merrion jicarilla apache tribe argued march decided january respondent indian tribe pursuant revised constitution approved secretary interior secretary required indian reorganization act enacted ordinance also approved secretary imposing severance tax oil gas production tribal reservation land oil gas received tribe royalty payments lessees mineral leases reservation exempted tax petitioners lessees leases tribe extract oil natural gas deposits reservation land brought separate actions federal district enjoin enforcement tax district consolidating actions entered permanent injunction ruling tribe authority impose tax state local authorities power tax oil gas production indian reservations tax violated commerce clause appeals reversed holding taxing power inherent attribute tribal sovereignty divested treaty act congress commerce clause violation held tribe inherent power impose severance tax petitioners mining activities part power govern pay costs pp power tax essential attribute indian sovereignty necessary instrument territorial management power enables tribal government receive revenues essential services power derive solely tribe power exclude tribal lands tribe general authority sovereign control economic activities within jurisdiction defray cost providing governmental services requiring contributions persons enterprises engaged activities petitioners availed privilege carrying business reservation benefit police protection governmental services well advantages civilized society assured tribal government circumstances nothing exceptional requiring petitioners contribute taxes general cost government mere fact tribe enjoys rents royalties lessor mineral lands undermine authority impose tax pp even tribe power tax derived solely power exclude reservation tribe authority impose severance tax lawfully enter tribal lands remain subject tribe power exclude power includes lesser power tax place conditions conduct continued presence reservation tribe role commercial partner petitioners confused role sovereign one thing find tribe agreed sell right use land take valuable minerals quite another find tribe abandoned sovereign powers simply expressly reserved contract presume sovereign forever waives right exercise one powers unless expressly reserves right exercise power commercial agreement turns concept sovereignty head pp federal government deprive tribe authority impose severance tax congress enactment act establishing procedures leasing oil gas interests tribal lands act prohibit tribe imposing tax tribal constitution ordinance authorizing tax approved secretary act permitting state taxation mineral leases indian reservations divest tribe taxing power mere existence state authority tax deprive indian tribe power tax moreover severance tax conflict national energy policies contrary fact natural gas policy act includes taxes imposed indian tribe definition costs may recovered federal energy pricing regulations indicates taxes contravene policies tribal authority implicitly divested act pp severance tax violate negative implications commerce clause pp courts final arbiters commerce clause congress acted congress affirmatively acted providing series federal checkpoints must cleared tribal tax take effect case severance tax enacted accordance congressional scheme pp even judicial scrutiny commerce clause necessary challenged tax survive scrutiny tax discriminate interstate commerce since imposed minerals either sold reservation transported reservation sale exemption minerals received tribe payments leases used tribal purposes merely avoids administrative ensue tribe taxed minerals commercial partner received royalty payments thus deemed discriminatory preference local commerce pp marshall delivered opinion brennan white blackmun powell joined stevens filed dissenting opinion burger rehnquist joined post together amoco production et al jicarilla apache tribe et also certiorari jason kellahin reargued cause petitioners briefs bruce black thomas burton john wimbish john cooney reargued cause petitioners briefs mark thompson iii john pickering samuel stern landt richard marlar deputy solicitor general claiborne reargued cause respondent secretary interior cases brief reargument acting solicitor general wallace assistant attorney general dinkins brief original argument solicitor general mccree acting assistant attorney general liotta edwin kneedler jacques gelin martin matzen robert nordhaus reargued cause respondents jicarilla apache tribe et al cases briefs reid haltom terry fn briefs amici curiae urging reversal filed helena maclay deirdre boggs bruce mcevoy special assistant attorneys general state montana bruce herr john draper allen olson attorney general north dakota albert hausauer special assistant attorney general robert hansen attorney general utah richard dewsnup michael quealy assistant attorneys general john troughton attorney general wyoming ron arnold assistant attorney general new mexico et al slade gorton attorney general timothy malone assistant attorney general state washington james watt william mellor iii mountain legal foundation frederick martone salt river project agricultural improvement power district et al edward barrett richard cahoon dennis mccarthy arthur nielsen shell oil et al george miller westmoreland resources briefs amici curiae urging affirmance filed harry sachse reid peyton chambers charles hobbs robert warden lawrence white steven anderson council energy resource tribes et al george vlassis navajo tribe indians justice marshall delivered opinion pursuant leases jicarilla apache tribe petitioners lessees extract produce oil gas tribe reservation lands two consolidated cases petitioners challenge ordinance enacted tribe imposing severance tax oil natural gas severed saved removed tribal lands see oil gas severance tax app granted certiorari determine whether tribe authority impose tax whether tax imposed tribe violates commerce clause jicarilla apache tribe resides reservation northwestern new mexico established executive order reservation contains acres held tribal trust property executive order set aside public lands territory new mexico use occupation jicarilla apache indians contained special restrictions except provision protecting rights bona fide settlers approximately individuals live reservation majority residing town dulce near colorado border tribe organized indian reorganization act ch stat et authorizes tribe residing reservation adopt constitution bylaws subject approval secretary interior secretary tribe first constitution approved secretary august preserved powers conferred indian reorganization act ch stat tribe revised constitution specify inherent powers jicarilla apache tribe including conferred section act june stat amended shall vest tribal council shall exercised thereby subject limitations imposed constitution applicable federal statutes regulations department interior restrictions established revised constitution revised constitution jicarilla apache tribe art xi develop tribal lands tribe executed mineral leases encompassing reservation land beginning petitioners entered leases tribe commissioner indian affairs behalf secretary approved leases required act may ch stat act exchange cash bonus royalties rents typical lease grants lessee exclusive right privilege drill mine extract remove dispose oil natural gas deposits leased land long minerals produced paying quantities app petitioners may use oil gas developing lease without incurring royalty addition tribe reserves rights use gas without charge buildings leased land take royalties kind petitioners activities leased land subject taxes imposed state new mexico oil gas severance oil gas production equipment see act mar ch stat permitting state taxation mineral production indian reservations act pursuant revised constitution tribal council adopted ordinance imposing severance tax oil gas production tribal land see app ordinance approved secretary acting director bureau indian affairs december tax applies oil natural gas severed saved removed tribal lands ibid tax assessed wellhead per million btu gas produced per barrel crude oil condensate produced reservation due time severance oil gas consumed lessees develop leases received tribe royalty payments exempted tax ibid brief respondent jicarilla apache tribe two separate actions petitioners sought enjoin enforcement tax either tribal authorities secretary district district new mexico consolidated cases granted lessees leave intervene permanently enjoined enforcement tax district ruled tribe lacked authority impose tax state local authorities power tax oil gas production indian reservations tax violated commerce clause appeals tenth circuit sitting en banc reversed appeals reasoned taxing power inherent attribute tribal sovereignty divested treaty act congress including act also found commerce clause violation granted certiorari affirm decision appeals ii petitioners argue dissent agrees indian tribe authority tax business reservation stems exclusively power exclude persons tribal lands tribe initially condition leases upon payment severance tax petitioners assert tribe without authority impose tax later time disagree premise power tax derives power exclude even premise accepted however disagree conclusion tribe lacks power impose severance tax washington confederated tribes colville indian reservation colville addressed indian tribes authority impose taxes business reservation held power tax transactions occurring trust lands significantly involving tribe members fundamental attribute sovereignty tribes retain unless divested federal law necessary implication dependent status power tax essential attribute indian sovereignty necessary instrument territorial management power enables tribal government raise revenues essential services power derive solely indian tribe power exclude tribal lands instead derives tribe general authority sovereign control economic activity within jurisdiction defray cost providing governmental services requiring contributions persons enterprises engaged economic activities within jurisdiction see gibbons ogden wheat petitioners avail substantial privilege carrying business reservation mobil oil commissioner taxes wisconsin penney benefit provision police protection governmental services well advantages civilized society assured existence tribal government exxon wisconsin dept revenue quoting japan line county los angeles numerous governmental entities levy general revenue tax similar imposed jicarilla tribe provide comparable services circumstances nothing exceptional requiring petitioners contribute taxes general cost tribal government cf commonwealth edison montana blackmun dissenting mobil oil commissioner taxes supra observed colville supra tribe interest levying taxes nonmembers raise revenues essential governmental programs strongest revenues derived value generated reservation activities involving tribes taxpayer recipient tribal services surely case mere fact government imposing tax also enjoys rents royalties lessor mineral lands undermine government authority impose tax see infra royalty payments mineral leases paid tribe role partner petitioners commercial venture severance tax contrast petitioners contribution general cost providing governmental services commonwealth edison montana supra state governments commonly receive royalty payments severance taxes lessees mineral lands within borders viewing taxing power indian tribes essential instrument territorial management shared assumption three branches federal government cf colville supra colville relied part opinion solicitor department interior opinion solicitor recognized absence congressional action contrary tribes sovereign power tax may exercised members tribe nonmembers far nonmembers may accept privileges trade residence taxes may attached conditions quoting powers indian tribes colville noted official executive pronouncements repeatedly recognized indian tribes possess broad measure civil jurisdiction activities indian reservation lands tribes significant interest including jurisdiction tax citing op atty op atty op atty similarly congress acknowledged tribal power tax one tools necessary territorial control early senate judiciary committee acknowledged validity tax imposed chickasaw nation legitimately within territory considered indian tribes invested right jurisdiction persons property within limits territory occupy except far jurisdiction restrained abridged treaty act congress subject supervisory control federal government may enact requisite legislation maintain peace good order improve condition establish school systems aid people efforts acquire arts civilized life undoubtedly possess inherent right resort taxation raise necessary revenue accomplishment vitally important objects right sense derived government emphasis added course tribe authority tax nonmembers subject constraints imposed governmental entities federal government take away power tribe must obtain approval secretary tax nonmembers take effect additional constraints minimize potential concern indian tribes exercise power tax unfair unprincipled manner ensure exercise tribal power tax consistent national policies persuaded dissent attempt limit indian tribe authority tax asserting source tribe power exclude persons tribal lands limiting tribes authority tax manner contradicts conception indian tribes domestic dependent nations well common understanding sovereign taxing power tool raising revenue necessary cover costs government persuaded dissent three early decisions upholding tribal power tax nonmembers support limitation post discussing morris hitchcock buster wright appeal dism maxey wright ind app ind aff discussing cases dissent correctly notes hallmark indian sovereignty power exclude indian lands power provides basis tribal authority tax none cases however establishes authority tax derives solely power exclude instead cases demonstrate tribe power tax nonmembers extent nonmember enjoys privilege trade activity reservation tribe attach tax limitation tribal taxing authority exists tribe power exclude nonmembers limited authority tribe may exercise nonmembers arise nonmember enters tribal jurisdiction question significant territorial component tribal power tribe authority nonmember nonmember enters tribal lands conducts business tribe however believe territorial component indian taxing power discussed early cases means tribal authority tax derives solely tribe power exclude nonmembers tribal lands morris hitchcock example suggests taxing power legitimate instrument raising revenue tribe may exercise power receive privileges tribe right trade indian land morris approved tax cattle grazing relied part report senate committee judiciary found legal defect previous tribal tax legislation twofold object prevent intrusion unauthorized persons territory chickasaw nation raise revenue emphasis added maxey wright question indian sovereignty even raised decision turned construction treaty denying tribe governing jurisdictional authority nonmembers ind finally decision buster wright actually undermines theory tribes taxing authority derives solely power exclude tribal lands theory establishes lawful presence indian territory avoid paying tribal tax claiming residual portion power exclude supports tax result explicitly rejected buster wright buster deeds individual lots indian territory granted residents cities towns incorporated result congress expressly prohibited tribe removing residents even though ownership land creation local governments established legitimate presence indian land held tribe retained power tax concluded either state sovereignty loses power govern people within borders existence towns cities therein endowed usual powers municipalities ownership occupancy land within territorial jurisdiction citizens foreigners emphasis added result confirms tribe authority tax derives power exclude power govern raise revenues pay costs government choose embrace new restriction extent tribal authority tax based questionable interpretation three early cases instead based views federal branches general principles taxation conception indian tribes domestic dependent nations conclude tribe authority impose severance tax mining activities petitioners part power govern pay costs alternatively accept argument advanced petitioners dissent tribe authority tax derives solely power exclude reservation conclude tribe authority impose severance tax challenged nonmembers lawfully enter tribal lands remain subject tribe power exclude power necessarily includes lesser power place conditions entry continued presence reservation conduct tax business activities conducted reservation tribe grants right indian land tribe agrees exercise ultimate power oust long complies initial conditions entry however follow lawful property right indian land also immunizes tribe exercise power tax place conditions conduct continued presence reservation nonmember enters jurisdiction tribe remains subject risk tribe later exercise sovereign power fact tribe chooses exercise power tax initially grants entry onto reservation permanently divest tribe authority impose tax petitioners argue leaseholds entitle enter reservation exempt exercises tribe sovereign authority similarly dissent asserts tribe lost power tax petitioners mining activities leased use mineral lands rights access reservation might necessary enjoy leases post however conclusion compelled linking taxing power power exclude instead based additional assumptions confusions consequences commercial arrangement petitioners tribe important petitioners dissent confuse tribe role commercial partner role sovereign confusion relegates powers sovereignty bargaining process undertaken sovereign commercial agreements one thing find tribe agreed sell right use land take valuable minerals quite another find tribe abandoned sovereign powers simply expressly reserved contract confusing two results denigrates indian sovereignty indeed dissent apparently views tribal power exclude well derivative authority tax merely power possessed individual landowner social group attach conditions including tax fee entry stranger onto private land social group sovereign power dissent pay lipservice established views indian tribes retain fundamental attributes sovereignty including power tax transactions occur tribal lands divested congress necessary implication tribe dependent status see colville tribes good deal private voluntary organizations mazurie however arguing tribe somehow lost power tax petitioners including taxing provision original leases otherwise notifying petitioners tribe retained might later exercise sovereign right tax dissent attaches little significance sovereign nature tribal authority tax obviously views tribal authority little landowner contractual right overly restrictive view tribal sovereignty reflected dissent refusal apply established principles determining whether governmental bodies waived sovereign power contract see post see also infra moreover dissent implies power tax depends consent taxed well tribe power exclude whatever place consent may contractual matters creation democratic governments little role measuring validity exercise legitimate sovereign authority requiring consent entrant deposits hands excludable source tribe power power instead derives sovereignty federal government may limit tribe exercise sovereign authority wheeler indian sovereignty conditioned assent nonmember contrary nonmember presence conduct indian lands conditioned limitations tribe may choose impose viewed light absence reference tax leases hardly impairs tribe authority impose tax contractual arrangements remain subject subsequent legislation presiding sovereign see veix sixth ward building loan assn newark home building loan assn blaisdell even contract issue requires payment royalty license franchise issued governmental entity government power tax remains unless specifically surrendered terms admit reasonable interpretation louis state indian sovereignty different federal state local governments see post justify ignoring principles announced determining whether sovereign waived taxing authority cases involving city state federal taxes imposed similar circumstances governments different attributes sovereignty also may derive different sources differences however alter principles determining whether governments waived sovereign power contract perceive principled reason holding different attributes indian sovereignty require different treatment regard without regard source sovereign power even unexercised enduring presence governs contracts subject sovereign jurisdiction remain intact unless surrendered unmistakable terms claim asserted litigation one petitioners leases contain clear unmistakable surrender taxing power required extinction find waiver tribe taxing power inferred silence leases presume sovereign forever waives right exercise one sovereign powers unless expressly reserves right exercise power commercial agreement turns concept sovereignty head adopt analysis tribe inherent power impose severance tax petitioners whether power derives tribe power power exclude congress may limit tribal sovereignty review petitioners argument congress enacted two federal acts governing indians various pieces federal energy legislation deprived tribe authority impose severance tax colville concluded widely held understanding within federal government always federal law date worked divestiture indian taxing power emphasis added moreover noted federal statute cited us shows congressional departure view likewise petitioners cite statute specifically divests tribe power impose severance tax mining activities instead petitioners argue congress implicitly took away power enacted acts various pieces legislation petitioners rely reviewing argument reiterate admonition santa clara pueblo martinez proper respect tribal sovereignty plenary authority congress area cautions tread lightly absence clear indications legislative intent petitioners argue congress tribe power impose severance tax enacted act essence petitioners argue tax constitutes additional burden lessees inconsistent act regulatory scheme leasing developing oil gas reserves indian land act regulations promulgated department interior enforcement establish procedures followed leasing oil gas interests tribal lands however proviso foregoing provisions shall manner restrict right tribes lease lands mining purposes accordance provisions constitution charter adopted indian tribe pursuant sections title emphasis added therefore act prohibit tribe imposing severance tax petitioners mining activities pursuant revised constitution revised constitution ordinance authorizing tax approved secretary petitioners also assert act divested tribe taxing power disagree act permits state taxation mineral lessees executive order reservations indicates change taxing power affected tribes see without mentioning tribal authority tax act authorizes state taxation royalties mineral production indian lands petitioners argue act transferred indian power tax mineral production exchange royalties assured tribes claim lacks supporting evidence legislative history also deviates settled principles taxation different sovereigns enjoy powers tax transactions thus mere existence state authority tax deprive indian tribe power tax fort mojave tribe county san bernardino cert denied cf colville direct conflict state tribal schemes since government free impose taxes without ousting finally petitioners contend tribal taxation oil gas conflicts national energy policies therefore tribal tax federal law petitioners cite specific federal statute restricting indian sovereignty explain state taxation type activity escapes asserted conflict federal policy cf commonwealth edison montana indeed rather forbidding tribal severance taxes congress included taxes imposed indian tribe definition costs may recovered federal energy pricing regulations natural gas policy act pub stat supp iv although inclusion may reflect congress view respect source tribe power impose severance tax surely indicates imposing tax contravene federal energy policy tribal authority implicitly divested act find clear indications congress implicitly deprived tribe power impose severance tax event ambiguity point doubt benefit tribe mbiguities federal law construed generously order comport traditional notions sovereignty federal policy encouraging tribal independence white mountain apache tribe bracker accordingly find federal government divested tribe inherent authority tax mining activities land whether authority derives tribe power power exclude iii finding defect tribe exercise taxing power address petitioners contention severance tax violates negative implications commerce clause taxes activity integral part flow commerce discriminates interstate commerce imposes multiple burden interstate commerce outset note reviewing tribal action interstate commerce clause without conceptual difficulties nn infra apparently recognizing difficulties solicitor general behalf secretary argues language structure purposes commerce clause support conclusion commerce clause force limit indian tribes dealings brief secretary interior solicitor general reasons framers intend courts commerce clause impose views proper relationship indians strike measures adopted tribe political departments government seen fit disagree instead tribal legislation inimical national welfare solicitor asserts framers contemplated remedies negotiation renegotiation treaties enactment legislation governing trade relations exertion superior force government using similar reasoning solicitor suggests commerce clause impose restrictions tribal activity restrictions must arise indian commerce clause interstate counterpart date however relied indian commerce clause shield protect indian tribes state local interference relied clause authorize tribal regulation commerce without constitutional restraints see need break new ground area today even assume tribal action subject limitations interstate commerce clause tax violate negative implications clause state tax may violate negative implications interstate commerce clause unduly burdening discriminating interstate commerce see commonwealth edison montana complete auto transit brady judicial review state taxes interstate commerce clause intended ensure disrupt burden interstate commerce congress power remains unexercised protects free flow commerce thereby safeguards congress latent power encroachment several however engage review congress acted purported act see prudential insurance benjamin congress acts courts free review state taxes regulations dormant commerce clause congress struck balance deems appropriate courts longer needed prevent burdening commerce matters courts invalidate state tax regulation commerce clause absence congressional action see prudential insurance benjamin supra courts final arbiters commerce clause congress acted see japan line county los angeles congress affirmatively acted providing series federal checkpoints must cleared tribal tax take effect indian reorganization act tribe must obtain approval secretary adopts revises constitution announce intention tax nonmembers ordinance imposing severance tax challenged take effect tribe required obtain approval secretary see revised constitution jicarilla tribe art xi cf cfr implementing proviso quoted supra noted earlier severance tax challenged petitioners enacted accordance congressional scheme tribe revised constitution challenged tax ordinance received requisite approval secretary course events fulfilled administrative process established congress monitor exercises tribal authority result tribal tax comes us posture significantly different challenged state tax need specific federal approval take effect therefore requires absence congressional ratification judicial review ensure unduly burden discriminate interstate commerce judicial review indian tax measure contrast duplicate administrative review called congressional scheme finally congress well aware indian tribes impose mineral severance taxes one challenged petitioners see natural gas policy act supp iv congress course retains plenary power limit tribal taxing authority alter current scheme tribes may impose taxes however function prerogative strike tax traveled precise channels established congress obtained specific approval secretary tax challenged survive judicial scrutiny interstate commerce clause even scrutiny necessary complete auto transit brady supra held state tax activities connected interstate commerce sustainable applied activity substantial nexus taxing state fairly apportioned discriminate interstate commerce fairly related services provided state petitioners question tax severance minerals mines meets first second tests mining activities taxed pursuant ordinance occur entirely reservation land furthermore petitioners challenge tax ground amount tax fairly related services provided tribe see supplemental brief petitioners pp instead petitioners focus attack third factor argue tax discriminates interstate commerce essence petitioners argue language sold transported reservation exempts taxation minerals sold reservation kept reservation use individual members tribe minerals taken tribe reservation royalty although petitioners admit sales occurred reservation date argue tribe might induce private industry locate reservation take advantage allegedly discriminatory taxing policy accept petitioners arguments instead agree tribe solicitor general appeals tax imposed minerals sold reservation transported reservation sale see cf supra interpretation tax treat minerals transported away reservation differently treats minerals might sold reservation tribe tax ordinance exempt minerals ultimately received individual members tribe ordinance exempt minerals received tribe payments leases used tribal purposes exemption merely avoids administrative ensue tribe local government taxed amount minerals tribe commercial partner received royalty payments therefore exemption deemed discriminatory preference local commerce iv worcester georgia chief justice marshall observed indian tribes always considered distinct independent political communities retaining original natural rights although tribes subject authority federal government weaker power surrender independence right associating stronger taking protection adhering understanding conclude tribe surrender authority tax mining activities petitioners whether authority deemed arise tribe inherent power inherent power exclude nonmembers therefore tribe may enforce severance tax unless congress divests power action congress taken date finally severance tax imposed tribe invalidated ground violates negative implications commerce clause affirmed footnotes proviso reads follows order shall construed deprive bona fide settler valid rights may acquired law providing disposition public domain kappler supra tribe also chartered indian reorganization act ch stat permits secretary issue indian tribe charter incorporation may give tribe power purchase manage operate dispose property two judges dissented argued tribal sovereignty encompass power tax lessees seth dissenting barrett dissenting also arguing tax violates commerce clause various acts governing indian tribes congress expressed purpose fostering tribal colville agree judge mckay observation simply make sense expect tribes carry municipal functions approved mandated congress without able exercise least minimal taxing powers whether take form real estate taxes leasehold taxes severance taxes mckay concurring moreover revision classic treatise indian law department interior advances view indian tribes power tax limited power exclude see solicitor dept interior federal indian law power tax depend upon power remove upheld power tribe remove taxpayer tribal jurisdiction omitted see also cohen handbook federal indian law one powers essential maintenance government power levy taxes power inherent attribute tribal sovereignty continues unless withdrawn limited treaty act congress proposition never successfully disputed omitted governing treaty maxey wright restricted tribal right jurisdiction members creek seminole tribes relied least part opinions attorney general interpreting treaty example one opinion stated whatever meaning clause limiting tribal members tribes unrestricted rights jurisdiction limit right tribes pass upon question shall share occupancy upon terms question private persons allowed decide even wild animals men certain respect paid instinct respect share man serious words jurisdiction scarcely appropriate right hotel keeper prescribe rules charges persons become fellow occupants ind quoting op atty well opinion attorney general found tribes natural instinct set terms occupancy unaltered treaty neither attorney general addressed scope indian sovereignty unlimited treaty instead identified tribe right social group exclude intruders place conditions occupancy dependence reasoning hardly bears general question posed source indian tribes sovereign power tax absent restriction treaty federal law classic treatise indian law subsequent revision department interior see supra agree reading buster wright federal indian law supra cohen supra citing buster wright proposition power tax inherent sovereign power dependent power exclude see also barta oglala sioux tribe pine ridge reservation lessees tribal lands subject indian tax use land leases extend long minerals produced paying quantities words resources depleted thus dissent approach tribe never power tax petitioners regardless financial burden tribe providing maintaining governmental services benefit petitioners see buster wright ultimate conclusion whole matter purchasers lots town sites towns cities within original limits creek nation lawful possession lots still subject laws nation prescribing permit taxes exercise noncitizens privilege conducting business towns contrast treatise indian law written solicitor department interior recognized distinguished scope two roles embraced present state law following summary tribal lands tribe rights landowner well rights local government dominion well sovereignty lands reservation whether owned tribe members thereof outsiders tribe sovereign power determining conditions upon persons shall permitted enter domain reside therein business provided determination consistent applicable federal laws infringe vested rights persons occupying reservation lands lawful authority federal indian law supra quoting solicitor opinion emphasis added see cohen supra see also maxfield dieterich trelease natural resources law american indian lands federal limitations tribal sovereignty also occur exercise tribal sovereignty inconsistent overriding national interests see colville concern presented see ibid petitioners dissent also argue infer waiver taxing power silence tribe original constitution although true constitution force petitioners signed leases include provision specifically authorizing severance tax neither tribe constitution federal constitution font sovereign power indian tribes iron crow oglala sioux tribe pine ridge reservation buster wright tribe retains inherent attributes sovereignty divested federal government proper inference silence point sovereign power tax remains intact tribe constitution amended authorize tax tax imposed critical event necessary effectuate tax see barta oglala sioux tribe pine ridge reservation iron crow oglala sioux tribe pine ridge reservation supra secretary implemented substance proviso following regulation regulations part may superseded provisions tribal constitution bylaw charter issued pursuant indian reorganization act june stat ordinance resolution action authorized constitution law charter regulations part far superseded shall apply leases made organized tribes validity lease depends upon approval secretary interior cfr arguing act intended severance tax petitioners attach great significance secretary approval leases curiously attach virtually significance fact secretary also approved tax ordinance challenge tribe argues act granting power tax mineral production indian land inapplicable leases issue signed pursuant act act makes uniform laws applicable leasing mineral rights tribal lands contain grant power comparable found act result tribe asserts state new mexico power tax production petitioners leases tribe state new mexico party suit appeals reach issue see reason conclude act affect tribe authority tax likewise reach issue statute provides indian severance taxes may recovered federal energy pricing however legislative history indicates congress took position source indian tribes power impose tax first place severance taxes may imposed indian tribe treated manner state imposed severance taxes conferees intend prejudge outcome cases appeal tenth circuit appeals respecting right indian tribes impose taxes persons organizations indians engaged business activities indian reservations outcome cases appeal determine legality imposing taxes conf conf commerce clause empowers congress regulate commerce foreign nations among several indian tribes art cl emphasis added prudential insurance benjamin refused invalidate south carolina tax insurance companies despite appellant contention tax impermissibly burdened interstate commerce refused entertain appellant argument congress passing act provided silence part congress shall construed impose barrier regulation taxation business insurance several stat although congress expressly announced indian taxes threaten latent power regulate interstate commerce unclear congress articulate intention convincingly done contrast congress acts respect congress acts respect indian tribes generally pursuant authority indian commerce clause virtue superior position tribes pursuant authority interstate commerce clause one difficulties inherent reviewing interstate commerce clause tribal action congressional action regulating tribes therefore determining whether congress acted preclude judicial review find significant congressional action taken pursuant interstate commerce clause petitioners initially contend ordinance taxes transportation minerals reservation severance mines result argue ordinance impermissibly burdens interstate commerce taxing movement commerce local event tax terms applies resources produced jicarilla apache tribe reservation sold transported reservation app tribe explains language used sale occurs prior transportation reservation tribe tax due time severance therefore agree appeals taxable event defined ordinance removal minerals soil transportation reservation see appeals noted lessees chose build factual foundation challenge tax ground basis find tax fairly related services provided tribe see indeed tribe attempted introduce trial evidence services provided establish relationship district rejected evidence upon petitioners objection evidence irrelevant challenge brief respondent jicarilla apache tribe record ordinance distinguish minerals remaining within new mexico transported beyond state boundary result petitioners argument tax discriminates interstate commerce favoring local sales focuses boundary reservation state new mexico interstate boundaries assume purposes argument alleged discrimination give rise commerce clause violation paragraph ordinance specifies oyalty gas oil condensate taken tribe kind used tribe shall exempt taxation app petitioners contend new mexico may tax mining activity full value indian tax imposes multiple tax burden interstate commerce violation commerce clause multiple taxation issue arises two taxing jurisdictions point contact enterprise support tax entire value multistate activities contact justify standard oil peck required apportionment tax based portion activity properly viewed occurring within relevant state see exxon wisconsin dept revenue washington revenue dept association washington stevedoring rule bearing however claim tribe seeks tax petitioners mining activity portion occurring within tribal jurisdiction indeed petitioners even argue tribe seeking seize tax revenues fairly related services provided tribe see supra absence assertion activity taxed tribe occurs entirely tribal lands multiple taxation issue arise state attempted levy tax activity state contact activity justify circumstance challenge asserting tribal state taxes create multiple burden interstate commerce directed state tax absence congressional ratification might invalidated commerce clause cases course involve challenge state taxation intimate opinion possibility challenge justice stevens chief justice justice rehnquist join dissenting indian tribes occupied north america europeans settled continent unquestionably sovereigns ruled exercised dominion lands nourished many tribes attributes sovereignty survive today since earliest days task identifying inherent sovereign powers survived creation new nation introduction entirely new system laws applicable indians performing task guarded carefully unique status indian tribes within nation members indian tribe sovereign powers virtually unlimited incorporation tribe done little change internal tribal relations becoming part however tribes yielded status independent nations indians alike answered authority new nation organized new constitution based democratic principles representative government new system government indian tribes afforded general powers citizens many tribes however granted power unknown sovereignty nation power exclude nonmembers entirely territory reserved tribe incident basic power exclude tribes exercise limited powers governance nonmembers though nonmembers voice tribal government since tribe may exclude nonmembers entirely tribal territory tribe necessarily may impose conditions right entry granted nonmember business reservation question presented cases whether tribe granted nonmembers access reservation specified terms conditions engage economic venture mutual benefit tribe may impose tax nonmembers share benefits derived venture today holds may opinion holding distorts concept tribal sovereignty convinced treatment important cases gives inadequate attention critical difference tribe powers members powers nonmembers set forth views greater length normally appropriate dissenting opinion members jicarilla apache tribe live reservation northern new mexico area encompassed reservation became part mexican war ended treaty guadalupe hidalgo see stat enter treaty jicarillas enact special legislation relating congress outlawed future treaties indian tribes president cleveland issued executive order setting aside tract public lands territory new mexico reservation use occupation jicarilla apache indians except provision protecting bona fide settlers deprivation previously acquired rights executive order contained special rules applicable reservation mineral leases issue case granted jicarilla apache tribe reservation lands record indicate whether leasing activity occurred jicarilla reservation period however authority indian tribes enter mineral leases clarified congress passed statute permitting mineral leasing indian lands act stat statute applied lands occupied indians bought paid statute interpreted inapplicable reservations created executive order see oil producing board equalization secretary interior took position indian reservations created executive order public lands indians residing reservations right share royalties derived oil gas leases congress enacted statute expressly providing unallotted lands indian reservation created executive order leased oil gas mining purposes approval secretary interior statute directed rentals royalties bonuses leases paid treasurer benefit tribe reservation created statute provided state taxes levied upon output oil gas leases made mention possibility indian tribes addition receiving royalties impose taxes output congress enacted indian reorganization act stat et authorized indian tribe residing reservation adopt constitution bylaws subject approval secretary interior act provided addition powers vested indian tribe tribal council existing law constitution vest certain specific powers power employ legal counsel tribe act also authorized secretary interior issue charter incorporation indian tribe provided charter convey tribe power purchase manage dispose property act silent concerning right indian tribe levy taxes first jicarilla apache constitution approved secretary interior tribe executed oil gas lease phillips petroleum app lease prepared form provided bureau indian affairs department interior presumably typical later leases executed companies tribe lease provides return certain rents royalties cash bonus paid treasurer tribe tribe lessor granted lessee exclusive right privilege drill mine extract remove dispose oil natural gas deposits described tracts land together right construct maintain buildings plants tanks necessary structures surface lease term years following approval secretary interior much longer thereafter oil gas produced paying quantities said land ibid lessee obligated use reasonable diligence development property pay annual rental per acre royalty value amount oil gas produced saved leased land oil gas used lessee development operation lease tribe reserved rights use free charge sufficient gas school building owned tribe leased premises take royalty kind lease contains reference payment taxes lessee however agree comply regulations secretary interior hereafter force relative leases provided regulation hereafter approved shall effect change rate royalty annual rental herein specified without written consent parties lease tribe adopted revised constitution giving tribal council authority subject approval secretary interior impose taxes fees tribe business reservation eight years later tribal council enacted oil gas severance tax ordinance approved secretary interior tribal ordinance provides severance tax imposed oil natural gas severed saved removed tribal lands rate tax per million btu gas produced reservation sold transported reservation per barrel crude condensate produced reservation sold transported reservation royalty gas oil taken tribe well gas oil used tribe exempt tax ibid thus entire burden tax apparently fall nonmembers tribe tax sustained produce million revenues annually ii powers possessed indian tribes stem three sources federal statutes treaties tribe inherent sovereignty neither tribe federal government seeks justify jicarilla tribe severance tax basis federal statute jicarilla apaches reside executive order reservation executed treaty derive sovereign powers therefore severance tax valid must exercise tribe inherent sovereignty tribal sovereignty neither derived protected constitution indian tribes however retained many powers possessed time incorporation stated justice worcester georgia pet concurring opinion time sovereignty country recognised existing indians always admitted possess many attributes sovereignty rights belong recognised vested indians always regarded position preserved tribal relations nations possessed full attributes sovereignty separate people power regulating internal social relations thus far brought laws union state within whose limits resided careful protect tribes interference tribal control members recognized tribes power prosecute members violations tribal criminal law power inherent attribute tribal sovereignty wheeler tribes also retain power create substantive law governing internal tribal affairs tribes may define rules membership thus determine entitled benefits tribal citizenship roff burney establish rules inheritance supersede applicable state law jones meehan determine rights custody child divorced parents tribe thus adoption proceedings brought state fisher district substantive tribal law may enforced tribal courts williams lee fisher district supra many respects indian tribes sovereignty members significantly greater powers citizens tribes may enforce discriminatory rules intolerable community equal protection components fifth fourteenth amendments limit federal state authority similarly limit tribal power see santa clara pueblo martinez criminal jurisdiction tribes members similarly unconstrained constitutional limitations applicable federal government thus use word sovereign characterize tribal powers surely appropriate sharp contrast tribes broad powers members tribal powers nonmembers always narrowly confined emphasized exercise tribal power beyond necessary protect tribal control internal relations inconsistent dependent status tribes survive without express congressional delegation montana oliphant suquamish indian tribe held tribes criminal jurisdiction crimes committed nonmembers within reservations montana supra held crow tribe prohibit hunting fishing nonmembers reservation land longer owned tribe indicated principle underlying oliphant tribes possess limited power nonmembers applicable civil well criminal context stated hough oliphant determined inherent tribal authority criminal matters principles relied support general proposition inherent sovereign powers indian tribe extend activities nonmembers tribe montana supra omitted tribes authority enact legislation affecting nonmembers therefore different character broad power control internal tribal affairs difference consistent fundamental principle nation sovereign governs consent governed nevada hall since nonmembers excluded participation tribal government powers may exercised appropriately limited certainly tribal authority nonmembers including power tax unprecedented examination cases upheld power however demonstrates power impose tax derives solely tribes power exclude nonmembers entirely territory reserved tribe power exclude logically held include lesser power attach conditions right entry granted tribe nonmember engage particular activities within reservation iii study source tribes power tax nonmembers must focus extent tribal power tax existed indian reorganization act enacted prevent erosion indian sovereign powers shortly act passed solicitor department interior issued formal opinion setting forth understanding powers might secured indian tribe incorporated constitution virtue reference reorganization act powers vested indian tribe existing law solicitor margold concluded among powers power taxation opinion described permissible exercise power except congress provided otherwise power may exercised members tribe nonmembers far nonmembers may accept privileges trade residence taxes may attached conditions first cases maxey wright appeals indian territory affirmed order federal territorial dismissing complaint filed lawyers practicing creek nation complaint sought enjoin indian agent five civilized tribes collecting annual occupation tax assessed lawyer residing practicing profession reservation rejecting attorneys claim appeals first analyzed relevant treaties creeks noted indians carefully guarded sovereignty right admit consequently exclude white persons except named treaty ind noted agreed persons expressly excepted present creek nation without consent nation deemed intruders government pledge remove attorneys within excepted class concluded tribe authority require either pay license fee removed intruders held creek nation power impose condition occupation tax may called upon attorneys law white men residing practicing profession indian territory inasmuch government treaty declared persons authorized terms reside creek nation deemed intruders obligated remove persons creek nation remedy enforce provision treaty removal creek nation delinquent intruder opinion first noted treaties chickasaw nation granted tribe right control presence within territory assigned persons might otherwise regarded intruders assumed obligation protecting indians aggression persons subject jurisdiction reviewed similar legislation adopted chickasaw nation noted senate committee judiciary specifically referred legislation expressed opinion valid also reviewed two opinions attorney general concluded power chickasaw impose permit fees withdrawn congress although congress subsequently created express exception favor owners town lots thus protected eviction intruders noted comparable protection given owners cattle horses basis authorities concluded chickasaw legislation imposing grazing fees valid third case buster wright nonmembers creek nation brought suit federal inspectors enjoin stopping plaintiffs business within reservation nonmembers feared action refused pay permit tax assessed traders tribe appeals relied morris hitchcock maxey wright upholding tax opinion judge walter sanborn emphasized tax nature condition precedent transacting business within reservation plaintiffs ample notice tax permit tax creek nation subject controversy annual price fixed act national council approved president year privilege offers citizens nation trading within borders payment tax mere condition exercise privilege noncitizen required exercise privilege pay tax may refrain one remains free liability thus without entering upon extended discussion consideration question whether charge technically license tax fact appears partakes far nature license ordinary tax optional feature former lacks compulsory attribute latter repeated decisions courts numerous opinions attorneys general practice years place beyond debate propositions prior march creek nation lawful authority require payment tax condition precedent exercise privilege trading within borders executive department government plenary power enforce payment secretary interior subordinates indian inspector indian agent indian police prior enactment indian reorganization act three cases judicial decisions considering power indian tribe impose tax nonmembers cases demonstrate power indian tribe impose tax solely nonmembers business reservation derives tribe power exclude persons entirely tribal lands alternative impose lesser restrictions conditions right entry granted conduct business reservation interpretation supported fact remedy nonpayment tax three cases exclusion reservation noted limitation power indian tribes tax nonmembers simply archaic concept derived three old cases basis logic equity tribal powers nonmembers appropriately limited nonmembers foreclosed participation tribal government power tax limited situations tribe power exclude nonmember subjected tribe jurisdiction accepts conditions entry imposed tribe limited source power tax nonmembers power exclude intruders thus consistent recognition limited character power indian tribes nonmembers general proper source taxing authority asserted jicarilla apache tribe cases therefore tribe inherent power rather power territory set apart use occupation conclusion consistent recent decision washington confederated tribes colville reservation case held tribal tax cigarettes sold reservations colville makah lummi tribes nonmembers tribes permissible exercise tribes retained sovereign power tax recognized power tax entering reservation divested virtue tribes dependent status overriding federal interest frustrated tribal taxation quoted approval indication executive branch understanding taxing power solicitor margold opinion noted ederal courts also acknowledged tribal power tax entering reservation engage economic activity cited buster wright morris hitchcock tax colville applied nonmembers entered reservation sought purchase cigarettes clearly valid rationale tribes power tax derives right exclude nonmembers reservation lesser right attach conditions entry nonmembers seeking business colville consistent principles set forth power indian tribes tax nonmembers stems tribes power exclude nonmembers exercise power must consistent source iv power exclude petitioners supported imposition discriminatory tribal tax petitioners sought enter jicarilla apache reservation explore minerals moreover even tax imposed time initial entry discriminatory severance tax imposed condition attached grant privilege extracting minerals earth tribe impose tax prior petitioners entry condition attached privileges granted leases result tax imposed valid unless tribe retained power either exclude petitioners reservation prohibit continuing extract oil gas reservation lands leases executed tribe petitioners clearly valid binding parties tribe contend leases product bargaining moreover leases executed form prepared department interior department gave specific approval terms leases executed pursuant explicit congressional authority leases petitioners clearly right remain reservation business duration contracts basis claim exercise mining rights granted leases subject additional unstated condition concerning payment severance taxes time leases contained record executed jicarilla apache constitution contained taxing authorization whatever severance tax ordinance enacted many years lessees granted unlimited right extract oil gas reservation addition written leases unambiguously stated regulation hereafter approved shall effect change rate royalty annual rental herein specified without written consent parties lease app thus nothing leases act congress conveyed indication petitioners accept rights conferred leases accepting condition pay subsequently enacted severance tax condition presumed prior taxing activity tribe opinion clear parties negotiated leases question absolutely expectation severance tax later imposed contemplation parties conditions governing petitioners right extract oil gas subject change terms agreements simply support proposition tribe retained power leases impose additional condition petitioners right enter reservation extract oil gas reservation lands since authority retained tribe power alter unilaterally terms agreement impose additional burden petitioners right business reservation cases tribe seeks impose tax activity leases granted petitioners right undertake solicitor margold wrote long ago tribal lands tribe rights landowner well rights local government dominion well sovereignty lands reservation whether owned tribe members thereof outsiders tribe sovereign power determining conditions upon persons shall permitted enter domain reside therein business provided determination consistent applicable federal laws infringe vested rights persons occupying reservation land lawful authority emphasis added see plaintiff exhibit ereafter indian nation tribe within territory shall acknowledged recognized independent nation tribe power may contract treaty provided nothing herein contained shall construed invalidate impair obligation treaty heretofore lawfully made ratified indian nation tribe stat current version entire executive order reads follows executive mansion february hereby ordered portion public domain territory new mexico surveyed embraced following townships viz north ranges east west north ranges west west south half township north range west hereby set apart reservation use occupation jicarilla apache indians provided order shall construed deprive bona fide settler valid rights may acquired law providing disposition public domain grover cleveland kappler indian affairs laws treaties secretary contended land executive order reservations subject leasing lands mineral lands leasing act february stat et seq attorney general stone rendered opinion stating mineral lands leasing act apply executive order reservations op atty stone instituted litigation district utah cancel certain leases authorized secretary interior pursuant mineral lands leasing act see case dismissed stipulation enactment act noted text see mcmahon later decision suggests secretary position correct sioux tribe indians held indian tribe entitled compensation executive order reservation abolished said perhaps striking proof belief shared congress executive indians entitled compensation upon abolition executive order reservation absence compensatory payments situations common practice period reservations created executive order president simply terminate existence reservation cancelling revoking order establishing say procedure followed case us typical compensation made neither government indians suggested due conclude therefore express constitutional statutory authorization conveyance compensable interest petitioner four executive orders implied congressional delegation power spelled evidence congressional executive understanding orders effective withdraw sale lands affected grant use lands petitioner interest indians received subject termination either executive congress without obligation executive orders simply exercise power termination payment compensation required see also indians act mar stat part current version section act provided nallotted lands within limits reservation withdrawal created executive order indian purposes use occupancy indians tribe may leased oil gas mining purposes accordance provisions contained act may see also unallotted land land allotted severalty individual indians pursuant general allotment act stat section act provided proceeds rentals royalties bonuses oil gas leases upon lands within executive order indian reservations withdrawals shall deposited treasury credit tribe indians whose benefit reservation withdrawal created using occupying land shall draw interest rate per centum per annum available appropriation congress expenses connection supervision development operation oil gas industry use benefit indians provided said indians tribal council shall consulted regard expenditure money per capita payment shall made except act congress stat part current version section act provided axes may levied collected state local authority upon improvements output mines oil gas wells rights property assets lessee upon lands within executive order indian reservations manner taxes otherwise levied collected taxes may levied share obtained indians bonuses rentals royalties secretary interior authorized directed cause taxes paid tribal funds treasury provided taxes shall become lien charge kind land property indians stat part current version congress passed act may stat designed part achieve uniformity mineral leases indian lands like act statute provided tribes entitled royalties leases statute made mention taxes see infra statute provided part indian tribe tribes residing reservation shall right organize common welfare may adopt appropriate constitution bylaws shall become effective ratified majority vote adult members tribe adult indians residing reservation case may special election authorized called secretary interior rules regulations may prescribe addition powers vested indian tribe tribal council existing law constitution adopted said tribe shall also vest tribe tribal council following rights powers employ legal counsel choice counsel fixing fees subject approval secretary interior prevent sale disposition lease encumbrance tribal lands interests lands tribal assets without consent tribe negotiate federal state local governments statute provided secretary interior may upon petition least adult indians issue charter incorporation tribe provided charter shall become operative ratified special election majority vote adult indians living reservation charter may convey incorporated tribe power purchase take gift bequest otherwise hold manage operate dispose property every description real personal including power purchase restricted indian lands issue exchange therefor interests corporate property powers may incidental conduct corporate business inconsistent law authority shall granted sell mortgage lease period exceeding ten years land included limits reservation charter issued shall revoked surrendered except act congress see cohen handbook federal indian law hereinafter cohen constitution made reference power assess taxes nonmembers see constitution jicarilla apache tribe defendants exhibit lease attached petitioners complaint lease attached complaint also executed see app record disclose date leases petitioners executed record indicate leases executed late see plaintiffs exhibit leases jicarilla tribal property cover aggregate acres land comprising almost acreage within jicarilla reservation brief respondent jicarilla apache tribe app brief petitioners pp earlier constitution adopted contained similar provision permitting taxes fees persons business reservation see constitution jicarilla apache tribe art vi defendant exhibit see district findings fact conclusions law finding app tribe answers interrogatories indicate royalties leases received tribe amounted see plaintiff exhibit tr congress may delegate sovereign powers tribes see mazurie indicated however neither statute permitting indians receive royalties lease tribal lands indian reorganization act conveys authority indian tribes tax see supra reference indian tribes constitution art cl provides congress shall power regulate commerce foreign nations among several indian tribes significant reference indian tribes absence mention tribes tenth amendment provides powers delegated constitution prohibited reserved respectively people indian tribes often described domestic dependent nations term first used cherokee nation georgia pet chief justice marshall writing explained though indians acknowledged unquestionable heretofore unquestioned right lands occupy right shall extinguished voluntary cession government yet may well doubted whether tribes reside within acknowledged boundaries strict accuracy denominated foreign nations may correctly perhaps denominated domestic dependent nations occupy territory assert title independent must take effect point possession right possession ceases meanwhile state pupilage relation resembles ward guardian retains plenary authority divest tribes attributes sovereignty see wheeler winton amos lone wolf hitchcock american indian policy review commission final report hereinafter aiprc final report thus example congress waive tribes sovereign immunity see fidelity guaranty indian civil rights act stat prohibits indian tribes denying person within jurisdiction equal protection laws santa clara pueblo however held sovereign immunity protected tribe suit act act create private cause action cognizable federal tribal appropriate forum vindication rights created act talton mayes held fifth amendment right indictment grand jury apply prosecutions tribal courts see also wheeler supra certain treaties specifically granted right tribes also specifically excluded jurisdiction nonmembers see treaty cherokees art stat treaty choctaws chickasaws art stat treaty creeks seminoles art stat support holding stated upon incorportion territory indian tribes thereby come territorial sovereignty exercise separate power constrained conflict interests overriding sovereignty heir rights complete sovereignty independent nations necessarily diminished johnson wheat see also new york ex rel ray martin state jurisdiction try crime committed reservation preceding statement noted oliphant quoted justice johnson words concurrence fletcher peck cranch first indian case reach indian tribes lost right governing every person within limits except montana see also oneida indian nation county oneida tribes freely alienate land occupy cherokee nation georgia pet tribes enter direct commercial foreign relations nations wheeler supra held tribes power prosecute members tribal offenses implicitly lost virtue dependent status stated areas implicit divestiture sovereignty held occurred involving relations indian tribe nonmembers tribe limitations rest fact dependent status indian tribes within territorial jurisdiction necessarily inconsistent freedom independently determine external relations powers including power prescribe enforce internal criminal laws different type involve relations among members tribe thus powers necessarily lost virtue tribe dependent status settled doctrine law nations weaker power surrender independence right self government associating stronger taking protection worcester georgia pet indian reorganization act confirmed enlarge inherent sovereign powers indian tribes congress intended act stabilize tribal organization indian tribes vesting tribal organizations real though limited authority one commentator interpreted act appear powers originally held tribes recognized allowed retained treaties prior statutes well additional powers conferred manner retained tribes accepted terms act provision consistent act purpose enhancing tribal government recognized reconfirmed powers tribe may already government mettler unified theory indian tribal sovereignty hastings rev moreover although power given reorganization act secretary interior approve disapprove exercise tribal powers places limit tribal sovereignty power enable secretary add inherent powers tribe possessed act passed hand fact indian tribe may never occasion exercise particular power nonmembers early history sufficient reason deny existence power accordingly fact evidence jicarilla apache tribe ever imposed tax kind nonmember require conclusion taxing power extent power tax attribute sovereignty possessed indian tribes reorganization act passed congress intended statute preserve powers indian tribes adopted formal organization act solicitor margold described scope opinion follows opinion requested question powers may secured indian tribe incorporated constitution virtue following phrase contained section act stat reorganization act addition powers vested indian tribe tribal council existing law constitution adopted said tribe shall also vest italics added question powers vested indian tribe tribal council existing law answered detail indian tribe without reference hundreds special treaties special acts congress possible however basis reported cases written opinions various executive departments statutes congress general import define powers heretofore recognized lawfully within jurisdiction indian tribe answer propounded question general subject correction particular tribes light treaties statutes affecting tribe wherever treaties statutes contain peculiar provisions restricting enlarging general authority indian tribe felix cohen handbook federal indian law published also relies cases discussion tribal taxation nonmembers cohen washington confederated tribes colville reservation cited buster wright morris hitchcock upholding exercise tribal power tax see infra attorneys practicing courts persons come within exceptions employment government persons peaceably traveling temporarily sojourning country trading therein license proper authority ind reaching conclusion relied heavily two opinions attorney general first opinion issued attorney general macveagh supported validity indian permit laws determined persons permitted reside choctaw chickasaw reservations op atty discussion right enter remain tribal lands macveagh stated replying fourth question seems already said besides persons classes mentioned permitted choctaws chickasaws reside within limits employed citizens teachers mechanics skilled agriculturists right enter remain lands tribes right remain gone permit expired emphasis added second opinion subject attorney general phillips stated absence treaty statute power indian tribe regulate rights occupancy say shall participate therein upon conditions doubted op atty although treaties applicable choctaw chickasaw tribes specifically excepted grant power nonmembers attorney general construe provision limit tribes power exclude submit whatever may mean limit right tribes pass upon question persons indifferent neither employes objectionable shall share occupancy upon terms question private persons allowed decide parts opinion restated propositions tribe clothed power admit white men option hold gave right impose conditions ind lawyer refused pay privilege remaining become intruder whole case therefore hold lawyer white man citizen creek nation pursuant statute required pay privilege remaining practicing profession nation sum refuse payment thereof becomes virtue treaty intruder case government may remove nation duty devolves upon interior department whether interior department indian agents controlled courts writs mandamus injunction material case hold attorney refuses pay amount required statute terms becomes intruder promises terms treaty remove therefore cases officers agents interior department acting clearly properly within scope powers stated disputed authority treaties chickasaw nation exercised power attach conditions presence within borders persons might otherwise entitled remain within tribal territory legislation required licensed merchants traders obtain permit pay fee relied op atty op atty first opinion attorney general john griggs stated treaties laws make persons specified exceptions citizens indian nation members indian tribe found within indian nation without permission intruders require removal closes whole matter absolutely excludes excepted classes fully authorizes nations absolutely exclude outsiders permit residence business upon terms may choose impose must borne mind citizens right business foreign nation lawfully indian permission right remain carry business depends solely upon whether permission power duty department premises hardly doubt treaties indian nations government solemn obligation received ample consideration remove keep removed territory tribes class intruders without indian permission performance obligation matters concerning indians affairs long devolved upon department interior op atty citing opinion attorney general griggs quoted length morris hitchcock judge sanborn wrote pursuant decision civilized tribes charging indian agent collecting taxes noncitizens engaged business nations state facts creek nation made agreement intend agreement creek nation thereby renounce conceded power exact permit taxes parties knew power existed act president approving law creek national council secretary interior enforcing approved exercise subject taxes presented minds contracting parties considered negotiation agreement contract contains express stipulations cattle grazed rented allotments shall liable tribal tax chapter stat noncitizen renting lands citizen agricultural purposes provided law whether lands selected allotment shall required pay permit tax chapter stat made provision noncitizens engaged mercantile business creek nation exempt taxes law force required noncitizens pay taxes parties aware fact considered question made stipulation abolish taxes conclusive presumption intended make contract power creek nation exact taxes authority secretary interior subordinates collect neither renounced revoked restricted remained full force effect agreement ibid stated legal effect law prescribing permit taxes prohibit noncitizens conducting business within creek nation without payment taxes two decades reorganization act passed problem revisited eighth circuit iron crow oglala sioux tribe pine ridge reservation held tribe power assess tax nonmember lessee land within reservation privilege grazing stock reservation land barta oglala sioux tribe pine ridge reservation held bring action behalf tribe collect license tax cents per acre per annum grazing land cents per acre per annum farm land levied nonmember lessees barta held tax violate constitutional rights nonmember lessees stating part tribe provisions treaty power provide admission nonmembers tribe onto reservation power authority impose restrictions presence nonmembers within reservation language iron crow barta suggests appeals unlike earlier courts may rested taxing power solely power exclude appeals course benefit decisions oliphant suquamish indian tribe wheeler montana chapter treatise entitled taxation felix cohen though scope power tax applied nonmembers clear extends least property nonmembers used connection indian property well privileges enjoyed nonmembers trading indians power tax nonmembers derived cases authority founded original sovereignty guaranteed instances treaties remove property nonmembers territorial limits tribe since tribal government power exclude extract fee nonmembers condition precedent granting permission remain operate within tribal domain cohen footnotes omitted another chapter entitled scope tribal cited secretary interior tribe cohen describes power taxation inherent attribute tribal sovereignty continues unless withdrawn limited treaty act congress discussing buster wright cohen cites case proposition power tax depend upon power remove upheld power tribe remove taxpayer tribal jurisdiction cohen demonstrated however license tax buster predicated tribe right attach conditions right nonmembers conduct business reservation tribe prevent nonmembers business regardless whether physically remove reservation moreover chapter tribal cohen recognizes tribal taxes upheld basis tribe power remove nonmembers reservation therefore pertinent analyzing scope tribal taxing powers inquire far indian tribe empowered remove nonmembers reservation cohen american indian policy review commission recognized decisions upholding tribes taxing powers rely largely upon power tribes remove persons reservation consequently prescribe conditions upon shall enter argued broader source right tax aiprc final report buster wright penalty nonpayment tax closing nonmember business enforced secretary interior morris hitchcock remedy removal nonmember cattle reservation enforced maxey wright attorney refusing pay license fee interior department subject removal reservation ind noncitizen required exercise privilege pay tax may refrain one remains free liability buster wright see supra indicated see supra treaties recognizing inherent power tribal also deprived tribes jurisdiction nonmembers nevertheless treaties often specifically recognized right tribe exclude nonmembers reservation attach conditions entry see treaty choctaw chickasaw art stat treaty creeks seminoles art stat see kappler indian affairs laws treaties various tribes may taken similar view power tax time indian reorganization act cohen treatise notes power indian tribe levy taxes upon members upon nonmembers business within reservations affirmed many tribal constitutions approved act indian reorganization act power remove nonmembers land tribe exercises jurisdiction cohen following clause constitution rosebud sioux tribe cohen cites typical statement tribal powers indicates tribe perceived scope taxation powers nonmembers narrower scope power members constitution conveys tribal power levy taxes upon members tribe require performance reservation labor lieu thereof levy taxes license fees subject review secretary interior upon nonmembers business within reservation exclude restricted lands reservation persons legally entitled reside therein ordinances shall subject review secretary interior ibid stated power tax transactions occurring trust lands significantly involving tribe members fundamental attribute sovereignty tribes retain unless divested federal law necessary implication dependent status also cited without discussion eighth circuit decision iron crow oglala sioux tribe see supra nonmember avoid tax declining business reservation sanction imposed refusal pay tax denial permission buy cigarettes respects tribal power tax nonmembers may greater taxing power sovereigns power exclude nonresidents borders moreover taxing statutes like laws must comply equal protection clause fourteenth amendment may therefore impose discriminatory taxes condition attached entry jurisdiction order engage economic activity since indian tribe exclusive control use occupancy land within reservation arguably attach special discriminatory conditions license nonmember use occupy portion land stated earlier minimum equal protection components fifth fourteenth amendments limit sovereign powers federal state governments similarly restrict sovereign powers indian tribe see supra payment tax license fee may made condition entry upon tribal land may also made condition grant privileges acquisition tribal lease cohen congress intended act march make applicable executive order reservations leasing provisions already applicable treaty reservations pursuant act may ch stat act thus permitted leasing unallotted indian land terms exceed years much longer oil gas paying quantities found land stat part among purposes statute ermit exploration oil gas indian reservations ive indian tribes oil gas royalties lace congress future determination changes boundaries reservations withdrawals supra light purposes clear congress intended leases executed pursuant act binding tribe contends leases cases executed pursuant act may stat act tribe notes lease executed pursuant act see app response petitioners note although tribe argues act unlike act require royalties paid secretary interior benefit tribe petitioners make royalty payments geological survey benefit jicarilla apache see tr need resolve question purposes provisions act vary significantly provisions act act like act permits leasing indian lands period exceed ten years long thereafter minerals produced paying quantities one purposes act establish uniformity leasing tribal lands applying law governing oil gas leasing mineral leasing well purposes bring mineral leasing matters harmony indian reorganization act enact changes designed give indians greatest return property indication legislative history purposes act way inconsistent purposes act prior legislation presumably purposes earlier legislation incorporated uniform scheme intended act attorney general macveagh stated permitted tribe remain reservation may right remain gone permit expired op atty colville nonmember desiring purchase cigarettes reservation knew right conditioned consent pay tax attorney general griggs opinion trespassers indian lands discussed similar terms effect tribal laws federal statute providing sale reservation lots legal right purchase land within indian nation gives purchaser right exemption laws nation authorize act violation treaties nation laws requiring permit reside carry business indian country existed long time act passed outsider saw proper purchase town lot act congress full knowledge occupy residence business permission indians op atty american indian policy review commission noted indian tribes tax receive royalties usually receive royalties aiprc final report statute authorize collection severance taxes petitioners argued authorization tribal power impose comparable tax recognized appeals however legislative history indicates congress simply consider question tribal taxes mineral output reservation lands secretary interior argues license franchise issued governmental body prevent later imposition tax unless right tax specifically surrendered terms admit reasonable interpretation brief secretary interior quoting louis see also new orleans city lake new orleans new york transit city new york principal issue cases cited secretary whether retroactive imposition franchise tax violated contract clause constitution fundamentally unfair constitute denial due process violation fourteenth amendment although argument means frivolous cf puerto rico russell issue raised cases distinguishable instant cases indian tribes attributes sovereignty subdivisions see supra