dissenting:

In Oklahoma Tax Comm’n v. Sac & Fox Nation, — U.S. ——, —, 113 S.Ct. 1985, 1993 , 124 L.Ed.2d 30 (1993), Justice O’Connor, writing for a unanimous court, stated:

While Sac & Fox Nation focused on income and motor vehicle taxes, its broad, strong language reiterates our duty to find explicit congressional permission whenever we allow state taxation. The opinion filed today concludes that County of Yakima v. Yakima Indian Nation, — U.S. —, 112 S.Ct. 683 , 116 L.Ed.2d 687 (1992) holds that if the Lummi land is alienable, it is taxable. I believe this analysis is incomplete.

As a threshold matter, certain canons of construction apply in the area of federal Indian law. The Supreme Court has stated:

Yakima Indian Nation , — U.S. at —, 112 S.Ct. at 689 (emphasis added).

*1360 The crux of the analysis in the opinion filed today can be succinctly stated in three steps. First, a state cannot tax reservation lands unless Congress has made this intention unmistakably clear. Second, Yakima Indian Nation found such clarity in the General Allotment Act (“GAA”) sections on alienability. Third, Yakima Indian Nation holds that where Congress provides that Indian lands are alienable, Congress has made it clear that the land is taxable.

This legal interpretation misses the point. The land involved in this case is not GAA-patented land. We need to find the unmistakably clear intent of Congress to allow taxation on these particular lands, lands which do not come under the GAA. The Supreme Court in Yakima Indian Nation did not ignore how the land was allotted; the method of land allotment is crucial in federal Indian law. Accordingly, Yakima Indian Nation does not answer the crucial question in this case: Has Congress made it unmistakably clear that these lands may be taxed by the state?

There is an appealing simplicity to the proposition that alienable land is taxable land. Unfortunately, federal Indian law does not have a simple history; no amount of wishing will give it a simple future. Yakima Indian Nation is a case of statutory interpretation which presents a detailed analysis of the language and structure of the GAA as it applies to allotments and patents issued under its particular provisions. Through its analysis, the Supreme Court found Congress’ unmistakably clear intent to permit state taxation of reservation fee lands allotted under the Act.

The same type of analysis must be applied to an allotment or assignment made under other statutory authority. We need to look to the Treaty of Point Elliott and 25 U.S.C. § 372 , the statutory authority underlying these patents, to decide this case. Because that analysis has not been undertaken, I respectfully dissent.

ORDER

Dee. 23, 1993.

The opinion filed October 1, 1993, slip op. 11081, and appearing at 5 F.3d 1355 (9th Cir.1993), is amended as follows:

With these amendments, Judges Wright and Leavy have voted to deny the petition for rehearing. Judge Beezer would grant the rehearing petition. Judges Beezer and Leavy have voted to reject the suggestion for rehearing en banc.

The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed.R.App.P. 35

The petition for rehearing is DENIED and the suggestion for rehearing en banc is REJECTED.