The details are over at American Indian Policy Blog (here).
IRS Seeks Comments on Rules for Stimulus Package Tribal Economic Development Bonds
The details are over at American Indian Policy Blog (here).
taxation
Wisconsin SCT Reviews Ho-Chunk Nation Tax Case
The lower court opinion in Ho-Chunk Nation v. Wisc. Dept. of Revenue is here. Oral argument was last month.
Here are the questions presented:
Is the petitioner entitled to a refund of cigarette tax revenue for the sale of cigarettes on DeJope property pursuant to Wis. Stat. §§ 139.31 and 139.323 (3)?
What is the reasonable interpretation of Wis. Stat. § 139.323 (3)’s “designated . . .trust land” within the context of the sale of cigarettes on the DeJope property?
City of New York v. Golden Feather — Update
As Indianz reported, the Eastern District of New York delayed ruling on the City’s motion for a preliminary injunction and rejected a sovereign immunity from the smokeshops. Here is the order — march-16-dct-order
Here is our earlier post that includes the complaint.
Lloyd Miller: A New Deal for Native America
From Lloyd Miller, partner in the law firm of Sonosky, Chambers, Sachse, Endreson & Perry, LLP:
In only two months President Obama has already begun to make his mark in forging a new era in Native American affairs. After eight years marked mostly by neglect, this is welcome news, for Tribal leaders have been yearning for the profound change that can only come from a committed White House — change that calls upon the Nation not only to remember its forgotten First Americans, but to craft a new deal that embraces tribal governments as true partners in the Nation’s family of governments. Under President Obama, all indications are that this new deal will include promoting genuine tribal self-determination, honoring the unique place Indian Tribes occupy under the Constitution, and honoring fully the trust responsibility born of treaties and the Nation’s tragic early history with Indian Tribes.
Most Americans are only dimly aware of today’s tribal governments, and for many that knowledge is limited to casinos. Few know that less than one-half of America’s 562 Tribes actually operate gaming facilities of any kind (nearly half of them in California). Few know that, of those that do, the well-known top 10% account for over 50% of total tribal gambling revenues, while roughly half the Tribes account for less than 10%. The fact is, across Native America gambling is commonly little more than a breakeven proposition, providing local employment and moderately enhanced health, educational and public services.
Still, popular interest in Indian gambling has eclipsed the real picture of Native America, which remains largely out of the public eye: communities living in third world conditions without basic running water or sanitation and suffering disproportionately high rates of communicable diseases; reservations and villages with little physical infrastructure; child suicide rates 2.5 times the national average (and for teens in some regions, 17 times the national average); overwhelmed law enforcement and justice systems funded at 40% the national average, with half of all offenders on the street due to dangerously overcrowded facilities; and crumbling schools with over $800 million in deferred maintenance, producing children who score lower in reading, math and history than every other ethnic group in America.
Although in many places conditions are improving, for too many in too many places America has gravely neglected its First Americans.
Continue reading
Huron Nottawaseppi Property Tax Dispute
From the Battle Creek Inquirer:
ATHENS — Athens Township’s attorney said the township has no means to collect back taxes from the local Potawatomi.
The Nottawaseppi Huron Band of Potawatomi’s Pine Creek Reservation in Athens Township was federally entrusted in summer 2008, making it untaxable land. But that came after it was assessed for 2008, so the tribe was billed for those taxes.
The tribe didn’t pay, saying it didn’t owe as a federally recognized tribe. The unpaid 2008 taxes are part of a pending Michigan Tax Tribunal case: The Potawatomi also has asked that taxes it paid from 2004 to 2007 be returned.
At the township board meeting Tuesday, Assessor Marcia Bails read a letter from Jim Norlander, township counsel. It said even though the property was assessable for 2008, Pine Creek now is federal property and can’t be foreclosed upon.
Seneca-Cayuga Suit against Okla. AG re: Tobacco MSA Allowed to Proceed
Here is the opinion from the Northern District of Oklahoma in Seneca-Cayuga Indian Tribe v. Edmondson — seneca-cayuga-v-edmondson-dct-order
Section 1362 strikes again!
Barrett v. United States Briefing in CA10
Here are the briefs in Barrett v. United States, to be heard by the Tenth Circuit:
Lower court materials, including the opinion, are here in an earlier post.
Economic Stimulus Bill Expands Tribal Tax Exempt Bonding
The version of the American Recovery and Reinvestment Tax Act of 2009 (Stimulus Package) passed by the Senate on Tuesday contains language that comes closer to putting tribes on par with state and local governments for the purpose of issuing tax exempt bonds. This has long been a sore spot for tribes, as the IRS has interpreted existing law to prohibit tribes from issuing tax exempt bonds in the same manner as state and local governments.
The Internal Revenue Code allows tribes to issue tax exempt bonds for an “essential government function,” which is defined as a function that is customarily performed by a state or local unit of government with general taxing powers. The IRS has seized upon the word “customarily” to prohibit tribes from issuing tax exempt bonds from certain projects, such as golf courses, hotels, and other revenue-generating facilities – even where there are cases of states and cities issuing tax exempt bonds for the exact same types of projects. According to the IRS, the fact that states and cities sometimes issue tax exempt bonds for these types of projects does not mean that they are functions that they customarily perform.
The Stimulus Package addresses this issue by amending the Internal Revenue Code to allow tribes to issue “Tribal Economic Development Bonds.” (Note: The language of this amendment closely mirrors that of the Tribal Tax Exempt Bond Parity Act, which was introduced in the last Congress by Senators Max Baucus (D-MT) and Gordon Smith (R-OR).)
The amendment defines a “Tribal Economic Development Bond” as a bond issued by a tribe where the interest would be exempt from taxation if issued by a state or local government.
This amendment comes with three important caveats:
1.) The bonds cannot be used to finance any portion of a building in which Class II and Class III gaming is conducted, or any property used in the conduct of gaming;
2.) The bonds must be used to finance facilities located on the reservation; and,
3.) There is a national cap on the total value of Tribal Economic Development Bonds at $2 Billion, which must be allocated among tribal governments in the manner deemed appropriate by the Secretaries of Treasury and Interior.
While this amendment isn’t perfect, it is a significant and important step toward increasing access to the debt market for tribes and putting tribes on par with state and local governments. I hope that the Stimulus Package Conference Committee retains this amendment, and that the Secretaries engage tribal leaders in meaningful consultation when allocating the national cap among the tribes.
Please check back later for updates on the Stimulus Package and its Indian Country provisions.
U.S. v. Morrison — Federal Convictions for Contraband Cigarette Sales
The US Attorney for the Eastern District of New York indicted “reservation retailers” for violations of the Contraband Cigarettes Trafficking Act and of RICO. The defendants moved to dismiss the RICO charge. Here is the opinion denying the motion — us-v-morrison-dct-order
Maine SCT Requires Seneca Tobacco Wholesaler to Acquire Maine License
The Maine Supreme Court ruled that Seneca Nation of Indians members doing business in Maine must acquire a state license to sell tobacco. Here is the opinion in Dept. of Health and Human Services v. Maybee. An excerpt:
Scott B. Maybee appeals from an order entered in the Superior Court (Kennebec County, Marden, J.) denying his motion for summary judgment and granting a summary judgment in favor of the Department of Health and Human Services. The Department brought a civil enforcement action pursuant to 22 M.R.S. § 1555-C(8 ) (2008 ) because Maybee failed to obtain a retail tobacco vendor license in violation of 22 M.R.S. § 1555-C(1) (2008 ). Maybee contends that because he conducts his tobacco delivery business from a location within the boundaries of an Indian reservation in New York State, the courts of Maine do not have subject matter jurisdiction, and the Maine vendor license requirement is preempted by federal law. Because subject matter jurisdiction exists and the Maine statute is not preempted, we affirm.
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