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., *857 2d 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 *858 ney’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

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

*859 B. 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 *861 gress 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 *862 frivolous, “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

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 *863 seems 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

*864 Finally, 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 .

*865 D. 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

*866 The 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 *867 standing 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 *868 identically. 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:

Id. at 1232 (emphasis added). We also indicated that “[t]o the extent that [the *869 utility’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.

. The majority maintains that "[t]he Tribe never contended and no court has ever found that the[ ] statutes [regulating Indian reservation-timber] were ever violated.” Majority Opinion at 851 n. 9. However, the Tribe explicitly alleges in its complaint that “[t]he taxes and regulations attempted to be imposed by the State of Arizona are in direct contravention of the stated objectives of [the] Federal regulations" that were promulgated by the Secretary in order to fulfill his trust responsibilities under the reservation-timber laws. First Amended Complaint, § XXVII (emphasis added). Moreover, the Supreme Court expressly stated in Bracker that "the [Arizona] taxes would threaten the overriding federal objective " and “would undermine [th[e] policy ” for which the reservation-timber laws were enacted. Bracker, 448 U.S. at 149 , 100 S.Ct. at 2586 (emphasis added). Thus, the Tribe has alleged, and the Supreme Court has strongly suggested, that the imposition of the challenged Arizona taxes "violated] ... rights created by federal statutes,” as would be required to establish a section 1983 claim based on sections 406, 407, and 466 of the reservation-timber laws. Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 19 , 101 S.Ct. 2615, 2625 , 69 L.Ed.2d 435 (1981) (emphasis added).

. In determining whether the Tribe’s section 1983 claims support an award of section 1988 attorney’s fees, the standards for evaluating claims based on alleged violations of federal statutes and claims based on alleged constitutional violations appear to be different. The legislative history of section 1988 provides that:

H.R.Rep. No. 1588, 94th Cong., 2d Sess. 4 n. 7 (1976) (citations omitted and emphasis added), quoted in Maher v. Gagne, 448 U.S. 122 , 132 n. 15, 100 S.Ct. 2570 , 2576 n. 15, 65 L.Ed.2d 653 (1980).

This language appears to suggest that for the Tribe to recover section 1988 attorney’s fees based on its claims relating to the reservation-timber statutes, those claims must be determined to be meritorious, whereas to recover based on its constitutional due process and equal protection claims, those claims merely must be found to be "substantial," or non-frivolous. See Hagans, 415 U.S. at 537-38 , 94 S.Ct. at 1379 (defining “substantiality of claims); see also Section C, infra. Because I conclude that the Tribe’s claim based on the reservation-timber statutes is meritorious, I need not decide whether a different standard applies in awarding fees for the Tribe’s two different types of section 1983 claims. I find that any of the Tribe’s three section 1983 claims independently supports the district court’s award of attorney’s fees.

. Because I reject the majority’s conclusions that the Tribe’s section 1983 claims are procedurally barred and are either non-meritorious or frivolous, I am required to address three issues that the majority is not required to resolve. First, I must determine whether the Tribe is precluded from litigating its section 1988 claims in federal court because it originally presented to, but did not litigate, its section 1983 claims in the Arizona State courts. I conclude that it is not. See Section A, infra. Second, I must determine whether, under the circumstances involved in this case, the Tribe qualifies as a “citizen” or "person” entitled to bring an action under Section 1983. I conclude that it does. See Section D, infra. Finally, I must determine whether the Tribe’s present section 1983 action can be brought in federal court under the “Indian tribes" exception to the Tax Anti-Injunction Act, 28 U.S.C. § 1341 (1982). I conclude that it can. See id.

. The majority suggests that although England creates an exception to traditional res judicata principles, it may be essentially an all-or-nothing proposition under which parties, like the Tribe, are required to litigate either all or none of their federal claims in state court, and cannot opt to litigate some federal claims in state court while reserving others. No such requirement has ever been imposed under the England doctrine. We stated in Tovar that "free and unreserved submission to the state court of all federal claims for complete and final resolution is *859 necessary to bar return to the federal court.” 609 F.2d at 1294 (emphasis added). The word “all" would be superfluous if this suggested interpretation of England were correct.

The majority also criticizes the Tribe for maintaining that its failure to raise its section 1983 claims before the Supreme Court was due to the limited nature of the Court’s order granting certiorari in Bracker. Majority opinion at 851. This issue is irrelevant to the disposition of the present case. The Tribe did not litigate its section 1983 claims in the Arizona state courts, and therefore could not have raised them in the Bracker appeal. Yet, as noted above, based upon the decisions in England and Tovar , this tactical decision by the Tribe does not preclude it from relying on those claims as a basis for section 1988 attorney’s fees in the present action.

. The Court’s conclusion in Mitchell that sections 406, 407, and 466 create a trust relationship between tribes and the federal government was foreshadowed in Bracker, where the Court not only suggested that such a trust relationship existed, but also concluded that Arizona’s challenged taxes interfered with the Tribe’s rights under that trust relationship:

Bracker, 448 U.S. at 149 , 100 S.Ct. at 2586 .

. The act at issue in Keaukaha-Panaewa, the Hawaiian Admission Act, Public Law No. 86-3, 73 Stat. 4 (1959), required that lands originally held by the United States in trust for native Hawaiians be maintained "as a public trust ... for the betterment of the conditions of native Hawaiians ... and their use for any other object shall constitute a breach of trust." Hawaiian Admission Act, § 5(f); see Keaukaha-Panaewa, 739 F.2d at 1469 . Thus, the general terms and purposes of the Hawaiian trust are fairly similar to the terms and purposes of the trust for Indian timberlands identified by the Supreme Court in Mitchell and Bracker. See Mitchell, 463 U.S. at 219-25 , 103 S.Ct. at 2969-72 ; Bracker, 448 U.S. at 149 , 100 S.Ct. at 2586 (federal management of tribal timberlands is designed to "encourag[e] tribes ‘to revitalize their self-government' and to assume control over their 'business and economic affairs’ ”) (citation omitted).

. Section 465 authorizes Indians or Indian tribes to convey their lands in trust to the Secretary of the Interior in order to avoid state and local property taxes. See 25 U.S.C. § 465 ; Chase v. McMasters, 573 F.2d 1011, 1014-16 (8th Cir.), cert. denied, 439 U.S. 965 , 99 S.Ct. 453 , 58 L.Ed.2d 423 (1978).

. The majority’s conclusion that the "regulatory legislation involved in this case is analogous to that involved in Boatowners [and Tenants Association, Inc. v. Port of Seattle, 716 F.2d 669 (1983),] where [this court] also found no ‘enforceable rights,’ ” majority opinion at 849-850, is plainly unsupported by a comparison of Boatowners and Mitchell . In Boatowners, we found that the

Boatowners, 716 F.2d at 673-74 (emphasis added). In contrast, the Supreme Court concluded in Mitchell that sections 406, 407, and 466 were designed specifically to benefit Indians and Indian tribes and created a trust relationship in which these groups were the beneficiaries. Mitchell, 463 U.S. at 222-25 , 103 S.Ct. at 2970-72 .

. The majority states that the Tribe’s allegations concerning its fourteenth amendment claims in its complaint are "far too meager” for this court to determine whether or not they satisfy the Hagans "substantiality” test and support the district court's award of attorney’s fees. Majority opinion at 852. I do not agree. While the Tribe's presentation of these claims in its complaint and subsequent pleadings has not been especially detailed, a reading of the Tribe’s pleadings, along with the Supreme Court’s opinions in Bracker and recent due process and equal protection cases, makes it clear that the Tribe’s fourteenth amendment claims satisfy the Hagans test.

However, given that the majority believes that it has no meaningful basis for determining whether the Tribe’s fourteenth amendment claims support a fee award under § 1988,1 find it inexplicable that the majority does not remand this case for further development on this issue. Instead, the majority has simply discarded a considered fee-award judgment by the district court and vacated a $206,000 award to the Tribe.

The majority states that the district court awarded attorney’s fees based exclusively on the Tribe’s preemption claim and did not mention the Tribe’s constitutional claims in making its fee award, majority opinion at 856, but this is simply not true. The district court's findings and conclusions on the Tribe’s section 1988 request plainly state that the court awarded attorney's fees based on all the Tribe’s section 1983 claims. The court did not single out any one claim for special mention. Even if the district court’s award had been based on the Tribe’s preemption claim, we are required to affirm the award as long as the Tribe’s section 1983 claims based on the Indian timber laws are meritorious or its fourteenth amendment claims are not frivolous.

. Although purporting to apply the Hagans test in evaluating the district court’s fee award, the majority questions whether the Tribe’s fourteenth amendment claims have “sufficient merit” to justify a section 1988 award. This suggests that the majority has applied too strict a standard in reviewing the Tribe’s fourteenth amendment claims, and has not simply examined whether those claims are "inescapably ... frivolous,” as Hagans requires. Hagans, 415 U.S. at 537-38 , 94 S.Ct. at 1379 .

. The majority contends that the statements in the Bracker dissent concerning possible due process and equal protection claims arising out of the challenged Arizona taxes do not support the Tribe’s fourteenth amendment claims, because these statements refer to claims potentially available to Pinetop as a private corporation rather than to claims potentially available to the Tribe. Majority opinion at 856-57. The majority maintains that the Tribe’s fourteenth amendment claims, in contrast to Pinetop’s, arise out of the Tribe’s "status as a sovereign" and are based on the assumption that the Tribe is entitled to receive beneficial or preferential treatment above and beyond that of other individuals and entities. Id.

However, the majority has misinterpreted the Tribe’s due process and equal protection claims and has confused them with the preemption claim it advanced in Bracker. Although the underlying premise of the Tribe’s preemption claim in Bracker was that the State must accord *863 special treatment to the Tribe’s timberlands and cannot regulate them to the same extent as it regulates other timberlands, see generally Bracket, 448 U.S. at 145-53, 100 S.Ct. at 2584-88, the Tribe’s fourteenth amendment claims in this action are based on the allegation that Arizona has impermissibly discriminated against the Tribe and singled it out by taxing it differently from other landowners in the state without any apparent rational justification.

The Tribe has raised its fourteenth amendment claims in its capacity as a corporation seeking to make commercial use of its reservation lands. See Section D, infra. Its due process and equal protection claims are identical to those that any corporate entity would raise if it were treated disparately under a state taxing scheme. These claims have nothing to do with the Tribe’s status as a sovereign entity. They arise out of the Tribe’s joint commercial venture with Pinetop, see id., and are therefore identical to any fourteenth amendment claims that Pine-top would be entitled to raise as a corporation. Therefore, any statements in the Bracket dissent relating to possible due process and equal protection claims available to Pinetop would be equally applicable to the Tribe.

. See the discussion relating to the Tribe's corporate or proprietary capacity in Section D, infra.

. The majority asserts that the challenged Arizona taxes are typically assessed “without apportionment” between mileage driven on state-maintained roads and non-state-maintained roads for entities or landowners based in Arizona. Majority opinion at 854 n. 14. Thus, according to the majority, the Tribe is not entitled under Arizona law to have the taxes chargeable to its and Pinetop’s timber operations apportioned, and its demand for tax apportionment in its complaint represents a request for preferential treatment, as opposed to equal protection. Id. The majority interprets the Tribe’s equal protection claim as alleging that the Tribe and Pinetop are constitutionally entitled to be treated “in the same manner as interstate truckers" passing through Arizona, and that the "tribal roads [on its reservation] should be treated as though they [are] in a separate state.” Id.

However, the majority has misinterpreted the challenged Arizona taxing scheme, and oversimplified the Tribe’s equal protection claim. Contrary to the majority’s assertion, Arizona’s fuel taxes are assessed for in-state taxpayers based upon the types of roads on which they use their vehicles. Section 28-1552 provides that "an excise tax [shall be] imposed [at the rate of eight cents per gallon] on use fuel used in the propulsion of a motor vehicle on any highway within this state.” Ariz.Rev.Stat.Ann. § 28-1552 (1985) (emphasis added); see Bracket, 448 U.S. at 139-40, 100 S.Ct. at 2581. Thus, according to the plain terms of this and other provisions, Arizona’s use fuel tax is imposed only for gasoline used by taxpayers to travel on state-maintained highways — it is not assessed based upon their total mileage during the year. See Ariz.Rev. Stat.Ann. §§ 28-1551(4) (1985) (defining "highway" to mean only those roads “open to the use of the public”), § 28-1578 (authorizing refund of use fuel tax to “[a]ny person who purchases tax paid use fuel and ... uses it in this state for *864 purposes other than to propel a motor vehicle upon the highways of this state”) (emphasis added); see also Ariz.Stat.Ann. § 28-1555(B)(l) (taxpayers can obtain written authorization not to pay use fuel tax to vendors and instead to self-assess tax if they "operate a motor vehicle [either] within and without this state or on and off the highways of this state "), § 28-1556 (establishing rebuttable presumption that all fuel inserted into a vehicle’s gas tank is “consumed in propelling the vehicle on the highways of this state ”) (emphasis added).

Moreover, Arizona's assistant attorney general made a series of statements and concessions during the Supreme Court argument in Bracker indicating that Arizona apportions mileage when assessing its challenged taxes. He stated initially that " 'so long as road[s] remain[ ] private thoroughfare[s, the] use of those road[s] would not be subject to the State tax.’ ’’ Bracker, 448 U.S. at 154 n. 3, 100 S.Ct. at 2589 n. 3 (Stevens, J., dissenting) (quoting Assistant Attorney General Macpherson). Yet, if the majority’s interpretation of the Arizona tax statutes is correct, taxpayers would not be permitted to apportion their taxes based upon their relative use of state highways and other roads, and their use of "private thoroughfarefs]" would be taxed so long as they also used state highways at some point during the year. Furthermore, Arizona conceded during the Supreme Court argument that it did not intend to "tax use on ... tribal roads” regardless of the state courts’ prior decisions on the matter, and the Tribe’s attorney welcomed this concession. Id. at 154-56 & n. 4, 100 S.Ct. at 2589-90 & n. 4 (Stevens, J., dissenting) (quoting attorneys Macpherson and Wake); see id. at 148 n. 14, 100 S.Ct. at 2586 n. 14. This concession would have been meaningless if, as the majority contends, Arizona’s taxes were determined without apportionment, because the Tribe admitted that it and Pinetop used state highways and B.I.A. roads in their operations. Id. at 154 n. 2,100 S.Ct. at 2589 n. 2 (Stevens, J., dissenting). The three Justices dissenting in Bracker expresslynotedthatArizona’sconcessionsregard-ing tribal and private roads would reduce the taxes owedbyPinetopandtheTribe: thus, they expressly interpreted the Arizona statutes to authorize apportionment of mileage in determining the amount of taxes owed. See id. at 159 & n. 8, 100 S.Ct. at 2591 n. 8 (Stevens J., dissenting). For all these reasons, it seems clear that Arizona asseses at least some of its challenged taxes based upon the road-use of the individual taxpayer.

The Tribe’s equal protection claim in this action arises out of Arizona’s refusal to apportion the Tribe’s and Pinetop’s mileage in assessing their fuel taxes, even though it apportions mileage for "other operations that occur in part over state roads and part over non-state roads.” First Amended Complaint, f XXIII. Despite the majority’s claims, these "other operations” include Arizona-based as well as non-Arizona-based individuals and entities. The subsequent reference in the Tribe’s complaint to "carriers that operate [only] partly in the State of Arizona,” upon which the majority relies, does not signify that the Tribe’s equal protection claim is entirely premised upon the treatment received by “interstate truckers,” as the majority contends-it merely states an alternative equal protection argument. See id.

. The majority asserts that because the challenged Arizona use fuel tax “is expressly levied ‘in lieu of direct fuel taxes,” it is therefore "analytically indistinguishable from a direct fuel tax.” The majority contends as a result that the Tribe cannot challenge Arizona's unequal imposition of the use fuel tax, because it could "not seriously contend that Arizona should be forced to apportion direct fuel taxes collected at the pump.” Majority opinion at 854.

This argument is seriously flawed. The fact that a state can conceivably tax an individual or entity under one tax scheme does not automatically entitle it to impose taxes upon that individual or entity under a different tax scheme when other similarly situated individuals or entities are not being taxed under that scheme. Otherwise, there could never be due process or equal protection challenges to state taxing schemes, because it would always be possible to hypothe *865 size situations in which the victims of alleged discriminatory treatment could be taxed.

Arizona chose to adopt its use fuel tax. It is responsible for administering that tax in an evenhanded, non-discriminatory fashion that will withstand due process and equal protection scrutiny. If Arizona chooses to change to a direct fuel tax so that it can tax the Tribe and other private landowners for fuel used on non-state-maintained roads and private property, it certainly would be entitled to do so. However, the fact that Arizona could conceivably change its tax system does not affect the resolution of this case.

. The Tax Anti-Injunction Act provides that: [Federal] district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.

28 U.S.C. § 1341 . Courts have recognized a limited exception to this provision for "Indian Tribes." See Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463, 472-75 , 96 S.Ct. 1634, 1640-42 , 48 L.Ed.2d 96 (1976); see also Section D, supra. Since the Anti-Injunction Act applies only to actions brought in federal court, had the Tribe chosen to raise its section 1983 claims in its parallel state-court action, section 1341 would not have served as a bar to its section 1983 claims.

. A tribe’s ability to bring an action in federal court challenging the imposition of state taxes depends on the capacity in which the tribe initiates the litigation and the basis of the tribe’s standing to bring such a challenge. The Supreme Court indicated in Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463 , 96 S.Ct. 1634 , 48 L.Ed.2d 96 (1976), that in actions involving challenges to the imposition of state taxes, the source of parties’ standing to bring the actions must coincide with the basis on which subject-matter jurisdiction is asserted. See id. at 468 n. 7, 96 S.Ct. at 1639 n. 7.

In the present action, the Tribe’s standing is based upon its proprietary, corporate activities; as a result, in order to maintain its action, the Tribe must be entitled to bring a section 1983 action and must qualify for the "Indian tribes” exception to section 1341 while acting in its corporate capacity. The Tribe could also have challenged Arizona’s taxes in its sovereign, governmental capacity, if the imposition of those taxes adversely affected its exercise of its powers of self-government, or if the taxes were imposed on the Tribe’s governmental operations. See id; see also Assiniboine & Sioux Tribes v. Montana, 568 F.Supp. 269, 276 (D.Mont.1983) (tribal vehicles had to be taxed for Tribe to have standing to seek refund under Moe). Such an action would clearly not be barred by section 1341. See, e.g., Moe, 425 U.S. at 474-75 , 96 S.Ct. at 1641-42 . However, it is doubtful whether the Tribe qua sovereign would qualify as a “citizen of the United States or other person" eligible to bring an action under section 1983 for deprivation of its rights, privileges, or immunities. See City of Safety Harbor v. Birchfield, 529 F.2d 1251, 1253-55 (5th Cir. 1976) (municipality is not a "person" entitled to bring section 1983 action); Buda v. Saxbe, 406 F.Supp. 399, 403 (E.D.Tenn.1974) (a "state is not a '... citizen of the United States or other person within the jurisdiction thereof ... ’ within the contemplation of 42 U.S.C. § 1983 .’’); Spence v. Boston Edison Co., 390 Mass. 604 , 459 N.E.2d 80, 83-84 (1983) (city housing authority cannot bring section 1983 action to enforce due process or equal protection rights); see also City of South Lake Tahoe v. California Tahoe Regional Planning Agency, 625 F.2d 231, 233 (9th Cir.) (“ ‘[political subdivisions of a state may not challenge the validity of a state statute under the Fourteenth Amendment."), cert. denied, 449 U.S. 1039 , 101 S.Ct. 619 , 66 L.Ed.2d 502 (1980).

Similarly, the Tribe could have brought an action challenging Arizona's vehicle taxes as a representative of or as parens patriae for its individual members, in order to vindicate their individual rights. See, e.g., Assiniboine & Sioux Tribes, 568 F.Supp. at 277 ; see also Little Earth of United Tribes, Inc. v. United States Department of Housing and Urban Development, 584 F.Supp. 1292, 1295-97 (D.Minn.1983). When acting solely in a representative capacity, a tribe's standing is based exclusively upon the standing of its individual members: the tribe simply raises claims that its members could raise individually, and essentially stands in the same position as they would, had they brought th action collectively. See International Union, United Automobile, Aerospace, and Agricultural *866 Implement Workers of America v. Brock, — U.S. at -, 106 S.Ct. 2523 at, 2528-29, 91 L.Ed.2d 228 (1986); Hunt v. Washington Apple Advertising Commission, 432 U.S. 333, 343 , 97 S.Ct. 2434, 2441 , 53 L.Ed.2d 383 (1977); United States v. Students Challenging Regulatory Agency Procedures (S.C.R.A.P.), 412 U.S. 669, 683-90 , 93 S.Ct. 2405, 2413-17 , 37 L.Ed.2d 254 (1973); Sierra Club v. Morton, 405 U.S. 727, 735-39 , 92 S.Ct. 1361, 1366-68 , 31 L.Ed.2d 636 (1972); see also Assiniboine & Sioux Tribes, 568 F.Supp. at 277 . Thus, the Tribe would clearly be entitled to bring a section 1983 action based upon alleged violations of its members’ due process and equal protection rights, or their rights under the Indian reservation timber laws. See, e.g., Thompson v. New York, 487 F.Supp. 212, 216 (N.D.N.Y.1979) (individual Indians can maintain section 1983 actions based on alleged violations of their equal protection rights).

However, it would appear inconsistent with our prior decisions to allow tribes suing merely as representatives of their individual members to avoid the bar of section 1341. We have held that the "Indian tribes” exception to section 1341 does not apply to suits brought by individual Indians, see Comenout v. Washington, 722 F.2d 574, 577 (9th Cir.1983); Dillon v. Montana, 634 F.2d 463, 469 (9th Cir.1980), or by Indian entities that are less than full-scale “Indian tribe[s] or bandfs],” as that phrase is used in 28 U.S.C. § 1362 (1982). See Navajo Tribal Utility Authority v. Arizona Department of Revenue, 608 F.2d 1228, 1231 (9th Cir.1979). In light of these decisions, authorizing Indian tribes to bring representative actions in federal court challenging the collection of state taxes on behalf of their members would undermine and perhaps trivialize section 1341 by enabling individual Indians to avoid section 1341’s bar simply by having their tribe bring a "representative" action on their behalf. See Assiniboine & Sioux Tribes, 568 F.Supp. at 277 . Moreover, the Supreme Court noted in Moe that if standing to bring an action challenging the imposition of state taxes is based exclusively upon the rights of individual tribal members, those tribal members must be authorized to invoke the jurisdiction of the federal courts in their own right. See Moe, 425 U.S. at 468 n. 7, 96 S.Ct. at 1639 n. 7 (citing Zahn v. International Paper Co., 414 U.S. 291, 294 , 94 S.Ct. 505, 508 , 38 L.Ed.2d 511 (1973)).

. Section 17 of the IRA authorizes Indians to request the Secretary of the Interior to issue charters of incorporation to their tribes once the tribes have adopted constitutions and bylaws and organized tribal governments under section 16 of the IRA, 25 U.S.C. § 476 (1982). Congress enacted section 17 specifically "to rehabilitate the Indian’s economic life and to give him a chance to develop the initiative destroyed by a century of oppression and paternalism,” Mescalero Apache Tribe v. Jones, 411 U.S. 145, 152 , 93 S.Ct. 1267, 1272 , 36 L.Ed.2d 114 (1973) (quoting H.R.Rep. No. 1804, 73rd Cong. 2d Sess. 1 (1934)). It sought to promote the organization of tribal business enterprises and to enable those 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 (quoting above passage from Congressional Record).

The Supreme Court and other courts have recognized a distinction between tribes acting as business entities pursuant to IRA section 17 and as sovereign, governmental entities, pursuant to section 17, and have consistently indicated that the capacity in which a tribe is acting helps to determine its legal rights, privileges, and immunities. See Kerr-McGee Corp. v. Navajo Tribe of Indians, 471 U.S. 195 , 105 S.Ct. 1900, 1903 , 85 L.Ed.2d 200 (1985) (distinguishing between tribe’s “role as commercial partner” and its "role as sovereign”); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 145-47 , 102 S.Ct. 894, 905-06 , 71 L.Ed.2d 21 (1982) (noting same distinction in determining that tribe was entitled to impose taxes in its sovereign capacity upon parties with whom it had lease agreements); Ra-mey Construction Co. v. Apache Tribe, 673 F.2d 315 , 320 (10th Cir.1982) (tribe’s “constitutional and corporate entities [are] separate and distinct" and may differ in the extent to which they possess tribal sovereign immunity); Parker Drilling Co. v. Metlakatla Indian Community, 451 F.Supp. 1127, 1131-35 (D.Alaska 1978); Atkinson v. Haldane, 569 P.2d 151, 174-75 (Alaska 1977); Request for Interpretative Opinion on the Separability of Tribal Organizations Organized Under Section 16 and 17 of the Indian Reorganization Act, 65 I.D. 483, 484 (1958) (Solicitor’s report analyzing IRA’s legislative history and concluding that "the powers, privileges and responsibilities of [section 16 and 17] tribal organizations materially differ”). In analyzing the IRA’s legislative history and the differences between tribes acting in their section 16 and section 17 capacities, the Solicitor concluded that:

65 I.D. at 484 (emphasis added).

. The Supreme Court has suggested that to determine whether a tribe has acted in its business or its sovereign capacity, courts must look beyond the formalities of whether the tribe has actually incorporated itself under section 17, and must look instead to the substance of the conduct in question and the powers actually granted to the tribe in its constitution and bylaws. See Mescalero Apache Tribe, 411 U.S. at 157 -58 & n. 13, 93 S.Ct. at 1275 & n. 13; see also Atkinson, 569 P.2d at 171 . But cf. S. Unique, Ltd. v. Gila River Pima-Maricopa Indian Community, 138 Ariz. 378 , 674 P.2d 1376, 1382 (Ariz. Ct.App.1983) (citing 1958 Department of Interi- or opinion and focussing on formalities of whether tribal corporation had separate officers and directors, bank accounts, assets, and property holdings from the tribe’s section 16 governmental entity).

. For example. Congress intended that tribal business corporations would be able to enter into contracts waiving any possible sovereign immunity from unconsented suits. Parker Drilling, 451 F.Supp. at 1131 ; Atkinson, 569 P.2d at 174-75 . If tribal corporations did not have such a capacity, they would be at a distinct disadvantage vis-a-vis other corporations, because private parties would be discouraged from entering into contractual agreements with them.

. The reference to a “duly recognized" governing body in section 1362 merely indicates that the Tribe must have an IRA government organized under IRA section 16. Since tribes can become incorporated under IRA section 17 only if they already have a section 16 government, this reference to section 16 does not mean that Congress intended section 1362 to apply only to tribes acting in a sovereign or governmental capacity.

. Navajo Tribal Utility contains dictum stating that "[s]uits brought by tribal corporations have also been found to fall outside the scope of section 1362.” 608 F.2d at 1231 . The court cites Cape Fox Corp. v. United States, 456 F.Supp. 784, 798 (D.Alaska 1978), rev’d on other grounds, 646 F.2d 399 (9th Cir.1981), and two other cases for that proposition. However, Cape Fox is inapposite. It involved "a Native corporation organized under the Alaska Native Claims Settlement Act,” id. at 797, and thus did not even involve a tribe or band eligible to bring an action under section 1362. See id. at 797-98. The other cases are conclusory in their analysis, and do not provide any basis for deciding that the Tribe was not eligible to bring a section 1362 action in this case. See United States v. State Tax Commission, 505 F.2d 633, 638 (5th Cir. 1974); Dodge v. First Wisconsin Trust Co., 394 F.Supp. 1124, 1127 (E.D.Wis.1975).