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Public Law 83-283

Codified in the United States Code

Title 28, section 1360 (2001)

Cite as PL 83-280, 28 USC § 1360 (2001)

§ 1360. State civil jurisdiction in actions to which Indians are parties

(a) Each of the States listed in the following table shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed opposite the name of the State to the same extent that such State has jurisdiction over other causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State:

State ofIndian country affected
Alaska ....................All Indian country within the State
California ................All Indian country within the State
Minnesota .................All Indian country within the State, except the Red Lake Reservation
Nebraska ..................All Indian country within the State
Oregon ....................All Indian country within the State, except the Warm Springs Reservation
Wisconsin..................All Indian country within the State

(b) Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto; or shall confer jurisdiction upon the State to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of such property or any interest therein.

(c) Any tribal ordinance or custom heretofore or hereafter adopted by an Indian tribe, band, or community in the exercise of any authority which it may possess shall, if not inconsistent with any applicable civil law of the State, be given full force and effect in the determination of civil causes of action pursuant to this section.


History

Description of the Amendments:

1954. Act Aug. 24, 1954 deleted ", except the Menominee Reservation".

1958. Act Aug. 8, 1958 inserted "or Territory" and "or Territories" wherever appearing, and inserted "Alaska . . . . . All Indian country within the Territory".

1978. Act Nov 6, 1978 (effective as provided by 402(b) of such Act, which appears as 11 USCS prec. 101 note), in subsec. (a), in the item concerning Alaska, purported to substitute "within the State" for "within the Territory", but such amendment was not executed pursuant to the aforesaid 402(b).

1984. Act July 10, 1984 (effective on enactment on 7/10/84, as provided by 122(a) of such Act, which appears as 28 USCS 151 note), in subsec. (a), deleted "or Territories" following "States", deleted "or Territory" following "State" wherever appearing, and substituted "within the State" for "within the Territory".


Other provisions:

Removal of legal impediment. Act Aug. 15, 1953, ch. 505, 6, 67 Stat. 589, provided: "Notwithstanding the provisions of any Enabling Act for the admission of a State, the consent of the United States is hereby given to the people of any State to amend, where necessary, their State constitution or existing statutes, as the case may be, to remove any legal impediment to the assumption of civil and criminal jurisdiction in accordance with the provisions of this Act [adding this section and 18 USCS 1162]: Provided, That the provisions of this Act [this section and 18 USCS 1162] shall not become effective with respect to such assumption of jurisdiction by any such State until the people thereof have appropriately amended their State constitution or statutes as the case may be.".

Consent of United States to other States to assume jurisdiction. Act Aug. 15, 1953, ch 505, 7, 67 Stat. 590, which gave consent of the United States to any other State not having jurisdiction with respect to criminal offenses or civil causes of action, or with respect to both, as provided for in this section and section 1162 of Title 18, to assume jurisdiction at such time and in such manner as the people of the State shall, by legislative action, obligate and bind the State to assumption thereof, was repealed by section 403(b) of P.L. 90-284, Title IV, Apr. 11, 1968, 82 Stat. 79, such repeal not to affect any cession of jurisdiction made pursuant to such section prior to its repeal. Retrocession of jurisdiction by State acquired by State pursuant to section 7 of Act Aug. 15, 1953, prior to its repeal, see 25 USCS 1324. For retrocession of jurisdiction by a State pursuant to 7 of Act Aug. 15, 1953, prior to repeal of such section, see 25 USCS 1323.

Notes

Cross References

Statehood for Alaska, note preceding 48 USCS 21.
Assumption of jurisdiction by state, 25 USCS 1321, 1322.
Retrocession of jurisdiction by state, 25 USCS 1323.
Jurisdiction of actions brought by Indian tribes, 28 USCS 1362.
This section is referred to in 25 USCS 711e, 713f, 714e, 1300b-15, 1300f, 1323, 1365, 1747, 1918.

Research Guide

Federal Procedure:

Indians and Indian Affairs, Fed Proc L Ed, 46:445, 455, 1031, 1032, 1033, 1034.

19 Fed Proc L Ed, Indians and Indian Affairs 46:479, 1066, 1067, 1086, 1094.

Am Jur:

41 Am Jur 2d, Indians 47, 48, 162-165, 181.

Forms:

11 Federal Procedural Forms L Ed, Indians and Indian Affairs 41:131, 133.

Annotations:

Validity, under Federal Constitution, statutes, and treaties, of state or local tax as affected by its imposition on Indians, their property or activities, or in connection with an Indian reservation--Supreme Court cases. 73 L Ed 2d 1506.

Construction and Application of Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.A. 1901 et seq. [25 USCS 1901 et seq.]) Upon Child Custody Determinations. 89 ALR5th 195.

Law Review Articles:

Wilkinson & Volkman, Judicial Review of Indian Treaty Abrogation: "As Long as Water Flows, or Grass Grows Upon the Earth"--How Long a Time Is That? 63 Calif L Rev 601.

Federal Courts--Indian Jurisdiction--Diversity Courts May Entertain Actions Between Indians that Are Not Cognizable in State Courts. 63 Geo LJ 989.

Indian Law--Civil Rights--Federal Jurisdiction--When Tribal Remedies Effectively Exhausted Federal Courts Have Jurisdiction to Hear Claims Arising Under the Indian Civil Rights Act. 22 Kan L Rev 461.

Goldberg, A Dynamic View of Tribal Jurisdiction to Tax Non-Indians. 40 Law & Contemp Prob 166.

Adjudication of Indian and Federal Water Rights in the Federal Courts. 46 U Colo L Rev 555.

Canby, Civil Jurisdiction and the Indian Reservation. 1973 Utah L Rev 206.

Indian Law--Tribal Off-Reservation Jurisdiction. 1975 Wis L Rev 1221.


Interpretive Notes and Decisions

© 2000 Lexis

  1. In General
    1. Generally
    2. Constitutionality
    3. Purpose
    4. Construction

  2. State Jurisdiction
    1. Civil Actions
      1. Generally
      2. Validity of state legislation
      3. Particular types of actions

    2. Criminal Actions
      1. Generally

  3. Application of State Civil Laws
    1. Generally
    2. Annexation
    3. Contracts
    4. Descent and distribution
    5. Gambling
    6. Hunting, fishing and trapping
    7. Limitation of actions
    8. Motor vehicles
    9. Pollution control
    10. Real Property
    11. --Land use
    12. Rent control
    13. Safety regulations
    14. Taxation
    15. --Income
    16. --Inheritance
    17. --Personal property
    18. --Sales and use
    19. --Transaction privilege
    20. Wrongful death

I. In General

1. Generally

28 USCS 1360 does not confer state jurisdiction over Indian tribes themselves. Parker Drilling Co. v Metlakatla Indian Community (1978, DC Alaska) 451 F Supp 1127.

2. Constitutionality

Public Law 280 (18 USCS 1162; 28 USCS 1360, 1362) granting as it does to State of California authority to exercise its police power over Indian lands is not unconstitutional. Agua Caliente Band of Mission Indians' Tribal Council v Palm Springs (1972, CD Cal) 347 F Supp 42.

3. Purpose

Section 1360 represents primary expression of federal policy governing assumption by states of civil and criminal jurisdiction over Indian nations, and is intended to replace ad hoc regulation of state jurisdiction over Indian country with general legislation providing for all affected states to come within its terms. Three Affiliated Tribes of Ft. Berthold Reservation v Wold Engineering (1986, US) 90 L Ed 2d 881, 106 S Ct 2305.

Primary intent of 28 USCS 1360 is to grant jurisdiction over private civil litigation involving reservation Indians in state court. Bryan v Itasca County (1976) 426 US 373, 48 L Ed 2d 710, 96 S Ct 2102, on remand 303 Minn 408, 246 NW2d 560 and (ovrld on other grounds Rice v Rehner, 463 US 713, 77 L Ed 2d 961, 103 S Ct 3291, reh den 464 US 874, 78 L Ed 2d 185, 104 S Ct 209 and on remand (CA9) 717 F2d 492) as stated in County of Vilas v Chapman, 122 Wis 2d 211, 361 NW2d 699.

Purpose of Congress in passing Public Law 280 (18 USCS 1162; 28 USCS 1360, 1362) was to permit Indians to become full and equal citizens of their respective states and to terminate wardship of federal government over their affairs. Rincon Band of Mission Indians v County of San Diego (1971, SD Cal) 324 F Supp 371, affd (CA9 Cal) 495 F2d 1, cert den 419 US 1008, 42 L Ed 2d 283, 95 S Ct 328 and cert den 419 US 1022, 42 L Ed 2d 295, 95 S Ct 497.

28 USCS 1360 was intended as grant of jurisdiction not as prohibition on exercising jurisdiction state would otherwise possess. South Naknek v Bristol Bay Borough (1979, DC Alaska) 466 F Supp 870.

28 USCS 1360 was designed to remedy problem of lack of state jurisdiction over Indians in their dealings with non-Indians; statute is not grant to states of jurisdictional power over non-Indians, and cannot be construed as supplanting tribe's authority with state authority or divesting tribe of inherent power it has over reservation activities of non-Indians. Yakima Indian Nation v Whiteside (1985, ED Wash) 617 F Supp 735, later proceeding (ED Wash) 617 F Supp 750.

4. Construction

Primary interpretation of 28 USCS 1360, granting states jurisdiction over civil actions by or against reservation Indians, must have reference to legislative history of Congress that enacted statute rather than to history of acts of later Congress; statutes passed for benefit of Indian tribes are to be liberally construed, with doubtful expressions resolved in favor of Indians; this principle of statutory construction has particular force in face of claims that ambiguous statutes abolish by implication Indian tax immunities. Bryan v Itasca County (1976) 426 US 373, 48 L Ed 2d 710, 96 S Ct 2102, on remand 303 Minn 408, 246 NW2d 560 and (ovrld on other grounds Rice v Rehner, 463 US 713, 77 L Ed 2d 961, 103 S Ct 3291, reh den 464 US 874, 78 L Ed 2d 185, 104 S Ct 209 and on remand (CA9) 717 F2d 492) as stated in County of Vilas v Chapman, 122 Wis 2d 211, 361 NW2d 699.

Act from which 28 USCS 1360 was derived is not present grant of jurisdiction, and, until state has acted to assume jurisdiction as specified therein, it has no jurisdiction of civil suits between reservation Indians for torts arising within reservation. Smith v Temple (1967) 82 SD 650, 152 NW2d 547.

II. State Jurisdiction

A. Civil Actions

5. Generally

Provision in 28 USCS 1360(a) granting states jurisdiction over civil actions by or against reservation Indians authorizes application by state courts of their rules of decision to decide disputes between Indians and between Indians and other private citizens. Bryan v Itasca County (1976) 426 US 373, 48 L Ed 2d 710, 96 S Ct 2102, on remand 303 Minn 408, 246 NW2d 560 and (ovrld on other grounds Rice v Rehner, 463 US 713, 77 L Ed 2d 961, 103 S Ct 3291, reh den 464 US 874, 78 L Ed 2d 185, 104 S Ct 209 and on remand (CA9) 717 F2d 492) as stated in County of Vilas v Chapman, 122 Wis 2d 211, 361 NW2d 699.

Under 28 USCS 1360, consent of Congress is required for state courts to exercise jurisdiction over Indian territory. Hamilton v MacDonald (1974, CA9 Ariz) 503 F2d 1138, 19 FR Serv 2d 40.

District Court has subject matter jurisdiction under 28 USCS 1331 where Indian housing authority seeks to evict Indian tenants from unallotted Indian lands, because no specific federal jurisdiction or governing law is provided by 28 USCS 1337 or 1362, state may not adjudicate case under 28 USCS 1360, and thus issue must be governed by federal common law. All Mission Indian Housing Authority v Silvas (1987, CD Cal) 680 F Supp 330.

Congress, by virtue of its enactment of 25 USCS 1300f(c), which applied 28 USCS 1360(a) and its granting of civil jurisdiction to State of Arizona over Pascua Yaqui Indian lands, did not waive sovereign immunity of Pascua Yaqui Indian Tribe; however, by entering into arbitration agreement providing that any dispute would be arbitrated and result entered as judgment in court of competent jurisdiction, Tribe expressly waived its sovereign immunity, and civil jurisdiction over suit against Tribe for enforcement of arbitration clause of agreement properly lies with State of Arizona, notwithstanding that tribal court may also have jurisdiction. Val/Del, Inc. v Superior Court of County of Pima (1985, App) 145 Ariz 558, 703 P2d 502, cert den (US) 88 L Ed 2d 257, 106 S Ct 250.

28 USCS 1360 confers on California jurisdiction over individual members of Indian tribes but not over Indian tribes themselves; tribal sovereignty is dependent on and subordinate to federal government rather than to state. Long v Chemehuevi Indian Reservation (1981, 4th Dist) 115 Cal App 3d 853, 171 Cal Rptr 733, cert den 454 US 831, 70 L Ed 2d 109, 102 S Ct 129.

State jurisdiction of civil actions must not interfere with Indian self-government, absent some compelling state interest. Duluth Lumber & Plywood Co. v Delta Development, Inc. (1979, Minn) 281 NW2d 377.

6. Validity of state legislation

State statute extending state jurisdiction over civil claims for relief arising on Indian reservation upon acceptance by Indian citizens which statute was construed by state supreme court as disclaiming pre-existing, unconditional state jurisdiction over suit by Indian tribe against non-Indians for which there is no other forum, absent tribe's waiver of its sovereign immunity and consent to application of state civil law in all cases to which it is party, is preempted by Pub L 280 (28 USCS 1360), giving federal consent to assumption of state civil and criminal jurisdiction over Indian country and providing procedures by which such assumption can be made, because Pub L 280 is designed to extend jurisdiction of states over Indian country and to encourage state assumption of such jurisdiction, and because state's disclaimer of jurisdiction is not authorized by federal statute authorizing retrocession of jurisdiction (25 USCS 1323(a)); state statute, as thus construed, is unduly burdensome (1) on federal interest in insuring that all citizens have access to courts, because conditions for extension of state jurisdiction may be met only at unacceptably high price to tribal sovereignty and thus operate to bar tribe effectively from courts, and (2) on tribal interests, because state statute's requirement that tribe consent to suit in all civil causes of action before it may gain access to state court as plaintiff is unduly intrusive on Indian's common-law sovereign immunity and thus on its ability to govern itself according to its own laws. Three Affiliated Tribes of Ft. Berthold Reservation v Wold Engineering, P. C. (1986, US) 90 L Ed 2d 881, 106 S Ct 2305 and vacated, supp op (ND) 392 NW2d 87.

Enactment of state statute obligating state to assume civil and criminal jurisdiction over Indians and Indian territory within state, subject only to condition that in all but eight subject-matter areas of jurisdiction would not extend to Indians on trust or restricted lands unless affected tribe so requested, satisfies procedural requirements of 6 of Act of Aug. 15, 1953 (28 USCS 1360 note), allowing states whose constitution or statutes contain organic law disclaimers of jurisdictions over Indian country to assume jurisdiction under Act, and state statute is not invalid, where highest court of state had determined that for purposes of repeal of disclaimer provision of state's constitution, legislative action was sufficient, and where appropriate state legislation had been enacted; 6 of Act of Aug. 15, 1953 does not require states whose constitution or statutes contain organic law disclaimers of jurisdiction over Indian country to amend their constitutions in order to make effective acceptance of jurisdiction; once requirements of 6 of Act of Aug. 15, 1953 have been satisfied, terms of 7 of Act (67 Stat 590) govern scope of jurisdiction conferred upon disclaimer states. Washington v Confederated Bands & Tribes of Yakima Indian Nation (1979) 439 US 463, 58 L Ed 2d 740, 99 S Ct 740, reh den 440 US 940, 59 L Ed 2d 500, 99 S Ct 1290 and on remand (CA9 Wash) 608 F2d 750.

City's annexation of township containing reservation lands did not constitute increase of civil jurisdiction over reservation, and such annexation was valid under federal law, where annexation did nothing more than change boundaries of city, and state annexation statute neither frustrates nor interferes with tribal self-government nor impairs right granted or reserved by federal law. Shakopee Mdewakanton Sioux Community v Prior Lake (1985, CA8 Minn) 771 F2d 1153, cert den (US) 89 L Ed 2d 301, 106 S Ct 1185.

7. Particular types of actions

McCarran Amendment (43 USCS 666) does not do away with federal jurisdiction over water rights claims brought under 28 USCS 1345; Amendment does not limit jurisdictional reach of 28 USCS 1362, which gives Federal District Courts original jurisdiction of all civil actions brought by any Indian tribe where matter in controversy arises under Constitution, laws or treaties of United States; 25 USCS 1322(b) and 28 USCS 1360(b) only qualify import of general consent to state jurisdiction given by those sections and do not limit special consent to jurisdiction given by Amendment. Arizona v San Carlos Apache Tribe (1983) 463 US 545, 77 L Ed 2d 837, 103 S Ct 3201, on remand (CA9 Mont) 713 F2d 502, on reh (CA9 Ariz) 721 F2d 1187 and reh den 464 US 874, 78 L Ed 2d 185, 104 S Ct 209.

Neither Indian Child Welfare Act nor 28 USCS 1360 prevent native villages from exercising concurrent jurisdiction over child custody determinations. Venetie I.R.A. Council v Alaska (1990, CA9 Alaska) 918 F2d 797.

In suit brought by Indian allottee for damages for illegal interference with expectancy in land, District Court lacks jurisdiction as 25 USCS 349 is not general grant of jurisdiction for all acts by or against Indian allottee and 28 USCS 1360 is grant of jurisdiction to state courts "over civil causes of action between Indians or to which Indians are parties." Guardianship of Prieto v Palm Springs (1971, CD Cal) 328 F Supp 716.

28 USCS 1360 would not support federal jurisdiction of shareholder's derivative complaint, inasmuch as it pertained to state court's jurisdiction. Dodge v First Wisconsin Trust Co. (1975, ED Wis) 394 F Supp 1124.

Indian Child Welfare Act (25 USCS 1901 et seq.) does not confer tribal jurisdiction over adoption proceedings in Alaskan Indian tribe where tribe members sued to compel state to recognize such proceedings, because jurisdiction was vested in state of Alaska by 28 USCS 1360 and members' theory of implied residual concurrent jurisdiction could not stand in light of specific reassumption of jurisdiction procedures in 25 USCS 1918, with which tribe failed to comply. Native Village of Venetie I.R.A. Council v Alaska (1988, DC Alaska) 687 F Supp 1380.

Pursuant to 28 USCS 1360, California court has jurisdiction over action seeking judicial declaration that corporation formed by Hoopa Valley Indian Tribe, for purposes including propagation, processing, and sale of timber, is obligated to indemnify plaintiff against imposition of timber yield tax by State of California on logs plaintiff purchased from corporation. Southwest Forest Industries v Hupa Timber Corp. (1984, 1st Dist) 151 Cal App 3d 239, 198 Cal Rptr 690.

North Carolina had civil jurisdiction over Eastern Band of Cherokee at least since emigration west following Treaty of New Echota, when Indians remaining in North Caroline became subject to laws of state; enactment of 18 USCS 1360 did not terminate existing jurisdiction; Indian agreement to accept state jurisdiction was unnecesary; thus, state would have jurisdiction of tort action involving Indian defendant, incident having arisen on Indian lands. Sasser v Beck (1979) 40 NC App 668, 253 SE2d 577, cert den 298 NC 300, 259 SE2d 915 and later app 65 NC App 170, 308 SE2d 722, review den 310 NC 309, 312 SE2d 652.

Forum state's intervention in Indian affairs is territorially limited by scope of consent to state jurisdiction given by Congress, and Indian tribe located in another state retained authority over its children, free from interference by courts of forum state, where Congress, under 28 USCS 1360(a), had not consented to, and forum state had not sought, extension of its jurisdiction over proceedings arising on Indian reservations outside borders of forum state. Re Adoption of Buehl (1976) 87 Wash 2d 649, 555 P2d 1334.

Act of Aug. 15, 1953, 6 [note to 28 USCS 1360], relieved 25 USCS 233 of its limitation with respect to civil actions involving Indian lands relating to events transpiring prior to its effective date. Mohawk v Longfinger (1955) 1 Misc 2d 509, 149 NYS2d 36.

B. Criminal Actions

8. Generally

California fireworks law was criminal/prohibitory rather than civil/regulatory, therefore enforceable on Indian reservation, since intent is to prohibit possession and/or sale of fireworks. Quechan Indian Tribe v McMullen (1993, CA9 Cal) 984 F2d 304, 93 CDOS 417, 93 Daily Journal DAR 896.

Act of August 15, 1953 [note to 28 USCS 1360], grants to states power to assume criminal jurisdiction on reservations in such manner as people of state, by affirmative legislative action, obligate and bind state to assumption thereof; there is no merit in habeas corpus proceeding to petitioner's contention that state courts have no jurisdiction to sentence him because he is Indian since he is not member of Indian tribe and, even if he were member of tribe, state, by legislative act pursuant to 1360 note, has provided procedure for assumption of criminal jurisdiction. Campbell v Crist (1980, DC Mont) 491 F Supp 586, affd (CA9 Mont) 647 F2d 956.

District court does not have removal jurisdiction over case involving state's attempted enforcement of state criminal statute prohibiting commercial gambling through civil forfeiture proceeding in which defendant is Indian tribe, since, although federal statute grants several states authority to enforce their criminal laws against tribes and tribal members and to hear private civil disputes involving Indians, such state action cannot be said to arise under federal laws so as to grant original federal court jurisdiction over such actions. Wisconsin v Wisconsin Winnebago Indian Tribe (1985, WD Wis) 603 F Supp 428.

Since state statute which clearly purported to grant jurisdiction to state courts for crimes over which federal courts would otherwise have exclusive jurisdiction was originally enacted in 1889 and had incurred very little change through subsequent codification and compilation, it could not be said that state statute was enacted in response to 6 of original act (18 USCS 1162, 28 USCS 1360), and state therefore is not permitted to assume either criminal or civil jurisdiction over Indians in Indian country. Blatchford v Gonzales (1983) 100 NM 333, 670 P2d 944, cert den and app dismd 464 US 1033, 79 L Ed 2d 158, 104 S Ct 691.

III. Application of State Civil Laws

9. Generally

"Civil laws of general application," as used in 28 USCS 1360(a), does not include county or municipal ordinances. Santa Rosa Band of Indians v Kings County (1975, CA9 Cal) 532 F2d 655, cert den 429 US 1038, 50 L Ed 2d 748, 97 S Ct 731.

10. Annexation

Municipality could not lawfully extend its corporate limits to include lands of Indian tribe. Your Food Stores, Inc. (NSL) v Espanola (1961) 68 NM 327, 361 P2d 950, cert den 368 US 915, 7 L Ed 2d 131, 82 S Ct 194.

11. Contracts

Indian trust lands are federal instrumentality held to effect federal policy of Indian advancement and therefore may not be burdened or interfered with by state, and federal law of contracts would apply to contract between tribe and bankrupt corporation in view of facts (1) that contract was entered into by Tribe for benefit of Tribe as whole, (2) any ambiguity in 28 USCS 1360 should be construed in favor of Indians, and (3) 28 USCS 1360 should be construed within entire framework of legislation affecting Indians. Re Humboldt Fir, Inc. (1977, ND Cal) 426 F Supp 292, 21 UCCRS 736, affd (CA9) 625 F2d 330.

12. Descent and distribution

Although 28 USCS 1360 does not serve as grant of jurisdiction to state courts to adjudicate property rights delineated in 28 USCS 1360(b), provision of Alaska Native Claims Settlement Act (43 USCS 1606(h)(2)) serves to confer jurisdiction on State of Alaska insofar as intestate disposition of stock in Native corporations is concerned (although stock itself falls within scope of 28 USCS 1360(b)) and Supreme Court of Alaska would affirm judgment of trial court recognizing doctrine of equitable or virtual adoption to avoid hardship, where plaintiffs, Yup'ik Eskimos, were adopted in traditional manner of culture in which they lived, and claimed corporate shares of adoptive parents when parents died intestate. Calista Corp. v Mann (1977, Alaska) 564 P2d 53.

13. Gambling

California bingo statute was not applicable to Indian reservations under 28 USCS 1360, since under binding precedent statute could not be said to address violation of state public policy. Cabazon Band of Mission Indians v County of Riverside (1986, CA9 Cal) 783 F2d 900, affd, remanded (US) 94 L Ed 2d 244, 107 S Ct 1083.

14. Hunting, fishing and trapping

Public Law 280, 68 Stat. 795, which Act is source of 28 USCS 1360, read in pari materia with Act terminating treaty with Menominee tribe of Indians, precluded state of Wisconsin from exercising game and fish jurisdiction over former reservation lands now held by tribal corporation. Menominee Tribe of Indians v United States (1968) 391 US 404, 20 L Ed 2d 697, 88 S Ct 1705.

Enactment of 28 USCS 1360 and 18 USCS 1162 did not extend hunting and trapping laws of Oregon to Klamath Indian Reservation in that state. Klamath & Modoc Tribes, etc. v Maison (1956, DC Or) 139 F Supp 634.

Although jurisdiction over Indian reservations and Indians on such reservations was transferred from federal government to California by Public Law 280 (18 USCS 1162; 28 USCS 1360), Indians on reservation who had fishing rights derived from Congress retained such rights and state qualification of such rights was precluded by force of supremacy clause so that state's attempt to regulate fishing by passage of state legislation was invalid. Arnett v Five Gill Nets (1975, 1st Dist) 48 Cal App 3d 454, 121 Cal Rptr 906, cert den 425 US 907, 47 L Ed 2d 757, 96 S Ct 1500.

15. Limitation of actions

Where, to apply California statutes of limitation without qualification would bar Indians' suit even if it had been filed on date that 28 USCS 1360 became law, such result would be discordant with Supreme Court's view that constitutionality of statutes of limitation depends upon whether reasonable time is given for commencement of action before bar takes effect; hence, California statutes of limitations are not applicable to action by Indians against California Irrigation District for declaratory relief and money judgment in trespass for alleged wrongs committed by district in construction and maintenance of waterworks facility on reservation while it was held in trust by United States; rather, proper limitations period is to be found in 28 USCS 2415. Capitan Grande Band of Mission Indians v Helix Irrig. Dist. (1975, CA9 Cal) 514 F2d 465, cert den 423 US 874, 46 L Ed 2d 106, 96 S Ct 143.

16. Motor vehicles

State of Washington lacks jurisdiction over on-reservation Indians to enforce its statute prescribing speed limits for motor vehicles operated upon public roads within reservation since state legislature's decriminalizing speeding offenses indicated that statute was civil/regulatory, not criminal/prohibitory. Confederated Tribes of Colville Reservation v Washington (1991, CA9 Wash) 938 F2d 146, 91 CDOS 5298, 91 Daily Journal DAR 8092.

Although State of Minnesota lacks authority to enforce motor vehicle regulations within territorial boundaries of Red Lake Reservation, it does not lack such authority with respect to county highways within Fond Du Lac Reservation. State v Porter (1984, Minn App) 348 NW2d 411.

17. Pollution control

State cannot issue National Pollutant Discharge Elimination System permit to Indians living on Indian lands based 28 USCS 1360 as amended. USEPA GCO 77-6.

18. Real Property

Provisions of 28 USCS 1360 deny state court jurisdiction over Indian allotment claims, and other proceedings involving ownership, right to possession, or any interest in Indian real property. Alaska, Dept. of Public Works v Agli (1979, DC Alaska) 472 F Supp 70.

28 USCS 1360(b) provides no cause of action for Indians who claim tribal lands allegedly conveyed by their ancestors where there is no violation of federal law and no trust relationship or other restriction upon alienation of claimed land. Mashpee Tribe v Watt (1982, DC Mass) 542 F Supp 797, affd (CA1 Mass) 707 F2d 23, cert den 464 US 1020, 78 L Ed 2d 728, 104 S Ct 555.

State courts do not have jurisdiction over forcible entry and wrongful detainer actions involving fee patent lands lying within Indian reservation, unless some affirmative act of federal government or tribe operates to confer jurisdiction upon state, and suit brought by member of Mescalero Apache Tribe against her son for forcible entry and wrongful detainer of her home would be dismissed for lack of jurisdiction where (1) treaty agreed that tribe through its authorized Chiefs was lawfully and exclusively under laws, jurisdiction, and government of United States, (2) New Mexico Enabling Act disclaimed jurisdiction over Indians, (3) enforcement of landowner's rights to property by state court would infringe upon governmental powers of tribe and (4) although tribal law made no provision for wrongful entry and detainer action, state might not assume jurisdiction without congressional or tribal authorization. Chino v Chino (1977) 90 NM 203, 561 P2d 476.

19. --Land use

28 USCS 1360 does not grant county jurisdiction to enforce its zoning and building codes against Indian construction projects on Indian trust properties within reservation. United States v County of Humboldt (1980, CA9 Cal) 615 F2d 1260.

Statute granting state courts jurisdiction over civil litigation involving reservation Indians does not intrude on tribal regulatory authority, and because zoning is clearly regulatory, statute does not affect Yakima Nation's authority to zone. Confederated Tribes & Bands of Yakima Indian Nation v Whiteside (1987, CA9 Wash) 828 F2d 529, affd (US) 1989 US LEXIS 3288.

Zoning ordinances enacted by City of Palm Springs California apply to and are enforceable upon Indian lands to same extent and with same effect as they are enforceable upon non-Indian land. Agua Caliente Band of Mission Indians' Tribal Council v Palm Springs (1972, CD Cal) 347 F Supp 42.

State laws concerning subdivision control, construction licensing, and water control were applicable to Indian lands under long-term lease to non-Indian corporate lessee proposing to develop leased land as residential subdivision; state laws were not inapplicable to such non-Indian lessees on basis of federal pre-emption; likewise, leasehold interest was properly taxable by nondiscriminatory state tax levied upon lessees. Norvell v Sangre de Cristo Development Co. (1974, DC NM) 372 F Supp 348, revd on other grounds (CA10 NM) 519 F2d 370.

Tribe has authority to regulate use by non-member of land within closed area of reservation. Yakima Indian Nation v Whiteside (1985, ED Wash) 617 F Supp 735, later proceeding (ED Wash) 617 F Supp 750.

State enforcement of state's Outdoor Advertising Act on Indian reservation is not authorized by P.L. 83-280, 67 Stat. 589. People ex rel. Dept. of Transportation v Naegele Outdoor Advertising Co. (1985) 38 Cal 3d 509, 213 Cal Rptr 247, 698 P2d 150, cert den (US) 89 L Ed 2d 570, 106 S Ct 1260.

Purchase of land, sold free and clear of all trusts or restraints against alienation, by Indian tribe had effect of reimposing restrictions against alienation; county could not enforce ordinance requiring obtaining of conditional use permit in order to carry on garbage disposal operation; to permit county to enforce ordinance would allow state governmental agency to interfere with use of restricted Indian lands. Snohomish County v Seattle Disposal Co. (1967) 70 Wash 2d 668, 425 P2d 22, cert den 389 US 1016, 19 L Ed 2d 662, 88 S Ct 585, reh den 390 US 930, 19 L Ed 2d 996, 88 S Ct 847.

20. Rent control

Section 1360 cannot serve as jurisdictional basis for application of rent control ordinances within Indian country. Segundo v Rancho Mirage (1987, CA9 Cal) 813 F2d 1387.

Municipal rent control ordinance may not be enforced against non-Indian lessee of property held in trust by United States Government for reservation Indians. Zachary v Wilk (1985, 4th Dist) 173 Cal App 3d 754, 219 Cal Rptr 122, cert den (US) 93 L Ed 2d 32, 107 S Ct 77.

21. Safety regulations

28 USCS 1360 does not grant state court jurisdiction to enforce state safety regulations prohibiting possession or transportation of uncased or unloaded firearms in vehicles against Indians where violations took place within confines of Indian reservation. State v Lemieux (1982, App) 106 Wis 2d 484, 317 NW2d 166, affd 110 Wis 2d 158, 327 NW2d 669.

22. Taxation

Failure of state to assume jurisdiction over tribe under 28 USCS 1360 does not prevent state from asserting taxing jurisdiction over activities of non-Indian on Indian lands. G. M. Shupe, Inc. v Bureau of Revenue (1976, App) 89 NM 265, 550 P2d 277, cert den 89 NM 321, 551 P2d 1368.

23. --Income

State may not levy income tax on wages earned from employment on Red Lake Reservation by enrolled member of Red Lake Band of Chippewa Indians residing within boundaries of reservation. Commissioner of Taxation v Brun (1970) 286 Minn 43, 174 NW2d 120.

24. --Inheritance

28 USCS 1360 does not confer jurisdiction upon California to impose inheritance tax upon intestate transfer of personal property and nontrust reservation real property from one reservation Indian to another. Estate of Johnson, (1981, 1st Dist) 125 Cal App 3d 1044, 178 Cal Rptr 823, cert den 459 US 828, 74 L Ed 2d 65, 103 S Ct 63.

25. --Personal property

Principle that, absent Congressional consent, state may not tax Indian reservation lands or Indian income from activities carried on within boundaries of reservation derives from general pre-emption analysis that gives effect to plenary and exclusive power of federal government to deal with Indian tribes, and to regulate and protect Indians and their property against interference even by state, which pre-emption draws support from "backdrop" of Indian sovereignty doctrine; grant of jurisdiction to states over civil actions by or against reservation Indians conferred by 28 USCS 1360(a) is not congressional grant of power to tax reservation Indians, since: (1) rule is supported by legislative history of statute and by application of canons of construction applicable to congressional statutes claimed to terminate Indian immunities, and, (2) if Congress, in enacting statute, had intended to confer upon states general civil regulatory powers, including taxation, over reservation Indians, it would have expressly said so; absent congressional consent, county has no authority to levy personal property tax upon Indian's mobile home located on land held in trust by United States for Indian tribe. Bryan v Itasca County (1976) 426 US 373, 48 L Ed 2d 710, 96 S Ct 2102, on remand 303 Minn 408, 246 NW2d 560 and (ovrld Rice v Rehner, 463 US 713, 77 L Ed 2d 961, 103 S Ct 3291, reh den 464 US 874, 78 L Ed 2d 185, 104 S Ct 209 and on remand (CA9) 717 F2d 492) as stated in County of Vilas v Chapman, 122 Wis 2d 211, 361 NW2d 699.

Congressional grant of state civil jurisdiction over Indian Reservations in 28 USCS 1360 does not include consent to state taxation of personal property of Indians residing on those reservations. Eastern Band of Cherokee Indians v Lynch (1980, CA4 NC) 632 F2d 373.

26. --Sales and use

Under tribal sovereign immunity doctrine, state that has not asserted jurisdiction over Indian lands under 28 USCS 1360 may collect taxes on sales of goods to nontribal members which occur on land held in trust for federally recognized Indian tribe, although state may not tax such sales where they are made in Indians. Oklahoma Tax Com. v Citizen Band Potawatomi Indian Tribe (1991, US) 112 L Ed 2d 1112, 111 S Ct 905, 91 CDOS 1504, 91 Daily Journal DAR 2376.

28 USCS 1360 does not forbid imposition of state use tax on Indian lands; Indian as beneficial owner of land, legal title to which is in United States, is entitled to no more protection than United States would enjoy, absent Congressional action forbidding tax. Agua Caliente Band of Mission Indians v County of Riverside (1971, CA9 Cal) 442 F2d 1184, cert den 405 US 933, 30 L Ed 2d 809, 92 S Ct 930, reh den 405 US 1033, 31 L Ed 2d 491, 92 S Ct 1280 and reh den 409 US 901, 34 L Ed 2d 163, 93 S Ct 94 and (disapproved on other grounds Moe v Confederated Salish & Kootenai Tribes of Flathead Reservation, 425 US 463, 48 L Ed 2d 96, 96 S Ct 1634) as stated in Navajo Tribal Utility Authority v Arizona Dept. of Revenue (CA9 Ariz) 608 F2d 1228.

Municipality could not lawfully extend its corporate limits to include lands of Indian tribe and to enforce within such lands, municipal sales tax against business located upon land leased from Indian tribe. Your Food Stores, Inc. (NSL) v Espanola (1961) 68 NM 327, 361 P2d 950, cert den 368 US 915, 7 L Ed 2d 131, 82 S Ct 194.

27. --Transaction privilege

State may tax non-Indians and non-Indian property within reservation even though state has not expressly assumed jurisdiction over reservation pursuant to 18 USCS 1162, and 28 USCS 1360, and state transaction privilege tax upon contractor doing construction work on reservation (pursuant to contract with Bureau of Indian Affairs) would be valid since (1) tax fell on contractor and could not legally be shifted to anyone else, and (2) contracts under which it was in fact paid were funds generated by contract with Bureau of Indian Affairs, not with Indians. Department of Revenue v Hane Constr. Co. (1977, App) 115 Ariz 243, 564 P2d 932, 23 CCF P 81409.

28. Wrongful death

Enactment of 28 USCS 1360(a) did not constitute waiver of sovereign immunity of Indian tribes with respect to state wrongful death statute. Atkinson v Haldane (1977, Alaska) 569 P2d 151.


File Created: 4 October 2001
Last Modified: Wed, July 23, 2014 at 02:59 PM

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