home
***
CD-ROM
|
disk
|
FTP
|
other
***
search
/
The Supreme Court
/
The Supreme Court.iso
/
mac
/
ascii
/
1989
/
89_1322
/
89_1322.c
< prev
next >
Wrap
Text File
|
1991-02-26
|
3KB
|
71 lines
Subject: 89-1322 -- CONCUR, OKLAHOMA TAX COMM'N v. POTAWATOMI TRIBE
SUPREME COURT OF THE UNITED STATES
No. 89-1322
OKLAHOMA TAX COMMISSION, PETITIONER v.
CITIZEN BAND POTAWATOMI INDIAN
TRIBE OF OKLAHOMA
on writ of certiorari to the united states court of appeals for the tenth
circuit
[February 26, 1991]
Justice Stevens, concurring.
The doctrine of sovereign immunity is founded upon an anachronistic
fiction. See Nevada v. Hall, 440 U. S. 410, 414-416 (1979). In my opinion
all Governments -- federal, state, and tribal -- should generally be
accountable for their illegal conduct. The rule that an Indian tribe is
immune from an action for damages absent its consent is, however, an
established part of our law. See United States v. United States Fidelity &
Guaranty Co., 309 U. S. 506, 512-513 (1940). Nevertheless, I am not sure
that the rule of tribal sovereign immunity extends to cases arising from a
tribe's conduct of commercial activity outside its own territory, cf. 28 U.
S. C. MDRV 1605(a) ("A foreign state shall not be immune from the
jurisdiction of courts of the United States or of the States in any case .
. . (2) in which the action is based upon a commercial activity carried on
in the United States by a foreign state . . . ."), or that it applies to
claims for prospective equitable relief against a tribe, cf. Edelman v.
Jordan, 415 U. S. 651, 664-665 (1974) (Eleventh Amendment bars suits
against States for retroactive monetary relief, but not for prospective
injunctive relief).
In analyzing whether the Citizens Band Potawatomi Indian Tribe can be
held prospectively liable for taxes on the sale of cigarettes, the Court
today in effect acknowledges limits to a tribe's sovereign immunity,
although it does not do so explicitly. The Court affirms the Court of
Appeals' holding that the Oklahoma Tax Commission's counterclaim against
the Tribe was properly dismissed on grounds of the Tribe's sovereign
immunity, but then proceeds to address the precise question raised in the
counterclaim -- whether the Tribe in the future can be assessed for taxes
on its sales of cigarettes. The Court indulges in this anomaly by
reasoning that the issue of the Tribe's prospective liability "is fairly
subsumed" in the Tribe's main action seeking to have the Tax Commission
enjoined from collecting back taxes. See ante, at 6.
In my opinion, however, the issue of prospective liability is properly
presented only in the Tax Commission's counterclaim. It is quite possible
to decide that the Tribe cannot be liable for past sales taxes which it
never collected without going on to decide whether the Tax Commission may
require the Tribe to collect state taxes on its sales in the first place.
In my opinion the Court correctly reaches the issue of the Tribe's
prospective liability and correctly holds that the State may collect taxes
on tribal sales to non-Indians. My purpose in writing separately is to
emphasize that the Court's holding in effect rejects the argument that this
governmental entity -- the Tribe -- is completely immune from legal
process. By addressing the substance of the Tax Commission's claim for
prospective injunctive relief against the Tribe, the Court today recognizes
that a tribe's sovereign immunity from actions seeking money damages does
not necessarily extend to actions seeking equitable relief.
------------------------------------------------------------------------------