APPEAL FROM THE SUPREME COURT OF ARIZONA.
Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White, Goldberg
MR. JUSTICE BLACK delivered the opinion of the Court.
Arizona has levied a tax of 2% on the "gross proceeds of sales, or gross income" of appellant Warren Trading Post Company, which does a retail trading business with
Indians on the Arizona part of the Navajo Indian Reservation under a license granted by the United States Commissioner of Indian Affairs pursuant to 19 Stat. 200, 25 U. S. C. § 261 (1958 ed.).*fn1 Appellant claimed that as applied to its income from trading with reservation Indians on the reservation the state tax was invalid as (1) in violation of Art. I, § 8, cl. 3, of the United States Constitution, which provides that "Congress shall have Power . . . To regulate Commerce . . . with the Indian Tribes"; (2) inconsistent with the comprehensive congressional plan, enacted under authority of Art. I, § 8, to regulate Indian trade and traders and to have Indian tribes on reservations govern themselves. The State Supreme Court rejected these contentions and upheld the tax, one Justice dissenting. 95 Ariz. 110, 387 P. 2d 809. The case is properly here on appeal under 28 U. S. C. § 1257 (2) (1958 ed.). Since we hold that this state tax cannot be imposed consistently with federal statutes applicable to the Indians on the Navajo Reservation, we find it unnecessary to consider whether the tax is also barred by that part of the Commerce Clause giving Congress power to regulate commerce with the Indian tribes.
The Navajo Reservation was set apart as a "permanent home" for the Navajos in a treaty made with the "Navajo nation or tribe of Indians" on June 1, 1868.*fn2 Long before that, in fact from the very first days of our Government, the Federal Government had been permitting the Indians largely to govern themselves, free from state
interference,*fn3 and had exercised through statutes and treaties*fn4 a sweeping and dominant control over persons who wished to trade with Indians and Indian tribes. As
Chief Justice John Marshall recognized in Worcester v. Georgia, 6 Pet. 515, 556-557:
"From the commencement of our government, congress has passed acts to regulate trade and intercourse with the Indians; which treat them as nations, respect their rights, and manifest a firm purpose ...