Here is the order list — the docket no. is 09-32, and the notice is on page 3.
taxation
Oklahoma Supreme Court Vacates Injunction against Oklahoma Tax Commission from Enforcing Tax Compact against Osage Smokeshops
Here is the opinion in Feather Smoke Shops v. Oklahoma Tax Commission.
An excerpt from the dissent:
¶2 I believe the “dispute” is not subject to arbitration because it is not one “arising in the interpretation or performance of th[e] Compact.” I reach this conclusion because the undisputed material facts show that the State, through the actions of the Oklahoma Tax Commission, is simply in breach of the unambiguous “favored nations” provision of the Compact. This provision grants the Osage Nation the “option” to “automatically… incorporate” more favorable terms of a tobacco tax compact with another Indian tribe into the Osage Nation Compact. The State, through the Oklahoma Tax Commission, admits that the Osage Nation exercised this “option” and chose to incorporate the favorable terms of the State’s compacts with the Cherokee Nation and Choctaw Nation, inter alia. The Oklahoma Tax Commission recognizes that this action constituted an amendment to the Compact, including the “exception rate” of $.58 per carton. Nothing in the Compact ties or burdens such amendment of the Compact to the continuation of any comparable terms that may have been previously incorporated from another compact, like the Pawnee Compact in question.
¶3 In my opinion, there is no uncertainty about the meaning of any term in the Compact, nor any doubt about the performance due under any term. There is simply unjustified refusal of the Oklahoma Tax Commission to perform its ministerial duties under the Compact and a suit in district court for injunctive relief is one of the appropriate remedies for such a breach of contract. Under the record presented, I do not believe the trial court either exceeded its jurisdiction or abused its discretion in issuing the injunction.
Barrett v. United States Cert Petition Materials
Sales Taxes at Indian Casinos
The 1 percent sales tax at Foxwoods apparently has the attention of the Connecticut AG for some reason (Indianz report here). The concerns seem to be based in the accounting of the tax, and really just a way for this troubling AG (Blumenthal) to get in the papers.
But tribal sales taxes at Indian casinos imposed on the largely non-Indian customer base is an important and real expression of tribal sovereignty. But largely because of numerous Supreme Court decisions like Wagnon, Cotton Petroleum, and Moe, the states get most of the money from the on-reservation tribal tax base. Moe says tribes have to collect sales taxes from non-Indians purchasing tobacco products in Indian Country. Cotton Petroleum says that tribal taxes don’t preempt states taxes imposed on non-Indians doing business in Indian Country, allowing state taxes to economically trump tribal taxes. As does Wagnon.
The one percent tax added on to the state sales tax at Foxwoods is an economic representation of the tribal tax base in stark forms. The state gets 6 percent of tribal sales, and the tribe (if its lucky) can tack on an additional 1 percent. What does the state have to do for this money? Absolutely nothing. They already get 25 percent of the net win in Connecticut. Because of these very unfair Supreme Court decisions, AG Blumenthal can wax politic about sales taxes that are pure windfalls to his state.
Materials in the New York City Smokeshop Case
Here are the materials in the New York City v. Golden Feather Smoke Shop case (E.D. N.Y.), reported here. Earlier materials are here.
NYC Motion for Preliminary Injunction
Golden Feather Opposition to Motion
Peace Pipe Smoke Shop Opposition
NYC Reply Brief in Support of Motion (Attachment: IMO Gutlove & Shirvant)
NYT’s Article on New York State’s Tobacco Fight with Indian Tribes
From the NYTs:
A federal judge ruled on Tuesday that a group of tobacco vendors on an Indian reservation on Long Island cannot sell tax-free cigarettes to the general public until a court rules in a closely watched legal battle between the reservation and New York City.
A temporary injunction issued by Judge Carol B. Amon of Federal District Court in Brooklyn gave the city at least a temporary victory in its efforts to collect hundreds of millions of dollars in tax revenue.
“The city will go after every dollar that is owed to city taxpayers,” Mayor Michael R. Bloomberg said in a statement on Wednesday. Under Judge Amon’s ruling, a group of cigarette businesses on the Poospatuck Indian Reservation near Mastic can sell tax-free cigarettes only to tribe members, for personal use, until a verdict is reached in a federal lawsuit the city filed in September.
The judge stayed the ruling for 30 days to give the vendors time to appeal.
“The judge’s ruling is completely wrong,” said Harry Wallace, a lawyer and the chief of the Unkechaug Indian Nation, which is on the Poospatuck reservation, adding that it ignored the Indian nation’s sovereignty.
Federal Court Denies Injunction in Muscogee Cigarette Seizure Case
Thanks to Mike for this. Here’s a news article on this case.
A federal court dismissed a request for an injunction against the Oklahoma Tax Commission for seizing tobacco products owned by the Muscogee (Creek) Nation. State law enforcement had seized the smokes on some pretty spurious grounds, pulling the trucks over for “weaving” and “following too close” (not texting!?!). The court rejected most of the Commission’s defenses, including standing and sovereign immunity, but dismissed the claim on the basis that Indian tribes are not “persons” that can sue under Section 1983, per Inyo County.
Sounds to us like a Section 1983 legislative “fix” is in order, too, like all the other problems created by the Supreme Court in the last decade.
More later.
Citizen Potawatomi Nation Files Amicus Brief in Barrett v. United States
Here — CPN Amicus Brief
Other materials are here. And here is the Supreme Court docket.
Article on Indian Law Cases in New York State Courts
Law.com has published an article on several Indian law cases that are active in New York state courts, including the Cayuga cigarette tax case and another involving the application of state civil regulatory law to a tort claim arising out of actions that occurred entirely within the Akwesasne Mohawk reservation.
From the article:
Hart’s attorney, John A. Piasecki of Malone, N.Y., said he argued that application of the Labor Law is an administrative action by the state and does not have force in the St. Regis Mohawk territory. Piasecki said he would like to someday argue the point before the U.S. Supreme Court.
“It is larger than mere tribal sovereignty,” Piasecki said Tuesday in an interview. “We have argued that unless a law is specifically adopted on an Indian reservation or specifically imposed on an Indian reservation by a federal act of Congress … New York statutes simply don’t apply within the boundary of the St. Regis Mohawk Indian Reservation.”
The article also notes that the Plaintiff in the litigation surrounding the alleged tort occurring on the Akwesasne reservation made a conscious effort to avoid incorporating the tribe in the lawsuit. Presumably, the Tribe’s attorney would know better than to try to bring this type of case all the way to the U.S. Supreme Court (as presently constituted).
It seems to me that it is these types of cases that present the greatest threat to sovereign authority, because the advocacy of tribal interests is in the hands of a self-interested litigant (perhaps with an attorney not well-versed in Indian law). These types of cases provide the courts with opportunities to limit tribal jurisdiction without the tribe being the primary party in interest a la Hicks, Strate, Means, and Lara (although the latter two did not end too badly for tribal interests).
You can read the entire article here
Idaho Federal Court Refuses to Dismiss Smokeshop Case
Here is the opinion in Lil’ Brown Smoke Shop v. Wasden (D. Idaho) in which the court rejected a motion to dismiss on Eleventh Amendment and Young absention grounds. An excerpt:
Based on the aforementioned cases and standards, and the arguments of the parties with respect to whether the Act regulates on or off reservation activity, the Court disagrees with Defendants and finds that the issue of the state’s jurisdiction is not conclusive. Here, like in Fort Belnap, Sycuan, and Seneca-Cayuga, the question of whether the state law is enforceable against Plaintiff is a federal question in an area, tribal law, where federal interests predominate. Thus, the Court finds that the State of Idaho’s interest in this litigation is not sufficiently important to warrant Younger abstention in light of the predominant federal question regarding the State of Idaho’s jurisdiction to enforce the Act. Thus, as Defendants have failed to prove all requirements for Younger abstention, the Court will deny Defendants Motion to Dismiss (Docket No. 8 ) with respect to Defendants Wasden and Armstrong.
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