Honor Indian Treaties - Get Involved

You are certainly welcome to your questionable opinions.

If you substitute "acknowledged, indisputable facts" for "questionable opinions", you'd be dead-on.

The concept that all are equal under the law must come as a great shock to you, as a beneficiary of the racial spoils system.

You are too much. Explain to me, with citation, where I have benefited in a racial spoils system. I'd love to hear how I benefit by being an american indian. Go ahead. Enlighten us all with your wisdom.

Just because a treaty has not yet been found unconstitutional does not mean that treaties do not violate the constitution. There are many laws in force today that even you would believe are unconstitutional. Yet they remain.

Either we all deserve equal protection under the law, or we don't. You can't have it both ways.

"Explain to me, with citation, where I have benefited in a racial spoils system."

So-called "minority" groups receive preferential admissions to colleges and universities, and receive preferential treatment in government grants and loans, a fact of which I am sure you are aware.

Minorities also receive preferential treatment in many government jobs and contracts. Should I go on, or do you get the picture?

Tax the tribes for sure.

Just because a treaty has not yet been found unconstitutional does not mean that treaties do not violate the constitution. There are many laws in force today that even you would believe are unconstitutional. Yet they remain.

Most treaties pre-date teh constitution, and treaties were SPECIFICALLY mentioned in the constitution. Indian Tribes are, admittedly, a political anomaly, but the constitution took that into account.

Either we all deserve equal protection under the law, or we don't. You can't have it both ways.

But, the constitution says otherwise - Article I made that pretty clear that indian tribes are a distinctly seperate entity. It's a fact that is not only not disputed, but has been codified into law over the years.

If you don't like it, either live with it, move to another country, or work to amend the constitution. That's fine. Waste your time whining and crying about the unfairness of it all. In the meantime, this indian will be busy fighting for lower taxes for everyone, even you.

Mark this on your calender, I agree 100% with you, they should be taxed.
There is no reason to not have them taxed that makes sense.
Before them, the Indians conquered and older people that were here in America. They have the access to society to become part of mainstream America. They are not being victimized unless they do it to themselves by not joining main stream society.

"In the meantime, this indian will be busy fighting for lower taxes for everyone, even you."

Well, Chad, even though we have some strong disagreements about the topic of indian sovereignty (and I forgive your sarcasm and name-calling), I thank you for that.

And you're right; I've wasted far too much time on this topic. See you around!

So-called "minority" groups receive preferential admissions to colleges and universities, and receive preferential treatment in government grants and loans, a fact of which I am sure you are aware.

Oh, I'm aware of it. And I'm also aware of the fact that most indians I know refuse to fill out the EEOC info. Putting "Native American" is a good way to ensure you are never called for an interview. THose few high-profile indians that DO play the race card are NOT that highly thought of among those I associate with.

Minorities also receive preferential treatment in many government jobs and contracts. Should I go on, or do you get the picture?

The only government job or contract I've ever had was one that said I'd server 4 years active duty, and 4 in the reserves for an 8 year obligation. Otherwise, I've never had agovernment job or contract. Tell me - how many indian-owned small businesses are out there with government contracts? You don't see many. You'd think there would be more.

B. FEDERAL TAXATION IN INDIAN COUNTRY

The federal taxing power does not depend on geography, and it is fully effective in Indian country with regard to both Indians and non-Indians. Contrary to a common misconception, Indians are not exempt from federal income tax by reason of being Indians or because their income is earned in Indian country- Superintendent of Five Civilized Tribes v. Commissioner, 295 U.S. 418 (1935).

There are, however, certain kinds of income of Indians that congress has elected not to tax. Perhaps the most important is income from individually allotted land that remains in trust, the General Allotment Act of- 1887 provided for tribal lands to be allotted to individual Indians in trust for a period of years, after which the lands were to be conveyed to the allottees in fee "free of all charge or incumbrance whatsoever." 25 U.S.C.A. Section 348. This provision has been interpreted to prevent taxation of income or capital gains "derived directly" from allotted land while it remains in trust. Squire v. Capoeman, 351 U.S. 1 (1956). This exemption applies to rents and royalties as well as income from sale of crops or minerals from the land. Rev.Rul. 56-342, 1956-2 Cum.bull. 20. Gain from the sale of livestock raised and grazed on allotted trust land has also been ruled exempt. Rev.Rul. 62-16, 1962-1 Cum.Bull. 7. On the other hand, income from the operation of a motel or a smokeshop on allotted land has been held to derive from labor and the use of capital improvements rather than directly from the land itself, and has accordingly been held taxable. Critzer v. United States, 597 F. 2d 708 (ct.cl.), cert. Denied, 444 U.S. 920 (1 979); Dillon v. United States, 792 f. 2d 649 (9th cir. 1986), cert. Denied, 480 U.S. 930 (1 987). Similarly, when exempt income is reinvested, the reinvestment income is subject to taxation. Superintendent of Five Civilized Tribes v. Commissioner, 295 U.S. 418 (1935).

Income from trust lands allotted under other allotment acts is exempt from federal taxation even though those acts do not contain the same protective language as the General Allotment Act. Stevens v. Commissioner, 45 2 F.2d (9thCir. 1 971 ). When allotted land is removed from trust and a fee patent is issued to the allottee, income from the land (like the land itself) becomes fully taxable. Choteau v. Burnet, 263 U.S. 691 (193 1 ). Income of an Indian from trust land leased from the tribe has been held taxable on the ground that the individual indian had no present or potential ownership interest and the tax could not therefore be a charge or burden on the land. Holt v. Commissioner, 364 F. 2d 38 (8th cir. 1 966), cert. Denied, 386 U.S. 931 (1967); United States v. Anderson, 625 F. 2d 910 (9th cir. 1 980), cert. Denied, 450 U.S. 920 (1981).

C. STATE TAXATION IN INDIAN COUNTRY

I. STATE TAXATION OF TRIBES AND TRIBAL MEMBERS

State powers of taxation are severely limited in Indian country, particularly ,where Indian interests are affected. It has long been settled that the state have no power to tax Indian trust lands, whether held tribally or in allotments. The Kansas Indians, 72 U.S. (5 wall.) 737 (i 666). This exclusion was required by congress to be written into the constitutions of several western states as conditions of their admission into the union. The states are also without power to tax other kinds of Indian trust property. Congress may change these rules, and on rare occasion has done so. In 1924, congress authorized the states to tax royalties from mineral leases of Indian trust lands. 25 U.S.C.A. Section 398. In the absence of an explicit provision, however, the usual rule controls, and the state may not tax such receipts. Thus tribal royalties from leases entered after 1936 are not taxable by the states, because the 1939 Indian Mineral Leasing Act contained no such authorization. Montana v. Blackfeet tribe, 471 U.S. 759 (1985).

At times the immunity of tribes from state taxation in Indian country has been thought to arise from the general doctrine of federal-state intergovernmental immunity - a doctrine that has enjoyed an unstable career. In truth, however, Indian immunities from state taxation arise from federal policies quite distinct from those relating to traditional intergovernmental immunity, and the supreme court effectively has recognized that the Indian policy must be evaluated on its own merits. McClanahan v. Arizona State Tax Com'n, 411 U.S. 164, 169-1 70 (1973). In fact, the exclusion of the states from taxation of Indian property does not even depend on federal trust status of the property; in the absence of congressional authorization, states lack the power to tax even non-trust property when it is owned by a tribal member and has its situs on that tribe's reservation. Bryan v. Itasca county, 426 U.S. 373 (1976); Moe V. Confederated Salish & Kootenai Tribes, 425 U,S. 463 ( 1976). Thus a state may not impose vehicle excise and registration fees upon Indians who live and garage their vehicles in Indian country. Oklahoma Tax Comm'n v. Sac and Fox Nation, 508 U.S. 114 (1993). The General Allotment Act, however, has been held to authorize the states to tax fee land within a reservation, whether owned by Indians or non-Indians; the congressional intent was to permit the land to become alienable and taxable when a fee patent was issued. Country of Yakima v.Confederated Tribes and Bands of the Yakima Indian Nation, 502 U.S. 251 (1992); cf. Yellowstone Country v. Pease, 96 f.3d I 1 69 (9th cir. 1 996), cert. Denied, 11 7 s.ct. 169 1 (1997). Thus, when a tribe reacquires in fee simple land that was formerly allotted and patented under that provision of the Allotment Act, the state may tax the lands. Leech Lake Band of Chippewa Indians v. Cass County, 108 f. 3d 810 (8th cir.), cert. Granted, 118 S.Ct. 361 (1997). It may not tax other reservation land that the tribe or its members acquired in fee when that land originally had been patented under other statues containing no clear permission for the state to tax. Id; united states on behalf of Saginaw Chippewa Indian tribe v. Michigan, 106 f. 3d 130 (6th cir.), pet. For cert. Filed 66 U.s. L.w. 3085 (1 997). Moreover, the permission to tax in the Allotment Act is limited to taxation of the patented allotted land only; it does not authorize taxation in those lands by the tribe or its members. Yakima, 502 U.S. at 268-170. Similarly, a state may not impose motor fuel excise taxes in Indian country when their legal incidence falls upon the tribe or its members, Oklahoma Tax Comm'n V. Chicasaw Nation, 515 U.S. 450 (1995)

States are also without power to tax the reservation income of tribal members domiciled on the tribe's reservation, as the supreme court held in the pivotal decision of McClanahan v. Arizona State Tax Com'n, 411 U.S. 164 (i1973); see also Oklahoma Tax Comm'n v. Sac and Fox Nation, 508 U.S. 11 4 ( 1 993). Reading the relevant statutes and treaties in the light of a history of Indian sovereignty and self-government, the court in McClanahan ruled that the state's power to tax was preempted by federal law and policy. Among the statutes that the court relied upon was the Buck Act, 4 U.S.C.A. Section 109. The court also pointed out that it was very difficult to see how the state could impose or collect its tax when it lacked civil and criminal adjudicatory jurisdiction over Indians in Indian country. The court has subsequently observed that the policies in favor of immunity of tribes and members are so strong, and the corresponding state interest so weak, that they need not be rebalanced in each new case; a per se rule against such taxation is applied. California V. Cabazon Band of Mission Indians, 480 U.S. 202, 2 1 5 n. 1 7 (1967); see also Oklahoma Tax Comm'n v. Chickasaw Nation, 5 1 5 U.S. 450, 45 7 (1995).

At the time McClanahan and prior cases restricting state taxation were decided, it was assumed that the restriction imposed on the state was against taxing any Indian in Indian country, regardless of the tribal affiliation of that Indian. This assumption seemed justified both by the language of the decisions and the fact that for the purposes of civil and criminal jurisdiction the crucial fact has always been status as an Indian and not status as a tribal member. In 1 960, however, the supreme court drew a sharp distinction between members of the tribe that governed a given reservation and other Indians not members of that tribe. In Washington v.Confederated Tribes of Colville Indian Reservation, 447 U.S. 134 (1980), the court held that the state of Washington could impose cigarette and sales taxes on sales made to nonmember Indians in Indian country. The court stated:

Federal statutes, even given the broadest reading to which they are reasonable susceptible, cannot be said to preempt Washington's power to impose its taxes on Indian not members of the tribe. We do not se read the Major Crimes Act, ***which at most provides for federalcourt jurisdiction over crimes committed by Indians on another tribe's reservation. *** similarly, the mere fact that nonmembers resident on the reservation come within the definition of "Indian" for purposes of the Indian Reorganization Act of 1 934 *** does not demonstrate a congressional intent to exempt such Indians from state taxation.

Nor would the imposition of Washington's tax on these purchasers contravene the principle of tribal self-government, for the simple reason that nonmembers are not constituents of the governing tribe. For most practical purposes those Indians stand on the same footing as non-Indians resident on the reservation.

447 U.S. at 1 60-161 . the court repeated this ruling in Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 512-513 (1991). It seems likely, therefore, that the court will treat nonmember Indians the same as non-Indians for most or all tax purposes.

Outside of Indian country, every Indian is subject to state jurisdiction and if he or she engages in taxable activity there, the state can impose its tax. The state can tax income of a tribal member domiciled outside of Indian country even if the income is earned from employment by the tribe on the reservation. Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S- 450 (1995). Even an Indian tribe is subject to state taxation if it undertakes to operate a business outside of Indian country Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973).

2. STATE TAXATION OF NONMEMBERS

The state has long been allowed to impose taxes on the property of non-Indians located within Indian country. Utah & Northern Ry. v. Fisher, 11 6 U.S. 26 (1885); Thomas v. Gay, 169 U.S. 264 (1898). It has also been permitted to tax reservation income of non-Indians domiciled on Indian reservations. Kahn v. Arizona State Tax Com'n, 16 Ariz.App. 1 7, 490 p. 2d 846 (197 1), appeal dismissed, 411 U.S. 941 ( 1973); see Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S. 450, 467 (1995) there are, however, important limitations on the general power of states to levy taxes in Iindian country. The primary limitation is that the state may not tax when the subject matter is preempted by federal law. The application of that standard is usually not difficult when the tax falls directly on Indians. "When on-reservation conduct involving only Indians is at issue, state law is generally inapplicable, for the state's regulatory interest is likely to be minimal and the federal interest in encouraging tribal self-government is at its Strongest." White Mountain Apache Tribe v. Bracker, 446 U.S. 136, 144 (1980). Most recent litigation, however, has concerned state taxes imposed upon non-Indians or, stated more broadly, on nonmembers in Indian country. Such taxes are sometimes preempted because they interfere with the regulatory activities of the federal government itself. More often the state tax is preempted because, although imposed on non-Indians, it has an indirect effect on the tribe that frustrates federal policies of tribal selfdetermination. At other times, the tax is deemed not to interfere with either federal policy or tribal self-government, and is not preempted

The seminal preemption case is Warren Trading Post Co. v. Arizona Tax Com'n, 380 U.S. 665 (1965). There the supreme court held that Arizona could not tax the gross receipts of a non-Indian trading post on the Navaio Reservation. The court pointed out that Indian traders had to be federally licensed and were subject to extensive federal regulation. These regulations took the business of Indian trading .. so fully in hand that no room remains for state laws imposing additional burdens upon traders. " 380 U.S. at 690. Although this expansive language suggests that no state regulation of any kind could be imposed on Indian traders, the supreme court has since rejected that implication in holding that Indian traders could be required to collect and remit state sales taxes collected from nonmember purchasers of cigarettes. Dept of Taxation and Finance v. Milhelm Attea & bros., inc., 51 2 U.S. 6 1 (1994).

The supreme court has quite regularly invalidated state taxes imposed on non-Indian contractors engaged in sales or services to the tribes in Indian country. In White Mountain Apache Tribe v. Bracker, 448 U.S. 136 ( 1980), the court struck down state taxes on non-Indians cutting timber on a reservation and delivering it to the tribal sawmill. The taxes were a motor carrier license tax based on gross receipts and a fuel use tax. They were held to be preempted by extensive federal regulations applying to timber operations in Indian country. See Also Hoopa Valley Tribe v. Nevins, 66 I f. 2d 657 (9th cir. 1 989), cert. Denied, 494 U.S. 1055 (1990) the court in Bracker made it clear that preemption did not require an express congressional declaration invalidating state taxes, and observed that "([t]he unique historical origin of tribal sovereignty make it generally unhelpful to apply to federal enactments regulating Indian tribes those standards of preemption that have emerged in other areas of the law. " 448 U.S. at 143. In a contemporaneous case, the supreme court held invalid a state gross receipts tax applied to the sale of machinery in Indian country by a non-Indian dealer whose permanent place of business was off-reservation. The court ruled that the sale was preempted by federal statutes regulating Indian trading, which applied to the sale. Central Machinery Co. V. Arizona State Tax Com'n, 448 U.S. 1 60 (1980). Similarly, the Court has struck down a gross receipts tax imposed on a non-Indian contractor building a school for an Indian school board on the reservation. Ramah Navajo School Board v. Bureau of Revenue, 458 U.S. 632 (1982). In so holding, the court reiterated its view that traditional notions of tribal sovereignty, as well as federal policies favoring tribal self-development, must inform the preemption analysis. "As a result, ambiguities in federal law should be construed generously, and federal preemption is not limited to those situations where congress has explicitly announced an intention to preempt state activity " id. At 838.

This line of cases seems to be at odds with the supreme court's later statement in Cotton Petroleum Corp. v. New Mexico, 490 U.S. 1 63, 1 75 (169), that "[u]nder current doctrine *** a state can impose a nondiscriminatory tax on private parties with whom the united states or an Indian tribe does business, even though the financial burden of the tax may fall on the united states or tribe." this statement must be taken in context, however. It concludes a discussion of the rise and fall of the intergovernmental immunity doctrine, and points out that all that remains of that doctrine is a prohibition against state taxes imposed directly on the federal government or the tribes. The quoted statement does not purport to describe preemption, which often defeats a state tax imposed on a non-Indian dealing with a tribe. Indeed, Cotton Petroleum undertakes a preemption analysis after its discussion of intergovernmental immunities. It concludes That New Mexico may impose a severance tax on a non-Indian corporation producing oil and gas on a reservation, even though the tribe also imposes a severance tax. In so holding, Cotton Petroleum does weigh the competing interests in a manner more favorable to the state than was the case in Bracker and Ramah, but it does not overrule those cases. It distinguishes them partly on the grounds that federal policies were more pronounced in Bracker and Ramah, that the state in those cases provided virtually no services except taxation, and that the burden of the tax fell directly on the tribes. Cotton Petroleum, 490 U.S. at 1 83-87. Cotton Petroleum also distinguished its summary affirmance of the ninth circuit's decision holding the montana coal severance tax preempted, See Crow Tribe of Indians v. Montana, 81 9 F. 2d 895 (9th cir. 1 987), aff'd, 484 u.s. 997 (1988), by pointing out that the Montana tax was extraordinarily high. Cotton Petroleum, 490 U.S. at 1 86 n. 1 7.

Thus, although Cotton Petroleum tilts more toward the states than the supreme court's earlier preemption cases, it does not represent a total change in direction. It does re-emphasize some propositions that were already manifest in prior supreme court or lower court decisions. For example, some indirect burden on the tribe has often been permitted. A state has been allowed to impose a "possessory interest" tax on non Indian lessees of Indian trust lands, even though the effect may be to reduce the amount of rental the Indians are able to obtain for their land. Agua Caliente Band of Mission Indians v. County of Riverside, 442 f, 2d 1184 (9th cir 1971 ), cert. denied, 405 U.S. 933 (1972); Fort Mojave Tribe v. County of San Bernardino, 543 f. 2d 1253 (9th cir. 1976), cert. denied, 430 U.S. 983 (1977).

In permitting dual Taxation, Cotton Petroleum echoed Washington v. Confederated Tribes of the Colville Reservation, 447 U.S. 134 (1980), in which both the tribe and the state imposed a tax on cigarettes sold by tribal shops in Indian country. The court in Colville stated:

There is no direct conflict between the state and tribal schemes, since each government is free to impose its taxes without ousting the other. Although taxes can be used for distributive or regulatory purposes, as well as for raising revenue, we see no nonrevenue purposes to the tribal taxes at issue in these cases, and, as already noted, we perceive no intent on the part of congress to authorize the tribes to preempt otherwise valid state taxes.

447 U.S. at 159. It is therefore clear that the mere existence of a tribal tax does not preempt a state tax even when the result is double taxation that places those who deal with tribes at a disadvantage. See also Fort Mojave Tribe v. County of San Bernardino, 543 f. 2d 1253 (9th cir. 1 976), cert. Denied, 430 U.S. 983 (1977). Colville's language does suggest, however, that when the tribal tax has regulatory purposes that are hindered by a state tax, the state tax may be invalid for interfering with tribal self-government.

Cases like Colville involving state cigarette taxes probably go farthest in permitting imposition of state taxes. Colville held that sales by a tribe to non-Indians and nonmember Iindians were taxable by the state, but that sales to tribal members were not. The state could require the tribal organization to affix state tax stamps to packages of cigarettes and to keep records of exempt and non-exempt sales. None of these provisions was found to interfere with tribal self-government or to be federally preempted. A major reason for the result was that the court viewed tribal cigarette sales to nonmembers as a "magnet" operation, in which the tribe adds no reservation-based value to the product but markets its tax exemption to purchasers who would otherwise buy elsewhere. Colville, 447 U.S. at 155. See also Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463 (1976). The same taxes were upheld in Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe, 496 U.S. 505 (199 1 ), but the court also held that the tribe retained its sovereign immunity from suit to collect the taxes. The states are therefore left with a substantial remedy problem when the cigarette seller is the tribe. The court

Stated that it has never held individual tribal officers immune from damage suits by the tribe, id. At 5 1 4, but those officers sued in their individual capacities are unlikely to have deep pockets. The officers may not be sued in their official capacities; they share the immunity of the tribe when acting within the scope of their official duties. Hardin v. White Mountain Apache Tribe, 779 f. 2d 476, 479 (9th cir. 1985). The most effective solution for the states is to enforce the tax against those who supply the cigarettes to the tribes. See Powatomi, 498 U.S. at 5 1 4; Department of Taxation and Finance v. Milhelm A-rrea & Bros., Inc., 5 1 2 U.S. 6 1 (1994)

The principle of the cigarette cases has been applied to permit states to impose sales and rental taxes on sales and rentals by non-Indian businesses to no-Indians at a shopping mall on a Reservation. Salt River Pima-Maricopa Indian Community v. Arizona, 50 f.3d 734 (9th cir.), cert. denied, 516 U.S. 866 (1995). The court permitted the tax because "the community's activities did not contribute to the goods sold, and *** Arizona provides most of the governmental services used by the non-Indian taxpayers." id. At 736. Similarly, Arizona was permitted to impose a transaction tax on ticket sales for entertainment events conducted by non-Indians for non-Indians at a reservation lake and concert site. Gila River Indian Community v.Waddell, 91 f. 3d 1232 (9th cir. 1 996). State services and activities connected with the events predominated over those of the tribe. On the other hand, where a tribe had invested significant funds and effort in constructing and operating off-track betting facilities (and the federal government had regulated gaming in the tribe's interest), a state tax was held to be preempted; the tribe was not "merely serving as a conduit for the products of others." Cabazon Band of Mission Indians v. Wilson, 37 f.3d 430. 435 (9th cir. 1994).

Although all of these cases depend upon preemption analysis, the rule of Williams v. Lee, 358 U.S. 217 (1959) - that the states may not interfere with the right of reservation Indians to make their own laws and be governed by them - has been held to be an additional, independent limitation on the states' power to tax. E.g., White Mountain Apache Tribe V. Bracker, 448 U.S. 136, 142 (1980); Ramah Navajo School Board v. Bureau of Revenue, 458 U.S. 832, 837 (1982). So stated, the rule would doubtless curb any attempt of the states to tax the sovereign functions of the tribes. Where the tax is upon nonIindians, however, the absolute prohibition of Williams v. Lee tends to recede into the background while the courts engage int eh balancing of interests called for by the preemption approach that they prefer. Id. When that process results in the preemption of the state tax, the rule of Williams v. Lee is sometimes then invoked as additional support for the result. E.g., Crow Tribe v. Montana, 819 f. 2d at 902-03.

D. TRIBAL TAXATION

Even though taxation is one of the most basic powers of self-government, the tribes have only recently begun to exercise it. Tribes always have been assumed to have power to tax their own members, but traditional Indian hostility to taxation and the obvious poverty of a large part of the tribal population forestalled attempts to tax. It is still true that there are few tribal taxes aimed primarily at the member population.

Some of the tribes have imposed taxes on business activity within Indian country, and those taxes have fallen largely upon non-Indian enterprises. Morris v. Hitchcock, 194 U.S. 364 (1904). A tribe has been held to retain a sufficient property interest in a railroad right-of-way. Burlington Northern R. Co. v. Blackfeet tribe, 924 f. 2d 699 (9th cir. 1991 ), cert. denied, 505 U.S. 1212 ( 1992). It is uncertain whether that result would be different after Strate v. a- 1 contractors, 11 7 s.ct. 1 404, 1413-1 4 (1997), which held that a tribe's underlying property interest was insufficient to support adjudicatory jurisdiction over nonmembers on a state highway right-of-way.

There has recently been a sharp increase in tribal taxes on non-Indian businesses, arising from a new awareness of the governmental powers of the tribes, along with heightened revenue needs. In some cases there is also a conviction that non-Indian enterprises have been granted leases or licenses that are unduly advantageous to them and disadvantageous to the tribes. Taxation is seen as one means of recouping the loss.

Attempts by the tribes to tax non-Indians have been met with the contention that the tribes lacked the requisite power, particularly in view of the decision in Oliphant V. Suouamish Indian Tribe, 435 U.S. 1 9 1 (1 978), which held that tribal courts had no criminal jurisdiction over non-Indians. The supreme court, however, has made it abundantly clear that the tribes may tax non-Indians. In Washington v. Confederated Tribes of the Colville Reservation, 447 U.S. 134 (1980), the court upheld the imposition of a tribal cigarette tax on non-tribal purchasers, indicating that federal courts had long acknowledged the power of tribes to tax non-Indians entering the reservation to engage in economic activity. That power was not inconsistent with the tribes' domestic dependent status. No federal statute had taken the power away, indeed, where the tribe had a significant interest in the subject matter, its power to tax was probably confirmed by the Indian Reorganization Act of 1 934, 25 U.S.C.A section 476. Colville also indicated that a legitimate tribal tax is not preempted by a state tax on the same subject matter: "[E]ven if the state's interests were implicated by the tribal taxes, *** it must be remembered that tribal sovereignty is dependent on and subordinate to only the federal government, not the states." 447 U.S. at 1 54.

This broad view of tribal taxing power was reaffirmed in Merrion v. Jicarilla Apache Tribe, 455 U.S. 1 30 (1982), which upheld a tribal severance tax applied to non-Indian lessees who mined oil and gas on the reservation. The lessees contended that the tribal power to tax was based entirely on the right of the tribe to exclude nonmembers from the reservation, and that the power could not be exercised against lessees whose leases conferred a right of entry. The supreme court held that the power of exclusion was sufficiently broad to support the tax, but it also rejected the lessees' limited view of the tribal taxing power.

The power does not derive solely from the indian tribe's power to exclude non-Indians from tribal lands. Instead, it derives from the tribe's general authority, as sovereign, to control economic activity within its jurisdiction, and to defray the cost of providing governmental services *** 455 U.S. at 1 37. The court also held that neither federal statutes nor the interstate commerce clause, assuming that it applied to indian tribes, divested the tribe of the power to tax.

The jicarilla apache tribe's constitution, adopted pursuant to the Indian Reorganization Act, required the approval of the Secretary of the Interior to adopt a tax. Merrion, 455 U.S. at 1 55. Such constitutional clauses are not required by the Indian Reorganization Act, however, and there is no general rule of law that requires secretarial approval for a tribal tax to be effective. The supreme court has held that the Navajo Tribe, which rejected application of the Indian Reorganization Act, and which had adopted no internal requirement of secretarial approval, could impose a possessory interest tax and a business activity tax without it. Kerr-mcgee Corp. v. Navajo Tribe, 471 U.S. 195 (1985).

A tribe's power to tax non-Indian business activity is not confined to its reservation, but also extends to trust allotments of tribal members, which are also Indian country. Thus a tribe may impose a severance tax on non-Indian oil and gas producers operating on trust allotments outside of the tribe's reservation. Mustang Production Co. V. Harrison, 94 f.,3d 1382 ( 10th cir. 1996), cert. denied, 117 s.ct. 1288 (1997).

Non-Indian businesses seeking to challenge in federal court a tribe's power of taxation regularly have been required first to exhaust tribal court remedies. See, E.g., Reservation Telephone Cooperative v. Three Affiliated Tribes of the Fort Berthold Reservation, 76 f. 3d 181 (8th cir. 1 996). Exhaustion has been required even when the challenge is to imposition of a business activity tax off-reservation, but on trust land. Texaco, Inc. v. Half, 81 F. .3d 934 ( 10th cir. 1 996).

Wow, I think this is the longest post you have ever made!

LOL

I admit I didn't read it, I am old and senile and cannot read posts more than two sentences or so...heh

But thanks for this, I appreciate it:

In the meantime, this indian will be busy fighting for lower taxes for everyone, even you.

On another subject, what do you think of Indian Casinos, they are planning on putting one on the outskirts of the town in which I live. Private FR mail would be fine for an answer, as this is another subject.

Well, I am of two minds about casinos - and, I think you'll find that many indians feel the same, so allow me to explain.

As a "Christianized" indian, I dislike the idea of gambling. I don't think it's a healthy activity for people. However, the money is normally earmarked for roads, schools, water, sewer, electricity and other general improvements of the reservations...

So, while I personally disagree with casinos and gambling in general, I think they are a good vehicle for my people to stimulate reservation economies, allowing them to branch out into other endeavors...

But, we will see.

bump for later reading

Well here in my area, the town council has taken money in their back pockets, and passed a resolution to allow a casino on the edge of town. Most if the townspeople are against it.

The Casino people do not have to promise the town anything, so they negociate with them to supply services to the city...ie 1.3M for the cops, etc.

But if the city does not negociate, the Casino people do not have to do ANYTHING for the city...to fight the crime that comes with casinos, the roads that need to be improved and the other concerns.

Another point is that the other casinos in the area are inundated with crime...shootings, grafting etc.

Of course they don't have to pay taxes or anything like that because they are "soverign"

Now I dont't know how they make this work, but they don't own the land were they want to build their casino. I don't know how they work that, do they just buy it and declare it their "reservation"

Just asking...we are a town of 40,000 or so that don't want the extra "benifits" of a casino on the outskirts of our town.

BTW,my Father claimed to be 1/3 Indian...

Well here in my area, the town council has taken money in their back pockets, and passed a resolution to allow a casino on the edge of town. Most if the townspeople are against it.

Well, in all honesty, there was really no need for teh town to do anything, if the land was purchased by the tribes and put into "Trust" - the indians could build it as long as they have a compact with the state, and nothing the town could or would do makes any difference

The Casino people do not have to promise the town anything, so they negociate with them to supply services to the city...ie 1.3M for the cops, etc.

Of course they don't. However, they are required by the compacts made with the STATE to provide or aquire certain services, infrastructure etc... So, if the town doesn't "negotiate", the services will be aquired in some other way, and the town can kiss any revenue goodbye...

But if the city does not negociate, the Casino people do not have to do ANYTHING for the city...to fight the crime that comes with casinos, the roads that need to be improved and the other concerns.

Maybe not through or for the town, but the compact negotiated with the state requires certain things. Also, it's in the tribe's best interest to ensure a safe environment for their patrons. Also, the roads WILL be maintained. The question is, will the town get the money, or will the county or state get it instead?

Another point is that the other casinos in the area are inundated with crime...shootings, grafting etc.

Well, no one forces people to patronize the casinos. WHere the money is, criminals will follow - whether its the indian casino or some other money-making venture.

Of course they don't have to pay taxes or anything like that because they are "soverign"

This is, of course, false, as has been shown repeatedly on several threads.

Now I dont't know how they make this work, but they don't own the land were they want to build their casino. I don't know how they work that, do they just buy it and declare it their "reservation"

They probably either put it into trust, or made some other arrangement. I'm sure the state is aware of this, and it has been approved at all applicable levels.

Just asking...we are a town of 40,000 or so that don't want the extra "benifits" of a casino on the outskirts of our town.

Well, no one says you have to patronize it, deal with it, or otherwise be involved in it. Of course, that also means that your town will refuse any money from the tribes that the compact requires that they pay, right?

First of all, thanks for your response.

Well, in all honesty, there was really no need for teh town to do anything, if the land was purchased by the tribes and put into "Trust" - the indians could build it as long as they have a compact with the state, and nothing the town could or would do makes any difference

I see. The tribes are planning on buying the land, so I see what you mean. I didn't understand how that worked.

Of course they don't. However, they are required by the compacts made with the STATE to provide or aquire certain services, infrastructure etc... So, if the town doesn't "negotiate", the services will be aquired in some other way, and the town can kiss any revenue goodbye

Of course, if the town does nothing, the tribes don't have to help them at all, is my take on it from the information the people in favor of it have said.Well that is good news, that they have a compact with the state. But the town is negotiating with the tribes...

My comment:

Of course they don't have to pay taxes or anything like that because they are "soverign"

Your answer: This is, of course, false, as has been shown repeatedly on several threads.

Thanks, I have not seen those threads, do you have a URL?

Well, no one says you have to patronize it, deal with it, or otherwise be involved in it. Of course, that also means that your town will refuse any money from the tribes that the compact requires that they pay, right?

I am not trying to be contencious here, just trying to understand the situation. I know the casino has been turned down in other areas of this county, and it does bother me ant other townspeople here that this would be so close too out town. There are other casinos in this area, and it has caused problems. I am interested in the tax thing I asked above, it would be interesting to know how that works.

I am glad the state requires road work and other things to make the area safe from all the extra traffic and other things that will impact my area. Thanks

I would recommend doing a Google Search on the issue of "Indian Gaming Taxes California" - there is a wealth of information out there...

The following is an example, a response to an anti-indian ad that Ahnold ran:

Indian gaming has created over 40,000 jobs in California while the rest of the state economy is declining. Tribes pay federal employment taxes and tribal employees and tribal members pay federal income taxes. Non-Indian employees and Indians who live off-reservation pay state income taxes. Our employees and vendors pay over $280 million in federal income and payroll taxes annually. In addition, Tribes contribute over $100 million to California each year through their gaming compacts. These figures do not include the numerous charitable donations tribes make to their neighbors each year. I urge Mr.Schwarzenegger to take a good look around. The new schools, the health clinics, the state of the art fire and police departments, the new homes, and the smiling faces of people who are proud of to be working in California – that is all because of Indian gaming.”

It's certainly not all "take" on the part of the indians. They give, and give plenty. :0)

Cool, thanks.

:>)

If something can not be taxed, then restrict the permit to where they can't operate.

Not taxation, no benefit in the market place.

I'd say that the Indians in California pay enough to the state, and more than enough to the feds.

Rather than demanding that the indians pay more, why not concenrate on getting your state government to spend LESS?

Just an idea. :0)

Because the Indians aren't running trailers with a bit of gaming, they are getting into agreements with Las Vegas casinos where they are made into profitable mosters for both and a unfair tax shelter.

Let them pay what is reasonable. Currently my understanding is they pay Zero. The payments often are usually short term payments to non-casino indians who don't have convienent land access for a casino. Eventually those payments in a few years become zero and they'll keep everything. That is stupid.

In most cases, nothing goes back into the economy.

That is not reasonable.