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

MICHAEL RODAK, JR

Supreme Court of the Anited States

Octoser TERM, 1971

No. 71-834

<i

Rosatinp McCananan, on behalf of herself

and all others similarly situated,

Appellant,

vs.

Arizona State Tax CoMMISSION,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF ARIZONA

BRIEF OF MONTANA INTER-TRIBAL

POLICY BOARD AS AMICUS CURIAE

2

ST

SamueL W. Murray, JR.

Two Wall Street

New York, New York

Attorney for Amicus Curtae

Donovan LeisurE Newton & Irvine

TABLE OF CONTENTS

PAGE

Interest oF Amicus CuRIAE 1

Summary or ARGUMENT. 3

ARGUMENT 4

I. State taxation of members of self-governing

Indian Tribes is precluded by the aboriginal

sovereignty of those tribes where such sover-

eignty is recognized by treaty, not abandoned

by the Indians, and not modified by act of

Congress 4

II. Due process of the law prevents states from

levying taxes upon Indians for whom it has

only minimal governmental responsibilities ...... 15

ConcLusion 19

TABLE OF AUTHORITIES

Cases

Arizona ex rel. Merrill v. Turtle, 413 F.2d 683 (9th

Cir. 1969) 7

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

dismissed, 203 U.S. 599 (1906) 4,12

Confederated Salish and Kootenai Tribes v. State of

Montana (Civ. No. 2157 D.C. Mont.) 3

PAGE

Day v. State of Montana, No. 35818 (1st Judicial Dis-

trict, Lewis & Clark County) 3

Ex Parte Crow Dog, 109 U.S. 556 (1883) 1

General Motors v. Washington, 377 U.S. 436 (1964) ... 17

International Harvester Co. v. Dep’t of Taxation, 322

U.S. 485 (1943) 11

Kennerly v. District Court of Montana, 400 U.S. 423

(1971) 3, 11, 14

Leahy v. State Treasurer of Oklahoma, 297 U.S. 420

(1936) 8

Lone Wolf v. Hitchcock, 187 U.S. 553 (1908) ......-.-2-0-0-- 1

McCulloch v. Maryland, 17 US. (4 Wheat.) 316

(1819) 13-14

Metlakatla Indian Community v. Egan, 369 U.S. 45

(1962) 2, 8,9

National Bellas Hess, Inc, v. Department of Revenue,

386 U.S. 753 (1967) 17

Native American Church v. Navajo Tribal Couneil, 272

F.2d 131 (10th Cir. 1959) 5

Northwestern States Portland Cement Company v.

Minnesota, 358 U.S. 450 (1959) 17

Oklahoma Taa Commission v. United States, 319 US.

598 (1943) 8, 15-16

Organized Village of Kake v. Egan, 369 U.S. 60

(1962) 2,9, 10

PAGE

Porto Rico Telephone Co. v. Descartes, 255 F.2d 169

(1st Cir. 1958) 17

State ex rel. McDonald v. District Court, —— Mont.

—, 496 P.2d 78 (1972) 3

The Kansas Indians, 72 U.S. (5 Wall.) 737 (1866) ..... 8,9

United States v. Kagama, 118 U.S. 375 (1886) .......----- 5, 7,12

Warren Trading Post v. Arizona Tax Commission, 380

U8. G85 (1965) ...neecccnssconseoernneeesnssesnserssnssennsnsccnnsseeeers ies

Williams v. Lee, 358 U.S. 217 (1959) 5, 6, 7, 9,

12, 14, 18

Wisconsin v. J. C. Penney Co., 311 U.S. 435 (1940) ....--16-17

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) 4, 5-6, 7,

9, 12

Constitution and Statutes

US. Const. Art. I, 48, el. 3 ee

U.S. Consr. Art. I, 410, el. 1 6

US. Const. Art. II, § 2, cl. 1 6

US. Const. Art. VI, el. 2 . 6,7

US. Const. amend. XIV, § 2 ---------------co--scensseeenssseenserennsens 3,16

% C.F.R. § 33.4 17

15 Stat. 649 (1868) 2

15 Stat. 667 (1868) 2,4

36 Stat. 557 (1910) 10

43 Stat. 253, as amended, 8 U.S.C. § 1401 (a) (2) ------------ 16

67 Stat. 588 (1953) 11

67 Stat. 590 (1953), repealed by 29 U.S.C. $ 1328 .......- 13, 18

4 U.S.C. §§ 105-110 oe ae

18 U.S.C. § 1161

20 U.S.C. §§ 631 et seg.

25 U.S.C. § 231

25 U.S.C. §318(a)

25 U.S.C. 4 398

25 U.S.C. § 452

25 U.S.C. $§ 461-479

25 U.S.C. § 476

25 U.S.C. § 639

25 U.S.C. $§ 1821-1326

42 U.S.C. § 2002

Other Authorities

F. Conen, Hanpsoox or FEDERAL Inpun Law (1942)

(U. New Mexico Press reprint 1971) 5, 12, 13, 16

Indian Taxation: Underlying Policies and Present

Problems, 59 Caurr. L. Rev. 1264 (1971)

Senate Concurrent Resolution 26, December 11, 1971 .... 13

In THE

Supreme Court of the United States

Ocroser Term, 1971

No. 71-834

>

Rosatinp MoCiananan, on behalf of herself

and all others similarly situated,

Appellant,

vs.

Arizona State Tax Commission,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF ARIZONA

—~<—

BRIEF OF MONTANA INTER-TRIBAL

POLICY BOARD AS AMICUS CURIAE

The Montana Inter-Tribal Policy Board, as amicus curiae,

submits this brief on behalf of all Montana Indians. Appel-

lant and Appellee have each given written consent to the

filing of this brief, which consents have been filed with the

Clerk of the Court.

Interest of Amicus Curiae

The Montana Inter-Tribal Policy Board represents ap-

proximately 27,000 Indians living inthe State of Montana.

About 20,000 Indians live on or near the seven Montana

Indian reservations which contain the following Indian

Tribes: Arapahoe, Assiniboine, Blackfeet, Chippewa, Cree,

2

Crow, Flathead, Gros Ventre, Northern Cheyenne, and

Sioux.

Most of these tribes, like the Navajo Tribe of which

Appellant Rosalind McClanahan is a member, have re-

tained their customs, laws, and tribal government, are

organized pursuant to the Indian Reorganization Act of

1984: and are currently expanding their governmental

functions. These Montana tribes provide their members

with governmental administration and services, including:

civil and criminal courts; health, education, and welfare

programs; and capital improvements. These activities re-

quire that the tribes raise substantial revenue from their

own limited financial resources and those of their members.

Arizona’s assertion that it has power to tax the income

of tribal Indians poses a direct threat to the viability of

tribal self-government in Montana as well as in Arizona.

The Montana Indian tribes have protective treaties with

the federal government similar to those of the Navajos.’

The enabling acts of Arizona and Montana have identical

disclaimer provisions leaving Indian lands “under the abso-

lute jurisdiction and control”* of the United States. A

decision upholding Arizona’s tax levy might authorize Mon-

tana to tax the income of many of the tribal Indians rep-

resented by the Montana Inter-Tribal Policy Board. Such

taxation would effectively destroy the residual aboriginal

right of these tribes to make and be governed by their own

225 U.S.C. § 476.

2See Metlakatla Indian Community v. Egan, 369 U.S. 45, 52

(1962), which notes the similarity in crucial language of the Navajo

Treaty of 1868 pS Stat. 667) and the Montana Crow's Treaty of

1868 (15 Stat. 649).

* Organized Village of Kake v. Egan, 369 U.S. 60, 68 (1962),

notes this cited Gece

laws, a result that contravenes the applicable treaties with

the United States government and acts of Congress.‘

The States of Montana and Arizona have only minimal

responsibility for Indians. With only one minor exception,’

neither state has the responsibility of civil or criminal

jurisdiction over Indians on reservations within their bor-

ders. Amicus Curiae submits that when a state taxes the

income of tribal Indians without assuming, either as a

result of Congressional action or a decision by the Indians

themselves, corresponding responsibilities for the well

being of ‘the tribes, such action is so arbitrary and unfair

that it constitutes a violation of the due process rights

guaranteed Indians by the Fourteenth Amendment to the

United States Constitution.

Summary of Argument

I. State taxation of members of self-governing Indian

tribes is precluded by the residual aboriginal sovereignty

of those tribes where such sovereignty is recognized by

treaty between the Indian tribes and the federal govern-

ment, has not been relinquished by the Indian tribes, and

has not been modified by act of Congress. The right of

sovereignty of the Navajo Tribe of which Appellant is a

*There are presently two cases pending in Montana challenging

the right of the state to collect personal income tax from Indians.

One in state court, Day v. State of Montana, No. 35818 (1st Judi-

cial District, Lewis & Clark County), and one in federal court,

Confederated Salish and Kootenai Tribes v. State of Montana, Civ.

No. 2157 (D. Mont.).

* The exception is Montana’s exercise of criminal and some civil

on the Flathead Reservation where some 80 per cent

of the residents are non-Indians. See State ex rel. McDonald v.

District Court, —— Mont. ——, 496 P.2d 78 (1972), and Kennerly

¥. District Court of Montana, 400 U.S. 423, 425 (1971).

4

member was guaranteed to it by the Navajo Treaty of 188

‘(15 Stat. 667), and has never been relinquished or aban-

doned by the Tribe. Subsequent Congressional acts have

not significantly modified the right to sovereignty guar.

anteed by this treaty. State taxation of the income of a

tribe or its members severely jeopardizes the continued

viability of this treaty-guaranteed sovereignty by draining

off the meager resources available to finance tribal govern.

mental functions.

II. Due process of the law prevents states from levying

taxes upon citizens on behalf of whom it has accepted only

minimal government responsibilities.

ARGUMENT

IL

State taxation of members of self-governing Indian

tribes is precluded by the aboriginal sovereignty of those

tribes where such sovereignty is recognized by treaty,

not abandoned by the Indians, and not modified by act

of Congress.

A. Where the Aboriginal Internal Sovereignty Rights

of Indian Tribes Are Protected by Treaty With the

Federal Government, Such Rights May Be Modified

Only by Congressional Act or by Consent of the

Indians Themselves.

As “Native Americans,” Indian tribes enjoyed the abo-

riginal status of completely sovereign nations.* They re-

* Worcester v. Georgia, 81 U.S. (6 Pet.) 515, 559 (1832): “The

Indian nations had always been considered as distinct, independent,

political communities, retaining their original natural rights .. .

from time immemorial. ...” See also Buster v. Wright, 135 F. 947,

950 (8th Cir. 1905), appeal dismissed, 203 U.S. 599 (1906).

linquished their sovereignty to the federal government

only to the extent provided by treaty. The scope of such

relinquishment can be expanded only by subsequent act

of Congress, or by the Indians’ consensual abandonment

of such rights. Federal treaties with the Indians recog-

nized and protected the Indians’ pre-existing internal tribal

sovereignty,’ and the Indian tribes that became parties to

such treaties accordihgly assumed the status of dependent,

self-governing “nations.” *

Thus, in the landmark decision of Worcester v. Georgia,

31 U.S. (6 Pet.) 515 (1832), Chief Justice Marshall stated

of the “Cherokee Nation”:

™See F. ConeN, HanpsBook or FeperaL Inpian Law (1942) (U.

New Mexico Press reprint 1971) 122 [hereinafter cited as CoHEN] :

“Perhaps the most basic principle of all Indian law, supported by

a host of decisions hereinafter analyzed, is the principle that those

powers which are lawfully vested in an Indian tribe are not, in

general, delegated powers granted by express acts of Congress, but

rather inherent powers of a limited sovereignty which has never

been extinguished.” (Emphasis in original).

® Worcester v. Georgia, 31 U.S. at 559-60: “We have applied them

[the words “treaty” and “nation”] to Indians, as we have applied

them to other nations of the earth; they are applied to all in the

same sense...” This was also the view of the Court of Appeals

as to the Navajos in Native American Church v. Navajo Tribal

Council, 272 F.2d 131, 134 (10th Cir. 1959): “But as declared in

the decisions hereinbefore discussed [Worcester v. Georgia, supra;

United States v. Kagama, 118 U.S. 375 (1886); Walliams v. Lee,

368 U.S. 217 (1959)], Indian tribes are not states. They have a

status higher than that of states. They are subordinate and de-

pendent nations possessed of all powers as such only to the extent

that they have expressly been required to surrender them by the

superior sovereign, the United States.” See also, Comment:

Indian Taxation: Underlying Policies and Present Problems, 59

Cau. L. Rev. 1261, 1264-66 (1971); and CoHeEn at 33-34: “That

Treaties with Indian tribes are of the same dignity as treaties with

nations is a view that has been repeatedly confirmed by the

federal courts and never successfully challenged.”

They are in hostility with the acts of Congress

for regulating this intercourse, and giving effect to

the treaties.®

The importance of this decision is its holding that the

original treaty guaranties of tribal Indians’ right to be

self-governing are absolute—beyond State control under

the Constitution”—unless Congress, by subsequent treaty,

*81 U.S. at 561-562. The Treaty status of the Cherokee Nation

and its relationship to the federal and state governments were held

analogous to that of the Navajo Tribes in Wélliams v. Lee, 358 U.S.

217, 221-222 (1959).

% The Treaty power is contained in U.S.

States are forbidden from en

§ 10, cl. 1. Federal

e

d th

7

or statute under its plenary power over Indians,” revises

these treaty obligations. These treaty rights were re-

affirmed in Williams v. Lee, 358 U.S. 217 (1959), which held

that Navajo sovereignty recognized by the Treaty of 1868

was “infringed” by allowing a non-Indian residing on the

Reservation to bring suit against a member of the Navajo

Tribe in the Arizona civil courts, rather than in the Navajo

tribal courts. This Court stated:

Implicit in these treaty terms, as it was in the

treaties with the Cherokees involved in Worcester v.

Georgia, was the understanding that the internal af-

fairs of the Indians remained exclusively within the

jurisdiction of whatever tribal government existed. .

... Congress recognized this authority in the Navajos

in the Treaty of 1868, and has done So ever since. If

this power is to be taken away from them it is for

Congress to do it. Lone Wolf v. Hitchcock, 187 U.S.

553, 564-566.

358 U.S. at 221-23. Accord: United States v. Kagama, 118

U.S. 375 (1886) ; Ex parte Crow Dog, 109 U.S. 556 (1883) ;

and Arizona ex rel. Merrill v. Turtle, 413 F.2d 683 (9th

Cir. 1969).

A state cannot, therefore, unilaterally assume jurisdic-

tion over a treaty-protected, sovereign Indian tribe, even

where the state has extended some measure of rights and

privileges to the tribe. Any state statute which conflicts

with the federal treaty protection of the residual right to

tribal sovereignty is void under the Supremacy Clause.

(U.S. Const. art. VI, cl. 2.) State jurisdiction can be ob-

_™ Congress retains plenary power over the Indians under the

caames Clause, US. Const. art. I, § 8, cl. 3: “To regulate com-

merce . . with the Indian Tribes.” See Williams v. Lee, 355 U.S.

214, 219 n. 4 (1959).

tained only by alteration of the treaty, by the Indians’

abandonment of the right to tribal self-government, or by

act of Congress:

Conferring rights and privileges on these Indians

cannot affect their situation, which can only be changed

by treaty stipulation, or a voluntary abandonment of

their tribal organization. As long as the United States

recognizes their national character they are under the

protection of treaties and laws of Congress, and their

property is withdrawn from operation of State laws.

The Kansas Indians, 72 US. (5 Wall.) 737, 757 (1866).

B. Indian Tribes Who Have Retained Their Tribal

and Government Have Not Abrogated

Their Aboriginal Sovereignty So as to Permit the

Exercise of State Jurisdiction.

States are totally precluded from jurisdiction over

Indians in any area where the Indians have retained their

tribal sovereignty. Only where the right to tribal self-

government has been abandoned by individual Indians or

by a particular tribe and where the state has assumed full

responsibility for such Indians may the state exercise juris-

diction over them.” Such was the case of the Oklahoma

Indians in Leahy v. State Treasurer of Oklahoma, 297 US.

420 (1936), which sustained a state tax on an Indian’s share

of his tribe’s mineral resource income, and in Oklahoma

Tax Commission v. United States, 319 U.S. 598 (1943),

which upheld application of the Oklahoma inheritance tax

to the estate of an Indian. In Oklahoma Tax Commission,

42 Even in these circumstances, such jurisdiction can be precluded

by a controlli act of Congress. See Metlakatla Indian Community

v. Egan, 369 U.S. 45 (1962).

9

Justice Black, writing for the Court, discussed Worcester

y. Georgia and its progeny and stated :

The underlying principles on which these decisions

are based do not fit the situation of the Oklahoma

Indians. Although there are remnants of the form of

tribal sovereignty, these Indians have no effective

tribal autonomy as in Worcester v. Georgia, supra;

and, unlike the Indians involved in The Kansas Indians

case, supra, they fre actually citizens of the State with

little to distinguish them from all other citizens ....

(319 U.S. at 603)

In Organized Village of Kake v. Egan, 369 U.S. 60

(1962), where state jurisdiction over Indians was sustained,

there were facts showing that the Southeastern Alaskan

Indians lacked the essential treaty-protected internal sover-

eignty: 1) the Indians had no formal treaty rights and no

reservation; 2) Alaska had both civil and criminal jurisdic-

tion over the Indians; and, as stated in the companion case

of Metlakatla Indian Commumity v. Egan, 369 U.S. 45, 50-51

(1962), 3) these Indians had “substantially adopted and

been adopted by the white man’s civilization” and were not

subject to “the principle of Indian national sovereignty

enunciated in Worcester v. Georgia.”

Neither the Navajo Tribe nor the Montana tribes repre-

sented by amicus curiae have 80 abrogated their treaty

rights to tribal sovereignty.

C. Subsequent Acts of Congress Have Not Significantly

Modified the Sovereignty Guaranteed to the Navajo

and Montana Tribal Indians by Treaty.

Since the Navajo Indians residing on their reservation

have not consented to the Arizona income tax nor have

they abandoned or relinquished their treaty-guaranteed

10

rights of sovereignty in this area, the question remains

whether these rights have been modified by act of Congress.

Congress did not modify these rights when Arizona was

admitted to the Union. The Arizona Enabling Act” pro-

vides in part that all lands owned or held by Indians or

Indian Tribes “shall be and remain ... under the absolute

jurisdiction and control of the Congress of the United

States.” In Organiced Village of Kake v. Egan, 369 US.

60, 71 (1962), this Court examined identical language in

the enabling act for the State of Alaska and interpreted

it to mean that federal control, and hence treaty-protected

residual Indian rights, were to remain “undiminished” fol-

lowing statehood.

Congress has occasionally employed its plenary power

under the Commerce Clause to modify areas of traditional

Indian tribal sovereignty and to extend to the states juris-

diction over Indian affairs. But without exception, such

legislation has been specific and limited. For example, 25

U.S.C. § 398 represents a rare congressional authorization

of state taxation of land or other property within the

sphere of tribal government. That statute permitted the

states to tax mineral leaseholds on unallotted Indian land,

but the grant of jurisdiction was carefully limited to pro-

vide that “such tax shall not become a lien or charge of

any kind or character against the property of the Indian

owner.” **

13 36 Stat. 557, 569 (1910).

14 See also 25 U.S.C. § 231, allowing state health inspections and

enforcement of compulsory school attendance laws on Indian land,

the latter, however, only if the tribe consents; and 18 U.S.C. § 1161,

permitting the application on Indian reservations, of state laws

dealing with the sale and possession of intoxicants, again, only if

there is consent of the tribe.

11

As a result of this legislative pattern, federal statutes

allowing states to assume some form of civil or criminal

jurisdiction over Indians have been strictly construed

against the states. Kennerly v. District Court of Montana,

400 U.S. 423 (1971). In Kennerly this Court noted the

specificity used when Congress granted to the states civil

and criminal jurisdiction over Indians:

The statute [Section 4 of the Act of August 15,

1953, 67 Stat. 588] is illustrative of the detailed

regulatory scrutiny which Congress has traditionally

brought to bear on the extension of state jurisdiction,

whether civil or criminal, to actions to which Indians

are parties arising in Indian country. (400 U.S. at

424 n. 1.)

Congress has never expressly or impliedly granted states

the power to tax the income of Indians residing on reserva-

tions. In fact, it has expressly legislated against the exer-

cise of such authority. The Buck Act,"* which allowed states

to collect sales taxes, use taxes, and income taxes from

residents of federal government lands, contains a specific

exemption protecting the pre-existing immunity of Indians

from all such taxes. The Act provides:

Nothing in sections 105 and 106 of this title shall be

deemed to authorize the levy or collection of any tax

on or from any Indian not otherwise taxed. (4 U.S.C.

§ 109.)

Thus, Congress has carefully avoided, even by implication,

authorizing states to tax the income of reservation Indians.

*4U.8.C. §§ 105-110.

12

D. The Continuing Viability of Tribal Sovereignty

Would Be Severely Jeopardised by State Taxation

of the Income of a Tribe or Its Members.

Indian tribes are “distinct independent political com-

munities,” ** retaining all of the necessary powers for in-

ternal self-government derived from their aboriginal tribal

sovereignty. These powers include, of course, the power

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

dismissed, 203 U.S. 599 (1906), upheld a tax imposed by

the Creek Tribe on non-Indian reservation traders. Speak-

ing of the Tribe’s power to exact such a levy, the Court of

Appeals stated:

The authority of the Creek Nation to prescribe the

terms upon which noncitizens may transact business

within its borders did not have its origin in act of

Congress, treaty or agreement of the United States.

It was one of the inherent and essential attributes of

its original sovereignty. It was a natural right of that

people, indispensable to its autonomy as a distinct tribe

or nation, and it must remain an attribute of its gov-

ernment until by the agreement of the nation itself or

by the superior power of the republic it is taken from

it. .. . [E]very original attribute of the government

of the Creek Nation still exists intact which has not

been destroyed or limited by Act of Congress or by the

contracts of the Creek tribe itself. (135 F. at 950)

Just as state civil and criminal laws cannot apply to

Indians because the tribes retain the exclusive jurisdiction

in such areas derived from their treaty-protected aboriginal

rights," state tax laws cannot apply to Indians or Indian

16 Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832).

11 Williams v. Lee, 335 U.S. 214, 218-222 (1959) (civil jurisdic

tion) ; United States v. Kagama, 118 U.S. 375 (1886) (criminal juris-

diction). See also CoHEN at 146: “The principle that a state has no

criminal jurisdiction over offenses involving Indians committed on

an Indian reservation is too well established to require argument,

13

property subject to sovereign tribal tax powers. In this

case, the Navajos have unquestioned civil and criminal

jurisdiction on their reservation. Arizona did not under-

take such jurisdiction although it might have done so at

any time between 1953 and 1968 pursuant to Public Law

280.% Nor have the Navajos elected to allow Arizona to

assume such jurisdiction under Title IV of the Civil Rights

Act of 1968.” ;

The federal government has consistently pursued a

policy designed to secure viable self-government for the

Indians. Both the Indian Reorganization Act of 1934,”

and Title IV of the Civil Rights Act of 1968" specifically

provide for protection and development of the Indians’

right to govern their own affairs. Congress has further

declared :

[O]ur national Indian policy shall give full recogni-

tion to and be predicated upon the unique relationship

that. exists between this group of citizens and the

Federal Government...

..- [I]mproving the quality and quantity of social and

economic development efforts for Indian people and

maximizing opportunities for Indian control and self-

determination shall be a major goal of our national

Indian policy.

Senate Concurrent Resolution 26, December 11, 1971, 117

Conc. Reo. 21325-26 (daily ed. Dec. 11, 1971).

attested as it is by a line of cases that reaches back to the earliest

oe fog the republic. [citations omitted].” See generally, Id. at

* Section 7 of Act of August 15, 1953, 67 Stat. 590, repealed by

25 U.S.C. § 1323.

* 25 U.S.C. §§ 1321-1322.

™ 25 U.S.C. §§ 461-479.

™ 25 U.S.C. §§ 1321-1326.

18

effective police force and court system which relieves

Arizona of significant costs in the administration of justice

within its borders. The Tribe also has its own anti-poverty

office and welfare programs. Roads on the reservation

are maintained by the Tribe and the Bureau of Indian

Affairs. State schools which serve Indians are heavily

subsidized by the federal government. See Appellant’s

Jurisdictional Statement, pp. 15-17.

The State of Arizona does not have civil or criminal

jurisdiction over the Navajo Indians residing on the reser-

vations within its borders. As this Court noted in Williams

v. Lee, 358 U.S. 217, 223 (1959), Arizona’s reason for

failing to accept jurisdiction when it could have done so

pursuant to Public Law 280,” is “possibly because the

people of the State anticipate that the burdens accompany-

ing such power might be considerable.”

It is submitted that, just as a state may not constitu-

tionally tax a foreign entity to which it furnishes only mini-

mal services, it may not tax sovereign Indian tribes within

its borders to whom it furnishes only minimal services

without violating due process of law.

2? Section 7 of Act of August 15, 1953, 67 Stat. 590, repealed by,

25 U.S.C. § 1323.

19

CONCLUSION

For the foregoing reasons the judgment of the Court

of Appeals as affirmed by the Supreme Court of Arizona

should be reversed.

Respectfully submitted,

Samuzt W. Mourpuy, Jr.

Two Wall Street

New York, New York 10005

Attorney for Amicus Curiae

Donovan Leisure Newton & Irvine

Wuium C. Perster

James A. HENNEFER

Of Counsel