The New York Appellate Division has reversed a N.Y. Supreme Court decision denying a request for a declaratory judgment against county impoundment of tobacco products intended for sale on-reservation to tribal members. The case is Cayuga Indian Nation v. Gould.
News coverage here.
Here is the cert petition in Barrett v. U.S. (docket no. 09-32) — Barrett v. US Cert Petition
Questions presented:
1. Whether an Indian tribe can use Indians Claims Commission Act funds, appropriated by Congress and distributed to the tribe with a specific exemption from federal income tax, to pay federal income tax exempted salaries to elected officials the tribe is required to have under its tribal constitution.
2. Whether the imposition of a penalty by the Internal Revenue Service against the tribal chairman for sovereign legislative actions of the tribe improperly infringes on the tribe’s sovereign powers.
Lower court materials are available here.
Reported yesterday in Indianz, here is the order — Frank’s Landing Summary Judgment Order
And the summary judgment briefs (preliminary injunction briefs were posted here):
Frank’s Landing Motion for Summary Judgment
Gregoire Motion for Summary Judgment
Lopeman Motion for Summary Judgment
Unfortunately, Nisqually’s motion for partial summary judgment is sealed.
Here is the opinion in Attea v. State Tax Tribunal. An excerpt:
As noted by respondent Commissioner of Taxation and Finance, petitioner’s licenses authorized him to sell cigarettes and tobacco products only to Native Americans at the St. Regis and Tuscarora Indian Reservations. Nevertheless, while petitioner produced documents indicating that he imported and shipped tobacco products to Indian reservations, these records included no books of original entry for his business, such as sales journals, general ledgers, balance sheets, expense receipts, income statements or bank statements. In light of these deficiencies, the Tribunal was again unable to substantiate that the sales made by petitioner actually took place on reservations and were made to qualified tribal members-as required by petitioner’s Indian trader licenses-or to formulate any allocation of what percentage of petitioner’s sales might be tax exempt. Accordingly, as in the prior proceeding, we conclude that petitioner failed to meet his “heavy burden of demonstrating by clear and convincing evidence that [his] business traded exclusively with Native Americans and maintained no presence in this State,” and we will not disturb the Tribunal’s determination….
Here is the opinion in Confederated Chehalis Tribes v. Thurston County (W.D. Wash.) — DCT Order Denying Chehalis Motion for Summary Judgment (briefs are here, and an earlier opinion is here).
An excerpt:
n this case, the Court is not persuaded that the rule of Rickert applies to bar the taxation in question because this case involves a significantly different factual scenario. Although the site in Grand Mound is held in trust by the United States for the benefit of the Tribe, the Lessee, CTGW, owns the improvements in fee during the terms of the Lease. Moreover, it cannot be said that the improvements are “occupied” by the Tribe as CTGW currently uses the improvements to operate a hotel, conference center, and indoor water park. Therefore, the Rickert rule that was implemented to protect a homestead and associated livestock is, in this Court’s opinion, inapplicable to privately owned commercial business ventures even though the improvements are on land held in trust by the United States.
Here is Russ Brien’s summary of the IRS Tribal Bonds notice from last week — 2009-51 ES
This Notice solicits applications for allocations of the $2 billion national bond volume limitation authority (“volume cap”) to issue tribal economic development bonds (“Tribal Economic Development Bonds”) under new § 7871(f) of the Internal Revenue Code (the “Code”). This Notice also provides related guidance on the following: (1) eligibility requirements that a project must meet to be considered for a volume cap allocation, (2) application requirements, deadlines, and forms for requests for volume cap allocations, (3) the method that the Internal Revenue Service (“IRS”) and the Department of the Treasury (“Treasury”) will use to allocate the volume cap, and (4) certain interim guidance in this area.
Here is the opinion in Ho-Chunk Nation v. Wisconsin Dept. of Revenue. An excerpt from the majority:
For the reasons set forth below, we affirm. “[R]eservations or trust lands” are also referred to in the sentence preceding the provision in question; a sensible reading of the statute (Wis.Stat. § 139.323) requires that the two references be read as identifying the same land. The grammatical construction of the sentence itself lends further support to our holding because “was designated” precedes both “a reservation” and “trust land” and means the same thing about each. Given that there is no basis in the federal regulations for recognizing a preliminary, unofficial status for reservations or trust lands, there is likewise no basis for reading this statute as intending to apply to land that has received only preliminary informal approval.
And an excerpt from the dissent:
Unlike this dissent, the majority opinion does not justify its holding on any historical or policy basis. It relies instead on unpersuasive interpretive tools. In my view, the only way we would be justified in denying the Ho-Chunk Nation the requested refund on its DeJope tax collections would be to cite documentary evidence showing that this property was considered and intentionally excluded.
Here is the opinion in United States v. Funds from Wells Fargo Bank Account (W.D. Wash.) — US v Funds from Wells Fargo Bank Account DCT Order
An excerpt:
A genuine issue of material fact exists regarding whether Isleta qualifies as an innocent owner of the funds in question. Therefore, the Court GRANTS Plaintiff’s motion for partial summary judgment on the issue of Isleta’s funds are subject to civil forfeiture and DENIES Plaintiff’s motion for partial summary judgment on the issue of whether Defendant Isleta was an innocent owner of the funds in question. The Court DENIES Defendant’s motion for partial summary judgment on the issues of whether Defendant Isleta’s funds are subject to civil forfeiture and whether Isleta was an innocent owner of the funds in question.
Here are the appellate materials:
And here is our earlier posting on the district court case, along with all of the extensive exhibits, etc.
Turtle Talk 
You must be logged in to post a comment.