indian taxation – Page 34

Scott Taylor on Indian Taxation after Carcieri

November 23, 2009Matthew L.M. Fletcher

Scott Taylor has posted “Taxation in Indian Country after Carcieri v. Salazar,” forthcoming in the William Mitchell Law Review.

Here is the abstract:

Federally recognized Indian tribes are governments within our federal legal system. Tribes have aboriginal sovereignty that provides them with inherent governmental powers, such as the power to tax. Tribal sovereignty also protects tribes from state interference, such as state taxation of tribal lands. Both the exercise of tribal governmental powers and the tribal immunity from state interference have a territorial component. This makes the status of Indian lands a critical inquiry into tribal/state relations. Because of the importance of land status in federal Indian law, especially in matters involving taxation, the decision of the United States Supreme Court in Carcieri v. Salazar deserves special attention. In the Carcieri case, the Court held that the Secretary of the Interior did not have the statutory authority to place lands into trust on behalf of Indian tribes that were recognized after the enactment of the Indian Reorganization Act of 1934. This article explores taxation in Indian Country after Carcier

29 Palms Band v. Schwarzeneggar State Income Tax Case

November 15, 2009Matthew L.M. Fletcher1 Comment

As this article reports, the 29 Palms Band sued the State of California over gaming-related income on behalf of its off-reservation members. The court granted an earlier motion to dismiss, but allowed the Band leave to file an amended complaint on whether IGRA preempts state taxation.

Here are the materials so far:

California Motion to Dismiss

29 Palms Band Opposition

California Reply

Sept DCT Order Granting California Motion to Dismiss

29 Palms Band Amended Complaint

California Motion to Dismiss Amended Complaint

Appellate Briefs in Osage Nation v. Kemp Tax/Reservation Disestablishment Case

November 2, 2009Matthew L.M. Fletcher1 Comment

Here:

Osage Nation Opening Brief

OTC Appellee Brief

Osage Nation Reply Brief

Lower court materials are here.

Senecas to Target State Politicians Opposing Tribal Tax Immunities

November 1, 2009Matthew L.M. Fletcher

From the Buffalo News via Pechanga:

ALBANY — Seen as cash cows for a cash-starved state government, the Seneca Nation is expanding its latest strategy to block tax collection efforts on its lucrative cigarette operations: The tribe will target, with campaign cash, state politicians who openly oppose the tax-free sales.

The Senecas are launching efforts to help defeat three Senate Republicans whom they call “hostile to the nation’s interests” for pushing collection of what lawmakers say could be as much as $1 billion a year in lost cigarette tax revenues by the Indian retail sales.

The lawmakers, two from upstate and one from Brooklyn, challenged the Seneca representatives at a hearing Tuesday in Manhattan called by the Senate Investigations Committee to examine the Paterson administration’s policy of not collecting the taxes on tobacco products sold by Indian retailers to non-Indians.

In a letter obtained by The Buffalo News to members of the Senecas’ Foreign Relations Committee, J. C. Seneca, the panel’s co-chairman, said the lawmakers — senators Michael Nozzolio, George Winner and Martin Golden — had “expressed tremendous hostility to our treaty rights and to our immunity from state excise taxes being collected in our territories” during Tuesday’s hearing.

Continue reading →

Shinnecock Member Asks Supreme Court to Overturn Cherokee Nation v. Georgia

November 1, 2009Matthew L.M. Fletcher

Here is the cert petition in Smith v. Shulman, a tax case — Smith v Shulman Cert Petition

Questions presented:

I. Whether a “rebate” to a reservation Indian is income?

II. Whether a District Court is barred by statute from exercising subject matter jurisdiction, when an Indian treaty provides a free trade right and a procedural dispute resolution right?

III. Whether this Court should overturn The Cherokee Nation v. The State of Georgia, 30 U.S. 1 (1831)insofar as the case provides the legal underpinning of United States’ jurisdiction over Indian reservations, where this Court interpreted the Commerce Clause language of “with” to mean “over” and found Indian tribes to be “domestic dependent nations” rather than “foreign nations,” an error in Constitutional interpretation and a historical wrong against Native Americans?

Student Article on Authority of Indian Tribes to Tax Athletes and Performers

October 18, 2009Matthew L.M. Fletcher

Here is an interesting piece called “The Power of Indian Tribes to Tax the Income of Professional Athletes and Entertainers Who Perform in Indian Country,” a student note in the Connecticut Law Review.

Here is the abstract:

Athletes and entertainers represent some of the highest paid individuals in the United States today. Historically, these individuals perform in various states throughout the country and pay state income taxes to each state they earn income in. With the recent rise of athletic and entertainment venues in Indian Country, more athletes and entertainers are earning income in Indian Country. For example, the Mohegan Tribe owns and operates the Mohegan Sun Arena on its reservation in Connecticut and the Arena annually hosts hundreds of professional athletic and entertainment events. Because the Mohegan Sun Arena is located in Connecticut, athletes and entertainers who perform at the Arena and receive compensation are currently subject to Connecticut’s state income tax. However, as a federally-recognized Tribe, the Mohegan Tribe possesses the power to tax, including the power to tax non-member Indians doing business on the Mohegan Reservation. Although the Mohegan Tribe does not currently levy an income tax on the athletes and entertainers who perform at the Mohegan Sun Arena, the prospect of double taxation raises the question of which sovereign is really the proper taxing entity — the State or the Tribe? This Note proposes an equitable tax framework that resolves this double taxation quandary.

Supreme Court Denies Cert in Rocky Barrett Tax Case

October 13, 2009Matthew L.M. Fletcher1 Comment

Here is the order list — the docket no. is 09-32, and the notice is on page 3.

Barrett v. United States Cert Petition Materials

September 30, 2009Matthew L.M. Fletcher

The petition stage briefing is complete in Barrett v. United States (09-32).

Barrett v. US Cert Petition

CPN Amicus Brief

SOLICITOR ANSWER BRIEF

Barrett Reply Brief

The conference for this petition is October 9, 2009.

Lower court materials are here.

Sales Taxes at Indian Casinos

September 4, 2009Matthew L.M. Fletcher

The 1 percent sales tax at Foxwoods apparently has the attention of the Connecticut AG for some reason (Indianz report here). The concerns seem to be based in the accounting of the tax, and really just a way for this troubling AG (Blumenthal) to get in the papers.

But tribal sales taxes at Indian casinos imposed on the largely non-Indian customer base is an important and real expression of tribal sovereignty. But largely because of numerous Supreme Court decisions like Wagnon, Cotton Petroleum, and Moe, the states get most of the money from the on-reservation tribal tax base. Moe says tribes have to collect sales taxes from non-Indians purchasing tobacco products in Indian Country. Cotton Petroleum says that tribal taxes don’t preempt states taxes imposed on non-Indians doing business in Indian Country, allowing state taxes to economically trump tribal taxes. As does Wagnon.

The one percent tax added on to the state sales tax at Foxwoods is an economic representation of the tribal tax base in stark forms. The state gets 6 percent of tribal sales, and the tribe (if its lucky) can tack on an additional 1 percent. What does the state have to do for this money? Absolutely nothing. They already get 25 percent of the net win in Connecticut. Because of these very unfair Supreme Court decisions, AG Blumenthal can wax politic about sales taxes that are pure windfalls to his state.