(dissenting).
The facts in this case are sparse and, in my opinion, insufficient to show that Mary Jo Fox was entitled to a refund of state income tax. Mary Jo Fox is a Commanche residing and working on the Navajo Reservation at Shiprock, New Mexico. She is married to a non-Indian. She and her husband filed joint income tax returns and Mary Jo claims a refund for the tax years 1969 through 1972. These facts are some indication that she had become assimilated into the general community, McClanahan, supra, and thus has the tax status of a non-Indian. See Kahn v. Arizona State Tax Commission, 16 Ariz.App. 17, 490 P.2d 846 (1971); appeal dismissed, 411 U.S. 941, 93 S.Ct. 1917, 36 L.Ed.2d 404 (1973). Claiming a refund, Mary Jo Fox had the burden of showing she was entitled to the refund. See United Veterans Org. v. New Mexico Prop. App. Dept., 84 N.M. 114, 500 P.2d 199 (Ct.App.1972); Kaiser Steel Corp. v. Property Appraisal Dept., 83 N.M. 251, 490 P.2d 968 (Ct.App.1971). The Bureau did not have the burden of showing she was assimilated, it was Mary Jo’s burden to show she was not assimilated. She failed to do so.
Mary Jo Fox ignores these indications of assimilation. She presents her appeal on the basis that three facts show that New Mexico has no jurisdiction to tax her income, and that she is entitled to the refunds as a matter of law. Those facts are that she is an Indian, she resides on an Indian reservation, and her income is earned within the reservation. The authority said to require this result is McClanahan, supra.
Language used in McClanahan, supra, supports this view. McClanahan, supra, states:
“But it would vastly oversimplify the problem to say that nothing remains of the notion that reservation Indians are a separate people to whom state jurisdiction, and therefore state tax legislation, may not extend. * * *
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“The modern cases thus tend to avoid reliance on platonic notions of Indian sovereignty and to look instead to the applicable treaties and statutes which define the limits of state power. * *. *
“The Indian sovereignty doctrine is relevant, then, not because it provides a definitive resolution of the issues in this suit, but because it provides a backdrop against which the applicable treaties and federal statutes must be read. * * *
* * * * * *
“ * * * [T]he reservation of certain lands for the exclusive use and occupancy of the Navajos and the exclusion of non-Navajos from the prescribed area was meant to establish the lands as within the exclusive sovereignty of the Navajos under general federal supervision. It is thus unsurprising that this Court has interpreted the Navajo treaty to preclude extension of state law — including state tax law — to Indians on the Navajo Reservation.”
If the above-quoted language, with its emphasis on territorial sovereignty, means that New Mexico law does not cross the reservation line, then McClanahan, supra, poses the problem of whether any Indian residing within the Navajo Reservation, Navajo or non-Navajo, is a resident of New Mexico entitled to vote or to hold public office in New Mexico. N.M.Const., Art. VII, §§ 1 and 2. If territorial sovereignty is the key to New Mexico jurisdiction in matters involving Indians, Montoya v. Bolack, 70 N.M. 196, 372 P.2d 387 (1962), should be reconsidered.
McClanahan, supra, may fairly be read in a different light. It may be read to mean only that New Mexico may not tax the income of a Navajo living on the Navajo Reservation if the income is derived from employment within the Reservation. McClanahan, supra, may be read as holding that New Mexico’s tax jurisdiction is barred because of the provisions of the treaty with the Navajos, If the expansive language of McClanahan, supra, is read in the light of the facts in that case, the references to “Indians” means “Navajos,” and the reference to “reservation Indians” means Navajos or other Indians admitted by the Navajos with the consent of the United States as provided by Article II of the Treaty with Navajo Indians. 15 Stat. 667 (1868).
My view is that McClanahan, supra, applies to Navajos and other Indians admitted by the Navajos to use and occupy Navajo Reservation lands. ' The stipulated record shows that Mary Jo Fox is not a Navajo. The stipulated record does not show that the Navajos have admitted her to the use and occupancy of their Reservation. McClanahan, supra, in my view, does not bar New Mexico’s jurisdiction to tax her income earned on the Navajo Reservation.
The majority holding otherwise, I dissent.