INDIANS ‑- RESERVATIONS ‑- STATE JURISDICTION ‑- TAXATION ‑- ADMISSIONS TAX ‑- ON INDIAN RESERVATION

INDIANS ‑- RESERVATIONS ‑- STATE JURISDICTION ‑- TAXATION ‑- ADMISSIONS TAX ‑- ON INDIAN RESERVATION

The state has no jurisdiction over crimes committed on an Indian reservation when the person or property of an Indian is affected.

The county may require its schools located on an Indian reservation to collect the admissions tax from non-Indian patrons.

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                                                                   April 20, 1955

Honorable Lee J. Reynolds
Prosecuting Attorney
Kuppler Building
Clallam County
Port Angeles, Washington                                                                                                                Cite as:  AGO 55-57 No. 63

Dear Sir:

            We have your letter of March 9, 1955, in which the following inquiries are presented:

            1. Does the state have jurisdiction over a burglary committed by a non-Indian against the property of an Indian on a reservation?

            2. May the county admissions tax be charged by a school located within a Federal reservation?

            The answer to the first question is in the negative; the second is in the affirmative.

                                                                     ANALYSIS

            18 U.S.C.A. § 1152 provides as follows:

             [[Orig. Op. Page 2]]

            "Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country."

            The above statute would seem to make the situs of the offense the controlling factor of jurisdiction over the crime committed.  However, it was pointed out inState ex rel. Ray v. Martin, 326 U.S. 496, 90 L.Ed. 261, that the status of the person committing the crime and the person or property against which the crime was committed are generally of equal importance.  The case went on to find state jurisdiction over a crime by one non-Indian against another non-Indian, even though it occurred within Indian country.  The courts of this state are in accord with the rule that where no personal or property right of an Indian is involved in crime, there is jurisdiction in the state courts regardless of the place of the crime.  State v. Lindsey, 133 Wash. 140, and cases cited therein:

            It is equally well-settled that if an Indian member of the tribe located upon the reservation commits a crime against the person or property of another Indian, then the exclusive jurisdiction thereof rests in the Federal courts.  18 U.S.C.A. § 1153.  State v. Condon, 79 Wash. 97;Yohyowan v. Luce, 291 Fed. 425.

            The third situation suggested in your letter is where a white person commits a crime against the person or property of an Indian member of the tribe on the reservation.  United States v. Pelican, 232 U.S. 442, 58 L.Ed. 676, involved the murder by a white man of an Indian allottee of land still held in trust by the Federal government, which killing took place within the Colville Reservation in this state.  It was held that jurisdiction was in the Federal courts.  This principle was not always followed by the lower courts, as is pointed out in the footnotes toWilliams v. United States, 327 U.S. 711, 90, L.Ed. 962, but that case resolved the doubt by saying:

            "While the laws and courts of the State of Arizona may have jurisdiction over offenses committed on this reservation between persons  [[Orig. Op. Page 3]] who are not Indians, the laws and courts of the United States, rather than those of Arizona, have jurisdiction over offenses committed there, as in this case, by one who is not an Indian against one who is an Indian."

            We should point out that the above rules may not hold true if the particular Indian involved has not maintained his tribal relation, State v. Howard, 33 Wash. 25, or if the tribe itself has disbanded;State v. Smokalem, 37 Wash. 91.  If this is not the case, we are of the opinion that the state has no jurisdiction over a burglary committed by a non-Indian against the property of an Indian on the reservation, unless the treaty or laws creating the particular reservation provide otherwise.

            The second question presented is whether schools located within an Indian reservation may properly collect an admissions tax.  A tax of this type is generally classified as an excise tax.  In this regard it is similar to a sales tax, which was a subject of controversy inNeah Bay Fish Co. v. Krummel, 3 Wn. (2d) 570.  The plaintiffs in this case sought to enjoin the state from collecting the sales tax as well as the business and occupation tax on the ground that they were operating on a reservation with the permission of the Federal government.  The court upheld the taxes for all business done with persons other than Indians, saying on page 578:

            "Even if it be assumed that the appellants are instrumentalities of the Federal government in so far as they transact business with the Indians, we are unable to see how their duties or obligations to the Government are in any way interfered with by the exaction of the challenged taxes, nor do we see how the taxes in any way hamper commerce with the Indians."

            This office has previously upheld the right of a county to require the schools to collect an admissions tax.  52 OAG 89.  Accordingly it is our opinion that the county may require the school authorities to collect a county admissions tax for school functions from patrons other than Indians.

             [[Orig. Op. Page 4]]

            We hope the foregoing comments will be of assistance to you.

Very truly yours,

DON EASTVOLD
Attorney General

ANDY ENGEBRETSEN
Assistant Attorney General