Turtle Talk

Lauren van Schilfgaarde has posted “Civilized Enough to Tax: Natives as Federal Income Taxpayers,” forthcoming in the California Law Review, on SSRN.

Here is the abstract:

What does it mean to condition federal tax liability on the degree to which a Native American has assimilated? Federal Indian law has long assumed that Native Americans are subject to federal income taxation absent an express exemption. This presumption obscures the complicated history by which Native Americans were incorporated into the federal tax base. While U.S. citizenship alone is not ordinarily dispositive of federal income tax liability, courts have uniquely infused Native citizenship with doctrinal significance, intertwining questions of citizenship, assimilation, sovereignty, and taxation. In doing so, they have neglected the legal reality that Native Americans hold dual citizenship—as citizens of both the United States and their own Tribal nations.

This Article situates Native tax liability within the longer trajectory of federal Indian law. It traces how allotment policy, noncompetence determinations, and the Indian Citizenship Act of 1924 collectively transformed Native Americans from “Indians not taxed” into presumed taxpayers. Courts initially tethered liability to federal declarations of “competence,” using taxation as a tool of assimilation. Competence itself was understood to mark the extinguishment of Native identity: to be a competent citizen was, in law’s eyes, to cease being Indian. Courts relied on this framework in taxation cases well into the mid-twentieth century. Over time, however, competence gave way to citizenship as the doctrinal touchstone. The Supreme Court entrenched the presumption of Native taxability, narrowing exemptions to allotment-based income while disregarding the unresolved meaning of dual citizenship—the coexistence of U.S. citizenship with continued Tribal citizenship. The result is a jurisprudence that collapses political distinctiveness into presumptive assimilation, as if Native peoples could not simultaneously belong to two sovereigns.

By excavating this history, the Article demonstrates that Native income taxation is neither inevitable nor doctrinally coherent. It argues that courts have misapplied statutory canons by privileging the presumption of taxability over the Indian canons of construction, which require clear congressional intent before imposing taxation on Tribal citizens. More fundamentally, taxation doctrine has failed to account for the implications of Native dual citizenship, erasing the sovereign-to-sovereign relationship that the law otherwise recognizes. The Article concludes by advancing a structural reform: redirecting federal income tax paid by Tribal citizens to their Tribal governments. Modeled on existing provisions such as the foreign tax credit, this reform would affirm Native dual citizenship, strengthen Tribal fiscal capacity, and restore coherence to federal tax law. In reframing taxation not as an instrument of assimilation but as an expression of recognition, federal law can more accurately reflect contemporary commitments to Tribal self-determination.