Denied.
Dissenting opinion by Mr. Justice DOUGLAS with whom Mr. Justice WHITE concurs:
The Supreme Court of Washington held in a 6-3 decision that the State lacks power to apply a local zoning ordinance for control of garbage dumps and sewage landfills to respondent, Disposal Company, a non-Indian lessee of two parcels of lands within the Tulalip Tribes Reservation.
One section of the Act relevant to our problem-now codified as 28 U.S.C. § 1360-gave civil jurisdiction over Indians and Indian lands to California, Minnesota, Nebraska, Oregon, and Wisconsin with the following proviso:
Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property * * * belonging to any Indian or any Indian tribe * * * that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute * * *.'
The federal question arises in the following manner. By Public Law 280, c. 505, § 7, 67 Stat. 590, Congress gave consent 'to any other State not having jurisdiction with respect to criminal and civil offenses or civil causes of action [involving Indians and Indian lands], or with respect to both, as provided for in this Act, to assume jurisdiction * * * by affirmative legislative action * * *.' (Italics added.)
Pursuant to Public Law 280, the State of Washington undertook to assume jurisdiction over Indians and their lands upon their consent. In the state enactment, jurisdiction was limited by Wash.Rev.Code § 37.12.060, which incorporated verbatim the restrictions quoted above that are found in 28 U.S.C. § 1360.
In the case before us the Washington Supreme Court held that the Tulalip Tribes' lands in issue were either held in trust or subject to a restraint against alienation imposed by 25 U.S.C. §§ 403a and 403a-2, which limit the length of leases made by the Tulalip Tribes and require approval of the Secretary of the Interior of leasing practices. The majority then held that under both 28 U.S.C. § 1360 and the state statute incorporating language from § 1360, zoning regulations were 'encumbrances' on Indian lands because they limit the use thereof. One Washington state court decision, our decision in Squire v. Capoeman, 351 U.S. 1, 76 S.Ct. 611, 100 L.Ed. 883, and opinions of the Department of Interior were relied on by the majority in formulating this definition of 'encumbrance.' The majority also held that since 25 U.S.C. §§ 403a, 403b, and 415 authorized the Tulalip Tribes to make leases, their non-Indian lessees were entitled to the benefit of the restriction on state jurisdiction. Otherwise, reasoned the majority, the State would be interfering with the Indians' right to make leases, and the State could not accomplish indirectly-by subjecting respondent Disposal Company to zoning regulations-what it was prohibited to do by acting directly on the Indians. For this proposition one South Dakota decision and our decision in United States v. Allegheny County, 322 U.S. 174, 64 S.Ct. 908, 88 L.Ed. 1209, were relied on.
The dissent was of the view that a zoning regulation directed at protecting public health and welfare was not an 'encumbrance' as that term is used in § 1360 and the state equivalent. In that view, Indian activities which directly injure the citizenry of the State at large, or reasonably appear to do so, should be subjected to state control. Otherwise, state programs to check stagnation of water supply and pollution of the air would be frustrated. The dissent thought that the term 'encumbrance' in § 1360 should be construed in conjunction with 25 U.S.C. § 231, which provides, inter alia, that the Secretary of Interior permit state agents to enter on Indian lands to enforce sanitation and quarantine regulations. Finally, said the dissent, the non-Indian lessee could not rely on any immunity from state regulations which the Indians themselves might enjoy. Oklahoma Tax Comm'n v. Texas Co., 336 U.S. 342, 69 S.Ct. 561, 93 L.Ed. 721, where a non-Indian lessee of mineral rights on Indian lands was held not immune from state taxation of gross production, was cited.