*1 TRIBE, APACHE The MESCALERO Appellant, JONES, the Bu Commissioner

Franklin Mex New the State reau Revenue Revenue Bureau of and the ico Appellees. Mexico,

No. 635. Appeals of Mexico.

Court

Aug. 1971. Sept. 7,

Rehearing Denied Denied Oct.

Certiorari

S. Overstreet, Thomas Fettinger, Bloom Overstreet, & Alamogordo, appellant. for Norvell, Atty. David Gen., L. C. John Cook, Special Atty. Gen., Fe, Asst. Santa appellees.

OPINION HENDLEY, Judge. (Bureau) Bureau of Revenue im-

posed a compensating tax on Mescalero Apache Tribe, Sierra Blanca Ski En- d/b/a terprises (Tribe) based price of materials used to construct two imposed lifts. The Bureau also emergency receipts gross school tax on the operation of the ski resort. protested tax as- sessment and also filed a claim of refund paid emergency for the sums under the school tax assessment. The Bureau ruled adversely protest on the Tribe’s of the com- pensating tax assessment and the claim of ap- refund of the school taxes. peals directly to this court to 72-§ 13-39, (Supp.1969).

We affirm. appeal upon stipulation is based and the Bu- facts entered into reau, summary of which is as follows. treaty residing on res- The Tribe is a tribe the counties ervation lands situated within Lincoln and Otero adopted Mexico and a constitution governmental regulations. accordance with located in Lincoln The ski resort is also belong- and is on lands Otero Counties un- ing to the United Forest Service Tribe, except thirty year der a lease to cross-country trails for some of the part of lands. No which are on reservation lo- equipment are buildings the ski resort the Tribe’s cated within the boundaries of purpose of reservation. The basic America, authority which is used revenue provide is to hereby wel- submit.” economic educational, social also The ski the Tribe. fare of argu- Tribe further contends approxi- training center job vides I, ment is buttressed Article Section 8 of *3 thirty tribal members. twenty mately to the which states United States Constitution the construction and The Congress that have the United shall States loan totally financed resort was power foreign regulate “To Commerce with to the Federal Government Nations, States, among and the and several Bu- * * *” the approval of U.S.C.A. Tribes; with the Indian Department the Affairs of reau of Indian agree general the We Tribe on this required for the of Interior proposition, cfijl must to but we attention leasing year, fiscal budget for each fact the Tribe to submitted n equipmentor other leasing facili- property, “power authority.” and United States Sub- designs concessionaires, plans and ties to sequently, Congress, States United or facilities of additional construction 20, 1910, Large, ch. at 36 Statutes June 310, other disposal property improvements, Enabling enacted the contents items, and expendable form than second, stating Mexico. Section after accounting monthly and reports interim that Indian shall the absolute land be under dealing with areas and related records other jurisdiction Congress of and control resort. part: the United stated in (1) the appeal Tribe asserts: “ On **hc herein, nothing or [B]ut Tribe; authority tax the has no State for, provided herein shall ordinance , authority assuming it has (2) preclude taxing, as the said State from statutes, not at- Tribe, State, in has taxed, property other lands and other are Tribe; -(3) and tempted to tax the any property lands outside and other a fed- it is exempt from taxation- because or held reservation owned instrumentality. . oral Indian, any except as save and such lands granted acquired have been or afore- as TAX. TO 1. AUTHORITY granted said as confirmed has no Tribe contends that State any any Indian or Indians under n exclusive .authority (a) because: to tax Congress, but said ordinance shall is vested jurisdiction over vide that all shall such lands Government; it is inconsistent (b) Federal long from taxation said so and State and Treaty the Tribe between with the Congress prescribed such extent as Government; (c) interferes and Federal prescribe.” hereafter right self-government. with the Tribe’s Enabling specific grant Act is a incorporated Ar- which was later into Jurisdiction. (a) Exclusivo XXI, ticle Section of the New Mexico It is the Tribe’s contention Constitution wherein the almost' identical Treaty between language adopted. was Government, effective States which became Enabling Consequently, virtue jurisdiction vests exclusive March Government-permitted the Act the Federal n overthe Tribe Federal Government. “ to-tax,- State of New Mexico Treaty states: Article I of the taxed, other lands are of In- “Article Said nation or tribe of an outside lands other through authorized Chiefs their dians owned or held reservation hereby acknowledge and de- aforesaid Indian.” lawfully ex- clare that laws, clusively jurisdiction, and Ar under the contends that under VI, ticle government (Clause 2), United States the United States

Igl Constitution, distinguishable is a conflict be- there when on the facts and under the (cid:127) provision of a law Treaty tween above cited. statute, regardless of wheth- Constitution (b) The Taxation Being Inconsistent statutory pro- er the State constitutional with the Treaty. prior subsequent vision is to or Tribe relies Articles

making Treaty con- Treaty, the will and 11 Treaty when read with Arti Belmont, 301 U.S. trol. United States v. cle above, cited proposition that, L.Ed. 1134 S.Ct. the Treaty imposed a duty on the United. proposition, how- with this pass Government to legislation and ever, Treaty to be we do not find do other permanent acts pros to insure the of the New provisions conflict with the perity happiness of *4 its statutes Mexico Constitution or the United States duly Government is lo- properties when the tax' is on lands or by bound Treaty donations, to make Treaty The submits cated off Indian land. gifts implements to the Tribe. The the United Tribe to the laws of Tribe contends that would be inconsistent Enabling Mexico permits Act New with purposes those for the State of New to tax in this situation. Mexico disrupt be allowed to the scheme lease of contends the the Federal Government permitting The ac was an imposition lands Federal Forest Service Mexico taxes quisition under 25 of land U.S.C.A. Tribe. permits Secretary Interior argument. We fail see the merit of the existing acquire within or without lands In reviewing the other Articles of the providing purpose of for the reservations Treaty, apparent .the purpose Treaty pro lands for Indians. 25 U.S.C.A. § towas insure the Tribe certain lands and rights ac “any lands vides that title to of certain freedoms on tribal lands but it quired” pursuant 470 shall to 25 U.S.C.A. § did not include freedom from a situation as pur exempt The be taxation. from State disclosed the facts this case. resort was of the ski chase and construction pass We judgment do not on the con- financed a loan under U.S.C.A. § tention of the Tribe that the Federal Gov- rights and Assuming leasehold the Tribe’s ernment is interested in financial suc- are resort facilities its interest in ski operation cess of the Tribe’s of a ski re- land, land, acquired proposi in rights sort; however, see, light we fail in exemption decide, the from do not we foregoing Treaty Enabling Act rights ac land, State taxation is also to visions, how the Federal in- Government ap quired in involved The tax here land. tended to the Tribe from taxation acquired plies rights neither to land nor to operations occurring activities and off “compensat land. The tax under old Enabling Indian lands. The Act itself de- tangible prop ing personal is on use tax” nies this contention. erty, (Repl. see N.M.S.A. Emergency pt. 2) Vol. and under (c) Right Tribe’s t'ó Interference privilege engag Act on School Tax Self-Government. Mex ing in within New activities business agree with the Tribe’s conten 72-16-4.1, (Repl. ico. See tion that if imposition of a State tax on 10, pt. ; Vol. 2) see Edmunds v. Bureau right interferes with Tribe’s Revenue, 64 N.M. 330 P.2d 131 self-government to reservation tax must exemption The under 25 U.S.C.A. § Revenue, fail. Ghahate Bureau of apply does not in this case. (Ct.App.1969). P.2d 1002 Tribe’s We have considered the other Tribe claims such interference in this case cases, contentions find them though and cited but even the taxes arose involved named, specifically be taxed unless conducted the En- operations and because abling specifically permitted claim taxa- land. Tribe on non-Indian tion “as lands property derived other revenue fact on the based taxed, any lands other is used outside operation resort from the of an Indian reservation owned held the welfare ” specific Indian. With training for members provides job permission, legislative federal no interfer see no show we facts These the Tribe. reason, Mexico, basis con- self-government. New reservation ence with in however, might cept specifically contends, that it Indians must named is the to be included within a statute of -power to terfere because purpose application. destroy Enabling “The states and: power to property, in this into the situation appellant entered which the case, pos be taxed being frustrated as other operation is totally if defeated taxed. sibly could even operation.” tax the is allowed Mexico frus showing present no facts There are 3. TRIBE EXEMPT FROM TAXA- argu remainder purpose;

trated TION IT FED- IS A BECAUSE There speculation. than is no more ment ERAL INSTRUMENTALITY. *5 claim, it is re the being factual basis no of Village Organized Compare jected. here that It is the Tribe’s contention 7 80 S.Ct. Egan, 369 Kake v. U.S. au assuming even New Mexico does have ; v. State McClanahan (1962) L.Ed.2d 573 thority Tribe, assuming fur the P.2d Commission, Ariz.App. 484 Tax 14 defi ther that the Tribe comes within the 221 (1971). statutes, “person” nition taxing of it is a federal Tribe is because TRIBE THE TAX 2. TO AUTHORITY instrumentality. NOT HAS THE WHICH STATE TO TAX. ATTEMPTED on Fed- The Tribe cites Handbook here that contention It is the Tribe’s Law, Printing eral Office U. S. in 72-17- specifically named not since it is that (1958) proposition page at for the 1961) of (Repl. Vol. 2(e), N.M.S.A.1953 is instrumentality insofar doctrine 72-16-2(A), Act, Compensating Tax Indians, prop- concerned, their it relates to of 1961) (Repl. Vol. erty do not their affairs. We repealed (both Emergency School proposition. general on this peri taxes were and both July the fact argument is The Tribe’s based on repeal), that prior to the of time ods opera- it its ski resort is a Tribe and acts on the basis are excluded supervised by the Fed- tion is financed authority to statutory apply to State do not facts, opin- in our eral These Government. v. Commis tax the Tribe. See Chouteau ion, support conclu- are insufficient Cir., Revenue, F.2d 38 10 sioner Internal virtually arm is an the ski sion that resort compare Gas Union Southern (1930); 976 Government, dis- see Service Public Company New Mexico v. in First Marshall senting opinion of Justice 913 Commission, 82 N.M. Tax Com- Agricultural Nat. Bank mission, 88 S.Ct. 392 U.S. there- and cases cited (1963), does not L.Ed.2d 1138 No is made that claim in; essen- certainly not “person” the definition come within governmental performance supra. 72-16-2(A), tial 72-17-2(e) and §§ but, could taxable, functions, the ski resort even if to be simply that claim is instrumentality, a federal be considered specifically named. been must have taxation immunity resort from va- the current disagree. Whatever En- our provisions lidity not removed could concept that Indians abling previously discussed Apache Mescalero states opinion. reply brief: The issue of a federally Affirmed. chartered cor- poration under Section present 477 is not It is so ordered. in this case. me, To constitutes admission Wood, J., concurs. C. Tribe, or Sierra Enterprises Blanca Ski concurring). SUTIN, Judge (specially is an Indian chartered corporation. This only because concur corporation should be taxed. Blanca Apache Sierra Mescalero The Notice of Assessment of Taxes Enterprises, I.D. No. Ski the Commissioner was made to Sierra resort, is a In- federal the ski owns Blanca Enterprises, Ski not to the Tribe. corporation, dian chartered title Protest Assessment filed U.S.C.A., §§ by the Tribe refers to Sierra Blanca Ski corporation being The fact of a chartered Enterprises. The Tribe stated it th'e was stipulation. Never- appear does not operator “owner and of Sierra Blanca Ski theless, it states: Enterprises.” In the title stipulation (cid:127)Secretary of the Interior ment under 25 U.S.C.A. Section loan to the Tribe 7. The ‡ U.S.C.A., ^[*] was financed ^[*] # provides that “ construction federal completely % govern- ^[*] “Mescalero cause 00.” The Tribe was taxed in this name be- of the facts and the decision and order believe it was Blanca probably Ski Commissioner, Enterprises, Apache .Tribe, not a chartered it led the I.D. No. 14-703019- Commissioner d/b/a described corporation.' Sierra .as If assumptions life in corporations make loans to Indian chartered *6 concurring opinion wrong, purpose promoting the economic of ,and called to the attention of this court development of such and of their tribes ” ** * rehearing, motion for I will members, dissent. not subject ,do an Indian Tribe is U.S.C.A., provides 25 477 § payment ‘to of the state tax or Secretary issue a char- Interior 'school tax assessments. ter of incorporation to a tribe. It further appears This to the first case be state tax provides: ’against an Indian corporation chartered may convey incor- to the Such charter Let tribe. us take a look at the history *, porated power tribe the to corporate ’of Indian tribes. hold, own, manage, operate or otherwise Cohen’s Handbook of Indian descrip- Federal dispose every n Law, 277, * * * p. states: tion, personal, real and powers incidental such be as In the in narrow which sense the term further business, to the not corporate condtict used, frequently corporation some- a law, Any *. inconsistent thing by government, chartered in a issued be revoked charter shall not so only this sense those Indian which tribes Congress. except by surrendered have government, been chartered some [Emphasis g., e. added.] of New incor- Pueblos Mexico porated by legislation, territorial and the XI, of the Tribe’s 1(a) Article Section incorporated tribes under section 17 of part stipu- Revised Constitution 1934, U.S.C.A., 18, the Act of provides [25 the Mescalero lation. It June are to corporations. be considered duty 477] Apache has the Tribal Council to transfer tribal 422, Lucero, See United States v. S.M. corporations. assets to tribal payment of If it the author taxes. supra, pp. In Cohen’s instrumentality of were intended to be an says: States, it been so would have - administratively deter- Thus it has been in stated 25 U.S.C.A. Mexico of New that the Pueblos mined might It noted that privileges grazing receive to are entitled 13-79, 72 — Act, pt. Supp.1969), (Repl. Grazing the S.A.1953 VoL Taylor under under' Act, in conferring adopted of the Tax Administration act 3 of that section clause 1965, provides: “corporations author- rights such laws under ized conduct business to levy may will attach or be made Liens principle involved of the State.” any provision terms of * * * applicable equally appear would oii Administration Act recog- has Indian tribe property belonging to the United States status, under corporate either nized tribe, America 18, 1934, or otherwise. Act of only pueblo Indian Indian June extent Cohen’s, allowed law. p. supra, wherein See also is said: corpora- again, Here Indian chartered tion is omitted. has corporate of the Pueblos status many recognized cases.

been jurisdiction given Some states “have been federal statute over reservations of Pueblo status The’ tribes in within their borders. within alive is still communities', created longer govern- these states exercise no N.M.S.A. Section New Mexico. independent mental functions state. section 8, pt. 1). (Repl.Vol. Moreover, Congress authorized all bodies gave the status the Indian Pueblos jurisdiction such, states to extend over tribes and, em corporate, politic and within their borders act” with official respect of their powered them to sue U.S.C.A., Rosa, tribal consent. 1321-22 Santa §§ lands. Lane Pueblo (Supp.1970); 82' Harvard Law Review (1918); 63 L.Ed. U.S. 39 S.Ct. Mexico has not moved toward (10th 43 F.2d 873 Garcia v. United assumption jurisdiction. 1930). Cir. Apache The Mescalero Tribe has left Supreme

"In Court 'confines its It has donned reservation. the lands held taxable Mexico corporation join Territory com- robes of in New Indians Mexico. Pueblo *7 petitors high It in its business. stood List, P. Delinquent separate now tradition as “nation.” It (1904). strong stands business and cultural 25 U.S.C.A. The Tribe claims development. money As it earns This sec a restraint on state’s activities. country, carry the citizens of it should this in the to lands taken applies to title competitors. same burdens as its of taxation in trust name It even continue additional ventures Indian or individual Indian. Such tribe every phase in business in life. taxa exempt from and local lands are state New Mexico should welcome adventure corporations Indian tion. Chartered come much as it has welcomed others to see, section. But not covered years. last Tribe, 150 Colo. Martinez v. Ute Southern my opinion, In cor- chartered poration operating on non-Indian land acts, “person” taxing the state Under subject to the tax and school They not ex- corporation. includes tax of this state. corporations. chartered clude reasons, For concur. corpora- these Indian chartered Neither