Amicus Curiae Brief — McClanahan v. Arizona Tax Comm'n

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FEDERAL QUESTI

OF THE AMICUS CURIAE.

} WHY THE QUESTIONS PRESENTED

SUBSTANTIAL

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TABLE OF AUTHORITIES

Cases

Collins v. Yosemite Park & Curry Co.,

- 304 US. 518 (1938)

Commission of Taxation v. Brun,

286 Minn. 43, 174 N.W.2d 120 (1970)

Ghahate v. Bureau of Revenue,

80 N.M. 98, 451 P.2d 1002 (1969)

Humble Pipeline Co. v. Waggonner,

376 US. 369 (1964) ‘

Kahn v. Arizona State Tax Comm'n,

490 P.2d 846 (Ariz. Ct. App. 1971)

Kansas Indians, 72 US. (5 Wall.) 737 (1867)

‘Kennerly v. District Court of Ninth Jud. Dist.

of Montana, 400 U.S. 423, 91 S.Ct. 480 (1971)........... 4, 6-7

McClanahan v. State Tax Comm'n,

14 Ariz. App. 452, 484 P.2d 221 (1971) 2, 4,8

‘Mississippi River Fuel Corp. v. Cocreham,

cert, denied, 382 F.2d 929 (5th Cir. 1967), |

cert. denied, 390 US. 1014 (1968)

Organized Village of Kake v. - Egan,

369 US. 69, 71 (1962)...

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

Warren Trading Post Co. y. Arizona Tax Comm'n,

380 US. 685, 686-87 (1965)

Williams v. Lee, 358 U.S. 217 (1959)

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

Federal Statutes

Arizona Enabling Act, $ 20, 36 Stat. 569 (1910)

Buck Act, 61 Seat. 641 (1947)

- AUSC. § 101-110 (Supp. 1971)

- 4USC. § 106(a) (Supp. 1971)

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BS USC. § 1322(a), 1326 (Supp. 1971)

BUSC. § 1324 (Supp. 1971)

“Act of August 15, 1953, § 7, 67 Stat. 590

- Gwil Rights Act of 1968, 82 Stat. 78 (1968)

Public Law 83-280

- Arizona Constitutional Provision

| Atiz. Const.’ Art. 20, Para. 4

i OTHER AUTHORITIES

‘Comment, Indian Taxation: Underlying Policies and

__ Present Problems, 59 CalifL.Rev. 1261, 1285-1286

(1971)

Comment, State Taxation of Indian Income,

~ -1971 Law & Soc. Order 355

Comment, The Power of a State to Impose an Income

_. Tax on Reservation Indians, 6 Willamette LJ. 515

~~ (1970)

113 Cong. Rec. 35471-35477 (1967)

_ 114 Cong. Rec. 394 (1968).

~ 114 Cong. Rec. 5836-5838 (1968)

jones, Paul, Former Chairman, Navajo Tribal Council,

- Hearings on Constitutional Rights of the American

Indian Before the Subcomm. on Constitutional Rights

the Senate Committee on the Judiciary,

88th Cong., 1st Sess., pt. 4, at 851-71 (1964)

43, 90th Cong., Ist Sess. (1967) ‘

>. No. 721, 90th Cong., 1st Sess. 32 (1967)

p. No. 841, 90th Cong, 1st Sess. 5 (1967)

IN THE

e Court of the United States

OcTOBER TERM, 1971

No. 71-834

—_

_ ROSALIND McCLANAHAN,

‘on belfalf of herself and all others

‘similarly situated, On Appeal

Fa Appellant, From The

rag VS. 4 Supreme Court of

ARIZONA STATE TAX Arizona

Appellee. |

BRIEF OF THE NAVAJO TRIBE OF

INDIANS, AS AMICUS CURIAE,

IN SUPPORT OF JURISDICTIONAL

STATEMENT

_ Counsel for the parties have consented in writing to the filing

Ota brief in this case on behalf of the Navajo Tribe of Indians, as

*_ INTEREST OF THE AMICUS CURIAE

‘The Navajo Tribe of Indians, the Nation's largest, occupies

Controls a reservation including portions of three states. It is

Tribe of which Appellant here is an enrolled member; it was

within the Navajo Reservation that Appellant earned the

t which the State of Arizona seeks to tax. It is on the

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Navajo Reservation that Arizona seeks to impose its income tax

Because of the Navajo Tribe's concern for the economic welfare

of its people, the Navajo Tribe believes that the application of

Arizona’s income tax laws to its people and its Reservation will

have an untoward economic impact not considered by the Arizona

taxing authorities or the Arizona courts. At the individual level,

as this Court noted in Williams v. Lee, 358 U.S. 217, 222 n.9

(1959), illiteracy and poverty characterize the plight of many

Navajos. Those conditions prompted a President of the United

States and later the United States Congress to abandon a program

to subject Navajos to state jurisdiction. Id.

Although the Navajo Tribe has not subjected its many illiterate

poor to a tribal income tax, the courts of two states, Arizona and

New Mexico, portions of which are included within the Navajo

Reservation, have sustained state assertions of income taxing

power over those individual Navajos. See McClanahan v. State

Tax Comm'n, 14 Ariz.App. 452, 484 P.2d 221 (1971); Kahn »,

Arizona State Tax Comm'n, 490 P.2d 846 (Ariz. Ct. App. 1971);

Ghabate v. Bureau of Revenue, 80 N.M. 98, 451 P.2d 1002

(1969). The rulings of those courts conflict with the ruling of the

Minnesota court in Commission of Taxation v.. Brun, 286 Minn.

‘43, 174 N.W.2d 120 (1970). Without an authoritative resolu-

tion of the matter by this Court, the result for the Navajo Tribe

and its people, as for other Indian Tribes and their members, is

confusion."

The focus in the Arizona Court of Appeals’ decision on the

rights of the Navajo Tribe to be self-governing rather than on

any infringement on Appellant's rights as an individual Navajo

The national significance of the problem has several critical

bing Paes and Pies Prolns, 9 Cal Sree Tammie Under-

olicies and Present Problems, 59 CalifL.Rev. 1261, 1285-1286

aon): ne ira State Taxation of Indian Income, 1971 "Law & Soc.

Order 355; RevreionIndans, 6 Wi Power of a State to Impose an Income Tax 0 on

aco nell 1 (1970).

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" fequires a presentation of the position of the Navajo Tribe.

bugh Appellant, both before this Court and the state courts,

the Nava

and the simultaneous opposition by the

Nay unilateral state assertion of jurisdiction over

- Indian reservations, without the consent of the Indians affected.*

_ Those policies appear especially relevant to the dispostion of this

_ Sppeal because Congress incorporated them into federal law’ and

because following the congressionally prescribed procedure as-

_ fates that the needs and special circumstances of the Navajo

people will be considered by State officials, with the result that

the application of State law to Reservation Indians will accord

with an elementary principle of our Nation’s government, obtain-

_.. REASONS WHY THE QUESTIONS PRESENTED

_ ARE SUBSTANTIAL FEDERAL QUESTIONS.

The Arizona, Minnesota and New Mexico courts appear to

recognized the same test: whether the state income tax laws

that opposition, shared by leaders of other Indian Tribes, bulked

e! mT8 TSG oS Oe ae LY of the Civil Rights Act of 1

a Stat. 78 (1968), 25 USC. §§ 1321-1326 (Supp. 1971). See

Be B41, 90th Cong, 1st Sess. 11-12 (1967), accompanying S. 1843,

"7h Cong., Ist Sess. (1967) {hereinafter “Senate 1843"}, a bill

tii passed the Senate, 113 Cong. Rec. 35471-35477 (1967) and was

Madopted as an amendment to the Dirksen amendment to the 1968

Wie Righes Act. See 114 Cong. Rec. 58365838 (1968), Tide Ins

iia Bill 1843 became Title of the 1968 Civil Rights Act.

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cals dhliaeksbdadicea Andidaacowsiniin dheteiogll

laws and be ruled by them. McClanahan v. State Tax Comm'n,

14 Ariz. App. 452, 456-57, 484 P.2d 221, 224-26 (1971);

Kabn v, Arizona State Tax Comm'n, 490 P.2d 846, 849 (Ariz.

Cr. App. 1971; Commission of Taxation v. Brun, 286 Minn.

43, 174 N.W.2d 120 (1970); Ghahate v. Bureau of Revenue,

80 N.M. 98, 451 P.2d 1002, 1004 (1969). While the Arizona

and New Mexico courts sustained the state taxing power, the Min-

nesota court rejected it.

The tests formulated by the state courts purportedly derive

from this Court’s statement in Williams v. Lee, 358 U.S. 217,

220 (1959):

“Essentially, absent governing Acts of Congress, the question

has always been whether the state action infringed on the right

ch vemmvorion tanec 03 make thelt own laws end be culed by

them.” (Emphasis added)

Significantly, in this case, the Arizona Court of Appeals’ quotation

from Williams v. Lee, supra, omitted the phrase, “absent govern-

ing Acts of Congress... .” McClanaban v. State Tax Comm'n,

14 Ariz. App. 452, 484 P.2d 221, 223 (1971).

This Court only last term reemphasized the importance of first

detetmining the applicability of acts of Congress. Kennerly ».

' District Court of Ninth Jud. Dist. of Montana, 400 US. .

91 S.Ct. 480 (1971). Although that case, like Williams v.

a ite ia lerconngatngstennee seappertabe:

Indian in an action by a non-Indian, this Court’s decision did not

apply the infringement of the right of tribal self-government

test. Indeed, the Tribal Council resolution there permitting state

courts to have concurrent jurisdiction over actions involving Tribal

members suggested no infringement on Tribal self-government.

Instead, this Court’s decision cited a “governing act of Congress,”

§ 7 of the Act of August 15, 1953, 67 Stat. 590, held that the

applicable Congressional act rendered Tribal action entirely im

See nernemery see ncaa Ceayeese Dent one: Soares

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edu prescribed by Congress, the state court had no juris-

Tn Conjunction, the cited decisions of this Court teach that if

st of Congress applies to the assertion of state power over

vation Indians, the question is whether the state action con-

s with the act of Congress, without regard to whether state

n infringes om tribal self-government.

Such a governing act of Congress controls the disposition of this

€. The statutes involved are sections 402(a) and 406 of Title

“Of the Civil Rights Act of 1968, 82 Stat. 79, 80, 25 U.S.C.

1322 (a), 1326 (Supp. 1971), which provide as follows:

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untry or part thereof

” (Emphasis added)

“State jurisdiction acquired pursuant to this subchapter with

2 to criminal offenses or civil causes of action, or with

ect to both, shall be applicable in Indian country only

ere the enrolled Indians within the affected area of such

sAmasan country accept such jurisdiction by a majority vote of

the adult Indians voting at a special election held for that pur-

pose. The Secretary of the Interior. shall call such special elec-

ion under such rules and regulations as he may prescribe, when

Mequested to do so by the tribal council or other governing

tody, or by 20 per centum of such enrolled adults.” (Emphasis

ided )

hi portion of § 402(a) italicized above amounts to con-

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gtessional authorization for the assertion of state legislative power

over reservation Indians. However, as the portion of § 406 itali-

cized above indicates, there can be no such assertion of state

legislative: power until a majority of the enrolled Indians accept

that jurisdiction in a special election. Additionally, under § 404

of the Act, 82 Stat. 79. (1968), 25 U.S.C. § 1324 (Supp,

1971), Congress deferred the assumption of jurisdiction by a

state under the Act. “uaril the people thereof have appropriately

amended their State constitution or statutes . . . .” The assertion

here by. Arizona of its income taxing power on the Navajo Res

ervation has not been preceded by either a special election of the

Navajo people to accept that jurisdiction or an amendment by

the people of Arizona of Ariz. Const. Art. 20, para. 4.‘

Without the acceptance by the Navajo people of state juris-

diction at a special election and without the amendment by Ari-

zona of its Constitution, the State's assertion of income taxing

power on the Navajo Reservation must fail because there has

been no compliance with that procedure which Congress made

exclusive. Both this Court’s decision in Kennerly v. District Court

of Ninth Jud. Dist. of Montana, 400 U.S. 423, 91 S.Ct. 480

(1971), and the legislative history of Title IV of the 1968 Civil

Rights Act demonstrate the exclusivity of that procedure. In

Kennerly, this Court described Title IV of the 1968 Civil Rights

‘Act as having “substituted a new regulatory scheme for the exten-

sion of state civil and criminal jurisdiction to litigation involving

‘Rik Giane ae

once erettrc

nov unyetadygaelney aniguaalmaam

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indians arising in Indian country.”* 91 S.Ct. at 482-483. In

Kenmerly, this Court also found that the Tribal resolution had not

S.Ct. at 483. The exclusivity of the congressional procedure

yas emphasized by ‘the dissenting opinion in Kennerly which

t to the Court a holding that Congress had specified “the

~ exclusive procedure by which reservation Indians may confer on a

© Mate court jurisdiction over them.” (Emphasis added). 91 S.Ct.

é at 484, .

, _ During thie discussion of Title IV of the 1968 Civil Rights Act,

the sponsor of the Act, Senator Ervin of North Carolina stated on

the Senate floor:

___“This title repeals section 7 of Public Law 280, 83d Congress

(67 Stat. 588) and authorizes States to assert civil and criminal

jurisdiction in Indian country only after acquiring the consent

RY ibes in the States by referendum of all reservated

pi (Emphasis added) 114 Cong. Rec. 394 (1968).

“Senator Ervin expressed similar views in the Committee Report

_ ‘Pa the 1968 Civil Rights Act. SRep.No. 721, 90th Cong,, Ist

| Sess. 32 (1967). Senator Ervin’s views resulted from a series of

aatings before the Subcommittee on Constitutional Rights of

Senate Committee on the Judiciary in the consideration of

te Bill 1843. S.Rep.No. 841, 90th Cong., Ist Sess. 5 (1967).

that Senate Committee stated, Tribal leaders had Criticized

ic Law 83-280, § 7 of the Act of August 15, 1953, 67 Stat.

because that statute authorized “unilateral application of

tate law” to Indian tribes “without their consent and regardless

‘As this Court also stated in Kennerly, 91 S.Ct. at 481, before enact-

nt of Title IV of the Civil Rights Act of 1968:

73) State assumption of civil jurisdiction — in situations where 7

3 had not icitly extended jurisdiction —was governed by § 7 the

» Act of August 15, 1953, 67 Stat. 590.” (footnote omitted )

vf their needs or ‘special circumstances.” Title III of Senate

Bill 1843, which later became Title IV of the 1968 Civil Rights

Act, was intended to respond to that criticism by repealing Public

Law 83-280 and by ‘substituting therefor the Subcommittee’s

geste me at aaa eres emma

of tlie State’s assumption of jurisdiction . . . .” S.Rep.No. 841,

90th Cong., ist Sess, 11-12 (1967).

The unilateral assertion here by Arizona of its income taxing

ation about which Tribal leaders had complained to Congress and

which Congress, by enacting Title IV of the 1968 Civil Rights

Act, intended to prohibit. That assertion of power should, there-

fore, fall because it conflicts with supreme federal law.

The State’s assertion of power also conflicts with another

federal law, § 20 of the Arizona Enabling Act, 36 Stat. 569

Se

«all right and title to the unappropriated and ungranted

lying within the boundaries thereof and to all

s, the right or title to which shall have been

‘ot from the United States or any prior sov-

that until the title of such Indian or Indian tribes

the same shall be and remain sub-

ine Ble, See eioeiane Sommtision and

Scone of the United States ... .” (Emphasis

Arizona Court of Appeals, which found the dis

in Arizona’s Enabling Act to deal with title to Indian

land [McGlanaban v. State Tax Comm'n, 14 Atiz.App. 452,

484 P.2d 221, 225 (1971)], this Court has referred to the dis-

claimer in the broader sense of denying the State jurisdiction.

Williams v. Lee, 358 US. 217, 223, n. 10 (1959) (“Arizona

has an express disclaimer of jurisdiction over Indian lands . . . .”)

See also Warren Trading Post Co. v. Arizona Tax Comm'n, 380

US. 685, 686-87 (1965).

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ough this Court concluded that the provisions in Alaska’s ;

ag Act were not intended “to oust the State completely

regulation of Indian ‘property (including fishing rights)’ ”,

imized Village of Kake v. Egan, 369 US. 60, 71 (1962),

pislatiy history showing that Alaska was not to be deprived

litical jurisdiction. Id. at 69-71.

€ classic pronouncement by this Court on the effect of a dis.

er is that in the Kansas Indians, 72 US. (5 Wall.) 737

17). There, explaining that the State of Kansas could not tax

#eal property held in trust for the Shawnee Indians, the Courr

teferred to the provisio ns of the Kansas Enabling Act, stating:

any regulation respecting their property

beams it would Pagan wet aes to make if

Sansas had noc been admitted into the Union.” Id. at 755-756.

Arizc na’s assertion of taxing power on the Navajo Reservation

conflicts with the congressional policy expressed in the Buck

61 Stat. 641 (1947), 4 USC. $$ 101-110 (Supp. 1971).

TRongress there defined the term “Federal area” to mean “any

“Piands or premises held or acquired by or for the use of the United

(Bistes or any department, establishment, or agency of the United

Phares... .” 25 USC. § 110(e) (Supp. 1971). Although the

k Act permits states to levy and collect income taxes within a

area [4 U.S.C. § 106(a) (Supp. 1971)]}, the Act specifi-

denies states authorization for “the levy or collection of any

or from any Indian not otherwise taxed.” 4 U.S.C. § 109

Mipp. 1971). Referring to decisions about the impact of the

Act on state taxing power over Indian reservations, this

approved as “correct” an interpretation denying states con-

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gressional authorization to levy and collect taxes on Indian reser.

vations. Warren Trading Post Co, v. Arizona Tax Comm'n, 380

US.:685, 691 n. 18 (1965).

As this Court's decision in Worcester v. Georgia, 31 US. (6

Pet.) 515 (1832) and Congress’ enactment of the Buck Act con-

fieened Toidiai riocis’ are federal’ enclaves” The ‘decisions

involving state taxes within federal enclaves hold that a state

may not levy its taxes within a federal enclave without con.

gressional authorization. Humble Pipeline Co. v. W aggonner, 376

US. 369 (1964) (invalid Louisiana ad valorem tax on privately

owned property on an Air Force field); Mississippi River Fuel

Corp. v. Cocreham, 382 F.2d 929 (5th Cir. 1967), cert. denied,

390 US. 1014 (1968). Cf. Collins v. Yosemite Park & Curry

Co., 304 US. 518 (1938) (state could not regulate activities on

land ceded to the United States); United States v. Kagama, 118

US. 375 (1886) (state could not try reservation Indians for

criminal offenses). As this Court explained in Humble Pipeline

Co. #. Waggonner, supra:

“When has wished to allow a state to exercise juri

diction gy pl taxes within federal enclaves, it has

specifically so stated, as in the Buck Act, 4 U.S.C. §§104-10.”

376 US. at 374.

: CONCLUSION |

_ Without congressional authorization and without the consent of

the Navajo people to be affected, the State of Arizona unilaterally

sought to apply its income tax laws to individual Navajos on the

Navajo Reservation. In so doing, the State completely ignored the

exclusive procedure provided by Congress in Title IV of the 1968

forbidding state intrusion in the affairs of reservation Indians 18

evidenced by the Buck Act and the Arizona Enabling Act. Since

the decisions of this Court require states to conform with the pro-

visions of applicable supreme federal law, the State’s assertion of

Power here should not be allowed to stand. The judgment of the

GEORGE E. HILTY

222 North Central Avenue

Phoenix, Arizona 85004

Attorney for Amicus Curiae

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