concurring:
Perhaps the most basic principle of all Indian law, supported by a host of decisions, is that those powers which are vested in an Indian tribe are not, in general, delegated powers granted by express acts of Congress. Rather, these are inherent powers of a limited sovereignty which have never been extinguished — what is not expressly limited remains within the domain of tribal sovereignty.1 Native American Tribes, thus, continue to occupy a distinct and unique legal/political status with the federal government of this country, which predates the formation and union of the States. This special relationship, from which states are excluded absent congressional consent, is rooted in the United States Constitution at Article 1, Sec. 8, cl. 3:
“The Congress shall have Power ...; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”
Such constitutional power over Indians and their lands, exercised by Congress, has been characterized as plenary, exclusive, *365and complete.2 While a tribe by inaction or through inadvertant omission may limit the scope and exercise of its own tribal powers, only Congress can limit modify, eliminate or expand the powers of local self government which tribes otherwise possess. States are without power to do so unless Congress exhibits a clear intention to terminate tribal sovereign immunity within the proscriptions of a particular stated pru-pose.3
Consistent -with Congress’ plenary role with respect to Indians and their lands, the Enabling Act of the State of Oklahoma in its recitation of the conditions of statehood, prohibits limiting or impairing rights of persons or property associated with Indians. It provides:
“That the inhabitants of all that part of the area of the United States now constituting the Territory of Oklahoma and the Indian Territory, as at present described, may adopt a constitution and become the State of Oklahoma, as hereinafter provided: Provided, that nothing contained in the said constitution shall be construed to limit or impair the rights of persons of property pertaining to the Indians of said Territories (so long as such rights shall remain unextinguished) or to limit or affect the authority of the Government of the United States to make, any law or regulation respecting such Indians, their lands, property or other rights by treaties, agreement, law or otherwise, which it could have been competent to make if this Act had never passed.”
Oklahoma has not amended the Constitution, nor has it complied with the conditions of any federal law to invoke jurisdiction over Indian tribes in contradiction to its Enabling Act.
In 1953, Congress manifested a conditional intent to permit states to assume civil and criminal jurisdiction by the passage of P.L. 280.4 The Act required some states, including California, Nebraska, Oregon and Wisconsin, to assume mandatory jurisdiction over Indian Tribes.5 However, *366other states, including Oklahoma, whose Enabling Acts contained Indian restrictions, required the people of the state to either amend State Constitutions or statutes to remove the impediment. (States which did not have such restrictions were required to give consent by affirmative legislative action. This Section of P.L. 280 was repealed in 1968.)6 I concur with the majority that California v. Cabazon Bank of Mission Indians, 480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1986), is not controlling because Oklahoma is not a P.L. 280 state. Therefore, there is no distinction between tribal lands or Indian reservations. Indian Country is Indian Country.
Even assuming that a state constitutional amendment were not necessary the alleged assumption of jurisdiction by individual law enforcement officers and court officials does not constitute a binding exercise of jurisdiction. The states must by affirmative political action express the willingness and the ability to discharge responsibilities in order to make effective the assumption of jurisdiction.7
In Williams v. Lee, 358 U.S. 217, 222, 79 5.Ct. 269, 271, 3 L.Ed.2d 251 (1959), the Court stated that Congress had expressed its willingness to have states assume jurisdiction over reservation Indians if the state legislature or the people had voted affirmatively to accept such responsibility. It found that Arizona was a disclaimer state because of a provision in its Enabling Act, and that Arizona had not affirmatively accepted jurisdiction. Oklahoma is in the identical situation — thus far no one with the power and authority has accepted jurisdiction. The Court speculated that the most likely reason for the failure of the people of Arizona to accept jurisdiction was the anticipated burdens accompanying such power.
Conversely, it may be that the disclaimer states have recognized the opportunity for economic development which is offered by locating free trade zones on tribal land, and by acknowledging the beneficial ramifications of cooperation between the states and the sovereign tribes and nations.8 On May 12,1988, the Oklahoma Legislature enacted S.B. No. 210, which will be codified as 74 O.S.Supp. 1988 §§ 1221, 1222. Subsections (A), (B), and (C) of § 1221 provide:
A. The State of Oklahoma acknowledges federal recognition of Indian Tribes recognized by the Department of Interior, Bureau of Indian Affairs.
B. The State of Oklahoma recognizes the unique status of Indian Tribes within the federal government and shall work in a spirit of cooperation with all federally recognized Indian Tribes in furtherance of federal policy for the benefit of both the State of Oklahoma and Tribal Governments.
C. The Governor, or his named desig-nee, is authorized to negotiate and enter into cooperative agreements on behalf of this state with federally recognized Indian Tribal Governments within this state to address issues of mutual interest. Such agreements shall become effective upon approval by the Joint Committee on *367State-Tribal Relations and the Secretary of the Interior or his designee.
I write to express my separate views because in my opinion, the focus on the status of principal-agent is not the controlling factor. Commerce, in the constitutional sense, includes bingo operations because it includes not only traditional commercial dealings, but also intercourse and traffic between the citizens of the United States and the Tribes, in all its branches, the transportation of persons and property for that purpose, as well as the traditional purchase, sale, and exchange of goods, commodities, and services.9 The determinative issue is whether this activity is a legally constituted tribal enterprise. If it is — the activity is exempt from taxation. A tribal enterprise may be proven by meeting these criteria:
1) Tribal retention of full ownership rights over the land and facility;
2) Ultimate control over the bingo activities;
3) Development of the bingo enterprise by the Tribe;
4) Benefits accruing to the Tribe in the form of profits and employment;
5) Approval of the management contract by the Bureau of Indian Affairs if the tribal charter, constitution or by-laws so provides.10
Tribal initiative and managerial decision making result in a more effective implementation of tribal enterprises, and consequently, Indian self determination. A Tribe may fully comply with the stated criteria for exemption by incorporating. The BIA is authorized to issue a charter of incorporation to any tribe applying. The charter conveys comprehensive power to manage and dispose of tribal property subject to the proviso that tribal land within the limits of the reservation may not be leased for periods exceeding ten years. The charter may or may not provide for departmental approval of tribal leases.11 If the charter does not provide for approval the only limitation is the ten year limit on leasing tribal property. Most charters provide for a trial period during which all tribal leases are subject to departmental approval; this supervision terminates automatically after a specified period.12 The record does not disclose whether the Potta-watamies are incorporated, and an independent search of documents of which we may take judicial notice13 does not reveal a corporate charter. Apparently, the tribe is not incorporated and must have the Con-gressionally mandated BIA approval for all contracts. If this be the case, the management agreement was null and void and *368thwarted the legal consummation of the attempted tribal enterprise.14
The tribe complied with some of the necessary guidelines. It retained the ownership rights over the land and it could purchase the improvements made by EMCI. The tribe received 35% of the bingo profits and 15% of the concessions with a guaranteed monthly income of $10,000.00 a month. Nevertheless, pervasive problems exist which dictate taxation by the state of Oklahoma:
1) EMCI leased the land from the tribe for $12,000.00 a year and subleased the land back to the tribe for $1.00 a year. (Although these leases were approved by the BIA, the management contract was not and BIA approval was required because apparently the tribe had not incorporated.)
2) There is no evidence in the record that the tribe is involved in the control of the bingo activities, e.g. gaming ordinances.
3) The management agreement required ECMI to purchase an annual license from the tribe to conduct bingo games. Neither testimony nor a license was presented to support this one factor of control.
Tribes must effectively assume the substantial responsibilities involved in securing and maintaining a tribal enterprise. Apparently, from the evidence presented, the Tribe abdicated its right to control bingo activities, or to participate in the development of the enterprise. Nor did it obtain the necessary BIA approval to meet the federal standards. Had these elements been met, this activity could constitute a legitimate tribal enterprise and thus invoke tribal immunity from state taxation. Here, the tribal limitation was due more to the omission or oversight of the tribe to follow the Congressional directive, than by federal limitation of power.
Current federal policy is to encourage and foster tribal self-government and to promote economic development.15 Tribal bingo games have been recognized as one way to support this policy. The Department of Interior has sought to implement these policies by making grants and guaranteed loans to construct bingo facilities, approve tribal ordinances establishing and regulating the gaming activities involved, and by reviewing tribal bingo management contracts under 25 U.S.C. § 81. The Department of Housing and Urban Development and the Department of Health and Human Services also has provided financial assistance to develop tribal gaming enterprises.16 These policies and actions demonstrate the federal government’s approval and promotion of very strong tribal and federal interest in bingo enterprises.
In Montana v. Blackfeet Tribe, 471 U.S. 759, 765, 105 S.Ct. 2399, 2403, 85 L.Ed.2d 753, 758-59 (1985), the United States Supreme Court held that Montana could not tax the Tribe’s royalty interests in oil and gas leases issued to non-Indian lessees under the Indian Mineral Leasing Act of 1938. The Court stated:
*369“In keeping with its plenary authority over Indian affairs, Congress can authorize the imposition of state taxes on Indian tribes and individual Indians. It has not done so often, and the Court consistently has held that it will find the Indians’ exemption from state taxes lifted only when Congress has made' its intention to do so unmistakably clear.”
The United States Supreme Court acknowledged that the federal practice of enforcing tribal immunity from state taxation is very strong, while the corresponding state interest is weak.17 Here, the Tribe did not meet the requirements for establishing a tribal enterprise.
However, the federal and tribal interests would outweigh the state’s interest of taxation had the Pottawatomies complied with the controlling criteria for tax exemption. The majority opinion should not be construed to foreclose exemption from state taxation insofar as tribal bingo enterprises are concerned and it should be limited to the narrow facts of this case.
. F. Cohen, Handbook of Federal Indian Law, Chapter 7, p. 122 (1986); B. Pipestem and G. Rice, "The Mythology of the Oklahoma Indians: A Survey of the Legal Status of Indian Tribes in *365Oklahoma,” 6 American Indian L.Rev. 259 (1978).
. Taiton v. Mayes, 163 U.S. 376, 380, 16 S.Ct. 986, 988, 41 L.Ed. 196-97 (1896).
. Bryan v. Itasca County, 426 U.S. 373, 392, 96 S.Ct. 2102, 3112, 48 L.Ed.2d 710 (1976).
. Section 2 of P.L. 280, 18 U.S.C. § 1162 (1953) provides:
"Sec. 2. Title 18, United States Code, is hereby amended by inserting in chapter 53 thereof immediately after section 1161 a new section, to be designated as section 1162, as follows:
§ 1162. State jurisdiction over offenses committed by or against Indians in the Indian country
(a)Each of the States listed in the following table shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country listed opposite the name of the State to the same extent that such State has jurisdiction over offenses committed elsewhere within the State, and the criminal laws of such State shall have the same force and effect within such Indian country as they have elsewhere within the State:
State of Indian country affected
California.All Indian country within the State
Minnesota.All Indian country within the State except the Red Lake Reservation
Nebraska.All Indian country within the State
Oregon.All Indian country within the State, except the Warm Springs Reservation
Wisconsin.All Indian country within the State, except the Menominee Reservation
(b) Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community 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 or with any regulation made pursuant thereto; or shall deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof.
(c) The provisions of sections 1152 and 1153 of this chapter shall not be applicable within the areas of Indian country listed in subsection (a) of this section."
.Section 6 of Pub.L. 280, 67 Stat. 590 (1953), states:
“Notwithstanding the provisions of any Enabling Act for the admission of a State, the consent of the United States is hereby given to the people of any State to amend, where nec*366essary, their State constitution or existing statutes, as the case may be, to remove any legal impediment to the assumption of civil and criminal jurisdiction in accordance with the provisions of this Act: Provided, That the provisions of this Act shall not become effective with respect to such assumption of jurisdiction by any such State until the people thereof have appropriately amended their State constitution or statutes as the case may be.”
. Title 25 U.S.C. § 1323 (1983) provides:
"(a) The United States is authorized to accept a retrocession by any State of all or any measure of the criminal or civil jurisdiction, or both, acquired by such State pursuant to the provisions of section 1162 of Title 18, section 1360 of Title 28, or section 7 of the Act of August 15, 1953 (67 Stat. 588), as it was in effect prior to its repeal by subsection (b) of this section.
(b) Section 7 of the Act of August 15, 1953 (67 Stat. 588), is hereby repealed, but such repeal shall not affect any cession of jurisdiction made pursuant to such section prior to its repeal."
. Kennerly v. District Court of Montana, 400 U.S. 423, 427, 91 S.Ct. 480, 482, 27 L.Ed.2d 507, 511 (1971).
. See S.B. 210 (May 12, 1988); Walker, "Report to the Oklahoma Department of Commerce Cultural Diversity and Economic Development Task Force,” The Sovereignty Symposium, § 3, p. 7 (1988).
. Philadelphia v. New Jersey, 437 U.S. 617, 622, 98 S.Ct. 2531, 2534, 57 L.Ed.2d 475 (1978).
. Indian Country, U.S.A. v. Oklahoma Tax Comm’n, 829 F.2d 967, 982-83 (10th Cir.1987). See also, Pipestem, “The Mythology of the Oklahoma Indians Revisited: A Survey of the Legal Status of Indian Tribes in Oklahoma Ten Years Later," The First Annual Sovereignty Symposium, § VI, p. 60 (1988).
. Title 25 U.S.C. § 503 (1936) provides:
"Any recognized tribe or band of Indians residing in Oklahoma shall have the right to organize for its common welfare and to adopt a constitution and bylaws, under such rules and regulations as the Secretary of the Interi- or may prescribe. The Secretary of the Interi- or may issue to any such organized group a charter of incorporation, which shall become operative when ratified by a majority vote of the adult members of the organization voting: Provided, however, That such election shall be void unless the total vote cast be at least 30 per centum of those entitled to vote. Such charter: may convey to the incorporated group, in addition to any powers which may properly be vested in a body corporate under the laws of the State of Oklahoma, the right to participate in the revolving credit fund and to enjoy any other rights or privileges secured to an organized Indian tribe under sections 461, 462, 463, 646, 645, 466 to 470, 471 to 473, 474, 475, 476 to 478, and 479 of this title: Provided, That the corporate funds of any such chartered group may be deposited in any national bank within the State of Oklahoma or otherwise invested, utilized, or disbursed in accordance with the terms of the corporate charter."
See also, F. Cohen, Handbook of Federal Indian Law, Chapter 15, p. 287, 329 (1986).
. F. Cohen, Handbook of Federal Indian Law, id.
. Title 12 O.S.1981 § 2201 which provides in pertinent part:
"Judicial notice shall be taken by the court of the common law, constitutions and public statutes in force in every state, territory and jurisdiction of the United States.”
.Title 25 U.S.C. § 81 provides in pertinent part:
"No agreement shall be made by any person with any tribe of Indians, or individual Indians not citizens of the United States, for the payment or delivery of any money or other thing of value, in present or in prospective, or for the granting or procuring any privilege to him, or any other person in consideration of services for said Indians relative to their lands, or to any claims growing out of, or in reference to, annuities, installments or other monies, claims, demands, or thing, under laws or treaties with the United States, or official acts of any officers thereof, or in any way connected with or due from the United States, unless such contract or agreement be executed and approved as follows: ...
(2) It shall bear the approval of the Secretary of the Interior and the Commissioner of Indian Affairs endorsed upon it....
All contracts or agreements made in violation of this section shall be null and void.”
. New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 334-35, 103 S.Ct. 2378, 2386-87, 76 L.Ed.2d 611, 620 (1983); Cabazon Band v. County of Riverside, 783 F.2d 900, 904 (9th Cir.1986).
. California v. Cabazon Band of Mission Indians, 480 U.S. 202, -, 107 S.Ct. 1083, 1092-93, 94 L.Ed.2d 244, 253 (1987); Cabazon Band v. County of Riverside, see note 15, supra; Mashantucket Pequot Tribe v. McGuigan, 626 F.Supp. 245-46 (Conn.1986). See also S.Rep. No. 99-493, p. 5 (1986) and H.R.Rep. No. 99-488, p. 10 (1986).
. California v. Cabazon Band of Mission Indians, see note 16, 107 S.Ct. at p. 1091, supra.