(specially concurring).
I specially concur only because the Mescalero Apache Tribe or Sierra Blanca Ski Enterprises, I.D. No. 14-703019-00, which owns the ski resort, is a federal Indian chartered corporation, pursuant to 25 U.S.C.A., §§ 477 and 470.
The fact of being a chartered corporation does not appear in the stipulation. Nevertheless, it states:
‡ * * # % *
7. The purchase and construction of the ski resort was financed completely by a loan to the Tribe by the federal government under 25 U.S.C.A. Section 470.
25 U.S.C.A., § 470 provides that the •Secretary of the Interior “ * * * may make loans to Indian chartered corporations for the purpose of promoting the economic development of such tribes and of their members, * * * ”
25 U.S.C.A., § 477 provides that the Secretary of the Interior may issue a charter of incorporation to a tribe. It further provides:
Such charter may convey to the incorporated tribe the power to purchase * *, or otherwise own, hold, manage, operate and dispose of property of every description, real and personal, * * * and such further powers as may be incidental to the condtict of corporate business, not inconsistent with law, * * *. Any charter so issued shall not be revoked or surrendered except by Act of Congress.
[Emphasis added.]
Article XI, Section 1(a) of the Tribe’s Revised Constitution is a part of the stipulation. It provides that the Mescalero Apache Tribal Council has the duty and power to transfer tribal property and other assets to tribal corporations.
The Mescalero Apache Tribe states in its reply brief:
The issue of a federally chartered corporation under Section 477 is not present in this case.
To me, this constitutes an admission that the Tribe, or Sierra Blanca Ski Enterprises is an Indian chartered corporation. This corporation should be taxed.
The Notice of Assessment of Taxes by the Commissioner was made to Sierra Blanca Ski Enterprises, not to the Tribe. The title of the Protest of Assessment filed by the Tribe refers to Sierra Blanca Ski Enterprises. The Tribe stated it was th'e “owner and operator of Sierra Blanca Ski Enterprises.” In the title to the stipulation of the facts and the decision and order of the Commissioner, it is described .as “Mescalero Apache .Tribe, d/b/a Sierra Blanca Ski Enterprises, I.D. No. 14-703019-00.” The Tribe was taxed in this name because probably it led the Commissioner to believe it was not a chartered corporation.'
If the assumptions of corporate life in this specially concurring opinion are wrong, ,and called to the attention of this court on motion for rehearing, I will dissent. I ,do not agree that an Indian Tribe is subject ‘to payment of the state compensating tax or 'school tax assessments.
This appears to be the first state tax case ’against an Indian chartered corporation or tribe. Let us take a look at the history ’of corporate Indian tribes.
Cohen’s Handbook of Federal Indian ■Law, p. 277, states:
In the narrow sense in which the term is frequently used, a corporation is something chartered by a government, and in this sense only those Indian tribes which have been chartered by some government, e. g., the Pueblos of New Mexico incorporated by territorial legislation, and the tribes incorporated under section 17 of the Act of June 18, 1934, [25 U.S.C.A., § 477] are to be considered corporations.
See United States v. Lucero, 1 S.M. 422, 438 (1869).
In Cohen’s supra, pp. 278, 279, the author says:
Thus - it has been administratively determined that the Pueblos of New Mexico are entitled to receive grazing privileges under' the Taylor Grazing Act, under the clause in section 3 of that act conferring such rights upon “corporations authorized to conduct business under the laws of the State.” The principle involved would appear to be equally applicable to any Indian tribe which has a recognized corporate status, either under the Act of June 18, 1934, or otherwise.
See also Cohen’s, supra, p. 399, wherein it is said:
The corporate status of the Pueblos has been recognized in many cases.
The corporate status of Pueblo Indian communities', created in 1847, is still alive in New Mexico. Section 51-17-1, N.M.S.A. 1953 (Repl.Vol. 8, pt. 1). This section gave the Indian Pueblos the status of bodies politic and corporate, and, as such, empowered them to sue in respect of their lands. Lane v. Pueblo of Santa Rosa, 249 U.S. 110, 39 S.Ct. 185, 63 L.Ed. 504 (1918); Garcia v. United States, 43 F.2d 873 (10th Cir. 1930).
"In 1904, the Supreme Court of New Mexico held taxable the lands of the Pueblo Indians in New Mexico. Territory v. Delinquent Tax List, 12 N.M. 139, 76 P. 307 (1904).
The Tribe claims 25 U.S.C.A. § 465 is a restraint on state’s activities. This section applies to title to lands taken in the name of the United States in trust for the Indian tribe or individual Indian. Such lands are exempt from state and local taxation. Chartered Indian corporations are not covered by this section. But see, Martinez v. Southern Ute Tribe, 150 Colo. 504, 374 P.2d 691 (1962).
Under the state taxing acts, a “person” includes a corporation. They do not exclude Indian chartered corporations. Neither is the Indian chartered corporation exempt from payment of taxes. If it were intended to be an instrumentality of the United States, it would have been so stated in 25 U.S.C.A. § 477.
It might be noted that § 72 — 13-79, N.M. S.A.1953 (Repl. VoL 10, pt. 2, Supp.1969), of the Tax Administration Act, adopted in 1965, provides:
Liens will attach or levy may be made by terms of any provision of the Tax Administration Act * * * to or oii property belonging to the United States of America or to an Indian tribe, an Indian pueblo or any Indian only to the extent allowed by law.
Here again, the Indian chartered corporation is omitted.
Some states “have been given jurisdiction by federal statute over the reservations within their borders. The’ tribes within these states no longer exercise governmental functions independent of the state. Moreover, Congress has authorized all states to extend jurisdiction over tribes within their borders by official act” with tribal consent. 25 U.S.C.A., §§ 1321-22 (Supp.1970); 82' Harvard Law Review 1343. New Mexico has not moved toward assumption of jurisdiction.
The Mescalero Apache Tribe has left the 'confines of its reservation. It has donned the robes of a corporation to join its competitors in business. It stood high in its tradition as a separate “nation.” It now stands strong in its business and cultural development. As it earns money from citizens of this country, it should carry the same burdens of taxation as its competitors. It may even continue in additional ventures in business in every phase of corporate life. New Mexico should welcome this adventure as much as it has welcomed others to come in the last 123 years.
In my opinion, an Indian chartered corporation operating on non-Indian land is subject to the compensating tax and school tax of this state.
* For these reasons, I specially concur.