# Brief for the Respondent in Opposition — Agua Caliente Band of Mission Indians v. County of Riverside > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0359%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Respondent in Opposition - **Published:** January 1, 1972 - **Citation:** 405 U.S. 933 ## Text AFI Nyt ES ‘ . ~ ° x e ae a > : S26 . . ° . .. ; ° 5) yg * . @ . vy . - - . fe 2 . . . ‘ . - . . * ° - one 4 . Pi 4 . . . . % . - ‘ . . . - . e ‘ 2 e -* . ¥ . . a . . . Ps F / . “ . . - . . “ . e. Ll fe - el - f 4 % Be 4s ” ° : cn 4 : ain wos .- : ni Precuyicy COUR a i= ‘oo pies Sa iy e ? ee Mabie Pate PY iat Seo. Saree I area Se : a mS eR pare og EPR Bis Caeee : Se Goa rig eee Riees aet : a x tg re Be | Renee ee eR een ere 18 ‘Oklahoma: Tax. Commission v. Texas Company, 336 U.S. 342 (1949) Fiocsaiacacievontsimeaioonsell 10 ‘Oklahoma Tax. Commission v. United States, 319 REA See CGE icine tee Organized Village of Kake v. Egan, 369 U. Ss. 60 CID chgnasiicsncessedinatinneaisinsisdainkdilipignciplehuaninabinei Palm Springs Spa, Inc. v. County of Riverside, 18 Cal.App.3d 372, ........ Cal,Rptr. ........ (1971)... Sweet v. Schock, 245 U.S. 192 PRET D aissentcennns Taber v. Indian Territory Sessa: Oil Co., 300 U.S. 1 (1937) i ee ee ee es Page 16 17 Thomson v. Union P. R. Co., 9 Wall. US.) 579° : (1870) ee ee eee eee eee ‘Union P. R. Co: v. Peniston, - Wall. (US. 3... ee pcalaicalas AA poibnmabictasenaa sh aelacreiesaemssceasaaeanieasiie a ae papeeet ee ys oh ee | | . Page ‘+ United States v. Boyd, 378 U.S. 39 (1964)... 9 United States v. Detroit, 355 U.S. 466 (1958) spasuabitsnealiceld epi asetedaepedasciclamiss tei amicaaclie ons tilasn sae 8, 9, “11, 14 United States ' v. Erie County, 31 F.Supp. 57 sisal a. Wee Soe IR SN I OI 14 United States v. Livingston, 179 F.Supp. 9. (E. D. S.C. 1959) aff'd without _— 394, US. 281 - , = A I sa aliaaaeie ceaambaescattrenchli astra oo 16. - United States \ v. Township of er 355 US. re rae 8 Universal Consolidated Oil i v. Byram, 25 Cal. ae Jaa, 13s F268 6 (1558) .............................. 17 Wagoner v. Evans, 170 U.S. 588 (1898) es 13 | Miscellaneous Hearings on H.R. 17273 Before the Subcommittee — on Indian Affairs of the House- Committee on - Interior and Insular Affairs, 90th Cong. 2nd _ Sess., ser. No. 90—28 (1968) - ee REN CRE a J ec Hearings Before the Special Subcommittee on Equalization on Land Allotments on the Agua. . Caliente Reservation in California of the House - Committee on Interior and Insular Affairs, 85th Cong., Ist Sess., ser. No. 17 (1957) -................. 14- Marshall, State and Local Taxation (11 California Practice, 1969) : Sk OEE es desambeagmecnumuiabnnenaeliins 19 Regulations Cede of Federal Regulations, Title as Secs. 131.1- ~ 3 Reem PF Ps SOE. POF OE 4,44 ~ Code of Federal Regulations, Title 30, Secs. 221.1- SEE. Neneuabitiendipetanivianindtivatinceraon tanec 11 V. | Rules : - Page Rules of the United States Supreme Court, Rule AP RB EE TAA Dna len NR ee a Ee REA NOY 19 - Rules of the United States Senedee Court, Rule SEE > a)aateniniieidansaitnioseniolscecntnaieracskonemeeelicoensiaennindamaite (a | Statutes | Act. rt August 9, 1955, c. 615, 69 Stat. 539, as” amended, 25 US.C. Secs. 415-415d ipiitipabaasis 4 Agua Caliente Reservation Act of August 9, 1955, i, As GI I I enn is ecclsrsimmeetssomaniisirtilmeni 4. * Califorifié Revenue and Taxation Code; Sec. 107 Ge EEE Reeve PE Ll a NAIR Daa a California Seiad and Taxation Code, Secs. 5136- 5143 Be RI. SI SE Oe Sa OE RN a 18 California Revenue and Taxation Code, Secs. 5096- 5 aig ORR LAC DNR COOK, AEN NTN oe Noe = Mission Indian Relief Act of feats 12, 1891, 2 65, 26 Stat. LL ee ey i Public Law, Sec. 280 ..................... eect omen: United States Code, Title 18, Sec. 1162 recente 13. " United States Code; Title 28, Sec. 1254 (1) : a United States Code, Title 28, Sec. 1341 ...... en IIE RE AFIELD I NL A 2, 15; 16, 17 United States Code, Title 28, Sec. 1360 ........... & United States Code, Title 28, Sec. 1360(b) ........ 14 United States Constitution, Art. I, Sec. 2s ee 13 - 4 ~~ qubleanw—s> °—, Supreme Court of the United States ‘October ‘Term, 1971 ‘No. ‘71-183 THE ‘AGUA CALIENTE BAND. OF MISSION INDIANS, by and through its TRIBAL COUNCIL, and DORA JOYCE PRIETO,:-PRISCILLA GONZALES, GLORIA GILLETTEE, PATRICK PATENCIO and LAWRENCE PIERCE; Allottees, : Individually and in Class Action, on behalf’ of ALL ALLOT- TEES of Allotted land on the AGUA CALIENTE BAND OF MISSION INDIANS RESERVATION, -- Petitioners, vs. THE COUNTY OF RIVERSIDE, a political subdivision of the ‘STATE .OF CALIFORNIA, ‘Respondent. On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit. ~ BRIEF FOR RESPONDENT IN OPPOSITION. _* . Opinions Below. _ The opinion of the United States: ‘Court of nial for the Ninth Circuit and dissenting opinion were filed ‘ on May 12, 1971, and are reported at 442 F.2d 1184. _” A copy of these’ opinions is attached to Petitioners’ brief, and marked ‘Appendix C. The opinion- of the United States District Court, Central District of. Cali-. fornia, was filed on October 17, \1969, and is reported at 306 F.Supp. 279. A copy of this opinion is attached to Petitioners’ brief and marked Appendix B. | ‘ ae aie Jurisdiction df this Court is invoked pursuant to 28 U.S.C. §1254(1), and Rule 22 of the Rules of the Supreme Court of the United States. The judgment of ‘the Court of, Appeals for the Ninth Circuit. was en- tered on May 12, 1971, and the petition for certiorari and the certified record were filed within 90 days of _ that —_ 3 | - Questions Presented. ae 1. Whether or not a non-Indian lessee is exempt from property taxes assessed against his commercial lease of Indian trust land and other property. 2.. Whether or not there is a plain, speedy and ef- - ficient remedy in’ the California courts to test the va- lidity of the assessment of the possessory interest tax against non-Indian lessees of Indian trust lands so~ _ that the Tax Injunction Act (28 USC. §1341) bars the Petitioners’ suit. Statutes Involved. | The relevant statutes: are set forth in Appendix A. ’ They are the following: : = 28 U.S.C. §1360 \ = “28 U.S.C. §i341-\ 7) fe | on Mission Indian Relief Act. of January 12, 1891, “©: : 3 sia 65, 26 Stat. 712 . ’ California Revenue and’ Taxation Code 8107 | gees , Statement of the Case. ae This is an action brought by an Indian band and allottees to recover damages and to permanently enjoin _ the collection of possessory interest taxes by\the County of Riverside from non-Indian lessees of Indian - trust a lands. —- | 7 ge ! : aunt ‘ —3— The trust lands comprise ‘the Agua Caliente (Palm Springs) Indian Reservation. The reseryation’ contains. . 26,696.28 acres of mostly non-contiguous sections of _ land in and around the resort city of Palm Springs, - California. [T. 174, line 25, to, T. 175, line 3,] The — . trust provisions under which the United States. holds title for the use and benefit of the band ‘and allottees: is contained in the Mission Indian Relief Act of Jan- uary 12, 1891, c. .65, 26 Stat. 712; and later amend- ments. [Amended. Pre-trial Order; R. 509,- lines 1-6; T. 21, line 24, to T. 25, line 8.] | The tax. complained of in this action was first lev-. ied on non-Indian lessees in 1961. [T. 126, lines | 11-16. ] It is an ad valorem property tax assessed against the improvements and leasehold interest owned by non- Indian lessees of Petitioners. The measure of the tax is the market value of the- -property owned by the lessee, excluding the tax-exempt interest of thé Indian.- In. making his appraisal, the County. Assessor first deter-— mines the value of the land, assuming that the fee. is unrestricted; by the. usual methods of valuing land. The Assessor then values the ‘tax-exempt reversionary - | interest. Subtracting the value of the Indian’s interest from the value of the land leaves the “true. value” of the possessory interest. Additional deductions are made to reflect the risk associated with the lease’ and the. re- ae strictions contained’ in the lease agreement. The final’ result is the “full cash“value” of the possessary interest. ‘County. of ‘Riverside v. Palm-Ramon Development Co., 63 Cal.2d 534,. 47° Cal. Rptr. 377, 407 ask 289 (1965). 7 -At present, 1250 acres of reservation land are under long-term lease. This includes 8 acres of tribally owned land. [T. 25, lines ‘5-7.] The majority of these leases ~ ae Rs . “Nal Gt a Fepscsme ae bm gerenjiaat PEER . lease term to 99 years. [T, 25, line 12, to T ~ $131 et seq. and the a were executed after. 1961. [T. 190, lines 4-8.| Long term leasing of land on the Agua Caliente Reservation was authorized in 1955 by the Act of August 9, 1955, c. 615, 69 Stat. 539, as amended, 25 U.S.C. §8415- 415d. Although leasing of land on the reservation” has been permitted since the turn of the century, it was not until 25-year lease terms were permitted that Oppor- tunities for lease development arose. Subsequently, it became apparent that this term was insufficient to at- - tract large investment because of, the lack of adequate _. financing available for leases with only 25 year terms.. Therefore, in 1959, Congress extended the 2 tn 2 , line 4; T. 68, line 23, to T. 69, line 7.| All leases. of Indian provisions of 25 C.F.R. | broval of the Bureau of Andian trust land are subject’ to Affairs.. Two. leases of reservation = were introduced into ~ evidence at trial, ‘one signed before and the other after the County first .assessed the possessory_ ‘interest tax against a non-Indian Iqssee. One lease is a long-term commercial ‘lease executed January 21, 1958, between: Palm. Springs Spa, ‘the predecessor in interest of Palm . Springs Properties, ‘and the Agua Caliente Band of oS Mission ‘Indians.’ [Pltf. Ex. 4, admitted T. 48.] This lease required the ‘construction and installation of ex- tensive improvements on the property by the lessee ($2,800;000.00). [Pltf. Ex. 4, R. 50, line 21, to R. 51, line 2.] The’ buildings, trade fixtures and personal property placed on the leased land become the: said Palm atten Spa is pomeers seeking in the State Courts, so far unsuccessfully,”a refund of the possessory interest taxes it ‘has paid to the County of Riverside. Palm ~ neal Spa, Inc., v. County of Riverside, 18 Cal. wines aa Sta, ... ae — | ag7, of the ‘Indian upon the expiration of the. lease term. [Pltf. Ex. 4, Ry 16, lines 22- —s As amended, the Kase i is for an initial term of 99 years. _ The lease a a percentage lease. The minimum rental _ is $36 ,099.80 per annum. The lessor also receives 5%: _of tovab’ sales except for food sales which is 1%. {T.. (132 lines 3: 11; Pitf. Ex. 4,R. 15, lines 2-21. | The other lease was- entered into on November 30, 1961, between Palm Springs’ Spa Annex and members of the Patencio family, allottees No. 15 to 18 inclusive. [Pitf. Ex. 10, admitted T. 195.] The lease is for a ‘term of 99 years. Buildings, improvements, trade fix- tures and personal property in the value of “$1,500,-- 000.00 are required to be constructed and installed,’ | becoming the property of the Indian upon termination - ‘of the lease. aia Ex, 10, ey ‘line 30, to p. 8, fous : 14.) - , | . This lease is ; also a percentage ary The minimum Tental is $4,680. 00 per year for the. first two years; $7, 800.00 per year for the next two years, and $31.- 200.00 per annum: thereafter. The determination of _ the excess over the rental minimum is based on 5% of ’ hatel’ and -other business receipts; 1%‘ of: restaurant Te- ceipts; 242%. of liquor sales- receipts and a percentage of from 15% to 742% of receipts from subleases of all other facilities depending upon: thé value of the im- provements constructed on the premises. [ Pitf. Ex. 10, pp. .4-5.] Possessory . interest taxes on the ‘lease are deducted in computing the: Percentage rental. [Pltf. | a | 10, p. 4, lines 26-31. | ' The location of the property leased - pursuant to the Spa lease and the, Spa Anney lease is in downtown a — [T. 13, lines 8-24.] ° ee ae > 2 ‘ * t * ' @ ct. a 2 Both leases provide that the lessee is to pay all taxes, "general and special assessments, that may be -assessed ‘upon or against the leased land and all interests there- ‘in ahd improvements and .other property thereon to . which either-the lessor or lessee may beedme liable in ". relatiog thereto.” [Pltf. Ex. .4, R. 17, line 26 to R. 18, line 10; Plif. Ex. 10, p. 16, lines 6-17. | The result af the imposition of possessory interest tax on the interest of nen-Indian lessees was to intro’ dyce.an added element to lease negotiations. (T. 228, line 15-to T, 229, line 9.| The Indian lessor in order to reach agreement in.post-1961 lease negotiations, has to agree to a rental rate that considers the lessee’s pos- sessory interest\tjx payment? [T. 12, line 16, to T. 219, line 24; T. 70, lines 17-19.| The imposition of the tax doesnot affect the fair market value of the Indian trust land [T. 234, lines 16-25; T. 242, line 22, to T. - 243, line 5], there being no evidence to indicate that it results in the Indian feceiving less than the mar- ket eStablished (fairy¥ net return on the property. [T. : 273, lines 6-15 a, | In the opinion ef Leonard M. Hill, Area Director far the Bureau of Indian Affairs, the impaet of the tax on development has ‘not been “particularly negative.” [T. 31, limes 10-13 and T, 31, line 22, to T. 32. line 1.| The Department of the Interior's Palm Springs - Task Force in its report “Administration of Guardian- ships and Conservatorships Established for Members of the Agua Caliénte Band of Mission Indians” dated . hd 2 neciati the fact tt te pomescry interest ta ways he tox coe amide ae [TE 217. fine 16, Jo T. 215, lime 22.) = a” ‘March, 1968, does not list the tax ‘as one of the several - impediments to the economic development of the reser- _ vation. The Task Force Report is contained in Hear- — _~ dtigs on-H.R. 12273 Before the Subcommittee on In- dian A fairs of the House Committee on Interior and Insular Affairs, 90th Cong. 2nd Sess. ser No. 90—28, (1968) at pp. 19-193. - It is in contention of Petitioners that as a.matter of law, Indian lessors are entitled to receive a net return . om leases of trust land of 8%; although the market or fair rate of net return is only 6%. [T. 306, line 16,° to T. 307, line 5.| In order ‘to receive this higher ra‘c of return, California’s possessory interest tax must be removed as a cost to the non-Indian lessee because the lessee is not willing to pay more to lease Indian land ‘ than non-Indian owned land. [T. 306, lines 5-10: T " 320, lines 2-6.}. a oe ARGUMENT. A « Fhe California Possessory Interest Tax May Be Validly Assessed Against Non-Indian Commercial Lessees - of Indian Trust Land. ' This action is somewhat bizarre in that the parties who are complaining of the tax are not the taxpayers. * The petitioners’. property interests are neither the sub- ject of the challenged tax nor are their interests includ- ed in the measure of the tax. The tax is assessed against, and measured ‘by: the value of the non-Indian commer- - cial leasehold ¢state that concurrently exists in their | trust property. There is no way that ultimate liability . for the tax can fall upon the Indians or the Federal. Government. Even under the lease agreements offered into evidence and approved by the Bureau of Indian Affairs, the burden of paying the tax remains with the ~ non-Indian lessees. ‘The basic ‘question in this case is: Are Indian owners of Indian trust lands’ entitled to be free from “any indirect economic impact of State taxes, thereby making tax exempt the property interests of their les- sees who have no personal immunity and who lease the land for their own purposes and profit? - ‘The Court of. eoyl felt-the Petitioners’ position - to be “untenable” |442 F.2d at 1187] and. rested its decision on United States v. City of. Detroit, 355 US.: 466 (1958), and Oklahoma Tax Commission. v. Texas Company, 336,U.S. 342 (1949). In United States v. City of Detroit, supra, this Coyrt upheld a tax similar to the- California possessory in- — terest ‘tax, that was assessed against the leasehold es- tate of a government contractor.” To the argument that ®Accord: United. Staies v. - Township ov] Muskegan, 355 US. on, eatacet ° ‘ = ey the tax would decrease the rental income to the Gov- | ernment, this. Court answered “.’. . the imposition of an inereased financial burden on : the Government does not, by -itself, .vitiate a state tax.” [336 U.S. at 472.] Similarly, this Court speaking through Justice White in United States. v. Boyd, 378 US. 39 (1964), epit- - ° omized the case law with respect to the existence of an implied Constitutional immunity from taxation as fol- . lows: +, Fi . The Constitution immunizes the United States and- its property from taxation by the States, ‘[ci- tation] but it does not forbid a tax whose legal incidence is upon a contractor doing business with the United States, even though the economic bur- den of the tax, by contract or otherwise, is ul- timately borne by the United States. +: (Citations. } [378 U‘S. at 44.] : Petitioners seek ,to distinguish United States v. City of Detroit, supra, by arguing that the California tax has a disastrous impact on the program’ of leasing _ Indian lands and lease revenus.* Without explaining " the contradiction, however, they assert and have in fact imposed, what is reputed to be a tribal possessory: in- terest tax. Suffice it to say that Leonard M. Hill, Area Director for the Bureau of Indian Affairs,’ and the ’ o ‘No authority is cited for the assumption implicit in petitioners brief that they are entitled as a matter of law to a rate of return on trust lands in excess of that paid for similar non-Indian land. ’Mr. Hill stated: “I think after the first shock, after it, was generally known that the County was assessing the tax, that the tt si, on the development Was not particularly negative... .” 31, lines 10-13], and “I think in recent years or the last two or three years I do not think that the.imposition of a tax neces- satity has slowed up the development on the leases that have been negotiated since everyone knew that the impositton would be made.” [T. 31, Jine 22, to T. 32, line 1.] - ; * =o Department of the Interior’ s Palm Springs Task Force “a do not see the impact -or the lease program that Pe- © . titioners find. Neither was there any -evidence to ‘indi- cate that the possessory. interest tax results in the In- . dian lessor rectiving less than the market established rental rate of return. | T. 273, lines 6-15.] ° The argument that a non-discriminatory property tax . assessed against “a third person, could .as a matter of law ever be considered more than a theoretical burden On a tax-cxempt “entity has been previously rejected by this Court. Oklahoma Tax Commission v. Texas” Company, 336 U.S. 342 (1949); Taber v: Indian _ Territory Illuminating Oil’ Co., 300- US. 1 (1937); Choctaw, O. & G. R. Co. v. Mackey, 256 U.S. 531, 535-537 (1921); Gromer v. “Standard Dredging Co., 224 U.S. 362 (1912); Central P. R. Co. v. California, 162 U.S. 91 (1896); -Thomson v. Union P. -R. Co., ‘9 Wall. (U.S.) 579 (1870). As stated -in Union P. R. Co. v. Peniston, 18 Wall: (U.S.) 5 (1873): . It is, therefore, manifest that exemption of Fed- eral agencies from state taxation is dependent, _ not upon the nature of the agents, or upon the mode of their constitution, or upon the fact ‘that they are agents, but upon the effect of the tax; - that is,.upon the question whether the tax does ~ “* in truth deprive them of power to serve éhe govefn- ment as they were -intended to serve it, or does hinder the efficient exercise of their power. A tax upon their property has no such necessary effect. It leaves them free to discharge the duties ‘they have undertaken to perform .. . [18 Wall.-(U.S.) at 36-37°] a The Petitioners’ position, in essence, seeks to re- surrect the old “economic burden” test for tax: exemp- _| / m, | ; et _tion, that the. Federal Government rejected as “illu- sory and incapable of consistent application.” “United — States v. Detroit, 355 U.S. 466, 473 n.4 (1958). : The various arguments that Petitioners raise in at- tacking California’s possessory’ interest tax were decid- ed adversely to them in Oklahoma Tax Commission v. Texas Company, 336 U.S. 342 (1949). Invthat ac- tion a lessee of mineral rights® in Indian trust land was held to be subject to the Oklahoma gross produc- tion tax and per barrel excise tax. The gross produc- ~ tion tax was levied at the same rate as the. property tax-rate and was in substance an ad valorem proper- ty tax under State law, 336 U.S. at 346, and treated ‘as such by this Court, 336 U.S. at 350. The holding. - of-the Court was expressly grounded on its earlier: de-. cisions cited in footnote 18 of the opinion that. have : held that “property owned by a private person and used . by him in performing services for the Federal Govern-— ment is subject to state and lacal ad valorem taxes.” 336 U.S. at 350. Arguments that taxation of the’ son-Indiei lessee’s property violate the trust obligation of the Federal Gov- ernment to convey the Jand-“free of all charge or in- cumbrance whatsoever” at the end of the trust period beg the question. They assume that the non-Indian les- see’s estate is‘also subject to the trust provisions. This is not the: law. In holding the. interest: of a non-Indian in Indian trust land subject to ad valorem. taxation. -®As in the present action the lease was subject to regulations of the Secretary of the Interior. 336 U.S. at 345. ‘These regula- tions are more restrictive than those applicable to the leases in the present action. Compare 30 sca ieot §§22i.1-221.67 with 25 C.F.R. §§$131.i1-131.i9. Shw ROR enog NY ‘nadernet cite oh ta peradls. \\ ae eae this Coutt i in : alien v. Paukune, ‘344 US. 171 952) | ‘stated: | ii Levindale Lead Co. y. Coleman, 241 USS. (432 a . dealt with restrictions on alienation attached to land under the Osage Indian Allotment Act of. June 28, 1906,.35 Stat. 539. The’ Court held that the - policy of-that Act did not embrace persons who were not Indians, since the Congress sought to pro- ‘tect only those toward whom it owed the duties of a guardian. The same answer must be given here. - If Juana is not an Indian; the United States has no interest of hers in the land to protect. True, the United States holds the legal title to the land. . But nothing in the act prevents the devolution of the equiable interest to the widow. If she is not within the class-who Congress sought to protect, the trust is a dry and passive one; there remains only a ministerial act for the trustee to. perform, hamely, the’ issuance of a fee’ patent’ to the cestui. [344 U.S. at 173. Footnotes omitted.] Similarly, this Court in Fink v. County Commission- ers of "Muskogee County, 248 U.S. 399 (1919), held that the exemption from ad valorem property‘ taxes of Indian trust land, does not run with’ the land so as to exempt it from taxation in the hands of a non-Indian purchaser.*. There is’ nothing in the Mission Indian Relief Act that indicates that Congress intended that. non-Indians living Off the reservation pay the costs: of schools, roads, courts, police protection and ‘all the other benefits of an ordered society for the non-Indian lessee as well as the Indian. In. fact, as originally en- acted, leasing of the land was forbidden—the property being “for the sole use and benefit” of the Petitioners. 7To the same pene is Sweet v. Schock, 245 U.S. 192 ( 1917). Lo Contrary to Petitioners’ argument, x the commerce ‘clause of the. Constitution (art. I, §8, cl. 3)-is not a . bar to the California tax. State taxation of non-Indian | The burden is clearly on " Pethioners to persuade Congress, if they feel it necessary, to enact’ legislation - creating a tax exemption for their commercial lessees. a :’ This Court has repeatedly said that tax exemp- 4 _—~ tions are not granted by implication. United States |. . Trust Co.-v. Helvering, 307 US. 57,60: It has ‘applied that rule to taxing acts affecting Indians as,to. all others. As was said of an ‘excise tax on tobacco produced by the Cherokee Indians in 1870, “If the exemption had _- been intended, it -would doubtless have been expressed.” Cherokee Tobacco, 11 Wall. 616, 620. [Oklahoma Tax — Commission v. United. States, 319 US. 598, 606 (1943). } ~ Congtess is certainly: aware of the existence of the | application of the. possessory interest tax to non-Indian ~ lessees Such a tax was first upheld against a non-Indian | leasehold estate in Indian trust land_ in United States -e Erie County, “31. F.Supp. 57. (W.D.N.Y. 1939), and its use was suggested by Congressman Utt during hear- ings before Congressman Haley’s subcommittee in 1957. Hearings Before the Special Subc ‘ommittee on Equaliza- _ tion on Land Allotments on the Agua Caliente Reser-. vation «in California of the *Hous Cominiitee on. In- terior and Insular Affairs, 85th ‘ong., - Ist Sess., ser. No. 17 at 41—42 € 1957). 2) 1 *United States v. Detroit, 355 US. 466 (1958); Pedple- v. -m . Shearer, 30 _- 645, 657 _— ; oo onthe Sopec _ Petitioners Have a Plain, Speedy, and Efficient Remedy |. for Their Alleged . Injury in the Cours of bas fornia. . . The Tax Injunction Act, 28 U. S.C. 134, — that: . _ The district courts ‘shall not enjoin, suspend o - restrain the: assessment, levy. or collection of any\ ° tax wgder State law where a plain, speedy ach \ efficient remedy may be had in the courts of such State.: \ : . The Policy that led to the enactment of the Tax In- junction Act is stated in Matthews v. . Rodgers, 284 US. 52k ‘ 1932): ._The scrupulous regard for the rightful in- * Aiba of state governments which should at all.times actuate the federal courts,-and“a proper reluctance to interfere t by injunction with their fiscal operations, requirg ‘that such relief should be ‘denied in every case where the asserted federal right may be preserved without it. [248 US. at_. ‘5 525. ] : . ] The United States Court of Appeals in ‘reaching its. — decision on the merits, held that -a person who could have been co-plaintiff with the United States, is en-.- titled. to eee an action in the federal courts con-— ‘testing a State tax atlegedly imposed on ‘a federal instru- mentality; 28 U.S.C.: §1341 to the contrary: notwith-. standing. 3 a | : ’ In so holding the court failed. to cite -or distinguish — its carlier opinion in Harsh California Corp: v. County. of: San° Bernardino, 262 F.2d 626 :(9th. Cir. 4958), ‘that affirmed the dismissal,- of an action, pursuant to ae jet! 2 idee Nh Tees # indie OS ae eel 28 3 U. S.C. $1341, toenjoin the collection of possessory. ‘ interest taxes assessed against the Harsh California ~ - Corporation ’ on its lease’ of tax-exempt land and im- provements owned by the United States. | — Nor did the court. make. any. mention, of - Lasker Boiler and Engineering Corp. v. Hamm, 216 F.Supp. 74 (MD. Ala. 1963), aff'd 328 F.2d 429 (Sth Cir., 1964) wherely the/ District Court dismissed dn action, ' pursuant to the Tax Injunction’ Act, to enjoin a State use tax that allegedly “violated the sovereign immunity of the United States and subjects plaintiff, as an of- ficial agency of the United States Government, to state.” _ tax action’ without authority therefor. ; 1. [216 F, Supp. at*75. | Merely because’ an Indian can sue. to. ‘protect his’ property rights doés not mean that hé enjoys the same 7 access to the federal courts as that available to the United States. It is the presence of the United States - in an action, not the fact that; the. United States could - - have been present because the issue is the alléged taxa- tion of a federal instrumentality, that’ creates the ex- - ception to.the jurisdictional bar of 28 U.S.C. §1341. In United States v. Livingston, 179 F.Supp. 9 (E.D. * §.C. 1959) aff'd without opinion:394 U.S. 281 (1960),_ felied upon by the Court of Appeals in‘ excepting pe- . -_titioners from the operation of 28 U.S.C. §1341, ‘the court specifically determined that the United States was not just a nominal party in that action but was in fact suing to defend its own sovefeign immunity. The opih- ion of the court also touches on what is the real basis ' for exempting the United States from #8 U.S.C. $1341, - - the absence ‘of a clear and explicit expression of: Congress to the e contrary: 4 ‘ _—17—") | There appears no -good reason why the Con-: > gress should deny. the United States the protection ase of the equitable powers of her’own courts jin a | situation such | as that. with which: we are now con-. - cerned, . _.[179 F.Supp. at 11. | ——— The discussion by-this Court in Department. of E ployment v. United States, 385 U.S. 355° (19663; on the application of the Tax Anjuhction -Act to ‘suits brought by the United States, and the authorities cited” - 2 ‘footnotes, 6° and 7 of the opinion, also inidicate that it is the presence of the: United States in the .ac- ‘tion, and, not the fact that a tax is alleged to be im- posed. on:a ‘federal instrumentality, ‘that creates the ex- ception to 28 U.S.C. §1341._. DNS = ~Fer-we-conclude, in accord with am un- : broken line of authority and, convincing evidence . _ of legislative* purpose, that §1341- does not att. as ‘a restriction upon suits by the United States. ‘to protect itself and its instruménfalities .from un- constitutional state exactions. .. . [385 U.S. at’ ~ 358. Footnotes omitted. | There are numerous remedies Petitioners could have. sought under | California’ law, had they brought the present action in the State courts.’ These remedies are: an action in mandamius to compel the Assessor ‘to al- re low the claimed ‘property tax exemption, Eisley v. Mo-- a ‘han, 31. Cal.2d 637; 192 P.2d 5 (19483;. Lockhart | vy. Wolden, 17. Cal.2d 628, 211 -P.2d 319 (1941); an action to enjoin the ‘assessment, levy and collection of the tax, Universal Consolidated Oil Co. v. Byram, 25 ~ Cal.2d 353,-153 P.2d 746 (1944): Lockheed Aircraft Corporation: v.. County: of Los Angeles, 207 Cal. App: a 2d 119, 24 Cal. Rptr. 316 ee = an. ‘action 1 for a a | | Q . - =r . ; at i: “"g > tion of the validity of the tax; Montgomery | Ward & Co. v. Welch, 17 Cal.App.2d 127, 61 P 2d . _ 790 ( 1936}. ae eee The fact Sat the Petitioners are nat liable for pay- gg ment of the taxes of which they complain would not prevent them from seeking relief in the California-eourts. .. _ In Department of Veterans Affairs v. Board of Su-’ " pervisors, 31 Cal.2d 657, 192 P.2d 22 (1948), a tax . ¢xempt agency of the State sought a writ. of mandate *to establish a tax exemption for real property in which it held a lien interest. The agency was not alleged to be liable for the taxes assessed. The court. denied: relief, not upon the ground that pfocedurally the agency could ae enjitled to a cancellation of taxes under California law Fe where its property interest at the time it sought can- cellation was merely that.of a secured creditor. : "interest tax,“ thestatutory remedies of payment under __ +” Protest and suit for recovery of the taxes [California Revenue and Taxation Code §§5136-5143| and peti- _ \tion for refund and suit? [California Revenue and habe = axation Code §§5096-5107| would be available as : _ « Well as resistance to an action by the respondent to “collect the tux. Harsh California Coip. v. County of > * San Bernardino, 262 F.2d 626 (%h Cir. 195§). In- a ao deed, it is the very lack of availability of these statu- _ tory remedies to Petitioners that permits them to seck the equitable remedies. Crocker v. Scoit, 149 Cal: 575, yg 6 87 Pac. 102 (1906); Jillson v. Sacramento “County, ° . .221 CalApp.2d 192, 34 Cal. Rptr. 419°(1963).-At *-. . # _ Bast one text writer has recognized that in a situation * similar to that of the Petitioners, injunctive ‘and declar.. ° ¢ #4 atory relief would be available: © ij . . One possible use of the action for declar. er sy SiR bdenedon wage eto cia where a tenant has paid the tax pursuant to agree- ; + ment with the landlord and where the owner can- hot sue to recover. the taxes, he not havinz paid - them.” | Marshall, State and Local ‘Taxation (11 California Practice, 1969) at 174. Footnotes omit- - ted. | 2 Conclusion. — - peas a Petitioners” petition for Writ of Certiorari fails to \ raise any of the special or important reasons ‘for grant- | '. ing a review listed in Rule 19(1)(b) of The Rules of \ the Supreme Court of the United States and accord- . ingly should be denied. P *. Ray T..SULLIVAN, Jr. eee * County Counsel, County of Riverside, pair oa STEVEN A..BROILes, . Deputy County C ounsel, Attorneys fox Respondént. ‘© - 6 ts . sien oh eT Retin eS Reeinapeteany ’ £6 LR tasers . . Soin hamnmemmsesinemeesintnammndiiedl eg eee “, - APPENDIX A. United States Code, Title 28. $1360. State - civil jurisdiction in actions to which’ In- dians are parties. (a) Each of the States or Coleen listed in ‘e- -following table*shall- have jurisdiction over civil causes - of action between Indians or- to which Indians are par- ‘ties which arise in the" areas of Indian country listed opposite ‘the name of the State or Territory to the same- extent that such State or Territory has jurisdiction over - ** other civil causes Of action, and those civil laws of such State or Territory that are of general application _ to private persons or private property shall have the . ‘same force and effect within such Indian country as - they have elsewhere within the State or ie Sereiory: State or “ Territory of Indian C ountry affected | . AlasKa .......... All Indian country within the “Territory. California ....All Indian country within the State. Minnesota.-... -All Indian country within the State, ex- cept the Red -Lake. Reservation. Nebraska ...:..All Indian country. within the State. Oregon ........All Indian country within the State, ex- cept the Warm Springs Reservation. 7 Wisconsin .. _-All Indian country within the State. 7 + (b) Nothing in this section shall authorize the aliena- tion, encumbrance, or taxation: of any real or Personal | property: including water rights, belonging to’ any In: dian 9f ‘any Indian. tribe, band. or community that is. hej in trust by the. Uriited: States or is subject to a re-, Striction — alienation ie as by the United States, * —2— . . : or shall authorize adele of ‘thé use of such proper- ; ty im 4 manner inconsistent with any Federal treaty, * agreement, or Statute or with any regulation made pur- Suant thereto; or shall confer jurisdiction upon the. State .to adjudicate, in probate proceedings or other- wise, the ownership or right to possession of such prop- erty or any,interest therein.- (c) Ahy~ tribal ‘ordinance or custom heretofore '- * Or hereafter adopted by an Indian tribe, band, or com- “munity, in thé exercise of any authority which it may — Possess shall, if not inconsistent with any applicable ~ civil law of the State, be given full force and effect in _ the determination of civil causes of acfion pursuant to this section. United States Code. ‘Title 28: ee * $1341. Taxes by‘States.° - ~* * The district courts shall not. enjoin, suspend or re- Strain. the assessment, levy or collection of any tax under State law. whére a plain, speedy. ‘and efficient. remedy may be had in the courts of such State.-* Mission Indian Relief. Act. Act of January ‘12, 1891, c. 65, 26 Stat. 712 _ BE .IT ENACTED BY THE SENATE’ .AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES. OF AMERICA IN CONGRESS ASSEM- BLED, That immediately after the passage. of this act the Secretary of the Interior shall appoint three disinter-* . ested persons as commissioners to arrange a just and * satisfactory settlement of the Mission Indians _Tesiding . in the State of California, upon reservations which shall _be secured to them as hereinafter provided. - i —3—. Sec. 2. That: it shall be- the duty of. said commis: « sioners to ‘Select ¢ a reservation for’ each band or village | ‘of the Mission Indians residing | within said ‘State, which reservation shall include, ‘as far as practicable, the Jands and villages which have been in the -actual ovtcupation and .possession of said Indians, and which shall be sufficient in extent to. meet their just require-_ ‘ments, which selection shall-be valid when approved , by the President and Secretary of the Interior. They shall also’ appraise the. value of the improvements be- longing’ to any person to whom valid existing rights have attached under the: public-land laws of-the United | States, or to, the assignee of such person, where such . « improvements are situated within thé limits of any re- servation selected and defined by said commissioners - subject in each’ case to the approval of the Secretary of the Interior. In cases where ‘the Indians are in occu- pation of lands within the limits of confirmed private grants, the commissioners shall determine and define the boundaries of such lands, and shall ascertain wheth-_ er there are vacant public lands in the vicinity to. which they may be removed. And. the said commission is ‘hereby authérized to employ 4 competent surveyor and’ the necessary assistants, _ Sec. 3.-That the commissfoners, upon the completion of their duties, shall report the result to the Secretary of the Interior, who, if no valid objection exists. shall cause a patent to issue for each of the reservations se- lected by the commission and: approved by, him in favor of each band or village of Indians occupying any suth reservation, which patents shall be of the legal effect. -and declare that the United States does dnd will hold — the land thus patented. subject to the provisions of sec-. tion four of this act, for the period of twenty-five years, @ afm Dmitri’ Ce etka in trust, for ‘the sole use and :benefit of the band: or village to which it is issucd, and that at the expiration of said period the United Statés will convey the same or the remaining portion not previously, patented in se- veralty by patent to said band or village, discharged of said trust, and free of all charge or incumbrance what- soever: Provided, That no patent ‘shall embrace any tract or tracts. to which existing. valid rights have at- ~~ tached in favor of any person under any of the United - States laws providing for the disposition. of the ‘public ~ domain, unless such person shall acquiesce in and ac- ‘cept the appraisal provided for in the preceding sec- tion in all. respects and shall thereafter, upon> ‘demand and paynient of said appraised value, execute a-release of all title and claim thereto; and a separate’ patent, in similar form, may be issued fot any such tract. or tracts, at any timé thereafter. Any such person shall be ' permitted to exercise the same right to take land under the public-land laws. of the United States as though he had not-made settlement on the lands embraced in said reservation: and a.separate patent in:similar form, may be’ issued for any tract or tracts at any time after: the appraised value of the imprevements : thereon shall have - been paid: And provided further, That in case any land shall be selected under this. act to which any railroad company is or shall hereafter be entitled to receive a . patent, such railroad company shal], upon releasing all claim and title’ thereta, and on the approval ° ‘of the President and: Secretary of the Interior, be allowed. to. _ Select an equa! quantity of other land of like value in lieu thereof, at such place as the Secretary of the In- terior shall determine: And provided further, That said patents declaring such lands to be held ‘in trust. as afpre- —~Said. Shall be retained and kept in the vai! hs aga as oe ae ment, and certified copies of the same shall be -for- warded to and kept at the agency by the agent having ~ ‘charge of the Indians for whom such lands are to Be held in trust, and said copies _— be om: fo mmapee- tion at such agency. ‘Sec. 4. That wheneve any of the a tesiding upon any reservation patented under the’ provisions of _ this act: ‘shall, in the opinion of the Secretary of the In- trior, be ‘so advanced in civilization as to be capable of owning and managing land in severalty, the . Secre- | tary of the Interior may cause allotments to be made to such lidians, out of the land of such - reservations, - in quantity. as follows: To each head of a family not _ more than six hundred and forty acres nor less than. one hundred and sixty acres of pasture or grazing land, and in addition thereto not exceeding twenty acres, as he shall deem for. the best interest of the allottee, of. _ arable land in some. suitable , locality; to each single - person over twenty-one years of age not less than eighty nor more than, six hundred and forty acres .of pasture or grazing land and not ——— ten acres of such me arable land. Sec..5. That upon the approval of the allotments pro- | * vided for in the preceding’ section by the Secretary of ‘the Interior he shall cause patents to issue therefor in ‘the name of the allottees,* which shall be of the legal effect and declare that the United States does and will hold the land thus allotted for the period’ of twenty- five years, in trust for the sole use and’ benéfit of the Indian to whom such allotment Shall have been made, _ ' -or, in-case of his decease, of his heirs according to the laws of the. State of California, and.that at .the -expira-. tion ‘of said Period. the United | States will convey the same by patent to the said Indian, or his heirs as afore- said, in. fee, discharged of said trust and free of aii charge or. incumbrance whatsoever. And if ‘any .con- _ Véyance shall be made of. the lands get apart and: allot- ted as herein providea, or any contract made touching ; 4 _ - the same, beforé the expiration of the time above men- tioned, such conveyance or contract shall be. absolutely . null and void: Provided, That these patents, when is- sued, shail pverride ‘the patent authorized to be issue * to the bané@ or village as aforesaid, and shall separate Bi the individual allotment: from the lands held in ‘com- mon, which proviso shall be. incorporated in each. of the village patents. Sec:.6. That in cases where the lands occupied by — any band or village of Indians are. wholly or’ in part within the limits ojgany confirmed private: grant or. | ' grants; it shall be tly duty of the Attorney-General of ; | the United States, upon request of the’ Secretary of the |. Interior, through special counsel or otherwise, to de-« — fend such Indians in the rights-secured to them in the. : original grants from. the Mexican Government, and in an. act for the government and protection of Indians _ passed: by- the legislature. of the State of California ; April twenty-second, eighteen hundred and: fifty,or to . _ bring any suit, in the name of the United States, in | the Circuit Court of the: United States for California, 3 a that may be found necessary to the full protection of : ee the legal or equitable Tights of any Indian or — of : 4 , Indians in any of such lands. _— oo. — Sec. 7. That each of the: commissioners: authorized « = > - to be dppoirted by thé first section of this act shall 3 __ be paid at the-rate of eight dollars. per day for the time he is actually and. necessarily employed in the discharge _ —_—_— gn s me, ee of his duties, and necessary traveling expenses;.and for the payment of the same, and of* the expenses of sur- out of any money in the Treasury nd not otherwise appropriated. , Sec. 8. That previous to the issuance of a. patent 'veying, the sum of: ten thousand’ dollars, or so much: ° thereof as may . be necessary, is. hereby appropriated for any reservation as provided in section three. of this a act the Secretary of the Interior -may authorize. any . _._—-=citizen of the United States, firni, or corporation to con- struct a flume, ditch, canal, pipe, or other appliances us for the conveyance of water -over, across, or through such reservation for agricultural, manufacturing, or other Purposes, upon condition that the Indians owning or occupying such reservation or reservations shall, at all times during such ownership or occupation, be sup-~ | plied with sufficient quantity of water for irrigating and ‘domestic purposes upoii such terms as shall be pre- scribed:in. writing by the Secretary of the. Intericr, and upon such other terms as he may prescribe, and may grant. a right of way for -rail of other toads through his “such. reservation: Provided, That any individual, firm. or corporation desiring such privilege shall first give bond to the United States, in such sum as thay be re- quired by the Secretary -of the Interior, with good and sufficient: sureties, for the _ performance of such condi- tions and stipulation as said Secretary may requiré.‘as - a condition precedent to the granting of such authority: And provided further, That this act shall’ not authorize . 2% XS . "ee = OT a ae Re Kes aoe eT UN RR RRA --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0359%3A05. Public record. Not legal advice.