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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1987
- **Citation:** 479 U.S. 1060

## Text

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.

ee

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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Tr.

A eT a A Le lt a

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
toe
OG ale ae oe
a
7 a A et !
4 eS ee
i Piet 7 _
_ = as }
pi ian ee
D eet Fe eae 8
> pent At
- _ dl
y {
= ? a Ps =
heme! Le | :
ao Ce acre —
: : as ba .
Pa i
ype i
“ 7 ot vil
Set ae
Rare -
a es
a
Lan)
n ,
n i)

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-

—— fa i £
= _ * ee if °
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a ea)
| 7 ae a ol] 7 : “I 4 oor
ass 7 pts oO pr Wee
; ey pam aia ew oe t
et i eid i ay an a sr aed
ee,
, CAS So, pk eee 2
1c a. r eat, hg *Je it q > oe
oe ae a ee _
ay a te! 2. ee
7) eens»
= ry ——- 7 7 5) Z
a an) ny Carers i
; a) U ew iy 2
ie = Oy Shee
a > we ny,
q iL oo
7 7
i
7s * _

ae
o'* vit om

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-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2369%3A2. Public record. Not legal advice.