Appendix — McClanahan v. Arizona Tax Comm'n

Supreme Court brief1973

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Text

Filing Date

jona Superior Court for Apache County

~ -{. Complaint (Claim for Refund of Income

ve am) June 17, 1969

July 14, 1969

18. Amended Complaint (Claim for Refund

f Income Tax) Nov. 5, 1969

19, Motion to Quash Amended Complaint Nov. 10, 1969

31. Oider of Dismissal and Judgment Jan. 12, 1970

|. Notice of Appeal Jan. 14, 1970

Amended Opinion and Order Jan. 23, 1970

ona Court of Appeals

Order; Court’s Opinion (Affirmed) Apr. 28, 1971

Appellants’ Petition for Review by

_ the Supreme Court of the State of

_ Arizona June 22, 1971

Minute Entry from Arizona Supreme

Court, 21, 1971, #10576-PR:

Petition for leave to File Amicus Curiae

Brief = GRANTED. FURTHER Petition for

_ Review = DENIED Sept. 22, 1971

Notice of Appeal to the Supreme Court

"of the United States; Affidavit of

Service (Received September 28,1971) Oct. 5, 1971

sake Osis

IN THE SUPERIOR COURT OF THE

STATE OF ARIZONA

IN AND FOR THE COUNTY OF APACHE

RoSALIND MCCLANABAN,

And On Behalf

of All Others Similarly No. 4370

‘ AMENDED

va Wiese

INCOME TAX)

Tue STATE TAX COMMISSION OF

ARIZONA,

Defendant.

The Plaintiff, indivi and on behalf of all others

similarly situated, by and her attorney, states her

claim against the Defendant as f

: 4

The Plaintiff is a Navajo Indian on the Navajo

within the confines of

The Defendant is the “ao the

catechol:

wie a cael by Arizona law, fom compen

as law, from

Sreeaby Go Potiantt, Gee vam of emste doltacs and ewenty

soca ($16.29), for and as Arizona income tax, and

the Plaintiff's employer paid the same to the Defendant.

On or about April 1, 1968, the Plaintiff filed an Arizona

State Individual Income Tax Return (Form 140) for the

Paae ae

Exhibit “A”, and incorporated herein by this reference.

Defendant has never refunded the said sum to the

_ tax and claimed refund of the funds withheld and paid by

_ her employer, as required by Arizona law, are as follows:

The Plaintiff is not subject to’ the assessment, collection

or retention of Arizona tax upon her income because

(a) She is a Navajo Indian, and

(b) She resides, and at all times material hereto has

es ee evaO. Indien

rived from sources within the confines of the Navajo

Indian Reservation, and

Vil

ee eee ee oe oe

eeimerane working on the Navajo Indian

income the Defendant Tax Commission

ee se oe The Plaintiff sues

in a representative capacity because:

i The class is so numerous that joinder of all members

is impracticable,

(2) The questions of law raised by this action are com-

mon to the class and the questions of fact are typical

of those which could be raised by all members of

(3) The claims of the Plaintiff are typical of the claims

(4) Te inne capac i i

ra id JE SR REN

(5) separate actions

ee yaa des sould coum td ley pene

consistent or varying adjudications with respect to

saivideal uidepbors of the Claes which would estab-

lish incompatible standards of conduct for the De-

fendant Tax Commission,

(6) The questions of law and fact presented in this action

FS OE

a common to all members of the class, predominate

I “sain. questions affecting only individual mem-

= = €1) A claté action is superior to other available methods

for the fair and efficient adjudication of this con-

troversy.

Vill

__, The funds expended by the State of Arizona in the provi-

2 sion of services and benefits to the plaintiffs, in the form, for

_ example, of welfare assistance, oe and highway con-

_ struction or maintenance, are ived in large proportion

~ from federal sources and programs established for the bene-

_ fit of OL fen Fede Ss bility for

i government ‘trust responsibility for

~ Indi administered by the State of Arizona, in

@ Ix | -¢

_ The government of the Navajo Tribe provides services

“and benefits to the plaintiffs at an annual cost of approxi-

_Mately $16,000,000. The funds to bear such costs are de-

_fived wholly from tribal sources.

gement

their own affairs,

economic independence and

_ 2. Enter an order on behalf of all persons who are mem-

bers of the said class, declaring it unlawful for the Defendant

Tax Commission to refuse to grant their claims for refund,

plus interest, and to continue to collect or assess tax upon

their income, and

"3. Such. other and further relief as to the Court seem

proper. :

/s/_ Theodore R. Mitchell

Theodore R. Mitchell, Counsel

For Plaintiff

inebeiina Nahiilna Be Agaditahe

Post Office Box 368

Window Rock, Arizona 86515

602/871-4151

Lhereby certify that a Copy

of the Amended Complaint

was mailed tis 4th day of Noverbe,

OPINION OF THE SUPERIOR COURT OF ARIZONA,

COUNTY OF APACHE

See Jurisdictional Statement, Page No. 11a

OPINION OF THE ARIZONA COURT OF APPEALS

See Jurisdictional Statement, Page No. 2a

ee Ee

IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

ROSALIND MCCLANAHAN,

ee Os Behalf of

: Others Similarly | phigh 1316

Appellant, | spacuE County

an yh)

THE STATE Tax COMMISSION OF ORDER

ARIZONA,

oe Appellee. |

Vv.

The above-entitled matter was duly submitted to the

Court. The Court has this day rendered its opinion.

IT IS ORDERED that the opinion be filed by the Clerk.

IT IS FURTHER ORDERED that a copy of this order

together with a copy of the opinion be sent to each party

ing herein or the attorney for such party, and to THE

[ONORABLE D. L. GREER, Judge.

DATED this 28th day of April, 1971.

EINO M. JACOBSON

PRESIDING JUDGE

A true copy of the foregoing

order was mailed this 28th

day of April, 1971, to:

Mr. Bruce Bridegroom

P.O. Box 460

Window Rock, Arizona

86515

_ Attorney for Appellant

Mr. Donald Juneau

eas. The Honorable D. L. Greer E

‘Seven St. Johns, Arizona 85936

ORDER OF THE ARIZONA SUPREME COURT

DENYING PETITION FOR REVIEW

See Jurisdictional Statement, Page No. la

FOLDOUT(S) IS/ARE TOO LARGE TO BE FILMED

INDEX

ORY.

OPINIONS BELOW

TEMENT OF THE GROUNDS ON

MICH THE JURISDICTION OF

HIS COURT jS INVOLVED

ESTIONS PRESENTED BY THE APPEAL.

wees”

TEMENT OF THE CASE.

ESTIONS ARE SUBSTANTIAL.

AN & ® N

SBR

rat

PENDIX B— OPINION OF THE ARIZONA

SOURT OF APPEALS.

PENDIX C—OPINION OF THE SUPERIOR

JOURT OF ARIZONA IN AND FOR THE

SOUNTY OF APACHE.

exe

ila

TABLE OF AUTHORITIES

CITATIONS

Arizona ex rel. Merrill v, Turtle, 413 F.2d 983

9th Cir. 1969), cert. denied 396 U.S. 1003 (1970) ..9, 10, 11

Big Eagle v. United Seates, 300 F.2d 765

(Ce. Cl. 1966) | 18

Board of Commissioners v. Seber, 318 U.S. 705 (1943)...... 14

Buster v. Wright, 135 F. 947 (8th Cir. 1905),

appeal dismissed 203 US. 599 (1906) nc

Carpenter v. Shaw, 280 U.S. 363 (1930) 14

Cherokee Nation v. Georgia, 5 Pet. 1 (1831)................ 3, 8

Choate v. Trapp, 224 US. 665 (1912) Sees eT

Choctaw Nation v. Oklahoma, 397 US. 620 (1970).......... 13

Choteau vy, Burnet, 283 US. 691 (1931)... esseeee 1415

Commmibsionee of Revenue v. Brun, 286 Minn. 43,

174 NW. 2d 120 (1970) ll

‘Sane California Justice Court, 15 Cal. App.

34.579, 93 Cal. Rper. 310 (1st Dist. 1971). 18

Ex Parte Crow Dog, 109 US. 556 (1883)... 9

Guss-v. Utah Labor Board, 353 US. 1 (1957).. 14

Iron Crow ‘v, Oglala Sioux Tribe, 231 F.2d 89°

(8th Cir. 1956) 9, 10

Johnson & Graham's Lease v. McIntosh,

8 Wheat. 240 (1823) 12

K ansas Indians, 5 Wall. 737 (1867) 3, 8-9, 13

v. Montana District Court,

e nates CIT).. 3,9, 16

iii

CITATIONS (Continued )

M v. Beteatiineanram

14 Ariz. App. 452, 484 P.2d 221 (1971) ..2, 6, 10, 13-14, 17

4 McCulloch v. Maryland, 4 Wheat. 316 (1819)

~ Morris v. Hiechcock, 194 US. 384 (1904)

Oklahoma Tax Commission v. United States,

coe 319 US. 598 (1936)

~ Pourier v. Board of Commissioners, 83 S.D. 235,

v. Capoeman, 351 U.S. 1 (1956)

sphens v. Cherokee Nation, 174 US. 445 (1899)

= v. Mayes, 163 US. 376 (1896)

| d States v. Daney, 370 F.2d 791 (10th Cir. 1966) ...13, 18

‘Uniced States v. Forness, 125 F.2d 928 (2d Cir. 1942),

Bae denied sub nom. City of Salamanca v. United -

> Seates, 316 U.S. 694 (1942)...

ed States v. Holliday, 3 Wall. 407 (1866)

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

ited States v. Quiver, 241 U.S. 602 (1916)

States v. Rickert, 188 U.S. 432 (1903)

CITATIONS (Continued)

‘Cases Page

Ward v. Board of Cycle Midleiilinledec,

* 253. US. 17 (1920). 14

Warten Trading Post Co. v. Asizona Tax Commission,

380 US. 685 (1956)............ 3, 12, 18

Williams v. Lee, 358 US. 217 (1959).......... 3, 7, 10, 13, 15

Worcester v. Georgia, 6 Pee. 515 (1832)

Federal Statutes and Treaties

18 USC. §1331....

18 USC, $1360..

20 USC. $§239-41; 631-45

23 USC. §120(e)

25 USC. §231

25 USC. $§452-55

25. USC. $461

25 USC. $§1301 ef. seq

25 USC. §1323(b)

25 USC. $1326.

28 USC. §1257(2)

Treaty. of 1868 between the United States of America

“and the Navajo Tribe of Indians, 15 Seat. 667..... 2, 4, 5, 7

‘Arizona Enabling Act, 36 Seat: 557 (1910)

‘Act of June 18, 1934, ¢. 576, $1, A8’Seat. 984

‘Act of August 15, 1953, ¢. 505, $86, 7, 67 Scat. 590

‘Act of August 15, 1953, c. 505, 67 Seat. 588, 589

_ gemeated by dx ch Anau 24, 1954, c. 910,

8 ony 795...

August 8 1938, 72S. 545

CITATIONS (Continued)

Navajo Tribal Code, Title 5, $§701-704;

731-34; 761-76; 841-43; 871-73; 901-12

, Spiro, Remarks, Los Angeles Times,

‘Mar. 9, 1971, $1, at 16 cols. 1, 2

mment, The Indian Battle for Self-Determination,

58 Calif. L. Rev. 445 (1970)

bin, Paul, Indian Education, 10 Ariz. L. Rev. 661

Sie Lahie snd Public: Weldsee: ‘The Rdecerion of

American Indians, Field Investigation and Research

‘ssa oe Ist Sess. (Comm. Print 1969)

sitte eae, Wis o cos

y i Commie, Si Cog, Ist Sess., Toward

IN THE

Supreme Court of the Rnited States

OCTOBER TERM, 1971

No.

s Ho

* on behalf of herself and all others

Appellant,

_ ARIZONA STATE TAX

- COMMISSION,

Lee

JURISDICTIONAL STATEMENT

ee INTRODUCTORY

__ Appellant appeals from the judgment of the Supreme Court

4 of Arizona entered on September 21, 1971, which denied appel-

'$ petition for review of the judgment of the Arizona Coure

“Of Appeals on April 28, 1971 affirming the dismissal of the ap-

Pp s complaint by the Superior Court of the State of Arizons

a and for the County of Apache on January 12, 1970. Appel-

tant submits this seatement to show that the Supreme Court of

@ the United States has jurisdiction of the appeal and that a sub-

} Mantial federal question is presented.

THE OPINIONS BELOW

The decision of the Supreme Court of Arizona denying review

has not been reported; and appears herein as Appendix A. The

opinion of the Arizona Court of Appeals is reported at 14 Ariz.

»p. 452, 484 P.2d 221, and appears herein as Appendix B. The

STATEMENT OF THE GROUNDS ON WHICH THE

JURISDICTION OF THIS COURT IS INVOKED

(i) This is a claim for refund of income tax paid during the

calendar year 1967 brought under Ariz. Rev. Stat, Ann. §$43-

186(d) in the Superior Court of the State of Arizona in and for

Apeche County. Appellant contends that the assessment, im-

“and collection of the Arizona state income is

invalid because (1) she is a Navajo Indian; (2) she resided at

ail material cimes within the confines of the Navajo Indian Res-

ervation; and (3) her income during 1967 was derived from

sources within the Navajo Indian Reservation, making the state

statute invalid because it conflicts with the Treaty of 1868 be-

tween the United States and the Navajo Tribe. The Superior Court

dismissed her complaint, holding that the applicability of the

Arizona income tax laws against her was not ‘violative of the

federal government's responsibilities as crustee for the Indians

nor did it interfere with tribal self-government. On appeal, the

ony) “adbulbbeg ctv raiagia oigal Court’s dis-

misss that the Arizona income tax law was validly ap-

plied plant, despite he Treary of 1868, and the Supreme

mart of Arizona denied appellant's petition for review of the

judgment of the Court of Appeals.

AG) The judgment sought to be reviewed is the order of the

‘Supreme Court of Arizona denying appellant's petition for review

entered on September 21, 1971. No opinion was filed. The

8 ee ee ee

hate ie

" Arizona in and for Apache County, the Court possessed of the

" secord, on October 4, 1971.

er il) Jurisdiction of the appeal is conferred on this Court by

8B USC. $1257(2).

” (iy) Cases sustaining the jurisdiction of this Court are:

_ _ Kenmerly v. Montana District Court, 400 US. 423 (1971);

Warren Trading Post Co. v. Arizona Tax Commission, 380

US. 685 (1965);

Williams v. Lee, 358 US. 217 (1959);

_ The Kansas Indians, 5 Wall. 737 (1867);

Worcester v. Georgia, 6 Pet. 515 (1832);

- Cherokéé Nation v. Georgia, 5 Pet. 1 (1831).

_ (v) The validity of Ariz. Rev. Stat. §43-102(a), as applied 16

ppellant, is here involved. The full text of that provision is as

rates upon the amount of net income’ in excess of

le ae fa income provided in §§43-127 and 43-128.

On the first one thousand dollars or any part thereof, two

sper cent (2%)

‘On the second one thousand dollars or any part thereof,

three per cent (3% )

On the third one thousand dollars or any part thereof, four

per cent (4%) yh

On the fourth one thousand dollars or any part thereof, five

"per cent (5%)

On the fifth one thousand dollars or any part thereof, six

“per cent (6%)

On the sixth one thousand dollars or any part thereof, seven

per cent (7%)

On the seventh one thousand dollars or any part thereof, and

all taxable income in excess of seven thousand dollars, eight

per cent (8%).

13 Ariz. Rev. Stat. Ann. (1971-1972 Pocket Part, p. 132).

_ QUESTIONS PRESENTED

1. Does a state statute which, as applied, imposes and collects

taxes from the income of an Indian residing at all times material

within the exterior boundaries of the Navajo Indian Reservation,

where such income was derived from sources within the Navajo

Indian Reservation, violate the Treatry of 1868 between the

United States and the Navajo Tribe, 15 Stat. 667?

2. Can the State of Arizona constitutionally apply a statute

that imposes and collects taxes from the income of a Indian

residing at all times material within the exterior boundaries of the

Navajo Indian Reservation, where such income was derived from

sources within the Navajo Indian Reservation, without express

Congressional authorization?

STATEMENT OF THE CASE

Rosalind McClanahan, appellant herein, is a citizen of the

United States and an enrolled member of the Navajo Tribe of

Indians. During the 1967 ¢alendar year, appellant resided within

the exterior boundaries of the Navajo Indian Reseravtion, on that

portion of the Reservation which is within the State of Arizona

Appeliant’s income during the 1967 calendar year was wholly

derived from sources within the confines of the Navajo Indian

Reservation. The total amount of tax withheld from appellant's

income pursuant to Ariz. Rev. Stat. Ann. §43-188(f) amounted to

$16.20. On April 1, 1968, appellant filed an Arizona State Indi-

vidual Income Tax Return, a written protest against the collection

of any tax on appellant's income by appellee, and a claim for

refund for the entire sum withheld from her wages. No action

was taken on appellant's claim for refund, so on October 4,

F 6

1968, appellant appealed her claim to appellee pursuant to Ariz.

Rev. Seat. Ann $43-184(g). Appellee took no action on the

in the Superior Court of Arizona in and for Apache County on

June 17, 1969, pursuant to Ariz. Rev. Stat. Ann. $43-186(d).

| BPremnment of che Navajo Tribe of Indians; (2) the Arizon

_ Enabling Act, 36 Stat. 557, 570 (1910) and the Arizona Consti-

~ tution, “Art. XX allow the State of Arizona to tax the income of

__Andians residing on a reservation; and (3) the Treaty of 1868

apie eater paipelenoets 15 Seat. 667,

does not contain any provision that would prohibit the imposition

e ee ne ate te Nom

~ Indian Reservaion within the boundaries of the State of Arizona.

* Appellant in responding to appellee’s assertions, contended

that (1) absent an Act of Congress, Arizona has no power to

Pe Se iesallans’s lacocse, (2) such arrogation of the i

b BE bower by appellee would be violative of the right to self-govern-

ment conferred on the Navajo Tribe of Indians by the Treaty of

868; (3) and the Arizona Enabling Act and Article XX of the

Arizona Constitution do not deprive the Navajo Tribe of the ex-

Clusive power to tax Indians but rather preclude the state of

Arizona from applying its income tax laws to Indians residing on

the Reservation.

+. The Superior Court dismissed appellant's complaint on Janu-

ary 12, 1970, holding that the State of Arizona did not require

"express congressional authority tm tax appellant, and that the

~ income tax imposed and collected by appellee did not interfere

with tribal self-government. Appellant noticed an appeal to

Court of Appeals of che State of Arizona chat same day. The

Court of Appeals affirmed the Superior Court’s dismissal of the

complain on April 28, 1971, and held that Arizona could —

validly apply its income tax statute on Indians residing and work- —

ing on the Navajo Reservation without violating the Treaty of

1868 or the Enabling Act of Arizona. McClanahan v. State Tax

Commission, 14 Ariz. App. 452, 484 P.2d 221. On May 11,

1971, appellant moved for a rehearing, which was denied on

June 8, 1971. Appellant then filed a petition for review by the

Supreme Court of Arizona on June 22, 1971, and said petition

was denied on September 21, 1971. Appellant filed the Notice of

Appeal to the Supreme Court of the United States in the Superior

Court, the court possessed of the record, on October 4, 1971.

THE QUESTIONS ARE SUBSTANTIAL

THE FEDERAL QUESTIONS PRESENTED BY THIS CASE

COMPEL THE EXERCISE OF THIS COURT'S APPELLATE

JURISDICTION BECAUSE THEY AFFECT THE VERY SUB.

STANCE OF THE FEDERAL-‘STATE-INDIAN RELATION-

SHIP.

There are approximately 127,054 Navajo Indians of whom

71,396 reside in the Arizona portion of the Navajo Indian Reser-

vation. Letrer from Melvin Wise, Chief of the Office of Informa-

tion and Statistics, Bureau of Indian Affairs, Navajo Area Office,

to Donald Juneau, December 16, 1971. The appellee herein,

Atizona State Tax Comntission, contends that it can tax the

incomes of Indians residing on the Reservation where that income

is wholly derived from sources on the Reservation. This conten-

tion is inconsistent with past decisions of this Court (1) which

"protect Indian tribal sovereignty, and (2) which debar state

interference in Indian affairs because of federal preemption in the

field. These two classes of decisions are conceptually and logically

related as bases of an expressed federal policy of tribal sovereignty

‘which excludes state action absent specific federal authorization.

‘But to the extent thet these interes are separable, che discussioe

INCOME TAXATION OF RESERVATION INDIANS.

‘Pellee's right to tax the income of reservation Indians conflicts

Se mm ie Cor of Arps Sel 0 erga ti

_ ‘the taxation in question infringed on the federally-protected

tight of tribal self-government.

~ In Williams v. Lee, 358 US. 217 (1959), this Court formu-

| Spagna ap aleedh per dlr gemagteor

| han ni cron & tn a ago

"on accoynt-against a Navajo Indian in the Arizona Superior Court.

a eee ee Os Reale Come hed

-—_itaenigpsanigemdn aapae Gemeamcepdbasa ag

> Essentially, absent governing Acts of Congress, the question

__-has always been whether state action infringed upon the right

of reservation Indians to make their own laws and be ruled by

39 U.S. at 220. The Court noted the absence of a governing act

Congress in that Arizona had not accepted jurisdiction under

Act of August 15, 1953, c. 505 §§6, 7, 67 Stat. 590. The

Court further found that the tribal courts had “broad ‘criminal

id civil jurisdiction which covers suits by outsiders against

Indian defendants.” Id. at 222 (footnote omitted). It concluded

“that to allow the exercise of state jurisdiction here would under-

‘mine the authority of the tribal courts over Reservation affairs

id hence would infringe on the right of the Indians to govern

themselves.” Id. at 223.

In defining the parameters of tribal self-government for the

tpose of its infringement test the Court relied on the 1868

teaty between the United States and the Navajos, 15 Stat. 667,

id the body of federal case law interpreting the scope of tribal

vereignty. Referring to the 1868 Treaty, the Court stated:

Implicit in these treaty terms* . . was the understanding that

} the internal affairs of the Indians remained exclusively within

____ the jurisdiction of whatever tribal government existed. F

Id. at 222. Referring to the body of federal case law, the Court

ve The cases in this Court have consistently guarded the authority

Id. at 223, The proper application of the Williams test thus

_ Compels a recognition of the many incidents of tribal sovereignty

protected by the federal courts. :

2. Tribal Sovereignty and the Federal Courts

sovereignty in the early years of the Republic. In Worcester »,

Georgia, 6 Pet. 515 (1832) this Court held that Georgia criminal

‘Statutes were inapplicable within the boundaries of the Cherokee

Nation because “[t}hey are in direct hostility with treaties,

repeated in a succession of years, which mark out the boundaries

that separate the Cherokee Country from Georgia . . . and recog-

in Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831), concluded

that the Cherokee Nation was “a distinct community, occupying

its own territory, with boundaries accurately described, in which

the laws of Georgia can have no force . . :” 6 Pet. at 561.

Cases subsequent to Worcester reiterated this Court's commit:

ment to tribal sovereignty. In The Kansas Indians, 5 Wall. 737

(1867), the Court considered the conflicting claims of state

power and Indian self-government. The State of Kansas asserted

Andians which had been patented to them by the United States.

‘Separate political entities, exercising the powers of self-government

vested in them by their treaties with the United States, they would

_ “enjoy the privilege of total immunity from state taxation.” Id.

: j /

756. In Ex Parte Crow Dog, 109 U.S. 556 (1883), this Court

piirmed another aspect of sribal. sovereignty, holding that the

+ Dakova territorial court did not have jurisdiction over an Indian

for an alleged murder of another Indian in the Indian country.

“The criminal and civil jurisdiction was vested by the treaties

‘in the Indian Tribes, giving the Indians “the regulation by them-

selves of their own domestic affairs, the maintenance of order

eh nage pad ng paper lier goeaemanehe

t own laws and customs.” 109 U.S. at 568. The Court also

Paar 241 US. 602 (1916), and individual rights, Talton

9. Mayes, 163 US. 376 (1896).

: ee eon

o : ‘the State of Montana, the state could not assume jurisdiction

ver the Blackfeet reservation under the Act of August 15, 1953,

4 67 Stat. -

Cai Co. » Citizens ‘National Bank, 361 F.2d 517 (Sth Cir.

966); Littell v. Nakai, 344 F.2d 486 (9th Cir. 1965), cert

fed 382 US. 986 (1966); Martinez v, Southern Ute Tribe,

249 F.2d 915 (10th Cir. 1957), cert. denied 356 US. 960

1958); Iron Crow v. Oglala Sioux Tribe, 231 F.2d 89 (8th

. 1956).

The most recent example of the forthright adherence of the

eral courts to the priciples of protected tribal sovereignty for-

lated by this Court is Arizona ex rel. Merrill v. Turtle, 413

id 683 (9th Cir. 1969), cert. denied 396 US. 1003 (1970).

Turtle, the Ninth Circuit held that Arizona had no authority

9 extradite to Oklahoma an Indian living on the Arizona portion

Of the Navajo reservation. The Navajo Tribe was the only gov-

‘ernment with the power of extradition over Indians within the

reservation boundaries, Analogizing the Tribe's extradition power

to that of a state’ government, the court stated that the “power

cannot now be assumed by or shared with the State of Arizona

without “infring{ing} on the right of reservation Indians to make

their own laws and be ruled by them.’ . . .” 413 F.2d at 686.

re Despite the unbroken line of authority going back over a

hundred years, the Arizona Court of Appeals held that Arizona

could validly extend its income tax laws over Indians residing and

working on the Navajo Reservation. The Court misapplied the

Williams test by stating that “the infringement referred to in

Williams v. Lee . . . is not whether the Arizona state income tax

infringes upon plaintiff's rights as an individual Navajo Indian,

but whether such a tax infringes on the rights of the Navajo

Tribe of Indians to be self-governing.” 14 Ariz. App. at 454,

‘484 P.2d at 223. By finding that the income tax is an individual,

personal matter, the court maintained that the paying of the

income tax was not “ani infringement of the Navajo Tribe's

right of self-government.” 14 Ariz. App. at 454, 484 P.2d at

223. By finding that the income tax is an individual, personal mat-

ter, the court maintained that the paying of the income tax was

not an infringement of the Navajo Tribe's right of self-govern

ial ihe liciaca cP eith's cisldoes e'cinisty:-onemnable in

light of the broad interpretation of tribal sovereignty by the

federal courts.

Since the power to tax is an attribute of sovereignty, “essential

to the very existence of government,” McCulloch v. Maryland,

4 Wheat. 316, 428 (1819), it follows that an Indian tribe pos-

sessing the powers of self-government may levy and impose taxes.

Morris v. Hitchcock, 194 U.S. 384 (1904); Irom Crow v. Oglala

Sioux Tribe, supra; Buster v. Wright, 135 F.947 (8th Cir. 1905),

appeal dismissed 203 US. 599 (1906.) Althougn the Navajo

‘Tribe has imposed license and privilege taxes, see 1 Navajo

_ Tribal Code, Title 5, $§ 701-704; 731-134; 761-776; 841-843;

871-873; 901-912; no income tax has yet been enacted. This

__ does not mean thatthe tribe has irrevocably waived or conveyed

" its-taxing power to the State of Arizona. Cf. Arizona ex. rel.

Merrill v. Turtle, supra. In addition, the question inevitably arises

7 ~ as:to how Arizona proposes to collect delinquent taxes, pursuant

__ to Ariz, Rev. Stat. Ann. § 43-191. Cf. Commissioner of Revenue

9, Brun, 286 Minn. 43, 53, 174 NW. 24. 120, 126 (1970). Ap-

_pellee’s attempt w‘levy and collect income taxes on Indians living

_ and working on the Navajo Reservation is a clear and direct

_ infringement of Navajo Tribal Sovereigaty, prohibited by Wi-

hatns v. Lee, supra, Under an unbroken line of cases extending

from Worcester t0 Kennerly, this Court has barred similar at-

~ tempts to dilute or destroy such sovereignty.

Moreover, various state courts have followed this Court's lead

_ im barring state taxation of Indian lands. See, ¢.g., Sobol v. Clark,

~ mene Wash. 2d ......, 479 P.2d (1971); Pourier v. Board of Com-

_ missioners, 83 S.D. 235, 157 N.W. 2d 532 (1969); Makab

_ Indian Tribe v. Clallam County, 73 Wash. 2d 677, 440 P.2d 442

_ (1967). In the only other instance where a state supreme court

~ Indians, the Minnesota Supreme Court delivered a well-reasoned

Opinion denying the state the power to extend income taxation

~ onto an Indian Reservation. Commissioner of Revenue v. Brun,

_ B. THE DECISION OF THE COURT OF APPEALS CON.

FEDERAL PREEMPTION IN THE AREA OF INDIAN

AFFAIRS BECAUSE THE COURT UPHELD THE TAX

IN QUESTION ABSENT ANY SHOWING OF EXPRESS

CONGRESSIONAL AUTHQRIZATION FOR ARIZONA

TO LEVY AND COLECT STATE INCOME TAX FROM

RESERVATION INDIANS.

It is an axiom of federal Indian law that Congress possesses

ary power of legislation” with respect to Indian tribes.

Stephens v. Cherokee Nation, 174 US. 445, 478 (1899). Con-

gtessional plenary power derives from the Constitution, Wor-

cester v. Georgia, 6 Pet. 515, 559 (1832); the “guardianship”

of the United States over Indians, Cherokee Nation v. Georgia,

5 Pet. 1, 12 (1831); and the federal “ownership” of Indian land,

Johnson & Grabam's Lessee v. Mclntosh, 8 Wheat. 240, 261

(1823). See Comment, The Indian Battle for Self-determination,

58 Calif. L. Rev. 445, 447-52 (1970). These sources of federal

plenary power over Indian affairs have been buttressed by the

moral obligation of the federal government recognized by this

Court in United States v. Kagama, 118 U.S. 375 (1886):

{The Indian Tribes] owe no allegiance to the States, and

receive from them no protection. Because of the local ill feel-

ing, the people of the States where they are found are often

their deadliest enemies. From their very weakness and helpless-

ness, so largely due to the course of dealing of the Federal Gov-

‘ernment with them and the treaties in which it has been

- ptomised, there arises the duty of protection, and with it the

power.

118 US. at 384.

Where Congress acts pursuant to its plenary authority over

Indian affairs, state action is absolutely precluded. In Warren

Trading Post Co. v. Arizona Tax Commision, 380 US. 685

(1965), this Court held that-Arizona could not tax the gross sales

income of a trading post located on the Arizona portion of the

Navajo Reservation. Finding that a comprehensive scheme of

Pete eres Mee Prenat up in. onder, o,,segulase

sages ae Comes eed: :

'» These apparently all inclusive regulations and the statutes

oe them would seem in themselves sufficient to show

that Congress has taken the business of Indian trading on reser-

vations so fully in hand that no room remains for state laws

imponsing additional burdens upon traders.

Id. at 690.

‘Where Warren, drawing upon hd long standing doctrine of

20 geass ime again aaa

acted, Williams, supra, controls state action in Indian affairs where

‘Congress is silent. The Williams test precludes state action in the

absence of “governing Acts of Congress,” 358 US. at 220, where,

by Congress. See Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).

~ Only Congress cats alter established federal Indian policy, United

States v. Daney, 370 F.2d 791, 795 (10th Cir. 1966), and a

_ Sate cannot sua sponte assert its jurisdiction over an Indian by

_conferting state citizenship and the right of suffrage upon him.

The Kansas Indians, supra at 757; United States v. Holliday,

“Wall. 407, 419 (1866).

“Congress has granted the states jurisdiction in limited areas,'

$e, €.8., 25 USC. § 231 (health care); and has granted certain

“enumerated states civil and criminal jurisdiction by affirmative

legislative action. Act of August 15, 1953, c.505, 67 Seat. 588,

589, as amended by the Act of August 24, 1954, c.910, 68 Stat.

195; Act of August 8, 1958, 72 Stat. 545, amending 18 USC.

~ $§ 1331, 1360. Arizona is not one of the enumerated States, and

has undertaken no affirmative legislative action to assume juris-

‘diction over the Arizona portion of the Navajo Reservation.

In justifying the tax in question here, a tax that directly infringes

h the sovereignty of the Navajo Tribe; the obligation clearly rests

with the state of Arizona to show congressional authorization

t the state’s action. It is significant that the court below did

it cite any specific congressional act in support of Arizona's tax

~ Of reservation Indian income. The court of appeals dismissed

Warren, stating that it found “no corresponding preemption of

i carer tnd tin

d States v. Formas, 125 F.2d 928 (2d Cie.) cert. denied sub wom. City

oa v. United States. 316 US. 694 (1942). Cf. Choctaw Nation ».

397 US. 620, 631 (1970); Choate v. Trapp, 224 US. 665, 675

the field of taxation by Congress to make this reasoning germaine

to the taxation’of Navajo Reservation Indians by the State of

Arizona.” 14 Ariz: App. at 455, 484 P.2d at 225. The court

thus overlooked the clear Williams’ requirement of affirmative

congressional authorization and assumed that silence bespeaks

consent despite the well-settled principle of federal law that the

non-exercise of power in a field preempted by the federal govern-

ment forecloses state action in that field absent express congres-

sional authorization. Guss v. Utah Labor Board, 353 US. 1

(1957). .

of Indians is especially significant in view of the wide variety of

state taxation of Indian property struck down by this Court. Board

of Commissioners v. Seber, 318 US. 705 (1943) (real estate

tax on trust lands); Carpenter v. Shaw, 280 US. 363 (1930)

(tax on allottees’ oil and gas royalties); Ward v. Board of County

Commissioners, 253 U.S. 17 (1920) and Choate v. Trapp, supra,

(real property tax on allotments); United States v. Rickert, 188

US. 432 (1903) (tax on fixed and permanent improvements on

allotted lands). '

The two cases cited by the lower court as authority for state

taxing power over Indians, Oklahoma Tax Commission v. United

States, 319 US. 598 (1936),’and Leahy v. State Treasurer of Okla-

boma, 297 US. 420 (1936), dealt with situations that are totally

distinguishable from the situation of members of the Navajo Tribe.

Leaby upheld a state income tax on the tribal income of an Osage

Indian. The Court's opinion was perfunctorily based up on Chot-

eau, v, Burnet, 283 US. 691 (1931), a case upholding federal

income tax on the income of a tribal Indian. The Choteau holding

turned on two central factors that are inapplicable given the

present situation of tribal Indians.

» First, at the time Choteau was decided, federal Indian policy

was conducted pursuant to the assimiliationist Indian Allotment

ies ee hetene Comme domed tee Syleeal policy coonesnploed

ver

% :

oie

“

‘3

of government were provided by the Seate of Oklahoma,

wider Id. at 609. The case was decided wholly on 2 benefit-

in den theory of taxation, a cheory inapplicable to the Navajo

~~ Trib The Navajo Tribe has an effective court system, recognized

® hy this Court, see Williams v. Lee, supra, at 222, that alleviates

|) Mate court calendars with no cost to the state. The Tribe has its

id work projects).

aided or wholly underwritten by the

thecaseatbar,

‘Not only has Congress not authorized sub silentio Arizona to

tax the income of Navajos living and working on the reservation,

but recent congressional legislation evidences a clear intent to

strengthen Indian tribes, encourage the type of tribal activities

mentioned above, and assist them in their struggle for self-

legislation is the Indian Civil Rights

Montana

reat

with the explicit requirements of the Act.” 400 US. at 429 (foot-

note omitted). The Navajo Tribe has not even raised the possi

of the roads on the reservation are maintained by the Tribe

25 USC. $§452

federal money. See 455 (Johnson-

: S.C. $8239; 631-645 (Impact Aid for schools);

‘Publ, 85-470, 72 Seat. 834 (1958) (highways); 23 USC. §120 (s)

5 | of hhighway costs on Indian Reservations paid by federal govern-

® bility of concurrent state jurisdiction, much less seriously con-

‘sidered a referendum on the question.

| CONCLUSION

, The federal questions presented by the Arizona Court of Ap-

|) peals decision in McClenaban v. State Tax Commission concern

4a very existence of Indian tribal government within the fed-

~ etalist system. The foregoing analysis shows that the lower court’s

] epinion directly ‘ontroverts the unbroken line of decisions

herein this Court has preserved Indian tribal sovereignty and

stained federal preemption in Indian affairs. What is a stake

~ White Press 4

1971, said: “We in this Administration believe in giving you control

wh: Ie ieee Vie Cet nn Font ie: The lives

Pete your lives. The federal government has obligations to provide financial

Mieiaki.

‘See, g., Fannin, Indien Education, 10 Ariz. L. Rev. 661 (1

); Sub-

and

bie il lok this Cou or rac that he vio wl :

seuagunesioek he

“nS tk hn st on :

sing tm (1956) arp So Sn

sale of timber on allotted land); United States v. Daney, 370 F.2d

rier oa (ne, ann) on bonus oe. Indian

APPENDIX A

SUPREME COURT

: STATE OF ARIZONA

PHOENIX

: 85007

September 22, 1971

x ;

IND McCLANAHAN,

ividually and On Behalf of All Others No. 10576-PR

nila ly Situated, (Supreme Court)

a Appellant, | No.1 CA-CIV 1316

= vs. ” (Court of Appeals)

f STATE TAX COMMISSION OF No. 4370

SONA, . (Apache County )

J a Appellee. :

be following action was taken by the Supreme Court of the

bf Arizona on September 21, 1971 in regard to the above-

ed cause:

Baht:

‘ MERED: Petition for Leave to File Amicus Curiae Brief

ED.

IRTHER ORDERED: Petitio for Review — DENIED.”

ec rd returned to the Court of Appeals, Division One, this

re of September, 1971.

4 CLIFFORD H. WARD, Clerk

1 CACIV 1316,

| DEPARTMENT B

Appeal from the Superior Court of Apache County

: Cause No. 4370

The Honorable D. L. Greer, Presiding

ache Coun:y, Arizona, on behalf of herself and all others

4 situated,' against the State Tax Commission of Arizona,

g a refund of $16.20 withheld by her employer during the

Arizona claimed an alleged tax liability of $11.84. Plain-

complaint alleged that she is a Navajo Indian and that at

times during the tax year 1967 she resided on, and all her

for that yeat. was derived from sources within the confines

the Navajo Indian Reservation. By reason of her status and

Source of her income, plaintiff contends he is not subject to

asse t, collection or retention of the Arizona tax on

D ne tollected under the authority of ARS § 43-101 et seq.

' defendant State Tax Commission filed a motion to dismiss

failure to state a claim for relief pursuant to Rule 12(b),

ule of Civil Procedure, which was granted. Plaintiff appealed

jom the judgment of dismissal of her complaint.

For the purposes of this appeal, we must consider the facts pled

\ plai iff's complaint as true. Lakin Cattle Co. v. Engeithaler,

M Ariz. 282, 419 P.2d 66 (196).

lupreme Court in Worcester v. Georgia, 31 US. (6 Pet.) 515,

LEd. 483 (1832):

§$43-102 A, as amended, provides in part:

shall be levied, collected, and paid

| fa

a cake as eden

< dassdis teenage ck tha ‘Yella in aeccvecion cxieneed ce!

_ otherwise, to the rese of the citizens of the United States and to

t es, has drastically changed in the approximate

“Space dos Wee. Gong. Thus chong relationship

— jee S030 LS GE a neti

a ae oe

non she mapherpada orb ‘Williams ¥. Lee, 358 US.

217, 79 S.Ct. 269, 3. L.Ed. 2d 251 (1959). Williams also speaks

‘ini terms of “the incernal affairs of the Indians” remaining “exclu-

| “sively” within the jurisdiction of the eribel government.

2 cis also Pp ent from seading the Scate-Indian cases, that the |

‘extent of control that a state may exercise over Indians residing |

- within ies borders is in direct relationship to the amount of tribal

over ee ee se

Leahy v. Sa rer of Oklahoma, 297 US. 420, 56 S. Ce

| $07, 80 L. Bd. 771 (1936) and in Oklahoma Tax Commission v.

-‘Unieed States, 319 U.S. 598, 63 S. Ce. 1284, 87 L. Ed. 1612

y (1943), the State of Oklahoma was allowed to impose a state

9 ie Srughlopeaageeglas area

rng des rom al er chine fr ek

‘Commission v. U. S., supra.

ikewise, Alaska state fishtrap laws were applied to the Met-

a Indians who have no reservation in the self-government

' because “the principle of Indian national sovereignty enun-

ted in Worcester v. Georgia . . . does not apply to them.”

etlakatla Indian, Community v. Egan, 369 US. 45, 82S. &.

2,7 L. Ed. 2d $62: (1962).

‘Tike result was reached in Organized Village of Kake v.

in, 369 U.S. 60, 82 S. Ct. 562, 7 L. Ed. 2d 573 (1962), deal-

> ying the rationale of these decisions it is apparent that

infringément referred to in Williams v. Lee, supra, is not

he: the Arizona state income tax infringes on plaintiff's

as an individual Navajo Indian, but whether such a tax

ges on the rights of the Navajo Tribe of Indians to be self-

ning. In making this determination, we must first make an

lysis of the nature of a net income tax. A workable analysis

§ first expressed in Black on Income and Other Federal Taxes-

burth Edition) as quoted in Poorman v. State Board of Equali-

a, 99 Montana 543, 45 P.2d 307 (1935):

‘An income tax is distinguished from other forms of taxation

this respect: that it is not levied upon property, nor upon

operations ‘of trade or business or the

wally or generally, but not

ily, upon only the excess of such acquisitions over a

n minimum sum.

Aa income tax has been said to.be a personal tax, Pennsyl-

inia Cement Co. v. Bradley Contracting Co., 274 F. 1003

.D.N.Y. 1960), assessed upon the income of the person. Young

; Hlinois Athletic Club, 310 Ill. 75, 141 N.E. 369 (1923).

Bec of the nature of a net income tax we afe not per-

ae :

-suaded by the reasoning of those cases dealing with the attempt

‘by the state to control or affect Indian real property. See The

Kansas Indians, 72 U.S. (5 Wall.) 737, 18 L. Ed. 667 (1866);

None Hood Geen Int CNEL). ws Vilage of openola, 68 NI

327, 361 P.2d 950 (1961). .

‘alii: caida dibiasidioaXabae Gos peckibicin ‘equines sp.

plying stare law to reservation Indians was not intended as a pro-

hibition against individual infringement, but deals with inter-

ference with tribal autonomy we have no difficulty in holding

that the fact that the plaintiff is a Navajo Indian and is required

to pay a personal tax, does not in and of itself make such a tax

ineffective. Nor do we believe the fact that plaintiff as a Navajo

Indian is requited to pay the income tax on income derived solely

from sources within the reservation results in an infringement on

the Navajo tribe’s right of self government. In determining

whether such an infringement exists, we are aded by an examina-

tion of those early cases dealing with the federal-state dichotomy

of income taxation. Thus, as was held in Helvering v. Gerhardt,

304 US. 405, 58 S. Ct. 969, 82 L. Ed. 1427 (1938), when deal-

ing with the problem of whether state employees were required

to pay federal income taxes and the extent that such taxation

Antri jed upon the sovereignty of the stase:

a “Byen | , to some tanascertainable extent, the tax deprived

» the state of the advantage of paying less than the standard

Ki rate for the services which they engaged, it does not curtail

; ‘any of those functions which have been thought hitherto tobe

. essential t0 their continued existence as states.

: [W]e decide only that the presene tax neither precludes nor

“threatens unreasonably to obstruct any function essential to the

_ Snel ence the green” (emphasis

Likewise, the corresponding right of a state to levy an income

tax upon sn employee of the federal government was upheld in

‘Graves v. New York ex rel. O’Keefe, 306 US. 466, 59 S. Ct

595, 83 L. Bd. 927 (1939). et ee Oe

“If then, an income tax by the Federal Government or a state

Gy jpon the employee of the other does not interfere with the essen-

: al function of the government whose employee is being taxed,

7 iow can it be seriously argued that an income tax by the State of

rs mona upon a Navajo Indian, regardless of his employer, causes

i impairment of the right of the Navajo tribe to be self govern- J

ng? We believe it cannot. Nor are we dissuaded from this propo- ,

Hon by Warren Trading Post Co. y. Arizona State Tax Comm..,

685, 85 S. Ct. 1242, L. Ed. 2d 165 (1965) relied upon

intiff. This case held that the State of Arizona could not

npos @ gross sales tax upon the privilege of operating a trading

Ost within the confines of the Navajo Reservation. In our

Pinion, the rationale of that decision was that the Federal Gov-

inmeni by licensing Indian traders and regulating them “has

ken the business of Indian trading on reservations so fully in

de q biciaiie adtional

ntif likewise argues that the Arizona Enabling Act (§ 20,

t. 569) and the Arizona Constitution (Art. XX, Fourth)

interest in Indian lands. Second, as was pointed out in Organized

Village of Kake v. Egan, 369 U‘S. 60, supra, the “absolute juris

‘diction and control” language of the Act and Constitution was

“not. intended to oust the stare completely from regulation of

‘Indian ‘property’ . . .” Thus “state laws may be applied to Indians

uunfess such application Would incerfere with reservation self gor

Ds hes Wika ar cs asst tole ih ave bed

faced with this exact problem. In Ghahate v. Bureau of Revenue

80 N.M. 98, 451 P.2d 1002 (1969), the New Mexico Court of

_Appeals held that the State of New Mexico could validly ux

the income of reservation Indians earned on the reservation. How

t decision the parties stipulated that the tax involved

"would ot const e an nent upon tribal rights. There:

octron shaclearaay g of ‘what ts seated*in ca

woe P

pigs

t Supreme Court of Minnesota in the case of the Commis-

pner of Taxation vy. Brun, 286 Minn. 43, 174 N.W.2d

( 1970) came to exactly the opposite conclusion, holding that

Tytie State of Minnesota could not impose its income tax on a

membe: of the Red Lake Band of Chippewa Indians who was

tployed at a tribal sawmill within the confines of the Reserva-

9 7en. On the crucial issue of infringement the Court held:

3 --fror employees of a sawmill operated for the benefit sad we

ter of enrolled members of the tribe does not interfere with

= the tribal ‘rights of self-government.

<. Apparer y the Minnesota Court is either holding that an

ome tax is a tax on the source of income, which has been

pre y discredited or it is assuming that an income tax is a

4 fk on property, which is also incorrect. In any event, the mere

E mtemen that an income tax is an infringement, without analyz-

ig the issue, does not make it so. For this reason we disagree with

ed innesota Court.

PAt time of oral argument counsel for plaintiff concedéd that

E monic of the State of Arizona were being expended for educa:

bn and welfare within the confines of the Navajo Reservation

d that Navajo Indians were the beneficiaries of these expendi-

ites. This fact is mentioned merely to point out that one of the

Bdamental concepts of governmental sovereignty is the obliga-

Ih to provide services with the corresponding right to tax its

sid nt ” to pay therefor.

Fo the reasons herein stated, itis our opinion that because of

Natu of an income tax, its imposition upon income earned

feservation Indian from sources within the reservation is not

Antringement of the right of self- government by the tribe of

ch the taxpayer is a member and therefore such a tax is a

bet.

Sega

10a

rad exec of 4 sate Iw within the cones of the Indi

“reservation.

re en ee

ay age EA ~ EINO M. JACOBSON, Presiding Judge

[LEVI RAY HATRE, joe

MORRIS ROZAR, Judge of the Superior Court

NOTE: ‘Jadge William E. Eubank, having requested that he be

relieved from consideration of this matter, Judge Morris Rozar,

Maricopa County Superior Court, was called to sit in his stead and

pafticipate in the determination of this decision.

lla

APPENDIX C

IN THE SUPERIOR COURT

IN AND FOR APACHE COUNTY

STATE OF ARIZONA

’

No. 4370

“PESALIND McCLANAHAN, Individually and On Behalf of

gi Cc ne: Similarly Situated,

= Plaintiff

ess

z ; HE STATE TAX COMMISSION OF ARIZONA,

(Filed: January 23, 1970)

AMENDED OPINION AND ORDER

‘Bening the relationship of the Navajo Tribe members to this

oe <.

Motion the facts as alleged are taken to true.

Wieltbaler, 101 Ariz. 282, 419 P24 66.

In Warren Trading Post .v. The Arizona Tax Commission, 380

US. 685,14 L, Ed. 2d 165, 85 S. Cr. 1242, Justice Black while

holding the Arizona State Tax Commission powerless to impose a

sales tax against a trader on the Navajo Reservation, discussed

grants made by the United States Government for its wards, for

roads, education, and other services, and further stated:

“Since Federal legislation has left the State with no duties or

responsibilities respecting the Reservation Indians, we cannot

believe that Congress intended to leave to the State the privi-

lege of levying this tax”.

It is therefore appropriate, preliminarily, to discuss provisions

made by the State of Arizona for its Navajo residents in Apache

County.

Navajo Tribal members Dia: tan aebileew al Arizona are

entitled to all benefits to which other residents are entitled. His

right to bear arms and to consume alcoholic beverages has been

recognized and affirmed: by recent legislation, His right to sue in

State courts was determined in Begay v. Sawtelle, 53 Ariz. 304

(1939), 88 P.2d 999. By Fernandez v. State, 16 Ariz. 269, 144

Pac. 640 (1914), the Indian living on a Reservation was ad-

judged to be competent as a witness in judicial proceedings. In

Bradley. v.. Arizona Corporation Commission, 60. Ariz. 508

(1943), 141 P.2d 524, ‘the Supreme Court of Arizona upheld

the constitutional right of a tribal Indian vo sue and obtain a cer-

tificate of convenience and necessity for operation of a motor

vehicle as a contract carrier.

The.zenith of Arizona judicial responsibility arrived in Hari

son.v. Laveen, 67 Ariz. 337, 196 P.2d 456, when Justice Udall,

who presided in this Court for many years, held, in reversing

Porter, v. Hall, 34 Ariz. 308, 271-P; 411 (1928), that a tribal

Indian could vove in Seate and Federal elections. The case also

affirmed that Indian tribes residing on Indian Reservations are

: | OF the Stave Of Arizona. In every term of chis Court many

Navas eae ane a ——

13a

INo cases have been cited holding that the State may not impose

q Phe thrust of the Defendant's argument is twofold: (1) Ari-

‘Boas has not power to tax income of the Plaintiff absent an Act of

Pohgress expressly confering such power, and (2) the State has

‘BB power to tax the income of Plaintiff because to do so would

prfere with the powers essential to self-government of the

fajo Tribe. *

We have reviewed all the authorities cited by counsel, and have

5 ide additional research, and find that the best summary of all

HeUS. Supreme Court decisions affecting the case at bar is State

Wf Ars ex rel Edgar Merrill v. Wayne Turtle, 413 F.2d 683

th Cir., 1969), wherein Judge Madden stated,

# The relationship between the Navajo Tribe, the United States

and the State of Arizona has previously been considered by the

Su Court in William v. Lee, 358 US. 217 (1959) and

by this court in Littell v. Nakai, 344 F.2d 486 (9th Cir. 1965).

history reviewed by the courts in these cases discloses that

cally the Indian tribes were regarded as distinct political

co. amu re Sree nee Sey aan See Jone pl sng see and

bjec to plenary power of Congress over Indian

affair is Wensas v. Georgia, 31 US. 515 (1832); Ex

le Crow Dog, 109 US. 556 (1883); United States v.

‘ original

_ nh

As similarly seated in Organized Village of Kake v. Egan, 369

US. 60,7 L. ‘Ed. 2d 573, a3 s. Ce. 562 (1961),

“i'n the aera of

= ity to exercise jurisdiction over Plaintiff.

~ "The second point raised is whether, by taxing Plaintiff, the state

ingecferes with self-government of the Navajo Tribe or right

_ reserved by Federal. law. In Brun v. Commissioner of Taxation,

Docket No. 1375, dated April 22, 1968, the tax court of Min-

“nesota held that a number of the Red Lake Band of Chippewa

“employed ‘at a sawmill on said teservation, over which

Indians

the’ State had no ¢ivil or ctiminal jurisdiction, was liable for pay-

ment of Seate income tax imposed by Minnesoea. The Court hel,

nio of this-Court that Minnesota does have suf

sSraawtaarc asses:

the’ Reservation. Im regard to she particular appellant, it is

+ that of State income taxes

i eaigenrans (Emphasis

f the United Staces has never

Bae Benes of Rew. Yor

pepiion was affirmed in Powless v. State Tax Commision of New

Work, 253 NY S.2d 438 (1964),

(in Leahy v, The State Treasurer of Oklaboma, 49 P.2d 570

‘ 1935), which was later affirmed by the United States Supreme

‘Wourt, 297 us. 420, 80 L.Ed 771 1936), the Oklahoma Supreme

iron: the above cases we conclude that imposition of the Ari.

Res Mt

16a

zona income tax on Plaintiff does not interfere with Tribal self.

Seeeeenent ef Heese Tike:

* ‘The United States Supreme Court held in Choteau v. Burnett,

283 US. 967, 75 LEd. 1353 (1931), that a member of the

Osage Tribe is liable for Federal income tax. Plaintiff is also sub-

ject to Federal income taxes. Squire v. Capoeman, 351 US. 1, 76

S.Ct, 611, cotaicar ante (1956); Holt v. C.LR., 364 F.2d 38

(1966).

By imposition of an income tax on Indians, Arizona does not

pre-empt nor preclude the Navajo Tribe from imposition of its

own income tax. Indeed, the Navajo, in payment of State, Federal

‘and Tribal taxes would be no different from other taxpayers pay-

ing city, state and Federal taxes. We find no interference with

Tribal. self-government. Instead, we find that imposition of the

tax is in the long run beneficial to the Navajo, and may well speed

up the full pee into our political, social and economic

culture,

ay fares Gs le scared ln thi deta 0 evel the pitfall

tioned by Aristotle when he said,

“They who take only 2 few points into account find it easy w

pronounce sentence.”

‘But it does appear, essentially, that this is a matter between the

~ sowereign State of Arizona and one of its citizens. Justice Brandeis

RS ALOE Pete

_. “As Leahy wes entitled to have the income paid to him and was

5 fete ee oe ee Pe Be metnn topeets whey i shoold os

be taxed also by the State.” ~

Thesis rire le ite Den

be) issi n of Arizona, be and is hereby granted.

Con ae ong 7 - /s] D.L GREER

rer aes “DD. L. Greer

"Judge of the Superior Cour

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