Posted on 08/17/2004 5:58:48 AM PDT by Aquinasfan
You didn't explain yourself at all, in fact, outside of announcing its unconstitutionality without much support.
The equal protection concern you raise most likely would not be honored by the USSC. If the class is race, their is a separate standard (and lower standard) for benign discrimination, which is exactly what this plan is. It would survive constitutional scrutiny as a matter of benign racial discrimination, if coached hat way.
But the trait of the class that gives a person free tax status is not even race, but rather ancestry. If an ancestor was victimized by the institutional slavery that the government authorized, it is an entirely legitimate (if entirely elective) for our legislature to decide to make amends for it.
You may disagree with the election of doing so, but I don't think there is a constitutional ground to challenge this sucessfully if it is crafted properly.
Your equal protection concern is misplaced - the working definition of equality is 'you treat similarly situated people similarly, but you may treat differently situated people differently, within certain paramaters.' Most people (and many conservatives) wrongly define 'equality' with only the first half of that definition, and ignore the second part - you can treat differently situated people differently, so long as the treatment is tailored wisely.
Also, people are taxed different rates already - there wouldn't be much wrong with a 0% tax bracket for members of this class, regardless of how many times you like to repeat that it's unconstitutional.
When you ask what gives the government the power to say "That group over there doesn't have to pay, but that group over there does, and those over there, too." is the 16th Amendment and the US Tax Code - in fact, that's exactly what it does. If you won't recognize that, your analysis is extraconstitutional by definition.
COMMERCE WITH INDIAN TRIBES
Congress' power to regulate commerce ''with the Indian tribes,'' once almost rendered superfluous by Court decision, 1099 has now been resurrected and made largely the basis for informing judicial judgment with respect to controversies concerning the rights and obligations of Native Americans. Although Congress in 1871 forbade the further making of treaties with Indian tribes, 1100 cases disputing the application of the old treaties and especially their effects upon attempted state taxation and regulation of on-reservation activities continue to be a staple of the Court's docket. 1101 But this clause is one of the two bases now found sufficient to empower Federal Government authority over Native Americans. ''The source of federal authority over Indian matters has been the subject of some confusion, but it is now generally recognized that the power derives from federal responsibility for regulating commerce with Indian tribes and for treaty making.'' 1102 Forsaking reliance upon other theories and rationales, the Court has established the preemption doctrine as the analytical framework within which to judge the permissibility of assertions of state jurisdiction over the Indians. However, the ''semi-autonomous status'' of Indian tribes erects an ''independent but related'' barrier to the exercise of state authority over commercial activity on an Indian reservation. 1103 Thus, the question of preemption is not governed by the standards of preemption developed in other areas. ''Instead, the traditional notions of tribal sovereignty, and the recognition and encouragement of this sovereignty in congressional Acts, inform the pre- emption analysis that governs this inquiry. . . . As a result, ambiguities in federal law should be construed generously, and federal pre-emption is not limited to those situations where Congress has explicitly announced an intention to pre-empt state activity.'' 1104 A corollary is that the preemption doctrine will not be applied strictly to prevent States from aiding Native Americans. 1105 However, the protective rule is inapplicable to state regulation of liquor transactions, since there has been no tradition of tribal sovereignty with respect to that subject. 1106
The scope of state taxing powers--the conflict of ''the plenary power of the States over residents within their borders with the semi- autonomous status of Indians living on tribal reservations'' 1107 --has been often litigated. Absent cession of jurisdiction or other congressional consent, States possess no power to tax Indian reservation lands or Indian income from activities carried on within the boundaries of the reservation. 1108 Off-reservation Indian activities require an express federal exemption to deny state taxing power. 1109 Subjection to taxation of non-Indians doing business with Indians on the reservation involves a close analysis of the federal statutory framework, although the operating premise was for many years to deny state power because of its burdens upon the development of tribal self- sufficiency as promoted through federal law and its interference with the tribes' ability to exercise their sovereign functions. 1110
That operating premise, however, seems to have been eroded. For example, in Cotton Petroleum Corp. v. New Mexico, 1111 the Court held that, in spite of the existence of multiple taxation occasioned by a state oil and gas severance tax applied to on-reservation operations by non-Indians, which was already taxed by the tribe, 1112 the impairment of tribal sovereignty was ''too indirect and too insubstantial'' to warrant a finding of preemption. The fact that the State provided significant services to the oil and gas les sees justified state taxation and also distinguished earlier cases in which the State had ''asserted no legitimate regulatory interest that might justify the tax.'' 1113 Still further erosion, or relaxation, of the principle of construction may be found in a later case, in which the Court, confronted with arguments that the imposition of particular state taxes on Indian property on the reservation was inconsistent with self- determination and self-governance, denominated these as ''policy'' arguments properly presented to Congress rather than the Court. 1114
The impact on tribal sovereignty is also a prime determinant of relative state and tribal regulatory authority. 1115
Since Worcester v. Georgia, 1116 it has been recognized that Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory. 1117 They are, of course, no longer possessed of the full attributes of sovereignty, 1118 having relinquished some part of it by their incorporation within the territory of the United States and their acceptance of its protection. By specific treaty provision, they yielded up other sovereign powers, and Congress has removed still others. ''The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance.'' 1119
In a case of major import for the settlement of Indian land claims, the Court ruled in County of Oneida v. Oneida Indian Nation, 1120 that an Indian tribe may obtain damages for wrongful possession of land conveyed in 1795 without the federal approval required by the Nonintercourse Act. 1121 The Act reflected the accepted principle that extinguishment of the title to land by Native Americans required the consent of the United States and left intact a tribe's common-law remedies to protect possessory rights. The Court reiterated the accepted rule that enactments are construed liberally in favor of Native Americans and that Congress may abrogate Indian treaty rights or extinguish aboriginal land title only if it does so clearly and unambiguously. Consequently, federal approval of land-conveyance treaties containing references to earlier conveyances that had violated the Nonintercourse Act did not constitute ratification of the invalid conveyances. 1122 Similarly, the Court refused to apply the general rule for borrowing a state statute of limitations for the federal common-law action, and it rejected the dissent's view that, given ''the extraordinary passage of time,'' the doctrine of laches should have been applied to bar the claim. 1123
While the power of Congress over Indian affairs is broad, it is not limitless. 1124 The Court has promulgated a standard of review that defers to the legislative judgment ''[a]s long as the special treatment can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians . . . '' 1125 A more searching review is warranted when it is alleged that the Federal Government's behavior toward the Indians has been in contravention of its obligation and that it has in fact taken property from a tribe which it had heretofore guaranteed to the tribe, without either com pensating the tribe or otherwise giving the Indians the full value of the land. 1126
Footnotes
[Footnote 1099] United States v. Kagama, 118 U.S. 375 (1886). Rejecting the commerce clause as a basis for congressional enactment of a system of criminal laws for Indians living on reservations, the Court nevertheless sustained the act on the ground that the Federal Government had the obligation and thus the power to protect a weak and dependent people. Cf. United States v. Holiday, 70 U.S. (3 Wall.) 407 (1866); United States v. Sandoval, 231 U.S. 28 (1913). This special fiduciary responsibility can also be created by statute. E.g., United States v. Mitchell, 463 U.S. 206 (1983).
[Footnote 1100] 16 Stat. 544, 566, 25 U.S.C. Sec. 71.
[Footnote 1101] E.g., Puyallup Tribe v. Washington Game Dept., 433 U.S. 165 (1977); Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U.S. 658 (1979); Montana v. United States, 450 U.S. 544 (1981).
[Footnote 1102] McClanahan v. Arizona Tax Comm., 411 U.S. 164, 172 n. 7 (1973). See also Morton v. Mancari, 417 U.S. 535, 551 -553 (1974); United States v. Mazurie, 419 U.S. 544, 553 -556 (1974); Bryan v. Itasca County, 426 U.S. 373, 376 n. 2 (1976); White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142 (1980); Ramah Navajo School Board v. Bureau of Revenue of New Mexico, 458 U.S. 832, 837 (1982).
[Footnote 1103] White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142 - 143 (1980); Ramah Navajo School Board v. Bureau of Revenue of New Mexico, 458 U.S. 832, 837 -838 (1982). ''The two barriers are independent because either, standing alone, can be a sufficient basis for holding state law inapplicable to activity undertaken on the reservation or by tribal members.'' Id., 837 (quoting White Mountain, supra, 143).
[Footnote 1104] Ramah Navajo School Board v. Bureau of Revenue of New Mexico, 458 U.S. 832, 838 (1982). See also New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983).
[Footnote 1105] Three Affiliated Tribes v. Wold Engineering, 467 U.S. 138 (1984) (upholding state-court jurisdiction to hear claims of Native Americans against non-Indians involving transactions that occurred in Indian country). However, attempts by States to retrocede jurisdiction favorable to Native Americans may be held to be preempted. Three Affiliated Tribes v. Wold Engineering, 476 U.S. 877 (1986).
[Footnote 1106] Rice v. Rehner, 463 U.S. 713 (1983).
[Footnote 1107] McClanahan v. Arizona Tax Comm., 411 U.S. 164, 165 (1973).
[Footnote 1108] Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148 (1973); McClanahan v. Arizona Tax Comm., 411 U.S. 164 (1973); Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463 (1976); Bryan v. Itasca County, 426 U.S. 373 (1976); Washington v. Confederated Colville Tribes, 447 U.S. 134 (1980); Montana v. Blackfeet Tribe, 471 U.S. 759 (1985). See also Oklahoma Tax Comm. v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 (1991). A discernable easing of the reluctance to find congressional cession is reflected in more recent cases. See County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 112 S.Ct. 683 (1992).
[Footnote 1109] Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148 -149 (1973).
[Footnote 1110] White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980); Central Machinery Co. v. Arizona Tax Comm., 448 U.S. 160 (1980); Ramah Navajo School Board v. Bureau of Revenue of New Mexico, 458 U.S. 832 (1982).
[Footnote 1111] 490 U.S. 163 (1989).
[Footnote 1112] Held permissible in Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982).
[Footnote 1113] Id., 490 U.S., 185 (distinguishing Bracker and Ramah Navaho School Bd).
[Footnote 1114] County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 112 S.Ct. 683, 692 (1992). To be sure, this response was in the context of the reading of statutory texts and giving effect to them, but the unqualified designation is suggestive. For recent tax controversies, see Oklahoma Tax Comm'n v. Sac & Fox Nation, 508 U.S. 114 (1993); Department of Taxation & Finance v. Milhelm Attea & Bros., 512 U.S. 61 (1994); Oklahoma Tax Comm'n v. Chickasaw Nation, 115 S. Ct. 2214 (1995).
[Footnote 1115] E.g., New Mexico v. Mescalero Tribe, 462 U.S. 324 (1983).
[Footnote 1116] 31 U.S. (6 Pet.) 515 (1832). See also Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). Under this doctrine, tribes possess sovereign immunity from suit in the same way as the United States and the States do. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978); United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 512 -513 (1940). The Court has repeatedly rejected arguments to abolish tribal sovereign immunity or at least to curtail it. Oklahoma Tax Comm. v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 510 (1991).
[Footnote 1117] United States v. Wheeler, 435 U.S. 313 (1978) (inherent sovereign power to punish tribal offenders). But tribes possess no criminal authority over non-Indians. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). And see Duro v. Reina, 495 U.S. 676 (1990) (tribe has no criminal jurisdiction over non-tribal Indians who commit crimes on the reservation; jurisdiction over members rests on consent of the self-governed, and absence of consent defeats jurisdiction). Compare California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987) (state regulation of on-reservation bingo is preempted as basically civil/regulatory rather than criminal/prohibitory), with Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408 (1989) (extensive ownership of land within ''open areas'' of reservation by non-members of tribe precludes application of tribal zoning within such areas). And see Hagen v. Utah, 510 U.S. 399 (1994). Among the fundamental attributes of sovereignty which a tribe possesses unless divested of it by federal law is the power to tax non-Indians entering the reservation to engage in economic activities. Washington v. Confederated Colville Tribes, 447 U.S. 134 (1980); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982).
[Footnote 1118] United States v. Kagama, 118 U.S. 375, 381 (1886); United States v. Wheeler, 435 U.S. 313, 323 (1978).
[Footnote 1119] United States v. Wheeler, 435 U.S. 313, 323 (1978). See South Dakota v. Bourland, 508 U.S. 679 (1993) (abrogation of Indian treaty rights and reduction of sovereignty).
[Footnote 1120] 470 U.S. 226 (1985).
[Footnote 1121] 1 Stat. 379 (1793).
[Footnote 1122] Id., 470 U.S., 246-248.
[Footnote 1123] Id., 255, 257 (Justice Stevens).
[Footnote 1124] ''The power of Congress over Indian affairs may be of a plenary nature; but it is not absolute.'' United States v. Alcea Bank of Tillamooks, 329 U.S. 40, 54 (1946) (plurality opinion) (quoted with approval in Delaware Tribal Business Comm. v. Weeks, 430 U.S. 73, 84 (1977)).
[Footnote 1125] Morton v. Mancari, 417 U.S. 535, 555 (1974). The Court applied the standard to uphold a statutory classification that favored Indians over non-Indians. But in Delaware Tribal Business Comm. v. Weeks, 430 U.S. 73 (1977), the same standard was used to sustain a classification that disfavored, although inadvertently, one group of Indians as against other groups. While Indian tribes are unconstrained by federal or state constitutional provisions, Congress has legislated a ''bill of rights'' statute covering them. See Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).
[Footnote 1126] United States v. Sioux Nation, 448 U.S. 371 (1980). See also Solem v. Bartlett, 465 U.S. 463, 472 (1984) (there must be ''substantial and compelling evidence of congressional intention to diminish Indian lands'' before the Court will hold that a statute removed land from a reservation).
I agree.
I choose to drive my Taxi 40 hours a week.
Some guy chooses to work 80 hours a week.
He should pay more because he makes more than I do. :)
My guess is that Keyes wanted some attention. He's gotten it, but it's not a way to get him elected in Illinois...or anywhere else.
Yes they do in this country. Who else was locked up bred forcefully in chattel slavery in this country?
What provisions of the tax code make distinctions based upon race or based upon distinctions as closely associated with race as slavery?
Doesn't the Sixteenth Amendment have to be read in conjunction with all other provisions of the Constitution?
I agree with you that nothing REQUIRES us as a nation to make reparations, but it is a legitimate elective course of action if we so choose.
That it is right or wrong should be decided by the electorate.
In any case we can legally extend a benefit to a descendant of a victim. That's different than meeting out a punishment for a descendant of a culprit.
Thanks... I have some other comments I want to make but this thread is beginning to wear me down.
I don't think that a well tailored plan crafted as benign discrimiation would be found unconstitutional, for the reasons I have explained.
So, you agree with Progressive Taxation, then, correct? That it's ok for people in one bracket to be charged one percentage, and other brackets pay other percentages, correct?
I don't think that is right either, and find it to be unconstitutional.
Everyone paying the same percentage - THAT would be the American way, and in my opinion constitutional.
Anything else smacks of wealth redistribution and socialism.
I submit that it is. If you can't demonstrate that descendents of slaves have damage relative to non-descendents, then there no harm exists that would be corrected by this proposal.
"We?" "legally extend benefits...?" Dream on.
KEYES WILL LOSE BIG TIME !
I don't know where you live, but I've never strolled across a pile of sh%t where I live.
Perhaps, you should either hpousebreak your significant other, or buy them some Depends.
What you say here has utterly no constitutional authority whatsoever.
This reparation plan would expire in one or two generations. It's not a permanent benefit to a racial class. It's a benefit to a discrete class not defined by race.
In any case, I outlined the legal authority in play here. If properly crafted, there is no constitutional problem, necessarily.
Your 'foul' makes no sense. For example, our tax code has many special benefits applied to certain groups. A different tax structure for corporations, for example, is an obvious demonstration that 1. this is done, and 2. this is legal.
That's not to say we should or shouldn't do it. I think our legislature should decide, and within constitutional limits.
This is not illegal. Period. Nor unconstitutional. Period.
We seem to be in the minority 8-)
It's a Jesse Jackson op-ed piece from the Chicago Sun-Times, c'mon. Be serious.
I tell you what: when someone thumps me upside the head because they think that (on appearance...after all, until most meet me, I'm nothing but a big black man, not unlike other big black guys) I'm "benefitting" from this idiotic notion of "reparations," I'll send you the medical bill.
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