taxation – Page 57 – Turtle Talk

Attea v. N.Y. Dept. of Taxation Cert Petition

February 4, 2010Matthew L.M. Fletcher

Here: Attea v. Dept. of Taxation Cert Petition.

Questions presented:

1. Whether New York State usurps the United States Congress’ plenary power to regulate commerce with the Indian Tribes under Article 1, Section 8, Clause 3 of the US Constitution by imposing a direct tax and onerous record keeping burdens directly on a Federally Licensed Indian Trader.

2. Whether, if Indian Trader income is state taxable, New York State violates a nonresident’s Due Process rights and the Commerce Clause by taxing an indiscriminate amount of a nonresident’s income solely because there is insufficient proof to show the amount of income allocable to out of State sources.

Lower court opinion here.

Lil’ Brown Smoke Shop v. Wasden — Challenge to Idaho Tobacco Statute

February 3, 2010Matthew L.M. Fletcher

The court denied a motion for a preliminary injunction by a smoke shop seeking to prevent enforcement of Idaho’s Minor’s Access Act. Here are the materials:

Lil Brown Smoke Shack DCT Order

Lil Brown Smoke Shack Motion for Preliminary Injunction

Idaho Opposition

Lil Brown Smoke Shack Reply

An excerpt:

Here, Defendants argue that, if the Bracker balancing test applies, the permit requirement is an important state interest outweighing the tribal interests. Specifically, Defendants argue that the permit requirement allows the State of Idaho to control the ability of minors to obtain tobacco by ensuring that the Department of Health and Welfare has a central repository of all businesses marketing tobacco to Idaho residents with a uniform set of data which facilities compliance and monitoring. Defendants contend this interest outweighs the relevant tribal interests identified by Plaintiff, partially because the burden on Plaintiff in submitting annually to a no-charge permit is non existent. However, Defendants do not address Plaintiff’s contention that the right to make employment decisions, business decisions, and the right to exclude persons from the reservation are longstanding tribal interests that, although they do not singularly justify non compliance with the MAA, must be balanced in the Bracker test particularly with respect to the other contested provisions of the MAA. The Court agrees that the Bracker test should be applied.

The Court finds that, even though the Plaintiff’s likelihood of success on the merits with respect to the permit requirement is low, the likelihood of success with respect to the other provisions of the MAA is more plausible. However, Plaintiff has failed to clearly demonstrate that it is likely to succeed on these claims. Thus, the Motion for Preliminary Injunction on Plaintiff’s tribal sovereignty challenges will be denied.

Muscogee (Creek) Nation Challenges Oklahoma’s Application of the Tobacco Litigation Master Settlement Agreement

January 29, 2010Matthew L.M. Fletcher1 Comment

This is definitely a case to watch:

Muscogee v. Henry Complaint

News article here, via Pechanga.

Calif. Courts Dismissing Suits against Grand River Six Nations Tobacco Wholesalers

January 28, 2010January 28, 2010Matthew L.M. Fletcher

Here are a series of minute orders dismissing claims against Grand River Enterprises’ Native Wholesale Supply brought by the State of California. Many states have been attempting to prosecute this entity for selling tobacco in Indian Country in violation of the Master Settlement Agreement reached by 46 state AG’s and major tobacco companies.

GRE-NWS-California

They have a claim pending against the United States under NAFTA (documents here).

Fond du Lac Band v. Einess — State Can Tax Out of State Income of Reservation Indians

January 25, 2010Matthew L.M. Fletcher1 Comment

This is a few months old. No word on an appeal. Here are the materials:

DCT Order in Fond du Lac Band v Einess

Fond du Lac Complaint

Fond du Lac First Motion for Summary Judgment

Fond du Lac Amended Motion for Summary J

Minnesota Opposition to Motion for Summary J

Fond du Lac Reply Brief

Idaho Supreme Court Rejects Indian Challenge to Tobacco Master Settlement Agreement

January 17, 2010Matthew L.M. Fletcher1 Comment

Here is the opinion in State of Idaho ex rel. Wasden v. Maybee.

An excerpt:

Scott B. Maybee challenges the district court’s grant of summary judgment in favor of the State of Idaho. Maybee argues that Idaho’s Tobacco Master Settlement Agreement Complementary Act (Complementary Act) is inapplicable to his conduct, as the Complementary Act was not intended to regulate unstamped cigarettes sold in interstate commerce. Maybee also contends that the Complementary Act is preempted as it applies to him, under both the Interstate Commerce Clause and the Indian Commerce Clause of the U.S. Constitution, as Maybee is a Native American, living and conducting business upon a reservation located in the state of New York. Maybee argues that the tobacco permit requirement of Idaho’s Prevention of Minors’ Access to Tobacco Act (MAA) is likewise preempted by the Indian Commerce Clause.

Blue Lake Rancheria Loses FUTA Tax Challenge

January 12, 2010Matthew L.M. Fletcher1 Comment

Here are the materials in Blue Lake Rancheria v. United States (N.D. Cal.):

Blue Lake Motion for Summary Judgment

USA Motion for Summary Judgment

Blue Lake DCT Order

Grand River Enterprises Files Cert Petition in Tobacco Case

January 10, 2010Matthew L.M. Fletcher

Here is the cert petition in Grand River Enterprises Six Nations v. Beebe: Grand River Enterprises Cert Petition

And the lower court opinion: CA8 Opinion

The questions presented:

1. In 2002, Petitioner, Grand River Enterprises Six Nations, Ltd. (“Grand River”), commenced a lawsuit against the Attorneys General of thirty-one (31) States in federal district court in New York, challenging model legislation adopted by their respective States to implement the Tobacco Master Settlement Agreement (“MSA”). The Second Circuit Court of Appeals has twice held that Petitioner’s antitrust and Commerce Clause challenges to the model legislation state a claim for relief under Fed. R. Civ. P. 12(b)(6). Although the State of Arkansas adopted the same model legislation, the Arkansas Attorney General was not included in that lawsuit, because, at that time, the State of Arkansas had not enforced, nor threatened enforcement of, the model legislation against Petitioner. In this later-filed action against the Arkansas Attorney General, the Court of Appeals for the Eighth Circuit, with one Judge dissenting, has held that challenges to the model legislation in Arkansas – challenges identical to those permitted by the Second Circuit – fail to state a claim. As such, the question presented is whether, despite the decisions of the Second Circuit holding and acknowledging that Petitioner has stated a claim pursuant to Fed. R. Civ. P. 12(b)(6) that model legislation enacted by thirty-one (31) States to implement the MSA violates the Sherman Act, the Eighth Circuit erred in affirming dismissal of Petitioner’s Sherman Act challenge to the same model legislation enacted by the State of Arkansas, pursuant to Fed. R. Civ. P. 12(b)(6).

2. Whether, despite the decisions of the Second Circuit holding and acknowledging that Petitioner has stated a claim pursuant to Fed. R. Civ. P. 12(b)(6) that model legislation enacted by thirty-one (31) States to implement the MSAviolates the Commerce Clause, the Eighth Circuit erred in affirming dismissal pursuant to Fed. R. Civ. P. 12(b)(6) of Petitioner’s Commerce Clause challenge to the same model legislation enacted by the State of Arkansas.

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