# Appellants Brief — McClanahan v. Arizona Tax Comm'n > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0122%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Appellants Brief - **Published:** January 1, 1973 - **Citation:** 411 U.S. 164 ## Text - an ie t Pst, ) ai 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 age ion of a: =» $ eee <—s fo 7 —— ee: in, ae 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 pate, pte "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: op oe a santas 0 cine 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0122%3A04. Public record. Not legal advice.