Register Groups Members List Search Today's Posts Mark Forums Read

Forum Home - Go Back > General > Native Life > Native Issues Lawyers Fear Kansas May Win Tax  Case Lawyers Fear Kansas May Win Tax Case

Reply LinkBack Thread Tools Search this Thread Display Modes
Old 10-14-2005, 09:34 PM   #1
Honey Connoissuer
 
Blackbear's Avatar
 
User InfoThanks / Tagging InfoGifts / Achievements / AwardsvBActivity Stats
Blackbear has a reputation beyond repute
Blackbear has a reputation beyond reputeBlackbear has a reputation beyond reputeBlackbear has a reputation beyond reputeBlackbear has a reputation beyond reputeBlackbear has a reputation beyond reputeBlackbear has a reputation beyond reputeBlackbear has a reputation beyond reputeBlackbear has a reputation beyond reputeBlackbear has a reputation beyond reputeBlackbear has a reputation beyond reputeBlackbear has a reputation beyond reputeBlackbear has a reputation beyond reputeBlackbear has a reputation beyond reputeBlackbear has a reputation beyond reputeBlackbear has a reputation beyond reputeBlackbear has a reputation beyond reputeBlackbear has a reputation beyond reputeBlackbear has a reputation beyond reputeBlackbear has a reputation beyond reputeBlackbear has a reputation beyond reputeBlackbear has a reputation beyond repute
Join Date: Nov 2000
Location: Alaska
Posts: 9,817
Credits: 546.23
Savings: 1.00
Lawyers Fear Kansas May Win Tax Case

************************************************** ************
This Message Is Reprinted Under The Fair Use
Doctrine Of International Copyright Law:
_http://www4.law.cornell.edu/uscode/17/107.html_
(http://www4.law.cornell.edu/uscode/17/107.html)
************************************************** ************

FROM: INDIAN COUNTRY TODAY NEWSPAPER

_http://www.indiancountry.com/content.cfm?feature=yes&id=1096411754_
(http://www.indiancountry.com/content...&id=1096411754)

Lawyers Fear Kansas May Win Tax Case

(javascript:PrintWindow();) Posted: October 14, 2005
by: _Jim Adams_ (http://www.indiancountry.com/author.cfm?id=33) / Indian
Country Today


Today's feature article sponsored by _WellPoint, Inc. WellPoint, the
nation's leading health benefits company, may have just the right career
opportunity for you._
(http://ad.doubleclick.net/clk;145537...nt.com/careers) Analysis

WASHINGTON - Kansas is a good bet to win its U.S. Supreme Court tax case
against the Prairie Band Potawatomi, legal observers are saying, after tribal
lawyers faced a ''difficult'' oral argument before the nine justices in the
first Indian case before the John Roberts court.

But the most likely result might not be the ''bright line'' doctrine the
state was urging as an attack on tribal sovereignty. Instead, the justices will
probably deepen the mess they've already made in their rulings on state
taxation of reservation economies.

The case is the latest in a decade of Kansas attempts to tax motor fuel
sales on tribal reservations within its boundaries. The 10th Circuit Court of
Appeals has generally knocked down the state taxes: and the Supreme Court
refused to intervene until now.

It was already a bad sign that the Supreme Court took up the case. ''They
wouldn't grant cert [the writ of certiorari that brings a case before the
Supreme Court] unless they wanted to reverse the Court of Appeals,'' said Richard
Guest of the Native American Rights Fund. But things got worse as soon as the
court opened oral argument Oct. 3.

Justice David Souter threw the tribal attorney for a loop when he asked
whether tribal sovereignty was really involved. Setting the tone for the rest of
the session, he asked whether the state tax affected the reservation at all.
According to Guest, a courtroom observer, the tribal team hadn't expected the
argument to go this way and remained off-balance under the sharp barrage of
questions from the bench.

The debate veered sharply from the issues in the briefs that the NARF -
National Congress of American Indians Supreme Court Project had carefully
coordinated. The series of tribal ''friends of the court'' briefs were defending a
lower-court trend of balancing interests in deciding whether states could tax
tribal business. In this case, the 10th Circuit had overturned a state tax
on the non-Indian distributors of motor fuel, levied even before the gasoline
reached the pumps of the Prairie Band Potawatomi's Nation Station.

Kansas, and a consortium of state attorneys general and tax collectors,
wanted to overturn the balancing test, especially since it was protecting Indian
interests even off the reservation. They asked for a ''bright line'' test
that would give them the categorical right to tax all Indian sales to
non-Indians. (Contrary to widespread political rhetoric and confusing Supreme Court
precedents, that is not what the Constitution now allows.)

But instead of reaching these issues, the justices hammered on what is known
as ''tax incidence.'' The term might sound like a legal and economic
technicality, but it could become just as dangerous for tribes as the all-out attack
on sovereignty. It could be even more insidious, in fact, if the Supreme
Court continues to turn the same blind eye to the states that it showed in its
courtroom Oct. 3.

''Tax incidence'' is best understood as the power to destroy. It describes
the person who bears the brunt of paying the tax. But there are two kinds of
incidence. There is legal incidence, meaning the person that the law
designates to write out the check to the tax collector. And there is economic, or
effective, incidence, meaning the people who ultimately bear the cost. Economists
and consumers understand the phenomenon of ''tax shifting.'' If you tax a
distributor, he will pass on the cost as much as he can, usually by raising the
price at the cash register.

When John Marshall wrote his famous line in McCulloch v. Maryland that ''the
power to tax involves the power to destroy,'' he wasn't talking about legal
incidence. He had in mind the real economic crunch that comes at the end of
the line. The basic principle was that one sovereign could not tax another
sovereign because that power could be used to put that other sovereign out of
business. This is a bedrock principle of constitutional law - except when it
comes to Indian tribes.

In a truly ditzy line of decisions, the Supreme Court has seemed to say it
will only consider legal incidence when state taxes impinge on tribes. As
Justice Ruth Bader Ginsburg wrote in Oklahoma Tax Commission v. Chickasaw Nation
(1995), if a state says it is taxing ''a tribe or tribal members inside a
reservation, that tax cannot be enforced absent clear Congressional
authorization.'' But, she continued, the court wouldn't take the ''more venturesome
approach'' of looking at economic reality.

''If we were to make 'economic reality' our guide,'' she went on, ''we might
be obliged to consider, for example, how completely retailers can pass along
tax increases without sacrificing sales volume - a complicated matter
dependent on the characteristics of the market for the relevant product.'' Of
course, economists and competent tax administrators do this all the time. What
Ginsburg is saying, in plainspeak, is ''Ooh, these numbers hurt my head.''

The new chief justice, John Roberts, homed in on the problem, in the one ray
of hope in the Kansas argument. If the court only looks at what the state
Legislature says it is taxing - the language of the law - and not its actual
impact, what is to prevent some ''bright young lawyer'' from designing the law
to hurt tribes without saying so? The state can say it is only taxing
distributors or wholesalers, and not the reservation retailer who has to swallow the
added cost ... or the tribal government that is foreclosed from collecting
its own taxes by the economic reality that it would price itself out of a
market.

This is exactly the issue in Kansas, in Rhode Island in the raid on the
Narragansett smoke shop, and in state tax departments around the country. If the
Supreme Court continues the train of thought that Justice David Souter
started, it will intensify the insidious state campaign to destroy tribal
retailers. The result will be deeper confusion and more violent conflict.
__________________
Don't worry that it's not good enough for anyone else to hear... just sing, sing a song.
Blackbear is offline   Reply With Quote Share with Facebook
Sponsored Links
Reply

Bookmarks


Currently Active Users Viewing This Thread: 1 (0 members and 1 guests)
 
Thread Tools Search this Thread
Search this Thread:

Advanced Search
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is On
Trackbacks are Off
Pingbacks are Off
Refbacks are Off

    

Join the online community forum celebrating Native American Culture, Pow Wows, tribes, music, art, and history.

Join PowWows.com Today!

Your Guide to Native American Pow Wows Since 1996

Register For Free

Enjoy the benefits of being a member of PowWows.com!

Join our Native American online community focused on Pow Wow singing, dancing, crafts, Native American music, Native American videos, and more.

Add your Pow Wow to our Calendar

Share your photos and videos

Play games, enter contests, and much more!






New Threads

Pow Wow Calendar Search

 
Month: Year:

Location:
Facebook Profile Images

Videos

Featured Articles

Dance Styles

Crafts

Gallery