Opposition Brief — White Mountain Apache Tribe v. Arizona State Transportation Board

rarer wy how 4 in

Supreme Couft, U.S,

FILED

No. 86-814

‘

UNITED STATES SUPREME couRTr DEC 20 1986

JOSEPH F. SPANIOL, JR.

October Term, 1986 CLERK

WHITE MOUNTAIN APACHE TRIBE, et al.,

Petitioners,

Vv.

BRUCE E. BABBITT, et al.,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

ROBERT K. CORBIN

Attorney General

State of of Arizona

ANTHONY B. CHING

Solicitor General

1275 West Washington Street

Phoenix, Arizona 85007

Attorneys for Respondents

QUESTION PRESENTED

Respondents submit that there is only one

question presented by the decision of the

Court of Appeals, 1.e.:

IS A CONGRESSIONAL ENACTMENT, ENACTED

UNDER THE COMMERCE CLAUSE WHICH, BY

VIRTUE OF THE SUPREMACY CLAUSE, PRE-

EMPTS CERTAIN STATE TAXING STATUTES, A

"LAW" WHICH IS INCORPORATED IN_ THE

CIVIL RIGHTS ACT, 42 U.S.C. § 1983?

LIST OF PARTIES

The parties to the proceedings below

were the White Mountain Apache Tribe;

Basin Building Materials Co. and E.H.

Loveness Lumber Sales Co., Oregon corpora-

tions doing business as “Pinetop Logging

Company;" the State of Arizona; Arizona

Department of Transportation; Bruce E.

Babbitt, Governor of the State of Arizona;

Arthur Atonna, Chairman, Arizona State

Transportation Board; Andrew Federhar,

Vice-Chairman, Arizona State Transporta-

tion Board; Hal Butler, Ted Valdez, Jim

Patterson and Hank Geitz, members, Arizona

State Transportation Board; Charles Miller,

Director, Arizona Department of Transporta-

tion; and Juan Martin, Assistant Director,

Arizona Department of Transportation, Motor

Vehicles Division.

Pinetop Logging Company has no

parent, affiliate, or subsidiary corpora-

tions to be listed under Rule 28.1

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TABLE OF CONTENTS

QUESTION PRESENTED

LIST OF PARTIES

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

STATUTES INVOLVED

STATEMENT OCF THE CASE

REASONS FOR DENYING THE WRIT

I.

II.

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LV.

THE COURT OF APPEALS’ DECISION

CORRECTLY FOLLOWS PRECEDENTS

OF THIS COURT. IT IS IN ACCORD-

ANCE WITH ALL FEDERAL COURT

DECISIONS ON THIS POINT.

THERE IS NO CONFLICT BETWEEN

THE COURT OF APPEALS’ OPINION

ION AND STATE COURT DECISIONS.

PETITIONERS* EQUAL PROTECTION

AND DUE PROCESS CLAIMS WERE

INSUBSTANTIAL AND WERE ABAN-

DONED BY THEM AFTER THE DIS-

TRICT COURT'S ABSTENTION ORDER.

ARIZONA HAS NEVER ARGUED

“VOLUNTARY CESSATION" AND THERE

IS NO REASON WHATEVER FOR THE

DISTRICT COURT TO ENTER JUDGMENT

AFTER BRACKER'S REMAND TO THE

STATE COURTS.

iii

12

14

16

TABLE OF CONTENTS (Cont'd)

Page

CONCLUSION 17

APPENDIX 19

Letter to the Ninth Circuit Court

of Appeals dated August 22, 1986 20

Opinion of the Arizona Supreme Court

in Central Machinery v. Arizona, No.

18493-PR (Dec. 12, 1986) 23 -

TABLE OF AUTHORITIES

Case law

Central Machinery Co. v. Arizona,

No. 1 CA-CIV 7779 (App. July 27,

1985), vacated, No. 18493-PR

(Dec. 12, 1986)

Chapman v. Houston Welfare Rights

Organization,

44) U.S. 600 (1979)

Consolidated Freightways v. Kassel,

430 8,20 4439 (8th Cif. 1584),

cert. denied, 105 S.Ct. 126

Coos Bay Care Center v. Oregon,

_._ F.4d (9th Cir. No. 85-

4049, Nov. 3, 1986)

England v. Louisiana State Board

of Medical Examiners,

ora UcBi Sad Lasea)

Ex Parte Bransford,

310 U.S. 354 (1540)

Gould, Inc. v. Wisconsin,

750 F.2d 606 (7th Cir. 1984),

affirmed on other grounds,

U.S. , 106 S.Ct. 1057 (1985)

J & J Anderson v. Town of Erie,

767 F.2d 1469 (10th Cir. 1985)

Maher v. Gagne,

448 U.S. 122 (1980)

Page |

hay i3

10

10

TABLE OF AUTHORITIES (Cont'd)

Page

Maine v. Thiboutot, 9

448 U.S. 1 (1980)

Middlesex County Sewerage Authority

v. National Sea Clammers Ass'n, 8

453 U.S. 1 (1981)

New York Airlines, Inc. v. Dukes

County, 12

623 F.Supp. 1435 (D.Mass. 1985)

Pennhurst State School & Hospital

v. Haldeman, 8

451 U.S. 1 (1981)

Pesticide Public Policy Foundation

v. Village of Wauconda, ll

622 F.2d 423 (N.D.I11. 1985)

Pirolo v. City of Clearwater, ll

711 F.2d 1006, rehearing denied,

720 F.2d 688 (llth Cir. 1983)

Private Truck Council v. New

Hampshire, 12

No. 86-088 (N.Y. Aug. 12, 1986)

Ramah Navajo School Board, Inc. v.

Bureau of Revenue, 3, 4

104 N.M. 302, 720 P.2d 1243

(Ct.App. 1986)

Swift & Company v. Wickham, >, 6,

sea U.S. i213 (1963)

United Nuclear Corp. v. Cannon, ll

564 F.Supp. 581 (D.R.I. 1983)

vi

TABLE OF AUTHORITIES (Cont'd)

Page

White Mountain Apache Tribe v.

Bracker, 3

448 U.S. 136 (1980) l

White Mountain Apache Tribe v.

Williams, ., §

798 F.2d 1205 (9th Cir. 1986)

Wright v. City of Roanoke Rede-

velopment and Housing Authority, 17

No. 86-5919

Yakima Indian Nation v.

Whiteside, ll

617 F.Supp. 735 (E.D.Wash. 1985)

United States Code

28 U.S.C. § 1343(3) 7

28 U.S.C. § 2281 5

42 U.S.C. § 1983 Ss, 6, 9.

eck, 12,

14, 18

42 U.S.C. § 1988 es, 25,

16, 17

vil

OPINIONS BELOW

The relevant opinion of the Court of

Appeals for the Ninth Circuit is reported

at 798 F.2d 1205 (9th Cir. 1986) and is

reproduced in the petitioners’ appendix at

pp. A-1l through A-9.

The District Court's decision was

unreported and is reproduced in the peti-

tioners' appendix at pp. A-125 through

A-128.

a

JURISDICTION

This Court has jurisdiction to re-

view the decision of the Court of Appeals

under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

The statutes involved are 25 U.S.C.

§§ 196, 406, 407 and 466 relating to the

harvesting of timber on [Indian reserva-

tions, and 42 U.S.C. §§ 1983 and 1988 re-

lating to civil rights and civil rights

attorney's fees.

The state taxing statutes are Arizo-

na Revised Statutes (A.R.S.) § 28-1551

(1985 Supp.), former A.R.S. § 28-1552

(1979 Supp.), former A.R.S. § 28-1556

(1979 Supp.), former A.R.S. § 40-601

(1964), and former A.R.S. § 40-641 (1979

Supp.).

STATEMENT OF THE CASE

This case has its origin in an ear-

lier decision of this Court, White Moun-

tain Apache Tribe v. Bracker, 448 U.S. 136

(1980). In Bracker, this Court reversed a

decision of the Arizona Court of Appeals

concerning Arizona's motor vehicle license

and fuel taxes assessed against a non-

Indian logging company for hauling timber

pursuant to a contract with the Indian

tribe. In Bracker this Court held that,

Since the federal government has undertak-

en comprehensive regulation of the har-

vesting and sale of tribal timber, the

state taxes are preempted by the federal

iews. IG. @t i354, &. &3.

Upon reversal and remand of Bracker

to the Arizona courts, petitioners chose

to apply for attorney's fees not in the

state court, but in the federal district

court which had previously abstained.

They argued, for the first time, that

their lawsuit was grounded on 42 U.S.C.

§ 1983 and that therefore they were enti-

tled to attorney's fees under 42 U.S.C.

§ 1988. The State objected to the attor-

ney's fees application on several grounds,

all of which were rejected by the district

court. In particular, the district court

overruled the State's objection that the

district court lacked jurisdiction under

the doctrine of England v. Louisiana State

Board of Medical Examiners, 375 U.S. 41l

(1963), and also the State's argument that

petitioners’ claim did not fall within 42

U.8.C.-§ i983.

The Court of Appeals reversed the

district court. Its latest opinion, which

superseded and corrected its prior opin-

ions, held that the preemption claim un-

derlying this Court's decision in Bracker

does not give rise to a claim cognizable

under 42 U.S.C. § 1983. The Court of Ap-

peals did not decide the England challenge,

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nor the question of whether an Indian tribe

has standing to seek a fee award under

§ 1988 because it is not a “citizen” or

“person” within the meaning of § 1983.+%

The Court of Appeais also rejected

petitioner's argument that, under Maher v.

Gagne, 448 U.S. 122 (1980), attorney's fees

under 42 U.S.C. § 1988 may be awarded.

REASONS FOR DENYING THE WRIT

I. THE COURT OF APPEALS‘ DECISION COR-

RECTLY FOLLOWS PRECEDENTS OF THIS

COURT. IT IS IN ACCORDANCE WITH ALL

FEDERAL COURT DECISIONS ON THIS POINT.

The Court of Appeals’ decision is

correct. Its decision that a preemption

claim under the Supremacy Clause does not

Support a claim under 42 U.S.C. § 1983 is

consistent with long-established prece-

dents of this Court. In Swift & Company

v. Wickham, 382 U.S. 111 (1965), this

1. White Mountain Apache Tribe Vv.

Williams, 798 F.2d 1205, 1216, n. 14.

«Se

Court held that a claim that New “‘ork's

labeling laws were in conflict with the

federal Poultry Products Inspection Act of

1957 and was therefore invalid under the

Supremacy Clause is not a “constitutional”

claim so as to require a three-judge court

under former 28 U.S.C. § 2281. This Court

explained: “The basic question involved in

these [preemption] cases, however, is nev-

er one of interpretation of the Federal

Constitution but inevitably one of compar-

ing two statutes [state and federal].”" 382

Gem. Ge saes The case of Ex Parte Brans-

ford, 310 U.S. 354 (1940), cited by this

Court in Swift & Company, is particularly

illuminating, since it concerns the pre-

emption of a state tax by federal banking

laws:

If such assessments are invalid,

it 1s because they levy taxes upon

property withdrawn from taxation

by federal law or in a manner for-

bidden by the National Banking Act.

The declaration of the supremacy

clause gives superiority to valid

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federal acts over conflicting state

statutes but this superiority for

present purposes involves merely

the construction of an act of Con-

gress, not the constitutionality of

the state enactment.

310 U.S. at 358-359.

Relying on the Swift & Company deci-

sion, this Court, in Chapman v. Houston

Welfare Rights Organization, 441 U.S. 600

(1979), held that a claim of preemption of

state law by federal social security laws

is not a claim within the jurisdictional

requisites of 28 U.S.C. § 1343(3). Chap-

man, therefore, stands for the proposition

that the Supremacy Clause only establishes

federal-state priorities and does not cre-

ate individual rights, nor does it “se-

cure” such rights within the meaning of 28

U.S.C. § 1343(3):

We must conclude that an allegation

of uncompatibility between federal

and state statutes and regulations

does not, in itself, give rise to a

claim “secured by the Constitution"

within the meaning of § 1343(3).

Id. at 615.

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The Court of Appeals' opinion is

also faithful to the doctrines laid down

recently by this Court in Pennhurst State

School & Hospital v. Haldeman, 451 U.S. l

(1981), and Middlesex County Sewerage

Authority v. National Sea Clammers Associ-

ation, 453 U.S. 1 (1981). In these two

cases, this Court held that not all feder-

al laws secure rights within the meaning

of 42 U.8.6. § 2963. Instead, federal

laws come within the meaning of § 1983

only if they specifically create “enforce-

able” rights” under § 1983. The Court of

Appeals correctly found, based on Bracker,

that in this case the federal comprehen-

Sive scheme of timber harvesting on Indian

reservations did not create “enforceable”

rights under § 1983. Rather, it simply

preempted the state taxing scheme in ques-

tion, and, since there was no direct con-

flict between the state and federal laws,

those federal laws did not come within the

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meaning of § 1983.4”

Maine v. Thiboutot, 448 U.S. l

(1980), can be easily distinguished. In

Maine, the welfare recipient's claim was

grounded on the federal Social Security

Act, which entitled the receipient to cer-

tain benefits. State rules directly vio-

lated the recipient's statutory entitle-

ment. There, the recipient's rights to

welfare benefits were clearly “secured” by

the federal social security laws.+” The

2. Contrary to petitioners’ assertion,

the Court of Appeals’ decision did not

conclude that all Supremacy Clause

claims are beyond the purview of

§ 1983. It specifically said that “we

need not reach the question whether a

Supremacy Clause claim might give rise

to a § 1983 action where preemption

was based on such actual conflict.”

White Mountain Apache Tribe Vv.

Williams, 798 F.2d 1205, 1211, n. 7.

3. The case of Coos Bay Care Center v.

Oregon, f.2¢ (9th Cir. No. 85-

4049, Nov. 3, 1986), cited by the pe-

titioner, is not in conflict with this

case. The Coos Bay case dealt with

another entitlement program, the fed-

eral Social Security Act, Title XIX,

the Medicaid provision.

witin

federal timber harvesting laws, on the

other hand, create no entitlement, nor do

they secure rights in any individual.

The Ninth Circuit Court of Appeals

decision is also consistent with all other

circuits which have recently passed on

this issue. In addition to Consolidated

Freightways v. Kassel, 730 F.2d 1139 (8th

Cir. 1984), cert. denied, 105 S.Ct. 126

(1984), which holds that a Commerce Clause

claim does not come within the meaning of

42 U.S.C. § 1983, the Seventh, Tenth and

Eleventh Circuit Courts of Appeal have all

decided that federal preemption claims do

not come within the meaning of § 1983.

Gould, Inc. v. Wisconsin, 750 F.2d 608

(7th Cir. 1984), affirmed on other grounds,

Uae , 106 S.Ct. 1057 (1986) (claim

of preemption of state labor laws by the

federal National Labor Relations Act does

not come within § 1983 so as to authorize

§ 1988 attorney's fees); J & J Anderson

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v. Town of Erie, 767 F.2d 1469 (10th Cir.

1985) (claim of preemption of town ordi-

nance by Federal Aviation Act does not

come under § 1983). Pirolo v. City of

Clearwater, 711 F.2d 1006, rehearing de-

nied, 720 F.2d 688 (llth Cir. 1983) (pre-

emption of city ordinance by Federal Avi-

ation Act does not come within § 1983).

A number of district courts have

come to the same conclusion. Yakima Indi-

an Nation v. Whiteside, 617 F.Supp. 735

(E.D. Wash. 1985) (federal preemption

claim asserted by the Indian tribe does

not come within the meaning of § 1983);

Pesticide Public Policy Foundation v. Vil-

lage of Wauconda, 622 F.Supp. 423 (N.D.

Ill. 1985) (alleged conflict between vil-

lage ordinance and Federal Fungicide and

Rodencide Act does not come within § 1983);

United Nuclear Corp. v. Cannon,:-564 F.Supp.

581 (D.R.I. 1983) (preemption of state

law by the Federal Atomic Energy Act does

-l|l-

not fall within § 1983); New York Air-

lines, Inc. v. Dukes County, 623 F.Supp.

1435 (D.Mass. 1985) (preemption of county

ordinance by the Federal Aviation Act does

not come within § 1983).

II. THERE IS NO CONFLICT BETWEEN THE

COURT OF APPEALS‘ OPINION AND STATE

COURT DECISIONS.

In addition to the four circuit

courts of appeal and the four district

court decisions cited, supra, the New

Hampshire Supreme Court concluded that a

Supremacy Clause challenge does not impli-

cate § 1983. Private Truck Council v. New

Hampshire, No. 86-088 (N.H. Aug. 12, 1986).

Arrayed against this overwhelming

weight of authority are the two. state

court decisions cited by the petitioners

to be conflict with the Ninth Court of Ap-

peals’ decision here. They can be easily

distinguished. The Arizona Court of Ap-

peals’' decision in Central Machinery Co.

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V. Arizona— was vacated by the Arizona

Supreme Court on December 12, 1986 (No.

18493-PR). See Appendix. That opinion fol-

lows the Court of Appeals' decision here.

The New Mexico decision, Ramah Nava-

jo School Board, Inc. v. Bureau of Revenue

104 N.M. 302, 720 P.2d 1243 (Ct.App. 1986)

4. Respondents disagree with petitioners’

assertion that this case is a better

case than Central Machinery for this

Court's review inasmuch as Justice

O'Connor may recuse herself Since she

was the trial judge in Central Machin-

ery. Respondents submit that the

question of whether a Justice may re-

cuse himself/herself is conjectural at

this stage. However, respondents wish

to point out that, at the evidentiary

hearing on attorney's fees in this

case in early 1981, Philip Von Ammon,

of the law firm of Fennomore, Craig,

Von Ammon & Udall (with which Justice

O'Connor's husband was a law Partner),

was the State's expert witness on both

the legal propriety of attorney's fees

and the reasonableness of petitioners'

fee appplication. Additionally, the

controversy in this case began in 1968

(petititioners' statement of the case

at p. 3 of the petition), when Justice

O'Connor was representing the State of

Arizona as an Assistant Attorney Gen-

eral. These facts may also result in

Justice O'Connor's recusal.

-13-

~~

is not in conflict with the Court of Ap-

peals’ decision here. The New Mexico court

agrees that the Supremacy Clause does not

create § 1983 rights. 720 P.2d at 1252,

1255. It found, however, that the Indian

Self-Determination and Educational Assist-

ance Act granted to the Indians the right

to education, and that the New Mexico law,

in taxing the building of the school, vio-

lated that right. Regardless of the mer-

its of the New Mexico appellate decision in

Ramah, the timber harvesting law involved

in this case, unlike laws concerning edu-

cation of children, plainly does. not

create any rights remotely resembing the

right to education.

III. PETITIONERS’ EQUAL PROTECTION AND

DUE PROCESS CLAIMS WERE INSUBSTAN-

TIAL AND WERE ABANDONED BY THEM

AFTER THE DISTRICT COURT'S ABSTEN-

TION ORDER.

Petitioners’ Argument III, concern-

ing their equal protection and due process

-~14-

claims, deserves a brief response. Con-

trary to Judge Fletcher's surmise in her

dissent, the petitioners did allege their

equal protection and due process claims in

the state court complaint after the ab-

stention order by the district court.

This fact was admitted by the petitioners

in their brief before the Court of Ap-

peals. This error was belatedly brought

to the Court of Appeals’ attention. See

Appendix.*” After alleging them in the

complaint, the petitioners later abandoned

them by failing to argue these claims

either in the Arizona appellate courts or

5. Petitioners’ silence and failure to

properly advise the Court of Appeals

and this Court as to this factual mis-

take suggest a lack of candor which

should operate against them as to this

issue. Moreover, the reference in the

quoted portion of their brief that the

petitioners preserved their § 1988

claims by not submitting them is some-

what disingenuous because, at the time

of the abstention order in early 1974,

§ 1988's attorney's fees provision did

not exist (it was added by Congress in

1976).

wife

in this Court in Bracker. Having aban-

doned these claims, the petitioners cannot

now argue that they support their claim

for attorney's fees under 42 U.S.C. § 1988.

IV. ARIZONA HAS NEVER ARGUED "VOLUNTARY

CESSATION" AND THERE IS NO REASON

WHATEVER FOR THE DISTRICT COURT TO

ENTER JUDGMENT AFTER BRACKER'S REMAND

TO THE STATE COURTS.

Petitioners' last argument, as _ to

Arizona's “voluntary cessation," is total-

ly frivolous. This Court's decision in

Bracker and its remand to the state court

for final judgment was the final word on

the state taxation issue. The entry of

another judgment by the abstaining district

court serves no purpose whatsoever. Ari-

zona's compliance with the Bracker deci-

sion is not “voluntary cessation.”

CONCLUSION

Petitioners’ suggestion that the de-

cision on this case can be held in abey-

até

fii Ruane: Gunes mandala —

ance until this Court's consideration on

the merits in Wright v. City of Roanoke

Redevelopment and Housing Authority, No.

86-5919, is unwarranted. Although Wright

is a § 1988 attorney's fees case, it does

not implicate a preemption claim under the

Supremacy Clause. The Wright decision in

the Court of Appeals, 771 F.2d 833 (4th

Cir. 1985), simply held that the Federal

Housing Act did not create a private cause

of action and therefore did not create

“enforceable” rights under § 1983. Deter-

mination of this issue in Wright would not

in any way affect the outcome reached by

the Ninth Circuit Court of Appeals in this

case.

The Court of Appeals' decision is

correct. It follows all controlling deci-

sions of this Court. It is consistent

with all other federal circuit and dis-

trict court decisions on the issue of

whether preemption claims under the Suprem-

«ite

acy Clause come within the meaning of

}

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§ 1983. The petition for certiorari should

be denied.

Respectfully submitted,

ROBERT K. CORBIN

Attorney General

ANTHONY B. CHING

Solicitor General

~18-

APPENDIX

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August 22, 1986

The Clerk

United States Court of Appeals

for the Ninth Circuit

P. O. Box 547

San Francisco, California 94101

Re: White Mountain Apache Tribe v.

Williams

Ninth Circuit No. 81-5348

Dear Sir/Madam:

Please bring this letter to the

attention of the panel, Judge Norris,

Judge Fletcher and District Judge James

M. Burns.

Counsel for the appellants wishes

to point out a mistake of fact in the

Court's opinion (at p. 20 and note 11 of

p. 20) and in the dissent (at p. 4). At

both places the majority opinion and the

Gissenting opinion assumed that the Tribe

did not tender or submit its equal protec-

tion and due process claims to the state

court after the abstention order. The op-

posite is true. It is undisputed that the

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Tribe, after the district court's absten-

tion order, did tender and submit its

equal protection and due process claims to

the state court, along with their preemp-

tion claim.

Plaintiffs' answering brief, at

p. 7, stated that:

"Thereafter, the White Mountain

Apache Tribe joined in February,

1974 as an additional plaintiff in

the state court refund suit previ-

ously filed by Pinetop. The amend-

ed complaint (which was verbatim

identical to the complaint previ-

ously filed in the federal action)

joined . . «-

Plaintiffs' answering brief, at P.-

21, note 9, also stated:

"The other major holding of Eng-

land is that the plaintiff in an

abstained case may preserve his

right to original federal court de-

cision on the merits of his federal

claims . « «-» That was not done

in this case with respect to the

substantive federal claims (though

the plaintiffs did preserve their

§ 1988 attorneyss' fees rights for

federal decisiom by not submitting

them to the

state courts . ..)."

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Counsel for the appellants believes

that this factual mistake does not affect

the outcome of this case in any way, and

therefore did not cross-move for rehear-

ing. Had the court requested a response

to appelllees' motion for rehearing, this

fact would have been brought to this

Court's attention earlier.

Very truly yours,

ANTHONY B. CHING

Solicitor General

Attorney for Appellants

ABC:ca

cc: Neil V. Wake, Esq.

BEUS, GILBERT, WAKE & MORRILL

3300 North Central, Suite 1000

Phoenix, AZ 85012-2506

Attorneys for Appelles

32%

IN THE SUPREME COURT

OF THE STATE OF ARIZONA

En Banc

CENTRAL MACHINERY )

COMPANY, an Arizona )

corporation, ) Supreme Court

) No. 18493-PR

Plaintiff-Appellee, )

) Court of Appeals

Ve ) No. 1 CA-CIV 7779

)

STATE OF ARIZONA, ) Maricopa County

) Superior Court

)

)

)

Defendant-Appellant. No. C-297870

Appeal from the Superior Court

of Maricpa County

The Honorable William T. Moroney, Judge

MOTION FOR ATTORNEY'S FEES DISMISSED

HAYS, Justice

The state petitioned this court to

review an opinion of the court of appeals

that upheld the trial court's award of

attorney's fees under 42 U.S.C. § 1988 in

favor of Central Machinery Company. we

granted review and have jurisdiction pursu-

ant to Ariz. Const. art. 6, § 5(3), A.R.S.

=23=

| § 12-120.24 and Rule 23, Ariz.R.Civ.P. 1/7A

Aumees

We granted review of the following

onded OTS nm ee

two issues: (1) whether the court of

appeals, by finding that Gila River Farms

would bear legal fees throughout the liti-

gation and that any recovery of fees by

De art aa Cita the ali i a Dias em,

Central Machinery would be transmitted to

Gila River Farms, improperly conferred

standing on Central Machinery to bring a

cause of action under 42 U.S.C. § 1983;

(2) whether the original tax refund claim

in state court is a claim within federal

Civil Rights Act of 1871, 42 U.S.C. § 1983,

and thereby support an award of attorney's

fees pursuant to 42 U.S.C. § 1988.

This litigation has a long history.

In 1974, Central Machinery Company sold a

number of tractors to Gila River Farms, an

enterprise of the Gila River Indian Commu-

nity. Arizona state sales tax of $2,916.62

was included in the price. Gila River

a%in

|

0 ——————

Farms paid the invoice amount with the

understanding that if Central Machinery was

| not liable for the tax, the company would

7 refund any amount it recovered from the

state to Gila River Farms.

Central Machinery paid the tax under

protest and, after exhausting administra-

tive remedies, filed an action in superior

court to recover the tax. See A.R.S. § 42-

1339(B).? The trial court ruled that

Central Machinery was not liable for the

tax. Tne state appealed. This court re-

versed. State v. Central Machinery Co.,

121 Ariz. 183, 589 P.2d 426 (1978). Cen-

tral Machinery subsequently appealed the

decision to the United States Supreme

Court. The Court held that the Indian

trader statutes, 25 U.S.C. §§ 261-264, pre-

empted Arizona's imposition of state sales

‘ 1 Repealed by laws 1985, ch. 366, § 3

(eff. July 1, 1986). See, now, A.R.S.

$ 42-124.

| a

ice eeeeneeineill

Obs Bi AE

tax on the transaction.“ Central Machin-

2

§ 261. Power to appoint traders with

Indians

The Commissioner of Indian Affairs

shall have the sole power and authority to

appoint traders to the Indian tribes and

to make such rules and regulations as he

may deem just and proper specifying the

kind and quantity of goods and the prices

at which such goods shall be sold to the

Indians.

§ 262. Persons permitted to trade with

Indians

Any person desiring to trade with the

Indians on any Indian reservation shall,

upon establishing the fact to the satisfac-

tion of the Commissioner of Indian Affairs,

that he is a proper person to engage in

such trade, be permitted to do so under

such rules and regulations as the Commis-

sioner of Indian Affairs may prescribe for

the protection of said Indians.

§ 263. Prohibition of trade by President

The President is authorized, whenever

in his opinion the public interest may re-

quire the same, to prohibit the introduc-

tion of goods, or of any particular arti-

cle, into the country belonging to any

Indian tribe, and to direct all licenses

to trade with such tribe to be revoked, and

all applications therefor to be rejected.

No trader to any other tribe shall, so long

as such prohibition may continue, trade

with any Indians of or for the tribe

against which such prohibition is issued.

ttn

ery Co. v. Arizona State Tax Comm'n, 448

U.S. 160, 165-66, 100 S.Ct. 2592, 2596

(1980).

On remand, Central Machinery sought

attorney's fees based on the Civil Rights

Attorney's Fees Awards Act of 1976, 42

0.8.C. § 1986. The trial court awarded

attorney's fees under this statute in the

2 (continued)

§ 264. Trading without license; white

persons as clerks

Any person other than an Indian of the

full blood who shall attempt to reside in

the Indian country, or on any Indian reser-

vation, as a trader, or to introduce goods,

or to trade therein, without such license,

shall forfeit all merchandise offered for

sale to the Indians or found in his posses-

sion, and shall moreover be liable to a

penalty of $500. Provided, That this sec-

tion shall not apply to any person residing

among or trading with the Choctaws, Chero-

kees, Chickasaws, Creeks, or Seminoles,

commonly called the Five Civilized Tribes,

residing in said Indian country, and be-

longing to the Union Agency therein: And

provided further, That no white person

shall be employed as a clerk by any Indian

trader, except such as trade with said Five

Civilized Tribes, unless first licensed so

to do by the Commissioner of Indian Af-

fairs, under and in conformity to regula-

tions to be established by the Secretary

of the Interior.

atts

amount of $53,165 and the Arizona Court of

Appeals affirmed the award. Central Machin-

ery Co. v. Arizona, Ariz. ’ P.2d

[1 CA-CIV 7779, filed June 27, 1985].

The state petitioned this court. We re-

verse.

The state has raised several chal-

lenges to the decision below. First, the

state contends that Central Machinery has

no standing to bring a cause of action un-

der § 1983. Second, even if standing was

properly recognized, the state asserts that

the Indian trader statutes do rot support

a claim cognizable under § 1983. The state

Claims that not only do the Indian trader

statutes not create any "enforceable

rights" in favor of either Central Machin-

ery or the Indian tribe, but the trader

Statutes also contain exclusive remedies

that preempt any § 1983 action. Finally,

the state argues that, based on the facts

of this case, neither the supremacy clause

«%@~

nor the commerce clause provides a consti-

tutional basis for a § 1983 cause of ac-

tion.

I. STANDING

The state contends that Central

Machinery is without standing because no

agreement exists between Central Machinery

and Gila River Farms whereby any attorney

fees recovered under § 1988 would be paid

back to Gila River Farms. The trial court,

however, determined that such an agreement

existed. On review, the court of appeals

resolved this question in favor of Central

Machinery.

The parties' Second Agreed Statement

of Facts states:

The Plaintiff has agreed with Gila

River Farms that if any monies are

recovered by the Plaintiff as a re-

sult of its action herein, the Plain-

tiff will remit to Gila River Farms

the monies so recovered (emphasis

added).

The state argues that "any monies"

recovered cannot inciude attorneys fees

a2}

and, therefore, Central Machinery has no

Standing to sue for recovery of the fees.

The basis for the state's argument is that

although the Second Agreed Statement of

Facts was signed by the attorneys in June

1976, § 1988 did not become effective until

October 19, 1976, The existence or non-

existence of § 1988 does not, though, af-

fect the validity of the agreement. The

parties were capable of agreeing that all

monies recovered would be turned over to

Gila River Farms withot having to antici-

pate all possible sources of monies recov-

erable by Central Machinery. Furthermore,

Central Machinery admitted in a response

to the state's motion for reconsideration

that "the award of .. . attorney's fees

- « « Will be disbursed to Gila River Farms

in accordance with the Agreed Statement of

Facts." This admission is a binding con-

struction of the agreed statement of facts

and is sufficient to give Central Machinery

~»30~

standing to bring the motion for attorney's

fees. We hold that Central Machinery has

standing to bring this motion in its own

right and is therefore a property party to

this suit.

The state also makes a quasi-standing

argument. According to the state, even if

Gila River Farms was eligible for an award

pursuant to § 1988, Central Machinery still

could not prevail. The state argues that

Central Machinery is not eligible for at-

torney's fees because the Indian trader

statutes were designed to benefit Indians

and not Indian traders. The state's argu-

ment is simply an assertion that Central

Machinery's standing to bring the original

action does not translate into "standing"

for a related § 1988 motion. We reject

this argument because the United States

Supreme Court has held that § 1988 is not

limited to any particular subclass. of

§ 1983 actions. Maher v. Gagne, 448 U.S.

ms be

122, 128, 100 S.Ct. 2570, 2574 (1980), re-

lying on Maine v. Thiboutot, 448 U.S. l,

100 S.Ct. 2502 (1980). Central Machinery

had standing to prosecute the original ac-

tion. If the original action was cogniz-

able under § 1983, then attorney's fees

should be awarded to Central Machinery.

II. ATTORNEY'S FEES AWARD PURSUANT TO § 1988

Both parties agree that federal law

controls any award of attorney's fees.

Consequently, we only need determine wheth-

er attorney's fees were properly awarded

under 42 U.S.C. § 1988. Section 1988

authorizes an award of attorney's fees in

certain enumerated civil rights actions.

In any action or proceeding to en-

force a provision of sections 1981,

1982, 1983, 1985, and 1986 of [Title

42is « « « the coaert, in its diserce-

tion, may allow the prevailing party,

other than the United States, a rea-

sonable attorney's fee as part of the

costs.

42 U.S.C. § 1988 (emphasis added).

w32~

Section 1983 creates civil liability

for

[e]very person who, under color of

any statute, ordinance, regulation,

custom, or usage, of any State or

Territory or the District of Colunm-

bia, subjects, or causes to be sub-

jected, any citizen of the United

States or other person within the

jurisdiction thereof to the depriva-

tion of any rights, privileges, or

immunities secured by the Constitu-

tion and laws, .. .-.

42 U.S.C. § 1983 (emphasis added).

Central Machinery argues that it is

entitled to § 1988 attorney's fees because

its original action for a tax refund is

cognizable under § 1983. Although Central

Machinery was the prevailing party in the

underlying lawsuit, its successful claim

was not brought pursuant to § 1983.3 We

3 The issue of attorney's fees may be

raised for the first time after remand of

the appeal in which the plaintiff pre-

vailed,. See, e.9., Bernstein v. Menard,

728 8.26 252, 42353 ®. 1 (4th Cic. 34964),

construing White v. New Hampshire Dept. of

Employment Sec., 455 U.S. 445, 102 S.Ct.

1162 (1982). § 1983 is a remedial statute

that must be construed broadly in order to

a33n

must, therefore, now determine if the ac-

3 (continued)

assist private plaintiffs who vindicate

federal rights. See Collins v. Chandler

Unified School Dist., 644 F.2d 759 (9th

Cir.), cert. denied, 454 U.S. 863, 102

S.Ct. 322 (1981), quoting Dennis v. Chang,

611 F.2d 1302, 1305 (9th Cir. 1980). More-

over, several courts have allowed a motion

for attorney's fees even though a § 1983

action was not proven or alleged in the

original complaint. For example, in

Gumbhir v. Kansas State Bd. of Pharmacy,

231 Kan. 507, 646 P.2d 1078 (1982), cert.

denied, 459 U.S. 1103, 103 S.Ct. 724

(1983), a motion for assessment of costs

"adequately pleaded a violation of ...

Civil rights under § 1983 to maintain a

suit for attorney fees under § 1988, ..."

even though the motion was based upon an

earlier action alleging denial of constitu-

tional rights, not a § 1983 action. See

Fairbanks Correctional Center v. William-

son, 600 P.2d 743 (Alaska 1979) (sole men-

tion of § 1983 in original complaint: in

parenthesis in the title of the complaint);

Harradine v. Bd. of Supervisors, 73 A.D.2d

118, 425 N.Y.S.2d 182 (1980) (original com-

Plaint alleged violation of equal protec-

tion clause); Boldt v. State, 101 Wis.2d

566, 305 N.W.2d 133 (complaint alleging

violation of due process clauses of the

Wisconsin and United States Constitutions

sufficient to plead § 1983 action in suit

for attorney's fees pursuant to § 1988),

cert. denied, 454 U.S. 973, 102 S.Ct. 524

(1981); accord, Consol. Freightways Corp.

v. Kassel, 730 F.2d 1139 (8th Cir.) (party

alleging § 1983 violation, but prevailing

on other grounds, eligible for attorney's

-34-

tion for a tax refund was an action to se-

cure “rights, privileges, or immunities se-

cured by the Constitution and laws ...."

If Central Machinery's original action im-

plicated either statutory or constitutional

rights protected by § 1983, then the origi-

nal award should be upheld. Maher, 448

U.S. at 128-29, 100 S.Ct. at 2574 (1980)

(§ 1988 applies to all § 1983 violations).

STATUTORY BASIS FOR § 1983 ACTION

Section 1983 provides a remedy for

any deprivation, under color of state law,

3 (continued)

fees if § 1983 would have been an appropri-

ate basis for relief), cert. denied, 469

U.S. 834, 105 S.Ct. 126 (1984); Jackson v.

Inhabitants of Searsport, 456 A.2d 852

(Me.) (§ 1988 award not limited to those

cases where court actually "passed upon a

party's section 1983 claim and ruled on it

in that party's favor"), cert. denied, 464

U.S. 825, 104 S.Ct. 95 (1983). We do not

believe that Central Machinery's failure

to specifically allege a § 1983 cause of

action in the original complaint should

serve as a procedural barrier to the claim

before us.

«$$

of rights created by the United States Con-

Stitution or federal statutes. Central

Machinery's original claim was that Arizona

could not tax a transaction between Central

Machinery and the Indians because the Indi-

an trader statutes had preempted the field

of trading with Indians on reservations.

Central Machinery was successful with this

argument before the United States Supreme

Court.

Unquestionably, then, Central Machin-

ery's suit vindicated an interest protected

by federal law. Central Machinery argues

that Maine v. Thiboutot, supra, recognizes

such interests as within the ambit of

§ 1983. In Maine, the Supreme Court held

that the phrase "and laws" in § 1983 refers

to any federal law and not just civil

rights laws or equal protection laws. 448

U.S. at 6-7, 100 S.Ct. at 2505. According-

ly, Maine has been widely construed as

authorizing § 1983 actions whenever a

atée

plaintiff was adversely affected by a vio-

lation of federal law under color of state

law. See, e.%., Maine, 448 U.S. at 11, 100

S.Ct. at 2508 (Powell, J., dissenting)

("The Court holds today, almost casually,

that 42 U.S.C. § 1983 creates a cause of

action for deprivations under color of

state law of any federal statutory right");

In re Haussman, 96 A.D.2d 244, 468 N.Y.S.2ad

375 (N.Y.App.Div. 1983); Wartelle & Loudan,

Private Enforcement of Federal Statutes:

The Rule of the Section 1983 Remedy, 9

Hast.Const.Law Quart. 487, 487 (1982)

(Maine gave 42 U.S.C. § 1983 "an interpre-

tation pias. for the first time in the sec=

tion's 110-year history, matched the

breadth of its literal language"); Note,

The Application of Section 1983 to the Vio-

lation of Federal Statutory Rights--Maine

v. Thiboutot, 30 DePaul L.Rev. 651, 657

(1981) (court majority in Maine made expan-

Sive interpretation of § 1983).

ey

We do not doubt That Justice

Brennan's majority opinion in Maine, stand-

ing alone, would justify a finding that

Central Machinery's original action was

cognizable under § 1983:

The question before us is whether the

phrase "and laws," as used in § 1983,

means what it says, or whether it

should be limited to some subset of

LOWS « 6 we

Even were the language ambiguous,

however, any doubt as to its meaning

has been resolved by our several

cases suggesting, explicitly or im-

plicitly, that the § 1983 remedy

broadly encompasses violations’ of

federal statutory as well as consti-

tutional law.

446 0.6. at 4, i680 8.Ct. at £504. This

broad language clearly would control the

instant case where the state of Arizona's

laws conflicted with federal laws designed

to protect Indians. We believe, though,

that both Central Machinery and the court

of appeals rely too heavily on Maine.

The Supreme Court narrowed the reach

of Maine in two subsequent landmark deci-

a

sions. These decisions, Middlesex County

Sewage Auth. v. Nat'l Sea Clammers Ass'n,

453 0.8. i, 1014 8.€t. 2615 (1981), and

Pennhurst State School & Hosp. v. Haldeman,

451 U.S. 1, 101 S.Ct. 1531 (1981), estab-

lish two exceptions to the use of § 1983 to

remedy federal statutory violations. It is

these two exceptions, and not the broad

holding of Maine, that are truly at issue

in this case.

In Sea Clammers, the Supreme Court

held that a federal statute containing com-

prehensive remedial provisions may "“demon-

strate congressional intent to preclude the

remedy of suits under § 1983." 453 U.S. at

20, 101 S.Ct. at 2626. Thus, no cause of

action will lie under § 1983 where federal

statutes provide their own comprehensive

remedy. In Pennhurst, the Court held that

violation of federal law does not give rise

to any cause of action unless Congress in-

tended to vest enforceable rights in the

-39-

injured persons. 451 0.8. #t 27-26, i0)

S.Ct. @& i545. Accordingly, a plaintiff

may not enforce a federal statutory viola-

tion with § 1983 unless the statute creates

enforceable rights.

The state argues that both the exclu-

Sive remedy exception established by Sea

Clammers and the enforceable rights excep-

tion set out in Pennhurst bar the award of

attorney's fees to Central Machinery.

First, the state contends that Congress has

so comprehensively regulated the field of

Indian trading that no § 1983 remedy exists

and, therefore, no award of attorney's fees

is available under § 1988. In Sea Clam-

mers, the Court found a congressional in-

tent to preclude a § 1983 action on the ba-

sis of "unusually elaborate enforcement

provisione.” 453 U.3. at 13-15, 101 §.Ct.

at 2623. The Federal Water Pollution Con-

trol Act at issue in Sea Clammers author-

ized the government agency and states to

-~40-

ne J - i me

Be. et Lee ;

7 ce 4

ow

~~ = a

nara x Le eee 1, 4

seek civil and criminal penalties, author-

ized any interested person to seek judicial

review of agency action, and contained two

separate private suit provisions. ta;*

4 The Supreme Court summarized relevant

provisions of the Federal Water Pollution

Control Act:

These Acts contain unusually elabor-

ate enforcement provisions, confer-

ring authority to sue for this pur-

pose both on government officials and

private citizens. The FWPCA, for ex-

ample, authorizes the EPA Administra-

tor to respond to violations of the

Act with compliance orders and civil

suite. .§ 309,32 U.S... 8 3319. We

may seek a civil penalty of up to

$10,000 per day, § 309(d), 33 U.S.C.

§ 1319(d), and criminal penalties

also are available, § 309(c), 33

U.S.C. § 1319(c). States desiring to

administer their own permit programs

must demonstrate that state officials

possess adequate authority to abate

violations through civil or criminal

penalties or other means of enforce-

ment. § 402(b)(7), 33 U.S.C. § 1342

(b)(7). In addition, under § 509(b),

33 U.S.C. § 1342(b)(7) [sic]. In ad-

dition, under § 509(b), 33 U.S.C.

§ 1369(b), “any interested person"

may seek judicial review in the

United States courts of appeals of

various particular actions by the Ad-

ministrator, including establishment

of effluent standards and issuance of

aie

The Indian trader statutes do not

have similar provisions. In fact, a care-

ful reading of the Indian trader statutes

reveals no comprehensive remedial provi-

sions. 25 U.S.C. § 264 admittedly does

provide that any non-Indian who trades

without a license "shall forfeit all mer-

chandise offered for sale to the Indians or

found in his possession, and shall moreover

be liable to a penalty of $500 ...." Ad-

ditionally, the Indian trader statutes do

authorize administrative rule-making, e.g.,

25 U.S.C. § 262 ("Any person desiring to

trade with the Indians on any Indian reser-

vation shall .. . be permitted to do so

under such rules and regulations as the

4 (continued)

permits for discharge of pollutants.

Where review could have been obtained

under this provision, the action at

issue may not be challenged in any

subsequent civil or criminal porceed-

ing for enforcement. § 1369(b)(2).

Sea Clammers, 453 U.S. at 13, 101 S.Ct. at

ootnotes omitted).

o4 20

S

$

al

gl

oa

Nig sagetias

ren a

pts 6

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Commissioner of Indian Affairs may pre-

scribe ..."), that in turn could provide

&4 remedial scheme. One forfeiture provi-

Sion and the possibility of additional rem-

edies, however, is hardly the type of ex-

clusive remedy scheme contemplated by the

Court in Sea Clammers. See Smith v. Robin-

son, 468 U.S. 992, 104 S.Ct. 3457 (1984)

(although plaintiff may have had an alter-

native claim under 42 U.S.C. § 1983, § 1988

attorney's fees should not have been award-

ed because the plaintiff's case belonged

entirely within the comprehensive proce-

dures and guarantees of the Education to

the Handicapped Act (EHA); Montauk-Caribbean

Airways, Inc. v. Hope, 784 F.2d 91 (2nd

Cir.) (comprehensive enforcement scheme

provided in Federal Aviation Act manifests

congressional intent to foreclose an action

under § 1983); cert. denied, o.8. P

S.Ct. » BS U.S.E.8W. 3237 (1986):

accord Keaukaha-Panaewa Community Ass'n v.

~~

Hawaiian Homes Comm'n, 739 F.2d 1467 (9th

Cir. 1984) (mere reservation of right to

sue in statutory scheme is not a sufficient-

ly comprehensive enforcement scheme to

foreclose a § 1983 remedy).

The state also contends that the In-

dian trader statutes do not create enforce-

able rights as defined in Pennhurst and

therefore do not give rise to a claim for

§ 1988 attorney fees. In Pennhurst, the

plaintiff claimed that the Developmentally

Disabled Assistance and Bill of Rights Act

of 1975 (DDABRA) created "enforceable

rights" in favor of the mentally retarded.

451 U.S. at 6, 101 S.Ct. at 1534. The

Court disagreed, holding that because the

DDABRA was designed only to assist states

in their treatment of the mentally disabled

through a "cooperative program of shared

responsibilit[ies]" between the federal

government and the states, it did not cre-

ate enforceable rights. i¢@, at 22, 101

ail Bien

—— oo ae

S.Ct. at 1542 (quoting Harris v. McRae, 448

0.8. 297, 309, 100 &.Ct. 2671, 2684 (19660)).

Therefore, the Pennhurst Court concluded

that it "need not reach the question wheth-

er there is a private cause of action

under 42 U.S.C. § 1983 to enforce [the

DDABRA]." 451 U.S. at 26 n. 21, 101 &.Ct.

et 15435 ni 21 Sea Clammers construed the

decision in Pennhurst not to address a

§ 1983 issue as requiring a determination

of "whether the statute at issue... [is]

the kind that create[s] enforceable ‘'rights'

under § 1983." Sea Clammers, 453 U.S. at

19, 101 S.Ct. at 2626.

Courts applying Pennhurst have not

arrived at a uniform definition of enforce-

able § 1983 "rights." See generally Boat-

owners & Tenants Ass'n v. Port of Seattle,

716 F.2@ 669, 671 (9th Cir. 1983) (“our re-

view of cases from other circuits reveals

divergent views of how broadly ‘rights'

should be construed"). Central Machinery

-45-

vigorously asserts that because the Indian

trader statutes were designed to specially

benefit Indians, see Warren Trading Post v.

Arizona Tax Comm'n, 380 U.S. 685, 690-91,

85 S.Ct. 1242, 1245-46 (1965), Indians pos-

sess "rights" enforceable in a 1983 action.

Central Machinery relies heavily on the

Ninth Circuit's use of the Cort v. Ash, 422

U.S. 66, 78, 95 S.Ct. 2080, 2088 (1975),

implied right-of-action test in § 1983 ac-

tions. The Ninth Circuit has stated that

enforceable rights arise if the applicable

statute confers rights for the special ben-

efit of the class to which the plaintiff

belongs. Boatowners, 716 F.2d at 672, cit-

ing Cort, supra.

We think that Central Machinery reads

Boatowners too broadly.” Most courts now

> Boatowners may be read as holding that

the existence of special benefit creates

enforceable rights. However, such a read-

ing is inconsistent with both Pennhurst and

Subsequent Ninth Circuit cases. The stat-

~46-

agree that an entity does not obtain an en-

forceable right simply because it benefits

from the statute's provisions. See, &.4.,

Brown v. Hous. Auth. of McRae, 784 F.2d

5 (continued)

utes at issue in Pennhurst unquestionably

specially benefitted the mentally handi-

capped. Nevertheless, the Supreme Court

left open the question of whether enforce-

able rights were created. Pennhurst, 451

U.S. at 27-30, 101 S.Ct. at 1545-46. Fur-

thermore, subsequent Ninth Circuit deci-

sions have not used the special benefit

test to determine whether or not a particu-

lar statutory scheme creates enforceable

rights. See Keaukaha-Panaewa Comm. v. Ha-

waiian Homes, 739 F.2d 1467, 1471 (9th Cir.

1984) (the Pennhurst decision “implied that

a(n] [enforceable] right is created when

Congress mandates, rather than merely en-

courages a specified entitlement").

We-also cannot endorse the use of the

Cort v. Ash implied right of action test in

§ 1983 actions. Boatowners asserted that

the use of Cort v. Ash in § 1983 actions is

one of three major methods of determining

the existence of enforceable rights. 716

F.2d at 671-72. In support, the court cit-

ed Perry v. Hous. Auth. of Charleston, 664

F.2d 1210, 1217 (4th Cir. 1981). Boatown-

ers, 716 F.2d at 672 n. 4. The court of-

fered no other justification for the appli-

cability of Cort v. Ash. Our review of

Perry indicates tht the Fourth Circuit did

not use Cort v. Ash in its § 1983 analysis.

Therefore, Boatowner's use of Cort v. Ash

is both isclated and unjustified.

ak Fo

1533, 1537 (llth Cir. 1986); Gould, Inc. v.

Wisconsin Dept. of Indus., Labor, and Human

Relations, 750 F.2d 608, 616 (7th Cir.

1984), aff'd, U.S. , 106 S.Ct. 1057

(1986). Nothing in Boatowners indicates

that the mere finding that a statute is in-

tended to provide special benefit to a par-

ticular group justifies the conclusion that

enforceable rights are conferred by the

statute. Boatowners was primarily con-

cerned with the threshold issue of whether

a regulatory statutory scheme is capable of

supporting a § 1983 action. The Boatowners

court held that the River and Harbor Im-

provements Act at issue, 33 U.S.C. §§ 540-

633, was only intended to benefit the gen-

eral public and therefore could not support

a § 1983 action. 716 F.2d at 673-74. The

Boatowners court never reached the issue

before this court. 716 F.2d at 673-74.

See White Mountain Apache Tribe v. Williams,

No. 81-5348, slip op. (9th Cir. Aug. 20,

offen

1986) (the relevant focus for inquiry in a

§ 1983 action is not primarily whether a

recu’atory scheme was designed to benefit a

particular group).

Courts confronting the enforceable

rights issue have not clearly drawn the

line that separates mere benefit from "en-

forceable rights." For example, the Fourth

Circuit looks to the substantive provisions

of statutes to determine whether § 1983

Plaintiffs are granted "tangible rights" or

are merely beneficiaries of general con-

gressional policy. Only in courts can as-

certain the scope of "rights" with certain-

ty will they be enforceable in a § 1983 ac-

tion. Phelps v. Hous. Auth. of Woodruff,

742 F.2d 816, 821 (4th Cir. 1984); Perry v.

Hous. Auth. of Charleston, 664 F.2d 1210,

1217 (4th Cir. 1981). The Second Circuit

has also recognized that a statute contain-

ing precise standards creates enforceable

rights. Beckham v. New York City Hous.

~~)

Auth., 755 F.2d 1074, 1077 (2nd Cir. 1985).

But see Brown, 784 F.2d at 1536 n. 3 (court

chooses to concur with Wright and acknowl-

edges that Beckham is apposite); see also

Wright v. City of Roanoke Redev. & Hous.

Auth., /71 F.2d@ 833 (4th Circ. 1985), cert.

_ Granted, U.S. , 106 S.Ct. 848 (1985)

The D.C. Circuit has said that a § 1983 ac-

tion lies only when a particular course of

conduct is mandated and looks to specific

legislative use of words such as "shall"

and "entitlement." Samuels v. Dist. of

Columbia, 770 F.2d 184, 196-98 (D.C.Cir.

1985). The Third Circuit also looks to the

statutory language. If statutory or Se

latory language is "cast in the imperative"

then enforceable rights are created. Alex-

ander v. Pope, 750 F.2d 250, 259 (3rd Cir.

1984). See also Student Coalition for

Peace v. Lower Merion School Dist., 776

F.2d 431, 438-39 (3rd Cir. 1985) (mandatory

language in Equal Access Act stating "It

-50-

shall be unlawful ... to deny equal ac-

cess ... to ... any students who wish

to conduct a meeting" creates enforceable

§ 1983 rights) (emphasis original).

We do not have to resolve discrepan-

cies between various circuits in order to

reach a conclusion about the enforceability

of "rights" created by the Indian trader

statutes. The clear thrust of Pennhurst,

and all the cases applying Pennhurst, is

that enforceable § 1983 rights arise only

when Congress mandates specific acts or

standards. Only the strength of the man-

date or the degree of specificity is dis-

puted. No specific acts are required by

the Indian trader statutes. No specific

standards are established by the Indian

trader statutes. The statutes only grant

the Commissioner of Indian Affairs discre-

tion to establish standards that conceivab-

ly could create enforceable rights. MThat

discretion by itself, however, merely rep-

=Si-

resents general congressional intent to

benefit Indians. °

Central Machinery's best argument is

found in the right of Indian tribes to

force the Commisioner of Indian Affairs to

adopt rules and regulations pursuant to the

Indian trader statutes. In Rockbridge v.

Lincoln, 449 F.2d 567 (9th Cir. 1971) the

6 The court of appeals held that Warren

Trading Post, supra, was dispositive of

this appeal. In particular, the court held

that the Supreme Court's statement that the

Indian trader statutes ensure "that no bur-

den shall be imposed upon Indian traders,"

380 U.S. at 690-91, 85 S.Ct. 1242, 1245-46,

created enforceable rights. Central Ma-

Cchinery v. Arizona, slip op. at 5-6. We

believe, however, that Warren Trading Post

merely established that the Indian trader

statutes were intended to benefit Indians.

Warren Trading Post recognized that the

Commissioner of Indian Affairs coul issue

regulations burdening commerce on Indian

reservations. 380 U.S. 688-91, 85 S.Ct.

1244-45. Congress, therefore, did not cre-

ate in Indians an “enforceable right" to

trade without restriction. Congress only

intended that Indians trading on reserva-

tions benefit from supervision by the Com-

missioner of Indian Affairs. Warren Trad-

ing Post, therefore, cannot support the

Proposition that the Indian trader statutes

create enforceable rights.

a + oe

Ninth Circuit held that the Indian trader

statutes did not grant the Commissioner of

Indian Affairs unlimited discretion to

promulgate regulations. 449 F.2d at 572.

Accordingly, Indians injured through the

failure of the Commissioner to issue regu-

lations may invoke the jurisdiction of fed-

eral courts and force the Commssioner to

issue regulations that benefit Indians in

the manner Congress intended. See United

States v. Markgraf, 736 F.2d 1179, 1183

(7th Cir. 1984) (Secretary of Agriculture

May not refuse to regulate where Congress

has provided etiantecds for the exercise of

discretion).

It may appear axiomatic that if Indi-

ans have the right to sue under the Indian

trader statutes to force the Commissioner

to act, they have enforceable rights pursu-

ant to § 1983. Rockbridge, however, does

not undercut our determination that the In-

Gian trader statutes do not create "enforce-

«$4

able rights." Rockbridge centered on the

discretion granted the Commissioner of In-

dian Affairs. The decision merely ~recog-

nized that the Indian trader statutes were

enacted to benefit Indians and that the

Commissioner of Indian Affairs had to com-

ply with federal statutes. Rockbridge, 449

F.2d at 572. Rockbridge did not hold that

the Indian trader statutes establish the

type of specific mandate enforceable in

§ 1983 actions.

Even assuming the Indian trader stat-

utes created enforceable rights, however,

we would not find the original action to be

cognizable under § 1983. The original ac-

tion for a tax refund was decided upon pre-

emption grounds. The Supreme Court stated

that "by enacting these [Indian trader]

statutes Congress ‘has undertaken to regu-

late reservation trading in such a compre-

hensive way that there is no room for the

states to legislate on the subject.'" Cen-

-54-

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tral Machinery Co. v. Arizona State Tax

Comm'n, 448 U.S. 165-166, 100 S.Ct. at 2596,

quoting Warren Trading Post, 380 U.S. at

691 n. 18, 85 S.Ct. at 1246 n. 18. The

Court clearly ruled that Arizona's actions

did not violate any particular federal

statute or regulation. "It is the exist-

ence of the Indian trader statutes, then,

and not their administration, that preempts

the field of transactions with Indians oc-

Curring on reservations." 448 U.S. at 655,

100 S.Ct. at 2596. We are not persuaded,

even assuming that an enforceable right ex-

isted, that such rights were violated. We

must conclude, therefore, that the tax im-

posed by Arizona did not deprive Gila River

Farms of a right, privilege or immunity se-

cured by the laws of the United States.

See Williams, slip op. at 18 (preemption

Claim not involving actual conflict between

federal and state statutes cannot support

§ 1983 action).

-55-

The original tax refund action is not,

therefore, cognizable under § 1983 unless

Arizona violated a right, privilege or im-

munity guaranteed by the United States Con-

stitution.

CONSTITUTIONAL BASIS FOR ATTORNEY'S FEES

Central Machinery has argued that

Arizona's tax violated both the commerce

clause and the Indian commerce clause.

U.S. Const. art. I, § 8, cl. 3. The court

of appeals, however, did not look to the

commerce clause but rather the supremacy

clause when it held that the tax refund ac-

tion was cognizable under § 1983. Central

Machinery Co. v. Arizona, slip op. at 9.

We hold that none of these three constitu-

tional provisions adequately supports the

award of attorney's fees.

Commerce Clause

The United States Supreme Court in-

ate

validated the Arizona tax because the Indi-

an trader statutes regulate reservation

tracing in a comprehensive fashion. Cen-

tral Machinery v. Arizona State Tax Comn.,

448 U.S. at 165-66, 100 S.Ct. at 2596. Al-

though the Indian trader statutes were en-

acted pursuant to Congress' commerce clause

power, Warren Trading Post, 380 U.S. at 691

n. 18, 85 S.Ct. at 1246 n. 18, the Supreme

Court did not hold, nor is there any

authority for holding, that a state tax on

Indians is a violation of the commerce

clause. See, e.g., Moe v. Confederated Sa-

lish & Xootenai Tribes, 425 U.S. 463, 480-

81 n. 17, 96 S.Ct. 1634, 1645 n. 17 (1976).

Accordingly, no violation of the commerce

clause is at issue in this case. Cf.

Consol. Freightways Corp. v. Kassel, 730

F.2d 1139 (8th Cir.) (unsuccessful claim

for § 1988 attorney's fees brought after

state statutes restricting use of sixty-

five foot trailers held invalid), cert.

aS Ta

ee ee

denied, 469 U.S. 834, 105 S.Ct. 126 (1984).

Indian Commerce Clause

Central Machinery argues that the

Indian commerce cluase provides a separate

constitutional basis for a § 1983 cause of

action. The Indian commerce clause actual-

ly is found within the commerce clause,

art. 1, § 8: "Congress shall have Power

- « « [t]o regulate Commerce .. . with the

Indian tribes[.]" Central Machinery claims

that this clause, of its own force, does

not tolerate a State burden directly im-

posed on commerce with the tribe itself on

its own reservation. The Supreme Court,

however, has stated:

It can no longer be seriously ar-

gued that the Indian Commerce Clause,

of its own force, automatically bars

all state taxation of matters signif-

icantly touching the political and

economic interests of the Tribes.

That Clause may have a more limited

role to play in preventing undue dis-

Crimination against, or burdens on,

Indian commerce.

-58-

Washington v. Confederated Tribes, 447 U.S.

134, 158, 100 S.Ct. 2069, 2083 (1980) (ci-

tations omitted).

Central Machinery cites three deci-

sions of the United States Supreme Court to

Support its position. All three cases sim-

ply established Congress' expansive power

to control Indian commerce. The Kansas In-

dians, 72 U.S. (5 Wall.) 737 (1866), held

only that certain Indian tribes, under the

exclusive control of Congress, were not

Subject to state taxation. Id. at 755-57.

United States v. Forty-thraee Gallons of

Whiskey, 93 U.S. 188 (1876), held only that

Congress has the power to freely regulate

Indian commerce. Id. at 194. Similarly,

United States v. Holliday, 70 U.S. (3 Wall.)

407 (1865), established simply that the

Indian commerce clause authorized federal

regulation of Indian commerce occurring

completely within one state's boundaries.

Id. at 418. The cases do not define state

-59-

behavior that violates the Indian commerce

clause.

The Supremacy Clause

We disagree with the court of appeals

determination that rights secured by the

supremacy clause are enforceable in a

§ 1983 action. Every federal treaty, stat-

ute or regulation is "secured" by the su-

premacy clause. Williams, slip op. at 7,

quoting Chapman v. Houston Welfare Rights

Org., 441 U8. 666, Sid, 99 8.Ct. 39065,

1913-14 (1979). If the supremacy clause

created enforceable rights, the holdings in

Pennhurst and Sea Clammers would be under-

mined. Any violation of a federal statute

under color of state law would be a "viola-

tion" of the supremacy clause and, there-

fore, the basis of a § 1983 action. Penn-

hurst and Sea Clammers establish, though,

that not every federal statute will support

a § 1983 action. The court of appeals de-

«i<

cision, then, conflicts with these recent

Supreme Court cases. Furthermore, if the

Supremacy clause created substanti’e rights,

then the phrase "and laws" in § 1983 would

be superfluous because any violation of a

federal statute, under color of state law,

would be a constitutional violation. We

Will not construe the statute in such a

manner. See Chapman, 441 U.S. at 621-23,

99 S.Ct. at 1918-19 (1979), quoting Georcia

v. Rachel, 384 U.S. 780, 789-92, 86 S.Ct.

1783, 1788-90 (1966); Williams, slip op.

at 18 (no cognizable rights under § 1983

were created merely as a result of preemp-

tion under the supremacy clause); Gould,

Inc., 750 F.2d at 616 (supremacy clause vi-

Olation does not present a cognizable claim

under § 1983).

Our position is supported by Chapman,

Supra. In Chapman, the Supreme Court held

that the supremacy clause did not create

substantive rights within the meaning of 28

a$}<

U.S.C. § 1343(3). Id. at 614-15, 99 S.Ct.

at 1914-15. Section 1343(3) grants federal

courts jurisdiction "[t]o redress the dep-

rivation, under color of any State law,

» « « Of any right, privilege or immunity

secured by the Constitution of the United

States or by any Act of Congress providing

for equal rights ...." The Court held

that "to give meaning to the entire statute

(§ 1343] as written by Congress, we must

conclude tuat an allegation of incompati-

bility between federal and state statutes

and regulations does not, in itself, give

rise to a claim ‘secured by the Constitu-

tion’ ....% 441 0.8. at 615, 99 &.Ct. at

1915. Similarly, an allegation of incom-

patibility between the Arizona sales tax

and the Indian trader statutes cannot sup-

port a § 1983 action.

In conclusion, the state has not sub-

jected Central Machinery or the Indian Riv-

er Farms to a deprivation of rights, priv-

=62-

ileges or immunities secured to them by the

Constitution and laws of the United States.

The § 1988 claim must fail because the

Original tax refund action is not cogniza-

ble under § 1983.

The opinion of the court of appeals

affirming an award of attorney's fees to

Central Machinery is vacated. Centra] Ma-

Chinmery’s motion for attorney's fees under

42 U.S.C. § 1988 is hereby dismissed.

JACK D. H. HAYS, Justice

CONCURRING:

WILLIAM A. HOLOHAN, Chief Justice

PRANK X. GORDON, JR., Vice Chief Justice

JAMES DUKE CAMERON, Justice

STANLEY G. FELDMAN, Justice

=63-