Mescalero Apache Tribe v. Jones

Mescalero Apache Tribe v. Jones, Commissioner, Bureau of Revenue of New Mexico, et al.

Certiorari to the Court of Appeals of New Mexico

No. 71-738. Argued December 12, 1972—Decided March 27, 1973

The State of New Mexico may impose a nondiscriminatory gross receipts tax on a ski resort operated by petitioner Tribe on off-reservation land that the Tribe leased from the Federal Government under § 5 of the Indian Reorganization Act, 25 U. S. C. § 465. Though § 465 exempts the land acquired from state and local taxation, neither that provision nor the federal-instrumentality doctrine bars taxing income from the land. But § 465 bars a use tax that the State seeks to impose on personalty that the Tribe purchased out of State and which, having been installed as a permanent improvement at the resort, became so intimately connected with the land itself as to be encompassed by the statutory exemption. Pp. 147-159.

83 N. M. 158, 489 P. 2d 666, affirmed in part and reversed in part. . . .

Mr. Justice White delivered the opinion of the Court.

The Mescalero Apache Tribe operates a ski resort in the State of New Mexico on land located outside the boundaries of the Tribe's reservation. The State has asserted the right to impose a tax on the gross receipts of the ski resort and a use tax on certain personalty purchased out of State and used in connection with the resort. Whether paramount federal law permits these taxes to be levied is the issue presented by this case.

The home of the Mescalero Apache Tribe is on reservation lands in Lincoln and Otero Counties in New Mexico. The Sierra Blanca Ski Enterprises, owned and operated by the Tribe, is adjacent to the reservation, and was developed under the auspices of the Indian Reorganization Act of 1934, 48 Stat. 984, as amended, 25 U.S.C. § 461 et seq. After a feasibility study by the Bureau of Indian Affairs, equipment and construction money was provided by a loan from the Federal Government under § 10 of the Act, 25 U.S.C. § 470, and the necessary land was leased from the United States Forest Service for a term of 30 years. The ski area borders on the Tribe's reservation, but, with the exception of some cross-country ski trails, no part of the enterprise, its buildings, or equipment is located within the existing boundaries of the reservation.

The Tribe has paid under protest $26,086.47 in taxes to the State, pursuant to the sales tax law, N. M. Stat. Ann. § 72-16-1 et seq. (1953), based on the gross receipts of the ski resort from the sale of services and tangible property. In addition, in 1968, the State assessed compensating use taxes against the Tribe in the amount of $5,887.19 (plus penalties and interest), based on the purchase price of materials used to construct two ski lifts at the resort. N. M. Stat. Ann. § 72-17-1 et seq. (1953). The Tribe duly protested the use tax assessment and sought a refund of the sales taxes paid. The State Commissioner of Revenue denied both the claim for refund and the protest of assessment, and the Court of Appeals of the State affirmed. The court held, essentially, that the State had authority to apply its nondiscriminatory taxes to the Tribe's enterprise and property involved in the dispute, and that the Indian Reorganization Act did not render the Tribe's enterprise a federal instrumentality, constitutionally immune from state taxation, nor did it, by its own terms, grant immunity from the taxes here involved. 83 N. M. 158, 489 P. 2d 666 (1971). The Supreme Court of New Mexico denied certiorari. 83 N. M. 151, 489 P. 2d 659 (1971). We granted the Tribe's petition for a writ of certiorari, 406 U.S. 905, to consider its claim that the income and property of the ski resort are not properly subject to state taxation. We affirm in part and in part reverse.

I

At the outset, we reject—as did the state court—the broad assertion that the Federal Government has exclusive jurisdiction over the Tribe for all purposes, and that the State is therefore prohibited from enforcing its revenue laws against any tribal enterprise, "[w]hether the enterprise is located on or off tribal land." Generalizations on this subject have become particularly treacherous. The conceptual clarity of Chief Justice Marshall's view in Worcester v. Georgia, 6 Pet. 515, 556-561 (1832), has given way to more individualized treatment of particular treaties and specific federal statutes, including statehood enabling legislation, as they, taken together, affect the respective rights of States, Indians, and the Federal Government. See McClanahan v. Arizona State Tax Comm'n, post, p. 411 U.S. 164; Organized Village of Kake v. Egan, 369 U.S. 60, 71-73 (1982). The upshot has been the repeated statements of this Court to the effect that, even on reservations, state laws may be applied unless such application would interfere with reservation self-government or would impair a right granted or reserved by federal law. Organized Village of Kake, supra, at 369 U.S. 75; Williams v. Lee, 358 U.S. 217 (1959); New York ex rel. Ray v. Martin, 326 U.S. 498, 499 (1946); Draper v. United States, 164 U.S. 240 (1896). Even so, in the special area of state taxation, absent cession of jurisdiction or other federal statutes permitting it, there has been no satisfactory authority for taxing Indian reservation lands or Indian income from activities carried on within the boundaries of the reservation, and McClanahan v. Arizona State Tax Comm'n, supra, lays to rest any doubt in this respect by holding that such taxation is not permissible absent congressional consent.

But tribal activities conducted outside the reservation present different considerations. "State authority over Indians is yet more extensive over activities . . . not on any reservation." Organized Village of Kake, supra, at 75. Absent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State. See, e.g., Puyallup Tribe v. Department of Game, 391 U.S. 392, 398 (1968); Organized Village of Kake, supra, at 369 U.S. 75-76; Tulee v. Washington, 315 U.S. 681, 683 (1942); Shaw v. Gibson-Zahniser Oil Corp., 276 U.S. 575 (1928); Ward v. Race Horse, 163 U.S. 504 (1896). That principle is as relevant to a State's tax laws as it is to state criminal laws, see Ward v. Race Horse, supra, at 516, and applies as much to tribal ski resorts as it does to fishing enterprises. See Organized Village of Kake, supra.

The Enabling Act for New Mexico, 36 Stat. 557, reflects the distinction between on- and off-reservation activities. Section 2 of the Act provides that the people of the State disclaim "all right and title" to lands "owned or held by any Indian or Indian tribes the right or title to which shall have been acquired through or from the United States . . . , and that . . . the same shall be and remain subject to the disposition and under the absolute jurisdiction and control of the Congress of the United States." But the Act expressly provides, with respect to taxation, that "nothing herein . . . shall preclude the said State from taxing, as other lands and other property are taxed, any lands and other property outside of an Indian reservation owned or held by any Indian, save and except such lands as have been granted . . . or as may be granted or confirmed to any Indian or Indians under any Act of Congress, but . . . all such lands shall be exempt from taxation by said State [only] so long and to such extent as Congress has prescribed or may hereafter prescribe." It is thus clear that, in terms of general power, New Mexico retained the right to tax, unless Congress forbade it, all Indian land and Indian activities located or occurring "outside of an Indian reservation." 

We also reject the broad claim that the Indian Reorganization Act of 1934 rendered the Tribe's off-reservation ski resort a federal instrumentality constitutionally immune from state taxes of all sorts. M'Culloch v. Maryland, 4 Wheat. 316 (1819). The intergovernmental immunity doctrine was once much in vogue in a variety of contexts and, with respect to Indian affairs, was consistently held to bar a state tax on the lessees of, or the product or income from, restricted lands of tribes or individual Indians. The theory was that a federal instrumentality was involved, and that the tax would interfere with the Government's realizing the maximum return for its wards. This approach did not survive; its rise and decline in Indian affairs is described and reflected in Helvering v. Mountain Producers Corp., 303 U.S. 376 (1938); Oklahoma Tax Comm'n v. United States, 319 U.S. 598 (1943); and Oklahoma Tax Comm'n v. Texas Co., 336 U.S. 342 (1949), where the Court cut to the bone the proposition that restricted Indian lands and the proceeds from them were—as a matter of constitutional law—automatically exempt from state taxation. Rather, the Court held that Congress has the power "to immunize these lessees from the taxes we think the Constitution permits Oklahoma to impose in the absence of such action," and that "[t]he question whether immunity shall be extended in situations like these is essentially legislative in character." Oklahoma Tax Comm'n v. Texas Co., supra, at 365-366. . . .

II

The Tribe's broad claims of tax immunity must therefore be rejected. But there remains to be considered the scope of the immunity specifically afforded by § 5 of the Indian Reorganization Act. 25 U.S.C. § 465.

A

Section 465 provides, in part, that "any lands or rights acquired" pursuant to any provision of the Act "shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation." On its face, the statute exempts land and rights in land, not income derived from its use. It is true that a statutory tax exemption for "lands" may, in light of its context and purposes, be construed to support an exemption for taxation on income derived from the land. See Squire v. Capoeman, 351 U.S. 1 (1956); cf. Superior Bath House Co. v. McCarroll, 312 U.S. 176 (1941). But, absent clear statutory guidance, courts ordinarily will not imply tax exemptions and will not exempt off-reservation income from tax simply because the land from which it is derived, or its other source, is itself exempt from tax. . . .

The Court has also held that a State, as well as the Federal Government, may tax an Indian's pro rata share of income from a tribe's restricted mineral resources. Leahy v. State Treasurer, 297 U.S. 420 (1936). Lessees of otherwise exempt Indian lands are also subject to state taxation. Oklahoma Tax Comm'n v. Texas Co., 336 U.S. 342 (1949).

On the face of § 465, therefore, there is no reason to hold that it forbids income, as well as property, taxes. Nor does the legislative history support any other conclusion. As we have noted, several explicit provisions encompassing a broad tax immunity for chartered Indian communities were dropped from the bills that preceded the Wheeler-Howard bill. See 9, supra. Similarly, the predecessor to the exemption embodied in § 465 dealt only with lands acquired for new reservations or for additions to existing reservations. 1934 House Hearings 11. Here, the rights and land were acquired by the Tribe beyond its reservation borders for the purpose of carrying on a business enterprise as anticipated by §§ 476 and 477 of the Act. These provisions were designed to encourage tribal enterprises "to enter the white world on a footing of equal competition." 78 Cong. Rec. 11732. In this context, we will not imply an expansive immunity from ordinary income taxes that businesses throughout the State are subject to. We therefore hold that the exemption in § 465 does not encompass or bar the collection of New Mexico's nondiscriminatory gross receipts tax and that the Tribe's ski resort is subject to that tax.

B

We reach a different conclusion with respect to the compensating use tax imposed on the personalty installed in the construction of the ski lifts. According to the Stipulation of Facts, that personal property has been "permanently attached to the realty." In view of § 465, these permanent improvements on the Tribe's tax exempt land would certainly be immune from the State's ad valorem property tax. See United States v. Rickert, 188 U.S. 432, 441-443 (1903). We think the same immunity extends to the compensating use tax on the property. The jurisdictional basis for use taxes is the use of the property in the State. See Henneford v. Silas Mason Co., 300 U.S. 577 (1937); McLeod v. J. E. Dilworth Co., 322 U.S. 327, 330 (1944). It has long been recognized that "use" is among the "bundle of privileges that make up property or ownership" of property and, in this sense at least, a tax upon "use" is a tax upon the property itself. Henneford v. Silas Mason Co., supra, at 582. This is not to say that use taxes are, for all purposes, to be deemed simple ad valorem property taxes. See, e.g., United States v. Detroit, 355 U.S. 466 (1958), and its companion cases; Sullivan v. United States, 395 U.S. 169 (1969). But use of permanent improvements upon land is so intimately connected with use of the land itself that an explicit provision relieving the latter of state tax burdens must be construed to encompass an exemption for the former. "Every reason that can be urged to show that the land was not subject to local taxation applies to the assessment and taxation of the permanent improvements." United States v. Rickert, supra, at 442.

The judgment of the Court of Appeals is

Affirmed in part and reversed in part. . . .