“OK, but does the Fed Gov have the authority to grant or deny the right to do business on an Indian res? I thought that would be up to the res gov.”
Short answer: No, of course not. Sovereign means Feds have no authority over commerce, as well as local laws, pure and simple!
Clearly, if the Native American Nations are indeed sovereign, then the Federal Government has absolutely no authority to tax any business activity conducted within any sovereign Native American Nation.
If the Federal government wants to tax citizens who purchase goods from a sovereign Native American Nation, then that is another question. Since the Constitution explicitly prohibits a head tax, taxing a citizen directly would be problematic, at best, and totally unlawful in my opinion. But who am I? Perhaps a Constitutional Lawyer can address these issues more resolutely than I.
No, I think you’ve said it. The Feds are authorizing themselves to break the law on both sides of the equation.
‘if’ being the operative word. The concept of ‘sovereign’ is a recent finding in law — circa 1978 - prior to that “finding”, reservation Indians were considered “wards of the State” - hence the Dept of Indian Affairs.
The concept of ‘sovereign’ apples only to recognized Treaty Tribes, as not all tribes have treaties.
In Alaska the local tribes are corporations, not nations.
Also the vast majority of Indians (of any tribe) live off-reservation -— for good reasons.
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In this action for declaratory and injunctive relief, the issue is whether the State Department of Taxation and Finance may require plaintiff, an enrolled member of the Seneca Nation, to collect and remit sales, use and excise taxes on sales of cigarettes and motor fuel to non-Indian consumers at plaintiff's retail business on the Cattaraugus Reservation. Because the issue is directly governed by controlling precedent, we affirm the order of the Appellate Division dismissing plaintiff's complaint.
The United States Supreme Court has clearly established that State tax statutes requiring Indian retailers to collect and remit taxes on sales to non-Indian purchasers, and to keep the records necessary to ensure compliance, violate neither the Commerce Clause nor the constitutional proscription against direct taxation of Indians absent explicit Congressional consent (see, Oklahoma Tax Commn. v Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 US 505; Washington v Confederated Tribes of the Colville Indian Reservation, 447 US 134; Moe v Confederated Salish & Kootenai Tribes, 425 US 463). To the extent plaintiff contends that the State tax statutes at issue violate either the Supremacy Clause or New York law, his arguments are unpreserved and cannot be considered on this appeal. Plaintiff's complaint asserted only violations of the Commerce Clause and "the Laws of the United States enacted pursuant thereto".
http://www.law.cornell.edu/nyctap/search/display.html?terms=tribes&url=/nyctap/I94_0195.htm