Washington v. Confederated Tribes of the Colville Indian Reservation

447 U.S. 134, 100 S. Ct. 2069, 65 L. Ed. 2d 10, 1980 U.S. LEXIS 16

Opinions

Mr. Justice White

delivered the opinion of the Court.

In recent Terms we have more than once addressed the intricate problem of state taxation of matters involving Indian tribes and their members. Moe v. Salish & Kootenai Tribes, 425 U. S. 463 (1976); McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164 (1973); Mescalero Apache Tribe v. Jones, 411 U. S. 145 (1973). We return to that vexing area in the present cases. Although a variety of questions are presented, perhaps the most significant is whether an Indian tribe ousts a State from any power to tax. on-reservation purchases by nonmembers of the tribe by imposing its own tax on the transaction or by otherwise earning revenues from the tribal business. A three-judge District Court held for the Tribes. We affirm in part and reverse in part.

I

These cases are here on the State of Washington’s appeal from declaratory judgments and permanent injunctions entered by the District Court at the close of consolidated proceedings in two separate cases that raised related issues. 446 F. Supp. 1339 (ED Wash. 1978). The first case, Confederated Tribes of the Colville Indian Reservation v. State of Washington, Civ. No. 3868, was filed on May 17, 1973, by the Confederated Tribes of the Colville Reservation (Colville), Makah, and Lummi Tribes. The second, United States of America and Confederated Bands and Tribes of the Yakima Indian Nation v. State of Washington, Civ. No. 3909, was commenced on July 18, 1973, by the United States on behalf of the Confederated Bands and Tribes of the Yakima Indian Nation (Yakima Tribe).¹ In each action, the complainants contended that the State’s cigarette and tobacco products taxes² could not lawfully be applied to sales by on-reservation tobacco outlets. They sought declaratory judgments to that effect, as well as injunctions barring the State from taking any measures to enforce the challenged taxes. In particular, the plaintiffs sought to enjoin the State from seizing as contraband untaxed cigarettes destined for delivery to their reservations.³ In the Colville case, the Tribes also chal lenged the State’s assumption of civil and criminal jurisdiction over their reservations and, by amended pleadings, attacked the application of the State’s vehicle excise taxes to Indian-owned vehicles. The Yakima case did not present these latter issues, but it did make a broad attack on the application of the State’s general retail sales tax to on-reservation transactions.

From the time of filing, the two cases pursued closely parallel courses. On November 5, 1973, a temporary restraining order against the State’s enforcement of the taxing statutes was issued in each. App. 13, 147. Thereafter, because the complaints sought injunctive relief against the enforcement of state statutes, a three-judge District Court was convened pursuant to the then applicable requirement of 28 TJ. S. C. §2281 (1970 ed.).⁴ On September 6, 1974, the three-judge court issued preliminary injunctions restraining the State from enforcing the challenged taxes against the Tribes. App. 15, 156. There followed extensive discovery,⁵ after which the parties to each case reached agreement on pretrial orders setting forth facts and clarifying the issues.

Trial was held in both cases on March 28, 1977, and the three-judge court entered its consolidated decision on February 22, 1978. The court concluded (1) that it had jurisdiction as a three-judge court to consider the issues presented; (2) that the state cigarette tax could not be applied to on-reservation transactions because it was pre-empted by the tribal taxing ordinances and constituted an impermissible interference with tribal self-government; (3) that the state retail sales tax could not be applied to tribal cigarette sales, but could be applied to sales of other goods to non-Indians; (4) that the State could not impose certain recordkeeping requirements in connection with various tax-exempt sales; (5) that the State could not impose its vehicle excise taxes upon vehicles owned by the Tribes and their members; and (6) that the State’s assumption of civil and criminal jurisdiction over the Makah and Lummi Tribes was unconstitutional. The court enjoined enforcement of the statutes it had struck down, and the State moved unsuccessfully for a new trial. This appeal followed. We postponed consideration of certain jurisdictional questions to the merits. 440 U. S. 905 (1979).

We begin by sketching the relevant factual background, which is not seriously in dispute.⁶ Thereafter, we explore the jurisdictional questions previously postponed and then turn to the merits.

II

The State of Washington levies a cigarette excise tax of $1.60 per carton,⁷ on the "sale, use, consumption, handling, possession or distribution” of cigarettes within the State. Wash. Rev. Code §82.24.020 (1976). The tax is enforced with tax stamps; and dealers are required to sell only cigarettes to which such stamps have been affixed. § 82.24.030. Indian tribes are permitted to possess unstamped cigarettes for purposes of resale to members of the tribe, but are required by regulation to collect the tax with respect to sales to nonmembers. §82.24.260; Wash. Admin. Code §458-20-192 (1977).⁸ The District Court found, on the basis of its examination of state authorities, that the legal incidence of the tax is on the purchaser in transactions between an Indian seller and a non-Indian buyer.⁹

The State has sought to enforce its cigarette tax by seizing as contraband unstamped cigarettes bound for various tribal reservations. It claims that it is entitled to make such seizures whenever the cigarettes are destined to be sold to non-Indians without affixation of stamps or collection of the tax.

Washington also imposes a sales tax on sales of personal property, including cigarettes. Wash. Rev. Code § 82.08.020 (1976). This tax, which was 5% during the relevant period, is collected from the purchaser by the retailer. § 82.08.050. It does not apply to on-reservation sales to reservation Indians. Wash. Admin. Code § 458-20-192 (1977).

The state motor vehicle excise tax is imposed on “the privilege of using in the state any motor vehicle.” Wash. Rev. Code §82.44.020 (Supp. 1977). The tax is assessed annually, and during the relevant period the amount was 2% of the fair market value of the vehicle in question. In addition, the State imposes an annual tax in the amount of 1% of fair market value on the privilege of using campers and trailers in the State. § 82.50.400 (1976).¹⁰

Each of the Tribes involved in this litigation is recognized by the United States as a sovereign Indian tribe. Each is governed by a business or tribal council approved by the Secretary of the Interior.¹¹ The Colville Tribe has some 5,800 members, of whom about 3,200 live on the Colville Indian Reservation¹² Enrolled members of the Tribe constitute just under half of the reservation’s population. The Lummi Tribe has approximately 2,000 members. Roughly 1,250 of them live on the reservation.¹³ The Makah Tribe has about 1,000 members. Some 900 live on the reservation.¹⁴ The Colville, Lummi, and Makah Reservations are isolated and underdeveloped. Many members reside in mobile homes. Most own at least one automobile which is used both on and off the reservation.

The Yakima Tribe has more than 6,000 members, of whom about 5,000 live on the reservation.¹⁵ Enrolled members, however, constitute less than one-fifth of the reservation’s population. The balance is made up of approximately 1,500 Indians who are not members of the Tribes and more than 20,000 non-Indians.

The Colville, Lummi, and Makah Tribes have nearly identical cigarette sales and taxing schemes. Each Tribe has enacted ordinances pursuant to which it has authorized one or more on-reservation tobacco outlets.¹⁶ These ordinances have been approved by the Secretary of the Interior; and the dealer at each tobacco outlet is a federally licensed Indian trader. All three Tribes use federally restricted tribal funds¹⁷ to purchase cigarettes from out-of-state dealers.¹⁸ The Tribes distribute the cigarettes to the tobacco outlets and collect from the operators of those outlets both the wholesale distribution price and a tax of 40 to 50 cents per carton. The cigarettes remain the property of the Tribe until sale. The taxing ordinances specify that the tax is to be passed on to the ultimate consumer of the cigarettes. From 1972 through 1976, the Colville Tribe realized approximately $266,000 from its cigarette tax; the Lummi Tribe realized $54,000 and the Makah Tribe realized $13,000.

While the Colville, Lummi, and Makah Tribes function as retailers, retaining possession of the cigarettes until their sale to consumers, the Yakima Tribe acts as a wholesaler. It pur chases cigarettes from out-of-state dealers and then sells them to its licensed retailers. The Tribe receives a markup over the wholesale price from those retailers as well as a tax of 22.5 cents per carton. There is no requirement that this tax be added to the selling price. In 1975, the Yakima Tribe derived $278,000 from its cigarette business.

Indian tobacco dealers make a large majority of their sales to non-Indians — residents of nearby communities who journey to the reservation especially to take advantage of the claimed tribal exemption from the state cigarette and sales taxes. The purchaser saves more than a dollar on each carton, and that makes the trip worthwhile. All parties agree that if the State were able to tax sales by Indian smokeshops and eliminate that $1 saving, the stream of non-Indian bargain hunters would dry up. In short, the Indian retailer’s business is to a substantial degree dependent upon his tax-exempt status, and if he loses that status his sales will fall off sharply.

Ill

We first address our jurisdiction to hear the State’s appeal. Two attacks are made upon that jurisdiction, one grounded in the intricacies of the now repealed statute governing three-judge district courts and the other having to do with the timing of the State’s appeal.

Under 28 U. S. C. § 1253, a direct appeal lies to this Court from an order granting or denying an injunction in a suit “required by any Act of Congress to be heard and determined by a district court of three judges.” At the time the Yakima and Colville cases were filed, 28 U. S. C. § 2281 (1970 ed.) provided that:

“An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute . . . shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges. . . ¹⁹

After the State filed its jurisdictional statement in this appeal, the United States moved to dismiss the Yakima case on the ground that it was not one required by § 2281 to be heard by a court of three judges and thus did not fall within the grant of appellate jurisdiction in § 1253. Although directed only to the Yakima case because that is the only one to which the Government is a party, this challenge is quite clearly germane to the Colville case as well.

Section 2281 does not require a three-judge court where a constitutional challenge to a state statute is grounded only in the Supremacy Clause. Swift & Co. v. Wickham, 382 U. S. 111, 128-129 (1965). In addition, § 2281 is not brought into play by constitutional claims that are “insubstantial,” Goosby v. Osser, 409 U. S. 512, 518 (1973). The United States argues that the substantive tax claims raised by these cases fall into one or the other category, and thus failed to trigger § 2281.²⁰ Further, the Government continues, the attacks on the State’s seizure of cigarettes, while perhaps raising genuine Commerce Clause issues, are not properly characterized as challenges to the constitutionality of a state statute. Rather, the Government asserts, they go to the constitutionality of the result obtained by the use of the statute. We find neither contention persuasive.

The original complaints in these actions contended that the state taxes were unconstitutional under the Indian Com merce Clause as well as the Supremacy Clause. Relying primarily upon language in footnote 17 in Moe v. Salish & Kootenai Tribes, 425 U. S., at 481, the United States asserts that the Tribes’ Commerce Clause claims were insubstantial.²¹ But Moe was decided in 1976 — long after a three-judge court was convened to hear these cases — and it is thus apparent that footnote 17 alone cannot be dispositive, whatever its precise thrust. There is language in that footnote, however, which suggests that the insubstantiality of Commerce Clause claims such as those before us flows from Mesoalero Apache Tribe v. Jones, 411 U. S. 145 (1973), and McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164 (1973) — both of which were decided before the present suits were filed.²² We think the United States reads too much into this language. Goosby v. Osser, supra, made it clear that constitutional claims will not lightly be found insubstantial for purposes of § 2281. Indeed, Goosby explicitly states that prior decisions are not sufficient to support a conclusion that certain claims are insubstantial unless those prior decisions “inescapably render the claims frivolous.” 409 U. S., at 518. We cannot say here that the Goosby test has been met. Neither Mescalero nor McClanahan “inescapably render[s] the [Tribes’ Commerce Clause] claims frivolous” because neither holds that that Clause is wholly without force in situations like the present. And even footnote 17 merely rejects the stark and rather unhelpful notion that the Commerce Clause provides an “automatic exemptio[n] ‘as a matter of constitutional law’ ” in such cases. (Emphasis added.) It does not take that Clause entirely out of play in the field of state regulation of Indian affairs.

In addition, it seems quite clear that the Tribes’ attack on the official seizure of cigarettes bound for the reservations also triggers the three-judge requirement of § 2281. The United States concedes that that attack raised Commerce Clause issues, but maintains that the Tribes’ target was not really the state enforcement statutes themselves,, but rather the discretionary official conduct undertaken pursuant to those statutes. We have no quarrel with the proposition that the mere fact that executives seek shelter under various state statutes will not necessarily convert a suit to restrain their lawless behavior into a § 2281 ease, Phillips v. United States, 312 U. S. 246, 248-253 (1941). But this is not a situation in which the only connection with state statutes arises when officials accused of taking various ultra vires actions seek to trace their conduct back to vague statutes granting them broad executive discretion. Here the state officials involved were attempting to enforce the state tax laws by using the tools authorized for such enforcement by the state legislature. They manifested an intention to continue to use those tools for that purpose. And it is those tools, as applied to cigarettes in Indian commerce, which the Tribes chai- lenged.²³ We hold that this suffices to bring these cases within § 2281.

The other jurisdictional question postponed in 1979 is relevant only to the Colville case. It concerns the timeliness under 28 U. S. C. § 2101 (b) of the State’s appeal from the District Court’s resolution of the motor-vehicle-tax and assumption-of-jurisdiction issues. Basically, the problem is this: the notice of appeal on these two issues was filed more than 60 days after the District Court’s decision, but within 60 days of the denial of a state motion for partial new trial — a motion that was not addressed to the motor-vehicle-tax and assumption-of-jurisdiction issues. The question is whether a motion for partial new trial renders nonfinal the District Court’s holding on all issues between the parties, or merely renders nonfinal the disposition of those issues actually raised in the new trial motion. If the former, the State’s notice of appeal on the vehicle-taxes and assumption-of-jurisdiction issues was timely. If the latter, that notice was filed out of time and to that extent the appeal is jurisdictionally time-barred.²⁴

We think that the filing of a motion for partial new trial in these circumstances must have rendered nonfinal the disposition of all issues between the parties. A contrary conclusion would serve no useful purpose. At best it would make little difference save to force future appellants to include in what might otherwise have been narrow motions for partial new trials a blanket request for reconsideration of all issues. And at worst it would be a procedural pitfall, devoid of any sound supporting rationale but capable of occasionally tripping those who failed to insert a line of boilerplate or file a redundant slip of paper. Accordingly, we hold that the appeal of the District Court’s vehicle-tax and assumption-of-jurisdiction holdings is properly before us, and we turn to the merits.

IV

A

In Moe v. Salish & Kootenai Tribes, 425 U. S. 463 (1976), we considered a state taxing scheme remarkably similar to the cigarette and sales²⁵ taxes at issue in the present cases. Montana there sought to impose a cigarette tax on sales by smoke-shops operated by tribal members and located on leased trust lands within the reservation, and sought to require the smoke-shop operators to collect the tax. We upheld the tax, insofar as sales to non-Indians were concerned,²⁶ because its legal incidence fell on the non-Indian purchaser. Hence, “the competitive advantage which the Indian seller doing business on tribal land enjoys over all other cigarette retailers, within and without the reservation, is dependent oh the extent to which the non-Indian purchaser is willing to flout his legal obligation to pay the tax.” Id., at 482 (emphasis in original). We upheld the collection requirement, as applied to purchases by non-Indians, on the ground that it was a “minimal burden” designed to aid the State in collecting an otherwise valid tax. Id., at 483.

Moe establishes several principles relevant to the present cases. The State may sometimes impose a nondiscriminatory tax on non-Indian customers of Indian retailers doing business on the reservation. Such a tax may be valid even if it seriously disadvantages or eliminates the Indian retailer’s business with non-Indians.²⁷ And the State may impose at least “minimal” burdens on the Indian retailer to aid in enforcing and collecting the tax. There is no automatic bar, therefore, to Washington’s extending its tax and collection and record-keeping requirements onto the reservation in the present cases.

Although it narrows the issues in the present cases, Moe does not definitively resolve several important questions. First, unlike in Moe, each of the Tribes imposes its own tax on cigarette sales, and obtains further revenues by participad ing in the cigarette enterprise at the wholesale or retail level. Second, Washington requires the Indian retailer to keep detailed records of exempt and nonexempt sales in addition to simply precollecting the tax. Moe expressed no opinion regarding the “complicated problems” of enforcement that distinctions between exempt and nonexempt purchasers might entail. Id., at 468, n. 6. Third, Moe left unresolved the question of whether a State can tax purchases by on-reservation Indians not members of the governing tribe, as Washington seeks to do in the present cases. Id., at 480-481, n. 16. Finally, unlike in Moe, Washington has seized, and threatens to continue seizing, shipments of unstamped cigarettes en route to the reservations from wholesalers outside the State. We address each of these questions.

B

(1)

At the outset, the State argues that the Colville, Makah, and Lummi Tribes have no power to impose their cigarette taxes on nontribal purchasers.²⁸ We disagree. The power to tax transactions occurring on trust lands and significantly involving a tribe or its members is a fundamental attribute of sovereignty which the tribes retain unless divested of it by federal law or necessary implication of their dependent status. Cf. United States v. Wheeler, 435 U. S. 313 (1978).

The widely held understanding within the Federal Government has always been that federal law to date has not worked a divestiture of Indian taxing power. Executive Branch officials have consistently recognized that Indian tribes possess a broad measure of civil jurisdiction over the activities of non-Indians on Indian reservation lands in which the tribes have a significant interest, 17 Op. Atty. Gen. 134 (1881); 7 Op. Atty. Gen. 174 (1855), including jurisdiction to tax, 23 Op. Atty. Gen. 214 (1900); Powers of Indian Tribes, 55 I. D. 14, 46 (1934). According to the Solicitor of the Department of the Interior:

“Chief among the powers of sovereignty recognized as pertaining to an Indian tribe is the power of taxation. Except where Congress has provided otherwise, this power may be exercised over members of the tribe and over nonmembers, so far as such nonmembers may accept privileges of trade, residence, etc., to which taxes may be attached as conditions.” Ibid, (emphasis added).

Federal courts also have acknowledged tribal power to tax non-Indians entering the reservation to engage in economic activity. Buster v. Wright, 135 F. 947, 950 (CA8 1905), appeal dism’d, 203 U. S. 599 (1906); Iron Crow v. Oglala Sioux Tribe, 231 F. 2d 89 (CA8 1956); cf. Morris v. Hitchcock, 194 U. S. 384, 393 (1904). No federal statute cited to us shows any congressional departure from this view. To the contrary, authority to tax the activities or property of non-Indians taking place or situated on Indian lands, in cases where the tribe has a significant interest in the subject matter, was very probably one of the tribal powers under “existing law” confirmed by § 16 of the Indian Reorganization Act of 1934, 48 Stat. 987, 25 U. S. C. § 476. In these respects the present cases differ sharply from Oliphant v. Suquamish Indian Tribe, 435 U. S. 191 (1978), in which we stressed the shared assumptions of the Executive, Judicial, and Legislative Departments that Indian tribes could not exercise criminal jurisdiction over non-Indians.

Tribal powers are not implicitly divested by virtue of the tribes’ dependent status. This Court has found such a divestiture in cases where the exercise of tribal sovereignty would be inconsistent with the overriding interests of the National Government, as when the tribes seek to engage in foreign relations, alienate their lands to non-Indians without federal consent, or prosecute non-Indians in tribal courts which, do not accord the full protections of the Bill of Rights. See id., at 208-210; United States v. Wheeler, supra, at 326. In the present cases, we can see no overriding federal interest that would necessarily be frustrated by tribal taxation. And even if the State’s interests were implicated by the tribal taxes, a question we need not decide, it must be remembered that tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the States.

(2)

The Tribes contend that their involvement in the operation and taxation of cigarette marketing on the reservation ousts the State from any power to exact its sales and cigarette taxes from nonmembers purchasing cigarettes at tribal smokeshops. The primary argument is economic. It is asserted that smokeshop cigarette sales generate substantial revenues for the Tribes which they expend for essential governmental services, including programs to combat severe poverty and underdevelopment at the reservations. Most cigarette purchasers are outsiders attracted onto the reservations by the bargain prices the smokeshops charge by virtue of their claimed exemption from state taxation. If the State is permitted to impose its taxes, the Tribes will no longer enjoy any competitive advantage vis-a-vis businesses in surrounding areas. Indeed, because the Tribes themselves impose a tax on the transaction, if the state tax is also collected the price charged will necessarily be higher and the Tribes will be placed at a competitive disadvantage as compared to businesses elsewhere. Tribal smokeshops will lose a large percentage of their cigarette sales and the Tribes will forfeit substantial revenues. Because of this economic impact, it is argued, the state taxes are (1) pre-empted by federal statutes regulating Indian affairs; (2) inconsistent with the principle of tribal self-government; and (3) invalid under “negative implications” of the Indian Commerce Clause.

It is painfully apparent that the value marketed by the smokeshops to persons coming from outside is not generated on the reservations by activities in which the Tribes have a significant interest. Cf. Moe v. Salish & Kootenai Tribes, 425 U. S., at 475-481; McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164 (1973). What the smokeshops offer these customers, and what is not available elsewhere, is solely an exemption from state taxation. The Tribes assert the power to create such exemptions by imposing their own taxes or otherwise earning revenues by participating in the reservation enterprises. If this assertion were accepted, the Tribes could impose a nominal tax and open chains of discount stores at reservation borders, selling goods of all descriptions at deep discounts and drawing custom from surrounding areas. We do not believe that principles of federal Indian law, whether stated in terms of pre-emption, tribal self-government, or otherwise, authorize Indian tribes thus to market an exemption from state taxation to persons who would normally do their business elsewhere.

The federal statutes cited to us, even when given the broadest reading to which they are fairly susceptible, cannot be said to pre-empt Washington’s sales and cigarette taxes. The Indian Reorganization Act of 1934, 48 Stat. 984, 25 U. S. C. § 461 et seq., the ndian Financing Act of 1974, 88 Stat. 77, 25 U. S. C. § 1451 et seq., and the Indian Self-Determination and Education Assistance Act of 1975, 88 Stat. 2203, 25 U. S. C. § 450 et seq., evidence to varying degrees a congressional concern with fostering .tribal self-government and economic development, but none goes so far as to grant tribal enterprises selling goods to nonmembers an artificial competitive advantage over all other businesses in a State. The Indian traders statutes, 25 U. S. C. § 261 et seq., incorporate a congressional desire comprehensively to regulate businesses selling goods to reservation Indians for cash or exchange, see Warren Trading Post Co. v. Arizona Tax Comm’n, 380 U. S. 685 (1965), but no similar intent is evident with respect to sales by Indians to nonmembers of the Tribe. The Washington Enabling Act, 25 Stat. 676, reflects an intent that the State not tax reservation lands or income derived therefrom, but the present taxes are assessed against nonmembers of the Tribes and concern transactions in personalty with no substantial connection to reservation lands. The relevant treaties, Treaty of Point Elliott, 12 Stat. 927 (1855) (Lummi Tribe); Treaty with the Makah Tribe, 12 Stat. 939 (1855); Treaty with the Yakimas, 12 Stat. 951 (1855), can be read to recognize inherent tribal power to exclude non-Indians or impose conditions on those permitted to enter; but purchasers entering the reservation are not the State’s agents and any agreements which they might make cannot bind it. Finally, although the Tribes themselves could perhaps pre-empt state taxation through the exercise of properly delegated federal power to do so, cf. Fisher v. District Court, 424 U. S. 382, 390 (1976) (per curiam); United States v. Mazurie, 419 U. S. 544 (1975), we do not infer from the mere fact of federal approval of the Indian taxing ordinances, or from the fact that the Tribes exercise congressionally sanctioned powers of self-government, that Congress has delegated the far-reaching authority to pre-empt valid state sales and cigarette taxes otherwise collectible from nonmembers of the Tribe.

Washington does not infringe the right of reservation Indians to “make their own laws and be ruled by them,” Williams v. Lee, 358 U. S. 217, 220 (1959), merely because the result of imposing its taxes will be to deprive the Tribes of revenues which they currently are receiving. The principle of tribal self-government, grounded in notions of inherent sovereignty and in congressional policies, seeks an accommodation between the interests of the Tribes and the Federal Government, on the one hand, and those of the State, on the other. McClanahan v. Arizona State Tax Comm’n, supra, at 179. While the Tribes do have an interest in raising revenues for essential governmental programs, that interest, is strongest when the revenues are derived from value gen erated on the reservation by activities involving the Tribes and when the taxpayer is the recipient of tribal services. The State also has a legitimate governmental interest in raising revenues, and that interest is likewise strongest when the tax is directed at off-reservation value and when the taxpayer is the recipient of state services. As we have already noted, Washington’s taxes are reasonably designed to prevent the Tribes from marketing their tax exemption to nonmembers who do not receive significant tribal services and who would otherwise purchase their cigarettes outside the reservations.

It can no longer be seriously argued that the Indian Commerce Clause, of its own force, automatically bars all state taxation of matters significantly touching the political and economic interests of the Tribes. See Moe v. Salish & Kootenai Tribes, supra, at 481, n. 17. That Clause may have a more limited role to play in preventing undue discrimination against, or burdens on, Indian commerce. But Washington’s taxes are applied in a nondiscriminatory manner to all transactions within the State. And although the result of these taxes will be to lessen or eliminate tribal commerce with nonmembers, that market existed in the first place only because of a claimed exemption from these very taxes. The taxes under consideration do not burden commerce that would exist on the reservations without respect to the tax exemption.

We cannot fault the State for not giving credit on the amount of tribal taxes paid. It is argued that if a credit is not given, the tribal retailers will actually be placed at a competitive disadvantage, as compared to retailers elsewhere, due to the overlapping impact of tribal and state taxation. While this argument is not without force, we find that the Tribes have failed to demonstrate that business at the smokeshops would be significantly reduced by a state tax without a credit as compared to a state tax with a credit. With a credit, prices at the smokeshops would presumably be roughly the same as those off the reservation, assuming that the Indian enterprises are operated at an efficiency similar to that of businesses elsewhere; without a credit, prices at smokeshops would exceed those off the reservation by the amount of the tribal taxes, about 40 to 50 cents per carton for the Lummi, Makah, and Colville Tribes, and 22.5 cents per carton for the Yakima Tribe. It is evident that even if credit were given, the bulk of the smokeshops’ present business would still be eliminated, since nonresidents of the reservation could purchase cigarettes at the same price and with greater convenience nearer their homes and would have no incentive to travel to the smokeshops for bargain purchases as they do now. Members of the Tribes, of course, would be indifferent to whether a credit were given because under Moe they are immune from any state tax, whether credited or not. Some nonmembers of the Tribes living on the reservations would possibly travel elsewhere to purchase cigarettes if a state credit were not given, and smokeshop business would to this extent be decreased as compared to the situation under a credited tax. But the Tribes have not shown whether or to what extent this would be the case, and we cannot infer on the present record that by failing to give a credit Washington imper-missibly taxes reservation value by deterring sales that, if credit were given, would occur on the reservation because of its location and because of the efforts of the Tribes in importing and marketing the cigarettes.

A second asserted ground for the invalidity of the state taxes is that they somehow conflict with the Tribes’ cigarette ordinances and thereby are subject to pre-emption or contravene the principle of tribal self-government. This argument need not detain us. There is no direct conflict between the state and tribal schemes, since each government is free to impose its taxes without ousting the other. Although taxes can be used for distributive or regulatory purposes, as well as for raising revenue, we see no nonrevenue purposes to the tribal taxes at issue in these cases, and, as already noted, we perceive no intent on the part of Congress to authorize the Tribes to pre-empt otherwise valid state taxes. Other provi sions of the tribal ordinances do comprehensively regulate the marketing of cigarettes by the tribal enterprises; but the State does not interfere with the Tribes’ power to regulate tribal enterprises when it simply imposes its tax on sales to nonmembers. Hence, we perceive no conflict between state and tribal law warranting invalidation of the State’s taxes.

C

We recognized in Moe that if a State’s tax is valid, the State may impose at least minimal burdens on Indian businesses to aid in collecting and enforcing that tax. The simple collection burden imposed by Washington’s cigarette tax on tribal smokeshops is legally indistinguishable from the collection burden upheld in Moe, and we therefore hold that the State may validly require the tribal smokeshops to affix tax stamps purchased from the State to individual packages of cigarettes prior to the time of sale to nonmembers of the Tribe.

The state sales tax scheme requires smokeshop operators to keep detailed records of both taxable and nontaxable transactions. The operator must record the number and dollar volume of taxable sales to nonmembers of the Tribe. With respect to nontaxable sales, the operator must record and retain for state inspection the names of all Indian purchasers, their tribal affiliations, the Indian reservations within which sales are made, and. the dollar amount and dates of sales. In addition, unless the Indian purchaser is personally known to the operator he must present a tribal identification card.

The District Court struck down all recordkeeping requirements with respect to cigarette sales, because it found that no cigarette sales were taxable. With respect to sales of items other than cigarettes, the District Court found no record evidence “as to whether the record keeping requirements, as promulgated, are or are not reasonably necessary to ensure payment of lawful taxes.” 446 F. Supp., at 1373. The District Court upheld the requirements insofar as they pertained to taxable sales, but struck them down with respect to non taxable sales on the ground that the State had not met its burden of showing that the regulation was reasonably necessary to ensure payment of taxes which it had power to impose.

Contrary to the District Court, we find the State’s record-keeping requirements valid in toto. The Tribes, and not the State as the District Court supposed, bear the burden of showing that the recordkeeping requirements which they are challenging are invalid. The District Court made the factual finding, which we accept, that there was no evidence of record on this question. Applying the correct burden of proof to the District Court’s finding, we hold that the Tribes have failed to demonstrate that the State’s recordkeeping requirements for exempt sales are not reasonably necessary as a means of preventing fraudulent transactions.

D

The State asserts the power to apply its sales and cigarette taxes to Indians resident on the reservation but not enrolled in the governing Tribe. The issue arose in the Yakima case in the wake of the District Court’s determination that the state retail sales tax could be applied to the purchase by non- ' Indians of goods other than cigarettes. It was, of course, quite clear after Moe and McClanahan that the sales tax could not be applied to similar purchases by tribal members, but the State argued that this exemption should not extend to nonmembers of the Tribe. Relying in part on the lower court opinion in Moe, Confederated Salish & Kootenai Tribes v. Moe, 392 F. Supp. 1297, 1312 (Mont. 1975) (three-judge court), the District Court rejected the contention. 446 F. Supp., at 1371-1372. This Court did not reach the question in Moe because Montana failed to raise it on appeal. We do reach it now, and we reverse.

Federal statutes, even given the broadest reading to which they are reasonably susceptible, cannot be said to pre-empt Washington’s power to impose its taxes on Indians not members of the Tribe. We do not so read the Major Crimes Act, 18 U. S. C. § 1153, which at most provides for federal-court jurisdiction over crimes committed by Indians on another Tribe’s reservation. Cf. United States v. Antelope, 430 U. S. 641, 646-647, n. 7 (1977). Similarly, the mere fact that nonmembers resident on the reservation come within the definition of “Indian” for purposes of the Indian Reorganization Act of 1934, 48 Stat. 988, 25 U. S. C. § 479, does not demonstrate a congressional intent to exempt such Indians from state taxation.

Nor would the imposition of Washington’s tax on these purchasers contravene the principle of tribal self-government, for the simple reason that nonmembers are not constituents of the governing Tribe. For most practical purposes those Indians stand on the same footing as non-Indians resident on the reservation. There is no evidence that nonmembers have a say in tribal affairs or significantly share in tribal disbursements. We find, therefore, that the State’s interest in taxing these purchasers outweighs any tribal interest that may exist in preventing the State from imposing its taxes.

E

Finally, the State contends that it has the power to seize unstamped cigarettes as contraband if the Tribes do not cooperate in collecting the State’s taxes. The State in fact seized shipments traveling to the reservations from out-of-state wholesalers before being enjoined from doing so by the District Court, and it has declared its intention to continue such seizures if successful in this litigation. The Tribes contest this power, noting that because sales by wholesalers to the tribal businesses are concededly exempt from state taxation, no state tax is due while the cigarettes are in transit.

We find that Washington’s interest in enforcing its valid taxes is sufficient to justify these seizures. Although the cigarettes in transit are as yet exempt from state taxation, they are not immune from seizure when the Tribes, as here, have refused to fulfill collection and remittance obligations which the State has validly imposed. It is significant that these seizures take place outside the reservation, in locations where state power over Indian affairs is considerably more expansive than it is within reservation boundaries. Cf. Mescolero Apache Tribe v. Jones, 411 U. S. 145 (1973). By seizing cigarettes en route to the reservation, the State polices against wholesale evasion of its own valid taxes without unnecessarily intruding on core tribal interests.

Washington further contends that it may enter onto the reservations, seize stocks of cigarettes which are intended for sale to nonmembers, and sell these stocks in order to obtain payment of the taxes due. However, this question, which obviously is considerably different from the preceding one, is not properly before us. The record does not disclose that the State has ever entered the reservations to seize cigarettes because of the Tribes’ failure to collect the taxes due on sales to nonmembers, or ever threatened to do so except in papers filed in this litigation. Indeed, the State itself concedes that “it may very well be that this Court will find it unnecessary to rule on this aspect of the appeal.” Brief for Appellants in No. 78-630, p. 110. We therefore express no opinion on the matter.

V

The next issue concerns the challenge in the Colville case to the Washington motor vehicle and mobile home, camper and travel trailer taxes. Although not identical, these taxes are quite similar. Each is denominated an excise tax for the “privilege” of using the covered vehicle in the State, each is assessed annually at a certain percentage of fair market value, and each is sought to be imposed upon vehicles owned by the Tribe or its members and used both on and off the reservation.²⁹

Once again, our departure point is Moe. There we held that Montana’s personal property tax could not validly be applied to motor vehicles owned by tribal members who resided on the reservation. 425 U. S., at 480-481. The vehicles Montana attempted to tax were apparently used both on and off the reservation,³⁰ and the tax was assessed annually at a percentage of market value of the vehicles in question. Thus, the only difference between the taxes now before us and the one struck down in Moe is that these are called excise taxes and imposed for the privilege of using the vehicle in the State, while the Montana tax was labeled a personal property tax. The State asserts that this difference mandates a different result. In Moe, it argues, the District Court concluded that the taxable event was “the ownership of a motor vehicle as of January 1 of each year,” ³¹ and that event took place on the reservation. Accordingly, under McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164 (1973), Montana was without authority to impose its tax. In the present case, the State continues, the taxable event is the use within the State of the vehicle in question. Thus, we are told, the McClana-han principle is inapplicable and the tax should be upheld under Mescalero Apache Tribe v. Jones, swpra.

We do not think Moe and McClanahan can be this easily circumvented. While Washington may well be free to levy a tax on the use outside the reservation' of Indian-owned .vehicles, it may not under that rubric accomplish what Moe held was prohibited. Had Washington tailored its tax to the amount of actual off-reservation use, or otherwise varied some thing more than mere nomenclature, this might be a different case. But it has not done so, and we decline to treat the case as if it had.

VI

Finally, we come to the challenge by the Colville, Lummi, and Makah Tribes to the State’s assumption of civil and criminal jurisdiction over them. The District Court found that assumption unlawful as regards the Makah and Lummi Reservations and lawful as regards the Colville Reservation. 446- F. Supp., at 1366-1367. The State challenges the former findings.

All parties apparently recognize that this issue is controlled by the intervening decision in the State’s favor in Washington v. Yakima Indian Nation, 439 U. S. 463 (1979). There a pattern of jurisdiction identical to those created on the Makah and Lummi Reservations was upheld, and the holding of the Court of Appeals for the Ninth Circuit on which the District Court in the present case relied for its conclusion that such patterns are unconstitutional was reversed. We therefore uphold the State’s assumption of jurisdiction over the Makah and Lummi Reservations.³² Accordingly, the judgments of the District Court are

Reversed in part and affirmed in part.

Footnotes

1

On April 24, 1974, the Yakima Tribe intervened as a plaintiff in the United States’ case. Its complaint appears at App. 149.

2

The state tobacco products tax, which is imposed on cigars and pipe tobacco pursuant to Wash. Rev. Code, ch. 82.26 (1976), is not before us. The District Court concluded that that tax fell upon the Indian sellers and not upon the non-Indian purchasers. 446 F. Supp. 1339, 1355, n. 15 (ED Wash. 1978). The State did not appeal from this holding, Brief for Appellants in No. 78-630, p. 55, n. 40, and all parties agree that in consequence the tobacco products tax may not be imposed on sales by tribal dealers.

3

The Tribes also sought damages for interference with their cigarette businesses. The damages issues in both cases were remanded by the three-judge court to a single District Judge. 446 F. Supp., at 1367, 1373.

4

Although § 2281 was subsequently repealed, Act of Aug. 12, 1976; § 1, 90 Stat. 1119, it was expressly left in place for cases which, like those before us, were pending on the date of repeal. § 7, 90 Stat. 1120. We consider issues concerning the applicability of the former § 2281 to these cases in Part III, infra.

5

Proceedings in both cases were stayed for several months, however, pending this Court’s decisions in Moe v. Salish & Kootenai Tribes, 425 U. S. 463 (1976), and Bryan v. Itasca County, 426 U. S. 373 (1976).

6

Our statement of the factual background is drawn in large measure from the opinion of the District Court, 446 F. Supp., at 1345-1349, 1368— 1370.

7

The cigarette excise tax is imposed pursuant to Wash. Rev. Code §82.24.020 (1976). That provision authorizes a levy of 6.5 mills per cigarette. The tax is brought up to its full amount by Wash. Rev. Code §§28A.47.440 and 73.32.130 (1976), which add 0.5 mill and 1 mill respectively.

8

Initially the State asserted that it could tax all tribal cigarette sales, regardless of whether the buyer was Indian or non-Indian. Its theory was that Pub. L. 280, 67 Stat. 588, granted it general authority to tax reservation Indians. After this theory was rejected in Bryan v. Itasca County, supra, the State abandoned any claim of authority to tax sales to tribal members. Sea 446 F. Supp., at 1346, n. 4.

9

Id., at 1352-1355. Essentially, the court accepted the State’s contention that the tax falls upon the first event which may constitutionally be subjected to it. In the case of sales by non-Indians to non-Indians, this means the incidence of the tax is on the seller, or perhaps on someone even further up the chain of distribution, because that person is the one who first sells, uses, consumes, handles, possesses, or distributes the products. But where the wholesaler or retailer is an Indian on whom the tax cannot be imposed under McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164 (1973), the first taxable event is the use, consumption, or possession by the non-Indian purchaser. Hence, the District Court concluded, the tax falls on that purchaser. We accept this conclusion.

10

The same chapter provided for an excise tax on mobile homes. Initially, the State sought to apply this tax to Indians as well; but after Bryan v. Itasca County, 426 U. S. 373 (1976), and Moe v. Salish & Kootenai Tribes, 425 U. S. 463 (1976), it no longer attempts to do so. 446 F. Supp., at 1365.

11

The Makah Tribe is organized under the Indian Reorganization Act of 1934, 48 Stat. 984, 25 U. S. C. § 461 et seq. While the Lummi and Colville Tribes do have federally-approved constitutions, they voted in 1935 not to come under that Act. 446 F. Supp., at 1345, n. 2.

12

The Colville Reservation encompasses 1.3 million acres in the northeastern section of Washington. It was established by Executive Order on July 2, 1872. 1 C. Kappler, Indian Affairs, Laws and Treaties 916 (2d ed. 1904).

13

The Lummi Reservation encompasses 7, 319 acres, most of them on a peninsula near Bellingham, Wash. It was established by the Treaty of Point Elliott in 1855. 12 Stat. 927.

14

The Makah Reservation encompasses 28,000 acres at the northwest tip of the Olympic Peninsula. It too was established by treaty in 1855. Treaty with the Makah Tribe, 12 Stat. 939. Roughly 63% of its inhabitants are enrolled members of the Tribe.

15

The Yakima Indian Reservation was set aside for the Tribe by treaty ratified March 8, 1859. Treaty with the Yakimas, 12 Stat. 951. It encompasses about 1.4 million acres in south-central Washington.

16

The tribal ordinances regulating the sale, distribution, and taxing of cigarettes are set forth at App. 104, 118, and 111.

17

The funds are maintained in individual accounts in the Bureau of Indian Affairs agency serving the reservation pursuant to 25 CFR Part 104 (1978). App. 32-34.

18

These out-of-state wholesalers are also federally licensed Indian traders.

19

The repeal of this provision in 1976 does not affect its application to these eases. See n. 4, supra.

20

As the Government recognizes, its position in this regard is somewhat anomalous since it was the United States which initially requested a three-judge court in the Yakima case. App. 145. At that time the Government seemed to have no doubt that it sought to enjoin the enforcement of a state statute on grounds of its uneonstitutionality within the meaning of § 2281.

21

The District Court seems to have found this contention persuasive, 446 F. Supp., at 1350, although it addressed it only briefly. Presumably it saw no need to explore the matter more fully since it was confident that the three-judge requirement had in any event been satisfied by the Tribes’ challenges to the State’s enforcement measures. Id,., at 1350-1351.

22

Footnote 17 in its entirety reads as follows:

“It is thus clear that the basis for the invalidity of these taxing measures, which we have found to be inconsistent with existing federal statutes, is the Supremacy Clause, U. S. Const., Art. VI, cl. 2, and not any automatic exemptions ‘as a matter of constitutional law’ either under the Commerce Clause or the intergovernmental-immunity doctrine as laid down originally in M’Culloch v. Maryland, 4 Wheat. 316 (1819). If so, then the basis for convening a three-judge court in this type of case has effectively disappeared, for this Court has expressly held that attacks on state statutes raising only Supremacy Clause invalidity do not fall within the scope of 28 U. S. C. § 2281. Swift & Co. v. Wickham, 382 U. S. 111 (1965). Here, however, the District Court properly convened a § 2281 court, because at the outset the Tribe’s attack asserted unconstitutionality of these statutes under the Commerce Clause, a not insubstantial claim since Mescalero and McClanahan had not yet been decided. See Goosby v. Osser, 409 U. S. 512 (1973).” 425 U. S., at 481.

23

See Turner v. Fouche, 396 U. S. 346, 354, n. 10 (1970). See also Department of Employment v. United States, 385 U. S. 355 (1966); Query v. United States, 316 U. S. 486, 490 (1942).

24

The actual chronology was as follows: On May 10, 1978, the District Court entered its final order. On May 22, the State filed a motion for partial new trial on the cigarette and sales tax issues. On July 12, while that motion was pending, the State filed a notice of appeal raising the motor-vehicle-excise-tax and assumption-of-jurisdiction issues. On July 17, the motion for partial new trial was denied; and on August 14, the State filed a notice of appeal on the sales and cigarette tax issues. On September 8, the State filed an amended notice of appeal raising all relevant issues. The July 12 notice of appeal was filed more than 60 days after the original District Court order. Accordingly, under 28 TJ. S. C. § 2101 (b), it was out of time. The notice of August 14 and the amended notice of September 8, however, were filed within 60 days of the District Court’s denial of the motion. for partial new trial. It seems clear that the filing of that motion rendered nonfinal the disposition of all covered issues — if not, one seeking a partial new trial would have to jeopardize Ms right to appeal. Communist Party of Indiana v. Whitcomb, 414 U. S. 441, 445-446 (1974); Department of Banking v. Pink, 317 U. S. 264, 266 (1942). Thus, the only remaining question is whether the motion for partial new trial also suspended the finality of the District Court’s disposition of issues not covered by that motion.

25

We are here generally concerned only with the application of Washington’s retail sales tax to cigarette sales. The District Court upheld the sales tax as applied to sales of other goods to non-Indians, and the Tribes do not contest that holding. We do, however, consider the question of noncigarette sales when we discuss (1) whether Washington can tax purchases by Indians not members of the governing Tribe, and (2) whether Washington’s recordkeeping requirements are valid.

26

We struck down the tax as applied to sales to Indians. 425 U. S., at 475-481.

27

The United States reads Moe too parsimoniously in asserting its inapplicability to cases, such as the present ones, in which the economic impact on tribal retailers is particularly severe. Moe makes clear that the Tribes have no vested right to a certain volume of sales to non-Indians, or indeed to any such sales at all.

28

The incidence of the Colville, Lummi, and Makah taxes falls on the cigarette purchaser, since the tribal ordinances specify that the tax is to be passed on to the ultimate consumer. The Yakima ordinance, in contrast, does not require that the tax be added to the selling price, and the incidence of the Yakima tax therefore does not fall on the purchaser. The State’s challenge is directed only at the Colville, Lummi, and Makah taxes.

29

In, the wake of McClanahan v. Arizona State Tax Comm’n and Moe, the State does not claim that it can impose these taxes upon vehicles used wholly within the reservation. Brief for Appellants in No. 78-630, p. 111, and n. 77.

30

Moe did not focus upon vehicle use at all. The District Court opinion in that ease, however, indicates that some of the vehicles to which Montana sought to apply its tax were used both on and off the reservation. Confederated Salish and Kootenai Tribes v. Montana, 392 F. Supp. 1325, 1328-1329 (Mont. 1975) (three-judge court) (Smith, J., concurring in part and dissenting in part).

31

Id., at 1327, citing the Montana statute, Mont. Rev. Codes Ann. §84.406 (2) (Supp. 1974).

32

In No. 78-60, Confederated Tribes of the Colville Indian Reservation et al. v. Washington et al., which is pending on appeal, the Colville Tribe appeals from so much of the District Court’s judgment as reflects the holding that Washington’s assumption of total jurisdiction over that Tribe’s reservation was lawful. See 446 F. Supp., at 1366-1367. The Colville Tribe challenges that holding on grounds (1) that Washington could not assume jurisdiction without amending its Constitution and (2) that the assumption of total jurisdiction over only selected reservations violates the Equal Protection Clause. Washington v. Yakima Indian Nation, 439 U. S. 463 (1979), disposes of the first contention, id., at 493, and makes clear that the second must fail if the assumption of jurisdiction is rationally-related to some valid state purpose, id., at 500-502. We find the pattern of jurisdiction in the present case rational: The Colville Tribe consented in 1965 to the State’s assumption of jurisdiction over it, and the State has assumed total jurisdiction only over tribes that have so consented. The presence or absence of tribal consent is a rational basis for distinguishing among reservations, and there is thus no constitutional infirmity. Accordingly, the judgment is in this respect affirmed.