Page:United States Reports 502 OCT. TERM 1991.pdf/429

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Cite as: 502 U. S. 251 (1992)

271

Opinion of Blackmun, J.

federal policies intended to preserve the integrity of our Nation’s Indian tribes. As I see it, the Court errs in three ways in arriving at its finding of “unmistakably clear” intent to allow taxation of Indian-owned fee-patented lands. First, it divines “unmistakably clear” intent from a proviso, which by its very terms applies only to land patented prematurely (and not to all patented land) and which is now orphaned, its antecedent principal clause no longer having any force of law. Second, acting on its own intuition that it would be “strange” for land to be alienable and encumberable yet not taxable, the Court infers “unmistakably clear” intent of Congress from an otherwise irrelevant statutory section that itself makes no mention of taxation of fee lands. Finally, misapprehending the nature of federal pre-emption of state laws taxing the Indians, the Court mistakenly assumes that it cannot give any effect to the many complex intervening statutes reflecting a complete turnabout in federal Indian policy— now aimed at preserving tribal integrity and the Indian land base—since enactment at the turn of the century of the statutory provisions upon which the Court relies. These current and now longstanding federal policies weigh decisively against the Court’s finding that Congress has intended the States to tax—and, as in these cases, to foreclose upon— Indian-held lands. 1. The majority concedes that the principal clause of § 6 of the Dawes Act, which subjected allottees to the plenary civil and criminal jurisdiction of the States, can “no longer be read to provide. . . plenary jurisdiction even as to those Indians residing on reservation fee lands.” Ante, at 261. See also DeCoteau v. District County Court, 420 U. S. 425, 427, n. 2 (1975) (recognizing that statutory definition of “Indian country,” which includes all reservation land “notwithstanding the issuance of any patent,” 18 U. S. C. § 1151, demarcates general boundary of civil jurisdiction of States); McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 177–178, and n. 17 (1973) (discussing more recent congressional enact-