Here are those briefs:
Thurston County Motion for Summary J
Prior materials on this important case are here.
taxation
Crow Creek Sioux Tribe Fails to Save LeMaster Ranch
Here is the news article on the IRS plans to auction off the LeMaster Ranch, formerly owned by the Crow Creek Sioux Tribe. And here is the Tribe’s motion for a TRO that apparently failed yesterday:
Crow Creek Sioux Tribe Motion for TRO
An excerpt from the article:
The Internal Revenue Service plans to auction land on one of America’s poorest Indian reservations today, after efforts Wednesday to block the sale in U.S. District Court failed.
According to a federal lawsuit filed by the Crow Creek Sioux Tribe, the IRS intends to auction the land to settle delinquent federal employment taxes it maintains are owed by the tribe.
On Wednesday, a judge denied the restraining order seeking to block the sale, but, according to Terry Pechota, the attorney for Crow Creek Tribal Farms, the judge indicated that he would set the case for trial.
The auction will occur, but no land would change hands until after a court date in late March, said Duane St. John, a member of the tribal council.
The tribe has been planning to develop wind energy, and “this is our prime wind energy land,” St. John said. “So that’s going to be another big hurt to us.”
Scott Taylor on Indian Taxation after Carcieri
Scott Taylor has posted “Taxation in Indian Country after Carcieri v. Salazar,” forthcoming in the William Mitchell Law Review.
Here is the abstract:
Federally recognized Indian tribes are governments within our federal legal system. Tribes have aboriginal sovereignty that provides them with inherent governmental powers, such as the power to tax. Tribal sovereignty also protects tribes from state interference, such as state taxation of tribal lands. Both the exercise of tribal governmental powers and the tribal immunity from state interference have a territorial component. This makes the status of Indian lands a critical inquiry into tribal/state relations. Because of the importance of land status in federal Indian law, especially in matters involving taxation, the decision of the United States Supreme Court in Carcieri v. Salazar deserves special attention. In the Carcieri case, the Court held that the Secretary of the Interior did not have the statutory authority to place lands into trust on behalf of Indian tribes that were recognized after the enactment of the Indian Reorganization Act of 1934. This article explores taxation in Indian Country after Carcier
29 Palms Band v. Schwarzeneggar State Income Tax Case
As this article reports, the 29 Palms Band sued the State of California over gaming-related income on behalf of its off-reservation members. The court granted an earlier motion to dismiss, but allowed the Band leave to file an amended complaint on whether IGRA preempts state taxation.
Here are the materials so far:
Sept DCT Order Granting California Motion to Dismiss
Appellate Briefs in Osage Nation v. Kemp Tax/Reservation Disestablishment Case
Here:
Lower court materials are here.
Senecas to Target State Politicians Opposing Tribal Tax Immunities
From the Buffalo News via Pechanga:
ALBANY — Seen as cash cows for a cash-starved state government, the Seneca Nation is expanding its latest strategy to block tax collection efforts on its lucrative cigarette operations: The tribe will target, with campaign cash, state politicians who openly oppose the tax-free sales.
The Senecas are launching efforts to help defeat three Senate Republicans whom they call “hostile to the nation’s interests” for pushing collection of what lawmakers say could be as much as $1 billion a year in lost cigarette tax revenues by the Indian retail sales.
The lawmakers, two from upstate and one from Brooklyn, challenged the Seneca representatives at a hearing Tuesday in Manhattan called by the Senate Investigations Committee to examine the Paterson administration’s policy of not collecting the taxes on tobacco products sold by Indian retailers to non-Indians.
In a letter obtained by The Buffalo News to members of the Senecas’ Foreign Relations Committee, J. C. Seneca, the panel’s co-chairman, said the lawmakers — senators Michael Nozzolio, George Winner and Martin Golden — had “expressed tremendous hostility to our treaty rights and to our immunity from state excise taxes being collected in our territories” during Tuesday’s hearing.
Shinnecock Member Asks Supreme Court to Overturn Cherokee Nation v. Georgia
Here is the cert petition in Smith v. Shulman, a tax case — Smith v Shulman Cert Petition
Questions presented:
I. Whether a “rebate” to a reservation Indian is income?
II. Whether a District Court is barred by statute from exercising subject matter jurisdiction, when an Indian treaty provides a free trade right and a procedural dispute resolution right?
III. Whether this Court should overturn The Cherokee Nation v. The State of Georgia, 30 U.S. 1 (1831)insofar as the case provides the legal underpinning of United States’ jurisdiction over Indian reservations, where this Court interpreted the Commerce Clause language of “with” to mean “over” and found Indian tribes to be “domestic dependent nations” rather than “foreign nations,” an error in Constitutional interpretation and a historical wrong against Native Americans?
NY Indians Stand Up for Treaty Rights re: Tobacco Taxes
From the L.I. Press:
The New York State Senate hearing on the state’s non-collection of taxes on cigarettes sold to non-Native Americans on Indian Reservations brought representatives from Indian nations from all over New York State into a highly charged arena at the Borough of Manhattan Community College on Tuesday.
The hearing was chaired by state Sen. Craig Johnson (D-Port Washington) and had several other senators on the committee in attendance throughout the day. Though the hearing was scheduled to end at 2:30 p.m., the full slate of witnesses and complexity of the testimony being given extended to just after 4:30 p.m., with only two brief breaks in between.
Johnson had to call for order on a couple of occasions during heated exchanges between Sen. Martin Golden (R-Brooklyn) and JC Seneca of the Seneca Nation of Indians that prompted mocking rebukes from Indians in the auditorium. Golden implored the Seneca nation to help New York State given the $4 billion budget deficit the state is facing claiming that New York State will soon be in the same position as California and issuing IOU’s to contractors, vendors and employees. This was met with calls from the crowd, many of whom were yelling out “That’s not our problem” and taunting the senator as he walked out midway through the proceedings.
IRS Chief Counsel Issues Memorandum re: Tribal Tax-Exempt Bonds
An excerpt:
This memorandum addresses the interaction between tribal economic development bonds under
§7871(f) of the Internal Revenue Code (“Tribal Economic Development Bonds”) and build America
bonds under § 54AA (“Build America Bonds”). This memorandum should not be used or cited as
precedent.ISSUE
Can an Indian tribal government that has received an allocation of volume cap pursuant to §7871(f)
(1) of the Internal Revenue Code (the “Code”) to issue Tribal Economic Development Bonds elect
under § 54AA(d)(1)(C) to issue those bonds as Build America Bonds instead of issuing the bonds as
tax-exempt bonds under §103?CONCLUSION
An Indian tribal government that has received an allocation of volume cap pursuant to §7871(f)(1) to
issue Tribal Economic Development Bonds can elect under §54AA(d)(1)(C) to issue such bonds as
Build America Bonds instead of issuing the bonds as tax-exempt bonds under §103.
Thanks to J.W. for this!
Student Article on Authority of Indian Tribes to Tax Athletes and Performers
Here is an interesting piece called “The Power of Indian Tribes to Tax the Income of Professional Athletes and Entertainers Who Perform in Indian Country,” a student note in the Connecticut Law Review.
Here is the abstract:
Athletes and entertainers represent some of the highest paid individuals in the United States today. Historically, these individuals perform in various states throughout the country and pay state income taxes to each state they earn income in. With the recent rise of athletic and entertainment venues in Indian Country, more athletes and entertainers are earning income in Indian Country. For example, the Mohegan Tribe owns and operates the Mohegan Sun Arena on its reservation in Connecticut and the Arena annually hosts hundreds of professional athletic and entertainment events. Because the Mohegan Sun Arena is located in Connecticut, athletes and entertainers who perform at the Arena and receive compensation are currently subject to Connecticut’s state income tax. However, as a federally-recognized Tribe, the Mohegan Tribe possesses the power to tax, including the power to tax non-member Indians doing business on the Mohegan Reservation. Although the Mohegan Tribe does not currently levy an income tax on the athletes and entertainers who perform at the Mohegan Sun Arena, the prospect of double taxation raises the question of which sovereign is really the proper taxing entity — the State or the Tribe? This Note proposes an equitable tax framework that resolves this double taxation quandary.
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