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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1973
- **Citation:** 411 U.S. 164

## Text

TABLE OF. CONTENTS

‘TABLE OF CONTENTS
TABLE OF CITATIONS

_ SUMMARY OF ARGUMENT
ARGUMENT
I. Historical Review of Cases in This Court Re-

flecting Attempts by States to Tax Indians ........

4 Il: Review of Recent Efforts by Congress to Trans-
; fer General Jurisdiction Over Indians to States..

_ “III. Analysis of the Cases Relied on Below

CONCLUSION

ye TABLE OF CITATIONS
Cases:
-* Asenap Vv. United States, 283 F. Supp. 566 (W.D.
‘ Okla. 1968)
Beartrack v. United States, Ct. Cl. Docket 281-67..
Big Eagle v. United States, 300 F.2d 765 (Ct. Cl.
1962)
©. Blackbird v. CIR, 38 F.2@976 (10th Cir. 1930) ....
Carpenter Vv. Shaw, 280 U.S. 363 (1930)
Childers v. Beaver, 270 US. 555 (1926)
Choteau Vv. Burnet, 283 U.S. 691 (1931)
CIR v. Walker, 326 F.2d 261 (9th Cir. 1964)
Commissioner Vv. Brun, 286 Minn. 43, 174 N.W.2d
120 (1970) ....
Draper Vv. United States, 164 U.S. 240 (1896)
‘Ghahate v. Bureau of Revenue, 80 N.M. 98, 451
P.2d 1002 (1969)
Graves V. New York ex rel. O’Keefe, 306 U. S. 466
(1939)
Kake Village v. Egan, 369 U.S. 60 (1962)
Kansas Indians, The, 72 U.S. 737 (1866)

6
6

6, 12
12

TABLE OF CONTENTS—Continued

Kennerly Vv. District Court, 400 U.S. 428 (1971) -.-- 8
Kirkwood v. Arenas, 243 F.2d 868 (9th Cir.

1957) -...-- ‘ 6
Leahy v. State Treasurer of Oklahoma, 297 U.S.

420 (1986) 12
Mason V. United States, —— F.2d —— (June 16,

1972, Ct. Cl. Docket 417-70) 7
Menominee Tribe Vv. United States, 391 U.S. 404

(1968) 11

Metlakatla Indians v. Egan, 869 U.S. 45 (1962) .... 12, 18
Nash v. Wiseman, 227 F. Supp. 552 (W.D. Okla.

1968) 6
Oklahoma Tax Commission Vv. United States, 819

U.S. 598 (1943) A, 5, 6, 7, 12
Squire v. Capoeman, 351 To 5 Chee) od 6, 7, 11
Superintendent Five Tribes vy. Commissioner, 295

U.S. 418 (1935) 6
United States v. Daney, 870 F.2d 791 (10th Cir.

1966) 6
United States v. Hallam, 304 F.2d 620 (10th Cir.

1962) 6
United States v. Rickert, 188 U.S. 482 (1903) -....... 3,5
Utah & Northern Railway v. Fisher, 116 US. 28

(1885) 8
West v. Oklahoma Taz Commission, 334 U.S. 717

(1948) 5, 6,7
Williams V. Lee, 358 U.S. 217 (1959) -....----------------- 8, 14
Worcester Vv. Georgia, 81 U.S. 515 (1823) -...------- 8

Termination Acts:
Alabama and Coushatta Indians, 25 U.S.C. $721 .. 9
California Rancherios, 72 Stat. 619 9,11
Klamath Indians, 25 U.S.C. § 564 9,11
Menominee Indians, 25 U.S.C. §§ 891, 898 -......-.-... 9,11
Mixed-Blood Ute Indians, 25 U.S.C. § 677 -.....------- 9, 11
Ottawa Indians, 25 U.S.C. § 841 9
Paiute Indians, 25 U.S.C. §§ 741, 749 -.....----------- 9,11

Peoria Indians, 25 U.S.C. § 821 9

TABLE OF CONTENTS—Continued

Ponca Indians, 25 U.S.C. §§ 971, 978
Western Oregon Indians, 25 U.S.C. §§ 691, 699 _..
Wyandotte Indians, 25 U.S.C. §§ 791, 798

Miscellaneous: |

86 Ariz. Rev. Stat. §§ 1801, 1865
Buck Act, 4 U‘S.C. §§ 105-109
Federal Indian Law, U.S. Dept. Int., 1958
General Allotment Act of 1887, 24 Stat. 388, 25
US.C. § 331 8, 11,138
House Concurrent Resolution 108, 67 Stat. B182.... 8,9
House Concurrent Resolution 102 (92d Cong.) -... 9
Indian Civil Rights Act, § 401(a), 82 Stat. 77, 25
U.S.C. § 1821 9
Indian Reorganization Act, 48 Stat. 984, 25 U.S.C.
§ 461 13
Public Law 280, 67 Stat. 588, 18 U.S.C. § 1162, 28

U.S.C. § 1360 7, 8, 11, 13
Rev.Rul. 56-342, Cum. Bull. 1956-2
Rev.Rul. 62-16, Cum. Bull. 1962-1
Rev.Rul. 67-284, Cum. Bull. 1967-2
Rev.Rul. 69-164, IRB 1969-14
Senate Concurrent Resolution 26 (92d Cong.)

In THE

Supreme Court of the United States

OCTOBER TERM, 1971

ROSALIND MCCLANAHAN,
Appellant,
V.

ARIZONA STATE TAX COMMISSION,
Appellee.

On Appeal from the Supreme Court of Arizona

BRIEF FOR AMICUS CURIAE,
NATIONAL CONGRESS OF AMERICAN INDIANS
IN SUPPORT OF APPELLANT

STATEMENT OF INTEREST

This brief is filed with the consent of both parties.

' Amicus Curiae, the National Congress of American
Indians (NCAI), is a nonprofit association of some 147
Indian tribes, including virtually all of the major or-
ganized tribes (but not including the Navajo Tribe,
appellant’s tribe). Its purpose is to promote the in-

terests of American Indians. It was incorporated in
Oklahoma in 1954, and its national headquarters is at
1346 Connecticut Avenue, N.W., Washington, D.C.

NCAI supports the position of the Appellant Navajo
Indian, Rosalind McClanahan, and joins her in asserting
that the decision of the Arizona Supreme Court was
erroneous. NCAI is deeply concerned with the Arizona
court’s decision, because it represents one more example
of a state attempting to extend its jurisdiction over a
reservation Indian without the consent of the tribe
governing the reservation. It is a flagrant interference
with and usurpation of the tribe’s governmental powers
over its people. It is wrong in every case where the
tribe has not consented, and it is illegal in this case
because Congress has not consented.

SUMMARY OF ARGUMENT

We believe the Appellant’s brief, and the brief filed
by the Solicitor General July 19, 1972, cover most of the
points ably and correctly.. What we have to say herein
is intended to supplement what they have said, and
hopefully will be helpful to the Court.

In Section I we review the history of the cases in
this Court dealing with attempts by states to tax In-
dians. The early cases involve taxes on property or
income from property. Not until recently have taxes
on income from an Indian’s personal services come into
question,’ but the earlier cases on property taxes are an
essential background for approaching the salary tax

question.

1 Until the instant case, and Comm’r v. Brun, 286 Minn. 43,
174 N.W. 2d 120 (1970) (rejecting the tax) and Ghahate v. Bureau
of Revenue, 80 N.M. 98, 451 P. 2d 1002 (1969) (upholding the
tax}, the only case of which we are aware involving taxes on an
Indian’s wage or salary is CIR v. Walker, 826 F. 2d 261 (9th Cir.
1964), upholding the federal income tax on salary of a tribal
employee.

In Section II we review the modern history of efforts
of Congress to transfer general jurisdiction over Indians
to the states.

In Section III we analyze some of the cases relied on
by the court below.

ARGUMENT

- I. Historical Review of Cases in This Court Reflecting
Attempts by States to Tax Indians

One of the earliest cases (if not the earliest case)
recognizing an Indian’s exemption from state taxes was
the 1866 case of The Kansas Indians, 72 U.S. 787. In
that case this Court held that certain individual Shawnee
lands in Kansas, given to them before Kansas became a
state, were exempt from state property taxes, because
as long as the tribe continued to govern itself as a
distinct entity, Kansas had no jurisdiction over the lands,
having (like Arizona in the principal case) foresworn
such jurisdiction as a condition of its admission into the
Union. At p. 756. This Court said:

“As long as the United States recognizes their na-
tional character they are under the protection of
treaties and the laws of Congress, and their prop-
erty is withdrawn from the operation of State laws.”
At p. 757.

In 1903 this Court in United States v. Rickert, 188
U.S. 482, held that Sioux trust allotments under the
General Allotment Act of 1887 (which provided that the
allotments were to be free of incumbrance) were exempt
from South Dakota property taxes. This Court relied
on two rationales—(1) that the allotment was a federal
instrumentality and hence not taxable by the state, and
(2) that if the trust property is to be free of incum-
brance, it must be free of taxes. Not only was the land

6

held exempt from state taxes, but horses, cows and
wagons on the land as well.

In 1926 this Court held that Oklahoma could not
impose an inheritance tax on a Quapaw’s restricted allot-
ment, because it was federal instrumentality. Childers
v. Beaver, 270 U.S. 555 (1926). In 19380, this Court
held that where a Choctaw allotment was tax exempt
under a treaty, Oklahoma could not impose a tax on
certain mineral rights associated with the allotment, cit-
ing the federal instrumentality rule and Oklahoma’s ac-
ceptance, upon admission into the Union, of the Indians’
tax exempt status. Carpenter v. Shaw, 280 U.S. 368
(1930).

In the late 1930’s and early 1940’s, the federal in-
strumentality doctrine as a basis for exemption from
state taxation was severely limited, first with respect to
federal employees, Graves v. New York ex rel. O'Keefe,
306 U.S. 466 (1939), and later with respect to Indians,
Oklahoma Tax Commission v. United States, 319 US.
598 (1948). The latter case allowed an Oklahoma death
tax on restricted cash and securities belonging to members
of the Five Civilized Tribes, arising from the proceeds
of sale of minerals on the Indians’ restricted land. Some
of the land was concededly exempt from “direct” taxa-
tion (presumably property taxes), and this Court re
fused to allow the death tax on that land. However,
this Court upheld the tax on the cash and securities.

The main significance of the Oklahoma Tax Comm’n
v. United States case is that it overruled the prior as-
sumption that Indians were tax exempt under the federal
instrumentality doctrine. However, it is important not
to read this case as saying that Indians are taxable the
same as anyone else. There were good reasons for hold-
ing those Indians taxable. This Court noted that the
Five Civilized Tribes were not like other tribes; they
had “no effective tribal autonomy,” and had “little to

5

distinguish them from all other citizens except for their
limited property restrictions and their tax exemptions.
Their lands are held in fee, not in trust, as in the
Rickert case... .” At p. 603. Furthermore, Congress
had expressly made the minerals themselves “subject to
all State and Federal taxes”, and therefore, as this
Court reasoned, Congress probably did not intend an
exemption for the proceeds of their sale. At p. 606.

In 1948 this Court decided West v. Oklahoma Taz
Commission, 334 U.S. 717 (1948), another Oklahoma
death tax case. Unlike Oklahoma Tax Comm’n v. United
States, this case involved property held: by the United
States in trust for the Indian, rather than property held
by the Indian in fee subject to restrictions, and involved
an Indian living on an Indian reservation. The de-
ceased Indian was a restricted Osage Indian, and his
property, held in trust by the United States, included
his “headright,” ie. a right to share in the proceeds
of sale of minerals beneath the Osage Reservation. It
was argued, inter alia, (1) that this and certain other
property was held in trust by the United States, and
therefore it was exempt from state taxation, and (2)
that the property was exempt under the federal instru-
mentality rule. This Court rejected these, saying that
Oklahoma Tax Commission v. United States showed that
mere restriction of the property was not the equivalent
of tax immunity, and had overruled the federal instru-
mentality rule. At p. 726.

It is extremely important to note, and the West case
cannot be properly understood otherwise, that when this
Court decided the West case, it was generally assumed

- *This Court did not call the Osage reservation a “reservation,”
but it was and is in fact one, and the Bureau of Indian Affairs
shows it as one on its maps (and as the only reservation still left
in Oklahoma). As this Court recognized, the reservation was held
by the United States in trust for the Osages, and while most of
the land was allotted in trust to Indians, the tribe still owns in
trust some tribal land and all of the minerals under the reservation.

6

that Indians were subject to both federal income and
federal estate taxes with respect to their restricted and
trust property: Today, however, this assumption has
been shown to be incorrect, and Indian trust property
is exempt from both federal income taxes‘ and federal
estate taxes.© Consequently, this Court’s observation in

on the Indians and at the same time exempt them by implication
from similar state taxes.” Page 608 and 608n.12. The brief for the
United States on behalf of the Indians in that case expressly agreed
that Indian trust property was subject to the federal estate tax.
And in the West case, the briefs before the Supreme Court showed
that the Oklahoma Tax Commission stressed that Osage trust

es were then subject to both federal income taxes and
federal estate tax, and West did not dispute this. In 1935, this
Court had held that a restricted Creek Indian’s income from in-
vestment of his trust funds was subject to federal income tax.
Ss : Five Tribes v. Commissioner, 295 US. 418 (1935).
Until Squire.v. Capoeman, note 4 below, this was assumed to apply
to all Indian income; however, the Squire case limited the Super-
intendent ruling to reinvestment income only, and held that income

4 Squire v. Capoeman, 351 U.S. 1 (1956), held that a restricted
Indian was exempt from federal capital gains tax on proceeds
of sale of trust timber. The cases and the Internal Revenue Service
have interpreted this to apply to federal income taxes on all income

trust land, including from farming, grazing, sale of minerals,
ete. United States v. Daney, 870 F.2d 791 (10th Cir. 1966); Big
agle V. United States, 300 F.2d 765 (Ct. Cl. 1962) ; United States
Hallam, 304 F.2d 620 (10th Cir. 1962) ; Rev.Rul. 56-842, Cum.
Il. 20; and Rev.Rul. 62-16, Cum. Bull. 1962-1; Rev.Rul.
67-284, Cum. Bull. 1967-2, 55; and see also Kirkwood v. Arenas,
248 F.2d 863 (9th Cir. 1957) (California income taxes barred).

5 Nash v. Wiseman, 227 F.Supp. 552 (W.D.Okla. 1963) ; Asenap

. United States, 288 F.Supp. 566 (W.D.Okla. 1968). In 1967 8

in the Court of Claims on behalf of a deceased re-

stricted Osage Indian, Beartrack v. United States, Docket 281-67.

This case sought refund of federal estate taxes previously collected.

In 1968, after trial, the Government capitulated, and the Internal

Revenue Service proceeded voluntarily to give refunds to the estates

of all deceased restricted Osage Indians. See Rev.Rul. 69-164,
IRB 1969-14, 20. Eventually some $4.6 million was refunded.

7

the Oklahoma Tax Commission v. United States case (319
U.S. at 608) that “Congress cannot have intended to
impose federal income and inheritance taxes on the
Indians and at the same time exempt them by implica-
tion from similar state taxes’* is turned around to
exactly the reverse: i.e., if Congress intended to bar
federal income and death taxes on trust property, as the
courts have now established, then a fortiori it can hardly
have intended by implication to allow the states to impose
such taxes.’

As the Court will observe, the above cases deal with
state attempts to tax Indian trust or restricted property
(or income therefrom), and not with attempts to tax
income from the tribal Indian’s own labors. With respect
to the latter, we will concede that we are aware of no
congressional statute expressly or impliedly conferring
any tax exemption. Instead, the exemption is found in
the general legal status of tribal Indians, which is that,
as subjects of semi-independent tribal sovereigns, they
are subject to their own laws exclusively, except to the
extent that Congress has by statute extended federal
jurisdiction to them, or authorized the states to do so.
Arizona has no general jurisdiction over the Navajo
Reservation, having declined to accept Public Law 280
(see text at note 9 below), nor has Arizona ever been
authorized to extend its taxing laws onto the reservation
and attach to Indians living thereon. Consequently, the
tax in this case is invalid.

*In any case, this is a very dubious syllogism, in light of the
emerging consensus on Indian taxation and relationships with
states.

'The rationale of the West case was impliedly overruled by this
Court in Squire v. Capoeman, 351 U.S. 1 (1956), discussed in note
4 above. This overruling has been impliedly recognized by a num-
ber of lower court rulings in analogous cases since 1956, and the
overruling has been explicitly recognized and fully disc#issed by the
Court of Claims in a recent case involving the same tribe of In-
dians as in the West case. Mason v. United States, ———_ F.2d ——
(June 16, 1972, Docket 417-70.) The Mason heirs intend to file an
_ amicus brief quoting the Court of Claims opinion.

8

IL Review of Recent Efforts by Congress to Transfer
General Jurisdiction Over Indians to States

Prior to 1953, Indian reservations ordinarily were
subject to federal and tribal law exclusively, and state
law did not apply to Indians on the reservation.*

In 1958 a wave of feeling erupted in Congress to “get
out of the Indian business.” In that year it passed
House Concurrent Resolution 108 (88rd Congress) that
it was :

“ . . the policy of Congress, as rapidly as possible,
to make the Indians within the territorial limits of
the United States subject to the same laws and
entitled to the same privileges and responsibilities
as are applicable to other citizens of the United
States... .” 67 Stat. B132.

In the same year, Congress enacted Public Law 280,
67 Stat. 588, 18 U.S.C. $1162, 28 U.S.C. § 1360, ex-
tending state law and state court jurisdiction to Indian
reservations in California, Minnesota (except Red Lake
Reservation), Nebraska, Oregon (except Warm Springs
Reservation), and Wisconsin (except Menominee Reser-
vation). The Act invited other states to extend their
civil and criminal jurisdiction to Indian reservations,
and to date eight additional states have done so, in
whole or in part (Alaska, Florida, Idaho, Montana, Ne-
vada, North Dakota, South Dakota and Washington).°

8 Worcester V. Georgia, 31 U.S. 515 (1823) ; Williams v. Lee, 858
US. 217 (1959) ; Kennerly v. District Court, 400 U.S. 428 (1971);
US. Dept. Int., Federal Indian Law (1958) ; 845-6. However, state
law does enter an Indian reservation and apply to non-Indians there.
Draper Vv. United States, 164 U.S. 240 (1896) (criminal law) ; Utah
& Northern Railway v. Fisher, 116 U.S. 28 (1885) (tax law).

*Even prior to Public Law 280, a few states had been given
certain jurisdiction over Indian reservations by special statute,
eg. in New York and Kansas.

9

Arizona has not done so, unless certain limited pollution
legislation is considered as such.”

Another manifestation of Congress’ then mood was
the so-called “termination” acts. This movement began
in 1954 with the termination of federal supervision over
“six Indian groups. However, problems caused by ter-
mination, and Indian and non-Indian opposition, soon
caused this movement to peter out.”

House Concurrent Resolution 108 is no longer the
policy of Congress. Even if it survived the 83d Congress
as a viable instrument to express Congress’ wishes,
which is dubious, the Senate repealed it on December
11 1971 (S. Con. Res. 26, 92d Cong.), and the House
is considering repealing it (H. Con. Res. 102, 92d Cong.).
Public Law 280 is still on the books, but in 1968 Congress
re-enacted it as part of the Indian Civil Rights Act,
82 Stat. 77, and added the fundamental requirement that
no state could thereafter extend its jurisdiction to an
Indian reservation without the tribe’s consent. Section
401(a), 82 Stat. 78, 25 U.S.C. §§ 1821, 1322.

As for the termination movement, no tribe has been
terminated since 1962, and the Menominee Tribe is en-
deavoring to persuade Congress to repeal the Menominee
Termination Act. S. 3514 and H.R. 14556, 92d Congress.

President Nixon’s message to Congress of July 8, 1970,
declared the Administration’s position as follows:

1036 Ariz. Rev. Stat. § 1801, 1865. As the Govt’s brief points
out, p. 15n.5, an unanswered question is whether a state may
validly accept only partial jurisdiction under Public Law 280.

11 Klamath Indians, 25 U.S.C. § 564; Mixed-Blood Ute Indians,
25 U.S.C. § 677; Western Oregon Indians, 25 U.S.C. § 691; Alabama
and Coushatta Indians, 25 U.S.C. § 721; Paiute Indians, 25 U.S.C.
$741; Menominee Indians, 25 U.S.C. § 891.

12 The Wyandotte and Ottawa Indians were terminated in 1956,
25 U.S.C. §§ 791 and 841, and the Peoria Indians and some Cali-
fornia rancherias were terminated in 1958, 25 U.S.C. § 821, and 72
Stat. 619. Since then the only termination act has involved the
Ponca Indians, 25 U.S.C. § 971 (1962).

10

“This policy of forced termination is wrong, in
my judgment, for a number of reasons. First, the
premises on which it rests are wrong. Termination
implies that the Federal government has taken on
a trusteeship responsibility for Indian communities
as an act of generosity toward a disadvantaged
people and that it can therefore discontinue this
responsibility on a unilateral basis whenever it sees
fit, But the unique status of Indian tribes does not
rest on any premise such as this. The special re-
lationship between Indians and the Federal govern-
ment is the result instead of solemn obligations
which have been entered into by the United States
Government. Down through the years, through writ-
ten treaties and through formal and informal agree-

t has made specific commit-

life on government reser-

has agreed to

“This goal, of course, has never been achieved.
But the special relationship between the Indian
tribes and the Federal government which arises
from these agreements continues to carry immense
moral and legal force. To terminate this relation-
ship would be no more appropriate than to ter-
minate the citizenship rights of any other American.”

Some of the same reasoning applies to transfer of ju-
risdiction to the states without the consent of the tribes,
which amounts to partial termination of tribal self-

t, and which was possible under Public Law
280. until it was amended in 1968.

We recite all of this background to show the Court
what resistance Indians and others have made to the

a

11

extension of state jurisdiction over Indian reservations,
and the traditional explicitness with which Congress has
acted, when it has acted at all* It is totally incon-
sistent with this historical background and the cases to
permit Arizona’s taxing power to enter the Navajo
Reservation and attach to Indian income or property
there.

The termination acts, incidentally, support the as-
sumption that tribal members are -not subject to state
taxes prior to termination.“ For example, the Klamath
Termination Act, 25 U.S.C. § 564j, provides that after
property is distributed to the Indians,

“. .. Such property and any income derived there-
from by the individual . . . shall be subject to the
same taxes, State and Federal, as in the case of
non-Indians. .. .”

Other termination acts have similar provisions.“ Under
the Capoeman rationale, this would seem to imply tax
exemption for unterminated tribes.’*

18 For example, as noted in Appellant’s brief, p. 25, Congress has
aside from Public Law 280 authorized states to extend their taxing
power into federal areas, but Indians are exempted from this.
Buck Act, 4 U.S.C. §§ 105-109.

™ Even in the case of a terminated tribe, the tribe may retain
certain immunities from state law. See Menominee Tribe v. United
States, 391 U.S. 404 (1968). 3

%5 Mixed-Blood Ute Termination Act, 25 U.S.C. §677p; Western
Oregon Termination Act, 25 U.S.C. § 699; Paiute Termination Act,
25 U.S.C. § 749; Wyandotte Termination Act, 25 U.S.C. § 798;
Menominee Termination Act, 25 U.S.C. § 898; Ponca Termination
Act, 25 U.S.C. §978, and California Rancheria Termination Act,
72 Stat. 619, § 2(d).

- % See Squire v. Capoeman, 851 U.S. 1 (1956), where one of the

important reasons for the Court’s decision was the fact that the

1906 amendment to the General Allotment Act provided that upon

termination of the trust period, “all restrictions as to .. . taxation

of said land shall be removed .. . .” This Court said this implied that

re ee wrstination, the land was to be free of all tenes. 368
at p. 8.

12

Ill. Analysis of the Cases Relied on Below

The court below (Juris. St. p. 4a) relied on Leahy v.
State Treasurer of Oklahoma, 297 U.S. 420 (1936), as
upholding a state income tax on the headright income
of an Osage Indian. But that case involved an wn-
restricted Indian, who had received a certificate of com-
petency. ‘Therefore, under the applicable Osage statutes,
as earlier interpreted by this Court, Choteau V. Burnet,
288 U.S. 691 (1981) (and still good law), Leahy was
as subject to state income tax on his headright income
as a non-Indian. Had Leahy been a restricted Osage, his
headright income would not have been subject to federal
tax," and a fortiori not state tax either.

The court below (Juris. St. p. 4a) also relied on
Oklahoma Tax Commission v. United States, 319 U.S.
598 (1948), where this Court allowed a state death tax
on restricted Indian property. But that case does not
support the decision below, because that case did not
involve an Indian reservation. There the Indians owned
their land in fee, subject only to certain restrictions on
alienation. They lived in an Indian community, perhaps,
but the reservation had long since been abolished, and
the state had complete general jurisdiction over the area
where the Indians and their property were located. Ari-
zona, in contrast, does not have general jurisdiction over
the Navajo Reservation.

The court below (Juris. St. p. 5a) also relied on
Metlakatla Indians v. Egan, 369 U.S. 45 (1962), where
state fish trap laws were held to apply to Indians on a
reservation in Alaska. But that reservation was a highly
special one. Not only were these Indians immigrants
from Canada, but this Court noted that they had “very
substantially” adopted and been adopted by the white

11 Big Eagle V. United States, 300 F.2d 765 (Ct.Cl. 1962) : Black-
bird v. CIR, 88 F.2d 976 (10th Cir. 1930).

18

man’s civilization, and “were never in the hostile and
isolated position of many tribes in other states,” at pp.
50-51, and that “there was never an attempt in Alaska
to isolate Indians on reservations. Very few were ever
created, and the purpose of these, in contrast to many
in other states, was not to confine the Indians for the
protection of the white settlers but to safeguard the In-
dians against exploitation.” At p. 51. Previous cases
had applied Alaska territorial (not federal) laws to the
Metlakatla Reservation. At pp. 51-52. Public Law 280
applied there. At p. 56. The Reservation was further
unique in that the Secretary of the Interior was given
regulatory power over it. At p. 53. Because of this
latter power, and the uncertainty whether the Secretary
had exercised it so as to exempt the Indians from the
state fish trap law, the case was remanded.

We agree that the Metlakatla opinion supports the

application of state law to Indians on an Indian reserva-
tion. However, that opinion is self-distinguishing by its
emphasis on the uniqueness of that reservation and the -
de facto assimilation of the Indian residents. The prin-
ciple should not be extended to a reservation where the

18 We seriously question the accuracy of the implication that
reservations in the continental U.S. were for the protection of the
settlers. It is our understanding that protection of settlers was
not a common motive at all, especially not after the mid-1800’s.
We believe the common motive was to shrink the tribal jurisdiction
and make land available to the settlers. After 1887, with the
General Allotment Act, 24 Stat, 388, 25 U.S.C. §§ 331ff, Congress
began the long and generally unsuccessful effort to break up the
reservations and assimilate the Indians. This was finally abandoned
in 1984 with the Indian Reorganization Act, 48 Stat. 984, 25 U.S.C.
§§ 461ff, which laid the foundation for piecing the tattered reserva-
tions back together again and breathing new life into tribal gov-
ernments. As detailed in the preceding section, there was a flurry of
“termination” fever in the 1950s, but that did not take root, and
the present course of events today is strongly proceeding down the
path of tribal self-government and strengthening of the reserva-
tions and their governments.

14

Indian residents remain a distinct, self-governing com-
munity, and have not assimilated into the local white
society.

The court below also mentioned Kake Village v. Egan,
869 U.S. 60 (1962), a companion case to Metlakatla.
But as the court noted, there was no reservation in
Kake, and so the case is not helpful.

The lower court believed that the question was whether
the state income tax would infringe “on the right of the
Reservation Indians to make their own laws and be
ruled by them.” Jurisd. St. p. 4a, quoting Williams v.
Lee, 358 U.S. 217 (1959). Williams does say this, but
also said, more generally and more accurately, that

“Congress has also acted consistently upon the as-
sumption that the States have no power to regulate
the affairs of Indians on a reservation.” 358 U.S.
at 220. ’

We agree with Appellant that the test whether state
laws infringe on the right of Indian self-government
is a test that comes into force once it has been determined
that state laws apply at all to the Indians on a reserva-
tion, something which is not true of the Navajo Reser-
vation.

15
CONCLUSION

The State of Arizona can point to neither an act of
Congress nor a decision of this Court, nor of any federal
court, authorizing it to impose its general income taxes
on Indians residing within an Indian reservation. Con-
sequently, the Navajos residing on their reservation are
not subject to Arizona income taxes. The judgment below
should be reversed.

Respectfully submitted,

CHARLES A. Hopss

Counsel for Amicus Curiae,
National Congress of
American Indians, Inc.
1616 H Street, N. W.
Washington, D.C. 20006

WILKINSON, CRAGUN & BARKER
Of Counsel

July 21, 1972

INDEX

Page
“BTATEMENT OF THE CASE 1
SUMMARY OF ARGUMENT 6

ARGUMENT
I. EXPRESS CONGRESSIONAL
AUTHORIZATION NOT ESSENTIAL
FOR VALIDTY OF STATE ACTION 8

II. IMPOSITION OF ARIZONA IN-
COME TAX DOES NOT IMPAIR
ANY RIGHTS GRANTED OR RE-
SERVED BY FEDERAL LAW 15

“III. IMPOSITION OF ARIZONA IN-
COME TAXES DOES NOT INFRINGE
UPON INDIAN RIGHT OF SELF
GOVERNMENT 27

IV. INDIAN RESIDENTS OF NAVAJO
’ RESERVATION ARE SUBJECT TO
STATE INCOME TAX 30

Vs SOME RAMIFICATIONS OF
APPELLANT'S POSITION 35

CONCLUSION 41

CITATIONS

ses

Begay v. Sawtelle
53 Ariz. 304
88 P.2d 999 (1939)

Bradley v. Arizona Corp. Comm'n
60 Ariz. 508
141 P.2d 524 (1943)

Brown v. Bd: of Education
347 U.S. 483 .

74 S.Ct. 686

98 L.Ed. 873. (1954)

Commission of Internal
Revenue v. Walker

326 F.2d 261

(9th Cir. 1964)

Comm'r of Taxation v. Brun
147 N.W.2d 120 (Minn. 1970)

Denison v. State
34 Ariz. 144
268 P. 617 (1928)

Draper v. United States
164 u.s. 240
17 S.ct.Rptr 107 (1896)

Ghahate v. Bureau of Revenue
80 N.M. 98
P.2d 1002 (1969)

af

a7

38

29

33,529

36

le 3

19,23,32

-iii-

ses Page
“€raves v. New York
306 U.S. 466
59 S.ct. 595
83 L.Ed. 927 (1938) 28
Harrison v. Laveen
67 Ariz. 337
196 P.2d 456 (1948) 36

Holt v. Comm'r Int. Rev.

364 F.2d 38 (1966) 31
Kansas Indians

5 Wall. 737 (1866) | 12

Kennerly v. District Court

of Montana

440 U.S. 423

91 S.Ct. 480

27 L.Ed.2d 507 (1971) 9,25

Klahr v. Williams
339 F.Supp. 922 (1972) 36

Leahy v. State Treas'r

of Oklahoma

297 U.S. 420

56 S.Ct. 507

80 L.Ed. 771 (1936) 32,32

McClanahan v. State Tax Comm'n
14 Ariz.App. 452
484 P.2d 221 (1971) 5,6,34

New York v. Martin
326 U.S. 496
0 tea. 261 (1946) -

$2.

Oklahoma Tax Comm'n v.
United States

319 U.S. 598

87 L.Ed. 1612 (1943)

Organized Village of Kake v. Egan

369 U.S. 60

@2 S.Ct. 562

7 L.Ed.2d 573 (1962) 9,18,19, 23,24

Porter v. Hall
34 Ariz. 308, 321
271 P. 411 (1928)

Powless v. State Tax Comm'n
253 N.Y.Supp.2d 438 (1964)

Silas Mason Company v.
Tax Commission

302 U.S. 186

82 L.Ed. 187 (1937)

Sims v. United States
359 U.S. 108

79 S.ct. 641

3 L.Ed.2d 667 (1959)

Squire v. Capoeman
gol U.S. 1

76 S.ct. 611

100 L.Ed. 883 (1956)

-V~=

“State Bd. of Public Welfare

v. Ba. of Comm'rs

262 N.C. 475

137 S.E.2d 801 (1964) 37

State Tax Comm'n v. W. L. Barnes
178 N.Y.Supp.2d 932 (1958) 32

Surplus Trading Co. v. Cook
281 U.S. 647
50 S.Ct. 455 (1929) 19

_ United States v. McBratney
104 U.S. 621
26 L.Ed. 869 (1882) 12

Vermillion v. Spotted Elk
85 N.W.2d 432 (1957) 18, 23

Warren Trading Post v.

Arizona Tax Commission

380 U.S. 685

85 S.ct. 1242

14 L.Ed.2d 165 (1965) 13,26, 27

Williams v. Lee

358 U.S. 217

79 S.ct. 269

3 L.Ed.2d 251 (1959)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0122%3A11. Public record. Not legal advice.