White Mountain Apache Tribe v. Williams 810 F.2d 844

AMENDED OPINION

NORRIS, Circuit Judge:

The court’s amended opinion of August 20, 1986, reported at 798 F.2d 1205, is withdrawn. The following disposition replaces the court’s previous opinion.

This appeal presents the question whether Pinetop Logging Company (“Pinetop”) and the White Mountain Apache Tribe (the “Tribe”) have stated a claim under 42 U.S.C. § 19831 for which attorney’s fees *846are available under the Civil Rights Attorney’s Pees Award Act, 42 U.S.C. § 1988 (1976).2

I

The facts of this case are set out more fully in White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980). In brief, the White Mountain Apache Tribe, which inhabits a reservation in Arizona, organized a tribal enterprise to harvest timber. In 1969 the enterprise entered into a contract with Pi-netop Logging Company which provided that Pinetop would perform logging operations on the reservation. Id. at 139, 100 S.Ct. at 2581. In 1971, the Arizona Highway Department and the Arizona Highway Commission assessed a motor carrier license tax and a use fuel tax against Pine-top for activities it performed pursuant to the contract. Id. at 139-40, 100 S.Ct. at 2581. Pinetop paid the taxes under protest, and then brought suit in state court to recover them. Id. at 140,100 S.Ct. at 2581.

In December 1973, after the Tribe had agreed to reimburse Pinetop for the assessed taxes, id. at 140, 100 S.Ct. at 2581. Pinetop and the Tribe brought suit in federal court, seeking a declaratory judgment and an injunction to prevent any further imposition of state taxes against Pinetop.3 In their federal complaint, Pinetop and the Tribe contended that federal law preempted the state tax laws and that the tax violated their rights to due process and equal protection.

Shortly after commencement of the federal action, the State of Arizona filed a motion requesting the district court to abstain on the ground that “the Arizona tax statutes here in question may be susceptible to an authoritative construction by the state courts in the pending state court action that would avoid or modify the Federal constitutional questions raised.” The district court granted the motion, relying on the Supreme Court’s decision in Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), and at the same time granted a consent temporary restraining order forbidding the state agencies to assess further taxes against Pine-top.

Although not required to do so, Pinetop and the Tribe then elected to submit their federal preemption, due process, and equal protection claims to the Arizona courts along with the questions of state law. In May 1975, the Arizona Superior Court rejected all their claims, state and federal, and entered judgment for the state. The federal district court then dismissed the federal action sua sponte. In early 1976, however, upon the motion of Pinetop and the Tribe, the district court vacated the dismissal order and entered a consent preliminary injunction pending final outcome of the state proceedings. In 1978, the Arizona Court of Appeals affirmed the state trial court judgment, characterizing the Tribe’s arguments as “pure sophistry.” White Mountain Apache Tribe v. Bracker, 120 Ariz. 282, 290, 585 P.2d 891, 899 (Ct. App.1978), rev’d, 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980).

After the Arizona Supreme Court declined review, the state returned to federal district court with a motion to quash the consent preliminary injunction and to *847dismiss the federal action. The district court denied the state’s motion. The United States Supreme Court then reversed the Arizona Court of Appeals, holding that the state taxes were preempted because the comprehensive federal regulatory scheme governing the harvest and sale of tribal timber had occupied the field and because the state taxes would interfere with federal goals and policies. 448 U.S. at 151, 100 S.Ct. at 2587. Armed with a favorable state court judgment on their federal claims, Pinetop and the Tribe then returned to the district court seeking a declaratory judgment, a permanent injunction and attorney’s fees.4 The district court granted all the relief sought, including attorney’s fees of $206,012.07. The state appeals. We reverse.

II

We first address the question whether Pinetop and the Tribe have stated a claim under § 1983 for which attorney’s fees are available under § 1988. Pinetop and the Tribe argue that a claim of preemption of the state’s power to tax Pinetop’s logging operations on the reservation constitutes a claim of deprivation of “rights, privileges, or immunities secured by the Constitution and laws” within the meaning § 1983. The Supreme Court decided in Bracker, supra, that the federal laws regulating the harvest and sale of tribal timber did preempt the Arizona tax statutes, reasoning that

Where ... the Federal Government has undertaken comprehensive regulation of the harvesting and sale of tribal timber, where a number of policies underlying the federal regulatory scheme are threatened by the taxes respondents seek to impose, and where respondents are unable to justify the taxes except in terms of a generalized interest in raising revenue, we believe that the proposed exercise of state authority is impermissible.

Bracker, 448 U.S. 136, 151, 100 S.Ct. 2578, 2587, 65 L.Ed.2d 665 (1980). Although the Court acknowledged that “traditional notions of Indian self-government ,.. provided an important ‘backdrop’ ” for its analysis, 448 U.S. at 143, 100 S.Ct. at 2583; it explicitly “based [its decision] on the preemptive effect of the comprehensive federal regulatory scheme” governing the timber harvest. Id. at 151 n. 15, 100 S.Ct. at 2588 n. 15.

The question whether the Supremacy Clause (U.S. Const, art. VI cl. 2) may be used as a sword in bringing a § 1983 action is, of course, different from that decided by the Supreme Court in Bracker — whether the Supremacy Clause may be invoked as a shield against the imposition of state taxes on tribal logging operations heavily regulated by the federal government. It is the former question that we must address.

Pinetop and the Tribe argue that because the federal laws that regulate timber operations on tribal lands are intended to benefit the Tribe, the laws may serve as the basis for a § 1983 claim. That the Tribe benefits from the federal timber regulations, however, is not dispositive of the issue. In this case, Pinetop and the Tribe did not prevail in the Supreme Court on a theory that the state had violated any of the federal laws or regulations governing logging operations on tribal lands. Rather, the Supreme Court in Bracker reasoned that state taxes were preempted because the federal government had pervasively regulated tribal logging operations and because state taxation would interfere with the goals and purposes of the federal regulatory scheme.

Thus the question presented is whether the Tribe’s preemption claim, based on federal occupation of a regulatory field and *848inconsistency of state action with federal goals and policies, will support a civil rights action under § 1983.

A

The Supreme Court has never directly addressed the question whether the Supremacy Clause creates “rights, privileges or immunities” within the ambit of § 1983. In Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979), however, the Supreme Court did hold that the Supremacy Clause is not a substantive constitutional provision that creates rights within the meaning of 28 U.S.C. § 1343(3). Id. at 612-15, 99 S.Ct. at 1913-14.5 The Court noted, “even though that Clause is not a source of any federal rights, it does ‘secure’ federal rights by according them priority whenever they come in conflict with state law. In that sense all federal rights, whether created by treaty, by statute, or by regulation are ‘secured’ by the Supremacy Clause.” Id. at 613, 99 S.Ct. at 1913. Under Chapman, therefore, the Supremacy Clause, standing alone, “secures” federal rights only in the sense that it establishes federal-state priorities; it does not create individual rights, nor does it “secure” such rights within the meaning of § 1983.

The primary function of the Supremacy Clause is to define the relationship between state and federal law. It is essentially a power conferring provision, one that allocates authority between the national and state governments; thus, it is not a rights conferring provision that protects the individual against government intrusion. The distinction between the two categories of constitutional controls has been enunciated by Professor Choper:

When a litigant contends that the national government (usually the Congress, but occasionally the executive, either alone or in concert with the Senate) has engaged in activity beyond its delegated authority, or when it is alleged that an attempted state regulation intrudes into an area of exclusively national concern, the constitutional issue is wholly different from that posed by an assertion that certain government action abridges a personal liberty secured by the Constitution. The essence of a claim of the latter type — which falls into the individual rights category of constitutional issues ... — is that no organ of government, national or state, may undertake the challenged activity. In contrast, when a person alleges that one of the federalism provisions of the constitution has been violated, he implicitly concedes that one of the two levels of government — national or state — has the power to engage in the questioned conduct. The core of the argument is simply that the particular government that has acted is the constitutionally improper one. To put it another way, a federalism attack on conduct of the national government contends that only the states may so act; a federalism challenge to a state practice asserts that only the central government possesses the exerted power; neither claim denies government power altogether.

J. Choper, Judicial Review in the National Political Process, 174-75 (1980) (quoted with approval in United Nuclear Corp. v. Cannon, 564 F.Supp. 581 (D.R.I.1983) and Consolidated Freightways v. Kassel, 556 F.Supp. 740, 746 (S.D.Iowa 1983) aff'd 730 F.2d 1139 (8th Cir.), cert. denied, 469 U.S. 834, 105 S.Ct. 126, 83 L.Ed.2d 68 (1984)).

We believe that § 1983 was not intended to encompass those constitutional provisions which allocate power between the state and federal government. See Consolidated Freightways v. Kassel, supra, 730 F.2d at 1146 & n. 16. The following excerpt from a speech by Representative Shellabarger, a leading proponent of the 1871 Act, confirms the limited intentions of the framers of the § 1983:

*849Most of the provisions of the Constitution which restrain and directly relate to the States, such as those in tenth section of first article, that “no State shall make a treaty,” “grant letters of marque”, “coin money,” “emit bills of credit,” & c., relate to the divisions of the political powers of the State and General Governments. They do not relate directly to the rights of persons within the States and as between the States and such persons therein. These prohibitions upon the political powers of the States are of such a nature that they can be, and even have been, when the occasion arose, enforced by the courts of the United States declaring void all State acts of encroachment on Federal Powers. Thus, and thus sufficiently, has the United States “enforced” these provisions of the Constitution. But there are some that are not of this class. These are where the court secures the rights or liabilities of persons within the States, as between such persons and the States.

Cong. Globe, 42d Cong. 1st Sess., App. 69 (1871). As the Eighth Circuit has observed, “the implication of Rep. Shellabar-ger’s statement is that § 1983 was enacted to provide a remedy for the latter category of constitutional violation he mentions, and not the former.” Consolidated Freight-ways v. Kassel, supra, 730 F.2d at 1146 n. 16.

Following the lead of the Supreme Court in Chapman and the framers of § 1983, the District of Rhode Island has answered in the negative the question whether the Supremacy Clause will support an action based on § 1983. In United Nuclear Corp. v. Cannon, 564 F.Supp. 581 (D.R.I. 1983), a utility sought fees under § 1988 after successfully challenging on preemption grounds a state statute imposing a bonding requirement on a nuclear power generating facility. The court there held that a successful Supremacy Clause challenge to state legislation could not serve as the basis for a § 1983 action, and hence attorney’s fees were not available under § 1988. Id. at 585-87. The Eleventh Circuit reached the same conclusion in a decision affirming the dismissal of a § 1983 action: “The sole cause of the unconstitutionality was the supremacy clause. Therefore Pirolo is not entitled to a § 1983 remedy for enforcement of the ordinances.” Pi-rolo v. City of Clearwater, 711 F.2d 1006, 1011 (11th Cir.), reh’g denied, 720 F.2d 688 (11th Cir.1983).

An analogous question is posed by the invocation of § 1983 in cases based on the dormant Commerce Clause, another constitutional provision that has as its primary function the allocation of power between national and state governments. The most extensive treatment of the issue was provided by the Eighth Circuit in Consolidated Freightways v. Kassel, supra, a case in which a trucking firm sought § 1988 attorney’s fees based on its successful dormant Commerce Clause challenge to an Iowa statute banning 65-foot twin trailer trucks. The Eighth Circuit held that

Although the Commerce Clause differs from the Supremacy Clause in that the Commerce Clause is a specific grant of legislative power to Congress, the two clauses are analogous in the sense that both clauses limit the power of a state to interfere with areas of national concern. Just as the Supremacy Clause does not secure rights within the meaning of § 1983, neither does the Commerce Clause.

Id. at 1144. The Eighth Circuit’s reasoning implies that the Supremacy Clause alone will not support a § 1983 action.

A similar question was addressed in Con-nor v. Rivers, 25 F.Supp. 937 (N.D.Ga. 1938), aff'd, 305 U.S. 576, 59 S.Ct. 359, 83 L.Ed. 363 (1939). There, the district court decided that a dormant Commerce Clause claim did not provide jurisdiction under § 1343(3) — the provision for federal jurisdiction over civil rights cases irrespective of the amount of controversy — based on an analysis of the history of § 1983.6 Id. at *850938. Because Connor was decided at a time when the general federal question jurisdictional provision contained an amount in controversy provision, the suit could only be maintained in federal court if it was maintainable as a civil rights action under § 1343(3). The Supreme Court affirmed Connor in a one sentence per curiam opinion noting the lack of the requisite jurisdictional amount in controversy. Connor reinforces the conclusion we draw from Chapman: power conferring provisions of the Constitution do not create “rights, privileges, or immunities” within the meaning of § 1983. Although there are federal court decisions that have held or assumed that the dormant Commerce Clause does support an action under § 1983,7 we find them unpersuasive because they do not undertake a substantial analysis of the issue. See Consolidated Freightways Corp. v. Kassel, 556 F.Supp., at 744-45.

We thus come down on the side of the weight of authority that preemption of state law under the Supremacy Clause — at least if based on federal occupation of the field or conflict with federal goals — will not support an action under § 1983, and will not, therefore, support a claim of attorney’s fees under § 1988.8

B

Pinetop and the Tribe do not directly confront the question whether the actual ground on which the decision in Bracker was made — preemption based on federal “occupation of the field” and “conflict with federal goals” — will support a § 1983 action. Rather, their argument seems to assume that there is a direct conflict between Arizona’s tax and the federal regulations governing timbering on tribal lands. Thus, the Tribe’s argument emphasizes the statutory scheme regulating logging operations on tribal lands — an emphasis that would be appropriate were this a direct conflict case. Because Arizona tax does not directly violate any federal law or regulation, the Tribe’s argument does not confront the crucial issue.

In developing their argument, Pinetop and the Tribe rely on Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), in which the Court held that plaintiffs could recover in an action grounded on state violations of the Social Security Act because “the § 1983 remedy broadly encompasses violations of federal statutory as well as constitutional law.” Id. at 4,100 S.Ct. at 2504. Unlike the situation in Thiboutot, no federal statute or regulation was violated by the Arizona tax on Pine-top’s logging operation. Moreover, although some courts broadly interpreted the Thiboutot language to mean that § 1983 encompassed all federal statutes, see, e.g., Yapalater v. Bates, 494 F.Supp. 1349, 1358 (S.D.N.Y.1980), aff'd, 644 F.2d 131 (2d Cir. 1981), cert. denied, 455 U.S. 908 (1982), the Supreme Court has since recognized that not all federal statutes secure rights within the meaning of § 1983. See Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1, 19, 101 S.Ct. 2615, 2625, 69 L.Ed.2d 435 (1981); Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981).

Recognizing the Supreme Court’s limitation of Thiboutot imposed by Sea Clam-mers and Pennhurst, Pinetop and the Tribe contend that our decision in Boat-owners and Tenants Association v. Port *851 of Seattle, 716 F.2d 669 (9th Cir.1983) supports their position. In Boatowners, an association of pleasure craft owners charged that the manner of operation of a municipal marina violated the River and Harbor Improvements Act, 33 U.S.C. §§ 540-633 (1982), and thereby constituted a deprivation of federal statutory rights cognizable under § 1983. We found that although pleasure craft owners certainly benefitted from the general navigational improvements fostered by this federal scheme, “there is no indication that the statute was intended to benefit specially the pleasure craft owners ... nor that Congress intended to confer federal rights on [them].” Id. at 673 (footnote omitted). Accordingly, we held that the pleasure craft owners as a class had no “enforceable rights” as required by Pennhurst and Mid-dlesex County for maintaining a § 1983 action. Pinetop and the Tribe argue that they are “specially benefitted” by the federal laws and regulations governing timber operations on tribal lands. Thus, they contend that Supremacy Clause preemption by those laws and regulations creates a “right, privilege or immunity” within the meaning of § 1983.9

The relevant focus for inquiry, however, is not primarily whether the regulatory scheme was designed to benefit the Indians. Indeed it may have been so designed. Rather the focus must be on the basis of the Supreme Court’s decision in Bracker —preemption pursuant to the Supremacy Clause. So directed, our inquiry leads to the conclusion that the Bracker decision is grounded not on individual rights but instead on considerations of power —the division of authority between the states and the national government. As the Court noted, “At the most general level, the taxes would threaten the overriding federal objective of guaranteeing Indians that they will ‘receive ... the benefit of whatever profit [the forest] is capable of yield-ing____’” Bracker, supra, 448 U.S. at 149, 100 S.Ct. at 2586 (citation omitted) (emphasis added). The court continued: “In addition the taxes would undermine the Secretary’s ability to make the wide range of determinations committed to his authority concerning the setting of fees and rates with respect to the harvesting and sale of tribal timber.” Id. (emphasis added) Hence, the focus of concern in Bracker is state interference with federal policy objectives and the free exercise of authority by federal officials — not individual or tribal rights.

Moreover, the Tribe’s exemption from state taxation of its timber business does not implicate individual rights; rather the exemption derives from its status as a sovereign.10 See Bracker, 448 U.S. at 148,100 *852S.Ct. at 2586. Nor did the federal legislation create in the Tribe any new interest in the timber; the timber was already “owned by the United States for the benefit of the Tribe....” Id.at 138,100S.Ct.at2580. The central thrust of the legislation is merely to vest in the Secretary of the Interior authority to regulate the business of harvesting and selling the timber. See 25 U.S.C. §§ 406-407 (1982). In exercising that authority, the Secretary, of course, is required to base his decisions “upon a consideration of the needs and best interests” of the tribal owner. Id. § 406(a). However, the critical inquiry-as the Supreme Court made particularly clear in Sea Clammers — is whether there is any basis for the judiciary to infer a congressional intent to create rights enforceable under § 1983. 453 U.S. at 19-20, 101 S.Ct. at 2625-26. We find no basis for inferring such an intent in this case. For the purpose of applying § 1983 doctrine as enunciated in Thiboutot and its progeny, we see nothing remarkable about the fact that Congress intended the federal regulation to protect the interests of the beneficial owner of the timber. Indeed, the kind of regulatory legislation involved in this case is analogous to that involved in Boatowners where we also found no “enforceable rights.” 716 F.2d at 673-74. There it was the regulation of municipal marinas; here it is the regulation of tribal timber business.

In sum, the Arizona tax on Pine-top’s logging operations did not violate any federal statute. Nor is the existence of a federal “goal” or “policy”, standing alone, sufficient to create a right cognizable under § 1983. Rather, the tax ran afoul of the Supremacy Clause because it was deemed to interfere in a general way with the authority and policies of the federal government. To be sure, the Supremacy Clause shielded the Tribe’s timber business from state taxation, giving the Tribe a federal defense to any action brought by the state to collect the taxes; it does not follow, however, that in enacting the regulatory legislation, Congress intended to confer on the Tribe the right to use § 1983 as a sword to enjoin the collection of state taxes. The Tribe’s § 1983 claim, rooted as it is in the power conferring function of the Supremacy Clause, must fail.

We therefore hold that the preemption claim of Pinetop and the Tribe does not give rise to a claim cognizable under § 1983. Accordingly, we conclude that the preemption claim does not support an award of attorney’s fees under § 1988.

III

Plaintiffs argue in the alternative that even if their preemption claim does not give rise to a fee award under § 1988, they are entitled to fees on the basis of pendent Fourteenth Amendment claims pleaded in their original federal complaint. Plaintiffs rely upon Maher v. Gagne, 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980), for the proposition that a plaintiff who prevails on a claim not cognizable under § 1983 may recover fees under § 1988 on the basis of an unadjudicated constitutional claim that satisfies the “substantiality” test of Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974).

We reject this claim principally because plaintiffs have failed to provide us with any meaningful basis for evaluating their Fourteenth Amendment claims. All we have to go on in trying to understand and analyze the claims are the bare allegations in the complaint filed at the outset of the federal court action. Plaintiffs tell us nothing more about the claims other than that the complaint “specifically alleges claims under the Equal Protection Clause, Due Process Clause, and Indian Commerce Clause.” Appellees’ Answering Brief, at *85350-51. We find these allegations, standing alone, far too meager to enable us to determine whether the claims meet the substantiality test of Hagans v. Levine.11

The merit of plaintiffs’ constitutional claims is rendered suspect not only by plaintiffs’ failure to present this court with anything beyond a reference to the bare bones allegations of the complaint, but also by plaintiffs’ failure to litigate these claims in the state courts. After the district court entered its Pullman absention order, plaintiffs tendered their due process and equal protection claims along with their preemption claim to the state court by copying verbatim their complaint filed before the district court. See Appellees’ Answering Brief, at 7. However, plaintiffs never pressed either their due process or equal protection claims, despite the fact that they were consistently receiving unfavorable judgments from the state courts on their preemption claim.12 Moreover, we agree with Amici Curiae that it is difficult to take these Fourteenth Amendment claims seriously “when the plaintiffs themselves did not think enough of the claims to even assert them in their brief to the U.S. Supreme Court.”13 Brief of Amici Curiae, at 8.

Even upon their return to the district court to seek attorney’s fees, plaintiffs failed to put any flesh on the bare bones allegations of their complaint. Their motion for fees states merely that their “complaint also alleges violations of the Equal Protection and Due Process Clauses and the Indian Commerce Clause.” Plaintiffs’ Motion for Award of Attorneys’ Fees Pursuant to 42 U.S.C. § 1988, at 11. The district court awarded fees on the basis of the preemption claim without mentioning the Fourteenth Amendment claims. Findings of Fact and Conclusions on the Plaintiffs’ Motion for an Award of Attorneys’ Fees Pursuant to 42 U.S.C. § 1988.

*854This is not a case where a § 1983 plaintiff seeks attorney’s fees on the strength of constitutional claims which were pressed but not adjudicated because of “the longstanding judicial policy of avoiding unnecessary decision of important constitutional issues.” Maher v. Gagne, 448 U.S. at 133, 100 S.Ct. at 2576. Rather, this is a case where the constitutional claims were never pressed beyond the original federal complaint until they were dusted off for use in seeking a fee award under § 1988. For all practical purposes, plaintiffs abandoned their Fourteenth Amendment claims when, following the invocation of Pullman abstention by the district court, they failed to press these claims before the state courts and the United States Supreme Court along with their preemption claim. In contrast, the pendent constitutional claims that provided the basis for a fee award in Maher were never abandoned and their substantiality was adjudicated by both the district court and the court of appeals. See Gagne v. Maher, 455 F.Supp. 1344,1348 (D.Conn.), aff'd, 594 F.2d 336 (2nd Cir.1978), aff'd, 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980).

Finally, and perhaps most troublesome, is plaintiffs’ failure to take advantage of their opportunity in this court for further exposition of their constitutional claims. They provide us with no meaningful analysis; the sole authority relied upon is Justice Stevens’ dissent in White Mountain Apache Tribe v. Bracker, 448 U.S. at 158, 100 S.Ct. at 2591, a reliance we find to be misplaced. In the first place, plaintiffs mischaracterize Justice Stevens’ dissent. They claim that he and Chief Justice Burger and Justice Rehnquist, who joined in the dissent, “felt that these state taxes did violate the due process and equal protection clauses”. Appellees’ Answering Brief, at 51 (emphasis added). All that Justice Stevens said was that Pinetop, as a private corporation doing business with an Indian Tribe, “may well have a right to be free from taxation as a matter of due process or equal protection,” Bracker, 448 U.S. at 157, 100 S.Ct. at 2590 (Stevens, J., dissenting) (emphasis added), if the taxes burden a federal regulatory scheme and “there [is] no governmental interest on the State’s part in imposing such a burden.” Id. at 157,100 S.Ct. at 2590. Indeed it would have been remarkable had Justice Stevens expressed the definitive opinion attributed to him by plaintiffs since preemption, not due process or equal protection, was the issue before the Court and the issue on which Justice Stevens disagreed with the majority. Justice Stevens’ comments were clearly made solely for the purpose of contrast in the context of emphasizing that whatever valid grounds Pinetop might have had for challenging the state taxes, preemption was not one of them.

The second reason plaintiffs’ reliance on Justice Stevens’ dissent is misplaced is that the record leaves no room for doubt that Justice Stevens was not addressing the Fourteenth Amendment claims alleged in plaintiffs’ federal complaint. Not only were those claims not before the Court in Bracker, which involved a review of the state court judgment, but also the dissent does not track the allegations of the federal complaint. Hence, whatever plaintiffs’ constitutional theories might be, Justice Stevens was not addressing them. Justice Stevens speculated about conceivable constitutional claims that Pinetop as a private corporation might have, whereas the allegations in the complaint focus on the Tribe’s status as a sovereign to enjoy treatment under Arizona tax laws on a par with the United States and the other states. Perhaps more importantly, Justice Stevens was speculating on possible constitutional implications of taxing vehicles used by Pi-netop solely on private property, whereas the gravamen of plaintiffs’ complaint is the state’s failure to give plaintiffs beneficial treatment in apportioning the fuel use tax and motor carrier tax based upon travel on public and private roads within the state.14 *855Moreover, while plaintiffs are correct in stating that Arizona’s use fuel tax is levied “for the purpose of partially compensating the state for the use of its highways,” Ariz.Rev.Stat.Ann. § 28-1552 (1976), they fail to point out that the tax is expressly levied “in lieu of” direct fuel taxes. Ariz. Rev.Stat.Ann. § 28-1554 (1976). As such, the use fuel tax is analytically indistinguishable from a direct fuel tax. We doubt that plaintiffs would seriously contend that Arizona can be forced to apportion direct fuel taxes collected at the pump.

We conclude on the basis of the record before us that the Fourteenth Amendment claims fail to meet the substantiality test of Hagans v. Levine and have been asserted in this action at this late date “solely for the purpose of obtaining fees in [an action] where ‘civil rights’ of any kind are at best an afterthought.” Maine v. Thiboutot, 448 U.S. 1, 24, 100 S.Ct. 2502, 2514, 65 L.Ed.2d 555 (1980) (Powell, J., dissenting). Thus we hold that plaintiffs are not entitled to a fee award on the basis of their unadjudicated constitutional claims.15

IV

The state also appeals from the district court order granting a declaratory judgment and a permanent injunction. Plaintiffs contend that the injunction and declaratory judgment were appropriate because the district court’s findings reflected a sufficient threat that the state would impose the impermissible taxes even after the Supreme Court barred it from doing so in White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980).

In the absence of a controversy “of sufficient immediacy and reality,” Maryland *856 Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941), a district court lacks jurisdiction to issue a declaratory judgment. Sellers v. Regents of the University of California, 432 F.2d 493, 499-500 (9th Cir. 1970), cert. denied, 401 U.S. 981, 91 S.Ct. 1194, 28 L.Ed.2d 333 (1971). Here, there is no evidence that state officials intend to ignore the Supreme Court’s decision in Bracker. The record in fact contains evidence to the contrary. After the Supreme Court’s decision, the state filed an affidavit stating that it did not intend to impose any of the disputed taxes on Pinetop and the Tribe. We have no basis for presuming from this record that the Arizona officials will not honor a final state court judgment based upon a decision of the United States Supreme Court. We therefore hold that the district court erred in concluding that a controversy “of sufficient immediacy and reality” supported the issuance of a declaratory judgment against assessment of the taxes for the years covered by the Supreme Court’s decision.

Plaintiffs further contend, however, that the district court properly entered a declaratory judgment on the merits covering the 1968-71 tax period, since assessments covering that period were never adjudicated by either the state courts or the Supreme Court. The state court tax refund action that ultimately reached the Supreme Court dealt only with taxes paid under protest after November 1971, and Pinetop and the Tribe argue that “each year is the origin of a new [tax] liability and a separate cause of action,” Commissioner v. Sunnen, 333 US,. 591, 598, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1948). They nevertheless concede that any attempt by the state to impose taxes covering the 1968-71 period would be thwarted by the doctrine of collateral es-toppel. Appellees’ Answering Brief at 27. See Montana v. United States, 440 U.S. 147, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979). We thus see no justification at this time for entering a declaratory judgment on the merits or granting injunctive relief covering the 1968-71 period.

REVERSED.

FLETCHER, Circuit Judge,

dissenting:

I respectfully dissent.

There are three separate and independent bases to support the district court’s award of attorney’s fees to the Tribe under 42 U.S.C. § 1988 (1982). The Tribe has raised civil rights claims under 42 U.S.C. § 1983 (1982) sufficient to support the section 1988 award based upon (1) Arizona’s alleged violations of the federal laws regulating the harvest and sale of reservation timber, 25 U.S.C. §§ 406-407, 466 (1982); (2) its alleged due process violations; and (3) its alleged equal protection violations by the state.

The Tribe raised these claims in its district court complaint,1 they “aris[e] out of a ‘common nucleus of operative fact’ “ along with the preemption claim upon which the Tribe prevailed in White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980); the claims have never been resolved or abandoned by the Tribe. H.R.Rep. No. 1558, 94th Cong., *8572d Sess. 4 n. 7 (1976) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966)); see Maher v. Gagne, 448 U.S. 122, 132 n. 15,100 S.Ct. 2570,' 2576, n. 15,65 L.Ed.2d 653 (1980) (quoting the House Report); Southeast Legal Defense Group v. Adams, 657 F.2d 1118, 1124-25 (9th Cir.1981); see also Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 3464, 82 L.Ed.2d 746 (1984). I find that the Tribe’s claim based on the federal reservation-timber laws is meritorious, and I find that its due process and equal protection claims satisfy the “substantiality” test of Hagans v. Lavine, 415 U.S. 528 (1974).2 Moreover, I conclude that the Tribe has the capacity to bring a section 1983 action in federal court to vindicate these claims.3 Therefore, based upon the legislative history of section 1988 and the Supreme Court’s decision in Maher v. Gagne, 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980), I conclude that each of the Tribe’s section 1983 claims is sufficient to justify the district court’s award of attorney’s fees. See H.R.Rep. No. 1558, supra, at 4 n. 7; S.Rep. No. 1011, 94th Cong., 2d Sess. 3 (1976); Maher, 448 U.S. at 132 n. 15, 100 S.Ct. at 2576 n. 15 (quoting House Report); Dennis v. Chang, 611 F.2d 1302, 1306 (9th Cir. 1980) (section 1988 “must be liberally construed to achieve [Congress's] ends” of en-couragpng] compliance with and enforcement of the civil rights laws”).

A. The Tribe’s Presentation of Its Section 1983 Claims to the Arizona State Courts

The State of Arizona contends that because the Tribe filed a complaint containing its due process and equal protection claims in the Arizona state courts after the district court entered its Pullman abstention order, the Tribe is somehow precluded from litigating its claim to section 1988 attor*858ney’s fees in the district court. I disagree. Such a conclusion would be directly contrary to the Supreme Court’s decision in England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1963), and to our court's decision in Tovar v. Billmeyer, 609 F.2d 1291 (9th Cir.1979).

In England, the Supreme Court provided that in cases where a federal district court enters an abstention order, “[i]f a party freely and without reservation submits his federal claims for decision by the state courts, litigates them there, and has them decided there, then ... he has elected to forgo his right to return to the District Court.” England, 375 U.S. at 419, 84 S.Ct. at 466 (emphasis added); accord To-var, 609 F.2d at 1294 {“[F]ree and unreserved submission to the state court of all federal claims for complete and final resolution is necessary to bar return to the federal court.”) (emphasis added). In the case before us, after the district court entered its abstention order, the Tribe did not submit its section 1983 claims for decision to the Arizona state courts or the United States Supreme Court, did not litigate them in those courts, and did not have them decided there. See White Mountain Apache Tribe v. Bracker, 120 Ariz. 282, 585 P.2d 891, 893-900 (Ariz.Ct.App.1978), rev’d, 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980); Bracker, 448 U.S. at 138, 100 S.Ct. at 2580. Thus, the Tribe would have been entitled, under the rules of England and Tovar, to litigate all its section 1983 claims when it returned to the federal district court. See Bartholomew v. Watson, 665 F.2d 910, 912-14 (9th Cir. 1982); see also Majority Opinion at p. 854 n. 14 (rejecting the State’s argument on the ground that England provides “a rule of res judicata,” not a “jurisdictional bar”).

The State contends that because the Tribe filed its federal-court complaint in the Arizona state courts and thereby “presented” its section 1983 claims to the Arizona courts, it is automatically precluded from “relitigating” those claims now in federal district court. However, the Tribe’s decision to file its federal complaint in its state-court action is not tantamount to litigating all of the claims contained in that complaint in the state courts and therefore does not automatically extinguish its right to reserve its federal claims for decision by the federal courts. The Supreme Court expressly contemplated such a procedure in England, stating that once an abstention order has been entered, a party “must inform th[e State] courts what his federal claims are, so that the state statute [involved] may be construed ‘in light of' those claims.” England, 375 U.S. at 420, 84 S.Ct. at 467. The Court explicitly indicated that

mere compliance with [this directive] will not support a conclusion, much less create a presumption, that a litigant has freely and without reservation litigated his federal claims in the state courts and so elected not to return to the District Court____ [even in the absence of an] explicit reservation ... the litigant is in no event to be denied his right to return to the District Court unless it clearly appears that he voluntarily did more than [this directive] require[s] and fully litigated his federal claims in the state courts.

Id. at 420-21, 84 S.Ct. at 467.

Thus, the Tribe’s decision to identify, but not litigate, its section 1983 claims in the Arizona courts did not preclude it from litigating those claims in the district court after the state court litigation was completed. A fortiori, the Tribe was not precluded from litigating its section 1988 attorney’s fees claim in the district court, since that claim was never even identified in the state-court litigation.4

*859B. The Tribe’s Section 1983 Claim Based Upon the Indian Reservation Timber Laws

The majority maintains that even if the Tribe’s claims were properly before the district court, violations of the federal laws regulating the harvest and sale of reservation timber, such as those alleged by the Tribe in this case, cannot give rise to a civil rights action under section 1983. I disagree. Section 1983 provides a cause of action for state officials’ violations of federal statutes whenever (1) the statutes create “enforceable rights,” and (2) Congress did not, in the statutes themselves, foreclose private enforcement of those rights through a section 1983 action. Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 18, 101 S.Ct. 2615, 2625, 69 L.Ed.2d 453 (1981); accord Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 1545, 67 L.Ed.2d 694 (1981); Almond Hill School v. United States Department of Agriculture, 768 F.2d 1030, 1035 (9th Cir.1985); Keaukaha-Panaewa Community Association v. Hawaii Homes Commission, 739 F.2d 1467, 1470 (9th Cir. 1984). I conclude that both these requirements are satisfied in respect to sections 406, 407, and 466, and that the Tribe is therefore entitled to vindicate its rights under these provisions in a section 1983 action. I further conclude, based upon the Supreme Court’s opinion in Bracker, that the Tribe’s section 1983 claim under these provisions is meritorious.

As the majority acknowledges, sections 406, 407, and 466 require the Secretary of the Interior to manage tribal timber resources based “upon a consideration of the needs and best interests” of the tribe, and to ensure that proceeds from any timber sales be paid to the tribe “or disposed of for [its] benefit,” subject only to limited deductions for “administrative expenses” incurred by the federal government. 25 U.S.C. §§ 406(a), 413; 25 C.F.R. § 163.18 (1985); see United States v. Mitchell, 463 U.S. 206, 222 n. 23, 224, 103 S.Ct. 2961, 2971, n. 23, 77 L.Ed.2d 580 (1983); Bracker, 448 U.S. at 145-47 & nn. 12-13, 149, 100 S.Ct. at 2584-85 & nn. 12-13, 2586 (citation omitted); Short v. United States, 719 F.2d 1133, 1135-36 (Fed.Cir.1983), cert. denied, 467 U.S. 1256, 104 S.Ct. 3545, 82 L.Ed.2d 849 (1984). The purpose of these provi sions is to ensure that tribes receive “ ‘the benefit of whatever profit [the forest] is capable of yielding,’ ” Bracker, 448 U.S. at 147, 149, 100 S.Ct. at 2585-86 (citation omitted); accord Mitchell, 463 U.S. at 221-22, 103 S.Ct. at 2970, and to provide that tribal timberlands be managed “ ‘so as to obtain the greatest revenue for ... Indians consistent with a proper protection and improvement of the forests.’ ” Mitchell, 463 U.S. at 224, 103 S.Ct. at 2971 (quoting U.S. Office of Indian Affairs, Regulations and Instructions for Officers in Charge of Forests on Indian Reservations 4 (1911)). The Supreme Court recently held, based largely upon its decision in Bracker, that these provisions establish a trust relationship between the federal government and tribes with timberlands on their reservations, and that they establish a “substantive right enforceable [by tribes] against the United States for money damages” under the Tucker Act if the federal government breaches its fiduciary duties.5 Mitch *860 ell, 463 U.S. at 216-18, 224, 226, 103 S.Ct. at 2967-68, 2971, 2972; accord Short, 719 F.2d at 1134-35 (interpreting Mitchell to cover both allotted and unallotted lands).

Our court recently held that a federal act establishing a land trust for the betterment of native Hawaiians created rights enforceable by those individuals under section 1983 against parties who interfere with or deprive them of their rights or benefits under the trust.6 Keaukaha-Panaewa, 739 F.2d at 1471-72. Similarly, the Eighth Circuit has held that interference by state or local officials with the rights of Indians who place their lands in trust with the federal government under 25 U.S.C. § 465 (1982)7 provides a basis for those Indians to bring section 1983 claims. See Chase v. McMasters, 573 F.2d 1011, 1017 (8th Cir.), cert. denied, 439 U.S. 965, 99 S.Ct. 453, 58 L.Ed.2d 423 (1978). Based upon these decisions and the Supreme Court’s analysis in Mitchell, I conclude that by establishing a trust relationship between Indian tribes and the federal government, sections 406, 407, and 466 create rights that tribes who are deprived of their trust benefits or whose trust relationships are disrupted can enforce under 1983.8

I also conclude that Congress did not. intend to foreclose private enforcement under section 1983 of the rights it created for Indian tribes in sections 406, 407 and 466. We have held that “there is a presumption that a federal statute creating enforceable rights may be enforced in a section 1983 action,” and that the burden is on the “governmental defendant [to] show that Con*861gress intended the federal statute in question to provide the exclusive remedy.” Keaukaha-Panaewa, 739 F.2d at 1470-71 (emphasis added and citations omitted); accord Almond Hill School, 768 F.2d at 1035. The text of sections 406, 407 and 466 does not suggest that Congress intended to preclude a section 1983 remedy. The three provisions do not include a “comprehensive enforcement scheme” with a “ ‘balance, completeness and structural integrity’ that would suggest remedial exclusivity,” Middlesex, 453 U.S. at 20, 101 S.Ct. at 2626; Almond Hill School, 768 F.2d at 1035-36 (citations omitted); Keaukaha-Panaewa, 739 F.2d at 1471; Department of Education, State of Hawaii v. Katherine D., 727 F.2d 809, 820 (9th Cir.1983), cert. denied, 471 U.S. 1117, 105 S.Ct. 2360, 86 L.Ed.2d 260 (1985), nor do they provide remedies that are inconsistent with those available under section 1983. See Almond Hill School, 768 F.2d at 1035-36; Keaukaha-Panaewa, 739 F.2d at 1471; Katherine D., 727 F.2d at 820.

On the contrary, these provisions do not explicitly mention any remedies at all-the damages remedy against the federal government for breach of fiduciary duty that the Supreme Court recognized in Mitchell was based upon inferences the Court drew from the provisions’ structure and legislative history. See 25 U.S.C. §§ 406, 407, 466; Mitchell, 463 U.S. at 218, 224-27, 103 S.Ct. at 2968, 2971-73. Even assuming that Congress specifically contemplated a Tucker Act remedy when it adopted the three provisions, we have held that a federal act providing only a single, limited remedy “does not contain a sufficiently comprehensive enforcement scheme to foreclose a section 1983 remedy.” Keaukaha-Panaewa, 739 F.2d at 1471; see also Almond Hill School, 768 F.2d at 1036-37; cf. Maine v. Thiboutot, 448 U.S. 1, 6, 100 S.Ct. 2502, 2505, 65 L.Ed.2d 555 (1980) (authorizing section 1983 action to enforce Social Security Act where only a single, limited remedy was expressly provided under the Act). Moreover, as the present case illustrates, limiting Indian tribes whose reservations contain timber-lands to the sole remedy recognized in Mitchell would deny them any redress whatsoever against state officials who interfere with the trust relationship created by sections 406, 407, and 466 and who attempt to deny tribes the benefits to which these provisions entitle them. I therefore conclude, based upon the lack of any explicitly delineated remedies in sections 406, 407, and 466 and based upon the legislative history and background of the three provisions, that Congress did not intend to foreclose private enforcement of these provisions under section 1983.

Since both conditions required by the Supreme Court for establishing the availability of a section 1983 cause of action are satisfied, I conclude that the Tribe was entitled to enforce its section 406, 407, and 466 rights against the defendants in a section 1983 action. See Middlesex, 453 U.S. at 19, 101 S.Ct. at 2625. Moreover, in light of the Supreme Court’s decision in Bracker, I conclude that the Tribe’s section 1983 claims based upon these three provisions are meritorious. The Court stated in Bracker that “the [challenged Arizona] taxes would threaten the overriding federal objective of guaranteeing Indians that they will ‘receive ... the benefit of whatever profit [the forest] is capable of yielding.’ ” Bracker, 448 U.S. at 149, 100 S.Ct. at 2586 (citations omitted). It stated that “[t]he imposition of the taxes at issue would undermine” the “policy of assuring that the profits derived from timber sales will inure to the benefit of the Tribe, subject only to administrative expenses incurred by the Federal Government.” Id. (citations omitted). Thus, the Supreme Court found that the challenged Arizona taxes deprive the Tribe of the central benefit guaranteed to it in its trust relationship with the federal government under sections 406, 407, and 466. See Mitchell, 463 U.S. at 221-24, 103 S.Ct. at 2970-71. I therefore conclude that the tribe would prevail on its section 1983 claim based on those three provisions.

C. The Tribe’s Section 1983 Claims Based on Due Process and Equal Protection

The majority asserts that the Tribe’s due process and equal protection claims are *862frivolous, “difficult to take ... seriously,” and so “insubstantial” that they will not support an attorney’s fees award under section 1988. It concludes that even if these claims were properly before the district court, they do not satisfy the “sub-stantiality test” of Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974).9 I disagree. The Supreme Court provided in Hagans that

claims are constitutionally insubstantial only if ... prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial____A claim is insubstantial only if “ ‘its unsoundness so clearly results from ... previous decisions ... as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.’ ”

Hagans, 415 U.S. at 537-38, 94 S.Ct. at 1379 (quoting Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 858, 35 L.Ed.2d 36 (1973)) (citations omitted and emphasis added).10 I conclude that the Tribe’s due process and equal protection claims are not insubstantial or frivolous under Hagans’ definition, and therefore support the district court’s award of attorney’s fees under section 1988. See Maher, 448 U.S. at 132 n. 15, 100 S.Ct. at 2576 n. 15.

The dissenting opinion in Bracker, 448 U.S. at 153, 100 S.Ct. at 2588 (Stevens, J., dissenting), subscribed to by three Justices, concluded that the Tribe and “Pinetop may well have a right to be free from [the challenged Arizona] taxation as a matter of due process or equal protection.” Id. at 158 & n. 7, 100 S.Ct. at 2591 & n. 7.11 It *863seems unlikely that one-third of the Supreme Court would make such a statement if, as the majority suggests, previous “ ‘decisions ... leave no room for the inference that the questions [involved can] be the subject of controversy.’ ” Hagans, 415 U.S. at 538, 94 S.Ct. at 1379 (citations omitted).

The majority opinion in Bracket demonstrates that all the necessary elements are present for the Tribe, acting in its corporate capacity,12 to raise viable due process and equal protection challenges to Arizona’s vehicle taxes. First, the Bracket majority noted that “it is undisputed that the economic burden of the asserted taxes will ultimately fall on the Tribe.” Bracket, 448 U.S. at 151, 100 S.Ct. at 2587. Thus, the Tribe has standing to challenge the Arizona taxes and has alleged that imposition of these taxes deprived it of property under the fourteenth amendment. See Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2195, 2204-05, 45 L.Ed.2d 343 (1975); Fuentes v. Shevin, 407 U.S. 67, 86, 92 S.Ct. 1983,1997, 32 L.Ed.2d 556 (1972).

Second, Arizona conceded during oral argument in Bracket that its taxes do not apply to the use of vehicles on private roads and property in the state. Bracket, 448 U.S. at 154-55 & nn. 3-4, 100 S.Ct. at 2589 & nn. 3-4 (Stevens, J., dissenting) (quoting Supreme Court transcript), see also id. at 148 n. 14,100 S.Ct. at 2586 n. 14. Yet the Bracket majority found that Arizona had taxed the use of vehicles by the Tribe and Pinetop in operations “conducted solely on the Fort Apache Reservation” and on roads that were “built, maintained, and policed exclusively by the Federal Government, the Tribe, and its contractors.” Id. at 150,100 S.Ct. at 2587. Thus, Arizona treated the Tribe differently from other, similarly situated parties in the state who operate vehicles on non-state maintained roads and private property.13

*864Finally, the Bracker majority reiterated throughout its opinion that the State of Arizona is “unable to identify any regulatory function or service performed by the State that would justify the assessment of taxes for activities on Bureau [of Indian Affairs] and tribal roads within the reservation.” Id. at 148-49, 150-51, 100 S.Ct. at 2586, 2587. This suggests that there may well be no rational basis for or legitimate purpose furthered by Arizona’s disparate treatment of the Tribe and other parties. See Williams v. Vermont, 472 U.S. 14,105 S.Ct. 2465, 2472,86 L.Ed.2d 11 (1985); Metropolitan Life Insurance Co. v. Ward, 470 U.S. 869, 105 S.Ct. 1676, 1683, 84 L.Ed.2d 751 (1985). Thus, the Bracker majority concluded that imposition of the challenged Arizona taxes deprived the Tribe of property, that in imposing these taxes, Arizona treated the Tribe differently from other, similarly situated entities, and that Arizona has failed to identify any rational basis for doing so. I conclude, as a result, that the due process and equal protection claims raised by the Tribe are not frivolous or foreclosed by prior decisions, and therefore support the district court’s award of section 1988 attorney’s fees.14 See, e.g., Williams, 105 S.Ct. at 1679-84.

*865D. The Tribe’s Capacity to Bring A Section 1983 Action In Federal Court

Since the Tribe has asserted viable section 1983 claims based upon the Indian reservation timber laws and the due process and equal protection clauses, it is enti-tied to recover section 1988 attorney’s fees if (1) it has the capacity to bring a section 1983 action based on those claims; and (2) such an action is not barred in the federal courts by the Tax Anti-Injunction Act, 28 U.S.C. § 1341 (1982).15 Although not every action by an Indian tribe challenging the imposition of state taxes will satisfy these two requirements, I conclude, based on the circumstances of this case and the capacity in which the Tribe initiated this litigation, that the present action satisfies both requirements, and that the Tribe is entitled to recover section 1988 attorney’s fees.16

*866The Tribe brought this action in its capacity as an incorporated business entity under section 17 of the Indian Reorganization Act (IRA), 25 U.S.C. § 477 (1982):17 its *867standing to challenge Arizona’s taxes is based on the tax burden it incurred while operating in a proprietary capacity. See Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463, 468 n. 7, 96 S.Ct. 1634, 1639 n. 7, 48 L.Ed.2d 96 (1976) (focussing on basis of tribe’s standing to challenge particular state taxes); see also Assini-boine & Sioux Tribes, 568 F.Supp. at 276-77. The Tribe’s first amended complaint states that “[t]he forestry operations of the tribe are run by the Fort Apache Timber Company [FATCO], a wholly owned business of the White Mountain Apache Tribe____ The lumbering operation is the Tribe’s principal industrial activity and provides a substantial portion of the revenue and employment for the tribe and its members.” FATCO has contractual agreements with six logging companies, including Pinetop, under which the companies fell trees, cut them to specified size, and transport them to FATCO’s sawmill for a contractually-specified fee. When Arizona assessed taxes on Pinetop for its use of roads within the White Mountain Apache Reservation, the Tribe had to agree to reimburse Pinetop for any tax liability it incurred, in order to avoid losing Pinetop’s services. Bracker, 448 U.S. at 139-40 & n. 7, 100 S.Ct. at 2581 & n. 7. The Tribe’s interest in challenging the Arizona taxes arises, therefore, not out of its capacity as a sovereign, but out of its involvement as a joint venturer with private companies in logging operations.18

Since the Tribe is acting as a business corporation, it qualifies as a “citizen or other person” entitled to bring an action under section 1983 to enforce its rights under the Indian timber laws and the due process and equal protection clauses. Our court and others have held that private corporations qualify as “citizens” or “other persons” entitled to bring section 1983 actions. See California Diversified Promotions, Inc. v. Musick, 505 F.2d 278, 283 (9th Cir.1974) (corporations can bring section 1983 actions to vindicate their due process rights); Des Vergnes v. Seekonk Water District, 601 F.2d 9, 16 (1st Cir.1979) (corporations are “persons” under section 1983 entitled to bring actions to vindicate their equal protection rights); Advocates for the Arts v. Thomson, 532 F.2d 792, 794 (1st Cir.), cert. denied, 429 U.S. 894, 97 S.Ct. 254, 50 L.Ed.2d 177 (1976); see also Metropolitan Life Insurance, 105 S.Ct. at 1683 n. 9 (“It is well established that a corporation is a “person” within the meaning of the Fourteenth Amendment.”); Grosjean v. American Press Co., 297 U.S. 233, 244, 56 S.Ct. 444, 446, 80 L.Ed. 660 (1936) (corporation is a “person” under the equal protection and due process clauses). In enacting the IRA, Congress intended to enable tribal business enterprises “to enter the white world on a footing of equal competition.” 78 Cong.Rec. 11732 (1934); accord Mescalero Apache Tribe, 411 U.S. at 157, 93 S.Ct. at 1275. It presumably did not intend them to be saddled with any legal disabilities beyond those of other private corporations solely because they are affiliated with sovereign tribal governments, but expected instead that private and tribal corporations would be treated *868identically.19 Therefore, since a private corporation would be entitled to challenge Arizona’s vehicle taxes in a section 1983 action, the Tribe acting as a business corporation is entitled to bring such an action as well.

I also conclude that the Tribe’s action is not barred by section 1341, because it qualifies for the “Indian tribes” exception to that provision. The Supreme Court ruled in Moe that if an action challenging the imposition of state taxes can be brought under the “Indian tribes” jurisdictional provision, 28 U.S.C. § 1362 (1982), it automatically qualifies for the “Indian tribes” exception to section 1341. See Moe, 425 U.S. at 472-75, 96 S.Ct. at 1640-42. Based upon the plain language and legislative history of section 1362, and our prior cases interpreting that provision, I conclude that the Tribe is entitled to bring its action under section 1362, and therefore is not barred by section 1341 from bringing it in federal court.

The plain language of section 1362 authorizes actions “brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior”:20 it does not distinguish between the “governmental” tribe provided for in IRA section 16 and the “incorporated tribe” provided for in section 17. 28 U.S.C. § 1362 (emphasis added); 25 U.S.C. §§ 476-477. Moreover, nothing in section 1362’s legislative -history indicates that it was intended to apply only to tribes acting in a sovereign or governmental capacity. See H.R.Rep. No. 2040, 89th Cong., 2d Sess., reprinted in 1966 U.S.Code Cong. & Ad.News 3145, 3146-47. When Congress passed section 1362 in 1966, it was fully aware that Indian tribes could act in both sovereign and proprietary capacities. Therefore, its failure to limit explicitly the scope of section 1362 to actions brought by tribes in their governmental capacity suggests that it intended the provision to encompass actions brought by tribes in their corporate capacity as well. Furthermore, this court has held that “statutes passed for the benefit of Indian tribes, such as section 1362, are to be liberally construed, with doubtful expressions being resolved in the Indians’ favor.” Gila River Indian Community v. Henningson, Durham & Richardson, 626 F.2d 708, 712 (9th Cir.1980) (citations omitted and emphasis added), cert. denied, 451 U.S. 911 (1981).

This circuit’s decision in Navajo Tribal Utility Authority v. Arizona Department of Revenue, 608 F.2d 1228 (9th Cir.1979), also indicates that the Tribe’s action is not barred under section 1341. In that case, we held that a utility company that was loosely affiliated with the Navajo Tribe could not bring an action as an “Indian tribe or band” under section 1362, since the utility company was semi-autonomous, three of its seven directors were not members of the Tribe, and the Tribe itself was “not a party” to the action. Id. at 1231-32. Although we held that Congress had not intended section 1362 to “provide access to federal courts for subordinate, semi-autonomous entities of Indian Tribes and bands,” we concluded that:

If the leadership of a tribe or band decides that litigation is necessary to protect the rights of the tribe or band, then section 1362 will provide federal court access to the tribe or band when the other jurisdictional requirements of that section are also met.

Id. at 1232 (emphasis added). We also indicated that “[t]o the extent that [the *869utility’s] interests are identified with the Tribe’s, the Tribe itself will be able to protect those interests, should its leadership decide to do so.” Id. at 1233 (citing Mes-calero Apache Tribe, 411 U.S. at 157 n. 13, 93 S.Ct. at 1275 n. 13 (emphasis in original).21

In the present action, the Tribe has followed the precise guidelines suggested in Navajo Tribal Utility. The Tribe has brought the action in its own name on behalf of a tribal enterprise that it totally controls. There is nothing in the record to suggest that FATCO is semi-autonomous, or that its interests diverge from the Tribe’s in any way. Thus, the Tribe’s action can be brought in federal court under section 1362 and qualifies under the “Indian tribes” exception to section 1341.

Since I conclude that the Tribe was entitled to bring its present section 1983 action in federal court, that its claims based on the Indian reservation timber laws are meritorious, and that its due process and equal protection claims are not “frivolous” under the definition provided in Hagans v. La-vine, I would affirm the district court’s award of attorney’s fees to the Tribe.