Appellant, Warren Trading Post Company, appeals from a judgment determining that certain taxes are due to the State of Arizona by reason of retail sales of personal
The Arizona exaction arises out of the provisions of the Arizona Privilege Transaction Act, A.R.S. § 42-1308, requiring every person within Arizona
In considering collectively the arguments presented, we observe certain conclusions which weigh heavily in the decision.
Tax immunity is never enjoyed as a matter of right but only as an incidental windfall when, and only as long as, imposition of the state tax impairs or interferes with the exercise of a federal function. Petition of S.R.A., Inc. v. State of Minnesota, 219 Minn. 493, 18 N.W.2d 442, affirmed 327 U.S. 558, 66 S.Ct. 749, 90 L.Ed. 851. The immunity here claimed represents a severe impairment of the taxing power of Arizona. It is one we would not be disposed to sustain unless we entertained grave doubts but that a federal function was impaired.
We have repeatedly held that this tax is on the privilege or right to engage in business and is not a sales tax although generally referred to as such, that it neither imposes a tax on the purchaser nor upon sales but rather taxes the seller for the privilege of engaging in business, that the tax is the direct obligation of the retailer and not that of the consumer, and further that there is no statutory authority for the retailer to attempt to constitute himself an
Were appellant an instrumentality of the United States Government by reason of its being licensed to do business with the Indians under the appropriate acts of Congress,
The Arizona exaction is non-discriminatory. It is not levied against Indians or Indian tribes as such but against all who engage in the business of selling within the geographical boundaries of the State of Arizona. The fact of legal title in the United States to the Indian lands is not sufficient to effect an exclusion of the state
Historically three powers of the federal government have been used to support congressional action in legislating on Indian affairs. The War Making Power was invoked by the First Congress on August 7th, 1789, by entrusting Indian affairs to the War Department. 1 Stat. 49, 50. It was the practice and policy of the federal government during the many years of tension between Indian and non-Indian to negotiate with the tribes and to settle differences by treaty if possible. See Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483. After the Civil War, it was recognized that assimilation not segregation of the Indians was necessary
In 1886 the Supreme Court of the United States examined a congressional enactment prescribing criminal laws for Indians living on reservations. In sustaining the plenary
Since then, the recognized relation of tribal Indians together with the commerce clause of the U.S.Const., art. 1, § 8(3), granting to Congress the power "to regulate commerce with * * * the Indian tribes" have been treated as the sources of congressional power, see Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251, supra, Perrin v. United States, 232 U.S. 478, 34 S.Ct. 387, 58 L.Ed. 691, Johnson v. Gearlds, 234 U.S. 422, 34 S.Ct. 794, 58 L.Ed. 1383, without always pointing specifically to either.
We do not doubt the plenary power of Congress to legislate in behalf of its wards by providing for them such federal services as education, health and reclamation, or that Congress may permit tribal self-government. The exercise of state jurisdiction may not impede the federal government in the treatment of its wards nor may it undermine the authority of the tribe in the exercise of self-government, Williams v. Lee, supra. Neither may it impair a right granted or reserved by federal law. Organized Village of Kake v. Egan, supra. Otherwise state laws may be applied to Indians.
Congress has customarily carved out reservations from the unreserved public domain lying within the geographical boundaries of the state either to be owned or held by the Indian tribes. Utah & Northern R. Co. v. Fisher, 116 U.S. 28, 6 S.Ct. 246, 29 L.Ed. 542, supra. State law consistent with congressional legislation in behalf of its wards and with the tribal self-government is not excluded on these reservations.
Generally, it may be said that state laws apply to the extent they do not conflict with federal Indian laws.
We do not find that Arizona by taxing appellant interferes with the United States in the use of reservation lands for the purposes for which they were established or that its tax tends to thwart the purpose of the federal government in caring for its Indian wards and leading them into the habits and ways of civilized life.
This brings us to the ultimate proposition advanced by the Navajo Indian Tribe that the commerce clause of the federal constitution by its own force creates an area of trade free from interference by the state. There is here equated the power to regulate commerce among the several states with the Indian tribes in the argument that the states are not allowed "one single — tax — worth of direct interference with the free flow of commerce." But we do not understand that the commerce clause provides an automatic pre-emption to the federal government of every area wherein conceivably Congress might act.
If there is an analogy to be drawn from the interstate commerce clause, still the possession of power in Congress does not exclude all state power. Southern Pac. Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915. A state may legislate freely upon those phases of commerce which are left unregulated by the nation and if the prohibition of state action is only inferable from the scope and purpose of the federal legislation, it must be clear that state action is inconsistent with the federal provisions. Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 62 S.Ct. 491, 86 L.Ed. 754. Local authorities are not foreclosed from regulating matters of local concern merely because there may be some incidental but not burdensome effect on interstate commerce. California v. Zook, 336 U.S. 725, 69 S.Ct. 841, 93 L.Ed. 1005; Cooley v. Board of Wardens, 12 How. 299, 13 L.Ed. 996.
and by § 262:
It is argued that if appellant "proved his fitness to trade with the Indians to the satisfaction of the Commissioner of Indian Affairs and secured a license from the Commissioner, he would thereupon have the right, whether or not he applied for or received a Transaction Privilege Tax License from the defendants [members of the State Tax Commission], to set up as a trader on the Navajo Indian Reservation." But we do not think it follows because appellant is licensed by the Commissioner of Indian Affairs to engage in trade that he has also been commissioned to disregard state laws. Rather, we would think that the Commissioner of Indian Affairs in considering whether a trader is a "proper person" would consider whether he will or has complied with such state laws as are constitutionally consistent with the licensee's business.
By the Arizona Enabling Act, § 20, 36 Stat. 557, 568, the people of this state agreed with the United States to forever disclaim all right and title to all lands lying within Arizona's boundaries owned or held by any Indian or Indian tribes and that "* * * until 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 Congress of the United States." Absolute jurisdiction does not mean invariably exclusive jurisdiction; the word "absolute" carries the meaning of undiminished not exclusive. Organized Village of Kake v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573.
The same section of the enabling act further provides that "* * * all such lands shall be exempt from taxation by said State so long and to such extent as Congress has prescribed or may hereafter prescribe."
Moreover, any inference that this trader was intended by Congress to be relieved of the Arizona general non-discriminatory privilege transaction tax is to the contrary. By 61 Stat. 644, 4 U.S.C. §§ 105, 109, Congress authorized the states to extend sales taxes to persons residing on or carrying on their businesses and to transactions occurring in federal areas. While Congress specifically excluded Indians "not otherwise taxed," it did not purport to protect those who trade with Indians from taxation.
We restate our basic conclusions.
First, assuming that appellant is an instrumentality of the United States government, no immunity from the tax will be implied.
Second, the test of state action irrespective of the sources of power is that state action must not be inconsistent with or burdensome to federal purposes or laws.
Under the stipulated facts of this case we hold that the Arizona exaction as applied to the appellant does not thwart the will of Congress in its treatment of its Indian wards nor is it inconsistent with the power of Congress to regulate trade with the Indian tribes.
The judgment of the court below is affirmed.
Chief Justice Waite has defined the judicial function in Minor v. Happersett, 21 Wall. 162 at 178, 22 L.Ed. 627 (1874):
In this case, I am convinced the majority of the Court misconceives what the law is in its concern over what the law in strict
Before examining the relation between this privilege tax
Consequently, for the purpose of determining the scope of this tax, we should observe established rules of construction. First, when construing the ambit of a tax, as opposed to an exception to a tax, this Court has traditionally interpreted favorably to the taxpayer and strictly against the tax commission. Alvord v. State Tax Commission, 69 Ariz. 287, 213 P.2d 363 (1950). In addition, since 1935 when the Twelfth Legislature adopted this tax until 1956 when the tax commission issued Regulation 2.18.5 taxing Indian traders, the commission in administering the law had not construed the tax statute as including Indian traders. Although long administrative interpretation is not controlling, the courts give weight to such an interpretation when construing the law. Alvord v. State Tax Commission, supra; Van Veen v. County of Graham, 13 Ariz. 167, 108 P. 252 (1910). And in cases concerning possible exercise of power by states over Indian affairs, the Supreme Court of the United States, on the basis of the Commerce Clause, appears to have raised a presumption against such state action. See, e.g., Williams v. Lee, 358 U.S. 217, 220-221, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959); Organized Village of Kake v. Egan, 369 U.S. 60, 74-76, 82 S.Ct. 562, 7 L.Ed.2d 573 (1962); and Worcester v. Georgia, 6 Pet. 515, 561, 8 L.Ed. 483 (1832), Chief Justice Marshall's great decision which first announced this principle.
The all-important subject of this case is the relation between the Commerce Clause and the Arizona privilege tax. The Commerce Clause delegates to the federal government the power to control three
Each trade area in the Commerce Clause may have been delegated to the federal government for a different reason. But a principle common to all three trade areas emerges from the Commerce Clause. A long line of "interstate commerce" and "foreign commerce" cases reveals a prohibition which applies equally to this "Indian commerce" case: A state cannot tax the privilege of engaging in an area of trade delegated exclusively to the federal government in the Commerce Clause.
Historically, a tax phrased in terms of a privilege for engaging in interstate commerce has been considered beyond the power of the states.
The United States Supreme Court has not only forbidden a state privilege tax as a condition precedent to the beginning of an interstate business, but it also has denied the power of a state to impose a tax on the privilege of doing an exclusively interstate business after the business has begun. Such taxes have been struck down even though they were fairly measured according to the connections of a taxpayer with the taxing state. In Spector Motor, for example, the Supreme Court invalidated a Connecticut privilege tax imposed on an interstate trucking corporation and said 340 U.S. at 609, 71 S.Ct. at 512, 95 L.Ed. 573:
See also, Alpha Portland Cement Co. v. Massachusetts, supra; Memphis Steam Laundry Cleaner, Inc. v. Stone, supra; Ozark Pipe Line Corp. v. Monier, 266 U.S. 555, 45 S.Ct. 184, 69 L.Ed. 439 (1925).
The United States Supreme Court has repeatedly invalidated a state tax phrased in terms of a privilege for engaging in interstate commerce. This Court recognized this prohibition against such a tax in Combustion Engineering, Inc. v. Arizona State Tax Commission, 91 Ariz. 253, 371 P.2d 879 (1962). The United States Supreme Court has also struck down state taxes on the privilege of doing foreign commerce. Brown v. Maryland, 12 Wheat. 419, 6 L.Ed. 678 (1827), for example, concerned a Maryland tax imposed on a foreign importer. The Court invalidated the tax on alternative grounds: the Import-Export Clause
Although no court before this has ruled on the validity of a state tax which is imposed on the privilege of doing business with the Indians, the principle prohibiting such a tax on interstate and foreign commerce should also apply to this case. Certainly the Indian trader here is no less favored by the Commerce Clause than is the interstate trucker in Spector Motor and the foreign importer in Brown. From the Commerce Clause emerges a principle forbidding a state tax on the privilege of engaging in an area of trade delegated exclusively to the federal government. Consequently, in my opinion, this privilege tax is invalid when imposed on a federal Indian trader. Arizona has no power to tax the privilege of doing business with the Indians because it is a privilege granted solely by the federal government.
Indeed, this prohibition arising from the Commerce Clause applies with greater force in the area of Indian commerce than in the other two trade areas. First, as opposed to interstate and foreign commerce, doing business with the Indians is a privilege conditionally granted by the federal government, not an individual right. While any person may engage in interstate and foreign commerce in the absence of regulations to the contrary, no one may sell to Indians unless licensed and rigorously regulated by the Commissioner of Indian Affairs.
Secondly, we have here a stronger case against a state privilege tax than in the case of foreign or interstate commerce because Congress has more fully occupied and regulated the area of Indian commerce. The federal government, for example, neither grants nor regulates the privilege of engaging in interstate commerce in the manner it grants and regulates the privilege of engaging in Indian commerce. Under the present law, the Commissioner of Indian Affairs has the exclusive power to regulate the kind, quality and price of the goods sold to the Indians. 25 U.S.C.A. §§ 261-264.
Even so, the majority in this case, cites language from Oklahoma Tax Commission v. United States, 319 U.S. 598, 607, 63 S.Ct. 1284, 87 L.Ed. 1612 (1943), an estate tax case, and concludes: "Congress has not provided non-taxability [of Indian traders] from excises although it could have." As we have seen, the majority persists in treating this as an "exemption" case and in construing strictly against the taxpayer. Consequently, to support its position, the majority uses language from Oklahoma Tax Commission,
Moreover, the absence of express Congressional prohibition of this tax should not be interpreted as implied consent. At the time the federal regulations were passed, such a tax had never been proposed. In addition, where the power is exclusive, as it is here, the failure of Congress to make express regulations indicates its will that the subject shall be left free from any restriction. Robbins v. Taxing District of Shelby County, 120 U.S. 489, 7 S.Ct. 592, 30 L.Ed. 694 (1886); Philadelphia & S. Mail Steamship Co. v. Pennsylvania, 122 U.S. 326, 7 S.Ct. 1118, 30 L.Ed. 1200 (1886); Leisy v. Hardin, 135 U.S. 100, 10 S.Ct. 681, 34 L.Ed. 128 (1889); and In re Rahrer, 140 U.S. 545, 11 S.Ct. 865, 35 L.Ed. 572 (1891). Consequently, the Commerce Clause precludes this tax on appellant, even in the absence of a specific prohibition by Congress.
The majority restates its two basic conclusions at the close of its opinion. The first conclusion regarding no tax exemption for a federal instrumentality is immaterial; appellant specifically abandoned this "instrumentality" theory during oral argument. The second conclusion has two premises: first, this tax imposed by Arizona is not "inconsistent" and, second, it is not "burdensome" to federal purposes or laws. I will analyze these premises in inverse order.
When determining that this tax does not have a "burdensome effect" on Indian commerce, the majority uses the "local activity" test from California v. Zook, 336 U.S. 725, 69 S.Ct. 841, 93 L.Ed. 1005 (1949) and Cooley v. Board of Wardens, 12 How. 299, 13 L.Ed. 996 (1851). This reasoning suffers from what might be termed a "transplanted category."
A test developed for the purpose of protecting the free flow of interstate commerce does not necessarily accomplish the purpose
And when determining that this tax is not "inconsistent" with federal purposes, the majority gives us an interesting history of federal powers and then concludes, without further explanation, that this tax does not conflict with federal laws. But the Department of the Interior, in a formal opinion by the First Assistant Solicitor, could not have been more clear and more definite in this regard:
An "interference with the authority of the Commissioner of Indian Affairs" is inconsistent with federal purposes and laws. Despite this unequivocal language, the majority opinion audaciously advises the Commissioner of Indian Affairs, when determining whether a trader is a "proper person", to "consider whether he will or has complied with" the imposition of the tax in question. So much for the majority's "inconsistent" reasoning.
The majority opinion refers to 61 Stat. 641, §§ 105 and 109 (commonly referred to as the "Buck Act") as a specific congressional authorization to the states to extend sales taxes to persons residing in or carrying on their business and to transactions occurring in "federal areas." Section 110(e) of the Buck Act defines "federal area":
This definition does not include Indian reservations. An Indian reservation is land held by the United States for Indian use, not for use by the United States. See Your Food Stores, Inc. (NSL) v. Village of Espanola, 68 N.M. 327, 361 P.2d 950 (1961). All the Buck Act purports to do is subject to state taxation persons previously not taxed because the transaction "occurred in whole or in part within a Federal area."
The thesis of the majority opinion, reduced to its simplest elements, is: The Arizona tax in question is imposed on all persons within the territorial boundaries of the state for the privilege of engaging in the business of selling at retail. The state has imposed the tax on the seller, and it is not concerned with his manner of sale or choice of buyers. He is not required to collect the tax from the buyer. He may do so by collecting it in addition to the specified selling price, or he may "absorb" it in the price to the purchaser.
Since the trader in this case is a business corporation, not a charitable or philanthropic organization, it would be unrealistic to suppose that the trader would abandon the general business practice of passing a
The majority maintains this situation does not create an interference with the regulation of commerce with the Indian tribes. I maintain that it does.
There is no suggestion arising out of the stipulated facts that the Indians are less able to pay this tax than other residents of Arizona of a like or similar economic status.