indian taxation – Page 37

Kemp v. Osage Nation Cert Petition

June 9, 2008June 9, 2008Matthew L.M. Fletcher1 Comment

Here, the Oklahoma Tax Commission is seeking review of a CA10 decision allowing a suit brought by the Osage Nation to proceed over sovereign immunity objections. Here is our post about the CA10 decision, with briefs and other materials. And here is the cert petition.

Here are the questions presented (from the petition):

1. May federal courts employ the doctrine of Ex parte Young, 209 U.S. 123 (1908), to permit suits by Indian tribes, otherwise barred by state sovereign immunity, that seek to establish sovereignty and jurisdiction over historical reservations, without taking into consideration the substantial impact of the relief on the sovereignty and jurisdiction long-exercised over such lands by states?

2. In view of this Court’s ruling in Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997), and other decisions, may a federal court allow an Indian tribe’s suit – otherwise barred by the Eleventh Amendment – to proceed against state officers under the so-called “straightforward inquiry” used to determine the application of the Ex parte Young exception, when the relief would divest a state of substantial and long-exercised civil and criminal jurisdiction over its largest county?

3. Does a suit by an Indian tribe seeking a judicial determination that its historical reservation “remains” a present-day reservation involve the type of retrospective relief that cannot be pursued against state officers under the Ex parte Young exception to state sovereign immunity?

City of New York v. Milhelm Attea — City Tobacco Tax on Indian Country Sales

May 3, 2008Matthew L.M. Fletcher2 Comments

From the opinion:

The City of New York has brought an Amended Complaint against the above-captioned defendants, a group of cigarette wholesalers who are state-licensed cigarette stamping agents. The principal [*2] contention of the City is that the wholesalers violate the Contraband Cigarette Trafficking Act (“CCTA”), 18 U.S.C. § 2341 et seq., by shipping in excess of 10,000 unstamped cigarettes to reservation retailers who re-sell the cigarettes to the public. According to the City, New York Tax Law § 471 requires that cigarettes sold to Native Americans for re-sale to the public must be taxed, and that the defendant agents are responsible for collecting the tax by purchasing tax stamps from the New York State Tax Commission and affixing them to cigarette packages. The City brings additional state law claims under New York Tax Law § 484, the Cigarette Marketing Standards Act, as well as a public nuisance claim. Defendants have moved to dismiss the Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6) and 12(b)(7). For the reasons set forth below, defendants’ motions to dismiss are denied.

Here are the materials:

day-wholesale-motion-to-dismiss

joint-motion-to-dismiss

city-opposition-to-motion

city-of-new-york-dct-order

KBIC v. Kleine — Michigan Sales and Use Tax Upheld

April 1, 2008Matthew L.M. Fletcher1 Comment

This case, decided by Judge Quist, out of the Western District of Michigan is the latest in a long string of Indian tax cases arising out of the Keweenaw Bay Indian Community’s reservation in the past few years, including Chippewa Trading v. Cox (CA6) and KBIC v. Rising (CA6). Here are the very lengthy materials in this case:

DCT Order Granting Michigan’s Motion for Summary Judgment – KBIC v. Kleine

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Angelique Eaglewoman: The Philosophy of Colonization Underlying Taxation Imposed Upon Tribal Nations within the United States

March 26, 2008Matthew L.M. Fletcher

Angelique Eagelwoman (soon to be at Idaho Law) has posted “The Philosophy of Colonization Underlying Taxation Imposed Upon Tribal Nations within the United States” on SSRN. Here is the abstract:

Tribal Nations are inherently sovereign by internal definition as well as by classic European political science theory. Voluntary wealth distribution was the basis for the functioning of tribal government rather than externally imposed demands for pro rata shares of individual tribal member income. Through treaty-making with Tribal Nations, the United States expanded and asserted its ability to govern the influx of European immigrants and captive Africans by recognizing tribal territorial boundaries and seeking peaceful relations. Within the United States Constitution, Tribal Nations are mentioned in terms of not being taxed and as engaged with Congress in terms of commerce. Despite this history, U.S. relations shifted on one of military dominance over Tribal Nations skewing the sovereign-to-sovereign relationship set forth in treaty agreements.

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County of Seneca v. Eristoff — NY State Tax Enforcement in Indian Country

March 8, 2008Matthew L.M. Fletcher

The New York Appellate Division (3rd Dept.) held in this case that the county did not have standing to sue to force the New York finance department to collect taxes in Indian Country.

Here’s the short opinion.

Fenner on Indian Country in Cyber Space

March 5, 2008March 7, 2008Matthew L.M. Fletcher

Ben Fenner of Fredericks Peebles & Morgan, LLP has published “Indian Country in Cyber Space: Bella Hess and Commerce Clause Constraints on Interstate, Mail Order Transactions” in the Albany Law Review.

From the introduction:

When political processes fail, the rule of law prevails or people rise to power. When the political process fails between tribes and the United States, defined as it is by federal statutes and case law, there is no rule of law and, therefore, leaders emerge. So it is that the panoply of tribal leaders is vast and ranges from ordinary men and women in seemingly mundane circumstances to warriors and negotiators who are household names.

***

The ability of the government to justify the annihilation of whole cultures was, and is today, driven by a perceived lack of resources (a euphemism for greed). And no resource is as scarce today, it seems, as money; few areas of federal Indian law are as contentious as states’ ability to tax and regulate tribal activity. While tribal immunity from state taxation is well-settled, what of state ability to tax Internet transactions originating on reservations? Part II of this Article is an overview of preemption in federal Indian law. Part III looks specifically to taxation and regulation of mail-order transactions. Part IV concludes that tribes may structure online transactions fulfilled on-reservation to preclude state taxation.

Western Mohegan Motion for Reconsideration (N.D. N.Y.)

January 13, 2008January 13, 2008Matthew L.M. Fletcher

The non-federally recognized Indian tribe Western Mohegan tribe sought to avoid county taxes on its land, and a resulting foreclosure for failure to pay.

Here are the materials:

Motion for Reconsideration

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Huron Nottawaseppi Awaits Decision from Michigan Tax Tribunal on Tax Status of Pine Creek Reservation

December 31, 2007Matthew L.M. Fletcher

From the Battle Creek Enquirer:

Tribe awaits ruling on tax-exempt status

ATHENS TOWNSHIP — The Nottawaseppi Huron Band of Potawatomi is awaiting a Michigan Tax Tribunal decision on whether the tribe is liable for township taxes on its Pine Creek Reservation.

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Osage Nation v. Oklahoma – CA10

December 28, 2007Matthew L.M. Fletcher1 Comment

The Osage Nation sued the State of Oklahoma and Oklahoma Tax Commission officials seeking an injunction against the collection of state income taxes against Osage members in Osage Indian Country. The district court denied the state’s Eleventh Amendment motion to dismiss. The CA10 reversed as to the State, but very grudgingly affirmed as to the officials, relying on Ex parte Young.

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