taxation

Eleventh Circuit Affirms Injunction Favoring Poarch Band against Escambia County Assessor

Matthew L.M. Fletcher1 Comment

Here is the opinion in Poarch Band of Creek Indians v. Hildreth.

An excerpt:

The Poarch Band of Creek Indians (“Poarch Band”) sued James Hildreth,
Tax Assessor of Escambia County, Alabama, for declaratory and injunctive relief to prevent the assessment of property taxes on lands owned by the Poarch Band in Escambia County, Alabama, and held in trust by the United States (“Trust Property”). The Poarch Band maintains the Trust Property is exempt from taxation pursuant to the Indian Reorganization Act of 1934 (“IRA”). See 25 U.S.C. § 465.1 The district court granted injunctive relief barring the tax assessment efforts during the pendency of the case, and Hildreth appeals.2 Finding no abuse of discretion and no error of law, we affirm.

Briefs here.

Federal Court Confirms Arbitration Award in Favor of Citizen Potawatomi against Oklahoma

Matthew L.M. Fletcher

Here are the materials in Citizen Potawatomi Nation v. Oklahoma (W.D. Okla.):

16. Memorandum Opinion and Order 6-21-16

17. Judgment 6-21-16

Award

We posted commentary on this matter here.

 

SCOTUS Denies Cert in Seminole Tax, American Samoan Birthright Citizenship Cases

Matthew L.M. Fletcher

Here is the order list today. The Court denied cert in Seminole Tribe v. Biegalski. The petition and lower court briefs are here.

The Court also denied cert in Tuaua v. United States, the American Samoan birthright citizenship case.

Keweenaw Bay Indian Community Sues over Michigan Sales & Use and Tobacco Taxes

Matthew L.M. Fletcher

Here is the complaint in Keweenaw Bay Indian Community v. Khouri (W.D. Mich.):

Complaint

ROW Claim Against City in Santa Clara Pueblo Negotiation Dispute

Sarah M Donnelly

Download complaint in United States v. City of Española, 16-cv-00391 (D. N.M.) here.

The DOJ is using its authority as trustee under the Indian Right-of-Way Act to sue the City of Española over expired easements for water and sewer systems.  Much of the City is on the Pueblo and both the City and the Pueblo rely on the infrastructure the City provides, but the grants expired in 1994 and 2002.  The federal government claims the City is trespassing and seeks monetary damages and ejection if the City cannot negotiate settlement.

New Paper Focuses on Double Taxation in Indian Country

Sarah M Donnelly

Link to article here.

Citation and abstract:

Croman, K. S., & Taylor, J. B. (2016). Why beggar thy Indian neighbor? The case for tribal primacy in taxation in Indian country. Joint Occasional Papers on Native Affairs (JOPNA 2016-1). Tucson, AZ and Cambridge, MA: Native Nations Institute and Harvard Project on American Indian Economic Development.

The law governing taxation in Indian country is a mess. The accretion of common law precedents and the general tendency of states to assert primacy over the taxation of non-Indians create absurd outcomes. This article makes the case three ways. The argument based on the law shows that particularized, fact-specific precedents create a thicket of rulings that impede business development. The argument based on facts shows that these impediments to economic development harm not only tribal economies, but state and local economies, too. And the argument based on just claims testifies to the fact that the current arrangement could hardly have emerged from the actions of willing and informed governments operating in good faith. To borrow from Adam Smith, states beggar their Indian neighbors, seeking fiscal gain to the tribes’ detriment and, ultimately, their own. We conclude by recommending actions to bring fairness and certainty to the law governing taxation in Indian country.

D.C. Circuit Rejects Seneca Member’s Challenge to PACT Act as Moot

Matthew L.M. Fletcher

Here is the opinion in Gordon v. Lynch.

An excerpt:

Since Gordon faces only a remote risk of federal prosecution or civil penalties, and any further merits decision would not shield him from the effects of possible state or local lawsuits, the case is moot. We affirm the district court’s vacatur of the preliminary injunction for lack of jurisdiction, and we therefore do not reach the district court’s further conclusion that the case is prudentially moot.

Prior posts here and here.

Citizen Potawatomi Prevails in Dispute over Alcohol Sales and Taxes at Gaming Facility

Matthew L.M. Fletcher1 Comment

Here is the AAA award in Citizen Potawatomi Nation v. State of Oklahoma:

Award

an excerpt:

In 2014, the OTC sent an audit demand to the Nation questioning more than $27,000,000 of exemptions claimed on the Nation’s past sales tax reports. The Nation did not respond and declined to submit further sales tax reports. The OTC then filed and prosecuted an administrative complaint seeking to revoke all of the Nation’s alcoholic beverage permits relying on State law providing for revocation of any alcoholic beverage permit upon noncompliance with State tax laws. In its complaint, the OTC asserted for the first time that State sales taxes apply to all sales by an Indian Tribe to nontribal members.

Interesting negotiating strategy.

Commentary:

Justice Daniel J. Boudreau issued the attached arbitration award in Citizen Band Potawatomi Nation v. State of Oklahoma, No. 01-15-0003-3452 (AAA, April 4, 2016).   The Award includes (i) a declaratory judgment that federal law protecting tribal sovereignty interests preempt and invalidate the State’s sales taxes on the Nation’s sales in question; and (ii) issues an injunction against the State from taking any further actions to divest the Nation’s Compact gaming facilities of the right to sell and serve alcoholic beverages or threaten enforcement actions against them on the ground that the Nation does not comply with the State’s sales tax laws.  Justice Boudreau was the single arbitrator in this dispute.   

The declaratory judgement applied the balancing test analysis in White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980) and other federal Indian law cases.  Judge Boudreau held that the evidence established (i) significant federal and tribal interests in the Nation’s self-governance, economic self-sufficiency, and self-determination; (ii) the Nation alone invests value in the goods and services that it sells, does not derive value through an exemption from State sales taxes and imposed its own equivalent  tribal tax on the sales; (iii) the State possesses no economic interest beyond a general quest for revenue in imposing a sales tax on the Nation’s transactions and suffers no uncompensated economic burden arising therefrom; and (iv) the federal and tribal interests at stake predominate significantly over any possible State interests in the transactions upon which the State seeks to impose its sales tax.

 

Eleventh Circuit Rejects Miccosukee Members’ Federal Tax Challenge

Matthew L.M. Fletcher

Here is the opinion in Cypress v. United States:

CA11 Unpublished Opinion

An excerpt:

This appeal arises out of a dispute between sixteen members of the Miccosukee Tribe of Florida (the “Tribe members”) and the United States, the U.S. Department of the Interior, the U.S. Department of the Treasury, and the Secretaries of the Treasury and of the Interior (collectively, “the Government”). The Tribe members seek declaratory relief to avoid paying federal income taxes on distributions, including gaming proceeds, paid out of the Tribe’s trust account. The district court dismissed the complaint for lack of subject matter jurisdiction, finding that the United States had not waived sovereign immunity for suits brought by individual Tribe members. The Tribe members now appeal the dismissal.

We agree with the district court that the Government did not waive sovereign immunity. Accordingly, we affirm the district court’s dismissal of this matter.

Briefs here.

SCOTUS Blog Petition of the Day: Seminole Tribe of Florida v. Stranburg

Matthew L.M. Fletcher

Here.