Washington Law Review


Over the years, the policy of the federal government toward American Indians has vacillated between attempts to assimilate them into American society on the one hand and efforts to preserve their independence and cultural identity on the other. Like a pendulum, this policy, as expressed in congressional legislation, has swung from efforts in 1887 to break up the reservations by transferring tribal lands to individual Indians in fee, to the halting in 1934 of further such alienation, and then back again since the 1950s to renewed efforts to end tribal existence. The legal theories and canons of construction generated by a century and a half of judicial attempts to interpret and accommodate these inconsistent and conflicting federal policies collide on the question of a state's jurisdiction to tax Indians. The conflict is reflected in three opinions delivered by the United States Supreme Court last term. In McClanahan v. Arizona State Tax Commission, Arizona attempted to apply its personal income tax to a full-blooded member of the Navajo tribe whose entire income was derived from activities on the reservation where she lived and worked. The Court held that the federal government had preempted this sphere of taxation and struck down application of the personal income tax; furthermore, since the state had failed to comply with relevant federal statutes, it lacked jurisdiction over the Indians it sought to tax. In Mescalero Apache Tribe v. Jones, the tribe constructed and operated ski resort facilities on off-reservation property leased by a tribal corporation from the United States Forest Service. New Mexico attempted to apply a gross receipts tax to the facilities and a use tax to materials purchased out of state for construction of the ski lifts. The Court upheld the gross receipts tax because of the off-reservation situs of the resort; it struck down application of the use tax to materials used to construct permanent improvements on the land, however, as inconsistent with the tribe's statutory exemption from land taxation. Finally, in Tonasket v. Washington, the Court considered Washington's attempt to impose an excise tax upon cigarettes sold by an Indian on a reservation over which the state had previously assumed civil and criminal jurisdiction. Tonasket, a full-blooded member of the Colville tribe, conducted a retail trade on his alloted lands on the Colville Indian reservation, purchasing brand name cigarettes from out of state distributors and selling them tax-free to non-Indians. The Colville tribe had consented to the state's assumption of jurisdiction over the reservation in 19578 pursuant to Public Law 83-280. In a per curiam opinion, the Court vacated the Washington Supreme Court decision upholding the state tax dnd remanded for reconsideration in light of McClanahan.

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