The Eastern District of Washington issued a TRO at the behest of the Yakama Indian Nation preventing the State of Washington from enforcing its tobacco tax laws against the Nation on Sept. 12. Here are the materials:
taxation
Forest County Potawatomi v. Town of Lincoln — Tax Case
The Wisconsin Court of Appeals reversed a trial court grant of summary judgment in favor of the Town of Lincoln in Forest County Potawatomi and Sokoagon Chippewa Community v. Town of Lincon (H/T Indianz). From the opinion:
The Forest County Potawatomi Community and the Sokaogon Chippewa Community (the Tribes) appeal a summary judgment dismissing their claim against the Township of Lincoln (the Town) for excessive tax on two forty-acre parcels in Crandon, Wisconsin. The Tribes challenged the assessed value of the land – land often referred to as the Crandon mine site. The assessment was based on a Department of Revenue analysis of an April 2003 sale of the mining company that owned the land. The circuit court concluded the sale was a recent arm’s-length sale of the property. The court declined to consider other factors the Tribes claimed affected the land’s value.
We conclude the sale of the mining company included not just the two forty-acre parcels but also substantial other land and company assets. The transaction was therefore not a sale of “the property.” We further conclude this is “significant contrary evidence,” which rebuts the presumption in favor of the
Town’s assessment. Accordingly, the circuit court erred by failing to consider the Tribes’ evidence of the land’s value. We reverse and remand for further proceedings.
2008 Term Preview: The Long Conference — September 29, 2008
On September 29, 2008, the Supreme Court will convene for what is known as the long conference. Here is where the Court meets privately to make decisions on the summer backlog of cert petitions. There are EIGHT Indian law-related cert petitions scheduled for review in the long conference. There is a very good chance that one or more of these petitions will be granted.
1. Hawaii v. Office of Indian Affairs (07-1372)
This petition has a fairly good chance to be granted.
The first factor weighing in favor of a grant is that a state government is bringing the petition. The second factor weighing in favor are the three amicus briefs supporting the petition, often an attention getter for the clerks. Moreover, one of the amicus briefs is signed by 30 states and a U.S. territory, yet another point in favor of a grant. The wild card factor is that a similar petition reached the Court in the 2006 Term, but that one was settled out of court and dismissed (Doe v. Kamehameha Schools). Moreover, there is a case similar to Doe that has just been filed, and the Court might want to wait for that one (not sure why).
2. Ho-Chunk Nation v. Wisconsin (07-1402)
I don’t think this one has much chance to be granted.
It’s a sort of an interlocutory appeal, meaning the lower court hasn’t even reached the merits yet. And it’s being brought by an Indian tribe, which doesn’t appear to impress the Justices much. Finally, the petition cites me for the proposition that this is an important case, always a serious mistake. 8)
3. Kemp v. Osage Nation (07-1484)
This has a fairly good chance of being granted, too, but maybe not as good as the Hawaii case.
Kemp is actually the Oklahoma Tax Commission, always a Supreme Court favorite (remember the 1990s, Citizen Potawatomi, Sac and Fox, and Chickasaw Nation?). So, it’s a state government bringing the petition, weighing in favor of a grant. Moreover, the subject matter of the case is state sovereign immunity and the Ex parte Young exception. Again, a factor favoring a grant. But there doesn’t seem to be a split in authority. And the state’s argument that the Tenth Circuit’s decision conflicts with Idaho v. Coeur d’Alene seems to be a stretch, because this case is about taxation, and that one was about actual title to land.
4. Kickapoo v. Texas (07-1109)
This one has a slight chance for a grant.
I’d have said all along (and I did, I think) that this case has no chance for a grant. And then the US filed an unusual brief arguing for a denial, but making a powerful case for why the CA5 got this one wrong on every level. If the US brought the petition (it didn’t), then maybe there would be a grant on that argument alone. Baffling. Texas initially refused to file a cert opposition (probably because they read my blog entry 🙂 ), but then the Court called for a response.
Still, there’s no split. And other cases involving the same exact question are in the pipeline in Florida and Alabama. The Court will probably let this one percolate below.
5. Klamath Tribes v. PacificCorp (07-1492)
This one has no chance.
First, it’s being brought by an Indian tribe, not a favored petitioner. Second, Klamath is bringing a federal common law cause of action. The Court doesn’t favor those, either. And third, there’s no split in authority. Poor fish. 😦
6. Matheson v. Gregoire (08-23)
Again, no chance.
First, the case is being brought by an individual Indian who is challenging the fact that his tribe entered into a tax agreement with the state. He could challenge the agreement in tribal court (maybe he is), but instead he’s going to federal court. Second, there’s no split at all.
7. South Fork Band v. United States (08-100, 08-231)
No chance.
This is a case trying to reopen parts of the odious United States v. Dann decision from 20 years ago. The Court doesn’t like that, either.
8. United States v. Navajo Nation (07-1410)
Very, very good chance for a grant.
First, the petition is brought by the United States, which is the premier party in the Court’s eyes. I suspect far more than half of the US’s petitions are granted, and I’m sure all but a very few are seriously considered by the Court in conference. Second, this is the continuation of a case the Court thought to be important in 2002, U.S. v. Navajo Nation I. That case (and this one, too) involves a judgment against the United States that could reach one billion dollars, if interest attaches (a mere $600 million if it doesn’t). Third, though the Court technically left open several questions after Navajo Nation I, it strongly stamped down the first theory brought by the Navajo Nation. One suspects the Court doesn’t like seeing a case reaching an outcome it rejected once come back again under a second theory. We could either have an outcome like U.S. v. Mitchell (tribe loses first time, comes back second time and wins with new theory), or N.Y. v. Milhelm Attea (Court repeatedly instructs lower court to find against tribe, only to be forced to do the dirty work itself).
Either way you have a grant.
Collecting State Taxes in Indian Country
As usual, there is interest in New York in collecting taxes likely owed in accordance with the Milhelm Attea case (see article here). The St. Regis Mohawk leadership, however, suggests:
“This bill, like similar legislation proposed before it, will harm the Northern New York economy, not help it,” said Chief James W. Ransom, citing a 2003 study performed by Regional Economic Models Inc. “The economic impact could be greater than $2 million per year.”
“We already collect fees from tribal businesses that would be harmed by this legislation and that will hurt our ability to deliver essential governmental services,” said Chief Barbara A. Lazore. “It will also result in a loss of jobs that no one in the state is even considering.”
This is the problem that Supreme Court Indian tax cases have created. Indian tribes and Indian people try to develop their economies and tax base, and the state can — at any time it wishes — destroy that economy merely by imposing taxes.
False Advertising Claim against Tribal Smokeshop
In Gristede Foods v. Unkechauge Nation/Shinnecock Trading Post, the district court refused to dismiss a Lanham Act claim against a tribal retailer. The plaintiff alleges that the retailer promised tax-free sales, but didn’t deliver. This is the second motion to dismiss denied by the court.
Kate Fort on The New Laches
Kate Fort of MSU College of Law has posted “The New Laches” on SSRN. This is the first comprehensive and historical study of the application of laches doctrine to sovereigns, federal, state, and tribal. Here is the abstract:
Tribal land claims are facing a new challenge from an old area of law. Courts have been paying special attention to the law of equity and how it can defeat tribal land claims. Specifically, the equitable defenses of laches, acquiescence, and impossibility were used by the Supreme Court to hand defeat to the Oneida Indian Nation on a tax issue. Since then, lower courts in the Second Circuit have used this precedent to deny Indian land claims. But are these three defenses based on precedent themselves? Rarely. Instead, they have been combined to create a new defense, what I will call the “new laches.” This new defense, so far used successfully in Indian land cases in New York state and unsuccessfully elsewhere, has been so broadly construed by the Second Circuit that, if this view is adopted nationwide, it could apply to any treaty-based claim brought by Indians or Indian tribes.
Kemp v. Osage Nation Cert Opposition Brief
This case, which I suspect has a fairly good chance of being granted, involves the Osage Nation’s successful suit against the Oklahoma Tax Commission to declare its Indian Country boundaries. The cert petition post is here, which includes the lower court decision and the relevant briefs. Here is the opposition brief.
Matheson v. Gregoire Brief in Opposition to Cert Petition
Senate Finance Committee Hearing — Witness Statements
Senate Finance Committee Hearing on Tribal Tax Policy
Go Del!
From Indianz:
The Senate Finance Committee will hold a hearing on Tuesday, July 22, to address tax policy in Indian Country.
Sen. Max Baucus (D-Montana), the chairman of the committee, said the hearing will address three specific issues: the Indian Employment Tax Credit, the tax-exempt bonds for tribal governments and accelerated depreciation for tribes. Witnesses at the hearing include Dante Desiderio, an economic development specialist for the National Congress of American Indians; Del Laverdure, the chief counsel for the Crow Tribe of Montana; and Wayne A. Shammel, the general counsel of Cow Creek Band of Umpqua Tribe of Indians in Oregon. The hearing takes place at 10am in Room 215 of the : Senate Dirksen Office Building.
Committee Notice:
Indian Governments and the Tax Code: Maximizing Tax Incentives for Economic Development (July 22, 2008 )
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