination whether the exercise of state authority has been preempted by operation of federal law." What Marshall is saying here is that tribal sovereignty as a backdrop for interpreting statutes assumes a meaningful role in judicial decision making. Indian sovereignty is not to be relegated to a pleasant doctrine slowly vanishing into antiquity. The backdrop requirement demands that treaties and federal statutes be interpreted "generously in order to comport with these traditional notions of sovereignty and with the federal policy of encouraging tribal independence.' 26 Under such an interpretation, federal preemption is more easily attained in the area of Indian affairs than in other areas of the law. As the law stands today, then, a court determining the validity of an attempt by a state to extend its jurisdiction into Indian country must first examine the relevant treaties and statutes against a meaningful backdrop of tribal sovereignty to determine if federal preemption has occurred. If it has, then the states are foreclosed from intruding. If the court finds that federal preemption has not taken place, then the court turns to the Williams test to see if the state laws or activity conflict with tribal selfgovernment. If they do, then the state intrusion again is invalidated. Only if there is no conflict can a state extend its civil laws and resultant assumption of jurisdiction onto the reservation. The Impact on Indian Country Until now the Supreme Court has permitted state incursions in 24. White Mt. Apache Tribe v. Bracker, 100 S.Ct. 2578 (1980). 25 26. Id. at 2584. 76 AMERICAN INDIAN LAW REVIEW [Vol. 8 to Indian country in only two instances. Both cases, interestingly, deal with state attempts to extend their tax laws to cover the sale of cigarettes in Indian territory. In 1976 the Supreme Court in Moe v. Confederated Salish & Kootenai Tribes" held that the state of Montana could validly require Indian sellers on the reservation to collect a cigarette tax from non-Indian consumers. This was thought to be but a minimal burden on the Indian seller and as a minimal burden, it hardly interfered with tribal selfgovernment. The tax, however, was only valid as collected from non-Indian consumers. The state could not extend its taxing power to Indian consumers for this would conflict with federal statutes that had preempted the field and thus has been barred by McClanahan. In 1980 the Supreme Court was faced with a similar situation. The state of Washington had imposed a tax on cigarettes sold by Colville Indians to both non-Indians and Indians who were not members of the Colville Tribe. Since the cigarette sales took place on the reservation, this was viewed as another attempt by a state to extend its laws into Indian country. The Supreme Court resolved the issue in a manner similar to the way in which it handled the Moe decision. The Court upheld the validity of the state tax on both the white purchasers and the nontribal Indians." Unfortunately, Mr. Justice White, who delivered the opinion, does not spell out concisely the tests to be used in deciding issues such as these. A careful reading of the opinion, however, reveals that both the McClanahan test and the Williams doctrine are used. White notes that: "The federal statutes cited to us, even when given the broadest reading to which they are fairly susceptible, cannot be said to preempt Washington's sales and cigarette taxes."" This clearly is an application of the McClanahan preemption test. Later in the opinion the Justice also alludes to the Williams doctrine: "Washington does not infringe the right of reservation Indians to 'make their own laws and be ruled by them'. 9930 The Court in the Colville case thus permitted the state of Washington to extend its civil law onto the reservation. It is important to note, though, that the extension of state jurisdiction 27 425 US 461 (1976) 28 Washington v Confederated Tribes of Colville Reservation, 100 S CT. 2069 (1980) Id at 2082 1980) STATE ENCROACHMENT 77 is extremely limited. The thrust of the statute was designed to reach (1) non-Indians, and (2) Indians who were not members of the Colville Tribe. Indeed, the only burden that the Colville Tribe had to assume was in the collection of the state tax and this was felt to be a minimal imposition on the tribe. While the Colville traders did argue that they were being denied a competitive marketing advantage by having to collect the state tax from nontribal consumers, the Court refused to accept this argument. The denial of an artificial competitive market advantage was viewed as not contravening the right of reservation Indians to make their own laws and to be ruled by them. While Indian tribes will view the Colville case as important in that it permits the incursion of a state taxing law into Indian country, upon reflection they might conclude that the infringement is one of little significance. Since the objective of the state law pertains to non-Indians and nontribal members, the sanctity of the reservation is preserved. The only blow the reservation receives is in the loss of its competitive market advantage. There is no doubt that the flow of Supreme Court decisions has been away from the firm stance of immunity afforded the Indian tribes by Worcester v. Georgia. The trend of decisions, however, may be a reflection of the changing relationship between Indian reservations and white communities. Tribes are not becoming more isolated from white society; rather, their activities are becoming more interconnected with it. As the contact between Indians and whites increases, particularly in the economic field where competition may be present, the more states are going to attempt to extend their laws and jurisdiction into the affairs of the reservations. The decisions of the Supreme Court are a mirror of these changing conditions. In responding to the intricacies of this closer Indian-state contact, there is every indication that the Court will continue to preserve the sanctity of Indian affairs on the reservation from state encroachment in most respects. the Constitution of the State of Alaska, and that I will faithfully discharge my duties as to the best of my ability." The legislature may prescribe further oaths or affirmations. SECTION 6. The legislature shall establish a system under which the merit principle will govern the employment of persons by the State. SECTION 7. Membership in employee retirement systems of the State or its political subdivisions shall constitute a contractual relationship. Accrued benefits of these systems shall not be diminished or impaired. SECTION 8. The enumeration of specified powers in this constitution shall not be construed as limiting the powers of the State. SECTION 9. The provisions of this constitution shall be construed to be self-executing whenever possible. SECTION 10. Titles and subtitles shall not be used in construing this constitution. Personal pronouns used in this constitution shall be construed as including either sex. SECTION 11. As used in this constitution, the terms "by law" and "by the legislature", or variations of these terms, are used interchangeably when related to law-making powers. Unless clearly inapplicable, the law-making powers assigned to the legislature may be exercised by the people through the initiative, subject to the limitations of Article XI. SCHIONSZ The State of Alaska and its people forever disclaim all right and title in or to any property belonging to the United States or subject to its disposition, and not granted or confirmed to the State or its political subdivisions, by or under the act admitting Alaska to the Union. The State and its people further disclaim all right or title in |