indian taxation – Page 28

Seneca Nation v. State of New York Appellate Division Materials

June 24, 2011June 23, 2011Matthew L.M. Fletcher

Here:

Appellate Division Order to Show Cause

Appellate Court Decison and Order

Florida Appeals Court Rules against Seminole Tribe in Gas Tax Case

June 23, 2011Matthew L.M. Fletcher2 Comments

Here is the opinion in Florida Dept. of Revenue v. Seminole Tribe of Florida.

An excerpt:

Taxability of gasoline purchased outside of Indian lands is the issue in this appeal. The Department of Revenue appeals a final summary judgment for the Seminole Tribe of Florida, declaring motor fuel taxes imposed on the Tribe for purchases of fuel off the reservations and trust lands, but used on tribal lands, invalid and directing the State to refund those taxes. It argues the trial court erred as a matter of law in ruling against the Department of Revenue. We agree and reverse.

We posted briefs here.

State of Washington v. Comenout Briefs

May 17, 2011May 15, 2011Matthew L.M. Fletcher3 Comments

The Washington Supreme Court soon will decide whether the state has jurisdiction over alleged cigarette trafficking crimes committed by tribal members on Quinault Reservation land. Here are the materials:

85067-4 – State v. Robert Comenout, Jr. and Robert Comenout, Sr.
Hearing Date – 06/30/2011

New York State Court Issues TRO against Enforcement of State Tax Law

May 11, 2011Matthew L.M. Fletcher

Here is the order, and a related letter from the New York AG informing the Second Circuit of the development:

ORDER – Temporary Restraining Order 05 10 11

NYS Letter to 2d Cir 5-10-11

Commentary on Richard Pomp’s “The Unfulfilled Promise of the Indian Commerce Clause and State Taxation”

May 10, 2011Matthew L.M. Fletcher1 Comment

A few words on probably the most important recent law review article in Indian law — Richard D. Pomp’s The Unfulfilled Promise of the Indian Commerce Clause and State Taxation, 63 Tax Lawyer 897 (2010).

In The Brethren, the 1979 book that opened the door the mysteries of the interior of the Supreme Court (and served as a source of deep embarrassment to several Justices), Bob Woodward and Scott Armstrong found that the Justices of the 1970s, unusually hospitable to the claims of Indian tribes given the history of American Indian law and policy, considered being assigned to draft the majority opinion in an Indian case a sign of disrespect. No Justice wanted those assignments. H.W. Perry, Jr.’s Deciding to Decide (1991), which was the first book detailing the insides of the Court after The Brethren, confirmed that assignments to write majority opinions in Indian cases and tax cases – “the crud” – tended to go to the junior Justices. For example, Chief Justice Burger, according to Woodward and Armstrong, assigned then-Justice Rehnquist an Indian tax case (Moe v. Confederated Salish and Kootenai Tribes, 426 U.S. 463 (1976)) as punishment for a 1975 Supreme Court Christmas party joke gone wrong.

If Indian cases are bad, and tax cases are bad, then Indian tax cases must be the worst.

Or are they?

Richard Pomp’s entertaining paper, The Unfulfilled Promise of the Indian Commerce Clause and State Taxation, blows the lid off of the myth that Indian tax cases are boring.

It turns out that one of the most exciting things about the Indian Commerce Clause is the history of the Clause, which generated more debate at the Constitutional Convention than the Interstate and Foreign Commerce Clauses combined. For some reason (perhaps because Pomp’s article hadn’t yet been written), the Supreme Court has simply refused to engage at all on the “original meaning” of the Indian Commerce Clause. The Court had a chance to in Seminole Tribe v. Florida, 517 U.S. 44 (1996), but Chief Justice Rehnquist just ignored the question by concluding that the three Commerce Clauses were the same for Eleventh Amendment purposes. But maybe since the Supreme Court frequently enters into the thicket of early American history to interpret many Constitutional provisions, the history of the Indian Commerce Clause is worth a second look, as Pomp does here.

Continue reading →

Second Circuit Vacates Injunctions against New York’s Tax Laws against Tribes

May 9, 2011Matthew L.M. Fletcher1 Comment

Here is today’s opinion in Oneida Indian Nation v. Cuomo: OIN v NY CA2 Opinion.

Briefs are here and here.

Fordham Law Review Note on Seneca-New York Tax Disputes

May 7, 2011May 6, 2011Matthew L.M. Fletcher

Here is the pdf of the article, titled “A Tale of Three Sovereigns: The Nebulous Boundaries of the Federal Government, New York State, and the Seneca Nation of Indians Concerning State Taxation of Indian Reservation Cigarette Sales to Non-Indians.”

And the abstract:

This Note examines the conflict between New York State and the Seneca Nation of Indians regarding the taxation of cigarette sales to non-Indians on Indian reservations. In 1994, the United States Supreme Court found New York’s taxation scheme facially permissible without providing boundaries or guidance for the state’s subsequent enforcement. Seventeen years after the Court’s decision, no taxes have been collected on these sales.

The issue involves conflicting spheres of federal, state, and tribal control. From 1965 to 1994, the Supreme Court balanced these competing interests, creating precedent that has failed to provide a definitive solution to this crisis. The Note examines the background of these decisions, the history of the treaties between the Seneca tribe and the United States, and the shift in federal Indian policy towards promoting a government-to-government relationship between the United States government and Indian tribes.

Lastly, this Note proposes a solution modeled on the example of Washington State. Facing a crisis analogous to that of New York, Washington created a lasting solution to its taxation crisis by forging a relationship of trust between the state, its agencies, and the Indian tribes. This Note advocates that New York follow the same path and create cigarette tax compacts between New York and the Indian tribes.