CONFEDERATED TRIBES AND BANDS v. Gregoire
658 F.3d 1078
| 9th Cir. | 2011Background
- Indian tax immunity requires Congress authorization for state taxes on tribes or tribal members outside tribal lands.
- District court in Colville upheld Washington cigarette tax and non-Indian purchaser as the tax bearer (1980 Colville decision).
- Washington imposes a general cigarette excise tax on sales, with wholesalers collecting stamps and passing costs to retailers and consumers; certain tribal exemptions and compacts exist.
- Yakama Nation, with nine member-owned retailers, operates on-reservation; in 2004 they entered a cigarette tax compact with Washington, later terminated in 2008, reinstating tax collection on nonmembers.
- Yakama filed suit Sept. 2008 seeking declarations and injunctive relief; district court largely granted summary judgment to Washington.
- The Ninth Circuit reviews summary judgment de novo and emphasizes legal-incidence analysis over economic burden.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who bears the legal incidence of the Washington cigarette tax? | Yakama retailers bear the incidence under Colville. | State tax scheme places burden on non-Indians via pass-through and pre-collection. | Tax incidence remains on consumers/non-Indians; Yakama retailers are not bearing the legal incidence. |
| Is absence of an express pass-through dispositive for legal-incidence analysis? | Lack of pass-through to retailers/consumers shifts incidence to tribes. | Implicit pass-through via pre-collection suffices; statutory structure aligns with Colville. | Absence of explicit pass-through is not dispositive; pre-collection obligation supports non-tribal incidence. |
| Does pre-collection obligation change who bears the legal incidence? | Pre-collection shows tribal retailer as collecting agent, shifting incidence. | Pre-collection is a minimal burden, not a change in who is legally liable to pay. | Pre-collection does not alter the legal-incidence analysis; not dispositive. |
| Do amendments to the Act alter the Colville result? | Changes to stamping, compensation, and recordkeeping shift burden. | Amendments are economic, not legal-incidence-shifting; intent to collect from non-Indians remains. | Amendments do not materially change legal incidence; Colville framework remains applicable. |
Key Cases Cited
- Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S. 450 (U.S. Supreme Court, 1995) (establishes legal-incidence analysis and pass-through considerations)
- Montana v. Blackfeet Tribe, 471 U.S. 759 (U.S. Supreme Court, 1985) (tribal immunity and scope of state taxation on tribes)
- Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463 (U.S. Supreme Court, 1976) (limits of tribal tax collection on reservations; retail purchaser burden)
- United States v. Mississippi Tax Comm'n, 421 U.S. 599 (U.S. Supreme Court, 1975) (pass-through concept and legal-incidence guidance for sales taxes)
- Colville Indian Reservation v. Washington, 447 U.S. 134 (U.S. Supreme Court, 1980) ( Colville upholds non-Indian purchaser as the tax bearer for Colville context)
- Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95 (U.S. Supreme Court, 2005) (emphasizes legislative identification and pass-through in determining incidence)
- Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (U.S. Supreme Court, 1980) (Colville decision on tax incidence for tribal sales to non-Indians)