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Frequently Asked Questions

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  1. What about the provision in the Constitution that refers to "Indians not taxed"?
  2. Do non-Indians on the reservation have to pay state taxes?
  3. Does the State of New York have criminal jurisdiction in indian land?
  4. Aren't Indian Nation like another country like Canada or Mexico?
  5. Is an Indian "nation" different from and Indian "tribe"?
  6. What is the basis for the land claims by the various Indian nations?

  1. What about the provision in the Constitution that refers to "Indians not Taxed"?

    The clause "Indians not taxed" appears in the section of the Constitution that describes how representatives are elected to Congress. The Constitution requires each state, when it counts its citizens for purposes of congressional apportionment, to exclude "Indians not taxed." this is because at the time the Constitution was written indians were not citizens. It does not confer any immunity from taxation. In fact now Indians are citizens and are taxed by the federal government and therefore they are counted even for this purpose.

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  2. Do non-Indians on the reservation have to pay state taxes?

    Most taxes, yes. Most taxes, when imposed on reservation non-Indians will not be preempted. Of course, the enforcement of any state law on Indian land infringes to some extent on tribal self-government. The United States Supreme Court has held, however, that minimal burdens may be placed on Indian tribes and retailers to collect these state taxes. Taxes that apply solely to non-Indians are allowed. State income taxes, personal property taxes, real estate taxes, gasoline taxes, cigarette taxes and the like when imposed on non-Indians on Indian land are normally upheld by the courts.

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  4. Does the State of New York have criminal jurisdiction in indian land?

    For many years there was a presumption that indian land within the orriginal 13 colonies were under the state's general jurisdiction, in contrast to most Indian tribes, which are presumed to be free from state control. in 1942 a federal court qustioned New York's right to exercise any authority on Indian land. To resolve this conflict Congress passed a law that gives New York jurisdiction over "all offenses committed by or against Indians on indian reservations within the State of New York." 25 USC 232

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  6. Aren't Indian Nation like another country like Canada or Mexico?

    No. The United States Supreme Court has stated in Nevada v. Hicks, 533 U.S. 353, 121 S.Ct. 2304, 150 L.Ed. 2d 398, "Our cases make clear that the Indians' right to make their own laws and be governed by them does not exclude all state regulatory authority on the reservation. State sovereignty does not end at a reservation's border. Though tribes are often referred to as "sovereign" entities, it was "long ago" that "the Court departed from Chief Justice Marshall's view that `the laws of [a State] can have no force' within reservation boundaries. Worcester v. Georgia, 6 Pet. 515, 561 (1832)," White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 141 (1980). "Ordinarily," it is now clear, "an Indian reservation is considered part of the territory of the State." U. S. Dept. of Interior, Federal Indian Law 510, and n. 1 (1958), citing Utah & Northern R. Co. v. Fisher, 116 U. S. 28 (1885); see also Organized Village of Kake v. Egan, 369 U. S. 60, 72 (1962)."

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  7. Is an Indian "nation" different from and Indian "tribe"?

    According to The Rights of Indians and Tribes (Second Edition) by Stephen Pevar there is no difference between an Indian nation and an Indian tribe. He goes on to explain that the terms "nation", "tribe" and "band" have been used interchangeably in in Indian treaties and statutes. However, the term "nation" usually referes to a government independent from any other government, possessing the power of absolute dominion over its terriroty and people and that the Indian tribes are no longer nations because their governmental authority has been restricted by the United States.

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  8. What is the basis for the land claims by the various Indian nations?

    Most of the land claims are based solely on the alleged violation of the 1793 version of the Trade and Intercourse Act (TIA). The original version of the Trade and Intercourse Act (TIA) enacted in 1790 expressly applied to states. However, Congress omitted "states"; in the provision setting forth the scope of the statute in the subsequent versions of the statute which are applicable here. A clear expression of congressional intent is required to make states subject to federal statutes. Congress "must make its intention to do so unmistakably clear in the language of the statute."; Vermont Agency of Nat'l Resources v. United States ex rel. Stevens, 529 U.S. 765, 787 (2000) (citation and quotation omitted). The requirement of a clear and manifest expression of congressional intent is especially strong where Congress preempts the historic powers of the states by regulating in a field which the states have traditionally occupied. Will v. Michigan Dept. of Police, 491 U.S. 58, 65 (1989) (citing Rice v. Santa Fe Elev. Corp., 331 U.S. 218, 230 (1947)). In the closely-related Eleventh Amendment context, the Supreme Court has required that Congress must unequivocally express its intent to abrogate the states' immunity. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55 (1996); Atascadero State Hosp. v. Scanlan, 473 U.S. 234, 242-43 (1985) (cited in Will, 491 U.S. at 65).

    New York had the sovereign power under the Articles of Confederation to extinguish title to Indian lands in the state and to acquire them from the Indians without the approval or involvement of the United States. See Oneida VIII, 860 F.2d at 1154. The versions of the TIA in effect at the time of most of these claims contain no provision in unmistakably clear and unequivocal language that altered that balance.

    In contrast, the 1790 act was, by its plain terms, applicable "to any state, whether having the right of pre-emption to such lands or not." See Act of July 22, 1790, 4, 1 Stat. 137, 138, SPA635-36. When Congress revised the TIA in 1793, it expressly removed that language, thereby eliminating any manifestation of an intent to continue to bind the original thirteen states, which held the right of preemption. See Act of March 2, 1793, 8, 1 Stat. 329, 330, SPA637. By deleting the prior reference to the states, Congress freed the states to purchase Indian lands within their borders without any federal participation or approval. Notably, the Supreme Court has held that, because the TIA contains no clear expression of congressional intent to impose statutory restrictions on the federal government, the TIA is inapplicable to the United States. See Federal Power Comm. v. Tuscarora Indian Nation, 362 U.S. 99, 120 (1960). Therefore since it also lacks a clear expression of congressional intent to impose restrictions on the states it is inapplicable to them as well.

    The contemporaneous record also supports non-applicability of the 1793 TIA to pre-emption states such as New York. Although United States Attorney General Bradford opined that the 1793 TIA applied to New York's purchase of Indian land in the State, Governor Jay, after serving as the first Chief Justice of the Supreme Court, did not regard the matter as settled. A1020-21, 1367-68, 1385-86. The subsequent conduct of the United States, the Indian nations and New York in implementing the payment and other provisions of the post 1793 Treaties is also consistent with their belief in the validity of the Treaties.

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