indian taxation – Page 27

Ninth Circuit Rejects Yakama Indian Nation Challenge to Washington Taxes: “Economic Reality” Continues to Be Foreclosed in Indian Tax Cases

September 23, 2011Matthew L.M. Fletcher

Here is today’s opinion in Confederated Tribes and Bands of the Yakama Indian Nation v. Gregoire.

Here are the briefs (lower court materials here):

An excerpt from the majority:

In 1978, a three-judge district court held that the legal incidence of the Washington cigarette tax did not fall on the Tribes. Confederated Tribes of Colville Indian Reservation v. Washington, 446 F. Supp. 1339 (E.D. Wash. 1978). In 1980, the Supreme Court agreed with the three-judge court and upheld the validity of Washington’s cigarette tax and its requirement that tribal retailers collect the tax from nonIndian cigarette purchasers. Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 159-61 (1980). Although some elements of Washington’s cigarette tax law have been modified over the past thirty years, we conclude, as did the district court in awarding summary judgment to the State, that none of those changes has materially altered the legal incidence of the cigarette tax approved of in Colville, and we affirm.

And from District Judge Guilford’s concurrence:

Indians in the Tribes of the Yakama Nation might well wonder how the analysis of what courts call “legal incidence” can be done without reviewing the economic reality of the tax burden on them. And here, a review of these economic realities likely would reveal that the tax at issue imposes an economic burden on Indians in the Yakama Nation. But the law requires an analysis through a prism that blocks economic reality. Thus, following Supreme Court authority, without the guidance of economic reality, I must concur with the majority’s opinion. Apart from economic reality, the provisions of the Revised Code of Washington §§ 82.24 et seq. are not materially different from those upheld in Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1980), and they follow established principles of Indian tax immunity. Thus, I concur in the judgment.

Washington Supreme Court Agrees to Review Constitutional Challenge to State-Tribal Tax Agreements

September 20, 2011Matthew L.M. Fletcher1 Comment

Here is the news article, via Pechanga.

And the materials so far:

Brief_of_Appellant_AUTO

Wash SCT Accepting Direct Review

Lower court materials:

State Motion to Dismiss

AUTO Response

Second Circuit Affirms Preliminary Injunction against Enforcement of PACT Act against Red Earth LLC

September 20, 2011Matthew L.M. Fletcher

Here is today’s opinion in Red Earth LLC v. United States: 10-3165_opn

An excerpt:

Appeal from an order of the Western District of New York (Richard J. Arcara, Judge) granting a preliminary injunction to stay enforcement of provisions of the Prevent All Cigarette Trafficking Act (“PACT Act”) that require mail-order cigarette sellers to pay state excise taxes. The government argues that the district court erred in concluding that plaintiffs were likely to succeed on their claim that the PACT Act’s provision requiring out-of-state tobacco sellers to pay state excise taxes regardless of their contact with that state violates due process. We affirm the district court’s order granting the preliminary injunction.

Briefs are here and here and here.

Tenth Circuit Denies En Banc Petition in Ute Mountain Ute Tax Case

September 12, 2011Matthew L.M. Fletcher

Here:

2011.09.12 Order Denying Petition for Rehearing En Banc

Opinion here, and en banc petition here.

Michelle Bachmann’s Indian Tax Case

August 23, 2011August 22, 2011Matthew L.M. Fletcher

Here is the case: Manypenny v CIR.

More details from this article, and an excerpt:

Bachmann appears to have represented the IRS only twice in cases tried in U.S. Tax Court _ both small cases _ according to a search of judicial records by attorney Melissa Wexler, a research expert at Westlaw, a major provider of computerized records.

One was a win against a White Earth Indian Reservation resident named Marvin Manypenny, who contended that part of his modest income was not taxable under treaty rights.

Mary Streitz, the Minneapolis lawyer who represented Manypenny in that 1992 case, said she remembers Bachmann as “well dressed and professionally mannered.’’ She said the case was “very, very small’’ but had the twist of involving federal Indian law. Manypenny, she said, was sworn in with a peace pipe. Continue reading →

Gabe Galanda on Recent Indian Taxation Cases

August 22, 2011Matthew L.M. Fletcher

From Indian Country Today.

Split Eighth Circuit Panel Rules against Fond du Lac Member on Income Tax

August 12, 2011August 14, 2011Matthew L.M. Fletcher1 Comment

Here is the opinion in Fond du Lac Band of Lake Superior Chippewa v. Frans: CA8 opinion in Fond du Lac.

From the court’s syllabus:

Minnesota’s act in taxing a Band member’s pension, earned in Ohio, but received on the reservation, did not violate due process as the member’s Minnesota citizenship created a constitutional nexus for the taxation. Judge Murphy, dissenting.

And the briefs:

Fond du Lac Opening Brief.

Minnesota Brief