Appellants Brief — McClanahan v. Arizona Tax Comm'n

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ND McCLANAHAN, on behalf of herself and all others

vs.

Appellant,

RA STATE Tax CoMMiIssIon, Appellee.

On Ar peal from the Supreme Court of Arizona

BRIEF OF APPELLANT IN OPPOSITION

= TO APPELLEE'S MOTION TO

- ‘DISMISS OR AFFIRM

INTRODUCTION

Mant to Rule 16(4) of the Rules of the Supreme

the United States, appellant herewith files a brief

Mitior to appellee’s motion to dismiss or affirm.

Stakes the position that the questions presented to

rt have already been resolved in

} decision of this Court and

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I. PRIOR DECISIONS DO NOT

Appellee relies upon Oklahoma Tax Commission y.

United States, 319 U.S. 598 (1943), Leahy v. State Trea

surer of Oklahoma, 297 U.S. 420 (1936), and Choteau v,

Burnet, 283 U.S. 691 (1931), in support of its assertion

that the State of Arizona may tax the income of Reservation

Indians in view of Arizona’s providing services to the In-

dians. These three cases arise out of the peculiar and singu-

lar Indian-state relationship in Oklahoma and are not

applicable to appellant’s situation in Arizona. They are fully

discussed and distinguished in the Jurisdictional Statement,

pp. 14-17. Since the status of Oklahoma Indians is substan-

tially different from that of reservation Indians in Arizona,

it is significant that appellee does not support its argument

with an analysis demonstrating the applicability of those

decisions, despite the disparate and discrete situations of

Indians in both states. No such analysis can be made. The

Oklahoma cases do not control, and this question is one of

first impression for the Court. Cf. American Federation of

Musicians v. Wittstein, 379 U.S. 171 (1964).

- * Appellee’s reliance upon the two New York cases,

Powless v. State Tax Commission, 44 App. Div.2d 746,

253 N.Y.S. 24 438 (1964) and State Tax Commission v.

Barnes, 14 Misc.2d 311, 178 N.Y.S, 2d 932 (Franklin Co.

Ct, 1958) is similarly misplaced, since Congress has ex

pressly conferred jurisdiction over Indian reservations upon

the state of New York. See 25 U.S.C. §§232-233; see alo,

‘Cohe Handbook of Federal Indian Law, ch. 22 (1942).

‘hesietives, sss slidaiatg ati te Atuwres betwen the toseclh

‘state dual sovereignty tax cases, Graves v. New York ex rel

_ O'Keefe, 306 U.S. 466 (1939) and Helvering v. Gerhardt,

en ee mens in 0

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"ince an Indian reservation does not derive any govern-

‘mental power from a state. Toledo v. Pueblo de Jemez, 119

Se 429 (D.N.M. 1954); cf. Williams y. Lee, 358 U.S.

the fede tax on govern-

“Mental operations was oblique and indirect, whereas a

‘Mothe Federal Land Bank was voided because of its direct

a ton governmental operation and policy in Federal Land

‘ Bani v. Board of County Commissioners, 368 U.S. 146

(1961).

ott appellee and the court below contend that the tax

not violate tribal - peuple

th i on the Navajo Tribe, Mc-

ahan v. State Tax Comm’n, 14 Ariz. App. 452, 454-

484 P.2d 221, 223-224 (1971); Appeliee’s Motion to

mi $ or Affirm, pp. 15-16. This is untenable in the light

he f that the Montana Court's rationale that a grocery

#48 a private matter in State ex rel. Kennerly v. District

ust, 154 Mont. 488, 466 P.2d 85 (1970) was implicitly

Ried by this Court when it reversed that decision in

Peperly v. Montana District Court, 400 U.S. 423 (1971).

Villa je of Kake v. Egan, 369 U.S. 60 (1962), for the

jesition that state laws can be extended over Indian

§. But neither the court of appeals nor appellee quotes

owing language from that case’s opinion:

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These decisions indicate that even on reservations

state laws may be applied to Indians unless such

application would interfere with reservation self-

government or iaapeir « right granted or reserved

by federal law.

319 U.S, at 75. Arizona’s arrogation of the taxing power

over reservation Indians necessarily implies a diminution

of tribal sovereignty and self-government, a right reserved

to the Indians by federal law.

Il. SUBSTANTIAL FEDERAL QUESTIONS ARE

RAISED BY THIS APPEAL

Appellee has not explained why the questions presented

are not “so substantial as to require plenary consideration,”

Role 15(1)(f) of the Supreme Court of the United States,

since the decisions it relies upon are inappropriate. Even

assuming that the decisions cited are applicable, this Court

has noted probable jurisdiction to re-examine past decisions

“{ijn view of the growing nation-wide importance of the

problem.” Camara v. ee 387 U.S. 523, 525

(1967).

‘In addition, the Navajo Tribe of Indians has moved to

intervene as amicus curiae, Although one of the principal

bases of decision in the lower court is the Arizona income

tax’s non-interference with tribal self-government, the Nava-

jo Tribe is opposed “to unilateral state assertion of juris

diction over Indian reservations, without the consent of the

Indians affected,” as manifested by the decision below.

Briet if the Navajo ‘Tribe of Indians as Amicus Curiae, in

Ipp< al Statement, p. 3. Moreover, the

“believes that the application of Arizona's income

tax laws to its people and its Reservation will have an un-

oe

slic teins

4 ig authorities or the Arizona courts.” /d., p. 2. In Kennerly

_y. Montana District Court, 400 US. 423 (1971), Mr. Jus-

. mn i a brief in support of its legislation.” 400 U.S. at 432.

The Navajo Tribe's intervention as amicus gives the Court

‘Me benefit of its views on the questions presented by this

tase, quest which vitally affect the continued progress

of the and its members towards self-determination and

Respectfully submitted,

DONALD JUNEAU

THEODORE R. MITCHELL

ee Counsel for Appellant

‘Dated: January 29, 1972