KAHN v. ARIZONA STATE TAX COMMISSION
411 U.S. 941

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U.S. Supreme Court

KAHN v. ARIZONA STATE TAX COMMISSION , 411 U.S. 941 (1973)

411 U.S. 941

Edmund D. KAHN et ux.
v.
ARIZONA STATE TAX COMMISSION.
No. 71-1263.

Supreme Court of the United States

April 23, 1973

The motion to dispense with printing the jurisdictional statement is granted. The appeal is dismissed for want of a substantial federal question.

Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN concurs, dissenting from dismissal.

Appellants, after exhausting administrative remedies, brought suit in the Superior Court of the State of Arizona to recover personal income tax assessments paid under protest for the years 1967-1969. The assessments in question were imposed on the income of the appellant

Page 411 U.S. 941 , 942

husband, which he earned while being employed first as a law clerk and then later as an attorney for the Navajo Tribe. Appellant's salary was paid out of Indian tribal funds. Appellants, who are not Indians, resided within the reservation. The Superior Court dismissed the suit for failure to state a claim upon which relief could be granted. The Arizona Supreme Court affirmed the dismissal.

Appellant's employment was controlled by 25 U.S.C. 81, which governs the conditions under which contracts can be made with Indian tribes or Indians. Even more specifically, appellant's employment was subject to the regulations promulgated by the Secretary of the Interior in 25 CFR 72.1-72.25. Under these regulations, any attorney performing legal services for the Indian tribe must have his employment contract, which includes fees and expenses, approved by the Secretary of the Interior. (25 CFR 72.1.) In addition, in determining the appropriateness of the fees, the amount of tribal funds held in the tribal treasury, not otherwise appropriated and available for payment, must be considered. (25 CFR 72.5.) Tribal funds may not be used for payment of attorney fees and expenses in the absence of express authorization by Congress. (25 CFR 72. 6.) In order to be eligible to act as an attorney for an Indian tribe, the area director must review the applying attorney's references and qualifications and transmit a recommendation to the Secretary of the Interior. (25 CFR 72.4.) In order to be qualified to provide such representation, the attorney must be admitted to practice before the Department of the Interior and the bureaus thereof. (25 CFR 72.2.) An attorney performing legal services for an Indian tribe is subject to criminal penalties for the violation of the statutes governing attorney contracts with Indian tribes (18 U.S.C. 438), and can be fired by the Secretary of the Interior (Udall v. [411 U.S. 941 , 943]


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