Turtle Talk

I wanted to add to Matthew’s earlier post and highlight Judge Murphy’s excellent dissent in this case that was decided by the Eighth Circuit last week. Judge Murphy rightly explains that the question in this case—whether the State of Minnesota can tax the pension of a reservation Indian—is one that should be answered by McClanahan v. Arizona State Tax Commission, 411 U.S. 145 (1973), rather than Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973). The majority concludes that Minnesota’s taxation of the tribal member’s pension comports with due process because the tribal member’s state citizenship provides the required nexus. However, like the plaintiff in McClanahan, Charles Diver, the tribal member who is being taxed here, resides on a federally recognized tribe’s reservation. Thus, McClanahan should be understood to logically foreclose the majority’s conclusion. Moreover, the pension was earned when Mr. Diver was a resident of, and employed in, Ohio. Thus, unlike the situation in Mescalero Apache Tribe, where the Tribe was operating an off-reservation business in the taxing state, Mr. Diver’s income-generating activity had no connection to Minnesota. The majority makes much of Mr. Diver’s Minnesota citizenship without making any genuine attempt to reckon with the complexities attendant on the state citizenship of a tribal member who resides on a federally recognized reservation. See, e.g., Washington v. Confederated Tribes of the Colville Indian Reservation , 447 U.S. 134, 162 (1980) (state not permitted to impose an excise tax on vehicles owned by tribal members and used both on and off the reservation, unless perhaps the tax is narrowly tailored to target only off-reservation use); Bryan v. Itasca County, 426 U.S. 373 (1976) (state not permitted to tax tribal member’s mobile home, which was located on the reservation, despite Public Law 280’s limited grant of civil jurisdiction to the state). Moreover, the majority neglects to even look at the content of the treaty under which the Fond du Lac’s reservation was created, even though the content of the Navajo treaty figures prominently in McClanahan. The Tribe intends to petition for en banc review, and it can only be hoped that the Eighth Circuit hears the case en banc and reverses or at least that other circuits reject this panel’s decision.