No. 95-1129

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

RED LAKE BAND OF CHIPPEWA INDIANS, ET AL., 
PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREW S. DAYS, III
Solicitor General

LORETTA C. ARGRETT
Assistant Attorney General

DAVID ENGLISH CARMACK
ANDREA R. TEBBETS
Attorneys

Department of Justice
Washington, D.C. 20530
(202) 514-2217

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QUESTION PRESENTED

Whether income received by individual members of
the Red Lake Band of Chippewa Indians from logging
activity conducted on tribal land is exempt from
federal income tax.

(I)

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TABLE OF CONTENTS

Page

Opinions below  . . . .  1
Jurisdiction  . . . .  1
Statement . . . . 2
Argument  . . . .  4
Conclusion . . . . 10

TABLE OF AUTHORITIES

Cases:

Carpenter v. Shaw, 280 U.S. 363 (1930)  . . . .  7
Central Bank of Denver, N.A. v. First Interstate
Bank of Denver, N.A., 11.4 S. Ct. 1439(1994)  . . . .  7
Choate v. Trapp, 224 U. S. 665 (1912) . . . .  7
Choctaw Nation of Indians v. United States, 318
U.S.C. 423 (1943) . . . .  8
Choteau v. Burnet, 283 U. S. 691 (1931 )  . . . . 4, 6, 8
Commissioner v. Glenshaw Glass Co., 348 U.S.
426 (1955)  . . . .6 
Commissioner v. Jacobson, 336 U.S. 28 (1949)  . . . .6 
Commissioner v. Walker, 326 F.2d 261 (9th Cir.
1964)  . . . . 7
County of Oneida v. Oneida Indian Nation, 470
U.S. 226 (1985)  . . . .7 
Critzer v. United States, 597 F.2d 708 (Ct. Cl.),
cert. denied, 444 U. S. 920(1979)  . . . .7 
Deputy v. DuPont, 308 U. S. 488 (1940)  . . . .6 
Dillon v. United States, 792 F.2d 849 (9th Cir.
1986), cert. denied, 480 U. S. 930(1987)  . . . . 7
Fry v. United States, 557 F.2d 646 (9th Cir.
1977), cert. denied, 434 U. S. 1011(1978)  . . . . 6-7
Holt v. Commissioner, 364 F.2d 38 (8th Cir. 1966),
cert. denied, 386 U.S. 931 (1967)  . . . . 9
Hoptowit v. Commissioner, 709 F.2d 564 (9th Cir.
1983)  . . . . 9

(III)

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IV

Cases-Continued;             

Page

HSCS-Laundry v. United States, 450 U.S. 1
(1981) . . . . 6
Jourdain v. Commissioner, 617 F.2d 607 (8th Cir.),
cert. denied, 449 U.S. 839 (1980)  . . . . 3, 4, 5, 9
Lazore v. Commissioner, 11 F.3d 1180 (3d Cir.
1993) . . . .  8-9
McClanahan v. Arizona State Tax Comm'n, 411
U.S. 164 (1973) . . . .  7
Mescalero Apache Tribe v. Jones, 411 U.S. 145
(1973) . . . .  4, 8
Montana v. Blackfeet Tribe of Indians, 471 U.S.
759 (1985) . . . . 7, 8
Northwestern Bands of Shoshone Indians v.
United States, 324 U. S- 335 (1945)  . . . .  6
Oklahoma Tax Comm'n v. Chickasaw Nation, 115
S. Ct. 2214 (1995)  . . . . 4, 6, 7, 9
Oklahoma Tax Comm'n v. United States, 319 U.S.
598 (1943) . . . .  4
South Carolina v. Catawba Indian Tribe, 476 U.S.
498 (1986) . . . .  7
Squire v. Capoeman, 351 U.S. 1 (1956)  . . . . 4, 6, 8
Superintendent of Five Civilized Tribes v. Commis-
sioner, 295 U.S. 418 (1935) . . . .  4, 6
United States v . Anderson, 625 F.2d 910 (9th Cir.
1980), cert. denied, 450 U.S. 920 (1981)  . . . .  7
Winters v. United States, 207 U.S. 564 (1908)  . . . .  8
Constitution and statutes:
U.S. Const. Art. VI  . . . .  2
Treaty of Greeneville, Aug. 3, 1795,7 Stat. 49 . . . .  3, 4
                    5,8
  Art. V, 7 Stat. 52  . . . . 2-3, 4
  Art. VII, 7 Stat. 52  . . . .  5
Treaty of Old Crossing, Oct. 2, 1863, 13 Stat. 667  . . . .  5
Supplement to the Treaty of Old Crossing, Apr. 12,
1864, 13 Stat. 689  . . . .  5

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V

Statutes-Continued:

Internal Revenue Code (26 U.S.C.):
1  . . . .6 
61(a)  . . . .6 
25 U.S.C. 117  . . . .6 
25 U.S.C. 1407  . . . . 6 

Miscellaneous:

Rev. Rul. 67-284, 1967-2 C.B. 55, 58  . . . .6 

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In the Supreme Court of the United States

OCTOBER TERM, 1995        

No. 95-1129

RED LAKE BAND OF CHIPPEWA INDIANS, ET AL.,
PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION
                   
OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 20a-
23a) and the opinion of the district court (Pet. App. 6a-
15a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on
August 10, 1995. The petition for rehearing was de-
nied on October 12, 1995 (Pet. App. 25a). The petition
for a writ of certiorari was filed on January 10, 1996.
The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).

(1)

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2

STATEMENT

1. Petitioners Gerald F. Brun and Luella R. Brun
are members of the Red Lake Band of Chippewa In-
dians (the Band), a federally recognized Indian tribe.
During 1983, 1984, and 1985, petitioners derived in-
come from the sale of timber that they cut from land
located on the Red Lake Reservation that is held in
trust for the Band by the United States Government.
None of this land had been allotted to petitioners
under a trust patent pursuant to the General Allot-
ment Act of l887 (Pet. App. 21a).
2. The Commissioner of internal Revenue deter-
mined that the income that petitioners derived from
timber sales was subject to federal income tax. Peti-
tioners paid the resulting assessments of tax and
interest and brought this suit for refund.' They
alleged that the assessments violated tribal treaty
rights, Article VI of the United States Constitution,
and congressional policies regarding tribal timber
and the exercise of treaty-protected activities.
Petitioners relied specifically on Article V of the

___________________(footnotes)

1 Petitioners initially filed this refund suit in the United
States District Court for the District of Columbia. They were
joined as plaintiffs in the suit by the Band, acting both on its
own behalf and as parens partiae for its members. The Band
sought declaratory and injunctive relief, as well as relief in the
nature of mandamus, precluding the imposition of federal taxes
on income derived from logging activity on tribal land. The
district court dismissed the complaint for improper venue as to
petitioners' refund claim and for lack of jurisdiction as to the
claims of the Band. Petitioners' refund claim was subsequently
transferred to the United States District Court for the District
of Minnesota, The claims of the Band were not. reinstated or
transferred, and the dismissal of those claims was not appealed
(Pet. App. 7a, 21a-22a).

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3

Treaty of Greenville, Aug. 3, 1795, 7 Stat. 52, which
provides in pertinent part as follows (Pet App. 40a):

  To prevent any misunderstanding about the
Indian lands relinquished by the United States in
the fourth article, it is now explicitly declared,
that the meaning of that relinquishment is this:
The Indian tribes who have a right to those lands,
are quietly to enjoy them, hunting, planting, and
dwelling thereon so long as they please, without
any molestation from the United States[.] * * *
[Until the tribes' lands are sold to the United
States,] the United States will protect all the said
Indian tribes in the quiet enjoyment of their lands
against all citizens of the United States * * * .

3. The district court held that the income that
petitioners derived from logging activities is not ex-
empt from federal income tax (Pet. App. 14a). The
court noted that members of Indian tribes are subject
to federal tax in the absence of a specific exemption by
treaty or statute and that the rule of construction
favoring Indian signatories to a treaty applies only
when the treaty in question contains language that
could reasonably be construed to confer an exemption
(Pet. App. 10a-12a). Following the opinion of the
Eighth Circuit in Jourdain v. Commissioner, 617 
F.2d 507, 509, cert. denied, 449 U.S. 839 (1980), the"
district court found that the "molestation" that is
prohibited by the Treaty of Greenville does not refer
to federal taxation but-as the language of the Treaty
reflects-to interference with the rights of the
Indians to hunt, plant, dwell upon, and otherwise
enjoy the land (Pet. App. 13a). The court also noted
that the express tax exemption provided under the
General Allotment Act is inapplicable to income

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4

derived from unallotted tribal land (Pet. App. 14a).
The court therefore granted summary judgment to
the government (Pet. App. 15a, 17a-18a).
4. The court of appeals affirmed per curiam (Pet.
App. 20a-23a)." The court noted that it previously had
held that the Treaty of Greenville, on which peti-
tioners rely, protected "the rights of Indians to hunt
and otherwise enjoy their land" and did not confer a
" `right' to be free from federal taxation" (Pet. App.
23a, quoting Jourdain v. Commissioner, 617 F.2d at
509). The court therefore affirmed for the reasons set
forth in detail in the opinion of the district court (Pet.
App. 23a).

ARGUMENT

The decision of the court of appeals is correct and
does not conflict with any decision of this Court or of
any other court of appeals. Further review is there-
fore not warranted.
1a. Like all other citizens of the United States,
members of Indian tribes are subject to federal in-
come taxation unless exempt by treaty or statute.
Oklahoma Tax Comm'n v. Chickasaw Nation, 115 S.
Ct. 2214, 2224 n.16 (1995); Mescalero Apache Tribe v.
Jones, 411 U.S. 145, 156-157 (1973); Squire v. Capoe-
man, 351 U.S. 1, 6 (1956); Superintendent of Five
Civilized Tribes v. Commissioner, 295 U.S. 418, 420
(1935). Moreover, as this Court has consistently held,
with respect to "Indians as to all others," tax exemp-
tions are not to be found by implication but must be
clearly expressed. Oklahoma Tax Comm'n v. United
States, 319 U.S. 598, 606 (1943). See Mescalero
Apache Tribe v. Jones, 411 U.S. at 156 Squire v.
Capoeman, 351 U.S. at 6; Choteau v. Burnet, 283 U.S.
691,696 (1931).

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5

Petitioners have not identified any statute or
treaty provision that exempts their logging income
from federal income tax. The Treaty of Greenville,
on which they principally rely (Pet. 45; see also Pet.
App. 8a-9a, 21a), is completely silent with respect to
taxation,2 Furthermore, the conclusion reached by
the court of appeals both in the present case (Pet.
App. 23a) and in Jourdain v. Commissioner, 617 F.2d
at 509-that "the `molestation' prohibited by the
Treaty of Greenville was interference with the
rights of Indians to hunt and otherwise enjoy their
land, not the `right' to be free from federal taxation"-
is well founded.  A federal income tax was not
contemplated by either the United States or the
signatory tribes when the Treaty of Greenville was
executed in 1795, and the drafters thus could not have
been referring to exemption from income taxation.
Moreover, it is apparent from the language of the
Treaty that the parties were instead concerned with
physical harassment by white settlers and encroach-
ment on Indian lands. For example, in Article V of
the Treaty (Pet. App. 40a-41a), the United States
bound itself to "protect all the said Indian tribes in
the quiet enjoyment of their lands against all citizens
of the United States, and against all other white
persons who intrude upon the same." Article. VII of
the Treaty (Pet. App. 41a) provided that "[t]he said
tribes * * * shall be at liberty to hunt within the

___________________(footnotes)
           
2 Although petitioners also refer (Pet. 4) to the Treaty of
Old Crossing, Oct. 2, 1863, 13 Stat. 667, and the Supplement to
the Treaty of Old Crossing, Apr. 12, 1864, 13 Stat. 689, as they
did below (see Pet. App. 8a, 21a), these agreements, too, are
silent on the issue of taxation (see Pet. App. 27a-30a, 32a-34a),
and petitioners have not identified any other exemptive
language within their terms.

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6

territory and lands which they have now ceded to the
United States, without hindrance or molestation, so
long as they demean themselves peaceably, and offer
no injury to the people of the United States." In
Northwestern Bands of Shoshone Indians v. United
States, 324 U.S. 335, 342 & n.6 (1945), this Court
similarly interpreted the term "molestation" in an
Indian treaty to refer to physical interference with
the quiet enjoyment and occupation of the land.
b. In the absence of a treaty provision specifically
exempting petitioners' logging income from federal
income tax, that income is taxable to them under
Section 61(a) of the Internal Revenue Code. See 26
U.S.C. 1, 61(a); HSCS-Laundry v. United States, 450
U.S. 1,5 (1981); Squire v. Capoeman, 351 U.S. at 6, 9-
10 n.19; Superintendent of Five Civilized Tribes v.
Commissioner, 295 U.S. at 420-421; Choteau v. Bur-
net, 283 U.S. at 693-694. See also Oklahoma Tax
Comm'n v. Chickasaw Nation, 115 S. Ct. at 2224 n.16.
The fact that the same income would have been ex-
empt from tax (see Pet. 17-18) if derived from a trust
allotment (pursuant to the General Allotment Act of
1887 or legislation read in pari materia with that Act),
if earned by the Band (see Rev. Rul. 67-284, 1967-2
C.B. 55, 58), or if received by petitioners as a per
capita distribution of tribal revenues (under 25 U.S.C.
117 and 1407) demonstrates only that Congress may
choose to accord exempt treatment to certain entities
or types of income, while leaving other income, such
as petitioners' logging income, subject to tax. See
Commissioner v. Glenshaw Glass CO., 348 U.S. 426,
429, 431 (1955); Commissioner v. Jacobson, 336 U.S.
28, 49 (1949); Deputy v. DuPont, 308 U.S. 488, 493
(1940); Choteau v. Burnet, 283 U.S. at 696-697 Fry v.
United States, 557 F.2d 646, 649 (9th Cir. 1977), cert.

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7

denied, 434 U.S. 1011 (1978); Commissioner v. Walk-
er, 326 F.2d 261, 263 (9th Cir. 1964); Critzer v. United
States, 597 F.2d 708, 714 (Ct. Cl.), cert. denied, 444
U.S. 920 (1979).3
2. a. Contrary to petitioners' argument (Pet. 8-15),
the decision in this case does not conflict with estab-
lished rules of treaty construction, including those
articulated by this Court in Oklahoma Tax Comm'n
v. Chickasaw Nation, supra.   The principle that
treaties are to be construed liberally in the favor of
Indian signatories requires only that reasonable
ambiguities be resolved in their favor. Oklahoma Tax
Comm'n v. Chickasaw Nation, 115 S. Ct. at 2226
(Breyer, J., concurring in part and dissenting in part);
South Carolina v. Catawba Indian Tribe, 476 U.S.
498, 506 (1986) County of Oneida v. Oneida Indian
Nation, 470 U.S. 226, 247 (1985); Carpenter v. Shaw,
280 U.S. 363,367 (1930); Choate v. Trapp, 224 U.S. 665,
                  
___________________(footnotes)

3 Although petitioners contend that taxation of their log-
ging income will reduce the value of tribal timber and thereby
frustrate the objectives of self-determination and self-govern-
ment by the Band (Pet. 17-18, 22-23), it is well settled that
general policy objectives of that nature are insufficient to give
rise to an implied tax exemption. See Central Bank of Denver,
N.A. v. First Interstate Bank of Denver, N. A., 114 S. Ct. 1439,
1453-1454 (1994); Dillon v. United States, 792 F.2d 849, 857 (9th
Cir. 1986), cert. denied, 480 U.S. 930 (1987); United States v.
Anderson, 625 F.2d 910, 917 (9th Cir. 1980), cert. denied, 450
U.S. 920 (1981); Fry v. United States, 557 F.2d at 649.
Moreover, petitioners fail to recognize (Pet. 22-23) that
concerns over tribal self-governance arise in a different context
in a federal tax case than in a state tax case, for Congress
retains plenary authority over Indian affairs. See Oklahoma
Tax Comm'n v. Chickasaw Nation, 115 S. Ct. at 2220, 2223;
Montana v. Blackfeet Tribe, 471 U.S. at 765; McClanahan v.
Arizona State Tax Comm'n, 411 U.S. 164, 174-175 (1973).

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8

675 (1912); Winters v. United States, 207 U.S. 564,676
(1908). Cf. Montana v. Blackfeet Tribe of Indians,
471 U.S. 759,766 (1985) ("statutes are to be construed
liberally in favor of the Indians, with ambiguous
provisions interpreted to their benefit"). As this
Court observed in Choctaw Nation of Indians v.
United States, 318 U.S. 423, 432 (1943), "even Indian
treaties cannot be rewritten or expanded beyond their
clear terms to remedy a claimed injustice or to
achieve the asserted understanding of the parties."
Petitioners go well beyond the text of the Treaty of
Greenville in arguing that the intent of Chippewa
signatories should be the central element in deter-
mining whether the Treaty confers a tax exemption
on them (Pet. 8-11, 15). An analysis of the specifies of
the treaty language is notably absent both from peti-
tioners' discussion of the treaty (Pet. 15-17) and from
the declaration of their expert witness (Pet. App. 45a-
79a). Neither petitioners nor their expert witness
has offered any affirmative indication that the Indian
signatories specifically intended or even desired to
bar taxes or other exactions upon income from timber
or any other source. They have thus furnished no
adequate basis for interpreting a treaty prohibition
against "molestation" to mean protection from the
ordinary incidents of income taxation that apply to all
other citizens.
b. This Court's opinion in Oklahoma Tax Comm'n
v. Chickasaw Nation does not represent a departure
from the principle that an income tax exemption for
Indians may not be implied but must rest on language
reasonably understood to confer the exemption. See
Mescalero Apache Tribe v. Jones, 411 U.S. at 156;
Choteau v. Burnett 283 U.S. at 696-697 Squire v.
Capoeman, 351 U.S. at 6; Lazore v. Commissioner, 11

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9

F.3d 1180, 1185 (3d Cir. 1993); Holt v. Commissioner,
364 F.2d 38,40 (8th Cir. 1966), cert. denied, 386 U.S.
931 (1967); Hoptowit v. Commissioner, 709 F.2d 564,
565 (9th Cir. 1983), The Court emphasized in that
case that even "liberal construction cannot save the
Tribe's claim, which founders on a clear geographic
limit in the Treaty." 115 S. Ct. at 2224. Far from
undertaking an extended and speculative analysis of
the Indian signatories' intent, as petitioners urge
should be pursued (Pet. 10-11), the Court succinctly
observed that "the purpose of the Treaty was to put
distance between the Tribe and the States" and
concluded that the signatories "likely gave no
thought to a State's authority to tax the income of
tribal members living in the State's domain, because
they did not expect any members to be there." 115 S.
Ct. at 2224.
That is precisely the approach followed by the
court of appeals in the present case and in its prior
decision in Jourdain v. Commissioner, 617 F.2d at
509. In construing a treaty provision whose terms
are silent on the question of income taxation and
whose purpose was, of course, unrelated to income
taxation (see ibid.), the court of appeals correctly
declined to infer the presence of an implied tax exemp-
tion that would require an interpretation of the word
"molestation" to mean "taxation."
3. Petitioners contend (Pet. 18-22) that the
decision below failed to satisfy the ordinary standards
for summary judgment. But, once the government
established that no treaty or statute contains exemp-
tive language that may reasonably be construed to
confer a pertinent tax exemption, it was appropriate
for summary judgment to be granted to the govern-
ment. The disagreement that petitioners have with

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10

the award of summary judgment-and their desire to
offer speculative evidence concerning intent, notwith-
standing the limited text of the Treaty-relates to
the merits of the decisions below, not to the proced-
ures that were followed in reaching those decisions.
With respect to the merits of decisions below, and
their interpretation of the provisions of the Treaty,
there is no conflict among the courts of appeals or
other reason to warrant further review.

CONCLUSION

The petition for a writ of certiorari should be
denied.

Respectfully submitted.

DREW S. DAYS, III
Solicitor General

LORETTA C. ARGRETT
Assistant Attorney General

DAVID ENGLISH CARMACK
ANDREA R. TEBBETS
Attorneys

APRIL 1996

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