Tunica-biloxi Tribe, a Sovereign Indian Nation, et al.,plaintiffs-appellants, v. State of Louisiana, et al., Defendants-appellees, 964 F.2d 1536 (5th Cir. 1992)

The state of Louisiana imposes a retail sales tax on the off-reservation purchase of new vehicles by Indian tribes and tribal members. Concluding that the imposition of the tax is proper, we affirm the district court's judgment in favor of the state.

The state of Louisiana imposes a sales tax upon the retail sale of motor vehicles within the state. La.R.S. 47:302(A). Payment of the tax is a prerequisite to registering and obtaining a license plate for the vehicle. Id. 47:303(B) (1). The Tunica-Biloxi Tribe ("the Tribe")¹  purchased a van off-reservation with federal grant money for the exclusive use of the Tribal health department. The van was taken to the reservation and has been permanently garaged there since then. The state sought payment of the sales tax on the van, and the Tribe paid "under protest."² 

Fred Gonzales, Jr., an enrolled member of the Tribe, also purchased a vehicle off-reservation; the vehicle was taken to the reservation and has been garaged there since then. Larry Burgess, an enrolled member of the Chitimacha Tribe³  who is employed by the Tunica-Biloxi Tribe, similarly purchased two vehicles off-reservation; these vehicles were taken to the Chitimacha reservation and have been garaged there since then. Both Gonzales and Burgess paid the sales tax; according to the plaintiffs, neither "formally protested the payment of these taxes."⁴ 

The Tribe, Burgess, and Gonzales brought individual and official-capacity suits against various state officers in addition to suing the state. The two individual plaintiffs sought class certification and claimed to represent a class of tribal members who own vehicles that are taken to and garaged on the reservation. The plaintiffs sought (1) a declaration that the tax was invalid, (2) a refund of the tax they paid, and (3) an injunction compelling the state to refund sales tax payments to similarly-situated persons and/or organizations that had paid such tax within the last three years.

The district court dismissed the individual-capacity suits, refused to certify the class, held that it did not have jurisdiction over the claims by the individual plaintiffs by virtue of the Tax Injunction Act, 28 U.S.C. § 1341, and awarded summary judgment in favor of the state.

The tax provision at issue in this case is La.R.S. 47:302(A), which provides as follows:

There is hereby levied a tax upon the sale at retail, the use, the consumption, the distribution, and the storage for use or consumption in this state, of each item or article of tangible personal property....

According to the plaintiffs, the state has run afoul of Supreme Court jurisprudence by taxing the off-reservation sale of vehicles taken to and garaged on the reservation.⁵ 

The Supreme Court has crafted a per se rule with regard to the "special area" of taxation of Indian tribes and members. See California v. Cabazon Band of Mission Indians, 480 U.S. 202, 215 n. 17, 107 S. Ct. 1083, 1091 n. 17, 94 L. Ed. 2d 244 (1987). The rule permits a state to tax lands, activities, and property "within the boundaries of the reservation" only where there has been a "cession of jurisdiction or other federal statutes permitting it." Id. (quoting Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S. Ct. 1267, 1270, 36 L. Ed. 2d 114 (1973)). When such tribal activities are conducted "outside the reservation," however, the situation "present [s] different considerations." Mescalero, 411 U.S. at 148, 93 S. Ct. at 1270.

Indeed, as the Court has stated, " [a]bsent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to non-discriminatory state law otherwise applicable to all citizens of the State." Id. at 148-49, 93 S. Ct. at 1270. This principle applies to a state's tax laws. Id. at 149, 93 S. Ct. at 1270-71. Thus, there are two presumptions at work here: State taxation of on-reservation tribal activities is presumptively invalid; state taxation of off-reservation tribal activities is presumptively valid.

The plaintiffs first argue that their situation falls within the on-reservation presumption. They then argue that regardless of which presumption applies in this case, the tax in question is preempted by federal regulation (at least with regard to the purchase of the health service van).A.

The plaintiffs contend that the imposition of the sales tax falls within the on-reservation presumption because the "taxable event" occurred when the vehicles were taken to and garaged on the reservation.⁶  In making this argument, they rely upon three of the Court's principal Indian tax law cases.

The first is Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 96 S. Ct. 1634, 48 L. Ed. 2d 96 (1976), which they claim is "substantially identical" to the case at bar. In Moe, the Court invalidated the imposition of an annual "personal property tax on personal property [motor vehicles] located within the reservation...." Id. at 469, 96 S. Ct. at 1639 (emphasis added). The "tax event," then, was the ownership of a motor vehicle as of January 1 of each year, and that "event" occurred on-reservation. See Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 163, 100 S. Ct. 2069, 2086, 65 L. Ed. 2d 10 (1980) (describing holding in Moe) .

Similarly, the situs of the tax event in the next case the plaintiffs cite--Colville--was on-reservation. In Colville, the Court invalidated the state's excise tax on motor vehicles imposed for the privilege of using such vehicles within the state. The Court held that the excise tax and the tax at issue in Moe were "quite similar": "Each is denominated an excise tax for the 'privilege' of using the covered vehicle in the State, each is assessed annually at a certain percentage of fair market value, and each is sought to be imposed upon vehicles own by the Tribe or its members and used both on and off the reservation." Id. at 162, 100 S. Ct. at 2086 (footnote omitted).

The state in Colville attempted to distinguish Moe, noting that while the tax event in Moe was the ownership of an on-reservation vehicle (i.e., a personal property tax), the event in the case at bar was "use within the State of the vehicle in question." Id. at 163, 100 S. Ct. at 2086. The Court rejected this distinction, noting that " [w]hile [the state] may well be free to levy a tax on the use outside the reservation of Indian-owned vehicles," it could not tax on-reservation use. Id. The tax in question was invalid because it taxed both on- and off-reservation activities, rather than apportioning between the two types of activity. Id. The key was that the tax event in both Moe and Colville was the use and ownership of a vehicle on the reservation--a tax event the state could not reach.

The third and final case upon which the plaintiffs rely is Ramah Navajo School Bd. v. N.M. Bureau of Revenue, 458 U.S. 832, 102 S. Ct. 3394, 73 L. Ed. 2d 1174 (1982). There, the Court held that the state gross receipts tax was invalid where it was imposed upon a non-Indian contractor that built a school on reservation land. The Court noted that the tax was "intended to compensate the State for granting 'the privilege of engaging in business.' " Id. at 844, 102 S. Ct. at 3402 (citations to state statute omitted). According to the Court, the state failed to explain "the source of its power to levy such a tax in this case where the 'privilege of doing business' on an Indian reservation is exclusively bestowed by the Federal Government." Id.

Again, as in Moe and Colville, the "taxable event" in Ramah was the on-reservation construction of a school--an activity beyond the taxing power of a state. Significantly, the Mescalero Court upheld the imposition of a similar gross receipts tax upon a tribe-owned ski resort located off-reservation. 411 U.S. at 157-58, 93 S. Ct. at 1275.⁷ 

The instant case is unlike Moe, Colville, and Ramah in that the state of Louisiana has not reached into the reservation and taxed an on-reservation activity.⁸  It does not attempt to tax the privilege of using or owning motor vehicles on the reservation. Rather, it taxes the retail sale of those vehicles off-reservation. A tax on the sale of tangible property is not a tax on the property itself; rather, it is a tax on the sales transaction.⁹ 

The plaintiffs do not contest the fact that the sale took place off-reservation. They contend, rather, that the "taxable incident was the delivery of the vehicle to its permanent garage on Indian lands, not the transfer of possession taking place off of the Reservation." They add that the state cannot impose the tax "if the property in question is not permanently made a part of the Louisiana property mass, or if it has not somehow ... affixed itself in the state on a long-term, ...." if not permanent [,] basis. The plaintiffs, however, confuse the jurisprudence interpreting the state's use tax with that interpreting the sales tax.

As noted above, Louisiana assesses a sales tax on the " 'sales price' of items sold in the state" such as the vehicles involved in this case. Pensacola Constr. Co. v. McNamara, 558 So. 2d 231, 232 (La.1990).¹⁰  The state also imposes a "use tax" at the same rate on out-of-state purchases of tangible property brought into Louisiana. La.R.S. 47:302(A) (2). The use tax "is designed to compensate the State for sales tax that is lost when goods are purchased out-of-state and brought for use into Louisiana," D.H. Holmes Co. v. McNamara, 486 U.S. 24, 27-28, 108 S. Ct. 1619, 1621-22, 100 L. Ed. 2d 21 (1988), and "to make all tangible property sold or used subject to a uniform tax burden regardless of whether it is acquired inside the state and subject to a sales tax or acquired outside the state and subject to a use tax." Pensacola, 558 So. 2d at 233.¹¹ 

The "taxable moment" of such use tax is when the property has been withdrawn from interstate commerce and has become part of the mass of the property of the taxing state. McNamara v. D.H. Holmes Co., 505 So. 2d 102, 105 (La.App.), writ denied, 506 So. 2d 1224 (1987), aff'd, 486 U.S. 24, 108 S. Ct. 1619, 100 L. Ed. 2d 21 (1988).¹²  The ultimate destination of the tangible property in question thus is important in the use tax context, as it provides the taxable nexus with the state. By contrast, in the sales tax context, the ultimate destination of the property is not crucial,¹³  as the sales transaction--the taxable event--provides the nexus with the state. The plaintiffs' reliance upon use tax cases therefore is misplaced.¹⁴ 

The plaintiffs' next argument focuses upon the purchase of the van for the tribal health service. Essentially, they argue that regardless of the situs of the taxable event (off- or on-reservation), the sales tax in this case is preempted by federal regulation. Relying upon Ramah, the plaintiffs assert that the federal regulation of Indian health care is so pervasive that it has left no room for the additional burden of the state sales tax.

The plaintiffs focus upon the following language in Ramah as support for their contention:Federal regulation of the construction and financing of Indian educational institutions is both comprehensive and pervasive.... The direction and supervision provided by the Federal Government for the construction of Indian schools leave no room for the additional burden sought to be imposed by the State through its taxation of the gross receipts.... This burden, although nominally falling on the non-Indian contractor, necessarily impedes the clearly expressed federal interest in promoting the "quality and quantity" of educational opportunities for Indians by depleting the funds available for the construction of Indian schools.

458 U.S. at 839, 841-42, 102 S. Ct. at 3399, 3400-01 (footnote omitted).¹⁵  The plaintiffs argue that the state sales tax, at least insofar as it was collected from the Tribe on the purchase of the van, is preempted by the Indian Self-Determination and Education Assistance Act, 25 U.S.C. § 450 et seq., and the Indian Health Care Improvement Act, 25 U.S.C. § 1601 et seq. The plaintiffs point to the fact that the Tribe purchased the van with federal grant money, and they argue that federal regulation of Indian health care is at least as pervasive as federal regulation of education.

While the argument has some superficial attractiveness, it is based upon a flawed reading of Ramah. The Court premised its analysis in Ramah on the fact that the state was seeking to regulate an on-reservation activity. The Court remarked that the state could not explain the source of its power to tax the privilege of doing business "on an Indian reservation" when that power "is exclusively bestowed by the Federal Government." 458 U.S. at 844, 102 S. Ct. at 3402. The state's only justification for the tax was that it was necessary to compensate the state for "provide [ing] services to [the non-Indian contractor] for its activities off the reservation." Id. at 844, 102 S. Ct. at 3402.

Moreover, the fact that Indian health care is subject to pervasive federal regulation does not defeat the general principle of Mescalero, which requires "express federal law" in order for Indian tribes going off-reservation to be exempt from state taxation. 411 U.S. at 148-49, 93 S. Ct. at 1270-71 (emphasis added). The plaintiffs point to no "express" federal exemption from a state's general sales tax. Thus, like the Court in Mescalero, we refuse to imply an exemption for the Tribe's off-reservation activity. See Mescalero, 411 U.S. at 157, 93 S. Ct. at 1275.

In sum, we find that the imposition of the Louisiana sales tax on the off-reservation purchase of vehicles does not violate Supreme Court authority and is not preempted by federal regulation.¹⁶  We therefore AFFIRM.