United States Ex Rel. Cheyenne River Sioux Tribe v. South Dakota

America, behalf STATES UNITED SIOUX RIVER CHEYENNE THE members, Plaintiff/Ap its TRIBE and Appellee,

pellant/Cross Tribe, Intervenor River Sioux Appellee,

Plaintiff/Appellant/Cross DAKOTA; M. Julie OF

STATE SOUTH Revenue, Secretary Johnson, State Appellants,

Defendants/Appellees/Cross County, Dewey Schreiner; J.

Ronald County Alley, Trea Dakota; John Dakota; County, surer; Ziebach Treasurer, County De Hertel, Virginia

fendants/Appellees. TRIBE, SIOUX

ROSEBUD

Plaintiff/Appellant, Secretary JOHNSON, State

Julie Defendant/Appellee. Revenue, America, Curiae. Amicus States

United 95-

Nos. and 95-2688. Appeals, Court

United States

Eighth Circuit. May

Submitted Jan.

Decided County Virginia Alley, Ziebach

John Hertel 95-2720. ROSS, Circuit MURPHY

Before SICKLE,* Judge. District Judges, and VAN MURPHY', Judge. Circuit challenge the two cases These impose its Dakota to of South of the State registration tax and fee vehicle excise motor within the boundaries on Indians who live case, In one a reservation. United declarative, injunctive, and sued for States Chey- of the compensatory relief on behalf and its members. enne River Sioux Tribe brought involves claims The second case (ar- Durkee, Washington, D.C. Ellen J. equitable for relief. the Rosebud Sioux Tribe United gued), appellant/cross-appellee for Laws 32- Dakota Codified section South 95-2529/2535,Amicus Unit- Curiae in States pay shall an provides 5B-1 that residents appellant in and United ed States any motor tax on' the value of vehicle excise in 95-2720. States in state for use purchased acquired or Butte, Emery, Eagle South Da- Steven C. required registered. to S.D. Codified and be (argued), appellanVcross-appellee for kota § a Ann. The excise tax is Laws 32-5B-1.1 in Cheyenne River Sioux Tribe 95-2529/2535 county time assessment collected one in 95-2688. and Rosebud Sioux Tribe resides when the vehicle in which the owner §Id. is first licensed in the state. 32-5B-10. Pierre, Long, South Dakota E. Lawrence required Payment tax is for the of the excise appellees/cross-appellants State (argued), for title, id. of state vehicle Johnson, issuance or transfer Dakota, and Ron- Julie M. South 32-5B-14, prece- § a and is thus condition 95-2529/2535, appellee J. Schreiner ald registration and issuance of state dent appellees and M. Johnson Julie proceeds plates.2 are allocated license and M. Johnson Dakota Julie State South § highway fund. Id. to the state 32-5B-17. in 95-2720. pay tax is a Failure to the excise misdemean- Aberle, Lake, Lyle Timber Steven § or. 32-5B-1. (argued), appellees/cross-appel- for Dakota Laws section 32-5- County, Alley, Dewey Ziebach Codified John larits 95-2529/2535, registra- motor imposes separate a vehicle County, Virginia’ and Hertel residents. S.D. in 95-2688 tion fee state Codified appellee Julie M. and and Johnson Johnson, § is Dewey County, Ann. 32-5-5.3 The annual fee Laws Julie M. appellees * SICKLE, of a certificate of title 2. The issuance or transfer M. VAN The HONORABLE BRUCE fee, requires payment $5 Judge of a is not for the District also which States District United Dakota, challenged by by designation. parties in this case. sitting North provides: 1.The statute provides: 3. The statute registration addition to all license Subject provisions §§ highways, person to 32- 32-5-17 for the use of the a fees shall inclusive, 5^45, compensation percent license fees and pay tax at the rate of three an excise based, highways, price any fees shall be purchase motor for use of vehicle ... except specifically provided, upon acquired use on the streets as otherwise purchased for weights, including required regis- highways to be manufacturers' accessories. of this state and auto- If a motor vehicle is an the laws of state. This tax noncommercial tered under shall mobile, pickup any by chapters truck or van with a 1CM-5 manufac- in lieu of tax levied accessories, shipping weight, turer’s the sales of vehicles. Failure to 10—46 on such less, pounds or the license fees excise tax is a Class of six thousand the full amount of I pay provided shall be as for such by vehicle misdemeanor. 32-5-6_ paid § fees shall be an- These Codified Laws Ann. 32-5B-1. S.D. weight based on the of the vehicle and The statutes do not exemption create an ranges average for for $20 $40 noncom- Indian-owned vehicles that are driven exclusively land, mercial vehicles. is collected at the time on reservation but the state apparently the owner plates obtains license or renewal does not enforce its motor vehicle tags, registration precedent condition laws such their circumstances. The Id. A owner of percentage issuance. collected outside the res- driven goes costs, subject fees ervation is toward penalties administrative criminal improper registration, the remainder is allocated to various however. At road one time, tribal incorporated funds. law pay Failure fee is traffic required laws and all misdemeanor. 32-5-2.4. motor vehicles driven

on the reservation to have valid state license plates. In 1994 the tribe enacted its own I. registration system, but has Cheyenne The River Sioux Tribe is a fed- yet implemented it to imposing avoid erally recognized Indian tribe. 1868 the double fees on reservation residents. Treaty, 635, Fort Laramie 15 Stat. estab- September 3, On 1992 the United States lished the Great Sioux Reservation for the brought suit on Cheyenne behalf of the River use and occupancy of Sioux the Nation. members, Sioux Tribe and its seeking a dec- Congress Cheyenne later created the River laration that the lacks Indian Reservation in part 1889 on impose its motor vehicle excise regis- tax and treaty separate land as a reservation for the tration fee on Indians residing on Chey- the Cheyenne River Sioux Tribe. See South Da- enne River reservation.5 It sought also an Bowland, 679, kota v. 508 U.S. 113 S.Ct. injunction against the collection fees 2309, (1993). 124 L.Ed.2d 606 In 1908 Con- taxes, and monetary and damages in the. gress opened significant a portion of the paid amount of taxes between and settlement,, reservation to non-Indian but this present. 24, August 1993, On Cheyenne did not diminish the See reservation. Solem River Sioux permitted Tribe was to intervene Bartlett, 463, 1161, 465 U.S. 104 S.Ct. plaintiff as a pursuant Rule Federal (1984). L.Ed.2d 443 The wholly reservation 24(b). Civil Procedure encompasses Dewey and Ziebach counties In February 1995 the district court6 ruled the State of South Dakota. Its residents summary cross motions for judgment. It members, Indians, include tribal nonmember held that essentially excise tax was and non-Indians. personal property tax and thus could not be The tribe believes that all residing Indians imposed on tribal members on the River Indian Reservation reservation. See Oklahoma Tax Comm’n are immune from state Nation, taxation their 114, mo- Sac and Fox 508 U.S. vehicles, including tor both 1985, the excise tax and 124 L.Ed.2d 30 registration the annual fee. The tribal coun- registration viewed the annual fee consistently cil has maintained that differently, the state concluding that it was. a nondis- authority lacks to collect the excise tax eriminatory validly fee that could be collected registration members,4 fee from tribal tribal residing members on the reserva- there evidence in the that record at least tion who purchase elected to state license paid some plates. tax excise The court district did not extend registration protest. fee under immunity from the excise tax to nonmember treasurer, rmally county and shall as 5. he The suit named as defendants State provided chapter. Revenue, Secretary South Dakota and its as § S.D. Codified Laws Ann. 32-5-5. well two county as counties and the treasurers. 4. Motor owned vehicles tribe itself are Jones, statutorily exempt Honorable B. from the John States United state excise tax and fee, registration Judge plates and license District District of are issued South Dakota. a fee based on actual administrative costs. S.D. fee); Codified (registration Laws Ann. 32-5-42 32~5B-2(1) (excise tax). id. (1945)). “provides doctrine That damages to tribal not award and did Indians applicable trea backdrop against which the entered on Febru- Judgment was members. 172, Id. at statutes must be read.” 1995, ap- cross ties and 23, parties filed ary peals. argue that and the tribe States United specifically authorized Congress has not operates as a tax and fee personal member’s the taxation of a tribal Indi- imposed on reservation be thus cannot juris lacks Dakota thus property, monetary damages They claim also ans. would impose such a tax. This diction to paid. previously for taxes should be awarded operates include tax or fee immunity argues that also The tribe tax on motor vehicles personal property Indians to nonmember be extended should living on the reser by tribal members owned Cheyenne River reservation. residing on the Tax Comm’n v. Sac and vation. Oklahoma court responds that the district 127-28, 113 Nation, 508 U.S. Fox registration fee to correctly determined (1998); 1985, 1992-93, 124 L.Ed.2d Wash valid, monetary damages, and held denied In ington v. Tribes Colville Confederated not immune Indians were that nonmember Reservation, dian appeal argues on cross taxation. (1980); 2069, 2086, 10 Moe 65 L.Ed.2d S.Ct. valid sales and use excise tax is a that the Tribes Salish and Kootenai Confederated tax. Reservation, 463, 480- Flathead 425 U.S. of 81, 1634, 1644-45, 48 L.Ed.2d 96 96 S.Ct. A. (1976) . rule, general a state lacks As a activities, lands, jurisdiction to tax the immunity ap general rule of tax “ “within the property of tribal members plies that occur on the reserva to activities ” reservation,’ there unless boundaries of tion, ownership property, of but “ jurisdiction of or other has a ‘cession been apply considerations” to off-reser “different it.’” permitting statutes federal California Mescalero, 148, 411 U.S. at vation activities. Indians, 480 Band Mission v. Cabazon of go beyond Indians who 93 S.Ct. 1083, 1091 17, 202, 17, 107 n. 215 n. S.Ct. U.S. generally “held reservation boundaries are (1987) (quoting 244 Mescalero 94 L.Ed.2d subject nondiscriminatory to state law other 145, 148, Jones, 411 93

Apache Tribe v. U.S. applicable to all citizens.” Id. wise (1973)). 1267, 1270, 36 L.Ed.2d reasoning suggests 1270. This 93 S.Ct. at words, on-reserva a tribal member’s may impose on tribal a that states are immune from state taxation tion activities nondiscriminatory tax on tax or other sales of express congressional authorization absent purchases. Tunica-Bil off-reservation See Tax McClanahan State Comm’n tax. (5th Louisiana, F.2d oxi Tribe v. Arizona, 164, 171, 1257, Cir.1992). This is be 36 L.Ed.2d parties disagree gen- not authority to tax on-reserva do about cause a state’s immunity preempted by eral rule of tax for tribal members tion is limited or activities a or aside reservations within the boundaries of reservation terms of treaties which set by authority to tax off-reservation of Indian tribes and of the state for the exclusive use Dakota admits defining the limits of transactions. South various federal statutes sales authority impose it to state power. Id.7 The doctrine of Indian that would lack state “‘deeply property taxes on members of the sovereignty reflects the rooted’” reservation, “‘leaving River Tribe on the policy historical Indians free Sioux ” jurisdiction that its members from state and control.’ Id. at and the tribe concedes Olson, pay validly required a sales tax (quoting 93 S.Ct. at 1260 Rice v. could 786, 789, purchases, properly lim- on off-reservation 89 L.Ed. argue analysis case or that it has 7. The in McClanahan relies on the lan- ent in this guage treaty Navajo. property. in a with the South Dakota activities or tax on-reservation analysis should be differ- does not claim that the tax, apply not to all motor vehicle sales in the use or certain non-dis- road ited state state, one of criminatory dispute resulting fees. The here is to those owner- creat- what sort of tax or fee is classification: ship Dakota resident. The tax is South statutes? ed these applies paid not unless the owner for the

issue or transfer South Dakota title. argues the ex Conversely, § Dakota South 32-5B-14. the excise tax does off-reservation tax is a sales tax on cise purchased apply vehicles out state motor The statute purchases of Moreover, vehicles. the tax residents. tax, “in lieu speaks levying an excise itself applies being to motor vehicles that are new- tax, any or use of’ sales value state, ly brought into the but have not re- acquired for “purchased or cently purchased. person moving A been § in- state. 32-5B-1. Unlike the use” applying Dakota and for a state motor tax, imposed sales the excise tax is percentage vehicle title is taxed at the time of sale.8 Com on the retailer or at day of the vehicle on the it enters retail value (re- pare §Ann. 10-45-2 Codified Laws S.D. state, provides unless the owner suffi- tax). tax) (excise with § 32-5B-10 tad sales proof subject cient that the vehicle was to an tax revenue credited Nor is the excise equal greater another state. 32- Compare fund. S.D. Codi general revenue 5B-11. 10-46-48 with § 32-5B-17. Ann. fied Laws Although amount of the tax is based on South Dakota asserts that Tunica-Biloxi price,” is defined to “purchase that term Louisiana, 964 F.2d 1536 (5th Tribe v. Cir. paid the actual consideration include either 1992), supports its that the excise tax is claim of the vehicle.' See S.D. or the actual value tax, a valid sales but the tax at issue 32-5B^(3)-(5), §§ 32- Laws Ann. Codified case was different from the South Dakota 5B-11. tax. Tunica involved a Louisiana tax excise any property on the “sale at retail” of item of operate a sales excise tax does not like apply That tax did not to within the state. tax, in might It resemble a sales some tax. purchased out of state.9 Purchasers items cases, a new or used car is such as when subject Louisiana could also be from outside purchased from a licensed dealer South tax Dakota tax to the sales unlike registered Dakota and there the new own- purchas applied not to out-of-state which is circumstances, however, the tax er. In other the characteristics of the South ers. Since obviously ownership of more relates tax, tax from the Louisiana Dakota differ property as rather than sales the vehicle Tunica. here is not inconsistent with example, the tax does outcome transaction itself. For principle and selects certain factors to attempts much of the The dissent to make too analyze. the fact that the South Dakota excise mention of survey of also has done its own of The dissent not collected the retailer at time is up states in the circuit and concludes in other is but one of the facts that make taxes sale. This they showing similarities to the South that show some circumstances that the excise the total property Dakota excise tax. There is no information personal rather than a is a tax on fax sales attempted types of these states have only applies about whether tax. The tax to certain of Indians,, apply applies the taxes to on-reservation to to vehicles sales in South Dakota. also so, has been. This discussion purchased by if what the result South Dakota residents vehicles on the record other state taxes is not based to certain not of of the state and vehicles outside court, no recently brought parties and the have had recently purchased, before the but into Furthermore, possible application to address the relevance occasion state. title, it arises speculation about oth- of the dissent's vehicle sale. rather than on irrelevance its invitation for additional er state laws and Supreme prece- teaching Court Under the litigation. characteristics of the dent it is the nature and imposed separate tax” on a "use particular the tax is 9. Louisiana also tax that determines whether purchased applied of vehicles out the fair market value permissible, not the nature the label to 127-28, Fox, brought That tax was not and later into it. U.S. at S.Ct. at it. Sac and Tunica, 1992-93; Colville, indicated that its but the court at 100 S.Ct. at at issue in ques- validity might presented requires the attrib- different This examination of all ignores particular tion. 964 F.2d at 1540-41. tax. The dissent utes of the B. suggest that our deci- wrong to simply It is split among the circuits.10 create sion will Cheyenne River States and the United similarly argue that the state Sioux Tribe excise tax resembles Dakota The South regis- impose to its annual lacks preempt taxes to be property found personal it Indians because tration fee on reservation Colville, Moe, and Fox. Col- and Sac ed in operates to tax on-reservátion activities. Washington “excise tax” ville involved authority responds that it has South Dakota annually percentage at a assessed which was it is a nondiscrimi- impose the fee because “privilege” for the value motor vehicle’s of a natory for off-reservation activities. The fee vehicle in the state. using a motor again issue is one of classification. at 2085-86. The Su 100 S.Ct. at U.S. the tax was similar held that preme Court States and the tribe claim The United personal property tax on name to all but actually tax on the operates as a that the fee had been invalidated as motor vehicles ownership is therefore vehicles Moe, 425 U.S. at members applied to tribal Colville, Fox, preempted under Sac and Colville, 447 at 1644-45. the Court held Moe. Sac and Fox Wash Similarly, at 2086. at S.Ct. ington’s registration fee to be invalid annual Fox, Supreme Court held that Sac and Indians, applied to reservation but excise tax and its motor vehicle Oklahoma’s the value of a vehicle and fee was based on operated as registration fee yearly vehicle personal property Id. at thus was like a tax. taxes and thus could personal property 127-28, 113 at 1992-93. It was found imposed on tribal from the taxes held to be no different reservation. 508 U.S. preempted in Moe and South Da Colville. tax is not identi 1992-93. The South Dakota kota’s fee does not resemble a Colville, Moe, and Sac and cal the taxes in tax, property It is not based on however. Fox, important similarities. Like but it has vehicle, a flat the value of the fee them, applied tax is resulting weight, any proceeds based owners, simply rather than motor vehicle highway purposes. from it are dedicated to percentage on a purchasers, and is based Fox, sug- The United States and the tribe also motor vehicle. Sac and the value of the 119, 1988-89; gest the use that the fee is tax on 113 at Col 508 U.S. at S.Ct. state ville, 163, They might roads. concede that a state at at 2086 S.Ct. Moe). jurisdiction impose to a tax on reservation It tax is (discussing is true this roads, Indians for the use of applied annually, but neither was the tax off-reservation not argue that the here is not “tailored to fee found invalid in Sac and Fox.11 Sac and Fox, 126, actual amount of use” at 1992. off-reservation as 508 U.S. at Colville, required 447 U.S. at essentially tax The South excise S.Ct. at 2086-87. ownership operates as a tax on the of a Colville, rejected Supreme Court vehicle, as a tax off- rather than on Washington’s claim that its ex- the State reservation sales transactions. The owner- actually cise tax was a tax on the use ship of a is the sort of on-reservation It held that vehicle within the state. the tax activity permitted that a not to tax state is effectively property personal functioned as a express Congressional without authorization. tax, previously had been held invalid which Fox, See Sac and applied to tribal members Moe: not at 1992-93. The district court did err jurisdiction ruling lacks to not think Moe and the state We do McClanaban easily impose tax on tribal members can be this circumvented. the excise While levy residing Washington may on reservation. well be free to tax Contrary implication in its It should also be noted that the Fifth Circuit to the dissent's Colville, discussion of Moe and Sac and Fox did not have the benefit of the recent Su- most authority impose that a state without to indicates area, preme guidance in this Court because Tuni- authority impose an tax no to annual has more ca was decided before Sac and Fox. one-time tax. power on of Indi- the use outside reservation The state’s to tax nonmember Indi- vehicles, may directly action, an-owned it not under that ans is not raised this accomplish pro- what Moe held rubric was because no nonmember parties Indians are Washington hibited. Had tailored its to this case. The United States initiated use, to the amount of Cheyenne actual off-reservation action “on behalf of the River something members,” or otherwise varied more than Sioux Tribe and. its and the tribe nomenclature, might mere be a differ- protect intervened “to sovereign right its ent case. raise revenue goyern,- its state finance ” ment.... suggestion Id. There is no in the South purpose Dakota statute that the fee is if Even had properly pre- issue been to tax the use of the state roads. if sented, Even it arguments made not are convinc- were, significantly the tax is different from a ing. above, As immunity.of discussed the tax property expressed tax so that the concerns premised reservation pre- Indians is in Colville are avoided. emption by treaty of state laws and statute and informed govern- self notions tribal registration nondiscriminatory fee is a ment. These underlying immunity reasons registration fee of a vehicle in the do not have the same applied force as plates. and the issuance of state license Indians who are govern- not Moe, See 425 U.S. at at 1639 S.Ct. Colville, ing tribe.13 See 447 U.S. at (Montana required fee (retail 2084-85 sales tax immuni- issuance of im- plates state license could be ty for on-reservation sales does not extend to Indians).12 posed on reservation not reservation). nonmember residing Indians collected from owners of motor vehicles that state, registered are not with the argues The tribe that the interest in tribal exclusively those driven within the bound- government self extends to nonmember Indi- aries of the reservation. The concerns relat- Congress ans because defined has tribal self ed to state taxation of on-reservation activi- government to all Although include Indians. present ties are not here because the fee is Congress, powers has defined tribal of self activity. based on-reservation government to include criminal Accordingly, the district court did not err Indians,” over “all 25 U.S.C. there is ruling purchase that Indians who elect to question no that South Dakota retains civil plates tags South Dakota license or renewal regulatory jurisdiction over nónmember Indi- required pay can be registra- the annual way ans in the same that it does over non- tion fee. Indians on the reservation. See id. The tribe also asserts that the terms

C. treaty creating of the 1868 the Great Sioux argues River Sioux Tribe Reservation establishes that nonmember In immunity that from the excise tax should not govern dians have an interest in tribal self be limited to tribal members points but should ex- ment. It language setting aside tend residing to nonmember Indians on the land for the of the Sioux Nation use and.“for responds reservation. South Dakota friendly that the such other tribes or individual Indi interests of nonmember Indians have not they may ans as from time to willing time be raised, properly argues (15 been ... amongst that non- to admit them.” Art. 2. 650). subject member Indians are to state taxation Stat. Nonmember Indians they because same status as non- reservation are not in fact involved in tribal Indian’s. government, Cheyenne self however. The challenged argues Montana’s fee was not 13. The tribe that state of non- taxation Moe, preempted by comprehensive analysis the tribe in members is but the Court’s country system, federal Indian road but the suggests stat- regis- basis differentiate between regulations, implementing system utes and that imposed tration fee that could be on reservation Congressional do not demonstrate a exempt intent to personal property Indians and a tax that could Indians state taxation. nonmember not. Colville, See 447 U.S. at 100 S.Ct. at 2085.

1560 Tobacco, 18, 39, bylaws Beverages and 496 U.S. 110 Tribe’s constitution and River Sioux (1990) 2238, 2251-52, 110 17 to vote in S.Ct. L.Ed.2d nonmember Indians not allow do (citing County the reserva- Ward v. Love Board or hold office on tribal elections Comm’rs, 17, 24, 419, 422, 253 U.S. tion. (1920)). words, 64 L.Ed. 751 argues at a that minimum The tribe also holding applied in such cases would be retro- residing on its reservation Indian Sioux actively. immune from taxation because all should be The part of the Sioux Nation. Sioux are damage The state claims that a award divided into Reservation was Great Sioux by the Eleventh Amendment. is barred separate for various Sioux reservations Noatak, Village cites Native Blatchford tribes, Cheyenne including the River Sioux. 2578,115 S.Ct. L.Ed.2d Although Sioux tribes share the different (1991), Supreme that which the Court held ties, separate they exist as entities common damage bar the Eleventh Amendment would governing their own constitutions with brought by against claims Indian tribes residing on Nonmember Sioux structures. does not state.15 Eleventh Amendment Cheyenne River reservation are not al- brought by bar suits the United States on office, hold and are not lowed to vote or members, behalf of Indian tribes or their actually governing constituents of the tribe. Minnesota, however. United States 181, 195, 298, 301, U.S. 70 L.Ed. 539 S.Ct. D. (1926); United States v. Board Comm’rs argue and the tribe that 128, 133, The United States Osage County, 251 U.S. S.Ct. monetary damages should awarded 100, 101-02, 64 L.Ed. 184 compensate past payments of the excise recognized Court that tribal Blatchford members.14 The district taxes tribal brought claims would not have been barred if rejected damages claim for because court States, by the United but held that tribal previous addressing cases motor vehicle tax- access to federal court was not as broad. applied retroactively. ation had not been Blatchford, 501 alternative ratio- South Dakota offers several 2583-84. The Eleventh Amendment does monetary denying nales relief. apply not River case be brought cause the United States the action. correctly The district court noted that Moe, Colville, opinions argues damages Sac The state also should relief, grant payment did not but those be denied because of the taxes was Fox retroactive monetary required by did not claims for cases involve tribal law and thus was damages. they Rather were claims for de coerced the state. A in- 1987 resolution claratory injunctive corporated provisions relief. When a state into tribal law certain Code, is declared to be invalid either “because Dakota Traffic beyond power ... it im requirement State’s [is] vehicles bear valid state pose” taxpayers plates. or “because were abso license Neither that resolution nor a tax,” lutely clarifying passed immune from the the State must resolution in 1990 ad- “ deprivation by ‘undo’ payment the unlawful refund dressed the of the state excise tax ing previously paid the tax suggested under duress.” that its from tribal collection Corp. McKesson v. Division Alcoholic members was valid. The tribal council has They actually damages payments by implicate 14. seek for do not the Eleventh Amendment when all reservation Indians of the excise tax and brought against both state officers rather than the fee, registration the but the claims of nonmem- 3, state itself. 501 U.S. at 785 n. S.Ct. at 111 registration bers and those claims based on the (Moe Act, Injunction 2584 n. 3. held that the Tax already fee are foreclosed for the reasons dis- 1341, deprive 28 U.S.C. did not federal courts cussed. jurisdiction injunction brought of over tax claims tribes, by Congress separate- Indian had because distinguished its facts from those Blatchford provided ly jurisdiction over tribal claims in where was Moe there federal over 28 U.S.C. 1362. at 425 U.S. 96 S.Ct. injunction brought by a state tax action an Indi- 1640-42). at suggested an tribe. that such actions Blatchford

1561 by acts near the of Congressional turn ished imposition the consistently protested members, century, consists of Todd Coun has the now and and on its taxes motor vehicle Tribe system. ty, See Rosebud registration South Dakota. Sioux own adopted its now 584, 615, 1361, Kneip, 97 S.Ct. U.S. 430 argument by the state additional An L.Ed,2d 1377, mem 51 660 Tribal voluntarily paid taxes were the excise is that res living allotted lands outside the bers as a back cannot be recovered and thus coun to be Indian ervation are considered that are equity. Taxes law or matter of 48, at n. try. n. 97 S.Ct. 1377 Id. at 615 of law of a mistake voluntarily paid because 3, 1994, the Rosebud Sioux On October back, Security Na see recovered cannot be court brought Tribe suit federal district Young, F.2d 55 Bank Watertown tional Secretary of Reve- against the South denied, 551, (8th 286 616, Cir.), cert. U.S. injunctive relief declaratory and nue for (1932), 502, taxes L.Ed. 1287 52 S.Ct. imposition of state motor vehicle against the are recovera duress or coercion paid under registration fees on taxes Indians excise and limit ble, procedures do not refund and state was residing on reservation. case the 31, McKesson, at recovery. such judge assigned to the same before whom 2247; Board Comm’rs pending. The Cheyenne action was River States, 308 U.S. County v. United Jackson dismiss, and the Secretary a motion to filed 288, 285, 343, 350, 84 L.Ed. injunction. preliminary moved tribe 128, (1939) County, 251 (citing Osage U.S. Ward, 17, 40 S.Ct. 23, 1995, day that February the same On 419). Cheyenne judgment in the River entered was case, hearing on the court held a the district related to nature The record 23, May case. On motions the Rosebud Chey damage claims in the amount of denying opinion an and order 1995 it issued developed. fully has not been River case enne dismiss, partially motion to Secretary’s describing infor evidence There anecdotal denying the tribe’s granting partially by tribal protests mal several injunction, preliminary request for a claiming payment, that the time judge. The transferring case to another penalties, criminal to avoid paid was short, court was and the opinion and order procedure is state refund suggesting that the findings or discuss not make detailed did reached issues were not inadequate. These disposition. basis for its of the mistaken court because the district damages necessarily recognized barred. that opinion were view court’s The district the ex be reversed to in the judgment should those raised similar to the issues were any possibility of dam granted prelimi- that it eliminated It Cheyenne tent River case. should district court of the ages. injunction against On remand the the collection nary damages whether should fee from tribal determine motor vehicle so, and, if in what amount. the undimin- awarded drive within members who reservation, but portion of the Rosebud

ished re- motion in all other denied tribe’s II. enjoin the specifically spects. did federal- is also a The Rosebud Sioux Tribe mem- excise tax tribal of the collection tribe, and the initial ly recognized Indian reservation, and the tribe bers Reservation history the Rosebud Indian par- interlocutory appeal from that filed reserva- River parallels that of motion.16 tial denial its Initially Reser- part of the Great Sioux tion. argues reason- tribe The Rosebud Fort Laramie Trea- vation established apply Cheyenne River case should ing in the was reservation ty, 15 the Rosebud Stat. 1889; residing on the Rosebud reserva- 25 to Indians March apart by the Act of set court erred the district and that dimin- tion reservation was 892. The Stat. complaint or tary yet an answer to the has file argued appeal, was' the time the case on 16. At pro- any the had defenses. indication that case to assert there was no Secre- district court. ceeded further in injunction against part in and an the reversed remanded consider- failing to enter argues remaining damages taxes. The tribe ation of the issues. The collection of excise Chey- injunctive is inconsistent with the granting partial that the order order relief in the because it did not en- judgment enne River Rosebud case is affirmed.

join continuing to collect ex- state from the members of Rosebud taxes from cise ROSS, Judge, concurring part Circuit living the reservation. The Secre-

tribe on dissenting part. court did not tary responds that the district majority partially opinion it I concur in the to the when denied its discretion abuse preliminary injunction that it of a extent concludes the State South the motion for underlying authority impose action are Dakota has the an annual that the merits of appeal. motor vehicle fee on Native not an issue on Americans who live within the boundaries of interlocutory ap on this The issue S.D. Codified Laws Ann. reservation. peal the district court abused its is whether dissent, however, I respect 32-5-5. with committed an error of law.17 discretion or majority’s conclusion that the State Indus., Sports Inc. v. Dakota See authority impose lacks the the motor vehi- (8th Cir.1993). wear, Inc., F.2d cle excise tax set forth in Laws S.D. Codified Although the order would be easier to review my opinion, §Ann. In 32-5B-1. the excise findings if it contained more detailed indistinguishable tax is from a sales tax lev- reasoning, appears ruling it that the earlier vehicles, on ied the sale of motor and as such Cheyenne major River case was a is a valid tax on a non-reservation thinking. factor in the court’s The same majori- transaction. I also dissent judge declaratory judgment in had entered a ty’s determination that State before, holding that case three months previously Dakota must refund the taxes impose could not its South Dakota paid. living vehicle excise tax on tribal members ease, opinion In the reservation. its The South Dakota motor vehicle excise tax injunctive the district court denied relief purchase price is a one-time based “no reason since there was to believe the vehicle, of a motor and is collected comply require will not with the defendants county application when is made for a South Implicit ments of this decision.” in its Rose Dakota motor vehicle title. S.D. Codified ruling assumption bud is a similar that the Laws Ann. 32-5B-10. It is clear that all complying requirements state was with the the sales occur outside the reservation. Al- River decision and had though majority attempts distinguish stopped collecting excise taxes from tribal the excise tax from a sales tax based on the Injunctive on reservations. fact that the excise tax is collected at the unnecessary relief is no where there is show registration by government time of employ- ing harm, irreparable nothing in the ee, opposed to at the time of sale suggests record that South Dakota continues seller, the excise tax and its method of collec- to collect the excise tax from tribal members virtually tion are identical to the taxes im- residing on Indian reservations. The tribe upon posed disposition of motor vehicles grant only partial has not shown that the by every other state within our circuit. In clearly relief was an abuse of discretion or eases, operate all the taxes in a similar fash- erroneous. ion, yet given are various labels. While each levy the seven states within our circuit

III. taxes, only similar I will discuss those five conclusion, judgment states, Dakota, entered in the that also Cheyenne River part case is affirmed in reservation within their borders.18 entry judg- Although The Rosebud tribe also seeks Arkansas and Missouri do not have issue, borders, ment in its favor on the excise tax but the Indian reservations within their I note interlocutory appeal issues before us on impose that both of these states and collect sales injunction. relate to the disposition taxes on the of motor vehicles in a vehicles” was on motor a “sales tax inated imposes a one-time of The State Nebraska The tax.” vehicle excise a “motor of labeled price purchase tax, the based on “sales” only as- the label modified amendment § 77- Neb.Rev.Stat. vehicle. motor the tax, taxing leaving the scheme tax, to the the cribed 2703(l)(i). a “sales” Although called unchanged. otherwise time at the by the retailer collected tax is not with transaction, the case as is sales of the distinguish the attempts to majority The 77-2703(l)(a). § Id. in general. retail sales in Tunica- to be valid taxing found scheme tax is collect- Instead, sales vehicle the motor (5th Louisiana, F.2d 1536 Tribe v. Biloxi the vehicle at the tíme county by a official ed Cir.1992), “Tunica significant as noting registered. is at retail’ tax oh the ‘sale a Louisiana involved imposes a one- North Dakota the state.” property of within The State item of of Ibid, price purchase the on of the label Regardless tax based time “excise” 1557-58. § 57- legislature, N.D.Cent.Code by Louisiana the motor vehicle. tax the given of by the tax is collected Again, however, taxing the scheme is virtu- 40.3-02. Louisiana’s transportation of department vehicle every of the other motor ally director identical § Id. 57- registration. Relying time of vehicle our taxing at the scheme within circuit. substance, of the imposition of the rather exclusively 40.3-12. Because on form than tax, of motor the sale Louisi- fact that majority motor vehicle excise overlooks the the collected, North exempted from is specifically is vehicles vehicles tax motor ana sales 57-39.2-04(13). sale, §Id. of the tax. at the time by Dakota’s sales the seller not agent of the as by ‘Vehicle commissioner the tax one-time calls its Iowa The State of appli- at the of of revenue time collector the tax, a “use” vehicles of motor upon the sale or vehicle of title for a cation certificate 423.7, instate § the even on Ann. Iowa Code La.Rev.Stat.Ann. license.” col- tax is vehicles. purchases of motor 47:303B(1). § of the time county treasurer at by the lected of § Because 423.7. Id. registration. vehicle distinguish the attempt majority’s tax, of the sale use of this imposition tax is Dakota tax the South Louisiana from exempted from specifically is motor vehicles majority’s noted unavailing. The simply 422.45(4). §Id. Iowa’s sales tax. two is taxes distinction between could outside Louisiana “[plurehasers from imposes a of Minnesota Finally, the State unlike the subject to the sales tax also be on motor tax called a “sales tax one-time to out- applied not which is Dakota tax § The South 297B.02. Minn.Stat.Ann. vehicles.” Ibid, This is at 1557. purchasers.” of-state of the price pin-chase tax is based Both the South basis. a distinction without by the collected is motor vehicle and are taxes identical the Louisiana Dakota and time at the by the seller registrar, vehicle resi- between differentiates in that neither with the § As Id. 297B.11. sale. impo- in the purchasers or non-resident reciproci- dent circuit, has Minnesota in our states Instead, respective taxes. tax, their sition of of a use in the form ty with other states purchasers non-resident both resident purchases. part, to out-of-state applicable, is time at the pay the must tax the tax Again, because § 297B.08. Id. Louisi- or registered either 297B.02, sale of motor § imposed under that the can ana, purchaser show unless exempted from specifically is vehicles This paid to another state. has been tax § 297A. Id. under levied sales taxes general typical of a component use tax simply the interesting point particularly A § 297B.13. way in no detracts tax scheme sales motor vehicle regarding Minnesota’s to note But for a sales tax. its characterization now denom- tax, what is prior to is that 26-52-510(a)(l)(A). Simi- registration.” Id. states. of their sister to that identical manner The State Arkansas imposes a "sales” receipts “gross Missouri imposes larly, the State of Ark.Code is not The tax of motor vehicles. vehicle. upon on the sale a motor tax” the sale of “paid depart- tax is This Ann. 26-52-510. seller but collected Department of Director consumer Mo. registration. the time of revenue ment being col- instead and Administration Finance lected 144.069, §§ 144.070. Rev.Stat. seller, ... at the time by the dealer 1564 taxes,

the label attributed the Tunica is ta motor vehicle excise tax is meant to inbe indistinguishable from the case now before tax, lieu of augment the state’s sales not to it. us. view, my In majority upon the relies dis- I disagree majority also with the that the tinctions without concluding substance in per- South Dakota excise tax resembles the equivalent the excise tax is not the of a property sonal taxes found to be invalid in First, majority sales the signifi- tax. finds Oklahoma v. Tax Comm’n Sac and Na- Fox cant fact that by the the tax is not collected tion, 114, 1985, 113 S.Ct. sale, the automobile dealer at the time of the (1993); Washington L.Ed.2d 30 but Confeder- instead is by county collected the trea- Reservation, ated Tribes Colville Indian surer at application the time is made for a 134, 2069, 447 U.S. 100 S.Ct. 65 L.Ed.2d 10 South previ- Dakota motor title. As vehicle (1980); and v.Moe Salish and Confederated ously stated, however, procedure in tax Tribes, 463, 1634, Kootenai 425 U.S. procedure collection is the by same used all 48 L.Ed.2d both Colville and circuit, of the states within our Moe, imposition the court invalidated the those that call the tax tax. “sales” taxes annually at a percentage assessed Second, majority the makes much of the market value of Rejecting the vehicles. the fact that “the tax apply does not to all motor Washington’s attempt State of to exalt form state, in sales the but to those substance, over the Court noted that “the resulting ownership by a South Dakota only difference between the taxes [in Col- resident,” “[c]onversely, and the excise tax ville] and the struck one down is that Moe does apply purchased to vehicles out of state [the former] are called excise taxes and im- Ibid, by residents.” at 1557. posed for privilege using the vehicle in the describes, majority however, What the is State, the while the Montana tax was labeled simply complementary the use tax element of personal Colville, property tax.” See, a retail sales tax e.g., scheme. La.Rev. 163, at important S.Ct. at 2086. The 47:303A(3); § Stat.Ann. Minn.Stat.Ann. distinction between the taxes in Colville and 297A.14(1), (2), §§ 297B.08; Neb.Rev.Stat. tax, Moe and the South Dakota excise is that 77-2703(2). The existence of a tax use the taxes in and Moe Colville were annual within the taxing state’s scheme does not contingent upon taxes the continued owner- nullify, alter, in any way the nature of its ship contrast, of a motor vehicle. In sharp sales tax. the tax at issue here is a trig- one-time tax gered upon disposition of a South.Dakota’s excise equivalent the motor tax is the vehicle. Colville simply of a tax Moe are not sales on motor controlling vehicles. The fact present case. applied the tax is only to motor vehicles general and not the personal sale of property Sac is distinguishable Fox also does not alter the substance of any the tax in the case now before Supreme us. The Court way. My concern with holding adopted significant noted as throughout several times majority today far-reaching its discussion that the excise tax at issue in ramifications this decision is sure to have on Sac and paid Fox was “in addition to the taxing schemes of other states within our tax,”19 state sales 126, 127, 508 U.S. at circuit, conceivably circuits as at Accordingly, well. Each of the rejected remaining Court four states argument the state’s that the circuit, within our excise tax which also resembled a sales tax have Indian on transac- boundaries, tions reservations within their occurring impose outside Indian country. Id. virtually vehicle taxes 1992. Just opposite identical to that here, is true struck where down our specifi- today. South Dakota law court As with cally Dakota, states that the excise tax remaining “shall be in four states im- lieu of ... pose tax; levied sales of such one-time purchase based vehicles.” S.D. price Codified Laws vehicle; Ann. 32- of the motor imposed in lieu of Fox, 5B-1. Unlike Sac general South Dako- tax; retail sales collected not 19. Oklahoma’s "sales" tax levied vehi- challenged on motor cles was not in Sac and Fox. sale, by a time of at the the retañer America, Appellee, registration; UNITED STATES

county at the time official provisions. use tax complementary now call their one-time of the four states Two STANDS, Phillip Henry also known as tax, although in all identical tax a “sales” Henry Phillip Atkinson, also known respects to the “use” or “excise” taxes Phillip Henry Creek, Appellant. as question is wheth- of their sister states. America, Appellee, UNITED STATES in nomenclature will be this difference er scrutiny? court’s sufficient to withstand our Waylon DURAN, Appellant. Eric recognize the be-

By failing to similarities America, Appellee, taxing UNITED Dakota’s STATES tween Louisiana schemes, majority split now creates regard validity among circuits with DURAN, Miguel Appellant. J. of motor taxing the off-reservation sales 96-1438, 96-1439 and 96-1494. Nos. Further, by failing recognize vehicles. Appeals, United States Court collecting motor vehicle method of distinct Eighth Circuit. taxes, opposed to other retañ sales sales possi- taxes, every circuit and state our Submitted Oct. 1996. country, majority across this bly the of states Decided Jan. today step a blan- our court takes toward Suggestion Rehearing Rehearing and taxes on the off-res- ket invalidation of sales En Banc Denied No. 96-1439 of motor vehicles. This purchases ervation 7, 1997. March upon Supreme Court’s clearly intrudes Suggestion Rehearing Rehearing and beyond going res- affirmation that “Indians En Banc Denied Nos. generally been held boundaries have ervation 96-1494 March non-discriminatory law oth- subject to State,” applicable to all citizens of the erwise Mescalero

including its state tax laws. Jones, 145, 148-49,

Apache Tribe v. 1267, 1270, L.Ed.2d 114 'my opinion it is the South

Because as a valid sales

Dakota excise tax functions transactions, I would

tax of off-reservation §Ann. 32-5B-1.

uphold Laws S.D. Codified respectfully

Accordingly, I dissent from it con-

majority opinion to the extent otherwise. I note that the other

cludes may circuit wish to seek

states within our amicus the event

leave to file briefs grant- rehearing requested

petition for in this case.

ed

Case Details

Case Name: United States Ex Rel. Cheyenne River Sioux Tribe v. South Dakota

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jan 17, 1997

Citation: 105 F.3d 1552

Docket Number: 95-2529, 95-2535, 95-2720 and 95-2688

Court Abbreviation: 8th Cir.