Cert Petition in Seneca Nation Citizen’s Treaty-Based Tax Immunity Claim

Here is the petition in Perkins v. Commissioner of Internal Revenue:

Perkins v. Commissioner Cert Petition

Question presented:

This Court is presented with a question of first impression, as to the taxability of income derived from the sale of sand and gravel, mined from treatyprotected land by an enrolled member of the Seneca Nation of Indians (“Seneca Nation”). Upon the granting of certiorari, the Court will examine the language in two federal treaties, promising not to disturb the “free use and enjoyment” of lands by the Seneca Nation and “their Indian friends residing thereon and united with them,” and protecting these lands “from all taxes” for any purpose. Treaty with the Six Nations (“Canandaigua Treaty”), art. III, Nov. 11, 1794, 7 Stat. 45; Treaty with the Senecas (“1842 Treaty”), art. 9th, May 20, 1842, 7 Stat. 590. Congress has explicitly stated the Internal Revenue Code “shall be applied to any taxpayer with due regard to any treaty obligation of the United States which applies to such taxpayer.” 26 U.S.C.A. § 894 (a)(1)(West).

The question presented is whether the United States Court of Appeals and the United States Tax Court have given “due regards” to the treaty obligations of the United States by finding these treaties had no textual support for an exemption from federal income tax applicable to an enrolled Seneca member whose income is derived from the
lands of the Seneca Nation. Perkins v. Comm’r, 970 F.3d 148, 162-67 (2d. Cir. 2020).

Lower court materials here.

Second Circuit Holds Treaties Do Not Provide Tax Immunity for Individual Indian-Owned Business on Fee Lands

Here is the opinion in Perkins v. Commissioner: Opinion

Briefs:

Perkins Brief

Commissioner Brief

Reply

Tax court opinion here.

Related case materials here.

Federal Court Sets Seneca Member’s Tax Case for Trial

Here are the materials in Perkins v. United States (W.D.N.Y.):

60-1 US Motion for Summary J

62 Perkins Motion for Summary J

71 US Response

72 Perkins Response

77 US Reply

78 Motion for Leave to File Amicus Brief

78-1 Seneca Nation Amicus Brief

79 Perkins Reply

80 US Motion to Strike Amicus Brief

84 Magistrate Report

85 US Objection

86 Perkins Objection

90 US Response

91 Perkins Response

92 US Reply

96 Perkins Supplemental Brief

99 US Response to 96

100 DCT Order

Parallel Tax Court materials here.

Federal Court Holds Feds Cannot Tax Proceeds Derived Directly from Indian Lands

Here are the materials in Perkins v. United States (W.D.N.Y.):

An excerpt:

This case presents what appears to be an issue of first impression: whether a treaty between the United States and Native Americans ensuring the free use and enjoyment of tribal land bars taxes on income derived directly from the land—here, the sale of gravel mined on the land. Although at least two circuit courts have suggested in dicta that “income derived directly from the land” might be exempt from taxation under such treaties, they did so to distinguish that scenario from cases where an exemption was sought for income earned in ways that do not relate to the land itself. See Lazore v. Comm’r, 11 F.3d 1180 (3d Cir. 1993); Hoptowit v. Comm’r, 709 F.2d 564 (9th Cir. 1983). This case presents the very issue about which those courts speculated. And for the reasons that follow, this Court agrees with their speculation and finds that the plaintiffs have plausibly stated a claim for relief under two treaties with the Native American Seneca Nation.