Ninth Circuit confirms that tribal corporations are not Indian tribes for purposes of jurisdiction.
WVBR’s client, the Director of the California Department of Tax and Fee Administration, was sued along with the California Attorney General by a tobacco distribution enterprise owned and incorporated by the Big Sandy Rancheria Band of Western Mono Indians. The Corporation claimed its wholesale distribution of cigarettes to other tribes in California was immune from California’s tobacco tax and related laws governing the type of cigarettes that can be sold in California. WVBR won a motion to dismiss the tax challenge in the district court, arguing that the Tax Injunction Act barred the action. On June 16, 2021 the Ninth Circuit affirmed that ruling, finding in a published opinion that an Indian tribal corporation is not a “Indian tribe or band” within the meaning of 28 U.S.C. 1362, and thus cannot rely on the exception to the Tax Injunction Act for suits by Indian tribes or bands. The Court also upheld the dismissal obtained by the Attorney General on the Corporation’s other claims, finding that California’s Directory statute and licensing, reporting, and recordkeeping requirements for tobacco sales are properly applied to off-reservation sales even where made between Indian tribes. The appeal was handled and argued by WVBR partner Michael von Loewenfeldt. A copy of the Court’s opinion can be found here: https://bit.ly/3gChmQL Oral argument in the case can be found here: https://bit.ly/3iKd1hh