{ "id": 731644, "name": "LAGUNA INDUSTRIES, INC., and Raytheon Services Company, Plaintiffs-Appellees, v. NEW MEXICO TAXATION AND REVENUE DEPARTMENT, Defendant-Appellant", "name_abbreviation": "Laguna Industries, Inc. v. New Mexico Taxation & Revenue Department", "decision_date": "1992-10-05", "docket_number": "No. 12635", "first_page": "644", "last_page": "658", "citations": [ { "type": "official", "cite": "114 N.M. 644" }, { "type": "parallel", "cite": "845 P.2d 167" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "494 U.S. 1055", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4864, 5411, 4850, 4883, 5235, 5337, 4764, 4862 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/1055-03", "/us/494/1055-04", "/us/494/1055-05", "/us/494/1055-06", "/us/494/1055-01", "/us/494/1055-02", "/us/494/1055-08", "/us/494/1055-07" ] }, { "cite": "170 Ariz. 560", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 1549761 ], "weight": 3, "pin_cites": [ { "page": "1193" } ], "opinion_index": 0, "case_paths": [ "/ariz/170/0560-01" ] }, { "cite": "105 N.M. 763", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1598931 ], "weight": 4, "pin_cites": [ { "page": "769" }, { "page": "550", "parenthetical": "where our supreme court did not address issue, precedent not controlling on this court" } ], "opinion_index": 0, "case_paths": [ "/nm/105/0763-01" ] }, { "cite": "84 N.M. 717", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2766048 ], "weight": 2, "year": 1973, "pin_cites": [ { "parenthetical": "court of appeals must follow supreme court precedent" }, { "parenthetical": "court of appeals must follow supreme court precedent" } ], "opinion_index": 0, "case_paths": [ "/nm/84/0717-01" ] }, { "cite": "89 N.M. 265", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2862492 ], "weight": 4, "pin_cites": [ { "page": "268" }, { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/nm/89/0265-01" ] }, { "cite": "96 N.M. 296", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577280 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/nm/96/0296-01" ] }, { "cite": "625 F.2d 967", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1283148 ], "weight": 3, "pin_cites": [ { "page": "971" }, { "page": "990" } ], "opinion_index": 0, "case_paths": [ "/f2d/625/0967-01" ] }, { "cite": "107 N.M. 399", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597129 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/nm/107/0399-01" ] }, { "cite": "458 U.S. 832", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 636649 ], "weight": 3, "year": 1982, "opinion_index": 0, "case_paths": [ "/us/458/0832-01" ] }, { "cite": "25 C.F.R. \u00a7 141.3", "category": "laws:admin_compilation", "reporter": "C.F.R.", "pin_cites": [ { "page": "(1)" } ], "opinion_index": 0 }, { "cite": "25 C.F.R. \u00a7 141.5", "category": "laws:admin_compilation", "reporter": "C.F.R.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "25 C.F.R. \u00a7 141.1", "category": "laws:admin_compilation", "reporter": "C.F.R.", "opinion_index": 0 }, { "cite": "25 C.F.R. \u00a7 140.5", "category": "laws:admin_compilation", "reporter": "C.F.R.", "weight": 4, "pin_cites": [ { "page": "(a)(6)", "parenthetical": "emphasis added" }, { "page": "(a)" }, { "page": "(a)(6)" } ], "opinion_index": 0 }, { "cite": "106 N.M. 622", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 707366 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "625", "parenthetical": "stating that \"courts should accord deference to the interpretation given to a statute by the agency to which it is addressed.\"" }, { "page": "920", "parenthetical": "stating that \"courts should accord deference to the interpretation given to a statute by the agency to which it is addressed.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/106/0622-01" ] }, { "cite": "425 U.S. 649", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181072 ], "weight": 3, "year": 1976, "opinion_index": 0, "case_paths": [ "/us/425/0649-01" ] }, { "cite": "8 L.Ed. 483", "category": "reporters:federal", "reporter": "L. 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Ct.", "case_ids": [ 6224802 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "687-88" }, { "page": "697" } ], "opinion_index": 1, "case_paths": [ "/us/502/0251-01" ] }, { "cite": "2 Wyo. 8", "category": "reporters:state", "reporter": "Wyo.", "case_ids": [ 8516097 ], "year": 1878, "pin_cites": [ { "parenthetical": "county lacked authority to tax property and trade stock of federally licensed trader" } ], "opinion_index": 1, "case_paths": [ "/wyo/2/0008-01" ] }, { "cite": "585 N.Y.S.2d 847", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1992, "opinion_index": 1 }, { "cite": "181 A.D.2d 210", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 1076765 ], "year": 1992, "opinion_index": 1, "case_paths": [ "/ad2d/181/0210-01" ] }, { "cite": "170 Ariz. 560", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 1549761 ], "weight": 2, "pin_cites": [ { "page": "1193" } ], "opinion_index": 1, "case_paths": [ "/ariz/170/0560-01" ] }, { "cite": "96 N.M. 296", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577280 ], "weight": 2, "year": 1981, "opinion_index": 1, "case_paths": [ "/nm/96/0296-01" ] }, { "cite": "625 F.2d 967", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1283148 ], "weight": 3, "pin_cites": [ { "page": "969" }, { "page": "990" }, { "page": "990" } ], "opinion_index": 1, "case_paths": [ "/f2d/625/0967-01" ] }, { "cite": "107 N.M. 399", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597129 ], "weight": 2, "year": 1988, "opinion_index": 1, "case_paths": [ "/nm/107/0399-01" ] }, { "cite": "259 U.S. 129", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 423316 ], "weight": 3, "year": 1922, "opinion_index": 1, "case_paths": [ "/us/259/0129-01" ] }, { "cite": "256 U.S. 524", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3680214 ], "weight": 3, "year": 1921, "opinion_index": 1, "case_paths": [ "/us/256/0524-01" ] }, { "cite": "18 F.Cas. 506", "category": "reporters:federal", "reporter": "F. Cas.", "case_ids": [ 12118472 ], "pin_cites": [ { "page": "507" } ], "opinion_index": 1, "case_paths": [ "/f-cas/18/0506-01" ] }, { "cite": "634 F.2d 401", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1304210 ], "opinion_index": 1, "case_paths": [ "/f2d/634/0401-01" ] }, { "cite": "488 F.Supp. 496", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4142954 ], "pin_cites": [ { "page": "499" } ], "opinion_index": 1, "case_paths": [ "/f-supp/488/0496-01" ] }, { "cite": "448 U.S. 160", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1787663 ], "weight": 4, "year": 1980, "pin_cites": [ { "page": "166" }, { "page": "2596" } ], "opinion_index": 1, "case_paths": [ "/us/448/0160-01" ] }, { "cite": "380 U.S. 685", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1524780 ], "weight": 4, "year": 1965, "pin_cites": [ { "page": "689-91" }, { "page": "1245-46" } ], "opinion_index": 1, "case_paths": [ "/us/380/0685-01" ] }, { "cite": "25 U.S.C. \u00a7\u00a7 261", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 1 } ], "analysis": { "cardinality": 2000, "char_count": 57155, "ocr_confidence": 0.765, "pagerank": { "raw": 1.1701016199982474e-07, "percentile": 0.5861708539764288 }, "sha256": "8af740c97490658deb768f1e67e3dc6c4f86b657ad57df47cdcd97dd08911718", "simhash": "1:3a5f6f86e63e1e7b", "word_count": 9331 }, "last_updated": "2023-07-14T15:11:13.314573+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HARTZ, J., concurs.", "BLACK, J., dissents." ], "parties": [ "LAGUNA INDUSTRIES, INC., and Raytheon Services Company, Plaintiffs-Appellees, v. NEW MEXICO TAXATION AND REVENUE DEPARTMENT, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nAPODACA, Judge.\nThe New Mexico Taxation and Revenue Department (the Department) appeals from an order of the district court granting summary judgment to Raytheon Services Industry (Raytheon) and Laguna Industries, Inc., (Laguna) and denying the Department\u2019s own motion for summary judgment. The order required the Department to refund gross receipts taxes paid by Raytheon on services performed for Laguna on the Laguna Pueblo (the Pueblo), an Indian reservation. The primary issue on appeal is whether the Indian trader statutes, 25 U.S.C. \u00a7\u00a7 261 to 264 (1988), preempt the Department\u2019s authority to impose a gross receipts tax on Raytheon. Under a second issue, in support of its argument against the district court\u2019s denial of the Department\u2019s motion for summary judgment, the Department argues that no other federal statutes preempt state taxation on the services rendered.\nThe United States Supreme Court, in Warren Trading Post Co. v. Arizona Tax Commission, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165 (1965), and Central Machinery Co. v. Arizona State Tax Commission, 448 U.S. 160, 100 S.Ct. 2592, 65 L.Ed.2d 684 (1980), held that the Indian trader statutes preempted a similar tax in connection with transactions involving a sale of goods. We hold that the Indian trader statutes govern trade in services as well as trade in goods. The Department concedes that if we so interpret those statutes, the holdings of Warren Trading Post and Central Machinery compel the conclusion that the Indian trader statutes preempt the taxes imposed by the Department on Raytheon. Because we conclude that the statutes govern trade in services, it becomes unnecessary for us to address the Department\u2019s second issue to determine whether other federal legislation has preempted the Department\u2019s authority to impose the tax. We affirm the district court\u2019s decision.\nBACKGROUND\n1. Facts.\nLaguna Industries, Inc., is a New Mexico corporation wholly owned by the Pueblo of Laguna, an Indian tribe organized under the Indian Reorganization Act, 25 U.S.C. \u00a7 476 (1988 & Supp.1992). In the early 1980s, the Pueblo sought to invest capital accumulated from uranium mining operations and to find employment for tribal members who were unemployed because of the decline of the uranium industry. To accomplish this purpose, the Pueblo incorporated Laguna with the goal of obtaining federal contracts from the Department of Defense (DOD). To assure DOD that Laguna would be competent to handle these contracts, Laguna contracted with Raytheon, a major defense contractor, for technical, training, and management assistance.\nFrom the Pueblo itself, Laguna received capital investment, a line of credit, and the use of a Pueblo-owned building. Laguna also received assistance, including grants, from various federal programs, including the Administration for Native Americans (ANA) within the Health and Human Services Department, the Small Business Administration (SBA), DOD, the Bureau of Indian Affairs (BIA), and Congress.\nSome of the funds for the establishment of Laguna came from an ANA economic development grant of $655,140 to the Pueblo, conditioned on the Pueblo\u2019s receiving a DOD contract under the Buy Indian Program. Other funds were a BIA grant of $500,000, matching funds from the Pueblo of $900,000, a line of credit of $1,500,000 from the Pueblo, a loan from the Pueblo of $127,000, a Pueblo-owned building valued at $1,600,000, and federal funding under the Job Training Partnership Act, 29 U.S.C. \u00a7\u00a7 1501 to 1781 (1988) (JTPA), that totalled $147,344.\nFor more than two years, Raytheon employees worked with Laguna employees on the reservation to provide technical assistance in setting up and operating the business and ensuring quality work. Laguna paid Raytheon from the ANA grant, the Pueblo line of credit and Laguna\u2019s operating profits, the BIA grant, and the JTPA funding. The Raytheon employees lived in Albuquerque and commuted daily to the reservation. Raytheon paid gross receipts tax on its receipts from the contract with Laguna and passed on the cost of those taxes to Laguna. It assigned its right to any tax refund to Laguna.\nNo New Mexico governmental agency made any capital contribution to Laguna or contributed any funds to pay Raytheon. However, most Laguna employees were educated in New Mexico schools. Raytheon employees lived in Albuquerque and used the roads and other services there. State professional licensing boards ensured the competency of the architects and builders of the Laguna building, the banks and insurance companies Laguna used, and the attorneys handling the litigation.\n2. Procedural history.\nIn 1988, Raytheon and Laguna filed a claim for the refund of $53,750.86 paid by Raytheon to the Department from March 1986 through May 1988. The Department took no action on the claim within 120 days. Raytheon and Laguna then filed an action in district court pursuant to NMSA 1978, Section 7-l-26(A) (Repl.Pamp.1990), challenging the Department\u2019s failure to refund the tax. The parties filed cross motions for summary judgment. The district court granted Raytheon and Laguna\u2019s motion and denied the Department\u2019s motion, ruling that, as a matter of law, the sale of services to the tribe was \u201ctrading\u201d under the Indian trader statutes. On that basis, the district court concluded that the Indian trader statutes preempted the state\u2019s authority to impose the tax on Raytheon and ordered the state to refund the taxes paid, together with interest and costs.\n3. The state tax.\nThe Gross Receipts and Compensating Tax Act, NMSA 1978, \u00a7\u00a7 7-9-1 to -82 (Repl.Pamp.1990 & Supp.1991), provides for the imposition of a gross receipts tax on any person engaging in business in this state based upon the privilege of engaging in business within New Mexico. \u00a7 7-9-4(A). The tax is imposed on the sale of services performed in New Mexico. \u00a7 7-9-3(F).\n4. The Indian trader statutes.\nThe Indian trader statutes, 25 U.S.C. \u00a7\u00a7 261 to 264, state:\n\u00a7 261. Power to appoint traders with Indians\nThe Commissioner of Indian Affairs shall have the sole power and authority to appoint traders to the Indian tribes and to make such rules and regulations as he may deem just and proper specifying the kind and quantity of goods and the prices at which such goods shall be sold to the Indians.\n\u00a7 262. Persons permitted to trade with Indians\nAny person desiring to trade with the Indians on any Indian reservation shall, upon establishing the fact, to the satisfaction of the Commissioner of Indian Affairs, that he is a proper person to engage in such trade, be permitted to do so under such rules and regulations as the Commissioner of Indian Affairs may prescribe for the protection of said Indians.\n\u00a7 263. Prohibition of trade by President\nThe President is authorized, whenever in his opinion the public interest may require the same, to prohibit the introduction of goods, or of any particular article, into the country belonging to any Indian tribe, and to direct all licenses to trade with such tribe to be revoked, and all applications therefor to be rejected. No trader to any other tribe shall, so long as such prohibition may continue, trade with any Indians of or for the tribe against which such prohibition is issued. \u00a7 264. Trading without license; white persons as clerks\nAny person other than an Indian of the full blood who shall attempt to reside in the Indian country, or on any Indian reservation, as a trader, or to introduce goods, or to trade therein, without such license, shall forfeit all merchandise offered for sale to the Indians or found in his possession, and shall moreover be liable to a penalty of $500: Provided, That this section shall not apply to any person residing among or trading with the Choctaws, Cherokees, Chickasaws, Creeks, or Semin\u00f3les, commonly called the Five Civilized Tribes, residing in said Indian country, and belonging to the Union Agency therein: And provided further, That no white person shall be employed as a clerk by any Indian trader, except such as trade with said Five Civilized Tribes, unless first licensed so to do by the Commissioner of Indian Affairs, under and in conformity to regulations to be established by the Secretary of the Interior.\nThe United States Supreme Court examined the history of the Indian trader statutes in Warren Trading Post. The Court stated that \u201cfrom the very first days of our Government, the Federal Government * * * had exercised through statutes and treaties a sweeping and dominant control over persons who wished to trade with Indians and Indian tribes.\u201d Warren Trading Post, 380 U.S. at 686-87, 85 S.Ct. at 1243-44 (footnotes omitted). The Court continued, stating that \u201c[s]uch comprehensive federal regulation of Indian traders has continued from that day to this.\u201d Id. at 688, 85 S.Ct. at 1244. The Supreme Court stated that the Commissioner of Indian Affairs, acting under the authority granted to him under Sections 261 and 262, had:\npromulgated detailed regulations prescribing in the most minute fashion who may qualify to be a trader and how he shall be licensed; penalties for acting as a trader without a license; conditions under which government employees may trade with Indians; articles that cannot be sold to Indians; and conduct forbidden on a licensed trader\u2019s premises. He has ordered that detailed business records be kept and that government officials be allowed to inspect these records to make sure that prices charged are fair and reasonable; that traders pay Indians in money; that bonds be executed by proposed licensees; and that the governing body of an Indian reservation may assess from a trader \u201csuch fees, etc., as it may deem appropriate.\u201d\nId. at 689-90, 85 S.Ct. at 1245 (footnotes omitted). Present regulations can be found at 25 C.F.R. Parts 140 and 141 (1991). \u201cThese apparently all-inclusive regulations and the statutes authorizing them would seem in themselves sufficient to show that Congress has taken the business of Indian trading on reservations so fully in hand that no room remains for state laws imposing additional burdens upon traders.\u201d Warren Trading Post, 380 U.S. at 690, 85 S.Ct. at 1245. Later, in Central Machin ery, the Supreme Court expanded upon the holding of Warren Trading Post, concluding that, in enacting the Indian trader statutes and the regulations under them, \u201cthe Federal Government has comprehensively regulated trade with Indians to prevent \u2018fraud and imposition\u2019 upon them.\u201d Central Mach. Co., 448 U.S. at 163, 100 S.Ct. at 2594-95. Central Machinery held that it was the existence of the Indian trader statutes themselves, and not their administration, that preempted the imposition of the tax. Id. at 165, 100 S.Ct. at 2596. Thus, although the trader was not licensed to engage in trading with Indians, as required by the Indian trader statutes and the regulations under them, the Court held that imposition of the tax was nonetheless preempted. Id. at 164-65, 100 S.Ct. at 2595-96. The Court also considered it irrelevant that the sale was made to a tribal enterprise, as occurred in this appeal, rather than directly to the tribe itself. Id. at 164 n. 3, 100 S.Ct. at 2595 n. 3.\nDISCUSSION\nThe Department concedes that the Supreme Court\u2019s decisions in Warren Trading Post and Central Machinery are still good law and that, under them, the Indian trader statutes preempt state taxes on activities within the scope of the statutes. We should also note that the Department, in arguing its second issue (which, as we previously noted, we need not address), although contending that Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 109 S.Ct. 1698, 104 L.Ed.2d 209, (1989), marks \u201ca significant change of direction of the Supreme Court on its preemption analysis,\u201d concedes that that recent case did not overrule Warren Trading Post or Central Machinery. Additionally, Cotton Petroleum did not concern itself with the Indian trader statutes.\nThe dissent maintains that the district court\u2019s decision was not proper in a summary judgment posture. Summary judgment is appropriate when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. SCRA 1986, 1-056(C) (Repl.1992). Under the facts of this appeal, the facts are not in dispute; the issue is the proper interpretation of the relevant statutes. Interpretation of a statute is a question of law. See Carpenter v. Arkansas Best Corp., 112 N.M. 1, 2, 810 P.2d 1221, 1222 (1991). Additionally, the legal effect of undisputed facts is a question of law. Westgate Fami lies v. County Clerk, 100 N.M. 146, 148, 667 P.2d 453, 455 (1983). Any necessary balancing, whatever its outcome, could also properly be performed in a summary judgment posture. See Hoopa Valley Tribe v. Nevins, 881 F.2d 657 (9th Cir.1989) (affirming trial court\u2019s grant of summary judgment and decision that California\u2019s tax on tribe\u2019s timber revenues was preempted), cert. denied, 494 U.S. 1055, 110 S.Ct. 1523, 108 L.Ed.2d 763 (1990). Thus, the district court properly decided the case in a summary judgment proceeding. Id.\nThe precise issue before this court is whether a sale of services, in contrast to a sale of goods, to an Indian enterprise on an Indian reservation is within the scope of the Indian trader statutes. At this point, we consider it beneficial to quote the Department\u2019s own words in framing the issue before us:\nThere is no question that the Indian trader statutes preempt state taxes on covered activities. The issue here is' whether coverage of those statutes historically and currently extends beyond the sale of goods to include services. The issue is not whether those statutes should cover services. That is a legislative decision. The question is whether Congress in enacting those statutes in 1834 and 1876 intended them to apply to anything but the sale of goods. A secondary issue is whether the Secretary of the Interior, by promulgating a particular regulation \u2014 25 C.F.R. 140.5 \u2014 has interpreted the Indian trader statutes to permit regulation of the sale of services to Indians or> reservations by licensed Indian traders, and, if so, whether such interpretation is permissible.\nSpecifically, the Department\u2019s argument is that, because the Indian trader statutes do not specifically include the word \u201cservices,\u201d the word \u201ctrade,\u201d as used in the Indian trader statutes, refers only to trade in goods and not to trade in services. We disagree.\nThe United States Supreme Court has stated that the Indian trader statutes must be given \u201c \u2018a sweep as broad as [their] language, * * * and interpreted] * * * in light of the intent of the Congress that enacted them.\u2019 \u201d Central Mach. Co., 448 U.S. at 166, 100 S.Ct. at 2596. In that case, the court held that imposition of the state tax was preempted by the Indian trader statutes even though the seller was not a licensed Indian trader and did not have a permanent place of business on the reservation. Id. at 165, 100 S.Ct. at 2596.\nGiven the purpose of the Indian trader statutes \u2014 \u201cto prevent \u2018fraud and imposition\u2019 upon [the Indians],\u201d Central Mach. Co., 448 U.S. at 163, 100 S.Ct. at 2594-95\u2014 there is little reason to distinguish between the sale of goods and the sale of services. The potential for fraud and imposition in the sale of services is perhaps even greater than the potential provided by the sale of goods. Is it, however, too great a stretch in the meaning of \u201ctrade\u201d to include the purchase and sale of services? The interpretation of the word \u201ctrade\u201d as used in the Indian trader statutes is apparently a matter of first impression in reported court decisions. But cf. United States ex rel. Keith v. Sioux Nation Shopping Ctr., 488 F.Supp. 496, 499 (D.S.D.) (district court notes that it has previously granted motions for summary judgment on the basis that 25 U.S.C. Section 264 \u201capplies only to those who deal in goods.\u201d), aff'd, 634 F.2d 401 (8th Cir.1980).\nThe Department, noting that the origins of the Indian trader statutes lie in the early years of our nation, contends that the words \u201ctrade\u201d and \u201ctrader\u201d have consistently been used in these statutes to refer only to trade in goods. It points to provisions in these acts that require the forfeiture of goods by traders who violate the statute and provisions that permit the federal government to regulate the prices of goods. The Department contends that in the late 1700s and 1800s, when these statutes were enacted, \u201c[t]he economy was based on trade in goods, not the provision of services, as it is today. The era of the service economy was not to come for over a century.\u201d\nIn further support of its position, the Department cites a portion of the definition contained in Webster\u2019s Third New International Dictionary (1976) (Webster\u2019s), which defines the noun \u201ctrade\u201d as \u201cthe business of buying and selling or bartering commodities: exchange of goods for convenience or profit\u201d and defines the verb \u201ctrade\u201d as \u201cto give in exchange for another commodity.\u201d Id. at 2421. To establish the meaning at the time of enactment of the early Indian trader statutes, the Department observes that the dictionary cites usage of the verb \u201ctrade\u201d by James Fenimore Cooper as follows: \u201c[T]he white men who penetrated to the * * * wilds were always ready * * * to trade rifles and watches.\u201d\nWe are not convinced. Raytheon and Laguna cite a study by the National Bureau of Economic Research showing that services constituted 32% of the gross national product as long ago as 1839. National Bureau of Economic Research, Output, Employment and Productivity in the United States after 1800 (New York, 1966). Other dictionary definitions include \u201cthe business one practices or the work in which one engages regularly: one\u2019s calling: gainful employment: OCCUPATION,\u201d and references are made to a variety of occupations, including doctors, carpenters, and writers, all of whom provide services, as well as to merchants. Webster\u2019s, supra, at 2421. More importantly, the word, \u201ctrade\u201d had a broader meaning than simply transactions in goods when used in contexts similar to the Indian trader statutes.\nCourts that have considered the meaning of the word \u201ctrade\u201d have regularly rejected the narrow definition proposed by the state. In The Nymph, 18 F.Cas. 506 (C.C.D.Me.1834) (No. 10,388), Supreme Court Justice Story, sitting as a circuit justice, interpreting the word \u201ctrade\u201d as used in the coasting and fishery act of 1793, rejected a definition limiting \u201ctrade\u201d to \u201ctraffic in goods, or buying and selling in commerce or exchange\u201d in favor of a broader definition. He wrote:\n[T]he word \u201ctrade\u201d is often, and indeed generally, used in a broader sense, as equivalent to occupation, employment, or business, whether manual or mercantile * * * Thus, we constantly speak of the art, mystery, or trade of a housewright, a shipwright, a tailor, a blacksmith, and a shoe-maker, though some of these may be, and sometimes are, carried on without buying or selling goods.\nId. at 507.\nThe Supreme Court, in United States v. Hutto, 256 U.S. 524, 41 S.Ct. 541, 65 L.Ed. 1073 (1921), and Ewert v. Bluejacket, 259 U.S. 129, 42 S.Ct. 442, 66 L.Ed. 858 (1922), considered a statute forbidding persons involved in Indian affairs from having \u201cany interest or concern in any trade with the Indians.\u201d Ewert, 259 U.S. at 135, 42 S.Ct. at 443. In Hutto, the charges included involving Indians in loan transactions, as well as transactions involving the sale of land, automobiles, and other commodities. The Supreme Court did not distinguish among the charges, indicating that it believed the prohibition against trade with the Indians was broad enough to include the service of lending money to the Indians. In Ewert, the Supreme Court rejected the argument that:\nthe \u201ctrade with the Indians\u201d in which persons employed in Indian affairs were prohibited by the section from engaging must be confined to trade with [Indians] when conducted as a business or occupation \u2014 to merchants or dealers supplying the Indians with the necessities or conveniences of life. Having regard to the purpose of the statute [to protect the Indians], we think that no such narrow interpretation can be given to the section.\nEwert, 259 U.S. at 137, 42 S.Ct. at 444.\nSimilarly, in Jordan v. Tashiro, 278 U.S. 123, 49 S.Ct. 47, 73 L.Ed. 214 (1928), the Supreme Court considered the definition of the word \u201ctrade\u201d as used in a 1911 treaty that granted Japanese citizens the right to \u201ccarry on trade\u201d within the United States. California contended that this provision did not allow a Japanese citizen to operate a hospital as a business enterprise and argued that \u201ctrade\u201d was limited to the purchase, sale, or exchange of goods and commodities. The Supreme Court rejected this argument, stating:\nWhile in a narrow and restricted sense the terms \u201ccommerce,\u201d or \u201ccommercial,\u201d and \u201ctrade\u201d may be limited to the purchase and sale or exchange of goods and commodities, they may connote, as well, other occupations and other recognized forms of business enterprise which do not necessarily involve trading in merchandise. And although commerce includes traffic in this narrower sense, for more than a century it has been judicially recognized that in a broad sense it embraces every phase of commercial and business activity and intercourse.\nId. at 127-28, 49 S.Ct. at 48 (citations omitted). The Court noted that \u201ctrade\u201d had been interpreted as including carrying on a business as a pawnbroker. Id. at 128, 49 S.Ct. at 48-49. But see Clarke v. Deckebach, 274 U.S. 392, 395, 47 S.Ct. 630, 631, 71 L.Ed. 1115 (1927) (treaty protection of \u201cmerchants and traders\u201d did not protect owner of poolroom). In Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 52 S.Ct. 607, 76 L.Ed. 1204 (1932), the Supreme Court interpreted the word \u201ctrade,\u201d as used in the Sherman Act, as including the provision of cleaning and dyeing services.\nFurther support for a broad definition of \u201ctrade\u201d can be found in the opinions in Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832). Samuel Worcester had been convicted of violating a Georgia law prohibiting persons from residing within the Cherokee Nation without a state permit. Worcester\u2019s crime was living with the Indians as a missionary, by authority of the President of the United States. He challenged his conviction on the grounds that the Georgia law violated the United States Constitution, treaties entered into between the United States and the Cherokee Indians, and the Indian trader act of 1802. Although Justice Marshall did not refer to any specific provision of the 1802 law that was violated by the Georgia statute, he did write that the Georgia statutes were in \u201chostility with the acts of congress for regulating this intercourse [with the Indians].\u201d Id. 31 U.S. (6 Pet.) at 562. In a concurring opinion, Justice McLean specifically stated that the Georgia laws were repugnant to the 1802 act. Id. at 578. Although Justice McLean may have been relying on Section 3 of the 1802 act (which required persons entering Indian Country to obtain a passport from a state governor, military officer, or other person designated by the President), it appears that he relied on Section 7, which prohibited any person to reside with the Indians as a trader without a license from the federal government. The opinion focuses on Worcester\u2019s residence with the Indians and the regulation of trade by the 1802 statute, not the mere passage of Worcester into Indian Country. For example, Justice McLean wrote:\nThe restrictions imposed by the law of 1802, come strictly within the power to regulate trade; not as an incident, but as a part of the principal power. It is the same power, and is conferred in the same words, that has often been exercised in regulating trade with foreign countries * * * *\nIn the regulation of commerce with the Indians, congress have exercised a more limited power than has been exercised in reference to foreign countries. The law acts upon our own citizens, and not upon the Indians, the same as the laws referred to act upon our own citizens in their foreign commercial intercourse.\nId. at 592. At the least, the opinions in Worcester establish that the purpose of the 1802 act was to control in the broadest sense all intercourse with the Indians in their territory. Such a purpose suggests that the words \u201ctrade\u201d and \u201ctrader\u201d in the statute were used in their broadest senses.\nThe language of the 1834 Indian trader statute further supports such a construction. Section 5 reads:\nAnd be it further enacted, That no license to trade with the Indians shall be granted to any persons except citizens of the United States: Provided, That the President shall be authorized to allow the employment of foreign boatmen and interpreters, under such regulations as he may prescribe.\nThe language implies that boatmen and interpreters \u2014 who perform services \u2014 needed a \u201clicense to trade\u201d under the act. Even if the proviso in this section was designed primarily to permit foreign boatmen and interpreters to be employed by those who traded in goods with the Indians, the fact that every employee of a trader (even though not employed to engage personally in trading goods with the Indians) needed a trader\u2019s license again shows, at the least, that \u201ctrade\u201d was to be given a broad interpretation.\nAdditionally, the United States Interior Department has interpreted the Indian trader statutes in a manner that supports the district court\u2019s interpretation of \u201ctrade.\u201d The Secretary of the Interior\u2019s interpretation of a statute within his regulatory purview is entitled to deference by the courts. Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. 649, 96 S.Ct. 1793, 48 L.Ed.2d 274 (1976); see also Public Serv. Co. v. New Mexico Pub. Serv. Comm\u2019n, 106 N.M. 622, 625, 747 P.2d 917, 920 (1987) (stating that \u201ccourts should accord deference to the interpretation given to a statute by the agency to which it is addressed.\u201d).\nThe regulations promulgated by the Interior Department to implement the Indian trader statutes are 25 C.F.R. Parts 140 and 141. Part 140, entitled \u201cLicensed Indian Traders,\u201d defines \u201c[tjrading\u201d as \u201cbuying, selling, bartering, renting, leasing, permitting and any other transaction involving the acquisition of property or services. \u201d 25 C.F.R. \u00a7 140.5(a)(6) (emphasis added). The Department argues that this definition does not reflect the Interior Department\u2019s interpretation of the Indian trader statutes because it is contained in a section titled \u201cBureau of Indian Affairs employees not to contract or trade with Indians except in certain cases.\u201d 25 C.F.R. \u00a7 140.5. Thus, the Department contends, definitions contained in the section must only refer to that section, and not to the following sections that specifically pertain to Indian traders. We disagree.\nThe regulation states that the definitions apply to \u201cthis part.\u201d 25 C.F.R. \u00a7 140.5(a). In arguing that the definitions contained in Section 140.5(a) are not intended to apply to all of Part 140, the Department asks us to ignore the plain language of the regulation. In any event, even if the definitions in Section 140.5 were intended to apply only to regulations governing BIA employees, there is no reason to believe that a different definition would be appropriate in construing the Indian trader statutes. The restrictions on dealings between Indians and BIA personnel have a common ancestry with the Indian trader statutes. The original restrictions appear in companion legislation to the 1834 Indian trader and intercourse act. These two statutes were \u201cintimately connected\u201d and \u201cparts of a system.\u201d H.R.Rep. No. 474, 23d Cong., 1st Sess. 1 (1834). It is natural to assume that the word \u201ctrade\u201d should bear the same meaning in those statutes and their progeny. The 1834 restrictions on trading between government personnel and Indians have long been interpreted as including service transactions. See S.Rep. No. 372, 76th Cong., 1st Sess. (1939).\nFurthermore, Part 141, which contains the regulations promulgated by the Interi- or Department regarding business practices on the Navajo, Hopi, and Zuni reservations, similarly demonstrates that federal agency's interpretation of the Indian trader statutes as allowing the agency to regulate services provided on the reservations. Part 141 is intended \u201cto prescribe rules for the regulation of reservation businesses for the protection of Indian consumers on the Navajo, Hopi and Zuni Reservations as required by 25 U.S.C. 261-64.\u201d 25 C.F.R. \u00a7 141.1. Although the terms \u201ctrade\u201d and \u201ctrading\u201d are not specifically defined, the scope of the regulations is clearly intended to include businesses that provide services. The regulations prohibit a person from owning or leasing a \u201creservation business\u201d without a license. 25 C.F.R. \u00a7 141.5(a). A \u201creservation business\u201d is defined to include persons engaged \u201cin the sale or purchase of goods or services or in consumer credit transactions.\u201d 25 C.F.R. \u00a7 141.3(1). Clearly, the Interior Department views its authority to issue licenses to \u201creservation businesses\u201d as deriving from its authority to license \u201ctraders.\u201d It follows that the Interior Department views the word \u201ctraders\u201d within the meaning of the Indian trader statutes to encompass those dealing in services.\nThese authorities persuade us that the term \u201ctrade\u201d as used in the Indian trader statutes should be broadly defined to include trade in services. Like the statute discussed in Ewert, the Indian trader statutes are intended to protect the Indians from fraud. See Central Mach. Co., 448 U.S. at 163, 100 S.Ct. at 2594-95. Additionally, for more than 150 years, the Supreme Court and the federal courts have refused to limit the definition of \u201ctrade\u201d to trade in goods. See, e.g., Jordan v. Tashiro; The Nymph. The agency responsible for administering the Indian trader statutes has interpreted the statutes as allowing for the regulation of services. See 25 C.F.R. \u00a7 140.5(a)(6). Finally, the Supreme Court has stated that the Indian trader statutes should be broadly construed. Central Mach. Co., 448 U.S. at 167, 100 S.Ct. at 2597.\nThe Department also relies on Ramah Navajo School Board, Inc. v. Bureau of Revenue, 458 U.S. 832, 102 S.Ct. 3394, 73 L.Ed.2d 1174 (1982), and Rodey, Dickason, Sloan, Akin & Robb, P.A. v. Revenue Division, 107 N.M. 399, 759 P.2d 186 (1988), to argue for a restrictive interpretation of the Indian trader statutes. Once again, we quote verbatim from the Department\u2019s argument contained in its brief:\nThe issue of taxing services sold to tribal entities on reservations has, indeed, been litigated, but without ever referring to the Indian trader statutes. In Ramah, New Mexico imposed its gross receipts tax on the services of constructing a building on the Navajo reservation. The Supreme Court ultimately ruled that a federal statute concerning Indian education preempted the state tax. No mention was ever made of the Indian trader statutes. Why not? Warren Trading Post and Central Machinery had already definitively held that any activity which came within the scope of the Indian trader statute could not be subjected to state tax. If the Indian trader statutes indeed extended to services, the decision in Ramah would have been unanimous and one sentence long: \u201cThe case is controlled by Warren Trading Post and Central Machinery.\u201d Instead, the Court completely ignored the Indian trader statutes and decided the case on the basis of other statutes. In [Rodey ], the issue was the provision of legal services to the Navajo tribe, performed partially on and partially off the reservation. Again, in arguing the issue of preemption to this court, Rodey placed no reliance on the Indian trader statutes as the federal law that preempted the provision of services to tribes. The only relevant federal statutes discussed by the courts in Rodey were those dealing with the employment of claims counsel.\nIn posing its argument, we believe that the Department has provided the basis for our determination that its reliance on Ramah and Rodey is misplaced. In neither case did any of the parties rely on the Indian trader statutes. Instead, other federal legislation was at issue and was ultimately dispositive of the issues raised by the parties. The failure of these decisions specifically to address the issue of whether the sale of services was within the scope of the Indian trader statutes is, in our judgment, a weak basis for determining that services are thus excluded. In addition, Rodey specifically restricted itself to services provided off of the reservation; therefore, the Indian trader statutes would have no application.\nWe recognize that previous opinions of the Tenth Circuit Court of Appeals and New Mexico courts have held that New Mexico\u2019s gross receipts tax may be imposed on a non-Indian performing services on Indian lands. See Mescalero Apache Tribe v. O\u2019Cheskey, 625 F.2d 967 (10th Cir.1980); Tiffany Constr. Co. v. Bureau of Revenue, 96 N.M. 296, 629 P.2d 1225 (1981); G.M. Shupe, Inc. v. Bureau of Revenue, 89 N.M. 265, 550 P.2d 277 (Ct.App.1976). However, for the reasons that follow, we do not consider these particular opinions controlling.\nG.M. Shupe rejected the applicability of the Indian trader statutes solely on the ground that the taxpayer was not an Indian trader. G.M. Shupe, 89 N.M. at 268, 550 P.2d at 280. The court did not explain, however, why the contractor was not an Indian trader. One obvious reason was that the taxpayer\u2019s contract was with the federal Bureau of Reclamation, not an Indian entity. G.M. Shupe does not stand for the proposition that services are not covered by the Indian trader statutes.\nTiffany may suggest that services rendered to a tribe on tribal land by a non-' Indian contractor are subject to New Mexico\u2019s gross receipts tax. See Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973) (court of appeals must follow supreme court precedent). However, this court may consider whether supreme court precedent is applicable. Walker v. Maruffi, 105 N.M. 763, 737 P.2d 544 (Ct.App.1987). We hold that Tiffany is inapplicable because that opinion did not discuss whether the Indian trader statutes apply to service providers on the reservations.\nAs for Mescalero Apache Tribe, although the opinion on rehearing in that case might be read as stating that the Indian trader statutes do not govern trade in services, that opinion certainly offers no reasoning in support of that conclusion. We therefore see no reason to defer to that opinion on the same issue before us.\nFor these reasons, we determine that G.M. Shupe, Tiffany, and Mescalero Apache Tribe do not compel reversal of the district court\u2019s decision in this case. Cf. Walker, 105 N.M. at 769, 737 P.2d at 550 (where our supreme court did not address issue, precedent not controlling on this court).\nCONCLUSION\nWe determine that the word \u201ctrade\u201d as used in the Indian trader statutes includes trade in services. Therefore, as conceded by the State, the preemption analysis applied in Warren Trading Post and Central Machinery applies to the transaction between Laguna and Raytheon in this appeal. Consequently, We hold that the Department\u2019s taxation of services rendered to the tribal enterprise on the reservation was preempted by federal law. We therefore affirm the district court's decision.\nIT IS SO ORDERED.\nHARTZ, J., concurs.\nBLACK, J., dissents.\n. The dissent agrees with the recent observation of the Arizona Court of Appeals that \"the holding in Warren Trading Post did not establish that federally licensed Indian traders could not be subjected to state tax.\u201d State ex rel. Dept. of Rev. v. Dillon, 170 Ariz. 560, 826 P.2d 1186, 1193 (Ct.App.1991), review den., (Ariz.1992). However, the dissent ignores the sentence immediately following this statement, in which the Arizona Court of Appeals recognized that, under Warren Trading Post, \"state taxation of Indian traders is preempted only to the extent of their receipts from reservations sales to reservation Indians.\" Id. Dillon involved a tax imposed on the trader\u2019s sales to non-Indians, thereby making Warren Trading Post and Central Machinery inapplicable. In contrast, the facts of this appeal involve a tax imposed on the receipts of a sale to reservation Indians on the reservation. As recognized by Dillon, under these facts the holdings of Warren Trading Post and Central Machinery are applicable.\nThe dissent would remand for additional fact-finding so that the tribal, federal, and state interests can be weighed, despite its apparent conclusion that services are not governed by the Indian trader statute;. If services were not intended by Congress to be included in the Indian trader statutes, it necessarily follows that such federal legislation does not apply to the transactions at issue in this appeal. If the legislation does not apply, then there is no implied preemption issue. The particular examination and balancing of the various federal, state, and tribal interests, which the dissent suggests be performed on remand, thus become unnecessary because there is no federal legislation to preempt the state taxes. Remand is also unnecessary in light of the fact that the U.S. Supreme Court has already balanced these interests in Warren Trading Post. In that case, it concluded that, when a sale is made to reservation Indians on the reservation, the state tax on the receipts of the sale is preempted. Warren Trading Post, 380 U.S. at 691-92, 85 S.Ct. at 1246.\n. The dissent claims we do not give \"proper weight to the teachings of Cotton Petroleum,\u201d Because Cotton Petroleum did not involve the same statutes as Warren Trading Post and Central Machinery, the preemption analysis contained in those two cases would not have been applicable. Thus, it is not surprising that the majority in Cotton Petroleum would not have found Warren Trading Post and Central Machinery controlling.\n. It appears that the Mescalero Apache Tribe court first rejected the suggestion that Warren Trading Post was applicable because Warren Trading Post concerned a licensed trader that was a permanent enterprise on the reservation and the court considered the licensing of the contractor in the case before it \"a pretext or a fiction.\" Mescalero Apache Tribe, 625 F.2d at 971. Days after the Tenth Circuit Court of Appeals entered its decision, the Supreme Court filed its decision in Central Machinery. That case involved one transaction with a company not on Navajo land and not licensed by the Bureau of Indian Affairs. Central Machinery Co., 448 U.S. at 165, 100 S.Ct. at 2596. On motion for rehearing, the Tenth Circuit Court of Appeals stated that, in its original opinion, it did not consider that the matter was controlled by the Indian trader statutes. That is true. The court had relied on the facts that the business in question was not licensed and on Navajo land, facts the Supreme Court in Central Machinery concluded were irrelevant. The Tenth Circuit court could have addressed the change in the law that the new Supreme Court case created. Yet, the circuit court merely stated without specifics that the new case did not present any new considerations. Mescalero Apache Tribe, 625 F.2d at 990. Because we believe that Central Machinery expanded the preemptive reach of the Indian trader statutes, we cannot follow Mescalero Apache Tribe.", "type": "majority", "author": "APODACA, Judge." }, { "text": "BLACK, Judge\n(dissenting).\nI do not find that the language of the Indian trader statutes provides any indication that such legislation was intended to preempt state taxation of non-Indians providing services to tribal entities. In situations where the intent of Congress is less than clear on the face of the statute, I believe it is necessary to make a factual inquiry into the state, federal, and tribal interests at issue in order to determine whether preemption is implicit in the federal legislation. Since no such inquiry was conducted in this case, I must dissent.\nI also do not view Warren Trading Post or Central Machinery as dispositive of this appeal. I agree with the recent observation of the Arizona Court of Appeals that \u201cthe holding in Warren Trading Post did not establish that federally licensed Indian traders could not be subjected to a state tax.\u201d State ex rel. Ariz. Dep\u2019t of Revenue v. Dillon, 170 Ariz. 560, 826 P.2d 1186, 1193 (Ct.App.1991); see also Milhelm Attea & Bros. v. Department of Taxation & Finance, 181 A.D.2d 210, 585 N.Y.S.2d 847 (1992). Since the Arizona tax at issue in Warren Trading Post was only applicable to \u201c \u2018selling any tangible personal property whatever at retail,\u2019 \u201d 380 U.S. at 686 n. 1, 85 S.Ct. at 1243 n. 1 (quoting Ariz.Rev.Stat. \u00a7 42-1312), it is not clear to me how the Court\u2019s invalidation of state taxation of such transactions provides any guidance as to the meaning of congressional silence with regard to services. I cannot disagree with the majority\u2019s abbreviated quotation from Central Machinery, that the Indian trader statutes must be given \u201c \u2018a sweep as broad as [their] language, * * * and interpreted] * * * in light of the intent of the Congress that enacted them.\u2019 \u201d Maj. at -, 845 P.2d at 172 (quoting Central Mach. Co., 448 U.S. at 166, 100 S.Ct. at 2596). However, even reading the language broadly, I can decipher no intent to include or exclude \u201cservices\u201d within that language. Moreover, like Warren Trading Post, Central Machinery dealt with a tax on the sale of tangible goods to an Indian tribe, again a transaction long recognized to be preempted by the Indian Trader Act. Cf. Moore v. Board of County Commissioners, 2 Wyo. 8 (1878) (county lacked authority to tax property and trade stock of federally licensed trader).\nI would further note that in neither case did the Supreme Court find the facial language of the Indian Trader Act was per se preemptive of state taxation. Rather, the Court analyzed the pervasiveness of federal regulation as it applied to the specific transaction at issue in each case, exactly the type of analysis I believe is required here. The Court considered the relationship of the transactions sought to be taxed in light of state, tribal, and federal interests and struck the balance against state taxation in both of these cases. Warren Trading Post Co., 380 U.S. at 689-91, 85 S.Ct. at 1245-46; Central Machinery Co., 448 U.S. at 165 n. 4, 100 S.Ct. at 2596 n. 4.\nThe analysis of the legal propriety of state taxation of reservation business normally begins with a determination of the incidence of the tax. Felix S. Cohen, Handbook of Federal Indian Law 413 (1982). If the state tax falls directly upon an Indian individual or a tribe, the tax is preempted unless specifically authorized by Congress. County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. -, -, 112 S.Ct. 683, 687-88, 116 L.Ed.2d 687, 697 (1992). In the present case the incidence of the New Mexico gross receipts tax is clearly upon Raytheon. See Mescalero Apache Tribe v. O\u2019Cheskey, 625 F.2d 967, 969 (10th Cir.1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1417, 67 L.Ed.2d 383 (1981), reh\u2019g denied, 455 U.S. 929, 102 S.Ct. 1296, 71 L.Ed.2d 474 and 459 U.S. 1025, 103 S.Ct. 393, 74 L.Ed.2d 522 (1982); Tiffany Constr. Co. v. Bureau of Revenue, 96 N.M. 296, 629 P.2d 1225 (1981). When the incidence of the tax is on the non-Indian, the United States Supreme Court has adopted an ad hoe balancing, rather than creating a per se rule, or even a presumption, of federal preemption. Rodey, Dickason, Sloan, Akin & Robb, P.A. v. Revenue Div., 107 N.M. 399, 759 P.2d 186 (1988), appeal dismissed, 490 U.S. 1043, 109 S.Ct. 1948, 104 L.Ed.2d 418 (1989); Cohen, supra, at 413; Katherine B. Crawford, Note, State Authority To Tax Non-Indian Oil & Gas Production on Reservations: Cotton Petroleum Corp. v. New Mexico, 1989 Utah L.Rev. 495, 498-504, 511.\nThe balancing begins with an examination of \u201cthe language of the relevant federal treaties and statutes in terms of both the broad policies that underlie them and the notions of sovereignty that have developed from historical traditions of tribal independence. This inquiry is not dependent on mechanical or absolute conceptions of state or tribal sovereignty, but has called for a particularized inquiry into the nature of the state, federal, and tribal interests at stake, an inquiry designed to determine whether, in the specific context, the exercise of state authority would violate federal law.\u201d White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 144-45, 100 S.Ct. 2578, 2584, 65 L.Ed.2d 665 (1980).\nThe language of the Indian Trader Act nowhere refers to \u201cservices.\u201d Indeed, the actual language used by Congress in the Act would more likely contemplate the regulation of trade in tangible goods rather than services. For example: 25 U.S.C. \u00a7 261 gives the Commissioner of Indian Affairs authority to regulate \u201cthe kind and quantity of goods and the prices at which such goods shall be sold to the Indians\u201d; 25 U.S.C. \u00a7 263 authorizes the President \u201cto prohibit the introduction of goods, or of any particular article into the country belonging to any Indian tribe\u201d; and 25 U.S.C. \u00a7 264 provides that one \u201cwho shall attempt to reside in the Indian country, or on any Indian reservation, as a trader, or to introduce goods, or to trade therein, without such license, shall forfeit all merchandise offered for sale to the Indians or found in his possession.\u201d Further factual inquiry may prove the state has no legitimate role in taxing non-Indians providing services on the reservation, but I fail to find it in the language originally adopted by Congress two centuries ago.\nThe majority relies upon the canon of construction that ambiguities are to be decided in favor of the Indians. I do not disagree with this as a legal proposition, but I find no ambiguity and this canon cannot be used to construe a statute in a manner never contemplated by Congress. Glover Constr. Co. v. Andrus, 591 F.2d 554 (10th Cir.1979), aff'd, 446 U.S. 608, 100 S.Ct. 1905, 64 L.Ed.2d 548 (1980); Fry v. United States, 557 F.2d 646 (9th Cir.1977), cert. denied, 434 U.S. 1011, 98 S.Ct. 722, 54 L.Ed.2d 754 (1978). I find no evidence that Congress ever even considered whether the Indian Trader Act should apply to the sale of services as well as goods.\nLike the language of the Act itself, the historical context can be interpreted as consistent with a congressional intent to adopt a traditional and narrow definition when regulating traders. A major impetus for licensing those wishing \u201cto trade\u201d with the Indians was the introduction of firearms and liquor by early fur traders. Francis P. Prucha, American Indian Policy in the Formative Years: The Indian Trade and Intercourse Acts 1790-1834 7-8, 71 (1970). Early cases dealing with the licensing provisions of the Indian Trader Act also invariably dealt with problems arising from trade in merchandise. American Fur Co. v. United States, 27 U.S. (2 Pet.) 358, 7 L.Ed. 450 (1829); Gould v. Kendall, 15 Neb. 549, 19 N.W. 483 (1884); Noble v. Amoretti, 11 Wyo. 230, 71 P. 879, 881 (1903) (\u201cIt is manifest that, to trade with the Indians, [the traders] must have goods to sell.\u201d).\nThe earliest versions of the Indian Trader Act prohibited its application \u201cto prevent any trade or intercourse with Indians living on lands surrounded by settlements of the citizens of the United States, and being within the ordinary jurisdiction of any of the individual states.\u201d Act of May 19, 1796, ch. 30, 1 Stat. 474; Act of Mar. 30, 1802, ch. 13, 2 Stat. 145. Once the Indians became surrounded by a \u201cwhite population, which carries on with them almost every kind of commerce incident to their condition,\u201d at least one early court held the Indian Trader Act could no longer be applied. United States v. Cisna, 25 F.Cas. 422, 424-25 (C.C.D.Ohio 1835) (No. 14,795). This decision could be seen as a finding that the Act was intended for the frontier where illicit goods could be confiscated, but could not be enforced when Indians engaged in \u201calmost every kind of commerce\u201d with their white neighbors.\nWhile it is possible that the failure to mention \u201cservices\u201d in any of the various versions of the Act was an oversight, when Congress wished to regulate the provision of services to Indians in other contexts, it has done so explicitly. See, e.g., 18 U.S.C. \u00a7 437 (1988) (amended in 1980 to include \u201cservice\u201d in what federal employees \u201cmay purchase from or sell to any Indian,\u201d Act of June 17, 1980, 94 Stat. 544); Smith & Steele v. Martin, 28 Okl. 836, 115 P. 866 (1911); Hanks v. Hendricks, 58 S.W. 669 (Ct.App.Ind.Terr.1900) .\nNor am I convinced by the majority\u2019s reference to twentieth century cases implying that \u201ctrade\u201d may encompass more than barter in tangible commodities. United States v. Hutto, 256 U.S. 524, 41 S.Ct. 541, 65 L.Ed. 1073 (1921), involved the sale of commodities, land, and autos, and the only \u201cservice\u201d even arguably included was the financing of these transactions. Ewert v. Bluejacket, 259 U.S. 129, 42 S.Ct. 442, 66 L.Ed. 858 (1922), also dealt with a sale of tangible property and referenced several definitions which would limit \u201ctrade\u201d to such transactions. Broader dicta employed by the Court in describing \u201ctrade\u201d would therefore appear confined by the factual context. Moreover, although the majority opinion relies on cases which use language broad enough to include services within trade, it ignores an equal number of earlier cases and law dictionaries which define trade exclusively in terms of tangible \u201cmerchandise,\u201d \u201cchattels,\u201d and/or \u201cgoods.\u201d The Active, 11 U.S. (7 Cranch) 100, 3 L.Ed. 282 (1812); The Two Friends, 24 F.Cas. 433 (C.C.D.Mass.1812) (No. 14,289); Wakeman v. Hoyt, 28 F.Cas. 1350 (C.C.D.Conn.1841) (No. 17,051); In re Chandler, 5 F.Cas. 447 (D.Mass.1870) (No. 2,591); see also Albuquerque Lumber Co. v. Bureau of Revenue, 42 N.M. 58, 75 P.2d 334 (1937).\nIn large measure, the definition must depend on its context and whether \u201ctrade\u201d is employed as a verb or as a noun. Nothing I have been able to locate in the Annals of Congress indicates Congress understood or employed the term \u201ctrade\u201d in what the majority calls the \u201cbroader\u201d sense, i.e., \u201c \u2018equivalent to occupation, employment, or business, whether manual or mercantile.\u2019 \u201d Maj. at-, 845 P.2d at 173 (quoting from The Nymph, 18 F.Cas. at 507). It is very clear, however, that the relevant Congress definitely understood \u201ctrade\u201d as a transitive verb in its more traditional sense, i.e., the barter of goods. We know this from congressional use of the term in the Indian Trader Act of 1802, ch. 13, 2 Stat. 139. Section 9 of that version of the Act provides:\nAnd be it further enacted, That if any such citizen, or other person, shall purchase, or receive of any Indian, in the way of trade or barter, a gun, or other article commonly used in hunting, any instrument of husbandry, or cooking utensil, of the kind usually obtained by the Indians, in their intercourse with white people, or any article of clothing, excepting skins or furs, he shall forfeit a sum not exceeding fifty dollars, and be imprisoned not exceeding thirty days.\nId. at 142.\nIt also seems that the early Congresses understood that the \u201ctraders\u201d regulated by the Act traded in tangible goods. In 1822, for example, Congress amended the 1802 Indian Trader Act and gave the President power to direct Indian agents, territorial governors, and military officers \u201cto cause the stores and packages of goods of all traders to be searched, upon suspicion or information that ardent spirits are carried into the Indian countries by said traders.\u201d Act of May 6, 1822, ch. 58, 3 Stat. 682.\nMost significantly, courts which have considered this issue, i.e., whether the Act was intended by Congress to apply to \u201cservices,\u201d have rejected the conclusion adopted by the majority. United States ex rel. Keith v. Sioux Nation Shopping Cen ter, 488 F.Supp. 496, 499 (D.S.D.) (mem.), aff'd., 634 F.2d 401 (8th Cir.1980); Mescalero Apache Tribe, 625 F.2d at 990.\nAgain, while it may be a balancing of state, federal, and tribal interests will support the implicit preemption of the New Mexico gross receipts tax on Raytheon, I do not think the record before us can sustain such a summary conclusion. The legal and historical authorities relied upon by the district court and the majority at best seem evenly balanced. Such a case is not appropriate for summary judgement. Fischer v. Mascarenas, 93 N.M. 199, 598 P.2d 1159 (1979).\nFinally, I do not believe the majority gives proper weight to the teachings of Cotton Petroleum. In Cotton, the Court upheld a state tax on a non-Indian producing oil and gas from the Jicarilla Apache Reservation. The Cotton majority largely ignored Warren Trading Post and Central Machinery. Rather, it was the dissenters in Cotton who argued these precedents were controlling. 490 U.S. at 210-11, 109 S.Ct. at 1725-26 (Blackmun, J., dissenting). I also believe the Cotton majority evidenced less willingness to find congressional intent to preempt state taxation of non-Indian business activities based on statutory silence. See Susan M. Williams, State Taxation on Indian Reservations: The Impact of Cotton Petroleum Corporation v. New Mexico, 36 Fed.B.News & J. 431, 434 (1989); Kristina Bogardus, Note, Court Picks New Test in Cotton Petroleum, 30 Nat.Resources. J. 919, 927-28 (1990).\nIn attempting to tailor centuries-old legislation to modern transactions, the United States Supreme Court has adopted a pragmatic approach. See Philip P. Frickey, Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law, 78 Cal.L.Rev. 1137, 1168-74 (1990); Charley Carpenter, Note, Preempting Indian Preemption: Cotton Petroleum Corp. v. New Mexico, 39 Cath.U.L.Rev. 639, 655 (1990); Daniel Gluck, Note, A Tale of Two Taxes \u2014 Preemption on the Reservation: Cotton Petroleum Corp. v. New Mexico, 43 Tax Law. 359, 369 (1990). Since I do not see any evidence of congressional intent to prohibit state taxation of management services on the face of the ancient Indian Trader Act, I believe the particularized inquiry called for under the Court\u2019s pragmatic approach is necessary.\nBased on the evidence currently before us, I cannot find a congressional intent to preempt state taxation of non-Indians offering services on the face of the Indian Trader Act. I believe Supreme Court precedent therefore requires that the district court consider the relative interests of the state, tribal, and federal governments in deciding upon the validity of the imposition of the New Mexico gross receipts tax upon Raytheon. I would remand for such a particularized inquiry, and I must therefore respectfully dissent.\n. The majority insists on labeling my opinion as one which reaches the \"conclusion that services are not governed by the Indian trader statutes.\u201d Maj. at 648 n. 1, 845 P.2d at 171 n. 1. This is incorrect. I cannot tell from the language of the Indian trader statutes whether Congress intended them to apply to services or not. In such a situation, I believe it is necessary to make a particularized inquiry into the state, federal, and tribal interests involved before preemption can be found implicit in such federal legislation. While I agree that such a balancing could result in a summary judgment for either side, that remedy is only appropriate where there are no reasonable conflicting inferences bearing upon material facts. Ellingwood v. N.N. Investors Life Ins. Co., 111 N.M. 301, 805 P.2d 70 (1991). Based on the record before us, I do not believe that is the situation here.\n. If, indeed, Congress has anywhere intimated the intent to regulate Raytheon\u2019s contract to provide management services to Laguna Industries, it would appear to be within the ambit of 25 U.S.C. \u00a7 81 (1988) (contract regarding operations on Indian land) rather than the Indian Trader Act. Green v. Menominee Tribe, 233 U.S. 558, 34 S.Ct. 706, 58 L.Ed. 1093 (1914) (contract requiring Indians to pay for logging supplies out of proceeds of logging governed by precursor to 25 U.S.C. \u00a7 81 even though non-Indian party to contract was a licensed Indian trader); Wisconsin Winnebago Business Comm. v. Koberstein, 762 F.2d 613 (7th Cir.1985) (25 U.S.C. \u00a7 81 applied in the absence of federal statutes directly regulating management contract regarding reservation bingo by tribal enterprise).\n. The majority apparently interprets the Tenth Circuit opinion as turning on whether the non-Indian was a licensed trader. Maj. at 654 n. 3, 845 P.2d at 177 n. 3. I believe that, on the motion for rehearing, the Tenth Circuit Court specifically found the Indian trader statutes applied to goods but not services. 625 F.2d at 990; see abo Richard W. Hughes, Indian Law, 12 N.M.L.Rev. 409, 452 (1982).", "type": "dissent", "author": "BLACK, Judge" } ], "attorneys": [ "Wayne H. Bladh, Nordhaus, Haltom, Taylor, Taradash & Frye, Santa Fe, for plaintiffs-appellees.", "Tom Udall, Atty. Gen., Frank D. Katz, Sp. Asst. Atty. Gen., Santa Fe, for defendant-appellant." ], "corrections": "", "head_matter": "845 P.2d 167\nLAGUNA INDUSTRIES, INC., and Raytheon Services Company, Plaintiffs-Appellees, v. NEW MEXICO TAXATION AND REVENUE DEPARTMENT, Defendant-Appellant.\nNo. 12635.\nCourt of Appeals of New Mexico.\nOct. 5, 1992.\nCertiorari Granted Nov. 19, 1992.\nWayne H. Bladh, Nordhaus, Haltom, Taylor, Taradash & Frye, Santa Fe, for plaintiffs-appellees.\nTom Udall, Atty. Gen., Frank D. Katz, Sp. Asst. Atty. Gen., Santa Fe, for defendant-appellant." }, "file_name": "0644-01", "first_page_order": 678, "last_page_order": 692 }