Ninth Circuit Briefs in Yakama/King Mountain Tax Dispute

Here are the materials in Confederated Tribes and Bands of the Yakama Indian Nation v. Alcohol and Tobacco Tax and Trade Bureau:

Yakama Opening Brief

US Appellee Brief

State Amicus Brief

Reply Brief

Oral argument video.

Lower court materials in King Mountain Tobacco Co. v. Alcohol and Tobacco Tax and Trade Bureau (E.D. Wash.) are here.

US Prevails in Tax Assessments Dispute with King Mountain Tobacco

Here are the materials in United States v. King Mountain Tobacco Co. Inc. (E.D. Wash.):

48 US Motion to Summary J

62 DCT Order Granting Summary J in 11-3038

70 US Renewed Motion for Summary J

74 King Mountain Response

80 US Reply

87 DCT Order Granting Renewed Motion for Summary J

Related case here.

Opening Ninth Circuit Brief in Yakama/King Mountain Tax Dispute with US

Here is the opening brief in Confederated Tribes and Bands of the Yakama Indian Nation v. Alcohol and Tobacco Tax and Trade Bureau:

Yakama Opening Brief

Lower court materials in King Mountain Tobacco Co. v. Alcohol and Tobacco Tax and Trade Bureau (E.D. Wash.) are here.

US Prevails in Tax Dispute with King Mountain Tobacco Co. (Yakama)

Here are the materials in King Mountain Tobacco Co. v. Alcohol and Tobacco Tax and Trade Bureau (E.D. Wash.):

134 US Motion for Summary J

140 King Mountain Response

143 US Reply

149 DCT Order Granting US Motion

An excerpt:

The Court finds no exemption from federal excise taxes on manufactured tobacco products under the General Allotment Act because the finished tobacco products are not derived directly from the land. The Court finds no exemption under either Article II or III of the Yakama Treaty of 1855 because neither Article contains express exemptive language applicable to the manufacture of tobacco products. Finally, the Court finds no exemption under Section 4225 of the Internal Revenue Code because the exemption for Indian handicrafts on its face does not apply to excise taxes for the manufacture of tobacco products. Therefore, the United States is entitled to summary judgment on all claims.


Federal Court Rejects Yakama Treaty Defense to Federal Taxes on King Mountain Tobacco Products

Here are the materials in King Mountain Tobacco Co., Inc. v. Alcohol and Tobacco Tax and Trade Bureau (E.D. Wash.):

DCT Order Denying Yakama Motion

Yakama Motion for Partial Summary J

Federal Opposition Memorandum

Yakama Reply

An excerpt:

This Court already has held that King Mountain does not enjoy an exemption from the federal excise tax on tobacco products under Capoeman because the tax is not imposed on products directly derived from the land. Therefore, to the degree that Article II contains express exemptive language, the exemption to taxation created by Article II would not apply to the facts of this case. Id. Accordingly, the Plaintiff has failed to establish an exemption to the excise tax under the Treaty.

The court also rejected claims that the General Allotment Act forbid the federal taxes as well:

In this case, Mr. Wheeler is the allottee, but King Mountain is the tax payer. The tax lien statute applies to the property of the “person liable to pay” the unpaid tax. 26 U.S.C. § 6321. Although the Court is aware that Mr. Wheeler’s assets could be subject to lien if King Mountain were found to be Mr. Wheeler’s alter ego, see G.M. Leasing Corp. v. United States, 429 U.S. 338, 350–51, 97 S.Ct. 619, 50 L.Ed.2d 530 (1977), the record is devoid of any evidence that King Mountain is Mr. Wheeler’s alter ego. Accordingly, any lien would be imposed on King Mountain’s property. As the trust property is held for the benefit of Mr. Wheeler, it is not an asset of King Mountain. Therefore, under the reasoning of Anderson, the Capoeman exception to taxation would not apply to income earned by King Mountain.

Materials in a related case are here.

Land Sale Dispute on Cheyenne River Sioux Tribe Reservation Remanded to State Trial Court

What a case — McGuire v. Aberle. Law profs looking for a good fact pattern check these first two paragraphs out:

In 1967, Raymond and Margaret Becker’s eight children each inherited an undivided one-eighth interest in patented fee land located within the exterior boundaries of the Cheyenne River Sioux Indian Reservation. None of the Beckers are Indians. In 2006, one of the Becker children sold her undivided one-eighth interest to Patrick and Carletta Aberle. Patrick is a member of the Cheyenne River Sioux Tribe. Carletta is a non-Indian. Patrick subsequently conveyed his interest to his son. Before this suit, Patrick’s son transferred the property back to Patrick. As a result, Patrick and Carletta each own an undivided one-sixteenth interest.

Sometime after Patrick and Carletta acquired their interests, a dispute arose between the Aberles and the Becker children who still retained an interest in the property. The Becker children commenced this action in circuit court, seeking a sale of the entire property. The Aberles counterclaimed for partition. Patrick also moved to dismiss for lack of subject matter jurisdiction. Patrick argued that because he was a member of the Tribe, and because he had become an owner of an undivided one-sixteenth interest in property on the Reservation, the circuit court possessed no subject matter jurisdiction to adjudicate the dispute between the parties. Aberles contended the Cheyenne River Sioux Tribal Court had jurisdiction.

On remand, the trial court will have to answer the following riddle:

But the problem in this case is that the record does not reflect how and under what authority the land in question was initially alienated. That is significant because counsel for the Tribe and Aberles contended at oral argument that this land could not have been alienated under the General Allotment Act of 1887 (the Cheyenne River Sioux Reservation was not created until 1889). Counsel also argued that we should read the 1908 Act differently than the General Allotment Act. Moreover, counsel for the Becker children agreed that the nature of the patent and the Act under which it was granted is important to the jurisdiction question. But that information is not known or reflected in this record.

Ann Tweedy on Unjustifiable Expectations

Highly recommended!!!!

Ann Tweedy has posted her paper, “Unjustifiable Expectations,” on SSRN. Here is the abstract:

When the Supreme Court decides whether a tribe has jurisdiction over non-members on its reservation or addresses the related issue of reservation diminishment, it sometimes refers implicitly or explicitly to the non-Indians’ justifiable expectations, and Philip Frickey has argued that a concern with non-Indians’ justifiable expectations drives Court decisions about tribal jurisdiction even when the Court does not express that concern directly. The non-Indians’ assumed expectations arise from the fact that, when Congress opened up reservations to non-Indians during the allotment era, its assumption, and presumably that of non-Indians who purchased lands on reservations during that period, was that the reservations would disappear due to the federal government’s assimilationist policies, along with the tribes who governed them. To refute the idea that such non-Indian expectations were justifiable, I examine historical newspaper articles and other historical sources regarding the opening up of reservations to non-Indian purchasers, specifically focusing on articles relating to cessions by the Sioux Nation and especially the Cheyenne River Sioux Tribe. Such sources suggest that non-Indian purchasers were on notice, in at least some cases, of a potential violation of tribal rights in the opening of portions of reservations to non-Indian settlement. Based on my argument that “justifiability” encompasses both reasonableness and a notion of justice, this information is used to show that the non-Indian purchasers’ presumed expectations about the disappearance of reservations were not justifiable because the purchasers had notice in many cases that lands were unjustly being taken from the Sioux Nation and other tribes. If, as I will argue, non-Indian expectations of tribal disappearance were unjustifiable, such expectations should not be given weight in determinations of tribal jurisdiction today.

New Book: Unearthing Indian Land — Living with the Legacies of Allotment

Kristin T. Ruppel (Montana State) has published “Unearthing Indian Land: Living with the Legacies of Allotment” from the University of Arizona Press. Here’s the blurb:

Unearthing Indian Land offers a comprehensive examination of the consequences of more than a century of questionable public policies. In this book, Kristin Ruppel considers the complicated issues surrounding American Indian land ownership in the United States.

Under the General Allotment Act of 1887, also known as the Dawes Act,individual Indians were issued title to land allotments while so-called “surplus”Indian lands were opened to non-Indian settlement. During the forty-seven years that the act remained in effect, American Indians lost an estimated 90 million acres of land—about two-thirds of the land they had held in 1887. Worse, the loss of control over the land left to them has remained an ongoing and insidious result.

Unearthing Indian Land traces the complex legacies of allotment, including numerous instructive examples of a policy gone wrong. Aside from the initial catastrophic land loss, the fractionated land ownership that resulted from the act’s provisions has disrupted native families and their descendants for more than a century. With each new generation, the owners of tribal lands grow in number and therefore own ever smaller interests in parcels of land. It is not uncommon now to find reservation allotments co-owned by hundreds of individuals.Coupled with the federal government’s troubled trusteeship of Indian assets,this means that Indian landowners have very little control over their own lands.

Illuminated by interviews with Native American landholders, this book is essential reading for anyone who is interested in what happened as a result of the federal government’s quasi-privatization of native lands.

It has one of the best lines I’ve ever read on allotment — “on the whip end of someone else’s crazy” — a Judge Sally Willett quotation.