(dissenting).
I 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.1
I 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 “the holding in Warren Trading Post did not establish that federally licensed Indian traders could not be subjected to a state tax.” State ex rel. Ariz. Dep’t 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 “ ‘selling any tangible personal property whatever at retail,’ ” 380 U.S. at 686 n. 1, 85 S.Ct. at 1243 n. 1 (quoting Ariz.Rev.Stat. § 42-1312), it is not clear to me how the Court’s 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’s abbreviated quotation from Central Machinery, that the Indian trader statutes must be given “ ‘a sweep as broad as [their] language, * * * and interpreted] * * * in light of the intent of the Congress that enacted them.’ ” 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 “services” 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).
I 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.
The 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’Cheskey, 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’g 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.
The balancing begins with an examination of “the 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.” White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 144-45, 100 S.Ct. 2578, 2584, 65 L.Ed.2d 665 (1980).
The language of the Indian Trader Act nowhere refers to “services.” 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. § 261 gives the Commissioner of Indian Affairs authority to regulate “the kind and quantity of goods and the prices at which such goods shall be sold to the Indians”; 25 U.S.C. § 263 authorizes the President “to prohibit the introduction of goods, or of any particular article into the country belonging to any Indian tribe”; and 25 U.S.C. § 264 provides that one “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.” 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.
The 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.
Like 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 “to trade” 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) (“It is manifest that, to trade with the Indians, [the traders] must have goods to sell.”).
The earliest versions of the Indian Trader Act prohibited its application “to 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.” 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 “white population, which carries on with them almost every kind of commerce incident to their condition,” 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 “almost every kind of commerce” with their white neighbors.
While it is possible that the failure to mention “services” 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. § 437 (1988) (amended in 1980 to include “service” in what federal employees “may purchase from or sell to any Indian,” 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) .2
Nor am I convinced by the majority’s reference to twentieth century cases implying that “trade” 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 “service” 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 “trade” to such transactions. Broader dicta employed by the Court in describing “trade” 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 “merchandise,” “chattels,” and/or “goods.” 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).
In large measure, the definition must depend on its context and whether “trade” 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 “trade” in what the majority calls the “broader” sense, i.e., “ ‘equivalent to occupation, employment, or business, whether manual or mercantile.’ ” 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 “trade” 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:
And 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.
Id. at 142.
It also seems that the early Congresses understood that the “traders” 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 “to 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.” Act of May 6, 1822, ch. 58, 3 Stat. 682.
Most significantly, courts which have considered this issue, i.e., whether the Act was intended by Congress to apply to “services,” have rejected the conclusion adopted by the majority. United States ex rel. Keith v. Sioux Nation Shopping Center, 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 990.3
Again, 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).
Finally, 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).
In 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 — 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’s pragmatic approach is necessary.
Based 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.
. The majority insists on labeling my opinion as one which reaches the "conclusion that services are not governed by the Indian trader statutes.” 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.
. If, indeed, Congress has anywhere intimated the intent to regulate Raytheon’s contract to provide management services to Laguna Industries, it would appear to be within the ambit of 25 U.S.C. § 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. § 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. § 81 applied in the absence of federal statutes directly regulating management contract regarding reservation bingo by tribal enterprise).
. 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).