Page:United States Reports 502 OCT. TERM 1991.pdf/435

 502us2$21K 08-19-96 17:39:52 PAGES OPINPGT

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

277

Opinion of Blackmun, J.

into the final status of a nonward dependent upon the States and counties.” Hearings, at 18. I am mystified how this Court, sifting through the wreckage of the Dawes Act, finds any “clearly retained remnant,” ante, at 265, justifying further erosions—through tax foreclosure actions as in this litigation—to the landholdings of the Indian people.6 The majority deems any concerns for tribal selfdetermination to be a “great exaggeration.” Ante, at 265. I myself, however, am “far from convinced that when a State imposes taxes upon reservation members without their consent, its action can be reconciled with tribal self-determination.” McClanahan v. Arizona State Tax Comm’n, 411 U. S., at 179. The majority concludes that, as a practical matter, “mere” property taxes are less disruptive of tribal integrity than cigarette sales taxes and certain personal property taxes (as on automobiles) that were at issue in Moe. Ante, at 264–265. I cannot agree that paying a few more pennies for cigarettes or a tax on some personal property is more a threat to tribal integrity and selfdetermination than foreclosing upon and seizing tribal lands. 6 The Court concludes that Congress’ decision in the Indian Reorganization Act not to reimpose restraints on alienation of land already patented suggests that Congress also “chose not to terminate state taxation upon those lands as well.” Ante, at 264. In 1934, when the process of allotment was halted, 246,569 assignments had been made nationwide, totaling nearly 41 million acres (slightly less than the entire acreage of the State of Washington). Indian Heirship Land Survey, Memorandum of the Chairman to the Senate Committee on Interior and Insular Affairs, 86th Cong., 2d Sess., pt. I, p. 2 (Comm. Print 1960). In my judgment, Congress’ choice not to effect a taking of this magnitude does not reflect an intent to continue other policies contributing to the loss of Indian lands. If anything, Congress’ intent is to be gauged not by negative implication from what it failed to do, but from provisions in the Act that stop further allotment, that freeze in trust already allotted-but-not-yet-patented land, and that affirmatively authorize repurchases of Indian lands to rebuild the tribal land base. See generally 25 U. S. C. §§ 461–465.