# Reply Brief — McClanahan v. Arizona Tax Comm'n > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0122%3A15 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1973 - **Citation:** 411 U.S. 164 ## Text TABLE OF AUTHORITIES CASES Acosta v. San Diego County, 126 Cal.App.2d 455, 272 P.2d 92 (1954). ....... 10 * Agua Caliente Band of Mission Indians v. Riverside County, 442 F.2d 1184 (9th Cir.), cert. denied, 404 U.S. 817 (1971). _ 12 Begay v. Sawtelle, 53 Ariz. 304, 88 P.2d 999 (1939)... 10 ~ Creek County v. Seber, 318 U.S. 705 (1943). ............ 12, 15 _ Application of Denetclaw, 83 Ariz. 299, 320 P.2d 697 «Donahue v. Justice Court, 15 Cal.App.3d 557, 93 Cal. ptr. 310, cert. denied 404 U.S. 990 (1971)... 18 Draper v. United States, 164 U.S. 240 (1896). ............ 17 - Grand Opera Co. v. Twentieth-Century Fox Film Corp., 235 F.2d 303 (7th Cir. 1956). ................ 13 Graves v. New York ex rel. O’Keefe, 306 U.S. 466 19 12 NAY. 1955). ccocccccccccccsccecssecesessesssesssesessevesevevesene 13 ii Kennerly v. District Court of Montana, 400 U.S. 423 hg £8 SSSI SRCAT NE Sie era 3, 5, 6, 7,8 Leahy v. State Treasurer of Oklahoma, 297 U.S. 420 (1936). iasleitadihetiepipdiihcailiamininticond shasibiiiicsmascian 20 Mason v. United States, F.2d —— (Ct.Cl. No. Oe rN iain dec eceiedacctsensine 10n.3 McClanahan v. Arizona Tax Commission, 14 Ariz. App. 452, 464 P.2d 221 (1971). o.oo. eee 7 Metlakatla Indian Community v. Egan, 369 U.S. 45 ce | EE ee 18 Mull v. United States, 402 F.2d 571 (9th Cir. 1968), cert, denied, 393 U.S, 1107 (1969). 0... 18 New York ex rel. Ray v. Martin, 326 U.S. 496 IE caleba ackieetihinaciubiacispiesiisicdisBantbieeniicdicnen 17 Oklahoma Tax Commission v. United States, 319 U.S. ESS eae eee eae 10 n. 3, 12, 20 Organized Village of Kake v. == 369 U.S. 60 REE seeneniciocs duialbptiivdanccteonisnneGuhcsipaal a Ruiz v. Morton, —— F.2d —— (9th Cir. No. 25568, I ER iad nacsistsnnicliinicnctdinchiecabaninane 13 Sears, Roebuck & Co. v. Metropolitan Engravers, 245 Peet CN OT oa: 13 Sigana v. Bailey, 282 Minn. 367, 164 N.W.2d 866 laf BREE Bie SOG : Finally; the: trend: has: been away: from the idea of in- iennent Sladen sovereignty asa bar to state jurisdiction and: toward! reliance-on federal preemption.’ See The power.:. Compare,.¢.: gs) United States'v: Kagama, 118 T S95-(1880), Qake RMR HR on ctateaely 400 Ue 8.428 A9TI)A ee TT ity "7 The. aporer, of fodersk wotharty-over Indian matter: has been te sr pe. etn, but it is now generally recognized that the power det for com- merce with and for See U. 8. Const. Sk put AE eee ‘See also Williams v. Lee, 358 U. 8. 217, 210 n. 4 (1950); Perrin v. ee 482. (1914) ;. Federal Indian Law 3. "The extent of federal preemption and residual Indian sovereignty McCLANAHAN v. ARIZONA STATE TAX COMM’N , a8 it was in the last cen- “{t]he relation of the Indian tribes living of the United States [is] an anoma- rs lous one and of a complex character. RE PIM RRNA iether Of the Union or of the State with ee full attributes of sovereignty, people, with the power of social relations, and thus far not brought under the laws in whose limits they _ "See 8 U.S.C. § 1401 (a) (2). 1 See, e. 9. H 7 “ 10 MéCLANAHAN v: ARIZONA STATE 'TAX COMM’N reside. PASS AP Spc sai nie moe 8.375; 381- 882:( 1886). i weiiinite! Ota GONbeiece te els odds sagaltct Ea heel Whe 6 sete te vind! with this ‘tradition ‘of ‘sdvereignty in mind; we’ think it clear that “Arizona has éxeseded’ ite lawful ‘authority by at- tempting to tak appellant. ° ‘The beginning of our analysis must be with’ the’ treaty which the ‘United States Gov- ernment ‘entered’ with the Navajo nation in 1868. The agreement provided; in relevant part, that a prescribed reservation! would be set aside “for the use and oecupa- tion ofthe Navajo) tribe of Indians” and that..“no per- sons, except; those: herein. authorized todo, and except a0 soldiers, agents, and employes. of the gov- scligag vi hua frsbenaipaatenega jons_in discharge of duties imposed by he order President, shall ever be per- as: over, ‘set upon, or reside in, the terri- J in this article.” 15 Stat. 667, 668 (1868). ere xp! citly states that the Navajo “free fro | state law or exempt fr state ‘the dotument ‘is not to be read ‘as an ordi- masy onteade wioed upon by paxtis,desling, of arms length | with 9g cs ees Positions. We have had document was signed the. Navajos ‘were an exiled people, forced:by the United States'to live ‘etowded! together on Se Eee a eee 8 feigern Now 8 Sepa Pe. Beorseen Gey, bad ce pied before the coming of the white man. In return for ‘promise.to keep peace, this: treaty ‘set. apart’ for ‘their permanent home’s portion of what had been their (950)20 Moe pte en ay a Rae y, pon its protection and good faith.” Carpenter vy. Shaw, 280 U. §. 363, 367 (1930). When this canon of construction is taken to- gether with the tradition of Indian independence de- scribed above, it cannot be doubted that the reservation federal ‘supervision. It is thus unsurprising that this Court has interpreted the Navajo treaty to preclude ex- (1965); Williams y. Lee, supra, at 221-222 (1959). Moreover, since the signing of the Navajo treaty, Con- gress has consistently acted upon the assumption that the States lacked jurisdiction over Navajos living on the * “Congress has acted consistently upon the assumption that vncesnntee have no power to regulate the affairs of Indians go 12 MoCLANAHAN v. ARIZONA STATE TAX COMM’N the title of.such Indian or Indian tribes shall have been extinguished. the same shall be and remain subject to the disposition and under the absolute jurisdiction and control of the United States.” Arizona Enabling Act, 36 Stat. 557, 569 (1910). . . held by any Indian.” Jd., at 570 (emphasis added). It is true, of course, that exemptions from tax laws should, as & general rule, be clearly expressed. But we have in restrictive meaning.“ Indeed, Congress’ intent to maintain the tax exempt status of reservation Indians is clear in light ** This language is duplicated in Arizona’s own constitution. See McCLANAHAN ». ARIZONA STATE TAX COMM’N 13 provides. that “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.” To be sure, the language of the statute itself does not make clear whether the reference to “any Indian not other- wise taxed” was intended to apply to reservation Indians 14 MoCLANAHAN v. ARIZONA STATE TAX COMM’N Indians, and 25 U. 8. C. § 1824 confers upon the States the right to disregard enabling acts which limit their authority over such Indians. But the Act expressly provides ‘that the State must act “with the consent of the tribe oceupying the particular Indian country,” 25 U. 8. C. $1822 (a), and must “appropriately amend [its} constitution or statutes.” 25 U.S.C. § 1324. Once again, the Act cannot be read as expressly conferring tax immunity upon Indians. But we cannot believe that Congress ‘would have required the consent of the Indians affected and the amendment of those state constitutions which prohibit the assumption of jurisdiction if the States were: free to accomplish the same goal unilaterally by simple legislative enactment. See Kennerly v. District Court, 400 U. S. 423 (1971). ; Arizona, of course, has neither amended its constitu- tion to permit taxation of the Navajos nor secured the * As passed in 1953, Pub. L. 280, 67 Stat. 588, delegated civil assume jurisdiction over Indian reservations without the consent of the tribe affected. See 67 Stat. 590. However, in 1968, Congress to impose this tax had it followed the procedures outlined in 25 U. S.C, $1822 et-eeg. Cf. 25. Us 8. C. § 1822 (b). That question is not presently before us, and we express no views on it. McCLANAHAN v. ARIZONA STATE TAX COMM 15 consent of the Indians affected. Indeed, a startling aspect of this case is that appellee apparently concedes that, in the absence of compliance with 25 U. S. C. § 1322 (a), the Arizona courts can exercise neither civil nor criminal jurisdiction over reservation Indians. See appellee’s brief, at 24-26." But the appellee nowhere explains how, without such jurisdiction, the State’s tax may either be imposed or collected. Cf. Transcript of oral argument, at 38-39. Unless the State is willing to defend the position that it may constitutionally admin- ister its tax system altogther without judicial interven- tiop, cf. Ward v. Board of County Commissioners, 253 U. S. 17 (1920), the admitted absence of either civil or criminal jurisdiction would seem to dispose of the case. IV When Arizona’s contentions are measured against these statutory imperatives, they are simply untenable. The State relies primarily upon language in Williams v. Lee stating that the test for determining the validity of state action is “whether [it] infringed on the*right of reserva- tion Indians to make their own laws and be ruled by them.” 358 U.S., at 220. Since Arizona has attempted to tax individual Indians and not the tribe or reserva- tion as such, it argues that it has not infringed on Indian rights of self-government. In fact, we are far from convinced that when a State imposes taxes upon reservation members without their consent, its action can be reconciled with tribal self- determination. But even if the State’s premise is ac- cepted, we reject the suggestion that the Williams test was meant to apply in this situation. It must be remem- %#In light of our prior cases, appellee has no choice but to make this concession. See, e. g., Kennerly v. District Court, supra; United States v. Kasama, 118 U. 8. 375 (1886). —_ 16 McCLANAHAN ». ARIZONA STATE TAX COMM’N bered that cases applying the Williams test have dealt principally with situations involving non-Indians. See also Organized ‘Village: of Kake' v. Egan; 369 U. S. 60, 7576 (1962).°In'‘these situations, both the Tribe and the State could fairly claim an interest in asserting their respective jurisdictions. “The Williams test was designed to resolve this conflict by providing that the State could protect its interest up to the point where tribal self- government would be affected. The problem pdsed by this case is completely different. Since appellant is ‘an Indian and since her income is derived wholly “from reservation sources, her activity is totally within the sphere which the relevant treaties and statutes leave for the Federal Government and for the Indians themselves. Appell¢e cites us to no cases hold- ing that this legislation may be ignored simply because tribal self-government has not been infringed.” On the contrary, this Court expressly rejected such a position only two years ago." In Kennerly v. District Court, 400 U. 8. 423 (1971), the Blackfeet Indian Tribe had voted to make state jurisdiction concurrent within the reservation. Although the State had not complied with the procedural prerequisites for the assumption of juris- diction, it argued that it was nonetheless entitled to extend its laws to the reservation since such action was obviously consistent with the wishes of the Tribe and, therefore, with tribal self-government. But we held that the Wil- %° Organized Village of Kake v. Egan, 369 U. 8. 60 (1962), is not such a case. See n. 15, supra. “4 Indeed, the position was expressly rejected in Williams, iteelf, upon which appellee so heavily relies. Williams held that “absent the right of reservation Indians to _ on pekdak ot ee eae hei ke 358 U..8., at 220 McCLANAHAN »v. ARIZONA STATE TAX COMM'N 17 liams rule was inapplicable and that “(t]he unilateral ac- tion of the Tribal Council was insufficient to vest Montana with jurisdiction.” 400 U.S., at 427. If Montana may not assume jurisdiction over the Blackfeet by simple legislation even when the Tribe itself agrees to be bound by state law, it surely follows that Arizona may not assume such jurisdiction in the absence of tribal agreement. . Nor is the State’s attempted distinction between taxes on land and on income availing. Indeed, it is somewhat surprising that the State adheres to this distinction in light of our decision in Warren Trading Post Co. v. Ari- zona Tax Commission, supra, wherein we invalidated an income tax which Arizona had attempted to impose within the Navajo Reservation. However relevant the land-income distinction may be in other contexts, it is plainly irrelevant when, as here, the tax is resisted be- cause the State is totally lacking in jurisdiction over both the people and the lands it seeks to tax. In such a situ- ation, the State has no more jurisdiction to reach income generated on reservation lands than to tax the land itself. Finally, we cannot accept the notion that it is irrelevant “whether the . . . state income i infringes on [appel- lant’s] rights as an individual avajo Indian,” as the State Court of Appeals maintained. McClanahan v. State Tax Commission, 14 Ariz. App. 452, 454, 484 P. 2d 221, 223 (1970). To be sure, when Congress has legislated on Indian matters, it has, most often, dealt _ With the tribes as collective entities. But those entities are, after all, composed of individual Indians, and the leg- islation confers individual rights. This Court has there- fore held that “the question has always been whether the state action infringed on the right of reservation _ Indians to make their own laws and be ruled by them.” _ Williams v. Lee, supra, at 220 (emphasis added). In 18 MeCLANAHAN v. ARIZONA STATE TAX COMM’N this case, appellant’s rights as.a reservation Indian were violated when the state collected a tax from her which it had no jurisdiction to impose. Accordingly, the judg- ment of the-court below must be aC oe a Tem EE AHENIIR A eS ira he --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0122%3A15. Public record. Not legal advice.