Amicus Curiae Brief — Mescalero Apache Tribe v. Jones

Numm Jones, CoMMISSIONER OF THE BUREAU OF REVENUE

or Tue State or New Mexico, and Tue Burzav or Rev-

n oF THE State or New Mexico,

8 Respondents.

WRIT OF CERTIORARI TO THE COURT OF APPEALS

OF THE STATE OF NEW MEXICO

*

BRIEF OF MONTANA INTER-TRIBAL POLICY

BOARD AS AMICUS CURIAE

———— I ——=—_™_e—_—_—_—_—_—_—e—e—ee

Samuzt W. Murpuy, In.

Two Wall Street

New York, New York

Attorney for Amicus Curiae

Wer ge Newton & Irvine

TABLE OF CONTENTS

Interest of Amicus Curiae

Summary of Argument

Ascot

L State taxation of self-governing Indian Tribes

i precluded by the aboriginal sovereignty of

those tribes where such sovereignty is recog-

nized by treaty, not abandoned by the Indians,

and not modified by act of Congress ...........

IL Due process of the law prevents states from

levying taxes upon Indians for whom it has only

minimal government responsibilities * &

CoxcUsIoN 20

Taste oF AUTHORITIES

Cases:

Ez Parte Crow Dog, 109 U.S. 556 (1883) 7

General Motors v. Washington, 377 U.S. 436 (1964) ... 18

Alben. Harvester Co. v. Dep't of Taxation, 322

UB. 435 (1943) 18

v. District Court of Montana, 400 U.S. 423

Leahy v. State Treasurer of Oklahoma, 297 U.S. 420

(1936) 9

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) 15

Mescalero Apache Tribe v. Jones, 83 N. M. 158, 489 P. 2d

666, 671 (Ct. App. 1971) 10, 11

Metlakatla Indian Community v. Egan, 369 U.S. 45

(1962) — 2,8,9

National Bellas Hess, Inc. v. Department of Revenue,

386 U.S. 753 (1967) 18

Northwestern States Portland Cement Company v.

Minnesota, 358 U.S. 450 (1959) 18

Oklahoma Taz Commission v. United States, 319 US.

598 (1943) 9,16

Organized Village of Kake v. Egan, 369 U.S. 60 (1962) 3,9

Porto Rico Telephone Co. v. Descartes, 255 F.2d 169

(Ist Cir. 1958) 18

State ex rel. McDonald v. District Court. —— Mont.

— 496 P.2d 78 (1972)

The Kansas Indians, 72 U.S. (5 Wall.) 737 (1866)

United States v. Kagama, 118 U.S. 375 (1886) 1

United States v. Santa Fe R. Co., 314 U.S. 339

(1941) 2, 6,7

Warren Trading Post v. Arizona Tas Commission, 380

U.S. 685 (1965) 16

Williams v. Lee, 358 U.S. 21 7 4

Wisconsin v. J. C. Penney 311 U.S. 435 (1940) ...

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) ....5, 63

1 ati n and Statutes:

U8. Const. art. I, §8, el. 3

UB. Const. art. I, b 10, el. 1

U8. Cone. art. II, § 2, el. 1 -

US. Const. art. VI, el. 2

U8. Constr. amend. XIV

18 U.S.C. § 1161

0 U.S.C. §§ 631 et seg.

% USC. § 231

13

$US.C. 8. 318(a)

19

% US. C. § 398

13

19

U.S.C. § 452

2 USC. 66 461-479

10, 14, 15

2 U.S. C. § 465

13

% U.S. C. 4 470

10

2

% U.S.C. 4476

% U.S.C. § 477

2 U.S. C. § 639

10

19

5 U.S. C. §§ 1321-1326

14, 15

208. C. 5 2002

19

19

2 CFR. 533.4

10 Stat. 979 (1852)

15 Stat. 649 (1868)

15 Stat. 667 (1868)

9% Stat. 557 (1910)

@ Stat. 253, as amended, 8 U.S.C. § 1401

67 Stat. 588 (1953)

«| 1

Other Authorities:

F. Commx, Hawppoox or F DAL. Inpun Law (1942)

(U. New Mexico Press reprint 1971) 5,6, 11

Indian Taxation: Underlying Policies and Present

Problems, 59 Cari. L. Rev. 1264 (1971) 6

Senate Concurrent Resolution 26, December 11, 1971,

117 Cona. Rec. 21325-26 (daily ed. Dec. 11,1971) 15

——

5 —

Ix THE

Court of the United States

3: Ocroser Tze, 1971

. No. 71-738

—

Tue Mescatzro Ar AR TRR,

Petitioner,

iis v8.

Nitti Jones, COMMISSIONER OF THE BUREAU OF REVENUE

gy rae State or New Mexico, and Tue Bureau or Rev-

nnn or THE State or New Mexico,

2 Respondents.

Wurr OF CERTIORARI TO THE COURT OF APPEALS

OF THE STATE OF NEW MEXICO

—

BRIEF OF MONTANA INTER-TRIBAL POLICY

es BOARD AS AMICUS CURIAE

2 Montana Inter-Tribal Poliey Board, as amicus

e, submits this brief on behalf of all Montana Indians.

ti and Respondents have stipulated by written

consent to the filing of this brief, which consent has been

fed with the Clerk of the Court.

1 5 en of Amicus Curiae

he Montana Inter-Tribal Policy Board represents ap-

mma 27,000 Indians living in the State of Montana.

. at 2 000 Indians live on or near the seven Montana

9 Reservations which contain the following Indian

2

tribes: Arapahoe, Assiniboine, Blackfeet, Chippewa, Cre,

Crow, Flathead, Gros Ventre, Northern Cheyenne, a

Sioux.

Most of these tribes, like Petitioner, The Mescalen

Apache Tribe, have retained their customs, laws and tribe

government, are organized pursuant to the Indian Reorgai.

gation Act of 1934, and are currently expanding ther

governmental functions. These Montana tribes provik

their members with governiméntal administration and ser.

vices, including: civil and criminal courts; health, educ.

tion, and welfare programs; and capital improvement,

These activities require that the tribes raise substantil

revenue from their own limited financial resources and

those of their members.

New Mexico’s assertion that it has power to tax a tribal

enterprise poses a direct threat to the viability of tribal

self-government in Montana as well as in New Mexico.

The Montana tribes have also organized tribal enterprises

for the purpose of increasing opportunities for Indians to

become self-supporting and to provide revenue for the

tribe itself. These enterprises include agricultural and

livestock cooperatives as well as craft organizations for

the sale of Indian handicraft products.

The Montana Indian tribes have protective treaties with

the federal government similar to those of the Mescalero

Apache Tribe.“ The enabling acts of New Mexico and Mon-

125 U.S.C. § 476.

1 the Apache Treaty of 1852 (10 Stat. 979) with the

avajo Treaty of 1968 a

Indias 1868_(15 Stat. 649). See generally United States v. Sent

pith; sat Ge. B14 U.S. 339, 346 n.4, 347-48 (1941) and Met-

v. Egan, 969 US. 45, 52 (1962).

. hl a.

er ee

a ee ee. ee ee ee ee. ee. ee

3

tana have identical disclaimer provisions leaving Indian

lands under the absolute jurisdiction and control” * of the

d States, and very similar provisions allowing the

states to tax “any Indian” off the reservation.

“A decision upholding New Mexico’s tax levy might au-

jorise Montana to tax the business ventures of the tribes

represe by the Montana Inter-Tribal Policy Board.

h taxation would effectively destroy the residual

iginal right of these tribes to make and be governed

U sir own laws, a result that contravenes the applicable

treaties with the United States government and acts of

“The States of Montana and New Mexico have only

imal responsibility for Indians. With only one minor

option,“ neither state has the responsibility of civil or

ri minal jurisdiction over Indians on reservations within

heir borders. It is submitted that where a state imposes

axes on Indians or Indian tribes when it does not have,

orhas Congress or the Indians themselves put upon them,

ponding responsibilities for the well being of these

ans, it is grossly unfair and in violation of the due

ess rights guaranteed Indians by the Fourteenth

t to the United States Constitution.

i Village of Take v. Egan, 369 U.S. 60, 68 (1962),

‘The « ion is Montana’s exercise of criminal and some civil

tion on the Flathead Reservation where some 80 percent of

midents are non-Indians. See State ex rel. McDonald v. Dis-

Pert, —— Mont. ——, 496 P.2d 78 (1972), and Kennerly v.

et Court of Montana, 400 U.S. 423, 425 (1971).

4

Summary of Argument

I. State taxation of self-governing Indian tribes is pn

cluded by the residual aboriginal sovereignty of those this

relinquished by the tribe, and has not been modified rae

of Congress. The sovereignty of the Mescalero Apach

Tribe was guaranteed to it by the Apache Treaty of 19

(10 Stat. 979), and has never been relinquished or aban.

doned by the Tribe. Subsequent acts of Congress have

not significantly modified the rights to sovereignty guar.

anteed by this treaty. A state’s direct taxation of a trik

severely jeopardizes the continued viability of its treaty.

guaranteed sovereignty by directly reducing the income and

resources available to finance tribal governmental fune.

tions.

II. Due process of the law prevents states from levying

taxes upon entities for whom it has accepted only minimal

governmental responsibilities.

ARGUMENT

Gane L

“State taxation of self-governing Indian tribes is pre-

jed by the aboriginal sovereignty of those tribes

s such sovereignty is recognized by treaty, not aban-

Abr the Indians, and not modified by act of Con-

ere the Aboriginal Internal Sovereignty Rights of

feen Fribes Are Protected by Treaty With the Fed-

‘eral Government, Such Rights May Be Modified Only

+ Congressional Act or by Consent of the Indians

“As "Native Americans,” Indian tribes enjoyed the aborig-

inal status of completely sovereign nations.“ They relin-

quished their sovereignty to the federal government only

tothe extent provided by treaty. The scope of such re-

liinquishment ean be expanded only by subsequent act of

Congress, or by the Indians’ consensual abandonment of

meh rights. Federal treaties with the Indians recognized

and protected the Indians’ pre-existing internal tribal

sovereignty,* and the Indian tribes that became parties to

* Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832): “The

nations had always been considered as distinct, independent

i] communities, retaining their original natural richts

» immemorial.” =

* IF

1 Sis

&

6

such treaties accordingly assumed the status of depen

dent, self-governing nations.“

Thus, in the landmark decision of Worcester v. Georgia,

31 U.S. (6 Pet.) 515 (1832), Chief Justice Marshall stated

of the “Cherokee Nation”:

The Cherokee nation, then, is a distinct community,

occupying its own territory, . . in which the laws of

Georgia can have no force...

[The Georgia laws asserting jurisdiction over a non

Indian in the Cherokee domain] interfere forcibly

with the relations established between the United

States and the Cherokee nation, the regulation of

which, according to the settled principles of our Con

stitution, are committed exclusively to the government

of the Union. They are in direct hostility with treaties,

repeated in a succession of years, which mark out the

boundary that separates the Cherokee country from

Georgia; guaranty to them all the land within their

boundary; solemnly pledge the faith of the United

States to restrain their citizens from trespassing on it;

and recognise the pre-existing power of the nation to

govern itself.

They are in hostility with the acts of Congress for

regulating this intercourse, and giving effect to the

treaties. f

: We have applied them

as we have

are applied to all in the

ian Taxation: Underlying

7

“The ‘importance of this decision is its holding that the

ginal treaty guaranties of the Indian tribes’ right to

wt governing are absolute beyond State control under

unless Congress, by subsequent treaty,

under its plenary power over Indians,” revises

ese tu obligations. These treaty rights were reaf-

med in Williams v. Lee, 358 U.S. 217 (1959), which held

that Navajo sovereignty recognized by the Treaty of 1868

afringed” by allowing a non-Indian residing on the

ation to bring suit against a member of the Navajo

n the Arizona civil courts, rather than the Navajo

icit in these treaty terms, as it was in the treaties

h the Cherokees involved in Worcester v. Georgia,

s the understanding that the internal affairs of the

jans remained exclusively within the jurisdiction of

tribal government existed... .™

at 221. Accord: United States v. Kagama, 118

ar (1886) ; Ex parte Crow Dog, 109 U.S. 556 (1883).

state cannot, therefore, unilaterally assume jurisdic-

over a treaty-protected, sovereign Indian tribe, even

reaty power is contained in U.S. Consr. art. II, § 2, el. 1.

Bare forbidden from entering into treatice by U.S. Const.

— Federal treaties are binding on the states under

er. art. VI, el. 2: “... all Treaties made, or which shall

2 the authority ‘of the United States, shall be the

3 rt and the Judges in every State shall

geg pores oe th the * rp under —

U.S. Coxsr. art. I

| noted that federal policy toward the Indians in

and Arizona is comparable. See United States v. Santa

Co., 314 U.S. 339, 346 (1941).

8

where the state has extended some measure of rights und

privileges to the tribe. Any state statute which conflicy

with the federal treaty protection of the residual right ü

tribal sovereignty is void under the Supremacy (dame

(U.S. Const. art. VI, cl. 2). State jurisdiction can be ob

tained only by alteration of the treaty, by the Indian

abandonment of the right to tribal self-government, or by

act of Congress:

Conferring rights and privileges on these Indians cap.

not affect their situation, which can only be changed

by treaty stipulation, or a voluntary abandonment of

their tribal organization. As long as the United States

recognizes their national character they are under

the protection of treaties and laws of Congress, and

their property is withdrawn from operation of Stat

laws.

The Kansas Indians, 72 U.S. (5 Wall.) 737, 757 (1866).

B. Indian Tribes Who Have Retained Their Tribal Or.

ganization and Government Have Not Abandoned

Their Aboriginal Sovereignty So as to Permit the

Exercise of Staté Jurisdiction.

States are totally precluded from jurisdiction over Indian

tribes in any area where the Indians have retained their

tribal sovereignty. Only where the right to tribal sel.

government has been abandoned by individual Indians or

by a particular tribe and where the state has assumed fall

responsibility for such Indians may the state exercix

jurisdiction over them. Such was the case of the Oklahom

e circumstances, such jurisdiction can be

1 See Metlakatla Indian Community v. Egan, 38

fy 66 (1962

ff

/

in Leahy v. State mb of Oklahoma, 297 U.S.

(1996), which sustained a state tax on an Indian’s

‘of his tribe’s mineral resource income, and in Okla-

ema Tax Commission v. United States, 319 U.S. 598 (1943),

upheld application of the Oklahoma inheritance tax

estate of an Indian. In Oklahoma Tax Commission,

tice Black, writing for the Court, discussed Worcester

eorgia and its progeny and stated:

The underlying principles on which these decisions

» based do not fit the situation of the Oklahoma

fians,. Although there are remnants of the form of

sovereignty, these Indians have no effective

bal autonomy as in Worcester v. Georgia, supra;

d, unlike the Indians involved in The Kansas Indians

8, supra, they are actually citizens of the State with

e to distinguish them from all other citizens.

» (319 U.S. at 603).

ganized Village of Kake v. Egan, 369 U.S. 60 (1962),

state jurisdiction over Indians was sustained, there

facts showing that the Southeastern Alaskan Indians

the essential treaty-protected internal sovereignty:

Indians had no formal treaty rights and no reserva-

) Alaska had both civil and criminal jurisdiction

5 — and, as stated in the companion case of

let la Indian Community v. Egan, 369 U.S. 45, 50-51

, * these Indians had “substantially adopted and

5 dopted by the white man’s civilization” and were

libject to “the principle of Indian national sovereignty

d in Worcester v. Georgia.”

sr the Mescalero Apache Tribe nor the Montana

ar presented by amicus curiae have so abrogated their

[Fights to tribal sovereignty.

10

The Mescalero Apache Tribe has not abrogated it

treaty-protected sovereign immunity from taxation even

if this Court finds that it is “incorporated” pursuant to 3

U.S.C. §§ 477 and 470.“ To do so would contradict the

whole policy of the Indian Reorganization Act of 1934

of which these provisions are a part. The dual goals of this

Act were to develop tribal self-government and encourage

economic self-development. If compliance with the Aet

would cause a tribe to lose its sovereign immunity from

taxation, the resulting direct reduction of revenue avail.

able to the tribe to perform its essential governmental

functions would be a serious infringement of tribal sover-

eignty. The economic burdens of such a tax on the tribe

would also hinder the related goal of encouraging economic

self-development.

It is clear that the Mescalero Apache Tribe is in sub-

stance operating as a sovereign tribe and not as a busi-

ness corporation. As stated in the “Stipulation of Fact“

under which the case was tried in the lower courts:

4, Sierra Blanca Ski Enterprises. . . is exclusively

owned and operated by the Tribe.

* * „

6. The basic purpose of the ski resort is to provide

revenne to the Tribe in lieu of raising revenue

through the taxation of Tribal members or in some

other manner. The revenue from the ski resort is

u See Mescalero Apache Tribe v. Jones, 88 N.M. 158, 489 P.2d 666,

671 (Ct. App. 1971) (concurring opinion).

1 25 U.S. C. §§ 461-479.

s Appendix to Memorandum 125 the United States as Amicu

Curiae, p. 12.

11

and economic welfare of the Mescalero

people. .

ae result if the tax

m of Indian tribes were interpreted to apply only

ties on the reservations. Many of the nation’s In-

sre restricted to economically unviable lands

those unwanted by the white man—as reservations.

ively restrict their tax immunity to such areas

compound this injustice, and serve to shackle the

such lands forever.

1

the Right to Self-Government Guaranteed to

“Indian Tribes by Treaty.

Since the Mescalero Apache Tribe has not consented to

New Mexico’s assertion of tax jurisdiction nor have they

andoned or relinquished their treaty-guaranteed rights

government, the question remains whether these

have been modified by act of Congress so as to

AS i. be used and is being used for the educational,

vdocial,

es did not modify these rights when New Mexico

itted to the Union. The New Mexico Enabling

th the Court of Appeals of New Mexico inter-

| “a specific grant of power” by which the “Fed-

bvernment permitted the State of New Mexico to

Tthe — Apache Tribe],“ * is clearly not a

: power to tax land or property of an “Indian

‘The relevant portion of the Enabling Act reads:

Bc

ere Apache Tribe v. Jones, 83 N.M. 158, 161, 489 P. 2d

0 ‘App. 1971)..

Be

12

Sec. 20... Second. . I Blut nothing herein, or in th

ordinance herein provided for, shall preclude the said

State from taxing as other lands and other

are taxed any land and other property outside of »

Indian reservation owned or held by any Indian, save

and except such lands as have granted or acquired u

aforesaid or as may be granted or confirmed to oy

Indian or Indians under any Act of Congress, but said

ordinance shall provide that all such lands shall be

exempt from taxation by said State so long and ty

such extent as Congress has prescribed or may here.

inafter prescribe. [Emphasis supplied]

While the Enabling Act recognizes New Mexico's juris

diction to tax individual Indians outside the sphere of

treaty-protected tribal sovereignty,” it does not extend

such jurisdiction to “Indian tribes,” since “Indian tribes’

are clearly not included in the term “any Indian.” Wher

Congress meant “any Indian or Indian Tribe” in this se.

tion, it specifically stated so:

Sec. 20 . . . Second. That the people inhabiting said

proposed State do agree and declare that they for.

ever disclaim all right and title to the unappropriatel

and ungranted public lands lying within the boundaries

thereof and to all lands lying within said boundaries

owned or held by any Indian or Indian Tribes, the

right or title to which shall have been acquired through

or from the United States or any prior sovereignty,

and that until the title of such Indian or Indian tribes

shall have been extinguished the same shall be an

remain subject to the disposition and under the abo

lute eee and control of the Congress of the

United States; [Emphasis supplied]

an 96 Stat. 557, 569-70 (1910).

™ See discussion of Oklahomd and Alaska Indians, supra, pp.

1 96 Stat, 557, 669 (1910)/

13

fhe E gz Act should not be construed contrary to

plici itis to grant state tax jurisdiction over

— occasionally employed its plenary power

‘Commerce Clause to modify areas of traditional

10 m an tribal sovereignty and to extend to the states juris-

over Indian affairs. But without exception, such

it it n has been specific and limited. For example, 25

en

ion of state taxation of land or other property

iim the sphere of tribal government. That statute per-

d the states to tax mineral leaseholds on unallotted

n land, but the grant of jurisdiction was carefully

d to provide that “such tax shall not become a lien

ige of any kind or character against the property of

an owner.” u

result of this legislative pattern, federal statutes

“ang to assume some form of civil or criminal

CR a over Indian tribes have been strictly construed

% the states. Kennerly v. District Court of Montana,

8 4 (1971). In Kennerly this Court noted the spec-

q = id when Congress granted to the states civil and

al jurisdiction over Indians:

22 U.S. C. § 231, allowing state health ons and

a —

„only if the tribe consents; and 18 U.S.C. 6 1161

— of state laws dealing with the sale and

ts, again, only if there is consent of the tribe.

14

i

civil or criminal, to actions to which Indians are par.

ties arising in Indian country. (400 U.S. at 421 n1)

The New Mexico Enabling Act should be likewise strictly

construed against granting jurisdiction over Indian tribes

and abrogating their treaty-protected sovereign immunity.

D. The Continuing Viability of Tribal Sovereignty Would

Be Severely Jeopardized by State Taxation of a Tribe.

Indian tribes are “distinct independent political commmi.

ties, retaining all of the necessary powers for internal

self-government derived from their aboriginal tribal sov.

ereignty. These powers include, of course, the power to ta

or otherwise raise revenues to provide necessary gover

mental services.

The federal government has consistently pursued a policy

designed to secure viable self-government for the India

tribes. Both the Indian Reorganization Act of 1934,” and

Title IV of the Civil Rights Act of 1968“ specifically

provide for protection and development of the Indian tribes’

right of self-government. Congress has further declared:

{OJur national policy shall give full recognition to and

be predicated upon the unique relationship that exist

between this group of citizens and the Federal Gover

ment.

.. . IIImproving the quality and quantity of social and

economic development efforts for Indian people an

™ Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1882).

26 U. g. C. 66 461479. “

25 U.8.0. §§ 1823-1826. é

rce Ao oe eS A

.

15

ing opportunities for Indian control and self

tion shall be a major goal of our national

policy.

g. 21325-26 (daily ed. Dec. 11, 1971).

Justice Marshall stated: “[T]he power of tax-

ing th | people and their property is essential to the very

of government.. . If the Indian self-govern-

| teed by treaties aiid note of Congress is to be a

ality, Tridians must have effective power to raise the

le necessary to support governmental functions. The

even e economic poverty on most Indian reservations cre-

es x base. To restrict Indian tribes’ im-

ty from taxation to this meager tax base will seriously

m 2 on the American Indians’ efforts toward self-im-

and self-government. Such taxation would ef-

y destroy the “choice” of self-government offered

by treaty and under the Indian Reorganization

2 2 and would eviscerate the Indians“ right to

mumister the enforcement of their own tribal civil and

ag laws as recognized in Section IV of the Civil

its Act of 1968.

: 74 „state taxation of sovereign Indian tribes, con-

do the holding of the New Mexico Court of Appeals

significantly interfere with Indian self-govern-

2

oh

0

8 ats Be pondents’ contention that the taxes imposed are

mee with a proprietary function rather than a

function (Respondents’ Brief P. 14), com-

the stipulated fact that the operation of the

allock v. Maryland, 17 U.S. (4 Wheat.) 316, 427 (1819).

0. §§ 461-479.

98. 0. 56 1321-1326.

16

ski resort was to provide revenue to the Tribe in lien of

taxation of Tribal members.“

II.

Due process of the law prevents states from levyin

taxes upon Indian tribes for whom it has only minim

governmental responsibilities.

Amicus Curiae contends that a state should not have juris

diction to tax Indian tribes to whom it provides only mini

mal governmental services. The argument draws support

from the proposition, discussed above, that where a tribe

continues to govern its members and provide tradition

governmental services, the states may not exercise conflict

ing jurisdiction. In Warren Trading Post v. Arizona Ta

Commission, 380 U.S. 685, 691 (1965), Justice Black com.

pared in detail the nature of the governmental servics

provided to the Indians by the state and those provided by

the tribe with assistance of the federal government, con

cluding:

[Slince federal legislation has left the State with no

duties or responsibilities respecting the reservatio

Indians, we cannot believe that Congress intended to

leave to the State the privilege of levying this tax.

Even where a state’s power to tax Indians or India

tribes has been sustained, as in Oklahoma Tax Commission

v. United States, 319 U.S. 598 (1942), this court has stressed

that the nature and quantity of governmental services re

ceived by Indians from the State, and the failure of th

= Ss Sie 6. Appendix to Memorandum for th

United States as Amious Curiae, p. 12.

17

Indian tribes to provide such services, were critical factors

in determining whether the State might “reasonably” levy

a tax. Speaking of the Oklahoma Indians, Justice Black

Oklahoma supplies for them and their children schools,

roads, courts, police protection and all the other bene-

~ fits of an ordered society. Citizens of Oklahoma must

pay for these benefits. (319 U.S. at 608-609)

A state’s lack of power to tax self-governing Indian

rides, such as the Mescalero Apache Tribe of New Mexico

ind the several tribes of Montana, may be further demon-

‘rate | by analogy to a state’s lack of power to tax a

weign entity. In the leading case of Wisconsin v. J. C.

e Co., 311 U.S. 435 (1940), this Court noted that such

pon is subject to the due process requirements of the

fourteenth Amendment,” and that consequently due proc-

n requi ds that the power to tax bear some relation to

the protection, services, and benefits conferred by the state

won the taxed entity.

“Taxable event,” “jurisdiction to tax,” “business

tus,“ “extraterritoriality,” are all compendious ways

of implying the impotence of state power because

ans were made citizens of the United States for purposes of

h Amendment by the Citizenship Act of 1924, 43 Stat.

#, 8 U.S.C. § 1401.

‘the following shall be nationals and citizens of the

i States at birth:

=

7

18 =

state power has nothing on which to operate, a

tags are not instruments of adjudication but statemeny

of result in applying the sole constitutional test for i

case like the present one. That test is whether p

erty was taken without due process of law, or, if pan

phrase we must, whether the taxing power exerted h

the state bears fiscal relation to protection, opportu

ties and benefits given by the state. The simple but con

trolling question is whether the state has given am

thing for which it can ask return. (311 US. 40

(emphasis supplied).

This test was reaffirmed as recently as 1967 in Nato

Bellas Hess, Inc. v. Dep’t of Revenue, 386 U.S. 753, Ti

(1967). See also General Motors Corp. v. Washingtn,

377 U.S. 436, 441 (1964); Northwestern States Porilui

Cement Co. v. Minnesota, 358 U.S. 450, 465 (1959); Inter.

national Harvester Co. v. Dep’t of Taxation, 322 U.S. A

442 (1943); and Porto Rico Telephone Co. v. Descartes

255 F.2d 169, 175 (Ist Cir. 1958).

In National Bellas Hess, supra, the State of Illinois vu

prohibited from imposing the duty of use tax collection ani

payment upon an out of state, mail-order seller. Tk

minimal benefits provided by Illinois to the seller in thst

case, such as the use of banking and credit facilities ani

access to Illinois courts,“ were not considered sufficiet

to justify the imposition of the tax on the foreign entity.

The services provided to the Mescalero Apache Tribe ani

its members by the State of New Mexico are minimal con

pared to those provided by the Mescalero Apaches then

selves, by the federal government either directly or by

* 386 U.S. at 762 dak: J. ng)

19

nent of state expenditures." The Mescalero

the Montana tribes, provide their own

inistration, police force, tribal courts—both

mal, educational programs and health pro-

Mescalero Apache Tribe has adopted a con-

is a viable, functioning Indian tribe per-

tal functions under its constitution,

jnances and applicable federal statutes. The

1 court system relieves the state of sig-

3 in its administration of justice. Roads on the

» maintained by the Tribe and the Bureau of

due process of the law prevents it from taxing

gn Indian tribes within its borders to whom it

as only minimal services, without violating due

. §§ 631 et seg. (school aid in federally

| 818(a) ey, roads); 25 U.S. C.

); 25 US.C. § 639

New Mexico was intended

school education, yet the

of the cost of educating the

20

CONCLUSION 7

For the foregoing reasons the judgment of th

of Appeals of New Mexico should be reversed, :

Respectfully submitted,

Samugt W. Munpny, qu

Two Wall Street

New York, New You

5

Donovan Lersurne Newron & Iny nn

Wim C. Per

Juns A. HENNEFER

Of Counsel