{ "id": 2862492, "name": "G. M. SHUPE, INC., Appellant, v. BUREAU OF REVENUE of State of New Mexico, Appellee", "name_abbreviation": "G. M. Shupe, Inc. v. Bureau of Revenue", "decision_date": "1976-04-13", "docket_number": "No. 2183", "first_page": "265", "last_page": "272", "citations": [ { "type": "official", "cite": "89 N.M. 265" }, { "type": "parallel", "cite": "550 P.2d 277" } ], "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": "85 L.Ed.2d 267", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1940, "opinion_index": 0 }, { "cite": "311 U.S. 435", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6141370 ], "weight": 2, "year": 1940, "opinion_index": 0, "case_paths": [ "/us/311/0435-01" ] }, { "cite": "33 Stat. 1048", "category": "laws:leg_session", "reporter": "Stat.", "opinion_index": 0 }, { "cite": "25 U.S.C. \u00a7 261-64", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1970, "opinion_index": 0 }, { "cite": "76 N.M. 562", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8503647 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0562-01" ] }, { "cite": "71 N.M. 418", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5348778 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/71/0418-01" ] }, { "cite": "18 U.S.C. \u00a7 1162", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1970, "opinion_index": 0 }, { "cite": "369 U.S. 60", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6165281 ], "weight": 3, "year": 1962, "opinion_index": 0, "case_paths": [ "/us/369/0060-01" ] }, { "cite": "84 N.M. 343", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2768763 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/84/0343-01" ] }, { "cite": "380 U.S. 691", "category": "reporters:federal", "reporter": "U.S.", "pin_cites": [ { "page": "n. 18" } ], "opinion_index": 0 }, { "cite": "4 U.S.C. \u00a7 109", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1970, "opinion_index": 0 }, { "cite": "4 U.S.C. \u00a7 110", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "4 U.S.C. \u00a7 105", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1970, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "411 U.S. 164", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9869 ], "weight": 3, "year": 1973, "opinion_index": 0, "case_paths": [ "/us/411/0164-01" ] }, { "cite": "358 U.S. 217", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3650026 ], "weight": 4, "year": 1959, "opinion_index": 0, "case_paths": [ "/us/358/0217-01" ] }, { "cite": "411 U.S. 145", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 10182 ], "weight": 3, "year": 1973, "opinion_index": 0, "case_paths": [ "/us/411/0145-01" ] }, { "cite": "380 U.S. 685", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1524780 ], "weight": 4, "year": 1965, "opinion_index": 0, "case_paths": [ "/us/380/0685-01" ] }, { "cite": "541 P.2d 699", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1975, "opinion_index": 0 }, { "cite": "86 Wash. 2d 7", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 1117397 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/wash-2d/86/0007-01" ] }, { "cite": "88 N.M. 548", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2838191 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/88/0548-01" ] }, { "cite": "519 F.2d 370", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 435626 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/f2d/519/0370-01" ] }, { "cite": "372 F.Supp. 348", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3394861 ], "opinion_index": 0, "case_paths": [ "/f-supp/372/0348-01" ] }, { "cite": "30 L.Ed.2d 809", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1972, "opinion_index": 0 }, { "cite": "92 S.Ct. 930", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1972, "opinion_index": 0 }, { "cite": "405 U.S. 933", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11738436, 11738558, 11738758, 11738622, 11738214, 11738314, 11738680, 11738139, 11738365, 11738494 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/us/405/0933-05", "/us/405/0933-07", "/us/405/0933-10", "/us/405/0933-08", "/us/405/0933-02", "/us/405/0933-03", "/us/405/0933-09", "/us/405/0933-01", "/us/405/0933-04", "/us/405/0933-06" ] }, { "cite": "442 F.2d 1184", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 769546 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/f2d/442/1184-01" ] }, { "cite": "169 U.S. 264", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3597411 ], "weight": 3, "year": 1898, "opinion_index": 0, "case_paths": [ "/us/169/0264-01" ] }, { "cite": "93 L.Ed. 721", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1949, "opinion_index": 0 }, { "cite": "336 U.S. 342", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3938061 ], "weight": 2, "year": 1949, "opinion_index": 0, "case_paths": [ "/us/336/0342-01" ] }, { "cite": "129 F.Supp. 15", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4259808 ], "opinion_index": 1, "case_paths": [ "/f-supp/129/0015-01" ] }, { "cite": "344 F.2d 486", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 869443 ], "year": 1965, "opinion_index": 1, "case_paths": [ "/f2d/344/0486-01" ] }, { "cite": "47 L.Ed. 532", "category": "reporters:federal", "reporter": "L. Ed.", "case_ids": [ 11727251, 11727351 ], "year": 1903, "opinion_index": 1, "case_paths": [ "/us/188/0431-01", "/us/188/0432-01" ] }, { "cite": "188 U.S. 432", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11727351 ], "weight": 2, "year": 1903, "opinion_index": 1, "case_paths": [ "/us/188/0432-01" ] }, { "cite": "440 P.2d 442", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 2, "year": 1968, "pin_cites": [ { "page": "448" } ], "opinion_index": 1 }, { "cite": "73 Wash.2d 677", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 1088499 ], "year": 1968, "opinion_index": 1, "case_paths": [ "/wash-2d/73/0677-01" ] }, { "cite": "95 Cal.Rptr. 879", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1971, "pin_cites": [ { "page": "883" } ], "opinion_index": 1 }, { "cite": "18 Cal.App.3d 372", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 4405117 ], "year": 1971, "opinion_index": 1, "case_paths": [ "/cal-app-3d/18/0372-01" ] }, { "cite": "68 N.M. 327", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2717934 ], "weight": 4, "year": 1961, "pin_cites": [ { "page": "331" }, { "page": "954" } ], "opinion_index": 1, "case_paths": [ "/nm/68/0327-01" ] }, { "cite": "8 L.Ed. 483", "category": "reporters:federal", "reporter": "L. Ed.", "case_ids": [ 1439675 ], "year": 1832, "opinion_index": 1, "case_paths": [ "/us/31/0515-01" ] }, { "cite": "84 N.M. 343", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2768763 ], "weight": 2, "year": 1972, "opinion_index": 1, "case_paths": [ "/nm/84/0343-01" ] } ], "analysis": { "cardinality": 1003, "char_count": 20072, "ocr_confidence": 0.775, "pagerank": { "raw": 2.3840043537274286e-07, "percentile": 0.797123307188952 }, "sha256": "d4bd560c051a9ac59ba8e03cc3ddead86ff816ff02d44d4d9b3c766ec14858f1", "simhash": "1:e357746bd9867bf7", "word_count": 3303 }, "last_updated": "2023-07-14T20:56:52.908635+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ, J\u201e concurs.", "SUTIN, J., concurs specially." ], "parties": [ "G. M. SHUPE, INC., Appellant, v. BUREAU OF REVENUE of State of New Mexico, Appellee." ], "opinions": [ { "text": "OPINION\nLOPEZ, Judge.\nThe taxpayer appeals an order and decision of the Bureau of Revenue imposing gross receipts taxes, interest and penalties. Section 72-16A-4, N.M.S.A.1953 (Repl. Vol. 10, pt. 2, Supp.1975). We affirm.\nThe taxpayer presents four issues for reversal: (1) that the tax was illegally imposed because the taxpayer\u2019s activities were on Indian land; (2) that the Bureau had no authority to retain an erroneous overpayment of taxes in partial satisfaction of a disputed tax due under a separate transaction; (3) that the assessment of penalties was arbitrary; (4) and that the Commissioner\u2019s role as a decision-maker violated due process.\nThe taxpayer is a Washington corporation, qualified to do business in New Mexico, which is presently constructing a dam on the Nambe Pueblo. The taxpayer is being paid for this dam by the United States Department of the Interior, Bureau of Reclamation.\n(1) State Taxation Jurisdiction\nThe taxpayer argues that the state is without jurisdiction to impose a tax on it. The argument rests on the location of the activity which gave rise to the tax \u2014 the Nambe Pueblo. The territorial view of sovereignty has been subjected to a reexamination when the taxation is of non-Indians. Activities by non-Indians on Indian land have generally been held not exempt from state taxation. Oklahoma Tax Commission v. Texas Co., 336 U.S. 342, 69 S.Ct. 561, 93 L.Ed. 721 (1949); Thomas v. Gay, 169 U.S. 264, 18 S.Ct. 340, 42 L.Ed. 740 (1898); Agua Caliente Band of Mission Indians v. County of Riverside, 442 F.2d 1184 (9th Cir. 1971), cert. denied, 405 U.S. 933, 92 S.Ct. 930, 30 L.Ed.2d 809 (1972); Norvell v. Sangre de Cristo Development Company, Inc., 372 F.Supp. 348 (D.N.M.1974), rev\u2019d on other grounds, 519 F.2d 370 (10th Cir. 1975); Prince v. Board of Education of Central Consolidated Independent School District No. 22, 88 N.M. 548, 543 P.2d 1176 (1975); Chief Seattle Properties, Inc. v. Kitsap County, 86 Wash. 2d 7, 541 P.2d 699 (1975). However, the inquiry does not end with the recognition that the tax is on a non-Indian entity because the tax still has the potential for interference with protected rights. The two major issues are whether the subject of the tax is governed by substantial federal regulation and whether the imposition of the tax will infringe on Indian rights of self-government.\nThe federal preemption doctrine was developed in Warren Trading Post Co. v. Arizona Tax Comm\u2019n, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165 (1965), in which the Supreme Court struck down a gross receipts tax on the income of a company which operated a trading post on the Navajo reservation. The Court discerned in the existing federal regulations an intent that the state not impose additional burdens on the traders or those with whom they dealt. There are no comparable existing regulations in this case. The taxpayer\u2019s argument in this case is that federal policies respecting the Indians would be frustrated by the taxation of a contractor executing a federal contract. Insofar as the taxpayer claims immunity solely because he is carrying out a federal contract, he is making the same argument which has been rejected in numerous federal instrumentality cases. See, e.g., Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973). No specific federal policy regarding the Indians has been shown to have been frustrated or impaired by the Bureau\u2019s actions in taxing the contractor.\nThe other operative principle governing the state\u2019s power to tax non-Indians for their activities on Indian land is derived from Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). The Court in a later case characterized Williams as summarizing the way in which: \u201c * * notions of Indian sovereignty have been adjusted to take account of the State\u2019s legitimate interests in regulating the affairs of non-Indians.\u201d McClanahan v. Arizona State Tax Comm\u2019n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973). The Williams test is: \u201c * * * whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.\u201d Williams v. Lee, supra. In Williams because there was a tribal court which could decide the dispute between the non-Indian trader and the Indian defendants, the jurisdictional claims of the state court were denied. In McClanahan the Court noted that Williams was designed to resolve conflicts between the state and the Indian tribe \u201c * * * by providing that the State could protect its interest up to the point where tribal self-government would be affected.\u201d McClanahan v. Arizona State Tax Comm\u2019n, supra. In the case before us the taxpayer has failed to point to any specific way in which the tribe will be affected, relying instead on a general invocation of sovereignty. The Nambe Indians are not paying the contractor; thus from all that appears of record, the Nambe Indians will not sustain any direct financial burden as a result of this tax. The Nambe Indians have not themselves asserted tax jurisdiction over the taxpayer\u2019s activities, although the record reveals that discussions are being had about such a step. There is no indication from the record that the Pueblo will sustain any direct effects as a result of the tax, and therefore no conflict with tribal sovereignty is shown.\nIn addition to the broad principles of preemption and sovereignty, the taxpayer points to several statutory provisions which he argues prohibit the imposition of this tax. Because the tax is on a non-Indian, none have the dispositive effect for which the taxpayer contends, and their effect must be determined by the principles governing conflicts between Indian sovereignty and state law discussed above.\nBuck Act\nThe Buck Act (4 U.S.C. \u00a7 105 et seq. (1970)) provides for imposition of taxes in certain federal areas. Included among these taxes are gross receipts taxes. 4 U.S.C. \u00a7 110(c). The exemption for Indians found in the Act applies only to taxes \u201con or from any Indian\u201d. 4 U.S.C. \u00a7 109 (1970). Thus, although the Act does not necessarily give the state a power to tax (see, Warren Trading Post v. Arizona Tax Comm\u2019n, 380 U.S. 691 at n. 18, 85 S.Ct. 1242), it does not in this instance restrict the state\u2019s power.\nDisclaimer\nThe taxpayer argues that New Mexico, in its Constitution, disclaimed all right to tax activities on Indian lands. The disclaimer is of \u201call right and title\u201d to Indian lands. N.M.Const. Art. XXI, \u00a7 2. This disclaimer has been interpreted to be a disclaimer of proprietary interest, not of governmental control. Sangre De Cristo Dev. Corp., Inc. v. City of Santa Fe, 84 N.M. 343, 503 P.2d 323 (1972). See Organized Village of Kake v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573 (1962). Thus, taxation of activities of non-Indians on Indian land does not violate this provision.\nPublic Law 83-280\nThe taxpayer argues that since New Mexico did not assume jurisdiction over the Nambe Pueblo under Public Law 83-280 (18 U.S.C. \u00a7 1162 (1970) and 28 U.S. C. \u00a7 1360 (1970)) New Mexico cannot assert taxing jurisdiction over activities on Indian lands.\nIn State v. Warner, 71 N.M. 418, 379 P.2d 66 (1963), the New Mexico Supreme Court held that the state\u2019s failure to assume jurisdiction under this Act did not prevent the imposition of the state\u2019s criminal laws on a non-Indian for his actions on the reservation. In Paiz v. Hughes, 76 N.M. 562, 417 P.2d 51 (1966), it was explained that the Williams test, discussed above, must be used to determine the state\u2019s jurisdiction over a non-Indian for actions on Indian lands.\nIndian Trade and Intercourse Act\nThe taxpayer argues that the federal statutes regulating Indian traders (25 U.S.C. \u00a7 261-64 (1970)) preempt taxation of his activities, as in Warren Trading Post Company v. Arizona Tax Comm\u2019n, supra. Since the taxpayer is not an Indian trader, the Act does not appear to have any regulatory effect on him.\nAppropriations Act\nThe taxpayer also relies on a provision contained in the Appropriations Act of March 3, 1905 (33 Stat. 1048, Chap. 1479, \u00a7 1). In relevant portion this Act states that \u201c * * * all personal property furnished said Indians [the Pueblo Indians of New Mexico] by the United States * * * \u201d shall be free from taxation. Although the contract is arguably \u201cpersonal property\u201d, it was not given to the Indians, but rather to the non-Indian taxpayer, and the section is inapplicable.\nDue Process\nThe taxpayer argues that the state cannot tax him because it has not extended any benefits to the Nambe Indians. Wisconsin v. J. C. Penney Co., 311 U.S. 435, 61 S.Ct. 246, 85 L.Ed.2d 267 (1940). The state\u2019s ability to tax this taxpayer is not controlled by the lack of benefits given the Nambe Indians since the taxpayer received benefits from the state while present here.\n(2) Refund\nAt the time the taxpayer was engaged in construction of the Nambe Dam, it was also subcontractor on an unrelated project in Las Cruces. Through an error the taxpayer paid gross receipts on the Las Cruces project, which were not owed. The Bureau retained these receipts and applied them to the amount due on the Nambe project. No demand for repayment was made and the Commissioner was within his discretion in applying the amount wrongfully paid to the amount he determined to be owing. Section 72-13^13(C), N.M.S.A. 1953 (Repl.Vol. 10, pt. 2, Supp.1975).\n(3) Penalties Imposed\nThe taxpayer contests the decision of the Commissioner to assess a penalty and interest under \u00a7 72-13-80 and \u00a7 72-13-82, N.M.S.A.1953 (Repl. Vol. 10, pt. 2, Supp.1975) as arbitrary and without foundation. The evidence was conflicting as to-the taxpayer\u2019s negligence and the Commissioner\u2019s decision was supported by substantial evidence.\n(4) Lack of Impartial Arbiter\nThe taxpayer raises several points relating to unfairness in the procedure below, including the failure of the Bureau to supply an impartial arbiter. These arguments were not made below and will not be considered here. Section 72-13-39, N.M. S.A.1953 (Repl. Vol. 10, pt. 2, Supp.1975).\nThe decision and order of the Commissioner are hereby affirmed.\nIT IS SO ORDERED.\nHERNANDEZ, J\u201e concurs.\nSUTIN, J., concurs specially.", "type": "majority", "author": "LOPEZ, Judge." }, { "text": "SUTIN, Judge\n(specially concurring)..\nI concur in the result.\nLegal problems which involve disputes between Indian tribes and the State of New Mexico have reached an eruptive stage. One of the explosive factors is the gross receipts tax on non-Indians doing work on Indian land. A philosophical concept stated in 1832 is applicable today. Justice McLean, in a concurring opinion written in Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832) said:\n* * * [T]heir existence within a state, as a separate and independent community, may seriously embarrass or obstruct the operation of the state laws. If, therefore, it would be inconsistent with the political welfare of the states, and the social advance of their citizens that an independent and permanent power should exist within their limits, this power must give way to the greater power which surrounds it, or seek its exercise beyond the sphere of state authority. [Emphasis added] [31 U.S. at 594],\nThe taxpayer is a foreign corporation authorized to do business in New Mexico. It strongly argues, (1) that it is protected from paying a gross receipts tax because it sits under the shelter of Nambe Pueblo to withstand the power of the state to tax; (2) that \u201cThe record is completely devoid of any State, County or City governmental services available to the Pueblo of Nambe, * * * The Bureau\u2019s assessment * * * is an interference with the sovereignty of the Nambe * * *. Taxpayer\u2019s activities * * * are subject to the taxing power of the Nambe Tribe * * *. The Nambe has not consented to the Bureau of Revenue assessment * * *. New Mexico\u2019s attempt to tax the gross receipts * * * is an attempt to regulate what business may be carried on with the Pueblo * * *. The essential purpose of taxpayer\u2019s activity is the enhancement of Indian property * * *. [T]he practical effect would be to discourage contractors from commencing projects on Indian land.\u201d [Emphasis added].\nThese are strong moral arguments for the Nambe Pueblo to make to assist taxpayer. Taxpayer claimed the Pueblo was an indispensable party to this proceeding but that motion was denied. The Gross Receipts Tax Act does not tax Indians or Indian lands. It does not interfere with Indian sovereignty. The Nambe Pueblo did not employ taxpayer. Taxpayer is engaged in the construction of the Nambe Pueblo Dam pursuant to contract with the United States Department of Interior, Bureau of Reclamation. Its receipts come from the federal government for performing services in New Mexico.\nThe time has come to state emphatically that Indian sovereignty does not exceed state authority to tax when a non-Indian corporation comes to New Mexico to work on Indian land for the federal government.\nNambe Pueblo is greatly benefited by these construction activities. It does not suffer by state taxation. It may also tax with knowledge that \u201cthe power to tax involves the power to destroy\u201d its economic development. It may suffer by double taxation, but it cannot claim that its power to tax can override the power of the state to tax to preserve the political welfare of the state.\nPueblo Indians constitute a tribe. Pueblo lands are Indian Country. Pueblo Indians are wards of the United States occupying a special status of tutelage. Sangre De Cristo Dev. Corp., Inc. v. City of Santa Fe, 84 N.M. 343, 503 P.2d 323 (1972). Taxpayer relies on Your Food Stores, Inc. (NSL) v. Village of Espanola, 68 N.M. 327, 361 P.2d 950 (1961). This case does hold that New Mexico has no governmental power over Indians or Indian lands, except where such jurisdiction has been specifically granted by Act of Congress, or sanctioned by the decisions of the Supreme Court of the United States. It said:\nWe think that the Pueblo Indian tribes possess inherent sovereignty except where it has been specifically taken from them by congressional action. [68 N.M. at 331, 361 P.2d at 954].\nWhat is meant by \u201cinherent sovereignty\u201d? Your Food Stores said that the state cannot annex Indian land leased by the Pueblo to a corporation for use as a supermarket and variety store. The lease was void because the land was not within the corporate limits of the Village of Espa\u00f1ola. Sangre De Cristo holds that where Congress has preempted all control over the leasing of Indian lands, which included the subdivision thereof, there is no room for the state to impose additional or conflicting controls relating to the subdivision, even though the Indian land lies within the corporate limits of the City of Santa Fe, and the land is leased to a domestic corporation.\n\u201cInherent sovereignty\u2019\u2019 means that the tribe has full control over its land, its use and development, and its people until this power is specifically taken away by Congress. It has power to adopt a constitution, with executive, legislative and judicial authority to govern its people. It may develop an Indian society in keeping with its traditions. It may develop its lands, industrialize its economy, assess taxes' and live in complete freedom of thought, ideas and culture on its own territory. New Mexico cannot exercise any governmental power over the Indians or their land.\nHowever, where the activity of the Indians obstructs the operation of state laws and is inconsistent with the political welfare of the state and the social advance of its citizens, Indian \u201cinherent sovereignty\u201d must give way to the power of the state to enact legislation. The power of the state to tax gross receipts of non-Indian corporations that do business on Indian lands within the territorial boundaries of the state, are essential to the political welfare and social development of the citizens in this state. The Indian tribe and the federal government cannot allow the non-Indian corporation to escape taxation unless Congress or New Mexico exempt it from taxation. No deviations by contract, no process of anamorphosis, no misinterpretation of the tax laws, no speculation on Indian development, can assist non-Indians to escape the burdens of taxation.\nTo solve this problem, Indians must look to the Congress of the United States or the Legislature of New Mexico to exempt non-Indians who fall within the meaning of the Gross Receipts Tax Act. \u201cWe find no federal preemption.\u201d Palm Springs Spa, Inc. v. County of Riverside, 18 Cal.App.3d 372, 95 Cal.Rptr. 879, 883 (1971).\nTaxpayer stated at the hearing that it reviewed the bid items of the Bureau of Reclamation. It concluded that the contract was not subject to the New Mexico Gross Receipts Tax Act based upon the advice of its vice-president and a national C.P.A. firm. Taxpayer could have submitted its problem to the Attorney General of New Mexico or the Commissioner of Revenue to determine whether the burden of taxation was a reality. It cannot now seek succor by reliance on Indian sovereign immunity. It must establish that its activity in New Mexico is not subject to the Gross Receipts Tax Act.\nIndian sovereignty vs. state sovereignty has been a long, controversial, complex legal problem. This problem will continue as long as the Indian people desire to remain wards of the United States.\nTaxpayer seeks two additional avenues of escape from taxation not mentioned in the majority opinion.\nFirst, it says that \u201cthe tax would be an impediment to the free flow of commerce and to the \u2018discernable Federal policy\u2019 of encouraging Indians to be economically self-sufficient on the reservation.\u201d It cites as authority Makah Indian Tribe v. Clallami County, 73 Wash.2d 677, 440 P.2d 442 (1968) and the United States v. Rickert, 188 U.S. 432, 23 S.Ct. 478, 47 L.Ed. 532 (1903).\nMakah Indian Tribe holds:\nCongress neither having specifically provided for the taxation by the state * * * of personal property owned by a Makah Indian, nor having impliedly granted such power, the ad valorem personal property tax by Clallam County may not be imposed upon personal property which is continuously used, kept and maintained on the Makah Reservation by a Makah Indian. [440 P.2d at 448], '\nI agree. This quotation is followed by a dissertation on the natural dignity of the American Indian with which I agree. It says that the resolution of the problem of benefits and correlative responsibilities of Indian citizenship is one for the Congress and the President to solve, with which I agree.\nRickert holds that lands held by allottees and the other Indians named in the General Allotment Act of 1887, with permanent improvements, and personal property thereon, are not subject to assessment and taxation by the taxing authorities of South Dakota. The quarrel between Indian tribes and states over the duty of Indians, with full citizenship rights, to share the burden of government with other citizens of the state are considerations to be addressed to Congress.\nTaxpayer\u2019s reliance on these cases suffers the pangs of weakness in its position.\nSecond, taxpayer contends that state taxation of the taxpayer is interference with the self-government power of the Nambe Pueblo to tax. Taxpayer relies on Littell v. Nakai, 344 F.2d 486 (9th Cir. 1965), and Iron Crow v. Ogallala Sioux Tribe, 129 F.Supp. 15 (D.S.D.1955).\nThese cases involve internal Indian quarrels within the jurisdiction of the Indian tribal courts, and not the federal courts. They establish the self-governing power of Indian tribes to settle their own problems. They have the power to tax. Taxpayer\u2019s last stand meets with defeat.\nCicero said long ago that \u201cTaxes are the sinews of the state.\u201d Taxpayer cannot destroy that power.", "type": "concurrence", "author": "SUTIN, Judge" } ], "attorneys": [ "James J. Workland, Workland & Erickson, Spokane, Wash., Joseph A. Sommer, Sommer, Lawler & Scheuer, Santa Fe, for appellant.", "Toney Anaya, Atty. Gen., Vernon O. Henning, Asst. Atty. Gen., Santa Fe, for appellee." ], "corrections": "", "head_matter": "550 P.2d 277\nG. M. SHUPE, INC., Appellant, v. BUREAU OF REVENUE of State of New Mexico, Appellee.\nNo. 2183.\nCourt of Appeals of New Mexico.\nApril 13, 1976.\nCertiorari Denied June 3, 1976.\nJames J. Workland, Workland & Erickson, Spokane, Wash., Joseph A. Sommer, Sommer, Lawler & Scheuer, Santa Fe, for appellant.\nToney Anaya, Atty. Gen., Vernon O. Henning, Asst. Atty. Gen., Santa Fe, for appellee." }, "file_name": "0265-01", "first_page_order": 301, "last_page_order": 308 }