Tulalip Tribes et al v. Smith et al

MOTION for Summary Judgment

W.D. Wash.September 22, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The Honorable BARBARA J. ROTHSTEIN UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE THE TULALIP TRIBES and THE I NO. 2:15-cv-00940-BJR CONSOLIDATED BOROUGH OF QUIL CEDA VILLAGE, DEFENDANTS' MOTION FOR Plaintiffs, SUMMARY JUDGMENT and NOTE ON MOTION CALENDAR: THE UNITED STATES OF AMERICA, October 14, 2016 Plaintiff-Intervenor, ORAL ARGUMENT REQUESTED THE STATE OF WASHINGTON, Washington State Governor JAY INSLEE, Washington State Department of Revenue Director VIKKI SMITH, SNOHOMISH COUNTY, Snohomish County Treasurer KIRKE SIEVERS, and Snohomish County Assessor LINDA HJELLE, Defendants. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-00940-BJR ATTORNEY GENERAL OF WASHINGTON Revenue and Finance Division 7141 Cleanwater Lane SW PO Box 40123 Olympia, WA 98504-0123 (360)753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 1 of 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 TABLE OF CONTENTS I. INTRODUCTION ............................................................................................................. 2 II. STATEMENT OF FACTS ............................................................................................... 3 A. Factual Background ................................................................................................... 3 B. The Taxes at Issue ...................................................................................................... 5 C. Plaintiffs' Claims ....................................................................................................... 7 III. STATEMENT OF ISSUES ............................................................................................... 7 IV. ARGUMENT .................................................................................................................... 8 A. The Indian Commerce Clause Is Not A Bar to State Or Local Taxation of Transactions Between Non-Indians ........................................................................... 8 1. Congress has not enacted any law precluding state or local taxation of transactions between non-Indians within tribal reservations ............................. 9 2. Plaintiffs' dormant Indian Commerce Clause theory must be rejected as contrary to modern Supreme Court jurisprudence ........................................... 10 B. Congress Has Not Preempted The Taxes at Issue in This Case .............................. 13 1. Federal statutes addressing economic development on tribal lands do not preempt state and local taxation of such activities ........................................... 14 2. Federal Indian Trader statutes regulate trade with Indians and do not preempt the taxes at issue ................................................................................. 17 3. Federal statutes related to reservation lands do not preempt taxation related to economic activities on those lands ................................................... 18 C. The Bracker Preemption Analysis And Particularized Inquiry Do Not Apply....... 21 1. In the 1980 term, the Supreme Court applied preemption analysis in Colville and a "particularized inquiry" in Bracker to address states taxes on transactions between tribal entities and non-members ................................ 22 2. Cotton Petroleum narrowed the Bracker inquiry ............................................. 25 3. Blaze rejected application of Bracker for on-reservation transactions not involving tribes or tribal members, like those at issue here ............................. 27 4. The Ninth Circuit applied Bracker to transactions between non-Indians prior to clarification of the law in Blaze and Wagnon ...................................... 30 DEFENDANTS' MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-00940-BJR 1 ATTORNEY GENERAL OF WASHINGTON Revenue and Finance Division 7141 Cleamvater Lane SW PO Box 40123 Olympia, WA 98504-0123 (360)753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 2 of 41 1 5. Because no statute preempts the taxes at issue and Bracker does not apply, the Court should dismiss Plaintiffs' preemption claims ........................ 31 2 D. Taxes Imposed on Non-Indian Shoppers and Non-Indian Businesses on the 3 Tulalip Reservation Do Not Infringe Upon Tribal Sovereignty .............................. 32 4 1. Tulalip's self-imposed limitation on collecting taxes does not form the basis for a sovereignty claim ............................................................................ 33 5 2. The Court should reject Tulalip's sovereignty argument based on the 6 economic effects of state and local taxes ......................................................... 34 7 V. CONCLUSION ...............................................................................................................39 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 11 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleanwater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360)753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 3 of 41 1 I. INTRODUCTION 2 This case is not about State and County taxation of Indian tribes, Indian businesses, or 3 individual Indians. This case is not about the taxation of businesses the Tulalip Tribes actually 4 5 own, such as the casino, resort, or amphitheater. And it is not about the taxation of Tulalip 6 members, who pay no state or local taxes while shopping at Quil Ceda Village (the Village). 7 Instead, Plaintiffs seek to preclude the State and Snohomish County from taxing transactions 8 between non-Indians, income from non-Indian business activities, and personal property used 9 by those non-Indian businesses. Most significantly, Plaintiffs challenge the State and County's 10 ability to tax transactions between non-Indian customers and non-Indian businesses—such as 11 Walmart and Cabela's—that occur on tribal land. Neither the Supreme Court nor the Ninth 12 13 Circuit has ever invalidated state or local taxes imposed in circumstances like these, and this 14 Court should not do so either. 15 There are good reasons why courts have refused to invalidate state and local taxes like 16 those here. The State and County rely on these taxes to provide the non-Indians who are 17 subject to them a wide variety of essential government services, from K-12 schools to 18 unemployment insurance to social and health services. Tulalip is not required to and does not 19 provide these non-Indian customers with government services that are remotely equivalent. 20 21 The State and County do not lose their authority to levy taxes to fund essential services 22 because Tulalip moves transactions between non-Indian customers and non-Indian businesses 23 onto tribal land: "State sovereignty does not end at a reservation's border." Nevada v. Hicks, 24 533 U.S. 353, 361 (2001). 25 26 DEFENDANTS' MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-00940-BJR 2 ATTORNEY GENERAL OF WASHINGTON Revenue and Finance Division 7141 Cleanwater Lane SW PO Box 40123 Olympia, WA 98504-0123 (360) 753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 4 of 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Plaintiffs' claims are thus unprecedented and unfair. They ask this Court to go well beyond any prior decision and give Tulalip sole authority to tax non-Indians in the Village. That is not and cannot be the law. Defendants respectfully ask this Court to grant this motion for summary judgment. II. STATEMENT OF FACTS This case involves the imposition of state and local retail sales and use taxes, business and occupation tax, and personal property tax on non-Indian businesses selling to non-Indian customers within the boundaries of the Village. A. Factual Background The Village is a tribal municipality located along Interstate 5, approximately 34 miles north of Seattle. See Dkt. 1, ¶T 8, 63; Declaration of Joshua Weissman in Support of Defendants' Motion for Summary Judgment (Weissman Decl.), Ex. E, 75 (Seattle Premium Outlets brochure). The Village land is owned by the United States in trust for the Tulalip Tribes, within the boundaries of the Tulalip Reservation in Snohomish County. Dkt. 1, IT 8, 10, 21. The Village has been developed as a retail center and entertainment complex. Dkt. 1, 2. There is no housing component to the Village, and no one resides there. Weissman Decl., Ex. A, 7 (County Interrogatory No. 1 and Tulalip's Answer). Located within the Village is the Seattle Premium Outlets, a premium brand outlet mall with over 130 designer stores,I owned by a non-Indian Delaware corporation, Simon Property Group (Simon). See Weissman Decl., Ex. D, 67 (Simon 10-K). Simon, "[t]he world's largest t http://www.premiumoutlets.com/outlet/seattle/about (last visited September 22, 2016). 3 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleanwater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360)753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 5 of 41 publicly traded real estate company,"2 owns and operates 108 malls and 71 premium outlets throughout the world. Weissman Decl., Ex. D, 43 (Simon 10-K). While the Village land is held in trust by the United States for the Tribes, Simon owns the buildings that house the Seattle Premium Outlets. See id. at 67. Simon in turn subleases retail stores to companies including Coach, Cole Haan, Kate Spade, Nike, and North Face. Dkt. 1, ¶ 35; Weissman Decl., Ex. E, 75. Annual gross revenues for sales within the Seattle Premium Outlets are believed to be several hundred million dollars. Dkt. 1, ¶ 55. The Village also includes other non-Indian businesses, such as Walmart, Cabela's, and Home Depot, restaurants like Starbucks, McDonalds, The Olive Garden, and Panera Bread, bank branches, and other retail stores. Dkt. 1, ¶¶ 32, 38.3 The overwhelming majority of sales in the Village are to non-tribal members. See Dkt. 1, ¶ 55. When Tulalip members make purchases at the Village, they pay no tax.4 Near the Seattle Premium Outlets are the Tulalip Resort and Casino and several other tribally-owned businesses, the taxation of which is not at issue in this case.' Dkt. 1, IT 32-40. Under federal law, Tulalip did not need Bureau of Indian Affairs (BIA) approval to enter into the long-term leases with the non-Indian lessees, including Simon's predecessor and other non-Indian businesses in the Village. Dkt. 1, IT 17, 32, 62; 25 U.S.C. § 415(b). The leases between Tulalip and the non-Indian lessees generally provided for annual rent, adjusted 2 http://www.simon.com/, follow "Investors" link (last visited September 22, 2016). 3 http://www.quilcedavillage.com/Fun/Dining (last visited September 22, 2016) 4 See Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S. 450, 453 (1995) (a State's excise tax does not apply if its legal incidence falls on a tribal member for sales within Indian country absent Congressional instruction otherwise). 5 These businesses include a bingo hall, an amphitheater, a pharmacy, and Tulalip Data Services, a department of the Tulalip Tribal government providing information technology services to Tulalip and to private individuals and businesses in the community. Dkt. 1, ¶¶ 34, 36, 40; see also https://www.tulaliptribes- nsn.gov/Home/Government/Departments/TulalipDataServices.aspx (last visited September 22, 2016). 4 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleamvater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360)753-5528 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mel Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 6 of 41 1 periodically for inflation or other factors, and other fees and charges. Weissman Decl., ¶ 10. In 2 addition, in some of the leases Tulalip agreed to forego collecting tribally-imposed taxes to the 3 extent that such tribal taxes, when added to state and local taxes, exceed the rate of neighboring 4 jurisdictions. Dkt. 1, T 87. Tulalip also included in the Village Charter a provision that any tax 5 6 burden in the Village would not exceed that imposed within Snohomish County. Id., ¶ 21. 7 B. The Taxes at Issue 8 The primary tax at issue in this case is the retail sales tax. Washington's retail sales tax 9 operates like sales taxes in most other states and applies to each "retail sale" of tangible 10 personal property in Washington. Wash. Rev. Code § 82.08.020. The retail sales tax is paid by 11 the buyer to the seller, who collects and remits it to the State. Wash. Rev. Code § 82.08.050, 12 13 82.14.030. Sellers must keep records reflecting the amount of their sales, including whether 14 any sales were exempt. Sales to enrolled Tulalip members in the Village are exempt. 15 The rate of Washington retail sales tax throughout the State, including sales to non- 16 Indians in the Village, is 6.5%. Wash. Rev. Code § 82.08.020. Counties and cities in 17 Washington may charge an additional sales tax. Wash. Rev. Code § 82.14.030. The current 18 local sales tax rate within the Tulalip Reservation is 2.1%.6 In total, the sales tax rate within the 19 Village is 8.6%, which is lower than some nearby cities. See Dkt. 1, ¶ 70. The sales tax rate is 20 21 9.2% in most of Everett, 9.1% in Marysville, 9.9% in Mill Creek, and 9.6% in Seattle.7 Sales 22 taxes are administered by the State, with amounts collected for local jurisdictions later remitted 23 to those jurisdictions. 24 25 6 The local sales and use tax rate comprises 1.2% for Snohomish County and 0.9% for the Snohomish County Public Transportation Benefit Area Corporation, more commonly known as Community Transit. 26 7 See http://dor.wa.gov, follow Get a form or publication, forms by subject, local sales and use tax rates by city/county. 5 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleanwater SUMMARY JUDGMENT PO Box 40 23 e SW No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360)753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 7 of 41 I Washington, like every other state with a sales tax, also has a use tax that complements 2 the sales tax. Wash. Rev. Code § 82.12. It generally applies to the use of personal property as a 3 consumer, but normally does not apply if a sales tax has been paid. For example, if a non- 4 Indian business purchased store equipment online without paying retail sales tax, and used the 5 6 equipment back in the Village, that business would owe use tax based on the value of the 7 equipment purchased. See Wash. Rev. Code § 82.12.020. 8 Washington's business and occupation tax (`B&O tax") also applies to the non-Indian 9 businesses within the Village. Wash. Rev. Code § 82.04.220. The B&O tax is a gross receipts 10 tax. In contrast to the federal income tax and typical state income taxes, the B&O tax is paid on 11 gross income from retail sales (or other business activities), rather than based on net income 12 13 after deducting expenses. The applicable B&O tax rate depends on the type of business. For 14 most of the non-Indian businesses at the Village, the primary B&O tax classification is 15 "retailing," which has a rate of 0.471% of sales receipts. Wash. Rev. Code § 82.04.250. 16 Therefore, when a taxable retail sale occurs in the Village, the seller owes B&O tax on less 17 than half of one percent of the sale proceeds. 18 Washington's personal property tax is imposed on the value of personal property 19 owned by the non-Indian businesses including machinery, equipment, furniture, and supplies. 20 21 Wash. Rev. Code § 84.40.060. On behalf of the State, the County, and other local taxing 22 jurisdictions, Snohomish County assesses and collects the tax from the non-Indian businesses 23 in the Village. The County then remits to each taxing jurisdiction its proportionate share. 24 The Village has enacted a comprehensive Municipal Tax Code imposing among others, 25 a sales and use tax, business and occupation tax, and restaurant privilege tax, but it does not 26 6 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleanwater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360)753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 8 of 41 1 currently implement or enforce those taxes on non-tribal businesses. Dkt. 1, T 85. Tulalip does 2 not currently impose a personal property tax. 3 No real property tax is at issue in this case. Neither the State nor the County imposes a 4 tax on trust land, pursuant to federal and state law. Tulalip taxes permanent improvements 5 6 owned by non-Indians, pursuant to Tulalip Tribal Code 12.3 0, but the State and County do not. 7 See Weissman Decl., Ex. F, 125-36. 8 C. Plaintiffs' Claims 9 In June 2015, Tulalip filed this action, seeking declaratory and injunctive relief to 10 preclude State and County taxation of non-Indians making purchases and conducting business 11 in the Village. Tulalip raises three claims: Count I alleges that the taxes violate the Indian 12 13 Commerce Clause of the United States Constitution, Count II alleges that federal law preempts 14 the taxes, and Count III alleges that the taxes interfere with and frustrate Tulalip's sovereign 15 right to make its own laws and be ruled by them. See Dkt. 1, ¶¶ 94-99, 100-09, 110-14, 16 respectively. With permission from the Court, the United States intervened, seeking the same 17 relief on similar claims. Dkt. 24, ¶¶ 108-19 (Count I, preemption), 120-24 (Count II, 18 infringement on tribal self-government), 125-28 (Count III, Indian Commerce Clause). 19 III. STATEMENT OF ISSUES 20 21 1. Given that the taxes at issue do not involve transactions with Tulalip or tribal 22 members, are Defendants entitled to judgment as a matter of law on Plaintiffs' claims under the 23 Indian Commerce Clause of the United States Constitution? 24 2. Given that no federal statute prohibits the state or local taxes at issue, are 25 Defendants entitled to judgment as a matter of law that the taxes are not expressly or impliedly 26 7 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleanwater Lane SW SUMMARY JUDGMENT FO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360)753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 9 of 41 1 preempted by federal law? 2 3. Given that the Supreme Court has never applied a balancing test to determine 3 whether federal law preempts State or local taxes on non-Indians like those at issue here, is the 4 use of such a balancing test unnecessary here? 5 6 4. Given that the Supreme Court and Ninth Circuit have held that tribal 7 sovereignty is not infringed by indirect economic effects on a tribe from a state's taxation of 8 non-Indians engaging in transactions on reservation lands, are Defendants entitled to judgment 9 as a matter of law on Plaintiffs' independent sovereignty claims? 10 IV. ARGUMENT 11 A. The Indian Commerce Clause Is Not A Bar to State Or Local Taxation of 12 Transactions Between Non-Indians. 13 The Commerce Clause of the United States Constitution expressly gives Congress the 14 "power ... [t]o regulate Commerce with foreign nations, and among the several States, and 15 with the Indian Tribes." U.S. Const. art. I, § 8, cl. 3. The final phrase of the Commerce Clause 16 is known as the Indian Commerce Clause. "Indian Tribes" in this context includes tribal 17 18 members. See United States v. Holliday, 70 U.S. 407, 418 (1865) ("[I]f commerce, or traffic, or 19 intercourse, is carried on with an Indian tribe, or with a member of such tribe, it is subject to be 20 regulated by Congress."). The purpose of the Indian Commerce Clause "is to provide Congress 21 with plenary power to legislate in the field of Indian affairs." Cotton Petroleum Corp. v. New 22 Mexico, 490 U.S. 163, 192 (1989). 23 Tulalip and the United States claim that the state and local taxes at issue here violate 24 25 the Indian Commerce Clause. Both allege that the taxes pose "undue burdens" on Tulalip and 26 on commerce within the Village, and that the taxes displace Tulalip's ability to impose the g ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleanwater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360) 753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 10 of 41 1 same taxes. Dkt. 1, IT 94-95, 97; Dkt. 24, ¶¶ 125, 127-128. Both fault the State and County for 2 failing to provide a credit for any like taxes imposed by Tulalip. Dkt. 1, ¶ 95; Dkt. 24, ¶ 128. 3 This Court should grant summary judgment to the Defendants on the Plaintiffs' claims 4 under the Indian Commerce Clause. Assuming the Indian Commerce Clause extends to 5 6 commerce between non-Indians, Congress has not enacted any law that precludes state and 7 local taxation of the transactions and personal property at issue. In addition, the United States 8 Supreme Court and lower courts have rejected the concept of a "dormant" Indian Commerce 9 Clause that would bar state or local taxation. 10 1. Congress has not enacted any law precluding state or local taxation of 11 transactions between non-Indians within tribal reservations. 12 The taxes at issue here do not fall on Indian tribes or tribal members. They are imposed 13 on (a) retail sales between non-Indian sellers and non-Indian buyers, (b) gross proceeds of 14 those sales to non-Indian buyers by non-Indian sellers, and (c) the personal property used by 15 the non-Indian businesses in their business operations. Wash. Rev. Code §§ 82.08.020, 16 17 82.04.220, 82.04.250, and chapter 84.40. Thus, the transactions and business activities giving 18 rise to the imposition of these taxes do not constitute commerce or trade "with" Tulalip or any 19 of its members. But even if the Indian Commerce Clause applied to the taxation in this case, 20 Plaintiffs' claims should be dismissed as a matter of law because Congress has not exercised 21 its authority to preclude state or local taxation of transactions between non-Indians in Indian 22 country. As discussed below in Part B, Congress has not preempted the State and County's 23 taxation in these circumstances in any statute, despite having the opportunity to do so. 24 25 26 DEFENDANTS' MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-00940-BJR 9 ATTORNEY GENERAL OF WASHINGTON Revenue and Finance Division 7141 Cleanwater Lane SW PO Box 40123 Olympia, WA 98504-0123 (360)753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 11 of 41 1 2. Plaintiffs' dormant Indian Commerce Clause theory must be rejected as 2 contrary to modern Supreme Court jurisprudence. 3 Plaintiffs' Indian Commerce Clause claims do not cite any federal statute that precludes 4 the state and local taxation of non-Indians at issue here. Instead, Plaintiffs rely on a "dormant" 5 Indian Commerce Clause approach, alleging that state and local taxation burdens Tulalip 6 economically by displacing Tulalip's ability to impose the same taxes as a practical matter. 7 Dkt. 1, ¶J 94-95, 97; Dkt. 24, IT 125, 127-28. Courts have consistently rejected this approach. 8 The Constitution does not contain any explicit language prohibiting states from 9 10 burdening commerce, but under the Interstate and Foreign Commerce Clauses, "the positive 11 delegation to Congress has come to mean that the Court can strike down unacceptable state 12 actions." Richard D. Pomp, The Unfulfilled Promise of the Indian Commerce Clause and State 13 Taxation, 63 Tax Lawyer 897, 910 n.18 (2010). Plaintiffs claim that the Indian Commerce 14 Clause should also be read as containing some implied limitations on state authority. See 15 Robert N. Clinton, The Dormant Indian Commerce Clause, 27 Conn. L. Rev. 1055, 1059-60 16 (1995) (advocating for a similar interpretation). 17 18 This Court should reject Plaintiffs' dormant Indian Commerce Clause theory as a 19 matter of law. Over a century ago, the United States Supreme Court rejected a similar claim in 20 a case concerning a local tax on personal property owned by a non-Indian. Thomas v. Gay, 169 21 U.S. 264, 265 (1898). In Thomas, non-Indian lessees leased real property on a tribal 22 reservation for cattle grazing, and the county imposed a personal property tax on the non- 23 Indian-owned cattle. Id. at 265-66. In upholding the personal property tax, the Court rejected 24 25 the claim that such a tax violated the Indian Commerce Clause. Id. at 274-75. 26 More recently, the Supreme Court has barred treating the Indian Commerce Clause as 10 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Clearwater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360) 753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 12 of 41 I creating implied limitations on state taxation. First, in 1980, the Court rejected the Indian 2 Commerce Clause as an automatic bar to state taxation in Indian country: "It can no longer be 3 seriously argued that the Indian Commerce Clause, of its own force, automatically bars all state 4 taxation of matters significantly touching the political and economic interests of the Tribes." 5 6 State of Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 7 157 (1980) (upholding state taxation of cigarette sales by tribal retailers to non-Indians and 8 non-member Indians). The Court followed this pronouncement with the 1989 decision in 9 Cotton Petroleum, which one leading commentator described as a "complete rejection of any 10 dormant Indian Commerce Clause limitations on state power." Clinton, Dormant Indian 11 Commerce Clause, 27 Conn. L. Rev. at 1247. 12 13 In Cotton Petroleum, the Court upheld New Mexico's oil and gas production taxes on a 14 non-Indian company that extracted and marketed oil and gas from wells on land leased from a 15 Tribe. Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 168 (1989). The leases were 16 issued under the Indian Mineral Leasing Act of 1938, 25 U.S.C. § 396a et seq. ("1938 Act"). 17 The Tribe also imposed taxes on the value of the company's production. 490 U.S. at 168. 18 The Court found no express statement permitting or precluding state taxation in the 19 1938 Act. The Court acknowledged the purpose of the 1938 Act was to provide Indian tribes 20 21 with badly needed revenue, but rejected the company's contention that Congress intended to 22 guarantee Indian tribes the maximum profit possible without regard to competing state 23 interests. Id. at 177-80. The Court concluded that New Mexico's oil and gas severance taxes 24 were not preempted. Id. at 186-87. The Court also rejected the company's argument that New 25 Mexico's taxes violated the Interstate Commerce Clause to the extent they were unapportioned 26 I I ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleamvater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360)753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 13 of 41 and imposed on top of the Tribe's taxes. Id. at 188-89. It concluded in part that because the wells were located on federal lands, "[u]nless and until Congress provides otherwise, each of the other two sovereigns has taxing jurisdiction over all of Cotton's leases." Id. at 189. The Court turned to the Indian Commerce Clause in deciding whether the Tribe should be treated as a State in determining whether New Mexico's taxes must be apportioned. The Court first emphasized that states, tribes, and foreign nations are distinct under the Commerce Clause: "[T]he language of the Clause no more admits of treating Indian tribes as States than of treating foreign nations as states." Id. at 192. Addressing the multiple taxation question, the Court declined to apply Interstate Commerce Clause principles to the Indian Commerce Clause because of the distinct purposes of the two clauses: . [W]hile the Interstate Commerce Clause is concerned with maintaining free trade among the States even in the absence of implementing federal legislation, . .. the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs ... The extensive case law that has developed under the Interstate Commerce Clause, moreover, is premised on a structural understanding of the unique role of the States in our constitutional system that is not readily imported to cases involving the Indian Commerce Clause. Most notably, as our discussion of Cotton's "multiple taxation" argument demonstrates, the fact that States and tribes have concurrent jurisdiction over the same territory makes it inappropriate to apply Commerce Clause doctrine developed in the context of commerce "among" States with mutually exclusive territorial jurisdiction to trade "with" Indian tribes. Id. at 192 (citations omitted) (emphasis added). Courts recognize Cotton Petroleum as a rejection of the concept of a dormant Indian Commerce Clause. See U.S. v. Bollinger, 798 F.3d 201, 212 (4th Cir. 2015) (noting the Supreme Court has "expressly declined" to impose the interstate commerce framework on tribal legislation, quoting Cotton Petroleum); Muscogee (Creek) Nation v. Oklahoma Tax 12 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleanwater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360)753-5528 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 14 of 41 I Comm'n, 611 F.3d 1222, 1236 (10th Cir. 2010) (quoting from Cotton Petroleum and rejecting 2 a dormant Indian Commerce Clause argument in relation to whether tribes could move goods 3 without interference by states); Ward v. New York, 291 F. Supp. 2d 188, 199 (W.D.N.Y. 2003) 4 (discussing Cotton Petroleum in concluding that although the Interstate Commerce Clause "has 5 6 a dormant or negative aspect, the Indian Commerce Clause does not"). 7 Commentators, including those who are critical of how the Supreme Court addressed 8 the issue, also recognize that the Court has foreclosed reliance on dormant Indian Commerce 9 Clause theories to invalidate state and local laws. "Cotton Petroleum ... authoritatively 10 reject[ed] any claim that the dormant Indian Commerce Clause doctrine limited state 11 governmental action in Indian country." Clinton, Dormant Indian Commerce Clause, 27 Conn. 12 13 L. Rev. at 1057-58; see also Pomp, The Unfulfilled Promise, 63 Tax Lawyer at 910, 1214-16 14 (the Supreme Court has "emasculated and denigrated" the Indian Commerce Clause). 15 The Supreme Court has never relied independently on the Indian Commerce Clause to 16 strike down a state or local tax. This Court should not do so either. This Court should grant 17 summary judgment to Defendants on Plaintiffs' Indian Commerce Clause claims. 18 ` B. Congress Has Not Preempted The Taxes at Issue in This Case. 19 While it creates no independent cause of action, the Indian Commerce Clause provides 20 21 Congress with broad power to regulate tribal affairs. White Mountain Apache Tribe v. Bracker, 22 448 U.S. 136, 142 (1980). Under this authority, Congress has the power to grant immunity 23 from or preclude taxation, either expressly or by plain implication. Cotton Petroleum, 490 U.S. 24 at 175-76. In relation to the circumstances of this case, Congress has not done so. No statutes 25 preempt the taxes at issue on sales to non-Indians or on the gross receipts and personal 26 13 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleanwater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360) 753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 15 of 41 property of non-Indian businesses engaging in business on trust lands or the reservation. To the extent Plaintiffs' federal preemption claims rely on statutory preemption, this Court should conclude as a matter of law that no federal statute preempts the taxes. 1. Federal statutes addressing economic development on tribal lands do not preempt state and local taxation of such activities. The Supreme Court has considered and rejected the notion that federal statutes promoting Indian economic development have preempted state and local taxation. In Colville, the Court concluded that "[t]he federal statutes cited to us, even when given the broadest reading to which they are fairly susceptible, cannot be said to pre-empt Washington's sales and cigarette taxes." Colville, 447 U.S. at 155. The Court reviewed the Indian Reorganization Act of 1934, 25 U.S.C. § 461 et seq., the Indian Financing Act of 1974, 25 U.S.C. § 1451 et seq., and the Indian Self-Determination and Education Assistance Act of 1975, 25 U.S.C. § 450 et seq., the first and third of which Tulalip cites in its Complaint. See Dkt. 1, ¶¶ 7, 68. The Court recognized that the statutes "evidence varying degrees of congressional concern with fostering self-government and economic government, but none goes so far as to grant tribal enterprises selling goods to nonmembers an artificial competitive advantage [of state tax immunity] over all other businesses in a State." Id.;8 see also Chemehuevi Indian Tribe v. Cal. State Bd. of Equalization, 800 F.2d 1446, 1448 (9th Cir. 1986) ("The fact that the Tribe's enterprises were financed pursuant to these statutes does not insulate tribal sales activities from any state involvement."). Because these statutes do not preempt state taxes related to sales transactions 8 The Court in Colville also examined the preemptive effect of the Treaty of Point Elliott, 12 Stat. 927, cited by Plaintiffs in their Complaints at Dkt. 1, ¶ 13, Dkt. 24, 153. The Court noted that while the Treaty could be read to recognize inherent tribal authority to exclude non-Indians or impose conditions on their entry into a reservation, the Treaty had no binding effect on transactions entered into by non-Indians within a reservation. 447 U.S. at 156. 14 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleanwater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360)753-5528 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 16 of 41 1 between a non-Indian and a tribal enterprise, they obviously cannot preempt sales transactions 2 exclusively between non-Indians. 3 Federal statutes enacted after Colville continue to recognize the importance of 4 5 promoting tribal economic development, but none expressly or impliedly preempts the types of 6 state and local taxes on non-Indian customers at issue in this case. For example, the Native 7 American Business Development, Trade Promotion and Tourism Act, 114 Stat. 2012, 25 8 U.S.C. § 4301 et seq., sought to revitalize tribal economies by promoting investment and self- 9 sufficiency in Indian-owned businesses. In that Act, Congress established an Office of Native 10 American Business Development in the Department of Commerce tasked with coordinating 11 federal benefits to increase business and economic development on Indian lands. 12 13 That same year, through the Indian Tribal Regulatory Reform and Business 14 Development Act of 2000, 114 Stat. 1935, Congress authorized the creation of a committee to 15 review and make recommendations with respect to laws and regulations that may impair 16 investment and business decisions on Indian lands. Tulalip cites these statutes in support of its 17 preemption argument. Dkt. 1, ¶ 68. But none of them discusses state and local taxation, let 18 alone includes language preempting state and local taxes on transactions and business activities 19 of non-Indians. 20 21 The additional statutes Plaintiffs cite in support of tribal self-sufficiency likewise 22 contain no language preempting the taxes at issue in this case. See Dkt. 1, ¶ 68. The Indian 23 Gaming Regulatory Act of 1988 ("IGRA"), 25 U.S.C. § 2701 et seq., established a 24 comprehensive statutory scheme governing gambling on Indian lands. It authorizes Tribal- 25 State compacting for certain gaming activities and "seeks to balance the competing sovereign 26 15 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleanwater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360) 753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 17 of 41 1 interests of the federal government, state governments and Indian tribes, by giving each a role 2 in the regulatory scheme." Artichoke Joe's v. Norton, 216 F. Supp. 2d 1084, 1092 (E.D. Cal. 3 2002), aff'd, 353 F.3d 712 (9th Cir. 2003). It does not preempt the taxes at issue on non-Indian 4 businesses and their customers outside the Tulalip casino. 5 6 Both the Second Circuit and Ninth Circuit have held that IGRA does not preempt state 7 and local taxes. The Second Circuit carefully analyzed the language of IGRA, and that of the 8 relevant tribal-state compact created under IGRA, in relation to a local personal property levy 9 against slot machines owned by a non-Indian business and leased to a tribally-owned casino. 10 MashantucketPequot Tribe v. Town ofLedyard, 722 F.3d 457 (2d Cir. 2013). The Court held 11 that neither the language of the tribal-state compact nor IGRA preempted the tax, as both were 12 13 silent as to state and local taxation, and the personal property tax at issue did not affect the 14 Tribe's governance of gaming. Id. at 469 (relying on Barona Band of Mission Indians v. Yee, 15 528 F.3d 1184 (9th Cir. 2008)). 16 In Barona Band, the Ninth Circuit addressed a state sales tax charged on construction 17 materials used in the construction of a tribally-owned casino expansion project. 528 F.3d at 18 1187. The Court held that "IGRA's comprehensive regulation of Indian gaming does not 19 occupy the field with respect to sales taxes imposed on third-party purchases of equipment 20 21 used to construct the gaming facilities." Id. at 1193. The Court went on to note that 22 "[e]xtending IGRA to preempt any commercial activity remotely related to Indian gaming- 23 employment contracts, food service contracts, innkeeper codes—stretches the statute beyond 24 its stated purpose." Id. If IGRA does not preempt sales and personal property taxes on non- 25 Indians businesses engaged in business with tribes, surely it does not preempt the state and 26 16 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleanwater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360)753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 18 of 41 1 local taxation of sales and personal property involving only non-Indians. 2 Nor does the Indian Tribal Justice Technical and Legal Assistance Act of 2000, 25 3 U.S.C. § 3651 et seq., preempt state and local taxation. See Dkt. 1, ~ 68. It provides technical 4 and financial assistance to tribal justice systems and courts, and is silent on taxation. The Act's 5 6 legislative history confirms that "[t]his bill is not intended to preempt State, local or tribal 7 law." H.R. Rep. 106-819(I), 106th Cong., 2nd Sess. 2000. 8 Likewise, the Indian Tribal Government Tax Status Act of 1982, 26 U.S.C. §7871, 9 provides no preemption of state and local taxation. See Dkt. 1, T 63. Rather, the Act merely 10 extends to tribal governments and their qualifying subdivisions the same federal tax treatment 11 as states and their political subdivisions in specific circumstances. The focus of the statute is on 12 13 federal taxation only; it does not mention state or local taxation other than to allow for a credit 14 to tribes against their federal tax obligations for state and local tax payments. 15 2. Federal Indian Trader statutes regulate trade with Indians and do not preempt the taxes at issue. 16 17 The Supreme Court has also considered and rejected the potential preemptive effect of 18 the Indian Trader statutes, 25 U.S.C. § 261 et seq., in relation to sales to persons other than 19 tribal members. See Dkt. 1, T 50. The statutes originated in 1790 and were enacted to prevent 20 fraud and other abuses by persons trading with Indians. Central Machinery Co. v. Arizona Tax 21 Comm'n, 448 U.S. 160, 163-64 (1980). Those statutes "incorporate a congressional desire to 22 regulate businesses selling goods to reservation Indians for cash or exchange, see Warren 23 Trading Post, Co. v. Arizona Tax Comm'n, 380 U.S. 685 (1965), but no similar intent is 24 25 evident with respect to sales by Indians to nonmembers of the Tribe." Colville, 447 U.S. at 26 DEFENDANTS' MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-00940-BJR 17 ATTORNEY GENERAL OF WASHINGTON Revenue and Finance Division 7141 Cleamvater Lane SW PO Box 40123 Olympia, WA 98504-0123 (360) 753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 19 of 41 1 155-56.9 Thus, as the Supreme Court has held, the fact that businesses must obtain Indian 2 trader licenses to sell directly to tribal members (a transaction not taxed by the State or County) 3 does not mean the Indian trader statutes have a preemptive effect on such businesses' 4 transactions with nonmembers. Id.; see also Mashantucket Pequot Tribe, 722 F.3d at 469 5 6 (Indian Trader statutes neither expressly nor by implication preempt a state or local personal 7 property tax imposed on a non-Indian lessor who leases slot machines to a tribal-owned 8 casino). 9 The Supreme Court has also held that the Indian Trader statutes do not preclude states 10 from regulating non-Indian businesses engaged in transactions with tribal members. Dep't of 11 Taxation and Finance of New York v. Milhelm Attea & Bros., Inc., 512 U.S. 61 (1994) 12 13 (affirming New York's imposition of recordkeeping requirements and quantity limitations on 14 cigarette wholesalers who sell untaxed cigarettes to reservation Indians). 15 3. Federal statutes related to reservation lands do not preempt taxation related to economic activities on those lands. 16 17 Congress has exercised its authority to preempt state taxation in the narrow context of 18 tribal trust land and rights in such lands. See Dkt. 1, ¶ 64. Section 465 of the Indian 19 Reorganization Act provides that "any lands or rights acquired" under the Act "shall be taken 20 in the name of the United States in trust for the Indian tribe or individual Indian for which the 21 land is acquired, and such lands or rights shall be exempt from State and local taxation."10 The 22 Supreme Court in Mescalero Apache Tribe v. Jones, 411 U.S. 145, 155 (1973), held that "[o]n 23 24 9 25 U.S.C. § 261 provides that the "Commissioner of Indian Affairs shall have the sole power ... to make such rules and regulations as he may deem just and proper specifying ... the prices at which such goods 25 [are] sold to the Indians." (Emphasis added). By express language, the Indian Trader statutes apply only to sales to Indians. See Pomp, The Unfulfilled Promise, 63 Tax Lawyer at 1076-77 & nn.730-31. 26 10 In their Complaint, Dkt. 1, 17, Plaintiffs also cite to § 476 of the IRA, which grants tribes the authority to adopt a constitution and bylaws. It is silent as to taxation. 18 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleanwater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360)753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 20 of 41 its face, the statute exempts land and rights in land, not income derived from its use." The Court concluded the statute preempted New Mexico's use tax on personal property purchased outside the state and brought in to construct two tribally-owned ski lifts on off-reservation trust property, but not New Mexico's gross receipts tax on the ski resort's income. Id. at 157-59. While Congress has exercised its authority to preempt state taxation in the limited context of taxes on trust land and related rights in such lands, the taxes at issue are not imposed on real property, on the leases for the real property, or on permanent improvements.I I Congress has authorized and supported the leasing of tribal trust lands, but it has not preempted state or local taxes on sales or business receipts for transactions taking place on trust lands or on personal property used in such transactions. The Indian Long-Term Leasing Act, 25 U.S.C. § 415, grants certain tribes authority to enter into leases pursuant to tribal regulation and without BIA approval. In a 1970 amendment, Tulalip became the 19th tribe to receive such authority. 84 Stat. 303. The Act was amended in 1986 to grant all authorized tribes, including Tulalip, permission to enter into leases with terms up to 75 years. 100 Stat. 3341-267; see also Dkt. 1, T 62. Despite having amended the Indian Long-Term Leasing Act no less than 46 times, Congress has included no language preempting state and local taxation of non-Indian businesses or their customers. The Ninth Circuit has also rejected the argument that the "mere existence of federal oversight over leasing of Indians lands preempts a state tax." Gila River Indian Cmty v. Waddell, 91 F.3d 1232, 1237 (9th Cir. 1996). Thus, no federal 11 Although Washington generally taxes permanent improvements (including buildings, structures, and other fixtures) in addition to real property, Defendants do not tax either at the Village, consistent with the Ninth Circuit's decision in Confederated Tribes of Chehalis Reservation v. Thurston County Bd. of Equalization, 724 F.3d 1153, 1155-57 (9th Cir. 2013). Nor do Defendants assess or collect a rental tax such as that invalidated in Seminole Tribe of Florida v. Stranburg, 799 F.3d 1324, 1328-36 (11th Cir. 2015) (striking down excise tax on the privilege of engaging in the business of renting, leasing, or licensing real property—that is, a tax on a right in land). 19 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cieamvater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360)753-5528 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 21 of 41 1 statutes address the state and local taxes at issue in this case. The Court should rule as a matter 2 of law that the taxes are not preempted. 3 Tulalip may argue that tribal law precludes the taxes at issue. See Dkt. 1, ¶ 67 (Tulalip 4 has adopted language it its tribal code that purportedly precludes state or local taxes on 5 6 activities conducted on leased lands). But the Colville Court declined to "infer from the mere 7 fact of federal approval of Indian taxing ordinances, or from the fact that the Tribes exercise 8 congressionally sanctioned powers of self-government, that Congress has delegated the far- 9 reaching authority to pre-empt valid state sales and cigarette taxes otherwise collectable from 10 nonmembers of the Tribe." 447 U.S. at 156. To date, Congress has not delegated any such 11 authority to tribes. 12 13 Lastly, Plaintiffs also cite BIA leasing regulations in support of their preemption claim, 14 but these regulations are inapplicable to Tulalip's leases and thus do not preempt the taxes at 15 issue. See Dkt. 1, ¶¶ 65-66, Dkt. 24, ¶¶ 84-87. The BIA regulations, promulgated in 2013, 16 suggest that, "subject only to applicable federal law," state and local taxes do not apply to 17 certain activities occurring on some leased lands. 25 C.F.R. 162.017(b). However, these 18 regulations do not apply to the leases in this case, which were entered pursuant to 25 U.S.C. 19 415(b), because they apply only to leases that the BIA must approve. See 25 CFR 162.006(a), 20 21 (b)(3)(iii); see also Weissman Decl., Ex. C, 22 (United States discovery response admitting 22 that the leasing regulations do not apply to the leases at issue because they were not subject to 23 BIA approval). Accordingly, the BIA leasing regulations do not preempt the taxes at issue. 24 As no federal statute preempts the taxes at issue, the Court should reject Plaintiffs' 25 claims that Congress has preempted them. Thus, the remaining preemption question is whether 26 20 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleanwater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360)753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 22 of 41 1 the Court should engage in the particularized inquiry that the Supreme Court has established 2 for Indian taxation cases involving non-Indians engaging in businesses with tribes or their 3 members. For the reasons discussed below, the Court should not. 4 C. The Bracker Preemption Analysis And Particularized Inquiry Do Not Apply. 5 6 The touchstone of preemption analysis in Indian law cases is Congressional intent. 7 Cotton Petroleum, 490 U.S. at 176. While tax immunity extends to the United States and 8 Indian tribes, it does not automatically extend to private parties with whom tribes do business. 9 Id. at 175. Immunity extends only where Congress has granted it, either expressly or by plain 10 implication. Id.; see also Mescalero Apache Tribe, 411 U.S. at 150. And while ambiguities in 11 federal laws enacted for the benefit of Indians are generally resolved in their favor, "state 12 13 interests must be given weight and courts should be careful not to make legislative decisions in 14 the absence of congressional action." Cotton Petroleum, 490 U.S. at 177. 15 In Bracker, the Supreme Court held that in the absence of express preemption, the 16 implied preemption analysis for state regulation of non-Indians in Indian country was not 17 controlled by "mechanical or absolute conceptions of state or tribal sovereignty," but rather by 18 a particularized inquiry into the relevant state, federal, and tribal interests. 448 U.S. at 145. The 19 Court has applied the Bracker inquiry in only certain circumstances, none of which resembles 20 those in this case. 21 22 Plaintiffs seek a drastic extension of Bracker. The Supreme Court has never extended 23 governmental tax immunity or the Bracker preemption inquiry beyond the circumstance of 24 persons directly engaging in transactions with a tribe or tribal members. Plaintiffs, in contrast, 25 seek to extend that preemption to shopping mall customers two or three steps removed from 26 21 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleanwater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360)753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 23 of 41 Tulalip. The transactions here involve customers purchasing goods from retailers in the premium outlets, for example, buying a pair of jeans from the Levi's retailer. Levi's has contracted with Simon Property Group, the owner and operator of the mall. Simon, in turn, has contracted with Tulalip to lease the land on which the stores were built. Tulalip is not involved in the sales transaction. See Weissman Decl., Ex. G, 142 (Tulalip's Response to State's Request for Admission No. 6). Tulalip is also not involved in the non-Indian retailers' ownership of personal property used in the business operations. Bracker applies only "where the legal incidence of the tax [falls] on a nontribal entity engaged in a transaction with tribes or tribal members." Arizona Dep't of Revenue v. Blaze Const. Co., 526 U.S. 32, 37 (1999) (emphasis added). That is not the case here. 12 Plaintiffs ask this Court to extend the reach of Bracker to on-reservation transactions between two non- Indians. A careful evaluation of Supreme Court cases reveals that the Court has never extended the Bracker inquiry to facts like those in this case, which involve non-Indians on both sides of a transaction. In addition, the Court has never applied the Bracker particularized inquiry in the context of a sales tax paid by non-Indians, who live, consume goods, and receive the overwhelming majority of their government services off the reservation. 1. In the 1980 term, the Supreme Court applied preemption analysis in Colville and a "particularized inquiry" in Bracker to address states taxes on transactions between tribal entities and non-members. A few weeks before deciding Bracker in its 1980 term, the Supreme Court addressed the taxation of non-Indians in Indian country in Colville. Colville involved Washington's sales 12 The taxation of Tulalip members who may happen to be customers or business owners within the Village is not at issue because state and local taxes cannot be imposed if the legal incidence of the tax is on an Indian and the transaction occurs on his or her own reservation, absent express Congressional approval. See Okla. Tax Comm'n, 515 U.S. at 458. Thus, Defendants do not tax those transactions. 22 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 SUMMARY JUDGMENT P e SW O Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360)753-5528 2 3 4 5 6 7 8 9 10 Il 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 24 of 41 1 and cigarette taxes, which were imposed on on-reservation cigarette sales to non-Indian 2 customers. Colville, 447 U.S. 134.13 Tribal retailers from many tribes challenged Washington's 3 authority to require them to collect and remit Washington taxes from those customers. Id. at 4 139-40. The Tribes imposed their own taxes on the cigarette sales, and asserted that their 5 6 taxation and marketing of the sales "ousts the State from any power to exact its sales and 7 cigarette taxes from nonmembers purchasing cigarettes at tribal smokeshops." Id. at 154. 8 The Court engaged in a preemption analysis, reviewing a number of the same statutes 9 Tulalip and the United States cite in this case. See id. at 155. The statutes showed varying 10 degrees of "congressional concern with fostering self-government and economic 11 development," but none preempted the state tax. Id. Though the Court expressed concern with 12 13 sanctioning a tax advantage, it did not expressly indicate that it was balancing state, federal, 14 and tribal interests. Id. 14 15 A few weeks later, the Court decided Bracker. The case involved a tribe with a 16 reservation in a remote, forested region of northeastern Arizona. See Bracken, 448 U.S. at 138. 17 Timber operations accounted for 90% of the Tribe's annual profits. Id. A tribal business 18 entered into contracts with non-Indian logging companies to harvest timber on the reservation. 19 Id. at 139. Arizona sought to impose motor carrier and fuel taxes on the timber companies 20 21 related to their transportation of logs solely on the reservation. Id. The logging companies 22 passed the tax on to the Tribe. The Court implicitly distinguished the factual circumstances of 23 the case from others such as Colville, explaining that it was "not [deciding] a case in which the 24 State seeks to assess taxes in return for governmental functions it performs for those on whom 25 13 Colville involved several consolidated cases, and included challenges to other taxes as well. 26 14 Though the Colville majority did not expressly state that it was balancing or weighing interests, Justice Rehnquist criticized it for doing so. See id. at 177 (Rehnquist, J., concurring/dissenting). 23 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleanwater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360)753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 25 of 41 1 the taxes fall." Id. at 150. 2 In response to the Tribe's claim that Arizona's taxes were preempted, the Court first 3 noted that analyzing preemption in Indian law cases was different than the analysis in other 4 areas of the law. Id. at 143. Indian sovereignty had to "inform the determination whether the 5 6 exercise of state authority has been pre-empted by operation of federal law." Id. at 143. When 7 a state asserts authority over the conduct of non-Indians engaging in activity on the reservation, 8 the Court examines relevant federal statutes in terms of the policies underlying them and tribal 9 sovereignty. Id. The inquiry is not dependent on "mechanical or absolute conceptions of state 10 or tribal sovereignty, but has called for a particularized inquiry into the nature of the state, 11 federal, and tribal interests at stake, an inquiry designed to determine whether, in the specific 12 13 context, the exercise of state authority would violate federal law." Id. at 145. 14 Applying this standard, the Court held that comprehensive federal regulation preempted 15 the State's taxes. Id. at 145. The BIA exercised daily supervision of timber harvesting and 16 management under authority provided by federal statute. Id. at 147. Federal regulations 17 restricted clear-cutting, established comprehensive guidelines for timber sales, regulated timber 18 sale advertising, specified the manner for accepting and rejecting bids, described timber 19 contracts, and required the Secretary's approval of contracts. Id. The State provided no 20 21 governmental functions for those on whom the taxes fell. Id. at 150. Under those facts, the 22 particularized inquiry into state, federal, and tribal interests favored preemption. Id. at 150-51. 23 Several significant differences between Colville and Bracker may explain the Court's 24 different approaches to analyzing preemption. In Bracker, the taxes were imposed on a timber 25 company whose taxed activities were confined to the reservation. Bracker, 448 U.S. at 150. 26 24 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleamvater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360) 753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 26 of 41 1 The State could not identify any services it provided to the taxpaying business or the Tribe. Id. 2 By contrast, the taxes in Colville were imposed on cigarette purchasers who lived and 3 consumed cigarettes off-reservation, and received significant government services from the 4 State off-reservation. The Court in Bracker acknowledged that the case was different from 5 6 Colville, explaining that in Bracker, Arizona was not seeking to assess taxes "in return for 7 governmental functions it performs for those on whom the taxes fall." Bracker, 448 U.S. at 8 150. In contrast, as the State did for the taxpayers in Colville, the State and the County provide 9 substantial government services to the customers of the retail businesses at the Village, the vast 10 majority of whom visit the Village for a very short duration and spend their lives off the 11 reservation, utilizing the services that the State and County provide. 12 13 Perhaps most importantly, the federal regulation of timber in Bracker was 14 comprehensive. Bracker, 448 U.S. at 145. There was no comprehensive federal regulation of 15 cigarette sales by smokeshops in Colville. Colville, 447 U.S. at 155-56. The significant fact the 16 two cases had in common, which is not the case here, is that both cases involved transactions 17 between non-Indians and tribal businesses on reservations. 18 2. Cotton Petroleum narrowed the Bracker inquiry. 19 The Court's 1989 decision in Cotton Petroleum is the last time the Court applied 20 21 Bracker. See Cotton Petroleum, 490 U.S. at 176. In doing so, the Court also limited the 22 particularized inquiry and moved toward a more traditional preemption analysis. See Blaze 23 Const. Co. Inc. v. New Mexico, 884 P.2d 803 (N.M. 1994), aff'd by Arizona v. Blaze Const. 24 Co., 526 U.S. 32, 36-37 (1999) ("Cotton Petroleum did, however, modify [Bracker] balancing 25 in certain respects"). The Court reviewed the demise of the intergovernmental tax immunity 26 25 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleamvater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360)753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 27 of 41 1 doctrine in detail. It concluded that "a State can impose a nondiscriminatory tax on private 2 parties with whom the United States or an Indian tribe does business, even though the financial 3 burden of the tax may fall on the United States or the Tribe." Cotton Petroleum, 490 U.S. at 4 175. The Court framed the question presented similarly to the preemption analysis in cases not 5 6 involving Indian law: "whether Congress has acted to grant [a] Tribe such [tax] immunity, 7 either expressly or by plain implication." Id. at 175-76. 8 In Cotton Petroleum, the Court addressed a tax imposed on a company engaged in a 9 business transaction with a tribe—a mineral lease for the production of oil and gas. The Tribe's 10 natural resources constituted its primary source of operating revenue. Id. at 167. The Court 11 focused extensively on whether the 193 8 Indian Mineral Leasing Act preempted New Mexico 12 13 from imposing a severance tax on Cotton Petroleum's on-reservation oil and gas production. 14 Id. at 177-83. The tax was in addition to the Tribe's own tax on the same activities. Id. at 168. 15 The Court distinguished Bracker and another preemption case, Ramah Navajo School 16 Bd. Inc. v. Bureau of Revenue of New Mexico, 458 U.S. 832 (1982). Ramah involved a state 17 gross receipts tax on the payments by a tribal school board to a non-Indian construction 18 company that built a school on the Navajo reservation. The company passed the tax on to the 19 Tribe. Id. at 844. In Cotton Petroleum, in contrast to the states' "complete abdication or 20 21 noninvolvement" in Bracker and Ramah Navajo, New Mexico provided services to the 22 taxpayer both on and off the reservation. 490 U.S. at 185. The Tribe argued that the taxes were 23 out of proportion to the amount of services provided, but the Court rejected that argument, 24 holding that states need not show the services are proportional to the taxes collected, narrowing 25 26 DEFENDANTS' MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-00940-BJR 26 ATTORNEY GENERAL OF WASHINGTON Revenue and Finance Division 7141 Cleanwater Lane SW PO Box 40123 Olympia, WA 98504-0123 (360)753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 28 of 41 I the scope of the Bracker inquiry. 15 Id. Such a requirement is not reflective of how taxes and 2 government function, and engaging in this proportionality analysis would create "nightmarish 3 administrative burdens." Id. at 185 n.15. And while federal and tribal mining regulations were 4 "extensive, they [we]re not exclusive." Id. at 186. Accordingly, New Mexico's tax was not 5 6 preempted. Id. at 186-87. With Cotton Petroleum, the Court moved decidedly away from 7 finding implied preemption with respect to non-Indians engaging in transactions on reservation 8 lands. 9 3. Blaze rejected application of Bracker for on-reservation transactions not 10 involving tribes or tribal members, like those at issue here. 11 Colville, Bracker, and Cotton Petroleum each involved transactions between non- 12 Indians and tribal businesses on a reservation. In Blaze, the Supreme Court confronted the 13 different situation of a non-Indian business transacting with another non-Indian entity on the 14 reservation. This presented the question of whether Bracker applied if no tribe or tribal 15 member was involved in the taxed transaction. The Supreme Court answered no. 16 17 In Blaze, a contractor entered into a transaction with the United States to build roads on 18 a reservation. Blaze, 526 U.S. at 34. The contractor argued that federal law and the 19 "particularized inquiry" under Bracker preempted Arizona's transaction privilege tax on its 20 gross receipts received from the United States. While the Arizona Court of Appeals agreed, the 21 United States Supreme Court reversed, expressly holding that Bracker did not apply. Id. at 34- 22 37, 39. The distinction was that the taxpayer did not contract with the Tribe or a tribal business. 23 See id. at 37. The Tribe was therefore not a party to the taxed transaction. The same is true in 24 25 15 The Supreme Court has long recognized that "taxes, otherwise lawful, are not invalidated by the allegation, or even the fact, that the resulting benefits are unequally shared." Thomas, 169 U.S at 278. Unlike in 26 this case, the complaining non-Indian taxpayers in Thomas resided on the reservation where the Court held their cattle were lawfully taxed by the town as personal property. 27 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleanwater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360)753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 29 of 41 this case as well, where non-Indian consumers purchase goods at the retail locations in the Village from non-Indian businesses. The Court explained that it had applied the particularized inquiry in cases involving on- reservation activity only "where the legal incidence of the tax fell on a nontribal entity engaged in a transaction with tribes or tribal members." Id. (emphasis added). The Court also expressed concern about "the perils of a more fact-intensive inquiry," declining to expand the possibility of governmental tax immunity and the troublesome Bracker approach. Id. at 37 n.3. The Court then applied a line of cases applying to government contractors, holding that while states cannot tax the federal government directly, they can tax those contracting with it. Id. (citing United States v. New Mexico, 455 U.S. 720 (1982)). Blaze demonstrates that just because a transaction takes place on a reservation and involves the taxation of non-Indians does not mean that a court should engage in the particularized inquiry under Bracker. The Court reiterated this limitation of Bracker in Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95 (2005). That case involved a Kansas motor fuel tax on the receipt of fuel by non-Indian, off-reservation distributors who later delivered the fuel to an Indian tribe's gas station on the reservation. Id. at 99. The Court explained that the "who" and the "where" are frequently dispositive questions in Indian law cases. Id. at 101 (citing Chickasaw Nation, 515 U.S. at 458 ("[t]he initial and frequently dispositive question in Indian tax cases ... is who bears the legal incidence of [the] tax")). The Court rejected the Tribe's argument that Bracker should apply, reversing the Tenth Circuit's decision that had applied Bracker in the Tribe's favor. See Wagnon, 546 U.S. at 99; see Prairie Band Potawatomi Nation v. Richards, 379 F.3d 979, 983-84 (10th Cir. 2004). The 28 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Clearwater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360) 753-5528 1 2 3 4 5 C 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 30 of 41 I Supreme Court held that Bracker had never been applied to off-reservation transactions and 2 repeated the holding from Blaze that Bracker applies only when non-Indians engage in 3 transactions with tribes or tribal members on the reservation. Wagnon, 546 U.S. at 110, 112-14. 4 The Blaze reasoning applies equally to this case. In both cases, non-Indians enter into 5 6 transactions with other non-Indians. In Blaze, a non-Indian contractor contracted with the 7 United States to build roads for the Tribe. But the transaction was with the United States, not 8 the Tribe. And Bracker applies only when non-Indians being taxed are transacting with tribes 9 or tribal members. Blaze, 526 U.S. at 37. 10 In this case, non-Indian consumers purchase goods in retail establishments from non- 11 Indian businesses. The taxes at issue in this case fall squarely within the Bracker limitation 12 13 explained in Blaze and Wagnon. The customers who enter the Village to buy goods at the retail 14 stores are not "engaged in a transaction with tribes or tribal members." See Blaze, 526 U.S. at 15 37. In fact, as described above, Tulalip is two to three steps removed from each transaction. 16 The Supreme Court has not applied Bracker in a tax case since Cotton Petroleum in 17 1989, rejecting at least three invitations to expand its application to new factual situations. 18 Chickasaw Nation, 515 U.S. at 458 (declining to apply Bracker if incidence of tax falls on 19 Indian in Indian country); Blaze, 526 U.S. at 37 (declining to applying Bracker if on- 20 21 reservation transaction only involves non-Indians); Wagnon, 546 U.S. at 112 (declining to 22 apply Bracker to off-reservation transaction regardless of whether on-reservation activities 23 added value). And even Cotton Petroleum significantly narrowed Bracker by essentially 24 limiting it to its facts and rejecting the analysis of whether the amount of state services was 25 proportional to the amount of taxes collected. Cotton Petroleum, 490 U.S. at 185. 26 29 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleamvater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360)753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 31 of 41 The Court should not apply Bracker for the transactions and personal property interests 2 at issue in this case. The Court instead should apply a more straightforward preemption 3 analysis. As discussed above, no federal statutes even approach preemption of taxation of sales 0 transactions in the Village. Thus, the State is not preempted from requiring non-Indian retailers to assist it in collecting valid sales tax on transactions within the Village, nor is it preempted from imposing a gross receipts and personal property tax on the non-Indian retailers. 4. The Ninth Circuit applied Bracker to transactions between non-Indians prior to clarification of the law in Blaze and Wagnon. Although the Ninth Circuit has applied Bracker in a few cases involving non-Indian to non-Indian transactions, these cases were decided before the Supreme Court's 1999 clarification in Blaze that Bracker applied only if a tribe or tribal member were party to the transaction. See Salt River Pima-Maricopa Indian Cmty. v. Arizona, 50 F.3d 734, 739 (9th Cir. 1995), cert. denied, 516 U.S. 868 (1995) (taxes on sales to non-Indians in shopping mall were not preempted under Bracker); Gila River, 91 F.3d 1232 (taxes on ticket sales and concessions related to on-reservation entertainment events not preempted under Bracker); Yavapai-Prescott Indian Tribe v. Scott, 117 F.3d 1107 (9th Cir. 1997) (hotel room rentals and food and beverage sales not preempted under Bracker). 16 The Court should apply the United States Supreme Court precedent limiting Bracker to non-Indian transactions with tribes or their members. But even if this Court ultimately decides that Bracker applies, no trial will be necessary because Ninth Circuit case law dictates the outcome of this dispute. The Court has held that when state and local taxes are imposed on the sale of non-Indian products to non- 16 The Ninth Circuit did apply Bracker in a post-Blaze case involving a transaction between non-Indians, but in that case, the Tribe had contractually agreed to indemnify the non-Indian taxpayer for any sales taxes imposed by the State of California. Barona Band of Mission Indians v. Yee, 528 F.3d 1184, 1188 (9th Cir. 2008). 30 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleanwater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360)753-5528 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 32 of 41 1 Indians, the "preemption balance unmistakably tips in favor of the State." Salt River, 50 F.3d at 2 739. With some limited additional discovery, the Court could likely resolve this issue on a 3 subsequent summary judgment motion. Though the Bracker analysis does have a factual (as 4 well as statutory and regulatory) component, it is unlikely that any material facts will 5 6 ultimately be in dispute. 7 5. Because no statute preempts the taxes at issue and Bracker does not apply, the Court should dismiss Plaintiffs' preemption claims. 8 9 In sum, Indian taxation cases demonstrate a continuum defined by who is being taxed 10 and the location of the activity being taxed. At one end of the continuum are cases where the 11 legal incidence of a state's tax falls on an Indian tribe or tribal members for an activity that 12 takes place on reservation. Such taxes have typically been found preempted. See e.g., 13 McClanahan v. Arizona, 411 U.S. 164 (1973) (striking down Arizona's income tax as applied 14 to tribal members' income wholly derived from reservation sources). At the other end of the 15 continuum are cases where the legal incidence of a state's tax falls on a non-Indian engaging in 16 17 a transaction with another non-Indian for an activity that takes place off reservation. These 18 taxes have been upheld. See, e.g., Wagnon, 46 U.S. 95. 19 Bracker rests in the midpoint of the continuum where the legal incidence of a tax falls 20 on a non-Indian engaged in a transaction with an Indian tribe or tribal member for an activity 21 that takes place on reservation. But the circumstances here are transactions between non- 22 Indians in the Village, a commercial enclave developed for the purpose of attracting customers 23 from off the reservation. These circumstances are closer to those in Wagnon than those in 24 25 Bracker, and the Bracker particularized inquiry should not apply. And because Bracker does 26 not apply, and Congress has not enacted any statutes preempting the taxes at issue, this Court 31 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleanwater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360)753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 33 of 41 1 should grant summary judgment to the State and County on Plaintiffs' federal preemption 2 claims. 3 D. Taxes Imposed on Non-Indian Shoppers and Non-Indian Businesses on the 4 Tulalip Reservation Do Not Infringe Upon Tribal Sovereignty. 5 No modern United States Supreme Court case has ever held that tribal sovereignty 6 prohibited a state or local tax imposed on non-Indians. Not one. See Pomp, The Unfulfilled 7 Promise, 63 Tax Lawyer at 1001 n.403 ("In no tax case has the infringement argument 8 prevailed..."). Sovereignty is not a plausible or viable independent claim under the facts 9 10 alleged in this case. The Supreme Court and Ninth Circuit have repeatedly rejected the 11 argument that the indirect economic effects of a tax on non-Indians engaging in transactions on 12 a reservation violate tribal sovereignty. Plaintiffs' sovereignty claim should be dismissed. 13 While the Supreme Court recognized in Bracker that the assertion of state regulatory 14 authority over tribal reservations and members ... may unlawfully infringe `on the right of 15 reservation Indians to make their own laws and be ruled by them,"' 448 U.S. at 142, the Court 16 17 has never applied this concept as an independent basis to invalidate a state tax. "The trend has 18 been away from the idea of inherent Indian sovereignty as a bar to state jurisdiction and toward 19 reliance on federal preemption." McClanahan, 411 U.S. at 172. The Court has not invalidated 20 a state tax on non-Indians on tribal sovereignty grounds, but rather considers it a "backdrop" 21 against which a preemption analysis may take place. See id. at 172. And "invalidation of a state 22 law because it interferes with tribal sovereignty is not favored." Muscogee (Creek) Nation v. 23 Pruitt, 669 F.3d 1159, 1171 (10th Cir. 2012) (citing Rice v. Rehner, 463 U.S. 713, 720 (1983)). 24 25 The notion that sovereignty may constitute a barrier to the taxation of non-Indians 26 1 largely comes from language in Williams v. Lee, 358 U.S. 217 (1959), a case that did not 32 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleanwater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360)753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 34 of 41 1 involve taxes at all. See, e.g. Bracker, 448 U.S. at 142 (citing Williams for the statement that 2 state regulatory authority over tribal reservations and members may unlawfully infringe on 3 tribal sovereignty). In Williams, a non-Indian merchant operating an on-reservation store 4 alleged that an Indian customer owed a debt, and sued that tribal member in state court. 5 6 Williams, 358 U.S. at 217-18. The Court held that absent an act of Congress, a state court's 7 jurisdiction over a particular matter concerning tribal interests depended on whether the state 8 action infringed on the right of reservation Indians to make their own laws and be ruled by 9 them. Id. at 220. The Court noted that Congress and the BIA had assisted the Navajo Tribe in 10 strengthening its legal system and courts, while Arizona had declined to assume jurisdiction 11 over reservation Indians. Id. at 222-23. Accordingly, the Court held that Arizona's courts 12 13 lacked jurisdiction to decide the dispute. See id. at 223. 14 1. Tulalip's self-imposed limitation on collecting taxes does not form the basis for a sovereignty claim. 15 In this case, Tulalip does not allege that the taxes at issue present any legal barrier to 16 17 Tulalip's authority to enact tribal ordinances, to govern members, to regulate, or to tax 18 activities occurring on the reservation. Tribal authority to impose taxes on certain reservation 19 activities has been established in the case law. Colville, 447 U.S. at 153-54 (1980) (holding 20 that tribes have authority to tax reservation cigarette sales to non-members but also holding 21 that states have authority to tax the same transactions). Tulalip in fact imposes and collects 22 taxes and fees on property and on many activities within the Village. For example, the Tulalip 23 Tribes impose a land occupation use tax on the permanent improvements within the Village, 24 25 including those owned by non-Indians. Both the Tulalip Tribes and the Village impose (though 26 may not enforce) sales and use taxes and other taxes at the Village. See Weissman Decl. Ex. F, 33 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleamvater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360)753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 35 of 41 1 83-88 (Tribe's Response to State's Interrogatory 4, Tulalip Tax Code excerpts). 2 Instead, Tulalip appears to base its sovereignty infringement claim in part on the fact 3 that it contracted with its tenants not to impose taxes on the same activities the State and 4 County tax. In other words, because the state and local sales tax applies to sales to non-Indians 5 6 within the Village, Tulalip has agreed by contract not to impose a similar sales tax. In this 7 respect, the Village has exercised its sovereign authority to make a different decision than 8 nearby cities outside the reservation such as Everett, Marysville, Mill Creek, and Seattle, 9 which impose city sales taxes in addition to the state and local sales tax, and which therefore 10 have higher sales tax rates than in the Village. 17 11 In support of this argument, Tulalip points to the Charter of the Consolidated Borough 12 13 of Quil Ceda Village, which states that; "[t]he tax burden borne by persons and entities for 14 transactions within the village shall not exceed the tax burden imposed upon property, 15 transactions, persons and entities within any incorporated municipality within Snohomish 16 County." Weissman Decl., Ex. H, 150 (Charter, Art. VI, Sec. 7). That Tulalip has chosen to 17 limit the exercise of its taxing power in the Village Charter by setting a limit on the tax burden 18 within the Village does not mean the state and local taxes infringe on Tulalip's sovereignty. In 19 contrast, such a self-imposed limit is an exercise of Tulalip's sovereignty, rather than a 20 frustration of it. 21 22 2. The Court should reject Tulalip's sovereignty argument based on the economic effects of state and local taxes. 23 Ultimately, Plaintiffs' sovereignty argument is in fact purely economic. They allege 24 25 17 According to Tulalip's Complaint, ¶ 70, the combined sales tax rate in the Village is 8.6%. The rate is 9.2% in most of Everett, 9.1% in Marysville, 9.9% in Mill Creek, and 9.6% in Seattle. See http://dor.wa.gov, 26 follow Get a form or publication, forms by subject, local sales and use tax rates by city/county (last visited September 22, 2016). 34 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleanwater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360)753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 36 of 41 1 essentially that if the State and County were ousted from taxing transactions between non- 2 Indians on the reservation, the economics would allow Tulalip to impose taxes on transactions 3 it is not currently taxing, and with additional revenue, Tulalip could provide more services. See 4 Dkt. 1, T 113; see also Dkt. 24, T 123. More money, the argument goes, would allow Tulalip to 5 6 provide more government services. 7 While it is always the case that a government, tribal or otherwise, can provide more 8 services with more money, the Supreme Court has never found a violation of tribal sovereignty 9 on this basis, despite frequently confronting the same argument. In Colville, the Court 10 squarely rejected this argument, concluding that "Washington does not infringe on the right of 11 reservation Indians to `make their own laws and be ruled by them'... merely because the result 12 13 of imposing its taxes will be to deprive the Tribes of revenues which they currently are 14 receiving." 447 U.S. at 156 (quoting Williams, 358 U.S. at 220). Colville involved cigarette 15 taxes and sales taxes. The Tribes argued that overlapping tribal and state taxes were an affront 16 to tribal sovereignty because they would lose substantial revenues that could be used to combat 17 severe poverty and underdevelopment. The Court rejected this primary argument and 18 characterized it as "economic." 447 U.S. at 154. 19 In a challenge to Washington's authority to tax a tribe's liquor sales to non-tribal 20 21 members, the Ninth Circuit reiterated that economic effects from a state tax do not violate 22 tribal sovereignty: "[A] state tax is not invalid merely because it erodes a tribe's revenues, even 23 if the tax substantially impairs the tribal government's ability to sustain itself and its 24 programs." Squaxin Island Tribe v. Washington, 781 F.2d 715, 720 (9th Cir. 1986); see also 25 Thomas, 169 U.S. at 273 (the economic impact of a local personal property tax on tribal 26 35 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleanwater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360)753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 37 of 41 1 revenues was irrelevant to the question of sovereignty); see also Colville, 447 U.S. at 183-84 2 (Rehnquist. J., concurring in part, concurring in result, dissenting in art) (relying on Thomas 3 for the proposition that the effect of a state tax on tribal governmental revenues is irrelevant to 4 the recognition of tribal sovereignty). 5 6 The Supreme Court has even rejected the tribal sovereignty argument when state tax 7 laws required Indian retailers to collect taxes from non-Indian customers and remit them to the 8 state. See, e.g., Moe v. Conf. Salish and Kootenai Tribes of the Flathead Reservation, 425 U.S. 9 463 (1976); Colville, 447 U.S. at 154. In those cases, tribes argued that tribal sovereignty was 10 infringed both by forcing tribes to become tax collectors for a state and by reducing revenues 11 for the tribes as a result of overlapping taxing authority. The Court rejected both arguments, 12 13 characterizing the revenue argument as purely economic and the collection requirement as a 14 "minimal burden" that did not frustrate tribal self-government. Moe, 425 U.S. at 482. 15 Plaintiffs here will likely argue that unlike the tribal retailers at issue in Colville and 16 Moe, they have "added value" to the taxed activities and are not seeking to market a tax 17 advantage. The Ninth Circuit, however, has already rejected this limited reading of the 18 Supreme Court cigarette cases in Chemeheuvi Indian Tribe v. California, 800 F.2d 1446, 1450 19 (9th Cir.1986). The court explained that any attempt to distinguish Colville on a case-by-case 20 21 basis would require analysis of factors such as whether non-Indian customers reside off the 22 reservation, the existence of tribal amenities attracting visitors, the length of time visitors 23 spend on the reservation, the level of state funding of reservation services, and the amount of 24 tribal effort devoted to marketing products. Id. The court concluded that "the Colville court did 25 not intend such distinctions," and held that the state's tax did not interfere with the Tribe's 26 36 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleamvater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-ev-00940-BJR Olympia, WA 98504-0123 (360) 753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 38 of 41 1 ability to govern itself. Id.; see also Salt River Pima-Maricopa Indian Cmty. v. Arizona, 50 2 F.3d 734, 738 (9th Cir. 1995) (rejecting "extremely narrow" reading of Colville as merely a 3 case about attempting to create a tax advantage given its expansive language). The Ninth 4 Circuit in Chemeheuvi also explained that it and the Supreme Court had repeatedly held "that 5 6 reduction in tribal revenues does not invalidate a state tax." 800 F.2d at 1449. 7 The Ninth Circuit again considered the argument with respect to taxes on ticket sales 8 and concessionary items to non-Indians in connection with sporting and cultural events. Gila 9 River Indian Cmty. v. Waddell, 91 F.3d 1232 (9th Cir. 1997). The Court addressed preemption 10 and sovereignty arguments, holding for the state on both. The Tribe argued that Arizona's tax 11 on sales to non-Indians on the reservation adversely impacted the Tribe's economic future and 12 13 interfered with tribal self-government. Id. at 1239. Like Tulalip, the Tribe in Gila River 14 asserted a sovereign right to implement its own comprehensive tax program. Id. The Court was 15 "not persuaded." Id. The Court reasoned that the concurrent taxing jurisdiction of the State and 16 Tribe on transactions between non-Indians did not undermine the Tribe's tax program. Id. The 17 mere fact that a tax may have an economic impact on a tribe does not defeat the tax. Id. 18 Even when addressing a tax involving a non-Indian engaged in business with a tribe to 19 profit from natural resources on the reservation, the Supreme Court has never found a violation 20 21 of the Williams sovereignty principle that tribes have the right to make their own laws and be 22 ruled by them. Where the tribes have prevailed in cases involving taxes on non-Indians, they 23 have done so on a preemption theory based on comprehensive federal regulation. See, e.g., 24 Bracker, 448 U.S. at 145. And in Cotton Petroleum, where mineral leases constituted the 25 primary source of the Tribe's general operating revenues, the Court did not even address 26 37 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleanwater Lane SW SUMMARY JUDGMENT PO Box 40123 NO. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360) 753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 39 of 41 2 4 5 6 7 sovereignty independently from its rejection of the taxpayer's preemption argument. Cotton Petroleum, 490 U.S. at 176 (referring to sovereignty as a "backdrop" but not separately addressing the issue). Tulalip raises the same economic arguments raised by the tribes in the numerous cases above. If Tulalip had more money, either from its own taxes, or by extracting higher rents, it could provide more services. But the Supreme Court and Ninth Circuit have made it plain that this indirect burden is not enough. See, e.g., Squaxin Island Tribe, 781 F.2d at 720 (recognizing that the only basis for challenging a state tax on liquor sales would have been if there was "a direct burden on tribal members or the operation of tribal government"). Plaintiffs do not even face the burdens of recordkeeping or prepaying, collecting, or remitting the taxes, as were imposed on the tribal retailers in Colville, Moe, and Chemeheuvi. Thus as a matter of law, Tulalip's economic arguments cannot form the basis for claiming it is prevented from doing "what is necessary to protect tribal self-government or to control internal relations." Montana, 450 U.S. at 564. To the extent Plaintiffs characterize their sovereignty claim as arising from the concept of "double taxation" or "multiple taxation," the Court should also reject that approach in accordance with the Supreme Court and Ninth Circuit's rejection of such arguments. See, e.g., Colville, 447 U.S. at 144-45 (tribes imposed their own tax on cigarette sales, in addition to Washington's tax); Cotton Petroleum, 490 U.S. at 189 (overlapping taxing jurisdiction of the state and Tribe is permissible unless Congress provides otherwise); Salt River, 50 F.3d at 738 (concluding that the Tribe was "more than adequately compensated through the one percent sales tax" it imposed on sales transactions at a shopping mall, and state's overlapping sales tax 38 ATTORNEY GENERAL OF WASHINGTON DEFENDANTS' MOTION FOR Revenue and Finance Division 7141 Cleamvater Lane SW SUMMARY JUDGMENT PO Box 40123 No. 2:15-cv-00940-BJR Olympia, WA 98504-0123 (360)753-5528 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 40 of 41 was not preempted). Plaintiffs cannot reconcile this body of case law with their sovereignty 2 claim. Their sovereignty cause of action should be dismissed as a matter of law. V. CONCLUSION MARK K. ROE Snohomish County Prosecuting Attorney /s/ Rebecca E. Wendling_ Rebecca E. Wendling, WSBA No. 35887 Rebecca J. Guadamud, WSBA No. 39718 Christina L. Richmond, WSBA No. 39731 Deputy Prosecuting Attorneys Snohomish County Prosecuting Attorney — Civil Division 3000 Rockefeller Ave., M/S 504 Everett, Washington 98201 (425) 388-6330/FAX: (425) 388-6333 Email: Rebecca.Wendlingga,snoco.org Email: Rebecca. Guadamud@a,snoco.org Email: Christina.Richmondgsnoco.org Counsel for Linda Hjelle, Kirke Sievers, and Snohomish County ROBERT W. FERGUSON Attorney General /s/ David M. Hankins David M. Hankins, WSBA No. 19194 Heidi A. Irvin, WSBA No. 17500 Senior Counsel Joshua Weissman, WSBA No. 42628 Jessica Fogel, WSBA No. 36846 Assistant Attorneys General Office of the Attorney General P.O. Box 40123 Olympia, WA 98504-0123 (360) 753-5528 Email: David.Hankins@atg.wa.gov Email: HeidiIna,atg.wa.gov Email: JoshuaW@at .wa.gov Email: JessicaFl@atg.wa.gov Counsel for the State of Washington, Governor Jay Inslee, and Director Vikki Smith, Department of Revenue 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 For the foregoing reasons, the Defendants request that the Court enter an order granting summary judgment to the Defendants and dismissing all claims in the Plaintiffs' Complaints. DATED this 22nd day of September, 2016. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-00940-BJR 39 ATTORNEY GENERAL OF WASHINGTON Revenue and Finance Division 7141 Cleanwater Lane SW PO Box 40123 Olympia, WA 98504-0123 (360)753-5528 Case 2:15-cv-00940-BJR Document 72 Filed 09/22/16 Page 41 of 41 [PROPOSED] ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-00940-BJR 1 ATTORNEY GENERAL OF WASHINGTON Revenue and Finance Division 7141 Cleanwater Lane SW PO Box 40123 Olympia, WA 98504-0123 (360) 753-5528 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The Honorable BARBARA J. ROTHSTEIN UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE THE TULALIP TRIBES and THE CONSOLIDATED BOROUGH OF QUIL CEDA VILLAGE, Plaintiffs, and THE UNITED STATES OF AMERICA, Plaintiff-Intervenor, v. THE STATE OF WASHINGTON, Washington State Governor JAY INSLEE, Washington State Department of Revenue Director VIKKI SMITH, SNOHOMISH COUNTY, Snohomish County Treasurer KIRKE SIEVERS, and Snohomish County Assessor LINDA HJELLE, Defendants. NO. 2:15-cv-00940-BJR [PROPOSED] ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT NOTE ON MOTION CALENDAR: October 14, 2016 This matter comes before the Court on the Motion for Summary Judgment filed by Defendants State of Washington, Jay Inslee, Vikki Smith, Snohomish County, Kirke Sievers, and Linda Hjelle, on September 22, 2016. The Court has reviewed the parties’ briefing, including the Defendants’ Motion for Summary Judgment, Plaintiffs’ Response Thereto, and Defendants’ Reply, and the declarations and exhibits submitted in support of the parties Case 2:15-cv-00940-BJR Document 72-1 Filed 09/22/16 Page 1 of 3 [PROPOSED] ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-00940-BJR 2 ATTORNEY GENERAL OF WASHINGTON Revenue and Finance Division 7141 Cleanwater Lane SW PO Box 40123 Olympia, WA 98504-0123 (360) 753-5528 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 briefing, and heard oral argument. After careful consideration, the Court concludes there is no genuine issue of material fact, and Defendants are entitled to judgment as a matter of law on all of the claims in the Complaints filed by Plaintiffs Tulalip Tribes and the Consolidated Borough of Quil Ceda Village and Plaintiff-Intervenor the United States of America. Accordingly, the Court hereby GRANTS Defendants’ Motion for Summary Judgment. DATED this _____ day of _______________, 2016. __________________________________ Honorable Barbara J. Rothstein United States District Judge Presented By: ROBERT W. FERGUSON Attorney General /s/ David M. Hankins David M. Hankins, WSBA No. 19194 Heidi A. Irvin, WSBA No. 17500 Senior Counsel Joshua Weissman, WSBA No. 42628 Jessica Fogel, WSBA No. 36846 Assistant Attorneys General Office of the Attorney General P.O. Box 40123 Olympia, WA 98504-0123 (360) 753-5528 Email: David.Hankins@atg.wa.gov Email: HeidiI@atg.wa.gov Email: JoshuaW@atg.wa.gov Email: JessicaF1@atg.wa.gov Counsel for the State of Washington, Governor Jay Inslee, and Director Vikki Smith, Department of Revenue Case 2:15-cv-00940-BJR Document 72-1 Filed 09/22/16 Page 2 of 3 [PROPOSED] ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-00940-BJR 3 ATTORNEY GENERAL OF WASHINGTON Revenue and Finance Division 7141 Cleanwater Lane SW PO Box 40123 Olympia, WA 98504-0123 (360) 753-5528 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MARK K. ROE Snohomish County Prosecuting Attorney /s/ Rebecca E. Wendling Rebecca E. Wendling, WSBA No. 35887 Rebecca J. Guadamud, WSBA No. 39718 Christina L. Richmond, WSBA No. 39731 Deputy Prosecuting Attorneys Snohomish County Prosecuting Attorney – Civil Division 3000 Rockefeller Ave., M/S 504 Everett, Washington 98201 (425) 388-6330/FAX: (425) 388-6333 Email: Rebecca.Wendling@snoco.org Email: Rebecca.Guadamud@snoco.org Email: Christina.Richmond@snoco.org Counsel for Linda Hjelle, Kirke Sievers, and Snohomish County Case 2:15-cv-00940-BJR Document 72-1 Filed 09/22/16 Page 3 of 3