County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation/Opinion of the Court

Held: The Indian General Allotment Act of 1887 permits Yakima County to impose an ad valorem tax on reservation land patented in fee pursuant to the Act and owned by reservation Indians or the Yakima Indian Nation itself, but does not allow the County to enforce its excise tax on sales of such land. Pp. 687-694.

(a) As the Court held in Goudy v. Meath, 203 U.S. 146, 149, 27 S.Ct. 48, 50, 51 L.Ed. 130, the Indian General Allotment Act authorizes taxation of fee-patented land. This determination was explicitly confirmed in a 1906 amendment to the Act, known as the Burke Act, which includes a proviso authorizing the Secretary of the Interior, "whenever . . . satisfied that any [Indian] allottee is competent . . .[,] to .. issu[e] to such allottee a patent in fee simple," and provides that "thereafter all restrictions as to . . . taxation of said land shall be removed." (Emphasis added). Thus, the Indian General Allotment Act contains the unmistakably clear expression of intent that is necessary to authorize state taxation of Indian lands. See, e.g., Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 765, 105 S.Ct. 2399, 2403, 85 L.Ed.2d 753. The contention of the Tribe and the United States that this explicit statutory conferral of taxing power has been repudiated by subsequent Indian legislation rests upon a misunderstanding of this Court's precedents, particularly Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96, and a misperception of the structure of the Indian General Allotment Act. Pp. 257-266.

(b) Because, under state law, liability for the ad valorem tax flows exclusively from ownership of realty on the annual assessment date, and the tax creates a burden on the property alone, this tax constitutes "taxation of . . . land" within the meaning of the Indian General Allotment Act, and is therefore prima facie valid. Nevertheless, Brendale, supra, and its reasoning are inapplicable to the present case, which involves an asserted restriction on a State's congressionally conferred powers over Indians rather than a proposed extension of a tribe's inherent powers over the conduct of non-Indians on reservation fee lands. Moreover, application of a balancing test under Brendale would contravene the per se approach traditionally followed by this Court in the area of state taxation of tribes and tribal members, under which taxation is categorically allowed or disallowed, as appropriate, depending exclusively upon whether it has in fact been authorized by Congress. Pp. 266-268.

(c) However, the excise tax on sales of fee-patented reservation land cannot be sustained. The Indian 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 activity of selling real estate, this Court's cases require that that interpretation be applied for the benefit of the Tribe. See, e.g., Blackfeet Tribe, supra, at 766, 105 S.Ct., at 2403. Pp. 268-270.

(d) The factual question whether the parcels at issue were patented under the Indian General Allotment Act or some other federal allotment statute, and the legal question whether it makes any difference, are left for resolution on remand. P.270.

903 F.2d 1207 (CA9 1990), affirmed and remanded.

SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, STEVENS, O'CONNOR, KENNEDY, SOUTER, and THOMAS, JJ., joined. BLACKMUN, J., filed an opinion concurring in part and dissenting in part.

Jeffrey C. Sullivan, Yakima, Wash., for petitioners and cross-respondents.

Robert Wayne Bjur, Yakima, Wash., for cross respondent and petitioner.

Edwin S. Kneedler, Washington, D.C., as amicus curiae, supporting respondent and cross-petitioner.

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.

* A.

In the late 19th Century, the prevailing national policy of segregating lands for the exclusive use and control of the Indian tribes gave way to a policy of allotting those lands to tribe members individually. The objectives of allotment were simple and clear-cut: to extinguish tribal sovereignty, erase reservation boundaries, and force the assimilation of Indians into the society at large. See, e.g., In re Heff, 197 U.S. 488, 499, 25 S.Ct. 506, 508, 49 L.Ed. 848 (1905). Congress was selective at first, allotting lands under differing approaches on a tribe-by-tribe basis. See F. Cohen, Handbook of Federal Indian Law 129-130 (1982); Gates, Indian Allotments Preceding the Dawes Act, in The Frontier Challenge 141 (J. Clark ed. 1971). These early efforts were marked by failure, however. Because allotted land could be sold soon after it was received, see, e.g., Treaty with the Wyandots, Apr. 1, 1850, 9 Stat. 987, 992, many of the early allottees quickly lost their land through transactions that were unwise or even procured by fraud. See Cohen, supra, at 130. Even if sales were for fair value, Indian allottees divested of their land were deprived of an opportunity to acquire agricultural and other self-sustaining economic skills, thus compromising Congress' purpose of assimilation.

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 allottee. 24 Stat. 389; see United States v. Mitchell, 445 U.S. 535, 543-544, 100 S.Ct. 1349, 1354, 63 L.Ed.2d 607 (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.

In In re Heff, supra, 197 U.S., at 502-503, 25 S.Ct., at 509-510, we held that this latter provision subjected Indian allottees to plenary state jurisdiction immediately upon issuance of a trust patent (and prior to the expiration of the 25-year trust period). Congress promptly altered that disposition in the Burke Act of 1906, 34 Stat. 182, decreeing that state civil and criminal jurisdiction would lie "[a]t the expiration of the trust period . . . when the lands have been conveyed to the Indians by patent in fee." A proviso, however, gave the President authority, when he found an allottee "competent and capable of managing his or her affairs," to "issu[e] . . . a patent in fee simple" prior to the expiration of the relevant trust period. Upon such a premature patenting, the proviso specified (significantly for present purposes) not that the patentee would be subject to state civil and criminal jurisdiction but that "all restrictions as to sale, incumbrance, or taxation of said land shall be removed." Id., at 183.

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 25 U.S.C. §§ 461, 462. In addition, the Act provided for restoring unallotted surplus Indian lands to tribal ownership, see 25 U.S.C. § 463, and for acquiring, on behalf of the tribes, lands "within or without existing reservations." 25 U.S.C. § 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 under the Dawes Act. See W. Washburn, Red Man's Land/White Man's Law 145 (1971).

The Yakima Indian Reservation, which was established by treaty in 1855, see Treaty between the United States and Yakama Nation of Indians, 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 Yakima Indian Nation, 492 U.S. 408, 415, 109 S.Ct. 2994, 3000, 106 L.Ed.2d 343 (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 valorem tax would be impermissible only if it would have a " 'demonstrably serious' " impact on the " 'political integrity, economic security, or the health and welfare of the tribe,' " and remanded to the District Court for that determination to be made. 903 F.2d 1207, 1218 (CA9 1990) (emphasis deleted) (quoting Brendale, supra, 492 U.S. at 431, 109 S.Ct., at 3008). We granted certiorari. 500 U.S., 111 S.Ct. 1680, 114 L.Ed.2d 76 (1991).

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, 31 U.S. (Pet.) 515, 556-557, 8 L.Ed. 483 (1832). Because Congress, pursuant to its constitutional authority both "[t]o regulate Commerce . . . with the Indian Tribes" and to make treaties, U.S.C.onst., 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, 72 U.S. (5 Wall.) 737, 755-757, 18 L.Ed. 667 (1867); The New York Indians, 72 U.S. (5 Wall.) 761, 771-772, 18 L.Ed. 708 (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, 93 S.Ct. 1257, 1262 and n. 8, 36 L.Ed.2d 129 (1973); Organized Village of Kake v. Egan, 369 U.S. 60, 71-73, 82 S.Ct. 562, 568-570, 7 L.Ed.2d 573 (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 on reservation lands, see, ''e.g., New York ex rel. Ray v. Martin,'' 326 U.S. 496, 66 S.Ct. 307, 90 L.Ed. 261 (1946); see also F. Cohen, Handbook of Federal Indian Law, at 352 and n. 39. We have even observed that state jurisdiction over the relations between reservation Indians and non-Indians may be permitted unless the application of state laws "would interfere with reservation self-government or impair a right granted or reserved by federal law." Organized Village of Kake, supra, 369 U.S., at 75, 82 S.Ct., at 571. In the area of state taxation, however, Chief Justice Marshall's observation that "the power to tax involves the power to destroy," McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 431, 4 L.Ed. 579 (1819), has counseled a more categorical approach: "[A]bsent cession of jurisdiction or other federal statutes permitting it," we have held, a State is without power to tax reservation lands and reservations Indians. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114 (1973). And our cases reveal a consistent practice of declining to find that Congress has authorized state taxation unless it has "made its intention to do so unmistakably clear." Montana v. Blackfeet Tribe, 471 U.S. 759, 765, 105 S.Ct. 2399, 2403, 85 L.Ed.2d 753 (1985); see also California v. Cabazon Band of Mission Indians, 480 U.S. 202, 215, n. 17, 107 S.Ct. 1083, 1091, n. 17, 94 L.Ed.2d 244 (1987).

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. We have little doubt about the accuracy of that threshold assessment. Our decision in Goudy v. Meath, 203 U.S. 146, 149, 27 S.Ct. 48, 50, 51 L.Ed. 130 (1906), without even mentioning the Burke Act proviso, held that state tax laws were "[a]mong the laws to which [Indian allottees] became subject" under § 6 upon the expiration of the Dawes Act trust period. And we agree with the Court of Appeals that by specifically mentioning immunity from land taxation "as one of the restrictions that would be removed upon conveyance in fee," Congress in the Burke Act proviso "manifest[ed] a clear intention to permit the state to tax" such Indian lands. 903 F.2d, at 1211.

Neither the Yakima Nation nor its principal amicus, the United States, vigorously disputes this. Instead, they contend that § 6 of that Act-the Burke Act proviso included- is a dead letter, at least within the confines of an Indian reservation. The Tribe argues that, by terminating the allotment program and restoring tribal integrity through the Indian Reorganization Act of 1934, Congress impliedly repealed § 6's jurisdictional grant and returned the law to its pre-Allotment Act foundations. Congress's subsequent actions, according to the Tribe, confirm this implication. In 1948, for instance, Congress defined "Indian country" to include all fee land within the boundaries of an existing reservation, whether or not held by an Indian, and preempted state criminal laws within "Indian country" insofar as offenses by and against Indians were concerned. See Act of June 25, 1948, 62 Stat. 757-758, as amended 18 U.S.C. §§ 1151-1153; Seymour v. Superintendent of Washington State Penitentiary, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962). And in 1953, Congress once again signaled its belief in the dormition of § 6 by enacting Pub.L. 280, which authorized States to assume criminal and civil jurisdiction over Indians within Indian country in certain circumstances. See Act of Aug. 15, 1953, 67 Stat. 588.

Though generally in agreement with the Tribe, the United States takes a slightly different tack. It claims that the 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 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 case. In the United States' view, these enactments must be construed to preempt 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.

In support of their convergent arguments, the Yakima Nation and the United States cite this Court's unanimous decision in Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976), which they contend repudiates the continuing jurisdictional force of the Allotment Act. In that case, the State of Montana sought to impose its cigarette sales and personal property taxes, as well as vendor-licensing fees, on Indian residents of a reservation located entirely within the State. It relied for jurisdiction upon § 6 of the General Allotment Act, but did not limit its claim of taxing authority to the reservation's allottees or even to those activities taking place on allotted reservation fee land. Instead, the State made an "all or nothing" claim to reservation-wide jurisdiction (trust land included), arguing that any scheme of divided jurisdiction would be inequitable. Brief for Appellants in Moe, O.T.1975, No. 74-1656, p. 17. We declined Montana's invitation to ignore the plain language of § 6, which "[b]y its terms [did] not reach Indians residing" or conducting business on trust lands. Moe, 425 U.S., at 478, 96 S.Ct., at 1643. The assertion of reservation-wide jurisdiction, we said, could not be sustained. But we went much further: In light of Congress's repudiation in 1934 of the policies behind the General Allotment Act, we concluded that the Act could no longer be read to provide Montana plenary jurisdiction even over those Indians residing on reservation fee lands:

"The State has referred us to no decisional authority-and we     know of none-giving the meaning for which it contends to § 6      of the General Allotment Act in the face of the many and      complex intervening jurisdictional statutes directed at the      reach of state law within reservation lands. . . .  Congress      by its more modern legislation has evinced a clear intent to      eschew any such 'checkerboard' approach within an existing      Indian reservation, and our cases have in turn followed      Congress' lead in this area." Id., at 479, 96 S.Ct., at     1644.

Reasoning from Moe, the Yakima Nation and the United States argue that if § 6 no longer provides for plenary State jurisdiction over the owners of reservation fee lands, then it cannot support the exercise of the narrower jurisdiction asserted by Yakima County here. They concede, as they must, that in Moe the Court did not address the Burke Act proviso to § 6, which figures so prominently in Yakima County's analysis. But real property taxes were not at issue in Moe, they argue, making the proviso irrelevant. And because a proviso can only operate within the reach of the principal provision it modifies, cf. United States v. Morrow, 266 U.S. 531, 534-535, 45 S.Ct. 173, 174, 69 L.Ed. 425 (1925), neither the language of § 6 proper nor the proviso can be considered effective after Moe.

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, 56 S.Ct. 349, 352, 80 L.Ed. 351 (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 allottee ") 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 reservation land owned by one or both parties. See Moe, supra, 425 U.S., at 478-479, 96 S.Ct., at 1644.

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 allottee. See 203 U.S., at 147, 149, 27 S.Ct., at 49, 50. 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 the present case not by § 6 of the General Allotment Act, but by § 5 -that the Court found of central significance. As the first basis of its decision, before reaching the "further" point of personal jurisdiction under § 6, id., at 149, 27 S.Ct., at 50, the Goudy court said that, although it was certainly possible for Congress to "grant the power of voluntary sale, while withholding the land from taxation or forced alienation," such an intent would not be presumed unless it was "clearly manifested." Ibid. For "it would seem strange to withdraw [the] protection [of the restriction on alienation] and permit the Indian to dispose of his lands as he pleases, while at the same time releasing it [sic ] from taxation." Ibid. Thus, when § 5 rendered the allotted lands alienable and encumberable, it also rendered them subject to assessment and forced sale for taxes.

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, 25 S.Ct. 506, 49 L.Ed. 848 (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. And when Congress, in 1934, while putting an end to further allotment of reservation land, see 25 U.S.C. § 461, chose not to return allotted land to pre-General Allotment Act status, leaving it fully alienable by the allottees, their heirs and assigns, see Brendale, 492 U.S., at 423, 109 S.Ct., at 3004 (plurality opinion); Hodel v. Irving, 481 U.S. 704, 708-709, 107 S.Ct. 2076, 2079, 95 L.Ed.2d 668 (1987), it chose not to terminate state taxation upon those lands as well.

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 over reservation fee-patented land. But because the jurisdiction is in rem rather than in personam, it is assuredly not Moe-condemned; and it is not impracticable either. The parcel-by-parcel determinations that the State's tax assessor is required to make on the reservation do not differ significantly from those he must make off the reservation, to take account of immunities or exemptions enjoyed, for example, by federally owned, state owned and church owned lands. We cannot resist observing, moreover, that the Tribe's and the United States' favored disposition also produces a "checkerboard," and one that is less readily administered: They would allow state taxation of only those fee lands owned (from time to time) by non-members of the Tribe. See Brief for Yakima Nation 16, n. 8; Brief for United States 14, n. 12. See also Brendale, supra, 492 U.S., at 422-425, 109 S.Ct., at 3003-3005 (plurality opinion) (affirming "checkerboard" with respect to zoning power over reservation fee land).

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 regard each as effective." Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974).

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 Wash.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 Wash. 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.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 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 Justice WHITE's opinion in the case referred, see 492 U.S., at 431, 109 S.Ct., at 3008 (opinion of WHITE, J.), grew out of a long line of cases exploring the very narrow powers reserved to tribes over the conduct of non-Indians within their reservations. See Montana v. United States, 450 U.S. 544, 566, 101 S.Ct. 1245, 1258, 67 L.Ed.2d 493 (1981) (citing cases). Even though a tribe's "inherent sovereign powers . . . do not extend to the activities of nonmembers, . . . [a] tribe may . . . retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." Id., at 565-566, 101 S.Ct., at 1258 (emphasis added). Brendale and its reasoning are not applicable to the present case, which involves not a proposed extension of a tribe's inherent powers, but an asserted restriction of a State's congressionally conferred powers. Moreover, as the Court observed recently in California v. Cabazon Band of Indians, 480 U.S., at 215, n. 7, 107 S.Ct., at 1087, n. 7, we have traditionally followed "a per se rule" "[i]n the special area of state taxation of Indian tribes and tribal members." Though the rule has been most often applied to produce categorical prohibition of state taxation when there has been no "cession of jurisdiction or other federal [legislative permission]," Mescalero Apache Tribe, 411 U.S., at 148, 93 S.Ct., at 1270, we think it also applies to produce categorical allowance of state taxation when it has in fact been authorized by Congress. "Either Congress intended to pre-empt the state taxing authority or it did not. Balancing of interests is not the appropriate gauge for determining validity since it is that very balancing which we have reserved to Congress." Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134, 177, 100 S.Ct. 2069, 2093, 65 L.Ed.2d 10 (1980) (opinion of REHNQUIST, J.). If the Ninth Circuit's Brendale test were the law, litigation would surely engulf the States' annual assessment and taxation process, with the validity of each levy dependent upon a multiplicity of factors that vary from year to year, and from parcel to parcel. For reasons of practicality, as well as text, we adhere to our per se approach.

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 fee-patented 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, 76 S.Ct. 611, 100 L.Ed. 883 (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, 76 S.Ct., at 615-616 (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 § 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 Wash.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 invoke the Burke Act proviso. When we are faced with these two possible constructions, our choice between them must be dictated by a principle deeply rooted in this Court's Indian jurisprudence: "statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit." Montana v. Blackfeet Tribe of Indians, 471 U.S., at 766, 105 S.Ct., at 2403. See also McClanahan v. Arizona State Tax Comm'n, 411 U.S., at 174, 93 S.Ct., at 1263.

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 reservation-Indian 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, 447 U.S., at 154-159, 100 S.Ct., at 2081-2084 (Indian proprietors may be compelled to precollect taxes whose incidence legally falls on non-Indians); Moe, 425 U.S., at 482, 96 S.Ct., at 1645 (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. Accordingly, Washington's excise tax on sales of land cannot be sustained.

*  *   *

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 this case 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.