Wednesday, March 28, 2007
Furthering investment in Indian country (a term that includes, but is not limited to, reservations) is an important goal, but potential investors are hesitant-and with reason. One disincentive to invest is uncertainty about tax liability. Understanding taxation in Indian country requires knowledge not only of traditional tax law, but also of American Indian law principles dating from the early nineteenth century, and not many practitioners are up to that task. This article tries to make sense, as much as is possible, of the doctrines that have developed over the centuries.
The article first discusses some basics: the concept of Indian country and various other doctrines of American Indian law that can affect the analysis of taxation (federal plenary power, the federal government's obligation to act as trustee for American Indian nations, tribal sovereignty, the nature of treaties between the U.S. and many tribes, and the Indian canons of construction). The article then discusses the power of various governments (federal, state, and tribal) to tax within Indian country. Among the subjects considered in depth are the federal government's power to tax tribes and tribal corporations; doctrines affecting state governments- taxing powers (including legal versus economic incidence, the infringement test, and the federal preemption doctrine); the limits on tribal power to tax non-Indians within Indian country; and doctrines affecting the ability of tribes to waive their taxing power in order to attract investors.