Abstract
Federal law operates on the premise that state jurisdiction does not interfere with American Indian jurisdiction, and it is generally accepted that states may not tax Indian entities or members. However, the Supreme Court held that there are circumstances in which states may extend taxation onto non-Indians residing on tribal lands. In cases where Indians believe that states are violating legislation or regulations prohibiting state taxation, the Court follows the Bracker balancing test, an interest balancing test that weighs state, federal, and tribal interests. As with most balancing tests, this test lacks strict guidance on how to properly weigh certain facts that demonstrate each party’s interest. As such, lower courts implement this test with inconsistent results. This Comment focuses on circuit cases from the Ninth, Tenth, and Eleventh Circuits, analyzing the Bracker balancing test as applied to the imposition of possessory interest taxes on non-member leasing agreements within tribal lands. This Comment identifies the faults of lower courts’ applications of Bracker, which result in different standards for burden incidence, state services, and federal regulations. Finally, this Comment recommends development of the Bracker analysis through modernization of the test, integration of agency regulations, and express congressional language regarding preemption.
Included in
Business Organizations Law Commons, Indigenous, Indian, and Aboriginal Law Commons, Tax Law Commons