& The Questions It Raises Over Taxation On Indian Reservations By: Jennifer C. Klein, Deputy County Counsel Sonoma County Counsel’s Office May 30, 2013 CSAC-HLT Committee Presentation

 Federal Regulation  Adopted December 5, 2013  Effective January 4, 2013  Attempt to prohibit certain state and local taxes and fees imposed on Leased Indian Land for: ◦ “Permanent Improvements” ◦ “Activities” ◦ “Leasehold or Possessory Interest”

 “Indian Land” means land held in trust or restricted status for a tribe or individual Indian. Essentially “reservation” land.  In general, state and local governments do not have “civil regulatory” jurisdiction (i.e. land use) on Indian land, but do have “criminal prohibitory” jurisdiction (i.e. assaults).

The Regulation Covers the Following … ◦ “Permanent Improvements”  Buildings, other permanent structures ◦ “Activities”  Sales, business activity, other transactions  Delivery of water, electricity, other services ◦ “Leasehold or Possessory Interest”  Non-tribal concession at tribal casino (i.e. restaurant)  Non-tribal use and possession of exempt tribal land. …When on Leased Tribal Land

 § What taxes apply to leases approved under this part?

 (a) Subject only to applicable Federal law, permanent improvements on the leased land, without regard to ownership of those improvements, are not subject to any fee, tax, assessment, levy, or other charge imposed by any State or political subdivision of a State. Improvements may be subject to taxation by the Indian tribe with jurisdiction.

 (b) Subject only to applicable Federal law, activities under a lease conducted on the leased premises are not subject to any fee, tax, assessment, levy, or other charge (e.g., business use, privilege, public utility, excise, gross revenue taxes) imposed by any State or political subdivision of a State. Activities may be subject to taxation by the Indian tribe with jurisdiction.

 (c) Subject only to applicable Federal law, the leasehold or possessory interest is not subject to any fee, tax, assessment, levy, or other charge imposed by any State or political subdivision of a State. Leasehold or possessory interests may be subject to taxation by the Indian tribe with jurisdiction.

 Existing Law: ◦ Concept of Preemption ◦ Balancing Test from U.S. Supreme Court  Cotton Petroleum v. New Mexico (1989)  White Mountain Apache v. Bracker (1980) ◦ Federal Statute: 25 USC Section 398c.

 General Financial Impact? ◦ How much is County collecting in fees and taxes? ◦ Now? ◦ In the future? ◦ Any casinos under construction? Expansion?

◦ Think broadly: sales tax, property tax, assessment, fees, other charges? ◦ What services or infrastructure are supported by those taxes and fees? ◦ Impacts to those services or infrastructure? ◦ Some jurisdictions will have more or less “lease Indian Land” falling under this regulation.

 Other Considerations: ◦ Unfair competitive advantage enjoyed by those who operate on leased Indian lands – particularly if Tribe does not impose equivalent tribal tax or fee.

 Other Considerations: ◦ Timing of Impacts may vary depending on the type of tax or fee.  Possessory Interest taxes determined based on possession on January 1 st of any given year.  Sales taxes – date of transaction  Water, utility delivery – potentially on going  Other?

 Desert Water Agency v. Dept. of Interior, BIA ◦ Suit filed March 29, 2013 ◦ DWA argues regulation either doesn’t apply to DWA or that the law is invalid because it conflicts with authorizing statute, 25 USC sec. 398c. ◦ Feds have 60 days to respond. ◦ Test Case

 Identify potential impacts for each county or taxing authority  Talk to Assessor and Tax Collector  Collecting information concerning on reservation activities may already be a challenge; information may be incomplete  Develop legal strategy for responding to regulation with County Counsel  Consider coordinating response with state or other affected public entities.

The End Thank you