dissenting.
I. FACTS
The essential facts in this matter are simple and not in dispute. The appellant, Cabazon Indian Casino (herein “Casino”), is an unincorporated business entity established and solely owned by the Cabazon Band of Mission Indians (herein “Tribe”), a federally recognized Indian tribe. The Casino functions as a card parlor, restaurant and bar and is located entirely on tribal trust land established as an Indian reservation pursuant to the Mission Indian Relief Act, 26 Stat. 712, ch. 65 (1891). The land is desert land devoid of mineral or other natural resources and is not suited to agricultural use. Prior to tribal operation of the Casino the land produced no income. Through operation of the Casino the Tribe provides jobs for seventy-five people and generates revenue to provide government services to tribal members.
As debtor-in-possession, the Casino claims to be exempt from federal unemployment taxes and the employer’s portion of the social security tax. The Tribe claims an express exemption, by analogy, to the exemption in the Tax Code for States and political subdivisions and alternatively claims exemption as an Indian tribe deriving income directly from reservation land. It also asserts, in any event, that it is not liable for payment of penalties because its nonpayment is based upon a good faith belief that taxes are not due.
The respondent, United States Internal Revenue Service (herein “Government”) asserts a claim for the unpaid taxes and accrued statutory penalties.
The trial court allowed the Government’s tax claim and the assessment of penalties.
II. DISCUSSION
1.
The majority has correctly stated the general law regarding federal taxation of Indian tribes. Tax exemptions are not granted by implication. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 156, 93 S.Ct. 1267, 1274, 36 L.Ed.2d 114 (1972). However, Indian tribes, by treaty or statute, may be exempt from taxation if their in*405come falls within an express exemption or, if their income is derived directly from tribal lands. Squire v. Capoeman, 351 U.S. 1, 76 S.Ct. 611, 100 L.Ed. 883 (1956), Confederated Tribes v. Kurtz, 691 F.2d 878 (9th Cir.1982).
Contrary to appellant’s contention, an Indian tribe is not a State nor is it the instrumentality of a State and therefore it is not tax exempt under any exemption for States. It is also clear that neither the tax code nor its legislative history, except for recent specific exemptions noted by the majority, mention Indian tribes. Hence, there is no express exemption from federal taxation as to the taxes involved here.
The Tribe’s alternative contention, that the income is not subject to tax because it is derived directly from the land, is a more difficult issue to resolve.
Indian tribes are sovereign entities possessing all of the attributes of sovereignty except as relinquished through treaty with the United States or to the extent altered by Congress through legislation. This was first recognized by the Supreme Court in Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832). The court has never waivered in recognition of that sovereignty. See e.g. Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959); McClanahan v. Arizona Tax Comm., 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973).
Nonetheless, relative to the United States, the tribes stand in the relationship of ward to guardian. U.S. v. Rickert, 188 U.S. 432, 437, 23 S.Ct. 478, 480, 47 L.Ed. 532 (1903). Judicial interpretation of treaties and acts of Congress dealing with Indians is to be liberal and any doubtful expressions are to be resolved in the best interests of the Indians. Carpenter v. Shaw, 280 U.S. 363, 367, 50 S.Ct. 121, 122, 74 L.Ed. 478 (1930); Jones v. Meehan, 175 U.S. 1, 20 S.Ct. 1, 44 L.Ed. 49 (1899). U.S. ex rel. Hualpai Indians v. Santa Fe Pacific Railroad, 314 U.S. 339, 62 S.Ct. 248, 86 L.Ed. 260 (1941). It is not to be lightly assumed that the Congress intended to tax the ward for the benefit of the guardian. Squire v. Capoeman, 351 U.S. at 8, 76 S.Ct. at 615.
The Squire v. Capoeman case, which precluded taxation of income directly derived from the land, has been uncontrovert-ed and followed by case law for some twenty years.1
2.
The Cabazon Band’s reservation was created by the Mission Indian Relief Act of 1891, 26 Stat. 712, eh. 65, which contains the provision that “[t]he United States will convey the same [i.e. land] to the said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charges or incumbrance whatsoever.” 26 Stat. at 713, Sec. 5. The Ninth Circuit has held that this section provides that income derived directly from the land is not subject to taxation and construed it as having the same effect as similar language in Section 6 of the General Allotment Act which was construed in Squire v. Capoeman, supra. Kirkwood v. Arenas, 243 F.2d 863 (9th Cir.1957). The reason for this is that taxes, if not paid, may become a charge or encumbrance on land.
Consequently, if the income from the Casino, which is located on tribal trust land, is deemed to be income directly derived from the land it is free from taxation. The majority concludes that income from the Casino is not directly related to the land and is therefore subject to taxation. I believe that this conclusion is unwarranted and the cases upon which the majority relies are inapposite.
The income from the Casino is sufficiently related to the land so as to preclude taxation as held in Squire v. Capoeman, *406supra, which is controlling here. That case involved income from the harvesting of timber from reservation land. The court emphasized that, since timber production constituted the major value of the allotted land, unless such income was preserved for the Indian, his chances of competing economically with non-Indians would be diminished. Id., 351 U.S. at 10, 76 S.Ct. at 617.
Several cases subsequent to Squire v. Capoeman have found certain kinds of income to be income not directly derived from the land so as to fall under the Squire v. Capoeman exemption. Appellee asserts that these decisions require a restricted view as to the exemption claim of the Caba-zon Tribe. This rule of construction is inappropriate in the context of the issue before us. Moreover, a review of the facts in those cases reveals that they involve types of income which, for one reason or another, do not relate directly to tribal land, or do not involve tribes accorded tax exemption by treaty or statute.
United States v. Anderson, 625 F.2d 910 (9th Cir.1980), concerned income derived from the lease of the land of other Indians rather than, as here, the tribe’s own use of its own land.
Fry v. United States, 557 F.2d 646 (9th Cir.1977) involved tribal income from subcontracts it held with a non-Indian business which leased reservation land. Again, the Cabazon Tribe is the owner of the business which is located on tribal land.
Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973) involved state taxation of income from an off-reservation tribal enterprise, not the direct taxation of an on-reservation source of income.
Confederated Tribes v. Kurtz, supra, did not involve a treaty or statute containing the language from which the “directly derived” preclusion arises and hence that case is not precedent for this one in which a preclusive statute is involved. Indeed, Kurtz strongly suggests that were there a treaty or statute of the kind involved here, the ruling there would have been as in Squire v. Capoeman, supra.
The foregoing cases are not so much interpretations as dispositions based on specific factors, absent here, such as income from non-reservation lands, secondary income, or land not granted income exempt status by treaty or statute. In this case there is no question that the income is derived from expressly exempted land. The basic issue involves interpretation of the word “directly.” Thus, Squire v. Capoeman is the relevant authority.
3.
The case relied upon by the majority which involves facts similar to the case at bar is Critzer v. U.S., 597 F.2d 708, 220 Ct.Cl. 43 (1979), a United States Court of Claims decision.2 I respectfully submit that the Critzer case was erroneously decided.
The Critzer court held that income of an individual Indian landowner which was derived from a business operated in a building located on trust land was not tax exempt. The business was a motel and restaurant and gift shop. The court recognized that the land was necessary to generate the income but the income was also the result of the taxpayer’s labor and there was an element of reinvested income in the business. Because the income did not derive “from the land alone” it was not direct enough for the Critzer court to find it tax exempt. Id., 597 F.2d at 713. According to an analogy in Critzer, ownership and operation of a motel is more like the sale of stocks from a phone booth than the sale of timber removed from the land as in Squire v. Capoeman or income from farming as in Stevens v. Comm., 452 F.2d 741 (9th Cir.1971).
However, Squire v. Capoeman does not hold that income directly derived from the land must derive from the land alone nor does it hinge upon an analysis of the mix*407ture of personal services, labor and reinvestment income with the land. Even agriculture, particularly in modern times, can involve the interposition of machinery and labor to a substantial degree. Also, any business requires some degree of reinvestment of income. This is the nature of most enterprises, agricultural, mining, hotel or otherwise.
The Squire v. Capoeman decision clearly defined direct income in terms of original income vis a vis reinvestment of that income by distinguishing Superintendent of Five Civilized Tribes v. Commissioner, 295 U.S. 418, 55 S.Ct. 820, 79 L.Ed. 1517 (1985), which involved “ ‘income derived from investment of surplus income from land,’ or income on income, which Cohen termed ‘reinvestment income.’ ” Id., 351 U.S. at 9, 76 S.Ct. at 616. The Court determined that it was necessary to preserve the trust and exempt the income directly derived therefrom but not reinvestment income. Any other reading of the term “direct income.’ ” (as the obverse of reinvestment income) cannot receive support from Squire v. Capoeman which is the authority for the term.
The Critzer court, however, chose to emphasize aspects of the motel and restaurant business which make that business appear less closely related to the land upon which it is located than raising crops or cattle, cutting timber, or mining. On balance, the Critzer court determined, without analysis or quantification, that the income from a motel is not “primarily” derived from the land.3
Critzer, in addition, has misread Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973). That case endorsed Squire v. Capoeman and pointed out in footnote 12, p. 123: “In contrast to Squire, we find nothing fundamentally inconsistent with the intent of the Indian Reorganization Act in permitting gross receipts of the Tribe’s off-reservation enterprise to be subject to nondiscriminatory state taxes.” (emph. supp.)
As Critzer points out, in Mescalero, the land was tax exempt under a federal statute, 25 U.S.C. § 465, but that statute does not, as in the type of case before us, involve statute or treaty language of the kind ruled on by Squire v. Capoeman. The statute in Mescalero simply exempted from taxation gross income from the use of U.S. Forest Service scenic land. Since the land in question was not Indian reservation land held in trust, there could be no issue as to encumbering such land.
In the context of federal Indian law the Critzer court’s resolution of, at best, a doubtful issue against appellant is questionable. The issue before us concerns a federally recognized Indian tribe. It is settled law that close or doubtful issues should be resolved in favor of, not against, the tribe. Courts should not weigh shades of meaning, possible interpretations, and construct far-removed analogies to reach a result that burdens the tribe with the subject taxes. See Stevens v. C.I.R., 452 F.2d 741, 744 (9th Cir., 1971) citing from Carpenter v. Shaw, 280 U.S. 363, 367, 50 S.Ct. 121, 122, 74 L.Ed. 478 (1930). “Doubtful expressions are to be resolved in favor of the weak and defenseless people who are wards of the nation, dependent on its protection and good faith.”
If the question of income “directly derived” is examined in a practical sense, I agree that a business selling stocks and bonds, operated from a phone booth, and netting a million dollars a year would present a question as to the relationship of income to the use of the land. But, where there is significant use of real property as from a farm or timber operation or the operation of businesses in substantial structures necessarily involving use of the real estate for the structures, utilities, roads for access, parking, etc., it is another matter. There may be a question as to *408precisely where the line is to be drawn separating derivation from the land from non-derivation from the land. But a basic consideration should be the intention of Congress to transform wards of the government into economically independent people. They should be encouraged to put the land to use.
Presumably, as Indians become economically viable, Congress will release the land from the trust relationship. When that time comes the land is to be unencumbered. That is why the General Allotment Act and the Mission Indian Relief Act provide that there can be no taxation of income from the land because that taxation might become a charge against the land.
In the light of this expressly stated purpose, it is inappropriate to view the issue of income “directly derived,” as defined in cases such as Squire v. Capoeman, with a finely spun negative perspective. The basic rule of construction requires an outlook favorable to the economic emancipation of the Indians free of encumbrances.
It is in fact natural to assert that income derived from an on-reservation business is income derived from the land. The majority itself asserts that “prior to operation of the Casino, the Band’s land produced no income.” While it is possible that the Tribe could establish a business upon leased premises off the reservation, it instead chooses to operate from reservation land. That is, quite likely, not a matter of happenstance. To begin with, the land is owned by the Tribe, at least beneficially. Further, by operating on the reservation the Tribe escapes state and local taxes and other regulations which cannot reach on-reservation, tribally-owned businesses. Thus, the Tribe may derive a competitive advantage over similar, non-Indian businesses which must pay such taxes and meet such regulations and pass that cost of doing business on to their customers. The development and operation of enterprises based on tax consequences, if this is a consideration, is not an unusual event. It is a significant factor throughout our economic system.
It may also be that the casino gambling business is not legal in the surrounding area and hence the reservation status of the land on which the business is located is essential in the legal operation of a business for which there is a local demand but no other local supply.4
Consequently, the land, and most particularly the status of the land as reservation land, is crucial to the tribal business. Certainly the business may involve some reinvestment of income. Any enterprise in modern times, in order to be economically viable, whether agricultural, mining, logging, or otherwise, involves the mixture of labor and equipment with the real estate on which it is located. Businesses involving personal services, equipment, and the substantial use of land should not be limited to the foregoing basic activities. There are many options for the use of land. Indians should not be confined, in distinction to the infinite opportunities afforded the community at large, to land use limited to these traditional occupations. The essential fact here is that the business is owned by Indians and located on tribal land. There is no use to which the tribe can put the land in question other than the establishment of an economic activity which will draw customers onto reservation land to spend their money within structures built on the land for the purpose of housing and conducting the activity. The happenstance that exemption from taxation might bring about an economic advantage should be a neutral factor. Again, economic motivations in the business community at large are not infrequently founded on tax considerations. Decisions as to use of tribal land presumably will be likewise affected.
*409The majority weighs distinctions regarding the degree to which personal services, labor and reinvestment income are involved in the business and finally concludes, without giving consideration to the necessity of land use for income production, that the Casino’s business is so dissimilar to a logging operation that it cannot be tax exempt. Such a distinction is artificial, ignores the essential relationship of the business to tribal land, and fails to apply the long standing principle that doubtful issues should be construed favorably for the tribe.
As to the penalty and interest issue, on the basis of the views expressed here, it should not be a factor. In any event, there is no reason to find or conclude that the failure to pay was not attributable to a bona fide belief that the Tribe was exempt from these taxes. Under those circumstances, award of a penalty against the Tribe is inappropriate.
I therefore am constrained to dissent.
. The Internal Revenue Service has observed this provision in accordance with the liberal construction standard of Carpenter v. Shaw, supra. See Rev.Rul. 67-284 and Rev.Rul. 81-291 holding income tax statutes do not tax Indian tribes and tribal corporations. The IRS, if it felt that public policy should be otherwise, presumably would not have made these rulings. Its conclusions are entitled to consideration. See Confederated Tribes v. Kurtz, 691 F.2d at 881, n. 2.
. This case was followed by Hale v. U.S., 579 F.Supp. 646 (E.D.Wn.1984) which held that Tribal income in the form of rent derived from lease of allotted land for operation of a smok-eshop business was not exempt from taxation.
. The concept of land or real estate encompasses the improvements on it. It would be beyond the scope of this opinion to expand on the character of major income producing structures such as hotels, resorts, office buildings and shopping centers, other than to take judicial notice of that character as real estate.
. Certain kinds of business or enterprise may incur public approbation — or disapprobation. In the context of the issue before us, however, as to whether income from the activity is subject to taxation, the nature of the business should not be germane. It may also be noted that the states are becoming involved with gambling of all sorts, e.g., casinos, horse and dog racing, and lotteries.