pointed out that there was first, no Congressional preemption of the tribal authority to tax, and that second, taxation was an inherent power of tribal sovereignty. Claiborne first distinguished Montana, noting that it dealt with non-Indians on fee land owned by non-Indians that happened to be within the boundaries of the reservation, something that was completely unrelated to the current case. Re-argument Following the oral argument, the Chief Justice assigned Justice John Paul Stevens to write the majority opinion and Justice William J. Brennan, Jr. asked Justice Thurgood Marshall to write the minority or dissenting opinion, based on the initial count of the justices' views. Since Justice Potter Stewart did not participate in the case, it would take a 5-3 vote to overturn the decision of the Circuit Court. Stevens circulated a memorandum stating that his decision would be to invalidate the tax - Chief Justice Warren Burger and Justice William Rehnquist immediately stated they would join his opinion. Justice Byron White stated that he would wait and see what the dissent said, and then indicated he would join the dissent in part. It also appeared that Justice Harry Blackmun was also going to write a separate dissent, but he also stated that he would wait to see Marshall's opinion. At this point, the tribe had the votes to win on a 4-4 vote, but the Court was close to being adjourned for the summer recess. On July 3, 1981, the Court notified the parties to reargue the case on November 4, 1981. In the meantime, the Court had changed. Justice Stewart retired, and President Ronald Reagan had appointed Sandra Day O'Connor to replace him. During the re-argument, Kellahin began with the fact the New Mexico was acquired via the Treaty of Guadalupe Hildalgo and that neither Spain or Mexico recognized Indian title and claimed that the tax was a veiled attempt to increase royalty payments. Cooney argued that there was no authority in statute for the Secretary of the Interior to approve a tribal tax and that the 1927 statute preempted the tribes authority in favor of the states being empowered to apply a severance tax on reservations. Nordhaus stated that the argument about the Treaty of Guadalupe Hildalgo did not apply, since no branch of the federal government had ever differentiated between these tribes and other tribes. The case was then submitted to the court. Majority opinion Justice