Justices end SD’s attempts to tax sales at Tribal Casinos

By Asha Glover

WASHINGTON – The U.S. Supreme Court on Tuesday ended South Dakota’s efforts to tax spending by nontribal members at a Native American casino, turning down the state’s challenge to an Eighth Circuit holding in favor of the Flandreau Santee Sioux Tribe.
South Dakota had sought to overturn the Eighth Circuit holding that the state cannot impose a use tax on nonmembers’ purchases of food and other amenities at the tribe’s casino. As is customary, the justices provided no explanation for declining the case.
Republican South Dakota Gov. Kristi Noem told the high court on May 1 that the Bracker balancing test, used to determine when state taxation of tribal activities is preempted, had evolved inconsistently. The governor asked the justices to outline what factors and elements to consider when weighing state interests against federal and tribal interests, according to court records.
The Bracker test, derived from the U.S. Supreme Court’s 1980 decision in White Mountain Apache v. Bracker , balances state interests against tribal and federal interests to determine if state taxation is preempted for areas such as gambling that supposedly place fiscal demands on state governments.
The Flandreau Santee Sioux sued South Dakota in November 2014, claiming the state had no authority to make the renewal of the tribe’s liquor licenses for the casino and other properties on its Moody County reservation contingent on collecting use taxes that the tribe asserts it does not owe.
In September 2017, a district court in South Dakota ruled the state cannot impose taxes on amenities purchased at the casino because they were complements to its gambling services and protected under the federal Indian Gaming Regulatory Act. But the court also said the tax could be imposed on other properties that were not complementary to the casino.
South Dakota appealed the district court ruling to the Eighth Circuit in February 2018. Last September, the Eighth Circuit disagreed that the act expressly preempted the tax but held that the state was not assessing taxes in return for governmental functions performed for those paying the tax, which meant the state could not impose the tax under Bracker.
South Dakota, in a brief filed at the beginning of the month, slammed the tribe’s assertion that the state sought to “overrule Bracker” and replace it with an unspecified test. The state said it was asking the court only to “flesh out” the test, asserting that it was not endorsing a rule that would give on-reservation tribal sovereignty interests no weight, as the tribe had argued in an April brief.
The state had asked the Supreme Court to provide guidance on what kind of force should be accorded to certain considerations under the test. Among potential areas the high court could provide guidance on, the state said, were the need for nexus between a tax and a federally regulated activity; the extent of nexus that would trigger preemption; the preemptive force behind congressional statements of purpose; and the preemptive force of indirect economic impacts of taxation.
Additionally, the state asserted that the tribe had rigged its business model to shield spending by nonmembers from taxation, according to court documents. The tribe’s sales of amenities at a loss to encourage more gambling activity meant that it was giving up revenue in an area subject to state taxation to maximize revenue in an area not subject to state taxation, the state told the high court.
Representatives for both parties and the state Department of Revenue did not respond to requests for comment Tuesday.
South Dakota is represented by Attorney General Jason R. Ravnsborg and Paul Swedlund of the South Dakota Office of the Attorney General.
The tribe is represented by Seth Pearman, attorney general of the Flandreau Santee Sioux Tribe, Shannon Falon of Johnson Janklow Abdallah & Reiter LLP, Rebecca Kidder, John Nyhan and Tim Hennessy of Fredericks Peebles & Patterson LLP and Adam Unikowsky and Allison Tjemsland of Jenner & Block LLP.
The case is Kristi Noem et al. v. Flandreau Santee Sioux Tribe, case number 19-1056, in the U.S. Supreme Court

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