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Supreme Court takes action on tribal car tag case
Monday, December 12, 2005

The U.S. Supreme Court delivered some potentially bad news to the Prairie Band Potawatomi Nation on Monday, a week after ruling against the Kansas tribe in a fuel tax case.

In an order, the justices granted a petition filed by the state of Kansas to overturn a 10th Circuit Court of Appeals decision that upheld the tribe's right to issue motor vehicle tags. But rather than hear the dispute, the high court vacated the favorable ruling and remanded the case for further review.

The move -- called a "GVR" for grant, vacate and remand -- means the lower courts will have to reconsider the case in light of last week's decision in the tax case. On December 6, the justices ruled that the state of Kansas could impose a tax on fuel sold to the Prairie Band.

The decision was a blow to the tribe, whose gasoline station buys fuel from a non-Indian distributor based off the reservation but sells it to customers on the reservation. The high court, by a vote of 7-2, ruled that the tax was legal because it didn't implicate tribal sovereignty.

Despite the negative outcome, the justices bypassed a critical question that had been raised in the fuel case and remains unanswered in the car tag case. At issue is a balancing test between competing tribal, state and federal interests.

Justice Clarence Thomas, who wrote the majority opinion, said the balancing test didn't come into play in the fuel case. "It does not apply where, as here, a state tax is imposed on a non-Indian and arises as a result of a transaction that occurs off the reservation," he said.

Justice Ruth Bader Ginsburg saw it differently. In a dissent joined by Justice Anthony Kennedy, she said tribal and federal interests in promoting tribal economies outweigh the state's interest in imposing the tax, even if it occurs off the reservation.

"The Nation's interests coincide with 'strong federal interests in promoting tribal economic development, tribal self-sufficiency, and strong tribal governments,'" she wrote, citing a related decision.

The Prairie Band hopes to capitalize on that view when the case is returned to the lower courts. The tribe argues that it has an inherent right to issue motor vehicle registrations and car tags.

"We are confident that under either the balancing test or discrimination standard, the 10th Circuit will reaffirm its decision that the state of Kansas is illegally prohibiting the use of the Nation's vehicle registrations," Zach Pahmahmie, the chairman of the tribal council, said yesterday.

The discrimination standard comes into play because the state of Kansas has recognized car tags issued by tribes in Oklahoma as well as those issued by other states. But the state says it doesn't have to recognize the Prairie Band tags off the reservation, raising public safety and sovereignty defenses.

This past March, a three-judge panel of the 10th Circuit had rejected the state's arguments. Writing for the majority, Judge Monroe G. McKay said "it is accepted that tribally titled and registered vehicles will have to leave the reservation and travel on Kansas highways."

He added: "Kansas' sovereignty and public safety interests do not automatically trump the tribe's interest in self-governance."

But now that the ruling has been vacated, whether the lower courts will reach a similar conclusion is not known. The Supreme Court had been holding on to the state's petition in the car tag case since September, and the justice waited until they made a decision in the fuel tax case before acting on it.

The last time the Supreme Court made a "GVR" in a significant Indian law case was in 1996, when the state of South Dakota challenged the constitutionality of the land-into-trust process under the Indian Reorganization Act. At least three federal circuits have since upheld the legality of the IRA.

Relevant Documents:
Supreme Court Order List (December 12, 2005)

Car Tag Decision:
Prairie Band Potawatomi Nation v. Kansas (March 25, 2005)

Fuel Tax Decision:
Syllabus | Opinion [Thomas] | Dissent [Ginsburg]

Relevant Links:
Prairie Band Potawatomi Nation - http://www.pbpindiantribe.com
NARF-NCAI Tribal Supreme Court Project - http://www.narf.org/sct/index.html