Justice Scalia, delivered the opinion of the Court.
The question presented by these consolidated cases is whether the County of Yakima may impose an ad valorem tax on so-called "fee-patented" land located within the Yakima Indian Reservation, and an excise tax on sales of such land.
In the late 19th century, the prevailing national policy of segregating lands for the exclusive use and control of the
Congress sought to solve these problems in the Indian General Allotment Act of 1887, also known as the Dawes Act, 24 Stat. 388, as amended, 25 U. S. C. § 331 et seq. , which empowered the President to allot most tribal lands nationwide without the consent of the Indian nations involved. The Dawes Act restricted immediate alienation or encumbrance by providing that each allotted parcel would be held by the United States in trust for a period of 25 years or longer; only then would a fee patent issue to the Indian allotted. 24 Stat. 389; see United States v. Mitchell, 445 U.S. 535, 543-544 (1980). Section 6 of the Act furthered Congress' goal of assimilation by providing that "each and every member of the respective bands or tribes of Indians to whom allotments have been made shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside." 24 Stat. 390.
The policy of allotment came to an abrupt end in 1934 with passage of the Indian Reorganization Act. See 48 Stat. 984, 25 U. S. C. § 461 et seq. Returning to the principles of tribal self-determination and self-governance which had characterized the pre-Dawes Act era, Congress halted further allotments and extended indefinitely the existing periods of trust applicable to already allotted (but not yet fee-patented) Indian lands. See §§ 461, 462. In addition, the Act provided for restoring unallotted surplus Indian lands to tribal ownership, see § 463, and for acquiring, on behalf of the tribes, lands "within or without existing reservations." § 465. Except by authorizing reacquisition of allotted lands in trust, however, Congress made no attempt to undo the dramatic effects of the allotment years on the ownership of former Indian lands. It neither imposed restraints on the ability of Indian allottees to alienate or encumber their fee-patented lands nor impaired the rights of those non-Indians who had acquired title to over two-thirds of the Indian lands allotted
The Yakima Indian Reservation, which was established by treaty in 1855, see Treaty with Yakima Nation, 12 Stat. 951, covers approximately 1.3 million acres in southeastern Washington State. Eighty percent of the reservation's land is held by the United States in trust for the benefit of the Tribe or its individual members; 20 percent is owned in fee by Indians and non-Indians as a result of patents distributed during the allotment era. See Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U.S. 408, 415 (1989) (plurality opinion). Some of this fee land is owned by the Yakima Indian Nation itself.
The reservation is located almost entirely within the confines of petitioner/cross-respondent Yakima County. Pursuant to Washington law, Yakima County imposes an ad valorem levy on taxable real property within its jurisdiction and an excise tax on sales of such land. Wash. Rev. Code §§ 84.52.030, 82.45.070 (1989). According to the county, these taxes have been levied on the Yakima Reservation's fee lands and collected without incident for some time. In 1987, however, as Yakima County proceeded to foreclose on properties throughout the county for which ad valorem and excise taxes were past due, including a number of reservation parcels in which the Tribe or its members had an interest, respondent/ cross-petitioner Yakima Nation commenced this action for declaratory and injunctive relief, contending that federal law prohibited these taxes on fee-patented lands held by the Tribe or its members.
On stipulated facts, the District Court awarded summary judgment to the Tribe and entered an injunction prohibiting the imposition or collection of the taxes on such lands. On appeal, the Court of Appeals for the Ninth Circuit agreed that the excise tax was impermissible, but held that the ad
The Court's earliest cases addressing attempts by States to exercise dominion over the reservation lands of Indians proceeded from Chief Justice Marshall's premise that the "several Indian nations [constitute] distinct political communities, having territorial boundaries, within which their authority is exclusive . . . ." Worcester v. Georgia, 6 Pet. 515, 556-557 (1832). Because Congress, pursuant to its constitutional authority both "[t]o regulate Commerce . . . with the Indian Tribes" and to make treaties, U. S. Const., Art. I, § 8, cl. 3; Art II, § 2, cl. 2, had determined by law and treaty that "all intercourse with them [would] be carried on exclusively by the [Federal Government]," Worcester v. Georgia, supra, at 557, the Court concluded that within reservations state jurisdiction would generally not lie. The assertion of taxing authority was not excepted from this principle. E. g., The Kansas Indians, 5 Wall. 737, 755-757 (1867); The New York Indians, 5 Wall. 761, 771-772 (1867).
The "platonic notions of Indian sovereignty" that guided Chief Justice Marshall have, over time, lost their independent sway. See McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 172, and n. 8 (1973); Organized Village of Kake v. Egan, 369 U.S. 60, 71-73 (1962). Congress abolished treaty making with the Indian nations in 1871, Rev. Stat. § 2079, as amended, 25 U. S. C. § 71, and has itself subjected the tribes to substantial bodies of state and federal law. This Court's more recent cases have recognized the rights of States, absent a congressional prohibition, to exercise criminal (and, implicitly, civil) jurisdiction over non-Indians located
Yakima County persuaded the Court of Appeals, and urges upon us, that express authority for taxation of fee-patented land is found in § 6 of the General Allotment Act, as amended.
Neither the Yakima Nation nor its principal amicus, the United States, vigorously disputes this.
Though generally in agreement with the Tribe, the United States takes a slightly different tack. It claims that the General Allotment Act removed only those barriers to state jurisdiction that existed at the time of its enactment, e. g., those associated with tribal sovereignty and the trust status of allotted land. The General Allotment Act did not remove — indeed, the argument goes, could not have removed — a jurisdictional bar arising after the Act's passage. For just such an after-arising jurisdictional bar, the United States points to the same statutes on which the Tribe rests its position. In the United States' view, these enactments must be construed to pre-empt the application "of state laws (especially state tax laws) to Indians and their property within a reservation." Brief for United States as Amicus Curiae 14.
We think this view rests upon a misunderstanding of Moe and a misperception of the structure of the General Allotment Act. As to the former: The Tribe's and the United States' interpretation of our opinion in Moe reduces ultimately to the proposition that we held § 6 to have been repealed by implication. That is not supportable, however, since it is a "cardinal rule . . . that repeals by implication are not favored," Posadas v. National City Bank, 296 U.S. 497, 503 (1936), and since we made no mention of implied repeal in our opinion. Moe was premised, instead, on the implausibility, in light of Congress' post allotment era legislation, of Montana's construction of § 6 that would extend the State's in personam jurisdiction beyond the section's literal coverage ("each and every allotted ") to include subsequent Indian owners (through grant or devise) of the allotted parcels. This approach, we said, would create a "checkerboard" pattern in which an Indian's personal law would depend upon his parcel ownership; it would contradict "the many and complex intervening jurisdictional statutes" dealing with States' civil and criminal jurisdiction over reservation Indians; and it would produce almost surreal administrative problems, making the applicable law of civil relations depend not upon the locus of the transaction but upon the character of the
Thus, even as to § 6 personal jurisdiction, Moe in no way contradicts Goudy v. Meath, which involved the personal liability for taxes of an Indian who not merely owned an allotted parcel, but was, as the language of § 6 requires, himself an allotted. See 203 U. S., at 147, 149. But (and now we come to the misperception concerning the structure of the General Allotment Act) Goudy did not rest exclusively, or even primarily, on the § 6 grant of personal jurisdiction over allottees to sustain the land taxes at issue. Instead, it was the alienability of the allotted lands — a consequence produced in these cases not by § 6 of the General Allotment Act, but by § 5
The Burke Act proviso, enacted in 1906, made this implication of § 5 explicit, and its nature more clear. As we have explained, the purpose of the Burke Act was to change the outcome of our decision in In re Heff, 197 U.S. 488 (1905), so that § 6's general grant of civil and criminal jurisdiction over Indian allottees would not be effective until the 25-year trust period expired and patents were issued in fee. The proviso, however, enabled the Secretary of the Interior to issue fee patents to certain allottees before expiration of the trust period. Although such a fee patent would not subject its Indian owner to plenary state jurisdiction, fee ownership would free the land of "all restrictions as to sale, incumbrance, or taxation." 25 U. S. C. § 349. In other words, the proviso reaffirmed for such "prematurely" patented land what § 5 of the General Allotment Act implied with respect to patented land generally: subjection to state real estate taxes.
The Yakima Nation and the United States deplore what they consider the impracticable, Moe -condemned "checkerboard" effect produced by Yakima County's assertion of jurisdiction
Turning away from the statutory texts altogether, the Yakima Nation argues that state jurisdiction over reservation fee land is manifestly inconsistent with the policies of Indian self-determination and self-governance that lay behind the Indian Reorganization Act and subsequent congressional enactments. This seems to us a great exaggeration. While the in personam jurisdiction over reservation Indians at issue in Moe would have been significantly disruptive of tribal self-government, the mere power to assess and collect a tax on certain real estate is not. In any case, these policy objections do not belong in this forum. If the Yakima Nation believes that the objectives of the Indian Reorganization Act are too much obstructed by the clearly retained remnant of an earlier policy, it must make that argument to Congress. Judges "are not at liberty to pick and choose among congressional enactments, and when two [or more] statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to
Yakima County sought to impose two separate taxes with respect to reservation fee lands, an ad valorem tax and an excise tax on sales. We discuss each in turn, in light of the principles set forth above.
Liability for the ad valorem tax flows exclusively from ownership of realty on the annual date of assessment. See Timber Traders, Inc. v. Johnston, 87 Wn.2d 42, 47, 548 P.2d 1080, 1083 (1976). The tax, moreover, creates a burden on the property alone. See Wash. Rev. Code § 84.60.020 (1989) ("The taxes assessed upon real property . . . shall be a lien thereon from and including the first day of January in the year in which they are levied until the same are paid . . ."); Clizer v. Krauss, 57 Wn. 26, 30-31, 106 P. 145, 146-147 (1910). See also Timber Traders, Inc., supra; In re Electric City, Inc., 43 B.R. 336, 341 (Bkrtcy. Ct. WD Wash. 1984) (dictum). The Court of Appeals held, the Tribe does not dispute, and we agree, that this ad valorem tax constitutes "taxation of . . . land" within the meaning of the General Allotment Act and is therefore prima facie valid.
The Court of Appeals, however, derived from our decision three Terms ago in Brendale the conclusion that the Yakima Nation has a "protectible interest" against imposition of the tax on Tribe members upon demonstration of the evils described in that opinion, and remanded to the District Court for further findings in that regard. Neither of the parties supports this aspect of the Ninth Circuit's ruling, believing that the law affords an unconditional answer to permissibility of the tax. We agree.
Brendale addressed a challenge to the Yakima Nation's assertion of authority to zone reservation fee land owned by non-Indians. The concept of "protectible interest" to which
We think the excise tax on sales of fee land is another matter, as did the Court of Appeals. While the Burke Act proviso does not purport to describe the entire range of in rem jurisdiction States may exercise with respect to feepatented reservation land, we think it does describe the entire range of jurisdiction to tax. And that description is "taxation of . . . land." Yakima County seeks to expand this text by citing our statement in Squire v. Capoeman, 351 U.S. 1 (1956), to the effect that "[t]he literal language of the [Burke Act] proviso evinces a congressional intent to subject an Indian allotment to all taxes" after it has been patented in fee. Id., at 7-8 (emphasis added). This dictum was addressed, however, to the United States' assertion that the General Allotment Act barred only States and localities, and not the Federal Government, from levying taxes on Indian allotments during the trust period. "All taxes," in the sense of federal as well as local, in no way expands the text beyond "taxation of . . . land. "
It does not exceed the bounds of permissible construction to interpret "taxation of land" as including taxation of the proceeds from sale of land; and it is even true that such a construction would be fully in accord with Goudy `s emphasis upon the consequences of alienability, which underlay the Burke Act proviso. That is surely not, however, the phrase's unambiguous meaning — as is shown by the Washington Supreme Court's own observation that "a tax upon the sale of property is not a tax upon the subject matter of that sale." Mahler v. Tremper, 40 Wn.2d 405, 409, 243 P.2d 627, 629 (1952). It is quite reasonable to say, in other words, that though the object of the sale here is land, that does not make land the object of the tax, and hence does not
To render this a "taxation of land" in the narrow sense, it does not suffice that, under Washington law, the excise tax creates "a specific lien upon each piece of real property sold from the time of sale until the tax shall have been paid . . . ." Wash. Rev. Code § 82.45.070 (1989). A lien upon real estate to satisfy a tax does not convert the tax into a tax upon real estate — otherwise all sorts of state taxation of reservationIndian activities could be validated (even the cigarette sales tax disallowed in Moe ) by merely making the unpaid tax assessable against the taxpayer's fee-patented real estate. Thus, we cannot even accept the county's narrower contention that the excise tax lien is enforceable against reservation fee property conveyed by an Indian seller to a non-Indian buyer. The excise tax remains a tax upon the Indian's activity of selling the land, and thus is void, whatever means may be devised for its collection. Cf., e. g., Washington v. Confederated Tribes of Colville Reservation, supra, at 154-159 (Indian proprietors may be compelled to pre collect taxes whose incidence legally falls on nonIndians); Moe, 425 U. S., at 482 (same).
The short of the matter is that the General Allotment Act explicitly authorizes only "taxation of . . . land," not "taxation with respect to land," "taxation of transactions involving land," or "taxation based on the value of land." Because it is eminently reasonable to interpret that language as not including a tax upon the sale of real estate, our cases require us to apply that interpretation for the benefit of the Tribe.
* * *
We hold that the General Allotment Act permits Yakima County to impose an ad valorem tax on reservation land patented in fee pursuant to the Act, but does not allow the county to enforce its excise tax on sales of such land. The Yakima Nation contends it is not clear whether the parcels at issue in these cases were patented under the General Allotment Act, rather than under some other statutes in force prior to the Indian Reorganization Act. E. g., 25 U. S. C. §§ 320, 379, 404, 405. We leave for resolution on remand that factual point, and the prior legal question whether it makes any difference.
The judgment is affirmed, and the cause is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Blackmun, concurring in part and dissenting in part.
I have wandered the maze of Indian statutes and case law tracing back 100 years. Unlike the Court, however, I am unable to find an "unmistakably clear" intent of Congress to allow the States to tax Indian-owned fee-patented lands. Accordingly, while I concur with the majority's conclusion that Yakima County may not impose excise taxes, I dissent from its conclusion that the county may impose ad valorem taxes on Indian-owned fee-patented lands.
The Court correctly sets forth the "`unmistakably clear' " intent standard to be applied. Ante, at 258. But then, in my view, it seriously misapplies it, over the well-taken objections of the Yakima Nation and against the sound guidance of the United States as amicus curiae. At bottom, I believe the Court misapprehends the nature of federal pre-emption analysis and, as a result, dramatically devalues longstanding
1. The majority concedes that the principal clause of § 6 of the Dawes Act, which subjected allottees to the plenary civil and criminal jurisdiction of the States, can "no longer be read to provide . . . plenary jurisdiction even as to those Indians residing on reservation fee lands." Ante, at 261. See also DeCoteau v. District County Court, 420 U.S. 425, 427, n. 2 (1975) (recognizing that statutory definition of "Indian country," which includes all reservation land "notwithstanding the issuance of any patent," 18 U. S. C. § 1151, demarcates general boundary of civil jurisdiction of States); McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 177-178, and n. 17 (1973) (discussing more recent congressional enactments,
Rather than rely on the principal clause of § 6, the Court turns to a proviso added by the Burke Act, enacted in 1906.
The majority concedes that § 5 only "implied" this conclusion. Ante, at 263. In my view, a "mere implication" falls far short of the "unmistakably clear" intent standard. Cf. EEOC v. Arabian American Oil Co., 499 U.S. 244, 260 (1991) (Scalia, J., concurring in part and concurring in judgment) ("Given the presumption against extra territoriality . . . and the requirement that the intent to overcome it be `clearly expressed,' it is in my view not reasonable to give effect to mere implications from the statutory language as the EEOC has done").
Nor can what this Court finds "strange" substitute for the "unmistakably clear" intent of Congress. To impute to Congress an intent to tax Indian land because the Court thinks it "strange" not to do so overlooks the countervailing presumption that "Congress has . . . acted consistently upon the assumption that the States have no power to regulate the affairs of Indians on a reservation." Williams v. Lee, 358 U.S. 217, 220 (1959). I need not pass upon the wisdom of the majority's fiscal theory that if land is alienable and encumberable, it must be taxable. I pause only to comment that Congress has made its own agreement with this particular economic theory less than "unmistakably clear." Cf. Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting) ("This case is decided upon an economic theory which a large part of the country does not entertain").
The Court announces that the Yakima's "policy objections do not belong in this forum." Ante, at 265. Yet, not to consider the policies of the Indian Reorganization Act is to forget that "we previously have construed the effect of legislation affecting reservation Indians in light of `intervening' legislative enactments." Bryan v. Itasca County, 426 U.S. 373, 386 (1976). See also Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463, 479 (1976) (noting that State's interpretation of § 6 of the Dawes Act cannot survive "the many and complex intervening jurisdictional statutes" subsequently enacted). The majority appears to assume that these intervening enactments need not be given any effect here, because they do not rise to the level of a "repeal" of the Dawes and Burke Acts. Ante, at 262. I agree with the majority that implied repeals are not favored. But this is beside the point. A "repeal" — whether express or implied — need not be shown to preclude the States from taxing Indian lands.
As in all state-Indian jurisdiction cases, the relevant inquiry is whether Congress has pre-empted state law, not whether it has repealed its own law. See, e. g., California v. Cabazon Band of Mission Indians, 480 U.S. 202, 216 (1987); Bryan v. Itasca County, 426 U. S., at 376, n. 2. Under established principles of pre-emption, and notwithstanding the majority's derisive characterizations, see ante, at 264-265, state laws may in fact give way to "mere" federal policies and interests. See English v. General Electric Co., 496 U.S. 72, 79 (1990) (state law is pre-empted to the extent that it
Accordingly, this Court has made clear that "[t]he inquiry is to proceed in light of traditional notions of Indian sovereignty and the congressional goal of Indian self-government, including its `overriding goal' of encouraging tribal selfsufficiency and economic development." Cabazon, 480 U. S., at 216. In Cabazon, for example, the Court gave weight to recent policy statements by Congress and the President in support of Indian autonomy and self-determination, deeming them to be "particularly significant in this case." Id., at 216, n. 19; see also id., at 217-218, and nn. 20-21.
For 12,000 years, the Yakima Indians have lived on their lands in eastern Washington. See H. Schuster, The Yakima 14 (1990). Because of the allotment policies, non-Indians today own more than a quarter million acres, more than half the land originally allotted to individual members of the Yakimas. Id., at 83. "Allotment and the subsequent sale or lease of Indian lands accomplished what the `genocide' of epidemics, war, and bootlegged alcohol had not been able to do: a systematic `ethnocide' brought about by a loss of Indian identity with the loss of land." H. Schuster, The Yakimas: A Critical Bibliography 70 (1982).
It is little wonder that, as Congress moved toward repudiating the allotment system in 1934, the Commissioner of Indian Affairs informed Congress:
I am mystified how this Court, sifting through the wreckage of the Dawes Act, finds any "clearly retained remnant," ante, at 265, justifying further erosions — through tax foreclosure actions as in this litigation — to the landholdings of the Indian people.
The majority deems any concerns for tribal selfdetermination to be a "great exaggeration." Ante, at 265. I myself, however, am "far from convinced that when a State imposes taxes upon reservation members without their consent, its action can be reconciled with tribal self-determination." McClanahan v. Arizona State Tax Comm'n, 411 U. S., at 179. The majority concludes that, as a practical matter, "mere" property taxes are less disruptive of tribal integrity than cigarette sales taxes and certain personal property taxes (as on automobiles) that were at issue in Moe. Ante, at 264-265. I cannot agree that paying a few more pennies for cigarettes or a tax on some personal property is more a threat to tribal integrity and selfdetermination than foreclosing upon and seizing tribal lands.
"At the expiration of the trust period and when the lands have been conveyed to the Indians by patent in fee, . . . then each and every allotted shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside . . . . Provided, That the Secretary of the Interior may, in his discretion, and he is authorized, whenever he shall be satisfied that any Indian allotted is competent and capable of managing his or her affairs at any time to cause to be issued to such allotted a patent in fee simple, and thereafter all restrictions as to sale, incumbrance, or taxation of said land shall be removed. " 25 U. S. C. § 349 (emphasis added).
"That the people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries of this state, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States . . . ; Provided, That nothing in this ordinance shall preclude the state from taxing as other lands are taxed any lands owned or held by any Indian who has severed his tribal relations, and has obtained from the United States or from any person a title thereto by patent or other grant, save and except such lands as have been or may be granted to any Indian or Indians under any act of congress containing a provision exempting the lands thus granted from taxation, which exemption shall continue so long and to such an extent as such act of congress may prescribe." Wash. Const., Art. XXVI, Second (emphasis added).
We agree with the Court of Appeals that, under this text, the Indian lands not covered by the quoted proviso are not exempted from taxation, but merely committed to "the absolute jurisdiction and control of [Congress]." If Congress has permitted taxation, the provision is not violated.
"[T]he Secretary of the Interior may, in his discretion . . . whenever he shall be satisfied that any Indian allotted is competent and capable of managing his or her affairs at any time to cause to be issued to such allotted a patent in fee simple, and thereafter all restrictions as to sale, incumbrance, or taxation of said land shall be removed . . . ." 25 U. S. C. § 349.