Jurisdiction Chart Outline

Regulating Non Member:

Law

• Infringement Test. Williams v. Lee.

• Substantive and licensing regulation in alcohol sales permitted b/c tribe has never had sovereignty over this. Rice v Rehner.

• Not if federal law is so expansive as to preempt further state law in the subject area. Field preemption with low threshold. Warran Trading Post.

• But balance state interests against fed/Ind interests, consider value generated and apply the legal incidence test. Colville, Mescalero Apache.

• May also consider whether tribal regulation is so expansive that add’l state reg’s would conflict. New Mexico v. Mescalero Apache

Tax

• Membership, not Indian status, is what matters. Colville.

• Infringement test. Williams v. Lee. Depriving tribe of revenue does not violate this test. Colville.

• Warran, Colville, Mescalero preemption & balancing tests

• Court more likely to allow taxation of cigarettes, or something just bought and resold. Colville.

• Less likely to allow taxation of natural resources, (Bracker) or enjoyment derived from Rez (Mescalero Apache), even when state provides minimal services.

• Bracker express Williams concern, general interest in raising revenues is not enough to justify state taxation.

• If not preempted, may tax if state is providing services that allow the business to operate, even if those services are of substantially less value than the tax revenue. Cotton Petroleum.

Regulating Member Indian:

Law: No. Infringement test. Williams v. Lee

Tax: No income or property taxes. Preempted. McClanahan, Bryan. Probably can’t tax purchases, because Indians not benefitting from the tax revenues (Colville reasoning sort of…).

PL 280 State:

Law: Cabazon test for prohibitive v regulatory law. States have no PL 280 authority to enact regulatory laws, but states may still do so under other tests.

Tax: state cannot broaden tax powers just because PL 280 needs funding. Above rules apply. Bryan.

Regulating Non Members

Law/Tax:

• Tribes have some power to exercise jx over people on Reservation, regardless of explicit consent through membership. Mazurie. (could deny liquor license, tribe had independent regulatory authority)

• BUT Montana: no regulatory jx over nonmembers on fee land, unless consensual (commercial) relationship or welfare/security threat.

  • Shirley imposes nexus requirement on consensual relationship exception

  • Brendale sets high bar for Montana welfare/security exception.

Regulating Members

Not sure how this would work. Could tribe impose tax on Navajo guests in Shirley? I would assume no…