What does it mean to condition federal tax liability on the degree to which a Native American has assimilated? Native Americans have been long presumed to be subject to federal income taxation despite the absence of express congressional authorization. This presumption obscures the complicated history by which Native Americans were incorporated into the federal tax base. This Article provides a normative, long-overdue description of Native federal income tax liability by situating that historical path within the longer trajectory of federal Indian law. This Article traces how an assimilative framework that includes allotment policy, competence determinations, and the Indian Citizenship Act of 1924 collectively transformed Tribal members from “Indians not taxed” into presumed taxpayers. Historical federal taxation jurisprudence required that Native Americans abandon their Tribal membership to be taxable. But now, courts quietly ignore this requirement. The failure to resolve the impact of dual citizenship—the coexistence of U.S. citizenship with continued Tribal citizenship—collapses political distinctness into presumptive assimilation.
By excavating this history, this Article demonstrates that Native federal income taxation is neither inevitable nor doctrinally coherent. It argues that courts have misapplied statutory canons of interpretation by privileging the presumption of taxability over Indian canons of construction, which require express congressional intent for courts to impose a statute of general applicability on Tribal citizens. But more fundamentally, this Article contends that taxation doctrine has failed to account for the implications of Native dual citizenship, thereby erasing the sovereign-to-sovereign relationship that the law otherwise recognizes. It concludes by advancing a structural reform to redirect federal income tax paid by Tribal citizens to their Tribal governments. Modeled on existing provisions such as the foreign tax credit, this reform would affirm Native dual citizenship, strengthen Tribal fiscal capacity, and restore coherence to federal tax law. In reframing taxation from an instrument of assimilation to a recognition of Tribes’ sovereign status, federal law can more accurately reflect contemporary commitments to Tribal self-determination.
Table of Contents Show
Introduction
“Let him lay aside his picturesque blanket and moccasin, and, clad in the panoply of American citizenship, seek his chances of fortune or loss in the stern battle of life with the Aryan races.”
Philip C. Garrett, Indian Rights Association, 1886[1]
To the extent federal Indian law[2] contains any orthodoxy, it is that individual Native Americans are subject to federal income taxation.[3] Congress possesses broad authority to tax all persons and entities throughout the United States,[4] including foreign persons.[5] Yet the taxation of Native Americans does not rely on the straightforward premise that they, like all other income-generating persons, fall within the reach of the Sixteenth Amendment; nor does it rest on an express statutory enactment pursuant to Congress’s plenary power over Indian affairs.[6] Rather, courts have typically rationalized Native American federal income tax liability on the premise that “Indians are citizens and . . . are subject to the payment of income taxes as are other citizens.”[7] In so doing, courts have uniquely infused Native American U.S. citizenship with peculiar and outsized doctrinal significance within the taxation context.
Before recommending reform, this Article first provides a normative description of the jurisprudential history behind the doctrinal force of U.S. citizenship regarding Native American federal income tax liability. This history reveals more than just the application of congressional taxing power; it also illustrates the transformation of Native Americans from distinct noncitizens to putative citizens. Unlike most persons born on U.S. soil,[8] Native Americans were not categorically recognized as U.S. citizens for much of the nation’s history.[9] Instead, Tribal members were recognized as “Indians not taxed.”[10] They retained their political separateness at the formation of the United States and after the ratification of the Fourteenth Amendment and were consequently constitutionally excluded from both representation and taxation.
Throughout U.S. colonial expansion, Native peoples routinely resisted integration into the United States.[11] But by the late nineteenth and early twentieth centuries, Congress, relying on the trust responsibility, began to extend Native citizenship through a piecemeal process of individual and Tribe-specific statutes,[12] typically conditioned on abandonment of Tribal affiliation.[13] To “liberate” Native people from the perceived failings of Tribal life, assimilation became an explicit federal policy that pursued the complete absorption of Native people into the American polity to eventually extinguish all Tribes.[14] To facilitate assimilation, Congress provided for periods of tutelage to accommodate the Native person’s transition from Tribal to non-Tribal.[15] The Burke Act of 1906 reinforced this scheme by temporarily staying taxation liability, even for Natives with U.S. citizenship, until a federal declaration of competence.[16] That is, Native tax exposure[17] rested on the extent to which the United States deemed Natives not only sufficiently American, but also sufficiently not Tribal.
That framework shifted when the Indian Citizenship Act of 1924 unilaterally naturalized Native people en masse regardless of their conduct, consent, or perceived assimilation.[18] Unlike prior Native American naturalization statutes, this Act did not require relinquishment of Tribal membership,[19] and thereby implicitly promoted Tribal self-determination. Henceforth, Tribal members were citizens of both the United States and their Tribe.[20] But this raised an important doctrinal question: What happens to Native federal income taxation liability when a U.S. citizen retains their Tribal membership? Immediately following the Act’s passage, seemingly nothing happened. Courts continued to engage in case-by-case judicial assessments to determine whether Native petitioners were “competent,” or citizens sufficiently assimilated to be taxable.[21] Competency determinations, in line with other assimilationist federal policies, reflected the racist viewpoint that Native Americans could not self-govern.
But over time, the federal government grew uneasy with competency determinations and the termination of Tribal governance.[22] In part, the federal trust responsibility was reconfigured to again support Tribal self-determination, including through legislation like the Indian Reorganization Act (IRA) of 1934.[23] Federal policy no longer encouraged Native Americans to “transition” away from their Tribe. Rather, it empowered Tribes and their Tribal members to retain their political distinction and no longer deemed them “savage,” “inferior,” or “noncompetent.”[24] Today, the federal government recognizes 575 Tribes—with institutional mechanisms designed to formalize and even celebrate Tribal self-governance.[25] Tribes and their members are actively rebuilding, investing in, and strengthening their institutions, languages, customs, and communities.[26] Given that federal income tax exposure historically reflected assimilation, Tribes’ resilient political existence and Native persons’ continued political affiliation via their Tribal membership should grant them immunity to federal income taxation absent an explicit federal statute stating otherwise.
The Constitution framed the political distinctness of Tribes in terms of “Indians not taxed,” where Tribal members were neither citizens nor taxable.[27] The General Allotment Act, as a means of eradicating the political distinctness of Tribes, established a process by which some Indian allottees would transition from “not taxed,” or as Congress termed “noncompetent,” to taxable, “competent” citizens.[28] In so doing, the General Allotment Act conflated noncompetence with Tribal political status. Accordingly, when courts shifted away from competency determinations, they presumed that at some indeterminate moment, all Native Americans became “Indians taxed.”[29] The Internal Revenue Service (IRS) anchored this position in Squire v. Capoeman,[30] which held that all Native income is taxable except (1) where a treaty or statute expressly exempts income[31] and (2) “where income is derived directly from restricted allotted land.”[32] This cramped construction collapses two distinct inquiries—competence and political status—into one, thereby eroding Tribal political distinctness.[33] It must be possible to shed racist and derogatory conceptions like noncompetence without also eroding Tribal sovereignty. To presume that all Native Americans, despite their retained Tribal membership, are taxable hinges taxation doctrine on the logic of absorptive assimilation, drawing on the broader jurisprudential trope that Tribes and their members are steadily vanishing into the body politic.[34]
Indeed, this logic seeps into broader taxation issues, particularly those faced by Tribal governments. Although Tribes possess inherent authority to tax both members and nonmembers,[35] the Supreme Court has sharply limited Tribal power to tax non-Indians,[36] while simultaneously permitting state taxation authority to encroach on Tribal lands.[37] As a result, Tribes are effectively dispossessed of meaningful sales, property, or excise tax authority within their territories. The consequences are stark: Tribes are forced to rely disproportionately on private enterprises and chronically inadequate federal programs.[38] These inequities feed into a cycle of pervasive systemic hardship. Native Americans face higher rates of poverty, unemployment, sexual violence, and police violence than any other group in the United States.[39] Moreover, Tribal governments are woefully underfunded.[40] Accordingly, assuming that Native citizens are liable for federal income tax without regard to the precarious financial position of Tribes is not only inequitable, but it also undermines Tribal self-determination by funneling revenue through federal coffers encumbered with federal conditions.[41] In fact, in 2015, the National Congress of American Indians (NCAI), the oldest and largest national organization of American Indian and Alaska Native Tribal governments, specifically called for protection against the unauthorized federal taxation of income earned on Tribal lands.[42] Heeding NCAI’s call, this Article proposes legislation that would redirect Tribal members’ income taxes to the Tribes themselves.
The Article proceeds in three parts. Part I traces the incorporation of Native Americans as U.S. citizens, showing how taxation became uniquely tethered to Indian citizenship.[43] This exceptionalism reflects both the constitutional recognition of Indian separateness—particularly as it relates to taxation immunity—and the jurisprudential fixation on “civilization” as a prerequisite to citizenship. Within the taxation realm, the U.S. citizenship of Native Americans performs distinctive and outsized doctrinal work.
Part II examines the federal income tax case law as applied to Native Americans, exposing the misreading of the General Allotment Act and the persistence of assimilationist logic.
Part III advances a policy proposal that moves beyond doctrinal repair and toward structural recognition: Federal income taxes paid by Tribal citizens should be directed to their Tribal governments. Such a reform would not merely mitigate chronic underfunding and compensate for the denial of Tribal tax bases; it would also affirmatively recognize Tribal sovereignty. Channeling revenues to the very governments from which Tribal citizenship derives as a matter of federal policy would strengthen the sovereign-to-sovereign relationship. Native tax reform is thus a matter of both administrative coherence and political recognition; it affirms Native dual citizenship and rejects the presumption of Tribal disappearance.
I. Native American Citizens
Native American citizenship has always been intertwined with taxation. Absent an express exemption, the Internal Revenue Code subjects Native Americans to federal income taxation on the same terms as other U.S. citizens.[44] This seemingly straightforward principle sits uneasily alongside Article I, Section 2 of the U.S. Constitution, which describes Indians as “not taxed.”[45] At the time of the Constitution’s drafting, the phrase “Indians not taxed” reflected a normative recognition of Tribal political separateness. Nonassimilated Indians were excluded from apportionment counts precisely because they were outside the American polity.[46] Thus, Native political distinctness was constitutionally defined through the lens of taxation immunity.[47] Consequently, most contemporaneous federal-Tribal treaties are silent as to taxation. Indeed, no explicit provision was needed to preserve a taxation immunity already inherent in the sovereign-to-sovereign relation.[48]
Tribal political separateness persisted from the Founding through Reconstruction. In 1787, constitutional references to “Indians” included both those “not taxed” (i.e., politically separate) and taxable Indians (i.e., those who had left their Tribes and assimilated into American communities). “Indians not taxed” regarded Indians located in the geographic west, physically beyond the borders of the United States.[49] At the time, political separateness was largely synonymous with geographic distance. However, following the Civil War, the Fourteenth Amendment eliminated the Three-Fifths Clause of Article I but maintained “Indians not taxed.”[50] By then, the United States extended coast-to-coast. Diminishing Tribal lands peppered the confines of the United States, meaning most Indians necessarily resided within the geographic United States. Nevertheless, the Fourteenth Amendment reaffirmed the political separateness of Tribes and their members, borrowing the verbatim language of Article I to preserve the exclusion of “Indians not taxed.”[51] This is, hitherto, the final constitutional provision regarding Tribes and Indians.
Neither Article I nor the Fourteenth Amendment contemplated a federal income tax. Congress first imposed a federal income tax during the Civil War,[52] but the Supreme Court invalidated it in 1895.[53] The Sixteenth Amendment, ratified in 1913, reversed that decision by granting Congress the authority “to lay and collect taxes on incomes, from whatever source derived.”[54] But laws of general applicability, such as the Internal Revenue Acts, are understood not to apply to Indians unless they explicitly reference Indians.[55] That interpretative framework continues to shape Tribal taxation doctrine today. Tribal governments remain immune from federal income taxes, akin to other sovereign entities.[56] Yet, individual Indians are presumed generally subject to federal income, estate, and gift taxes absent a treaty or statutory exemption—most commonly in connection with fishing rights or income derived from restricted trust allotments.[57] The divergent tax treatment of Tribes versus individual Tribal members has followed a winding doctrinal path, but the common endpoint has been the naturalization of Native Americans, manifesting in the Indian Citizenship Act of 1924.
A. The Trust Duty: A State of Pupilage
In federal Indian law, courts have long framed the relationship between the United States and Tribes as one between a stronger and weaker sovereign.[58] The federal government’s trust responsibility to Tribes reflects this dynamic: Congress has recognized plenary authority over Indian affairs, but with that plenary power comes a concurrent obligation to protect Tribes. This principle was embodied in federal-Tribal treaties, agreements, and land-cession contracts, all of which reflected sovereign-to-sovereign commitments.[59] While the content of the trust responsibility is opaque, the Indian canons of construction have emerged to mitigate the inherent power imbalance between the United States and Tribes.[60] Generally, treaties are to be interpreted in light of how the Indians would have understood the terms,[61] while Tribal sovereign authority, such as sovereign immunity,[62] is to be liberally preserved absent an express congressional statement to the contrary.[63] The Indian ambiguity canon provides that statutes be construed liberally in favor of Indians, with ambiguities resolved to their benefit.[64] Applied faithfully, this canon would require generally applicable statutes like the Revenue Acts—enacted without Tribes in mind—to be read as preserving existing Indian rights absent clear congressional intent to the contrary. Yet courts have been strikingly reluctant to invoke the canon in the taxation context.[65]
Over time, lawmakers have weaponized the language of protection to justify assimilationist policies, including the systemic erosion of Tribal sovereignty under the guise of naturalization. Courts have often distorted the trust responsibility through the rhetoric of racial hierarchy.[66] As early as 1831, the Supreme Court described Native peoples as “in a state of pupilage,” likening their relationship to the United States to that of “a ward to his guardian.”[67] By 1886, the Court declared the relationship as one “between a superior and inferior.”[68]
Scholars have critiqued this framing as doctrinally erroneous.[69] Guardianship, they argue, presupposes incapacity that terminates upon maturity; sovereignty, by contrast, presumes inherent capacity.[70] Under U.S. law, Tribes were capable entities by definition—they negotiated treaties, exercised governance, and retained the power of self-determination.[71] Modern federal policy affirms as much by promoting Tribal self-determination, a recognition of Tribes’ enduring legal capacity.[72] Thus, while the trust responsibility has been characterized as a guardian-ward dynamic in times of paternalistic and racial hostility toward Tribes, it nevertheless continues to describe a sovereign-to-sovereign dynamic between the federal government and Tribes that exists outside of the typical federal-state system.
During the assimilation era, the guardian-ward dynamic hardened into a racialized civilized-savage binary.[73] Had the conquest of Natives been complete, international law would have required the incorporation of Native people as citizens.[74] However, not only was conquest incomplete, but also neither Americans nor Tribes sought such integration.[75] Instead, U.S. law treated Tribal membership as incompatible with U.S. citizenship,[76] justifying land dispossession while racializing Native identity.[77] In contrast to being seen as White or Black, Indians were cast as members of a third, indeterminate racial class.[78] Limited pathways to naturalization existed, but only for those who renounced Tribal ties and demonstrated “civilized” practices.[79] Consider U.S. Attorney General Caleb Cushing’s assessment that just because “Indians are born in the country [that] does not make them citizens of the United States. . . . It is an incapacity of his race.”[80] Indians, in short, were believed to be racially inferior but salvageable through assimilation.[81]
Scholars have critically examined the curious dimensions of Native-ness, including the artificial coherence of Natives as both a political and a racial group.[82] For instance, Gregory Ablavsky examined this tension within the U.S. Constitution itself, noting that because the Constitution explicitly uses the term “Indian,” Indianness is either “a permissible political classification,” or it is “a racial classification authorized by the Constitution.”[83] The constitutional ramifications of Indian status have only ever been explored superficially. Ultimately, the political and racial elements of Indianness are inseparable and “hopelessly intertwined.”[84] This racial-political hybridity persists today: For example, some federal statutes condition criminal jurisdiction on “Indian” status, which is often defined by Tribal membership and blood quantum.[85]
By the late nineteenth century, the federal government had largely kicked the Indian status question down the road. By that point, the federal policy of separateness had given way to a policy of assimilation.[86] Because, according to assimilationist logic, Indians would eventually disappear, the complexities of Indian status did not require legal reconciliation.[87] Notably, though, assimilationists believed this disappearance would be incremental.[88] That is, Native Americans that did not die out would slowly be incorporated into the American polity. Blood quantum and civilized habits became new qualifiers for Indianness, further blurring the boundaries between racial and political.[89] “Mixed-blood” Indians, for example, were no longer considered Indian.[90]
The General Allotment Act of 1887 operationalized this incremental shift towards assimilation by undermining Tribal landholding and redefining Native status. The General Allotment Act divided many Tribal lands into privatized allotments, which were to be held in trust for twenty-five years before alienation and taxation could attach.[91] Prior to allotment, all Tribal lands were held in trust by the United States and were in effect inalienable and owned communally by the Tribe.[92] The General Allotment Act effectively de-Tribalized the lands by parceling out select plots to private Indian owners. Restraints on the alienation of privately owned land are usually suspect.[93] But through the federal plenary power over Indian affairs, Congress could impose significant restraints on both alienation and taxation of the allotted land to “lessen the difficulty of the period of transition.”[94] The U.S. Supreme Court described allotment as “a policy of assimilating the Indians through dissolution of tribal governments and the compulsory individualization of Indian land.”[95]
The Allotment Act impacted the status of Natives in addition to the status of the land. It extended citizenship to those who received allotments and voluntarily adopted “civilized” ways.[96] But the Burke Act of 1906 amended the General Allotment Act to postpone citizenship until the issuance of a fee patent, or when the Secretary of the Interior declared the relevant Indian competent.[97] Competency became its own legal term of art, marking a curious intersection of competing incentives for Indians because while noncompetency provided taxation immunity, dignity might demand a recognition of competency. For example, Indians applying for competency were asked to provide their age, “degree of Indian blood, marital status, number in family, and whether the applicant was self-supporting, was industrious, attended school, or cultivated his land.”[98] Further, Indian agents were to inquire whether the applicant “had been pressured by speculators to dispose of his lands, was physically qualified to work, was a man of good character and reputation, or was an alcoholic.”[99] Even Vice President Charles Curtis, a member of the Kaw Nation who served in the Hoover Administration, famously remained a noncompetent Indian.[100]
Like boarding schools,[101] allotment was designed to accelerate assimilation through incremental exposure to Anglo lifestyle,[102] including private property,[103] citizenship,[104] and taxation,[105] for purposes of facilitating their successful assimilation.[106] Those who remained on unallotted lands remained noncitizens. Even those who became citizens through allotment remained shielded from taxation for twenty-five years or until deemed competent.[107] The result was catastrophic. Tribal governments’ landholdings plummeted from nearly 140 million acres of land in 1887 to 48 million by 1934.[108] The fractionation of allotted parcels produced enduring economic and jurisdictional chaos.[109] The federal government eventually conceded that allotment was a disaster and ended the practice in the Indian Reorganization Act (IRA) of 1934,[110] extending any existing trust terms indefinitely.[111] Litigation, such as the decades-long Cobell v. Salazar case, underscored the scale of subsequent federal mismanagement,[112] leading to a $3.4 billion settlement and land buy-back programs that continue today.[113]
Allotment’s legacy extends to taxation. The vision of allotment was that, upon its completion, the civil and criminal laws of the surrounding state, including state taxation authority, would extend over the entirety of former Tribal lands and nullify Tribal authority.[114] Instead of establishing that regime outright, allotment statutes imposed twenty-five-year taxation restrictions. The General Allotment Act provides that allotted lands shall be held in trust for twenty-five years “in fee, discharged of said trust and free of all charge or incumbrance whatsoever.”[115] Allotment statutes use the general terms “incumbrance” and “taxation,” though at the time of their enactment property taxes were the most relevant tax. Today, land held in trust and allotted land that continues to be restricted are immune from state property taxes.[116] Unrestricted lands, in contrast, are subject to state property taxes.[117]
The vision of allotment was that Tribes would vanish. This did not happen.[118] But even after the IRA ended allotment as federal policy, courts continued to routinely inquire whether an Indian was sufficiently “civilized” to be taxed.[119] Allotment’s assimilationist framework became entrenched in taxation jurisprudence, extending to inquiries regarding the federal income taxation exposure of Native Americans. Assimilation, not sovereignty, became the threshold question. It is here that taxation jurisprudence most clearly exposes the conflation of competence, citizenship, and political distinction.
B. Moments of Citizenship
“Between the date of the Fourteenth amendment and the present, the Indian’s status has undergone a marked change.”
Opinion of the Solicitor, Nov. 7, 1940[120]
Because Tribes were historically regarded as distinct from and often hostile to the United States, Tribal members were framed not merely as members of separate nations, but also as uncivilized and fundamentally antithetical to the American project.[121] A 1940 Solicitor’s Opinion concluded that the constitutional phrase “Indians not taxed” described Indian individuals situated outside the American political community and therefore excluded from apportionment.[122] Thus, citizenship for Native Americans was initially extended sparingly. But over time, citizenship became a deliberate instrument of assimilation offered in exchange for Tribal lands and the dissolution of Tribal political identity.[123] Thus, U.S. citizenship was a tool to disrupt the distinct sovereignty of Tribes. Yet today, Native Americans are both U.S. citizens and citizens of their Tribe. Applying general taxation statutes to citizens of separate Tribal sovereigns directly contradicts the historical framework in which the federal government used citizenship as a sword to dismantle the recognized pre-constitutional sovereignty of Tribes.
Despite recognizing the phrase “Indians not taxed” as a reflection of political distinctness, the 1940 Solicitor Opinion went on to circuitously reason that “[s]ince all Indians are today subject to taxation by the Federal Government . . . there are no longer Indians not subject to taxation.”[124] That is, all Natives are taxed because the United States taxes all Natives. More pointedly, at some undefined moment, Natives collectively transitioned away from “Indians not taxed” by satisfying the criterion for inclusion in the American polity. But when was that moment? Was it the attainment of U.S. citizenship? And did it also signify the end of Tribes?
It was not 1866.[125] In debating House Joint Resolution No. 127, which would lead to the Fourteenth Amendment, members of Congress expressly rejected the inclusion of Indians for citizenship: “The word ‘citizen,’ if applied to them, would bring in all the Digger Indians of California . . . Take Colorado; there are more Indian citizens of Colorado than there are [W]hite citizens this moment if you admit it as a State.”[126] As a result, the Fourteenth Amendment retained the phrase “Indians not taxed.” Through fear of racial competition, Congress inadvertently cemented Tribal political distinction within the Constitution. Moreover, even when individual Indians obtained U.S. citizenship, they could remain Tribal. In United States v. Holliday,[127] the Supreme Court upheld the conviction of Lorton Holliday for selling liquor to Otibsko, a Tribal Indian in Michigan, while off reservation. Otibsko was a U.S. citizen, held fee land, and voted in local elections,[128] yet the Court emphasized that he was “a member of his tribe, and under the charge of an Indian agent,”[129] in contrast to a “civilized . . . Indian.”[130] That is, he retained his federal-Tribal trust connection. Congressional authority over such a Tribe member was “absolute, without reference to the locality of the traffic or the locality of the tribe.”[131] The Court found Otibsko’s state citizenship immaterial; his retention of Tribal membership proved determinative. Perhaps, then, renouncement of Tribal membership was required?
It was not 1870. In The Cherokee Tobacco,[132] the U.S. Supreme Court upheld a federal excise tax on liquor and tobacco manufactured in the Cherokee Nation, concluding that such laws applied in the Cherokee Nation equivalently “as to any state or territory of the United States.”[133] The Court reasoned that because Tribal lands fall within U.S. territory, federal statutes of general applicability presumptively apply—a conclusion that implicitly abrogated the Treaty of 1866.[134]
However, the Court limited its holding: “In all other respects the Indians in those territories are exempt [from taxation].”[135] The Court’s decision was animated by concern over fraud in the liquor and tobacco trade, because Congress hoped to prevent crowds from being “lured [to Indian lands] by the prospect of illicit gain.”[136] Congress’s specific concern for Tribal lands at least partially discharges the requirement that treaty abrogation be express. The case would nevertheless tee off a debate as to whether federal taxation statutes of general applicability should presumptively apply to Native Americans. In his dissent, Justice Bradley stated that “all laws of a general character passed by Congress will be considered as not applying to the Indian territory, unless expressly mentioned.”[137] At least for the moment, such statutes of general applicability remained limited to liquor and tobacco.
It was not 1884. In Elk v. Wilkins,[138] the Court held that the Fourteenth Amendment did not extend U.S. citizenship to Indians even if they renounced their Tribal membership. John Elk attested that he had severed his Tribal ties and sought recognition as a U.S. citizen.[139] The Court rejected his claim, reaffirming that Indian status is an inherently distinct political status recognized by the Constitution.[140] Indians born “members of, and owing immediate allegiance to, one of the Indian tribes, . . . although in a geographical sense born in the United States,” were analogized to children of foreign nationals born in the United States.[141] Citizenship, the Court held, could be acquired only through treaty or statute, not unilateral renunciation.[142] That is, an express statement by Congress was required.
It was not 1887. In response to Elk, Senator Henry Dawes of Massachusetts proposed legislation to confer citizenship on all Indians, but his bill failed.[143] Congress instead enacted the General Allotment Act of 1887, also known as the Dawes Act, making allotment the statutory mechanism for assimilation and naturalization.[144] Earlier versions of the Dawes Act contemplated Tribal or individual consent, but the final version imposed allotment involuntarily.[145] Through the Dawes Act, the provision of compulsory but incremental citizenship became the centerpiece of federal policy. As Secretary of the Interior Carl Schurz explained in 1881, “To fit the Indians for their ultimate absorption in the great body of American citizenship,” Indians must “be taught to work,” their youth educated, and their property “individualized.”[146] Senator Dawes echoed this vision, asserting that allotment would “lift [Indians] up into citizenship and manhood.”[147] Citizenship, in this framework, was a mechanism by which Indians would be transformed from wards (with a sovereign-based trust relationship with the United States) into assimilated individuals (with no such political distinction).[148]
Scholar Bethany Berger describes the Department of the Interior’s citizenship ceremony, developed in 1916, as emblematic of this transformation:[149]
Federal officials were instructed to construct an artificial teepee, from which the candidates for citizenship would emerge. If the candidate was male, the official would hand him a bow and arrow and direct him to shoot, then address him in his “Indian name”: “You have shot your last arrow. That means that you are no longer to live the life of an Indian. You are from this day forward to live the life of the [W]hite man.” Then, addressing the candidate in his “[W]hite name,” the official directed him to place his hands on a plow, saying, “This act means that you have chosen to live the life of the [W]hite man—and the [W]hite man lives by work.”[150]
Despite this drama of citizenship, courts continued to hold that citizenship alone was insufficient to de-Tribalize Indians.[151] The driving inquiry was to what extent the United States retained its plenary power over the Indian. This inquiry presented in the form of both taxation and restraints on alienation.
In Beck v. Flournoy Live-Stock & Real-Estate, Co. (1894),[152] the Eighth Circuit held that conferral of U.S. citizenship did not nullify federal title restrictions, reasoning that “[c]itizenship does not carry with it the right on the part of the citizen to dispose of land . . . in any way that he sees fit.”[153] It could be that citizenship attained through allotment was simply conditional. Hence, in Frazee v. Spokane County (1902),[154] a state court held that appellants were relieved of state taxation because Congress conditioned their citizenship with alienation and taxation restrictions. The Frazee court noted it was the “design of congress . . . to prepare the Indian to become a self-supporting individual, and if, as a means to that end, and for the purpose of inducing him to separate himself from his tribal relations, it saw proper . . . the government[] still retain[s] a certain guardianship over him . . . .”[155] U.S. citizenship via allotment is simply unique and limited. But in Tiger v. Western Investment Co. (1911),[156] the U.S. Supreme Court upheld an alienation restriction, again despite the Indian’s U.S. citizenship, because the Indians remained a “dependent race” and their Tribal relations, and therefore guardianship, persisted.[157] That is, albeit through a racist prism, the trust responsibility between the U.S. and Tribes did most of the doctrinal work. The Supreme Court reiterated this point in United States v. Waller (1917):[158] “Conferring citizenship is not inconsistent with the continuation of such guardianship.”[159] Jurisprudence increasingly contemplated concurrent U.S. citizenship and a continued federal-Tribal trust responsibility.
The Supreme Court preserved this trust relationship even beyond the realms of alienation and taxation. In United States v. Nice (1916),[160] the Court upheld the application of a liquor law[161] to a U.S. citizen allottee, reasoning that “allottees remain tribal Indians.”[162] The Court acknowledged that while the 1889 Rosebud Allotment Act “plainly disclosed that the tribal relation [was] ultimately to be dissolved,” nevertheless, the Tribe “was not to be terminated by the making or taking of allotments.”[163] Because allotment was a civilizing process, the allotment acts preserved “the tribal relation and the wardship of the Indians” until Congress stated otherwise.[164] Congress stated as much in the Indian Reorganization Act (IRA) of 1934,[165] where it halted further allotment and extended all existing trust terms indefinitely.[166]
Until 1924, Indians primarily attained citizenship via an allotment act that conditioned the alienation and taxation of their allotment property. Citizenship and property were intertwined. The purpose of these restrictions was to facilitate the incremental de-Tribalization of those Indians and their induction into the American polity. But what happened to U.S. citizen Indians who attained citizenship with no such alienation or taxation restrictions? What if they retained their Tribal status? That is, did the Indian Citizenship Act of 1924 mark the decisive moment at which Indians not only collectively became naturalized citizens, but also, in the Solicitor’s view, became universally taxable?
C. The Indian Citizenship Act of 1924
The unilateral naturalization of Native Americans in the Indian Citizenship Act of 1924 did not resolve the tension between competence, citizenship, and political status. The Indian Citizenship Act, given its sweeping import, has a surprisingly meager legislative history. The Act was likely prompted by military service.[167] In 1919, Congress enacted the Indian Veteran Citizenship Act, extending eligibility for citizenship to the more than ten thousand Natives who served in World War I.[168] Nevertheless, many Tribes opposed the broader Indian Citizenship Act, viewing it as another assimilationist effort to erode sovereignty.[169] Still, others supported it.[170] Because the Act itself was sparse in language, the three iterations of the bill warrant examination in their entirety. House Resolution 6355, proposed January 29, 1924, reads:
That the Secretary of the Interior is hereby authorized, in his discretion, under regulations to be prescribed by him, to issue a certificate of citizenship to any noncitizen Indian born within the territorial limits of the United States, who may make application thereof, and, upon the issuance of such certificate to any Indian, he or she shall become a full citizen of the United States. Provided, That the issuance of a certificate of citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.[171]
The February 22 version of the bill, submitted just shy of a month later, made some slight modifications. These modifications included removing the words “become” and “full”:
That the Secretary of the Interior is hereby authorized, in his discretion, under regulations to be prescribed by him, to issue a certificate of citizenship to any noncitizen Indian born within the territorial limits of the United States, who may make application thereof, and, upon the issuance of such certificate to any Indian, he or she shall become a full be a citizen of the United States. Provided, That the issuance of a certificate of citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.[172]
Two months later, the April 21, and final, version changed the bill from a procedure for citizenship to a moment of citizenship:
That the Secretary of the Interior is hereby authorized, in his discretion, under regulations to be prescribed by him, to issue a certificate of citizenship to any noncitizen Indian born within the territorial limits of the United States, who may make application thereof, and, upon the issuance of such certificate to any Indian, he or she shall be a citizen of the United States. That all noncitizen Indians born within the territorial limits of the United States be, and they are hereby declared to be, citizens of the United States. Provided, That the issuance of a certificate of granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.[173]
Congress omitted the language of “full” citizenship included in the first draft. The shift—from a discretionary administrative pathway to a collective and automatic conferment—suggests that Congress intended a fundamental alteration in the political status of Native Americans. Yet, as the statute itself and subsequent jurisprudence confirm, the Act neither dissolved Tribes nor altered the restricted status of allotted lands nor displaced the federal-Tribal relationship.[174] Notably, the Act provided that citizenship was not to “impair or otherwise affect the right of any Indian to tribal or other property.”[175]
In floor debates, Representative Schuyler Merritt of Connecticut emphasized that the bill would not affect Indian property rights and would “not remove restrictions from a single acre of land.”[176] Congress extended citizenship while preserving the restricted status of allotments, reaffirming Tiger v. Western Investment Co. Representative Merritt also clarified that the Act would “not change the status of any Indian with reference to his tribal rights.”[177] That is, U.S. citizenship would no longer dissolve Tribal membership, or, arguably, the federal trust responsibility. But at the same time, the Act did not guarantee political participation for those newly naturalized Native Americans. The bulk of legislative history focused on assuring states that Native people could only vote if permitted by state law,[178] and many states continued to openly disenfranchise them.[179]
The debates also gently touched upon taxation. Representative Elliott W. Sproul of Kansas asked whether individual Indian property, apart from Tribal property, would become taxable in their states of residence.[180] Representative Merritt responded that only fee-patented allotments were taxable,[181] which remains true today. When pressed about whether property purchased with an Indian’s own money would be taxable, Representative Merritt agreed that it would.[182] This exchange concerned state property and sales taxation, not federal income taxation. Still, the debate suggested that Congress understood naturalization would make Indians at least partially subject to tax obligations. Conversely, keeping Tribal property nontaxable reflects congressional intent to maintain the distinct federal-Tribal dynamic, which was historically understood as uniquely insulated from taxation unless expressly provided.
The House Report accompanying the Act confirmed that the Department of the Interior supported the bill as a means of placing nonallottee Indians on equal footing with allottees in regard to citizenship.[183] The Report acknowledged that, at the time, “it [was] very difficult for an Indian to obtain citizenship without either being allotted and getting a patent in fee simple, or leaving the reservation and taking up his residence apart from any tribe of Indians.”[184] There is, however, no indication that the Department of the Interior anticipated the Act would subject Native people to broader federal income tax obligations than those already imposed on allottees.
Almost immediately, Congress questioned the application of the Indian Citizenship Act of 1924.[185] While the Act may have naturalized all Indians alive on the date of enactment, June 2, 1924, did it naturalize Indian children born after June 2? Or would those later generations, barring some other citizenship statute, be denied citizenship based on the exclusion of “Indians not taxed” in the Fourteenth Amendment and the logic of Elk v. Wilkins? Following a 1933 Executive Order creating a committee to review nationality laws,[186] the committee finally submitted a report to the President in 1939.[187] The Nationality Act of 1940 largely codified the committee’s recommendations, including to clarify that citizenship extended to “a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe.”[188] Consequently, many Native Americans now derive their citizenship from both the Indian Citizenship Act of 1924 and the Nationality Act of 1940.[189]
The unilateral naturalization of Native Americans in 1924 was but one in a long series of federal redefinitions of Indian legal status.[190] At various times, the federal government has treated Native people as citizens of sovereign nations, as wards of the United States, as U.S. citizens, and as members of a racial minority group.[191] These characterizations often fatally contradict one another. For example, if conferring U.S. citizenship truly assimilated Native people, they could not simultaneously remain members of sovereign Tribal nations. Yet the Indian Citizenship Act neither extinguished Tribal membership nor displaced the federal-Tribal plenary power or trust responsibility. Why, then, is the Act so often credited with extending federal income taxation to all nonallottee Native Americans?
II. Taxation of Natives – The Capoeman Anomaly
“[I]t is not lightly to be assumed that Congress intended to tax the ward for the benefit of the guardian.”
John G. Sargent, Office of the U.S. Attorney General, 1925[192]
A. Civilized Enough to Tax
Immediately following the enactment of the Indian Citizenship Act of 1924, one might have expected a marked shift in taxation jurisprudence, in which, due to their unconditioned citizenship, all Native Americans would be subject to income taxation. That is not what happened.
While Congress wields plenary authority over Indian affairs, the requirement that Congress explicitly express its intent to impact Indian affairs constrains that authority.[193] Consequently, statutes of general applicability typically do not apply to Indians absent such specificity.[194] Because Indians are members of distinct sovereigns to whom the federal government owes a trust responsibility, the Indian canons of construction reflect a means of implementing that trust responsibility.
Of course, the Indian law canons do not apply if they do not implicate distinct rights of Indians,[195] nor do they apply if there is no ambiguous provision that requires interpretation.[196] But the taxation of Indians has been repeatedly identified, including in the allotment acts and the Constitution itself, as among the reserved rights of Indians—triggering the applicability of the Indian law canons. Because taxation has historically marked the boundary between federal guardianship and Indian “competency,” the Indian canons should apply with particular force. Moreover, because historical applications of Native taxability have hinged on whether a Native person remained “Indian” and Congress retained its plenary power, extensions of generally applicable federal taxation should have to contend with retained Indianness. Only an express congressional statement should extend federal income tax to Native people.
It was not until 1930 that a circuit court addressed the applicability of federal income tax to Native Americans. In Chouteau v. Commissioner,[197] decided six years after the Indian Citizenship Act, the Tenth Circuit held that general taxation statutes do not apply to Indians, even when they are citizens. Mary Blackbird, a restricted (noncompetent) full-blood member of the Osage Tribe, derived most of her income from royalties and bonuses on Tribal mineral leases.[198] In what was the first federal appellate case to address whether Native Americans broadly owed federal income tax,[199] the court began with the general canon that tax exemptions must be strictly construed.[200] But it then turned to the Indian canons of construction, emphasizing that “in the government’s dealings with the Indians the rule is exactly the contrary. . . . [D]oubtful expressions . . . are to be resolved in favor of a weak and defenseless people, who are wards of the nation.”[201] Noting that “it seems unreasonable to hold that a general tax statute should be applied to them when they are not named nor intention in some way expressed that it applies to them,” the court held that general tax statutes do not extend to Indians absent express congressional inclusion. [202] Chouteau reaffirmed the resilience of Tribal status in this analysis. Turning not to allotment alienation restrictions, but rather to Blackbird’s Indian status, the Tenth Circuit limited the reach of generally applicable taxation statutes to Indians. A contemporaneous opinion from the Office of the U.S. Attorney General stating that “[i]t is well established that general Acts of Congress do not apply to Indians,” a principle equally “applicable to revenue statutes,” supported Chouteau’s rationale.[203]
Chouteau’s holding would not long endure. In Choteau v. Burnet (1931),[204] the Supreme Court rejected the Tenth Circuit’s reasoning in Chouteau, holding that Osage member Choteau was subject to federal income tax on oil and gas revenues derived from his allotted lands.[205] The Court examined the Revenue Act of 1918,[206] which imposed tax on “every individual,” and concluded that Choteau was taxable absent an explicit exemption.[207] In doing so, the Court flipped the presumptions: Instead of requiring express inclusion of Indians in a revenue statute, the Court required express exemption.[208] The Indian law canon that ambiguous statutes must be construed in favor of Tribes was overridden by the tax canon that tax laws are presumed to apply.
Sections 210 and 211(a) of the Revenue Act of 1918 subject the income of “every individual” to federal income tax.[209] The statute is seemingly facially unambiguous, and the Court noted that the “intent of Congress was to levy the tax with respect to all residents of the United States and upon all sorts of income.”[210] Of course, Tribal members, based on their political distinction, are historically not taxed like all other individuals. This is because their incorporation into the American polity akin to individuals not affiliated with Tribes often required the relinquishment of their Tribal status, and allotment statutes conferred citizenship and taxability in tempered increments. Choteau argued that federal income taxation should not be implicitly applied to Indians.[211] The Court rejected this argument.[212]
Indeed, federal statutes of general applicability have been understood to apply to Indians, so long as there is an indication that Congress considered that statute’s implication on the rights of Indians and Tribes.[213] Some courts have started with the presumption, comparable to that in Choteau, that statutes of general applicability apply to Indians and Tribes.[214] But even then, courts have recognized exceptions, including if there is proof “by legislative history or some other means that Congress intended [the law] not to apply to Indians on their reservations.”[215] The framework of the General Allotment Act, by seemingly preserving the tax immunity of Indians for a transition period, indicates congressional consideration for the taxability and nontaxability of Indians.
Notably, however, the Choteau Court did not hold Choteau taxable because he was an individual like all other individuals subject to the Internal Revenue Act, or because he resided in the U.S., or even because he now was a citizen. Rather, the Court relied on Choteau’s status as a competent Indian.[216] The Osage Allotment Act of 1906 authorized the Secretary of the Interior to issue certificates of competency, enabling selected Tribal members to alienate land and subjecting them to taxation.[217] This competency framework exposes the assimilationist design of allotment.[218] Tax liability attached only to those whom the Secretary, in his discretion, deemed “fully competent and capable of transacting his or her own business.”[219] Taxation thus became a surgical instrument of assimilation, imposed intentionally and selectively upon Indians deemed fit.
Choteau had received such a competency certificate in 1910.[220] The Court held that “[i]n the process of gradually changing the relation between the Indian and the government he has been, with respect to the income in question, fully emancipated.”[221] Competency, not citizenship, triggered Choteau’s taxability. The implication of this reasoning is that absent a certificate of competency, other Indians—even citizen Indians—remained outside the reach of the income tax. When employing the Indian canons of construction, the relevant interpretation was not of the Revenue Act’s reference to “individuals,” but rather of the Osage Allotment Act of 1906’s reference to “certificate of competency.”[222] That Choteau was decided in 1931, seven years after the Citizenship Act, underscores the Court’s reluctance to treat citizenship alone as sufficient to impose federal income taxation.[223]
Even in Choteau, however, the Court hinted toward a more forceful interpretation of tax exposure. The Court referred to the restricted status of Indians as an “exemption” from federal income tax.[224] Further, rather than emphasizing the political status of Indians and the incumbent federal-Tribal trust responsibility that it invokes, the Court emphasized a noncompetent Indian’s lack of decision-making authority. Specifically, noncompetent Indians could not lease or sell their land, or use the proceeds without seeking government approval.[225] In emphasizing competency, the Court noted that Choteau’s “status is not different from that of any citizen of the United States.”[226] That is, Tribal political distinctness gave way to assimilative competency.
This clash between the tax canons and the Indian canons is illustrative of broader judicial tendencies. Attorney John Lentz has observed that courts usually privilege the tax canons, thereby favoring the presumption of taxability.[227] Karl Llewellyn famously catalogued the “thrust[s]” and “parr[ies]” of statutory canons, noting that they may be invoked in contradictory ways to justify desired outcomes.[228] In the Indian tax cases, politics and assimilationist policies seem to have tipped the balance toward taxability. But given the central role of taxation in defining assimilation and competence, the analysis is more complex than simply weighing one canon over another.
The decisive break came in Superintendent of Five Civilized Tribes v. Commissioner in 1935.[229] There, the Court held that Sandy Fox, a full-blood Creek member and U.S. citizen, owed federal income tax on investment funds derived from his allotments. Rejecting the logic of Chouteau and narrowing Choteau, the Court declared: “The intent of Congress was to levy the tax with respect to all residents of the United States and upon all sorts of income. . . . [I]f exemption exists it must derive plainly from agreements with the Creeks or some act of Congress dealing with their affairs.”[230] Even wardship was no longer insufficient to shield Indians from taxation.[231] The Indian canons of construction were altogether abandoned. The Court required a “definite intent” to exempt; absent such language, Native income was taxable.[232]
A Solicitor’s Opinion from the Department of the Interior in 1940 recognized the doctrinal rupture of this moment:
A final significant change in attitude, which has a particular bearing upon the question now in issue, was effectuated by the Supreme Court in a decision rendered in 1935. Superintendent v. Commissioner, 295 U.S. 418. Until that year Attorneys General and courts had concluded as the Attorney General did in 1870 that Federal revenue laws did not apply to those Indians who were under the protection of the Federal Government. (citations omitted). By its recent decision the Supreme Court has so far modified that time-honored principle as to permit the application of the general Federal income tax law to the income of individual Indians.[233]
With little fanfare, the Court made federal income taxation presumptively applicable to Native Americans.
B. The Landmark Squire v. Capoeman
The Supreme Court reaffirmed its 1935 decision in Superintendent of Five Civilized Tribes two decades later in the landmark case Squire v. Capoeman.[234] Capoeman has since become the governing precedent for determining when income earned by individual Indians is exempt from federal taxation.[235] More fundamentally, the case has come to symbolize the baseline assumption that Native Americans are subject to federal income taxation.[236] Like Superintendent, Capoeman did not interrogate the deeper question of how Indians transitioned from presumptively politically distinct and not taxed, to presumptively politically distinct but taxable. Instead, the Court simply assumed the applicability of federal income tax to Native Americans, shifting the inquiry from whether federal income tax should apply at all to whether there was an applicable exemption.[237]
Curiously, the case that has come to stand for the proposition that Native Americans owe federal income tax held that Capoeman, the Native American respondent, was exempt.[238] The case concerned whether capital gains derived from the sale of timber harvested from trust allotments were subject to income tax. The Court reasoned that the exemption was necessary to effectuate the purposes of the General Allotment Act, which sought to preserve the full value of allotted lands for Indian allottees.[239] While the Court reaffirmed the general principle that Indians are subject to federal income taxation and that tax exemptions must be “clearly expressed” under ordinary interpretive canons, it invoked the Indian canons of construction to identify an express exemption in the Allotment Act itself.[240] Notably, the Court called upon the Indian law canons not to deviate from Superintendent but rather to describe the General Allotment Act as an express exemption.
The Court explained that Congress, in enacting the General Allotment Act, intended to “protect the Indians’ interest[s]” and “to prepare the Indians to take their place as independent, qualified members of the modern body politic.”[241] To achieve that purpose, it was necessary to exempt not only the allotted lands but also the “income derived directly therefrom” from taxation during the trust period.[242] Although the federal income tax had not yet been enacted when the General Allotment Act passed, the Court interpreted the Act as implicitly encompassing protection against future taxation of trust income.[243]
What about nonallottee Indians? The irony is striking. Allotment was designed as a civilizing process to transition Indians from “pupilage” into full assimilation, with the underlying presumption that their Tribal status would be abandoned.[244] Indians excluded from allotment remained, in the federal gaze, in a diminished Tribal state, awaiting their eventual turn to join the polity. Under the Burke Act, even citizen allottees were not fully emancipated until they received a certificate of competency, at which point they became subject to taxation like other non-Indian citizens.[245] While this state of pupilage was racially demeaning, it was also, critically, a political status reflective of the sovereign-to-sovereign relation between the United States and Tribes. In Superintendent, the Court conflated political status and competency.[246] Capoeman reaffirmed that baseline but cemented a narrow exemption: Only those Indians specifically targeted for “civilizing” under the allotment statutes were shielded from taxation on income derived from their trust lands.[247] In effect, allotment froze certain Indians in a liminal status of continued wardship, while all others were presumed assimilated—and taxable—while nevertheless retaining their Tribal status.
C. Capoeman’s Carnage
“Certain persons, of probably benevolent but misguided motives, under the guise of defending the Indians’ interests, oppose the efforts to free them from their tribal thralldom. . . . That the cause of peace and quietness, the progress of Christian settlement across the continent, and, in short, the welfare of the [W]hite races, are involved in the permanent absorption of all the tribes into the American nation, is, perhaps a generally recognized fact.”
Philip C. Garrett, Executive Committee Member, Indian Rights Association, 1886[248]
In the wake of Capoeman, federal income tax jurisprudence involving Native Americans—much like the pre-Capoeman era—continued to focus on income derived from allotments. Rather than treating allotment statutes as exceptional, courts increasingly construed them as the exclusive source of tax exemptions. Simultaneously, courts continued to focus on the status of the Native taxpayer, asking whether the allottee was competent or noncompetent. Throughout the 1960s and 1970s, federal courts[249] and the Internal Revenue Service[250] issued decisions and rulings that incorporated this framework, making the concept of competency a central determinant of tax liability.
For example, in U.S. v. Hallam,[251] the court held that a Quapaw allottee was exempt from federal income taxation on income derived from restricted land under the 1895 Quapaw Allotment Act.[252] The court reasoned that Quapaw allottees were wards of the federal government and that only when the Secretary determined an allottee to be competent would their property become alienable and taxable.[253] Similarly, in Nash v. Wiseman,[254] the court exempted noncompetent Pottawatomie heirs from federal estate and property taxes on their allotments, reasoning that restrictions on the land persisted and that noncompetency preserved tax immunity.[255] The court reasoned that, just as a competent Indian was subject to taxation despite being Indian, “the converse is true” for a noncompetent Indian holding restricted property.[256]
By the late 1970s and into the 1980s, courts began quietly abandoning the competency inquiry, replacing it with a hardened presumption against tax exemptions.[257] The question was no longer whether Congress intended to tax Indians, but whether Congress had enacted a clear exemption.[258] In Jourdain v. Commissioner,[259] the Tax Court held that the chairman of the Red Lake Band was subject to federal income taxation on his Tribal salary, declaring that the “guardian-ward relationship . . . is no longer a consideration in the tax status of Indians.”[260] Such a bold declaration would be newsworthy in the context of water rights, healthcare, or sovereign immunity, and yet it was quietly accepted to justify the federal income taxation of Natives. Absent express exemptions, Indians were increasingly held taxable—even where income implicated the political separateness of Tribes.[261] Consequently, narrow exemptions for restricted trust property or activity-based rights have been recognized,[262] but claims involving per capita payments,[263] business income,[264] or rental income have been routinely rejected.[265]
Even noncompetency was no longer sufficient. In United States v. Anderson,[266] the court held that the grazing income of a noncompetent Indian was taxable, distinguishing Capoeman on the ground that the income was derived from another’s trust land rather than the taxpayer’s own.[267] The court emphasized that the General Allotment Act was intended to benefit individual allottees upon achieving competency, “not to benefit Indians generally.”[268] Likewise, in United States v. Daney,[269] the court noted that “there no longer exists any need to give the restricted Indian a tax advantage, that he has become an independent, qualified member of the modern body politic.”[270] Despite no expression from Congress, courts have unilaterally deleted the political import of Tribal status based on a dubious sense that “Indians” have sufficiently assimilated.
By 1993, the taxability of Native Americans was deeply ingrained. Not only was the Internal Revenue Act held applicable to Natives, despite no indication that Congress actually considered the impact on Natives, but also the treaty language providing that the United States would not “disturb . . . any of the Six [Haudenosaunee] Nations” was held insufficient to create an exemption from federal income taxation.[271] Attempts to expand judicially recognized tax exemptions for Indians have largely failed. For example, in 2009 Citizen Potawatomi Chairman Rocky Barrett failed to secure a federal income tax exemption for his salary, which was paid from judgment funds Congress had declared nontaxable.[272] One of the permitted programming distributions was for development of the Tribe, which the Tribe argued should include compensation for its Chairman.[273] But the court found the Chairman’s compensation was not sufficiently expressly exempted.[274] In Perkins v. Commissioner,[275] the court rejected a claimed exemption for income from a gravel operation on the Seneca Reservation, holding that neither the Treaty of Canandaigua nor the Treaty of 1842 created an income tax exemption.[276] The court emphasized that Capoeman’s reasoning was narrowly tethered to the General Allotment Act and could not extend to Tribal trust lands held in common.[277]
In 2024, the Eighth Circuit made the distinct move to inject the Indian Citizenship Act with doctrinal force. In Bibeau v. Commissioner,[278] Frank Bibeau, an enrolled member of the Minnesota Chippewa Tribe, directly challenged the presumption that Native Americans are subject to federal income taxation.[279] Bibeau emphasized that the Indian Citizenship Act deliberately omitted the phrase “full citizenship,” suggesting that Congress intended to preserve Tribal status.[280] He noted that the Revenue Act of 1924 did not mention Indians, and he invoked the 1862 Treaty with the Chippewa as a source of exemption.[281] He further argued that Congress had yet to adopt a clear and express federal income tax for Native Americans.[282]
The Eighth Circuit rejected all his arguments, holding that since 1924, all Native-born Indians have been U.S. citizens and that the Internal Revenue Code “does not grant tax exemptions solely because someone is an Indian.”[283] The Eighth Circuit echoed its earlier decision in Fond du Lac Band of Lake Superior Chippewa v. Frans,[284] which held that a Tribal member’s pension income was subject to state taxation.[285] In both cases, the court presumed that the Indian Citizenship Act of 1924, itself, automatically extended the taxation liability from which Congress needed to clearly express an exemption. In reifying citizenship with renewed self-authority, the Eighth Circuit not only failed to contend with historical jurisprudence that holds otherwise, but it also once again failed to recognize the impact of a taxpayer’s Tribal status.
***
During the allotment era, the federal trust responsibility was reengineered to alter Native people from being politically separate––in recognition of the sovereign-to-sovereign relationship––to being transitional and noncompetent. Allotment compelled certain individuals into restricted, individualized property ownership, preserving tax immunity until they were deemed competent. Congress, for its part, established noncompetency as a means of distinguishing Tribal Indians from those in transition toward “civilization.” Citizenship was one factor in this civilizing process, but the Indian Citizenship Act of 1924 did not itself mark the decisive moment of tax liability. The Secretary of the Interior retained authority to determine competency for allottees regardless of citizenship, and taxation followed only when the government declared an allottee “civilized”—that is, transformed into “an Indian taxed.” Notably, neither Congress nor the courts addressed nonallottee federal income taxpayers until long after Capoeman.
In the post-Capoeman era, courts abandoned the logic of noncompetence. Competency as a marker of taxability gave way to citizenship as an assumed trigger. Courts increasingly presumed all Native Americans taxable except where allotment statutes expressly provided otherwise. What had been a mechanism of assimilation became, paradoxically, the last surviving shield against taxation.[286] Recognizing competent Indians as taxable had once implied the inverse—that noncompetent Tribal members remained nontaxable. The Indian Citizenship Act permitted simultaneous Tribal and U.S. citizenship, leaving unresolved the precise moment when Tribal membership itself ceased to protect against taxation. Rather than identifying that moment, courts quietly collapsed the distinction, treating the absence of an exemption as proof of taxability.
This doctrinal sleight of hand leaves a profound gap. Superintendent of Five Civilized Tribes v. Commissioner[287] and the Solicitor’s 1940 opinion[288] both suggested that Native Americans became universally taxable at some undefined point, but neither identifies when or how that transformation occurred. Daney and Bibeau[289] then suggested the Indian Citizenship Act accomplished this transformation, despite decades of subsequent case law stating otherwise. The judiciary has simply assumed assimilation and folded Native peoples into the general tax regime without the express congressional statement that the Indian law canons require. The erasure of Tribal distinct political status is troubling.
This erasure reasoning echoes Justice Reed’s infamous declaration in Tee-Hit-Ton Indians v. United States, in which conquest, not consent, deprived Native peoples of their lands.[290] But like Indian taxation jurisprudence, Justice Reed did not state when or how such conquest took place. Desire for conquest does not itself resolve the legal question. Continuing to recognize Native political distinctness—even by those who claimed to conquer them—requires, at minimum, an express statement from Congress before imposing federal income tax. Noncompetent Indians, i.e., those who retained their Tribal membership, are outside the general tax regime. To be sure, the wholesale classification of Native people as uncivilized, naïve, and “noncompetent” is grotesque racial logic. But we should not abandon the recognition of Tribal political separateness alongside racist terminology. It is, in fact, feasible to conceive of Native people as competent dual citizens.
III. An Alternative Taxation Framework
As the foregoing history demonstrates, Native American citizenship is deeply fraught, necessitating a fundamental reconceptualization of Natives as federal income taxpayers. Native people are, and always have been, worthy of and entitled to U.S. citizenship, even as they simultaneously retain their Tribal membership and the sovereignty that inheres in their nations. For many Natives, the path to citizenship was through allotment. That path envisioned the erasure of Tribes and Tribal status. Because the policies of allotment were eventually abandoned, a curious cross section of Native America still owns restricted lands that were originally intended to fall into unrestricted status held by a competent owner. These restricted lands now reflect some of the only federal income tax exemptions for Native Americans, not because of the owners’ Tribal membership, but rather because their ancestors were targeted to lose that status.[291]
Meanwhile, the allocation of tax burdens—ideally a mechanism of distributive justice[292]—has been imposed on Native peoples in ways that further assimilationist agendas rather than fairly redistribute resources. It is not lost on Native people that the federal government owes them a host of treaty and trust resources for which Native people must seemingly pay.[293] As questions of dual citizenship and the role of Tribes within the broader American polity sharpen, Tribal advocacy organizations have increasingly called for a “reset” in federal taxation policy.[294] The federal trust responsibility to Tribes has not disappeared; it endures.[295] That enduring duty demands a wholesale reexamination of the taxation of both Tribal governments and individual Tribal members.
Presently, Tribal governments face significant barriers in establishing their own tax base. Although Tribes possess inherent authority to tax both members and nonmembers,[296] the Supreme Court has sharply limited Tribal power to tax non-Indians,[297] while permitting states to encroach on Tribal lands.[298] As a result, Tribes are effectively denied meaningful sales, property, or excise tax authority within their territories. The consequences are stark: Tribes are forced into disproportionate reliance on federal programs, while federal support remains chronically inadequate.[299] Structural disadvantage compounds the inequities. Native Americans face higher rates of poverty, unemployment, sexual violence, and police violence than any other group in the United States.[300] Extending federal income tax liability to Native citizens without regard to the precarious financial position of Tribes is not only inequitable; it also undermines Tribal self-determination by funneling revenue through federal coffers burdened with conditions.[301]
After decades of silence following the Indian Citizenship Act, Congress has made only one significant expression regarding the federal income taxation of Native Americans. The Tribal General Welfare Exclusion Act of 2014[302] both created a statutory exemption for Tribal welfare programs and also explicitly incorporated the Indian canons of construction into federal tax law. The Act, however, should be understood not as an endpoint, but rather as a foundation upon which broader reforms—such as restructuring federal income taxation to reflect Tribal sovereignty and dual citizenship—might be built. This Article proposes the “Indians Not Taxed” Act, which would require Native federal tax liability to be directed toward the Tribe.
A. Breaking Ground: The Tribal General Welfare Exclusion Act of 2014
The Tribal General Welfare Exclusion Act (TGWE) provides that “gross income does not include the value of any Indian general welfare benefit.”[303] Under the Act, a Tribe may make a payment or provide a service to a Tribal member, and that value is exempt from the Tribal member’s federal income tax so long as it promotes the general welfare and is “not lavish or extravagant.”[304] The TGWE is a corrective parity measure: Whereas state general welfare programs had long been treated as tax exempt, Tribal programs had not.[305] By explicitly recognizing Tribal governments as governments for purposes of welfare benefits, the TGWE sought to remedy this disparity and recalibrate the federal posture toward Tribal sovereignty.
Perhaps most strikingly, the TGWE incorporates the Indian canons of statutory construction. It directs in positive law that “[a]mbiguities . . . shall be resolved in favor of Indian tribal governments and deference shall be given to Indian tribal governments for the programs administered and authorized by the tribe to benefit the welfare of the tribal community.”[306] Through the TGWE, Congress not only signaled support for narrowing the scope of a Native person’s taxable income, but it also recognized the authority of Tribes to design and administer their own federal income tax exemption and required deference to Tribal determinations in cases of ambiguity. While seemingly an innocuous piece of technical legislation, the TGWE sets a foundation for a new Tribal sovereignty regime.
The TGWE is a normative reset of values with potentially far-reaching implications for the taxation of Tribes and their members. Executive-branch initiatives advancing similar principles of Tribal self-determination have joined it. For instance, Executive Order 14112[307] calls for the reform of federal funding structures for Tribal nations and proposes Treasury regulations that would recognize the tax immunity of Tribally chartered corporations.[308] Both efforts aim to enhance Tribal governments’ capacity to generate revenue and exercise self-governance over its use. Taken together, these developments reflect a growing federal willingness to reconsider entrenched assumptions and may springboard a more comprehensive reset of federal taxation policy toward Tribes and Tribal citizens.
One year after Congress passed the TGWE, in 2015, the National Congress of American Indians (NCAI), the oldest and largest national organization of American Indian and Alaska Native Tribal governments, issued a resolution supporting Tribal tax reform.[309] The resolution observed that “since 1924, when the U.S. government unilaterally conferred citizenship upon American Indians born within the United States, Congress preserved the right of Indians to tribal and other property uninfluenced by the grant of such citizenship, yet the U.S. government led by the Internal Revenue Service has sought to tax tribal government activities and the income of individual Indians.”[310] NCAI urged Congress “[to] [r]estore greater recognition of the U.S. government’s classification of ‘Indians not taxed.’”[311] Most ambitiously, it called for the creation of a Treasury Department self-governance program that would allow Tribal governments to capture and administer the federal income tax generated within their borders, akin to the fiscal autonomy granted to the Commonwealth of Puerto Rico.[312] Scholar Alex Zhang makes a similar proposal, advocating for a federal income tax credit for taxes paid to Tribes and territorial governments.[313]
Congress has already embraced analogous frameworks. Since 1919, the foreign tax credit[314] under Internal Revenue Code Section 901 has allowed taxpayers to offset their U.S. federal income tax liability with taxes paid to foreign sovereigns, thereby relieving double taxation and accommodating overlapping jurisdictions.[315] As the IRS explains, the foreign tax credit is “intended to relieve you of a double tax burden when your foreign source income is taxed by both the United States and the foreign country.”[316] The provision recognizes that multiple sovereigns may claim the same taxable base, and it signals Congress’s capacity to accommodate political distinctness within the federal tax code.
B. A New Frontier: The “Indians Not Taxed” Act
In the spirit of NCAI’s resolution, the TGWE, and the foreign tax credit, I join the call to reform the Internal Revenue Code. Section 7871 currently governs the taxation status of Tribal governments.[317] To meaningfully reset federal income taxation jurisprudence, reinvigorate the federal trust responsibility, and more accurately reflect a twenty-first-century federal-Tribal dynamic, Congress should amend Section 7871 to add a new subsection (g): “In the case of an individual Indian and/or Alaska Native, credit shall be allowed against the tax imposed by this chapter for the taxable year an amount equal to the income taxes paid by the taxpayer to the Indian Tribal government of which they are a member or citizen.” In practice, such a credit would allow Tribal members to forward their federal income tax payments directly to their Tribes.
Operationalizing this proposal would require attention to infrastructure. Proposed Section 7871(g) implies the capacity of a Tribe to receive a Tribal member’s federal income tax. But Tribes vary widely in their governmental capacity.[318] Some Tribes already possess robust administrative systems capable of receiving funds, monitoring compliance, and coordinating with the IRS.[319] Others may not wish—or may lack capacity—to develop such systems. Self-determination requires flexibility, not compulsion. Section 7871(g) should therefore accommodate both Tribes that choose to manage revenues directly and those that prefer continued reliance on the IRS.
Another mechanism, “638 contracting,” warrants consideration. Authorized under the Indian Self-Determination and Education Assistance Act of 1975 (ISDEAA),[320] these contracts allow Tribes to assume federal functions—such as health, law enforcement, and education—once administered directly by federal agencies. ISDEAA is widely regarded as a cornerstone of Tribal self-determination, but its reach is limited; it does not currently extend to the Department of Justice or the Department of the Treasury. Amending ISDEAA to authorize 638 contracts for the Treasury, including the administration of Section 7871(g), would further empower Tribes to exercise fiscal sovereignty.
The proposed reform would reframe the fiscal citizenship of Native Americans. As scholar Ajay Mehrotra has argued, fiscal citizenship is a social contract under which taxation represents a civic contribution to the sovereign.[321] For Native people, however, there are two sovereigns: the United States and the Tribe. Native Americans are U.S. citizens, who, like other citizens, bear civic obligations—indeed, Native people have served in the U.S. Armed Forces at a rate five times the national average.[322] Yet Native Americans are also citizens of their Tribes, whose sovereignty predates and persists beyond the federal framework. Because Native people are generally subject to federal—and, in most instances, state—income taxation, however, Tribes have historically foregone imposing a Tribal income tax.[323] The prospect of a dual income tax has disrupted Native people’s fiscal citizenship of their Tribes, along with the policy pursuits and governing accountability that fiscal citizenship entails. Reallocating tax payments would respect Tribal-U.S. dual citizenship and reaffirm the sovereign-to-sovereign relationship between Tribes and the United States.
The structure of the reform would further promote Tribal fiscal autonomy while avoiding the pitfalls of alternative tax mechanisms. As scholar Alex Zhang notes, such a nonrefundable credit structure avoids the harms of blanket exemptions, which can be manipulated as tax shelters.[324] Rather than foster tax dodgers, the structure fosters Tribal tax autonomy. The structure is also superior to a deduction, which offers more economic value to higher-income taxpayers.[325] Such a credit utilizes a “mirror-Code” structure, which compels the Tribe to use the federal income tax as its own.[326] On the one hand, a mirror-Code structure denies the Tribe substantive tax-design powers. On the other hand, the structure would produce the same fiscal outcome for most taxpayers as the existing tax regime while minimizing the potential harms of tax shelters.
Redirecting federal tax payments to Tribal governments would also bring the federal government closer to fulfilling its trust responsibility—a duty that marks the sovereign-to-sovereign relationship between Tribes and the United States, distinct from the federal-state framework. The lack of direct Tribal representation in Congress further justifies structural modification because it places Tribal citizens in a unique position compared to other U.S. citizens.
For example, because Tribal lands have been systematically reduced, and states often assert taxation within them,[327] the proposed Section 7871(g) differs from Puerto Rico’s Internal Revenue Code Section 933. Whereas Section 933 exempts only income sourced within Puerto Rico, Section 7871(g) would apply to all of a Tribal member’s income, wherever derived, more akin to the foreign tax credit.[328] Like Section 933, however, the proposal is designed to afford Tribes flexibility in shaping their fiscal policies and raising revenue.[329] The Tribes, in fact, possess the extraterritorial sovereign authority to tax the income of their Tribal members, wherever derived, much like the United States.[330]
The experience of U.S. territories offers both inspiration and caution. Like Tribes, the territories have formal taxing authority rooted in fiscal autonomy.[331] Yet as Alex Zhang has observed, robust taxing powers have brought the territories neither prosperity nor genuine self-governance.[332] A better model lies in recent Treasury efforts regarding Tribally chartered corporations, which highlight the importance of Tribal consent.[333] Consent, as a distinct process grounded in the federal trust responsibility, should be institutionalized in any reform, both to honor the sovereign status of Tribes and to ensure that reforms are responsive to diverse Tribal needs.
This reform would not replace the urgent need for broader legislative action to restore Tribal taxing authority. Today, many Native Americans have little or no federal tax liability, meaning the revenue this proposed tax credit would provide to Tribal governments would be varied and likely insufficient to negate the need for other revenue sources, including federal funding.[334] But even if it were sufficient, the United States continues to owe a trust duty to Tribes, which includes treaty, statutory, and trust obligations to fund Tribal governments that this credit would not relieve. For example, the federal government has treaty, statutory, and trust obligations to fund health care for Native Americans.[335] In addition, Tribes, like other governments, should have access to a more comprehensive menu of taxation tools, including the power to tax non-Indians on Tribal lands without state encroachment. Dual taxation remains one of the most pressing impediments to Tribal self-determination.[336] Nevertheless, such a credit would be one step toward correcting imbalance, in which Natives effectively pay the federal government for services it already owes them. A fiscal mechanism for redirecting federal income taxes represents a new and promising chapter in the recognition of dual citizenship.
Conclusion
Federal income taxation has long been treated as a settled proposition in federal Indian law: Native Americans, absent express exemption, are taxable “like other citizens.”[337] Yet the path to that orthodoxy has been neither inevitable nor coherent. The relationship between Native Americans and the federal income tax has been mediated by shifting, and often contradictory, conceptions of citizenship, competence, and sovereignty. At every juncture, taxation has been deployed less as a neutral instrument of revenue collection than as a vehicle for enforcing assimilation and eroding Tribal political distinctness.
The jurisprudence reflects this ambivalence. In Chouteau, the court emphasized the Indian canons to shield Native peoples from general tax statutes absent explicit inclusion. In Choteau, the Court pivoted to presuming taxability absent express exemption. In Superintendent and Capoeman, the Court turned allotment statutes on their head. It entrenched the presumption of Native tax liability while simultaneously preserving narrow exemptions tied to allotment, one of the few remaining sources of exemptions from federal income taxation for Native Americans. This effectively froze assimilationist logic into the modern Code. Such logic presumed Natives naïve, uncivilized, and noncompetent. Integral to noncompetence was the understanding that competency was non-Tribal.
Later decisions compounded the distortion, treating citizenship as an automatic trigger for taxation while leaving the meaning of dual citizenship unresolved. That the Supreme Court never clearly identified the moment when Native peoples became universally subject to federal income tax is itself revealing—the transformation was less a matter of law than of assumption. Disturbingly, this same logic is being manipulated to advance other untenable arguments, including challenges to birthright citizenship for the children of undocumented immigrants.[338]
The consequences of this doctrinal sleight of hand are profound. By conflating citizenship with competence, courts have erased the Tribal political separateness that is embedded in constitutional text, treaties, and federal statutes. Native Americans become taxable not by virtue of an express act of Congress—as the Indian canons require—but by the presumption that their assimilation is complete. This presumption perpetuates the “vanishing Tribe” trope, the assumption that Tribes and their members are destined to disappear into the body politic.[339] Yet the reality is precisely the opposite. Tribal nations endure and are actively revitalizing their political, cultural, and economic institutions.
Against this backdrop, taxation becomes a site for structural reform. The existing framework not only undermines the Indian canons but also fails to recognize Native dual citizenship. If Native Americans are both U.S. citizens and citizens of sovereign Tribal nations, their fiscal obligations should reflect that duality. The proposal advanced here—to redirect federal income tax payments of Tribal citizens to their Tribal governments—offers one pathway forward. Modeled on existing doctrines such as the foreign tax credit and territorial exemptions, such a reform would affirm the sovereign-to-sovereign relationship, strengthen Tribal fiscal capacity, and align federal policy with the enduring trust responsibility.
This reform would not displace the need to broadly restore Tribal taxing authority, nor would it relieve the federal government of its treaty and trust obligations to fund essential services. But it would represent a meaningful step toward recalibrating federal tax law to reflect contemporary federal Indian policy, which rejects assimilation and embraces Tribal self-determination. More importantly, it would repudiate the doctrinal presumption of disappearance. By recognizing Tribal governments as legitimate recipients of their citizens’ fiscal contributions, federal tax law could finally begin to honor, rather than obscure, the constitutional acknowledgment of Native political distinctness.
Copyright © 2026 Lauren van Schilfgaarde, (Cochiti Pueblo,) an Assistant Professor at the UCLA School of Law. van Schilfgaarde previously served as the San Manuel Band of Mission Indians Director of the Tribal Legal Development Clinic at the UCLA School of Law and as the Tribal Law Specialist at the Tribal Law and Policy Institute. van Schilfgaarde graduated from the UCLA School of Law in 2012. Sincere gratitude to Gregory Ablavsky, Alexander Arnold, Steven A. Bank, Stuart Banner, Seth Davis, Matthew L.M. Fletcher, Ariela Gross, Angela R. Riley, K-Sue Park, Alex Raskolnikov, Kirk Stark, Paul Spruhan, Kevin Washburn, and Alex Zhang, as well as to the Administrative State Workshop; the New Voices in Citizenship, Democracy, and Indigeneity Workshop; the UC Berkeley Colloquia; the UC Davis Colloquia; and the UCLA Legal Workshop for their gracious, insightful commentary and redirection. Finally, profound appreciation for the invaluable edits provided by the California Law Review.
[1]. Philip C. Garrett, Indian Citizenship, in Proceedings of the Fourth Annual Lake Mohonk Conference 8, 11 (Phila., Indian Rts. Ass’n 1887), reprinted in Americanizing the American Indians: Writings by the “Friends of the Indian” 1880–1900, 57, 65 (Francis Paul Prucha ed., 1973) [hereinafter Americanizing the American Indians]. Philip C. Garrett wrote this passage in 1886 as part of a series of writings in the “Proceedings of the Fourth Annual Lake Mohonk Conference.” Garrett was a Philadelphia lawyer and member of the executive committee of the Indian Rights Association, a highly influential social activist group whose initial objective was to “bring about the complete civilization of the Indians and their admission to citizenship.” See Indian Rights Association Records, 1830–ca. 1986, Hist. Soc’y Pa., 1, https://hsp.org/sites/default/files/legacy_files/migrated/findingaid1523ira.pdf [https://perma.cc/EN9L-98KR].
[2]. This Article uses the terms “Indian,” “Native,” and “Native American” interchangeably to refer to the Native people of the United States. “Indian” in particular is a historical and legal term of art. This Article intentionally capitalizes these terms where feasible to signal dignity and comport with English capitalization norms regarding citizens of politically distinct sovereigns. See Angelique EagleWoman (Wambdi Awanwicake Was’teWinyan), The Capitalization of “Tribal Nations” and the Decolonization of Citation, Nomenclature, and Terminology in the United States, 49 Mitchell Hamline L. Rev. 623, 627, 635 (2023); see also Gregory Younging, Elements of Indigenous Style: A Guide for Writing By and About Indigenous Peoples 77 (Brush Educ. Inc. 2018) (“Indigenous style uses capitals where conventional style does not. It is a deliberate decision that redresses mainstream society’s history of regarding Indigenous Peoples as having no legitimate national identities; governmental, social, spiritual, or religious institutions; or collective rights.”).
[3]. See, e.g., Cohen’s Handbook of Federal Indian Law § 10.02[2][b] (Nell Jessup Newton, Cohen & Anderson eds., 2012), Lexis [hereinafter Cohen’s Handbook] (“Individual Indians are generally subject to federal income, estate, and gift taxes, with significant exceptions for income derived from restricted trust allotments and income derived from specific treaty or statutory rights.”); Stephen L. Pevar, The Rights of Indians and Tribes 249 (5th ed. 2024) (“Must reservation Indians pay federal taxes? Generally, yes.”); Native Am. Rts. Fund, Frequently Asked Questions (FAQ) About Native American People and Tribal Nations, Native Am. Rts. Fund, https://narf.org/frequently-asked-questions/ [https://perma.cc/4WD6-2TRY] (“All Indians are subject to federal income taxes.”).
[4]. U.S. Const. art. I, § 8, cl. 1.
[5]. 26 U.S.C. §§ 871–872.
[6]. See Haaland v. Brackeen, 599 U.S. 255, 272–73 (2023) (upholding congressional power to legislate with respect to the Indian Tribes as “plenary and exclusive,” which is “muscular, superseding both tribal and state authority”); Elk v. Wilkins, 112 U.S. 94, 100 (1884) (“General acts of Congress did not apply to Indians, unless so expressed as to clearly manifest an intention to include them.”).
[7]. Squire v. Capoeman, 351 U.S. 1, 6 (1956).
[8]. U.S. Const. art. I, §§ 2, 8; id. amend. XIV, § 2; United States v. Wong Kim Ark, 169 U.S. 649, 681–82 (1898).
[9]. See Elk, 112 U.S. at 102 (holding that the Fourteenth Amendment’s birthright citizenship provision does not apply to Native Americans because they are “members of, and owing immediate allegiance to, one of the Indiana tribes”); see also Bethany R. Berger, Birthright Citizenship on Trial: Elk v. Wilkins and United States v. Wong Kim Ark, 37 Cardozo L. Rev. 1185, 1196 (2016) (describing the Senate debate on the Civil Rights Act of 1866, in which the Senate deemed the inclusion of the “Indians not taxed” exception as unnecessary based on the belief that tribal Indians were ineligible for U.S. citizenship because they were not “subject to the jurisdiction thereof.”).
[10]. U.S. Const. art. I, § 2, cl. 3.
[11]. Gregory Ablavsky, “With the Indian Tribes”: Race, Citizenship, and Original Constitutional Meanings, 70 Stan. L. Rev. 1025, 1059 (2018).
[12]. United States v. Nice, 241 U.S. 591 (1916) (holding that the U.S. retains plenary authority over Indians naturalized by receiving an allotment pursuant to the General Allotment Act of 1887).
[13]. Elk, 112 U.S. at 105–06; Matthew L.M. Fletcher, States and Their American Indian Citizens, 41 Am. Indian L. Rev. 319, 331 (2017) (noting that Native Americans had to abandon their off-reservation rights in exchange for citizenship).
[14]. Merrill E. Gates, Addresses at the Lake Mohonk Conferences, in Americanizing the American Indians, supra note 1, at 338.
But the chief significance of this Act of Congress lies in the fact that it marks the entrance of our Government upon a policy which, if carried out in principle, must utterly destroy the tribal organization, and will bring the laws of the United States and the life of the American people to bear upon the Indian family, and upon Indians, one by one.
Id.
[15]. Act of Feb. 8, 1887 (Dawes Act), ch. 119, § 6, 24 Stat. 389, 390 (repealed 1934) (describing allotment as encouragement for individual Natives to “voluntarily take[] up . . . residence separate and apart from any tribe of Indians . . . and adopt[] the habits of civilized life”); see also Kenneth H. Bobroff, Retelling Allotment: Indian Property Rights and the Myth of Common Ownership, 54 Vand. L. Rev. 1559, 1565 (2001).
Sure in their Christian righteousness, allotment advocates had a messianic faith in the civilizing force of private property. Dividing reservation lands among individual Indians would, according to their story, overcome savage tribalism, convert the Indian into a yeoman farmer and prepare him for his “ultimate absorption into the great body of American citizenship.”
Id.
[16]. Burke Act of 1906, Pub. L. No. 59-149, 34 Stat. 182 (1906) (codified at 25 U.S.C. § 349); see also Angelique A. EagleWoman (Wambdi Awanwicake Wastewin), The Philosophy of Colonization Underlying Taxation Imposed Upon Tribal Nations Within the United States, 43 Tulsa L. Rev. 43, 51 (2013) (describing the erosion of Tribal taxing authority due to assimilative federal policies, including the Burke Act); Janet McDonnell, Competency Commissions and Indian Land Policy, 1913–1920, 11 S.D. Hist. 21, 22 (1981) (describing the mechanics of competency commissions under the Burke Act, including federal eagerness to remove Indians from the government’s care).
[17]. This Article embraces the terms “exemption” and “immunity” to describe the federal income taxation exposure of Tribes and individual Indians. “Exemption” typically denotes a right to be free from taxation that is granted by the taxing sovereign. In contrast, “immunity” denotes a right to be free from taxation because the taxing sovereign lacks authority to tax. The IRS has typically relied upon the word “exemption” to analyze whether a particular Indian is subject to taxation. This Article suggests that the IRS’s presumption of authority may be faulty.
[18]. Elizabeth Hidalgo Reese, Tribal Representation and Assimilative Colonialism, 76 Stan. L. Rev. 771, 789 (2024) (“When the Indian Citizenship Act came about shortly thereafter in 1924, many tribes opposed it. They viewed citizenship as another attempt to force assimilation onto their members or as a legitimate threat to—if not outright conflict with—their sovereignty.”).
[19]. Act of June 2, 1924 (Indian Citizenship Act), Pub. L. 68-175, 43 Stat. 253 (The Act in its entirety reads: “[A]ll noncitizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided, That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property”).
[20]. See also Nationality Act of 1940, Pub. L. No. 76-853, § 201(b), 54 Stat. 1137, 1138 (1940) (clarifying that children born to Indians were U.S. citizens).
[21]. See, e.g., Chouteau v. Comm’r, 38 F.2d 976, 980 (10th Cir. 1930) (holding that general taxation statutes do not apply to Mary Blackbird, a noncompetent full-blood member of the Osage Tribe, even though she is a U.S. citizen). Competency was assessed largely via field examinations by Indian agents and inspectors, including even when Indians neither requested nor wanted “competency.” Janet A. McDonnell, The Dispossession of the American Indian, 1887–1934 89, 98 (1991). In 1917, then-Commissioner of Indian Affairs Cato Sells issued a “declaration of policy” to expedite competency declarations through competency commissions. Id. at 94, 104.
[22]. See, e.g., Jourdain v. Comm’r, 71 T.C. 980, 991 n.2 (1979) (“A noncompetent Indian, as the term is used here, is one who holds allotted lands only under a trust patent and may not dispose of his property without the approval of the Secretary of the Interior. The term does not denote mental incapacity.”).
[23]. Indian Reorganization (Wheeler-Howard) Act of 1934, ch. 576, § 18, 48 Stat. 984 (allowing an option for Tribes to reject the legislation).
[24]. Id. § 19 (defining “Indian” for purposes of the Act to include “all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation”).
[25]. See, e.g., Memorandum from Donald Trump, U.S. President, to Sec’y of the Interior (Jan. 23, 2025), https://www.whitehouse.gov/presidential-actions/2025/01/federal-recognition-of-the-lumbee-tribe-of-north-carolina/ [https://perma.cc/JG97-NAD6] (“Considering the Lumbee Tribe’s historical and modern significance, it is the policy of the United States to support the full Federal recognition, including the authority to receive full Federal benefits, of the Lumbee Tribe of North Carolina.”); U.S. Dep’t of the Interior, Bureau of Indian Affs., Our Mission, Bureau of Indian Affs., https://www.bia.gov/bia [https://perma.cc/AN4J-VJ6W] (“Our mission is to enhance the quality of life, promote economic opportunities, and to carry out the federal responsibilities entrusted to us to protect and improve the trust assets of American Indians and Alaska Natives. We accomplish this by directly empowering Tribal governments through self-governing agreements.”); see also Reese, supra note 18, at 828, 830–31 (noting that Tribes “have become highly effective Washington lobbyists in order to obtain success in the last fifty years” and describing consultation as a “mechanism for tribal governments to be heard on . . . issues”).
[26]. See, e.g., Nat’l Cong. of Am. Indians, NCAI History: From Imminent Threat to Self-Determination, NCAI, https://www.ncai.org/about-ncai/ncai-history#seventy-years-of-ncai-from-imminent-threat-to-self-determination [https://perma.cc/GK47-6S4R].
And yet today, as a result of relentless and unified efforts by tribal governments and Native peoples, tribal nations stand stronger now than ever. Collectively these efforts reversed the course of termination, manifested the self-determination era, and continue to hold the US government accountable in its federal trust responsibility to tribal nations.
Id.
[27]. But see Jourdain v. Comm’r, 617 F.2d 507, 509 (8th Cir. 1980) (“[The] constitutional references to ‘Indians not taxed’ merely reflect the fact that some Indians were not taxed by the states in which they resided; the references do not restrain the federal government from taxing Indians.”).
[28]. See United States v. Rickert, 188 U.S. 432, 437 (1903) (quoting United States v. Kagama, 118 U.S. 375, 384 (1886)).
[29]. See infra Part III.C.
[30]. Squire v. Capoeman, 351 U.S. 1, 6 (1956).
[31]. Hill v. Comm’r, 70 T.C.M. (CCH) 13, 1 (1995) (citing United States v. Anderson, 625 F.2d 910, 913 (9th Cir. 1980); Estate of Peterson v. Comm’r, 90 T.C. 249, 250 (1988)); see also Rev. Rul. 58-320, 1958-1 C.B. 24 (“[T]o be valid, exemptions to tax laws should be clearly expressed.”).
[32]. Rev. Rul. 67-284, 1967-2 C.B. 55.
[33]. See generally Jay Vincent White, Taxing Those They Found Here: An Examination of the Tax Exempt Status of the American Indian 4–5 (Univ. of N.M. Inst. for the Dev. Indian L. 1972) (noting that previously, Native American communities were considered politically distinct, so there was no need for an express exemption).
[34]. See generally Lauren van Schilfgaarde, (Un)Vanishing the Tribe, 66 Ariz. L. Rev. 409 (2023) (arguing that recent Supreme Court jurisprudence revives the “vanishing Tribe trope” by treating Tribal sovereignty as diminishing).
[35]. Buster v. Wright, 135 F. 947, 950 (8th Cir. 1905) (upholding the Creek Nation’s annual permit tax against noncitizens for the privilege of conducting business within the Creek Nation); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 144 (1982).
We choose not to embrace a new restriction on the extent of the tribal authority to tax. . . . Instead, based on the views of each of the federal branches, general principles of taxation, and the conception of Indian tribes as domestic, dependent nations, we conclude that the Tribe has the authority to impose a severance tax on the mining activities of petitioners as part of its power to govern and to pay for the costs of self-government.
Id. at 144. But see EagleWoman, supra note 16, at 44 (noting that historically, “Tribal Nations did not have a tax on citizenry because the citizenry voluntarily contributed to support each other and the functions of government”).
[36]. See, e.g., Atkinson Trading Co. v. Shirley, 532 U.S. 645, 659 (2001) (striking down a Tribal hotel occupancy tax on non-Tribal member guests staying in a hotel owned by a non-Tribal member on non-Indian fee lands).
[37]. See White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 151 (1980) (establishing the Bracker “balancing” test for assessing the scope of state regulatory authority over nonmember activity on Tribal lands); Cotton Petroleum v. New Mexico, 490 U.S. 163, 191–93 (1989) (upholding a state severance tax on a non-Indian oil producer that was operating on the Jicarilla Apache Reservation and already paying a Tribal severance tax).
[38]. U.S. Comm’n on Civ. Rts., Broken Promises: Continuing Federal Funding Shortfall for Native Americans 1 (2018); Emily A. Shrider & John Creamer, U.S. Census Bureau, Poverty in the United States: 2022, Current Population Reports (2023), https://www.census.gov/content/dam/Census/library/publications/2023/demo/p60-280.pdf [https://perma.cc/5CX4-4YZN] (noting high poverty rates among Native Americans).
[39]. U.S. Comm’n on Civ. Rts., supra note 38.
[40]. Id. at 4.
[41]. Hearing on Select Revenue Measures Before the Subcomm. on Select Revenue Measures of the H. Comm. on Ways & Means, 116th Cong. 3 (2020) (statement of Rodney Butler, Chairman, Mashantucket Pequot Tribal Nation) (arguing that Congress should put Tribes on equal footing with states regarding taxation authority); Misha Hill, You Can’t Tax Stolen Land, Inst. Tax’n & Econ. Pol’y (Apr. 12, 2019), https://itep.org/you-cant-tax-stolen-land/ [https://perma.cc/MG87-GDRN]; see Matthew L.M. Fletcher, In Pursuit of Tribal Economic Development as a Substitute for Reservation Tax Revenue, 80 N.D. L. Rev. 759, 767–68 (2004); see also Elizabeth Hidalgo Reese, The Three Phases of the Tribal Self-Determination Era and the Phase Out of Federal Paternalism, 125 Colum. L. Rev. F. 205, 223–24 (2025) (“[R]ed tape and administrative burdens attached to federal funding are a serious impediment to tribal self-determination since they impose real costs on tribal governments that can prohibit access or limit the effectiveness of programs.”).
[42]. Nat’l Cong. of Am. Indians, Resolution #SD-15-036, Support for Tribal Tax Reform and Setting Tax Policy Priorities 3 (2015), https://home.treasury.gov/system/files/226/For%20the%20Record%209182019%20NCAI%20Tax%20Priorities%20Resolution%20SD-15-036.pdf [https://perma.cc/2UY3-9P9K]; see In re Stroble, 2025 OK 48, 2025 WL 1805918 (Okla. 2025) (holding that, despite contradictory federal precedent, the State of Oklahoma may tax the income of a Tribal member who resides on and derives their income from the Muscogee (Creek) Reservation), cert. denied, No. 25-382, 2026 WL 922510 (2026).
[43]. See Milan N. Ball, Cong. Rsch. Serv., R47098, Taxing Authority in Federal Areas 2–3 (2022) (discussing congressional power to lay taxes); Erika K. Lunder & Margot L. Crandall-Hollick, Cong. Rsch. Serv., R43840, Federal Income Taxes and Noncitizens: Frequently Asked Questions 1 (2014) (discussing the connection between federal tax law and immigration law).
[44]. Rev. Rul. 67-284, 1967-2 C.B. 55.
[45]. U.S. Const. art. I, § 2, cl. 3.
[46]. Ariela J. Gross, What Blood Won’t Tell: A History of Race on Trial in America 112 (2008) (“‘Indians not taxed’ were the only group the Constitution formally put outside of ‘We, the People.’”); George Beck, The Fourteenth Amendment as Related to Tribal Indians: Section I, “Subject to the Jurisdiction Thereof” and Section II, “Excluding Indians Not Taxed,” 28(4) Am. Indian Culture & Rsch. J. 37, 37 (2004) (“‘Indians not taxed’ was defined to mean that tribal Indians are not taxable as long as they remain subject to the jurisdiction of their tribe in any degree and hold tribal allegiance in any degree.”); Treasury Tribal Advisory Comm., Subcomm. on Dual Tax’n, Treasury Tribal Advisory Committee Subcommittee on Dual Taxation Report 2 (2020), https://home.treasury.gov/system/files/136/TTAC-Subcommittee-on-Dual-Taxation-Report-1292020.pdf [https://perma.cc/J2GC-2VN2].
[47]. See Ablavsky, supra note 11, at 1073 (noting the U.S. Constitution’s explicit embrace of “Indian” as both a racial and politically cognizable term). Note that because there was no federal income tax in 1787, “Indians not taxed” referenced all other forms of taxation, including local, state, and other federal taxes. Tribes negotiated treaties with the United States until 1871, when Congress unilaterally foreclosed future treaty negotiations. Act of Mar. 3, 1871, ch. 120, § 1, 16 Stat. 544, 566 (codified at 25 U.S.C. § 71).
[48]. White, supra note 33, at 8 (“[I]n general, reference rarely was made in such treaties and statutes to the tax exempt status of Indians and Indian tribes because it was a clear attribute of their status as distinct—sovereign—nations.”); Lazore v. Comm’r, 11 F.3d 1180, 1184 (3d Cir. 1993) (“Since there was no income tax contemplated when these treaties were drafted, it is virtually inconceivable that any treaty would contain an exemption to the tax.”).
[49]. See generally Maggie Blackhawk, Foreword: The Constitution of American Colonialism, 137 Harv. L. Rev. 1 (2023) (describing how constitutional doctrine historically positioned Indigenous peoples in “borderlands” outside the American polity, enabling governance without representation).
[50]. U.S. Const. amend. XIV, § 2 (“Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”).
[51]. Id.
Slavery having been abolished, and the persons formerly held as slaves made citizens, this clause fixing the apportionment of representatives has abrogated so much of the corresponding clause of the original constitution as counted only three-fifths of such persons. But Indians not taxed are still excluded from the count, for the reason that they are not citizens.
Elk v. Wilkins, 112 U.S. 94, 102 (1884); see also Civil Rights Act of Apr. 8, 1866, ch. 31, § 1, 14 Stat. 27 (mirroring the exclusion of “Indians not taxed”).
[52]. Revenue Act of 1862, ch. 119, 12 Stat. 432, 433; Richard D. Pomp, The Disclosure of Individual Tax Returns: A Historical Overview, Tax Notes St. 1121, 1121 (2019).
[53]. Pollock v. Farmers’ Loan & Tr., 158 U.S. 601, 637 (1895) (holding that the Income Tax Act of 1894 violated the constitutional requirement that direct taxes be apportioned among the states by population).
[54]. U.S. Const. amend. XVI.
[55]. Elk, 112 U.S. at 100 (“General acts of Congress did not apply to Indians, unless so expressed as to clearly manifest an intention to include them.”); Chouteau v. Comm’r, 38 F.2d 976, 978 (10th Cir. 1930) (“[I]t seems unreasonable to hold that a general tax statute should be applied to [the tribe and its members] when they are not named nor intention in some way expressed that it applies to them.”). But see Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 599 U.S. 382, 389 (2023) (holding that the Bankruptcy Code’s abrogation of sovereign immunity applies to Tribes because a Tribe is a “governmental unit” included among “other foreign or domestic government[s]”).
[56]. Rev. Rul. 67-284, 1967-2 C.B. 55; Cohen’s Handbook, supra note 3, § 10.02; see also Entities Wholly Owned by Indian Tribal Governments, 89 Fed. Reg. 81871 (proposed Oct. 9, 2024) (to be codified at 26 C.F.R. pts. 1 and 301) (seeking comment on proposed regulations regarding whether entities wholly owned by Indian Tribal governments should be immune from federal taxation, in parity with wholly owned State entities).
[57]. Rev. Rul. 67-284, 1967-2 C.B. 55.
[58]. See, e.g., United States v. Candelaria, 271 U.S. 432, 442 (1926) (Congress “was but continuing a policy which prior governments had deemed essential to the protection of such Indians.”); United States v. Kagama, 118 U.S. 375, 384 (1886) (“From their very weakness . . . there arises the duty of protection, and with it the power. This has always been recognized . . . .”); United States v. Holliday, 70 U.S. 407, 415–16 (1865) (holding that the United States has jurisdiction to regulate the sale of liquor to Indians, even outside the reservation, because the “policy of the act is the protection of those Indians who are, by treaty or otherwise, under the pupilage of the government . . . .”).
[59]. Matthew L.M. Fletcher, The Dark Matter of Federal Indian Law: The Duty of Protection, 75 Me. L. Rev. 305, 309 (2023); Daniel I.S.J. Rey-Bear & Matthew L.M. Fletcher, “We Need Protection from Our Protectors”: The Nature, Issues, and Future of the Federal Trust Responsibility to Indians, 6 Mich. J. Env’t & Admin. L. 397, 403 (2017).
[60]. Fletcher, supra note 59, at 309 (describing the federal government’s duty of protection as the “dark matter of federal Indian law”); Philip P. Frickey, Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law, 78 Calif. L. Rev. 1137, 1144–56 (1990) (generally describing the interpretation of some cases involving federal Indian law).
[61]. Herrera v. Wyoming, 587 U.S. 329, 345 (2019) (“Indian treaties ‘must be interpreted in light of the parties’ intentions, with any ambiguities resolved in favor of the Indians,’ and the words of a treaty must be construed ‘in the sense in which they would naturally be understood by the Indians.’”); United States v. Dion, 476 U.S. 734, 739–40 (1986).
[W]here the evidence of congressional intent to abrogate is sufficiently compelling, “the weight of authority indicates that such an intent can also be found by a reviewing court from clear and reliable evidence in the legislative history of a statute.” What is essential is clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other and chose to resolve the conflict by abrogating the treaty.
Id.; see also Alex Tallchief Skibine, Textualism and the Indian Canons of Statutory Construction, 55 U. Mich. J.L. Reform 267, 269 (2022).
[62]. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978) (“‘[W]ithout congressional authorization,’ the ‘Indian Nations are exempt from suit.’ It is settled that a waiver of sovereign immunity ‘cannot be implied but must be unequivocally expressed.’”).
[63]. Id. at 72 (holding that suits interfering with Tribal self-government, other than sovereign immunity, are not permitted “unless and until Congress makes clear its intention to permit the additional intrusion on tribal sovereignty that adjudication of such actions in a federal forum would represent”).
[64]. Cnty. of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251, 269 (1992).
[65]. Skibine, supra note 61, at 270 (“([S]ince 1987), the Court has decided at least twenty-six cases involving Federal Indian law where the holding depended exclusively on statutory or treaty interpretation. Yet, in that time period, only four cases discussed the Indian ambiguity canon, and only one invoked it in its holding.”); see also Matthew L.M. Fletcher, Textualism’s Gaze, 25 Mich. J. Race & L. 111, 138 (2020) (“The reality is that when it comes to interpreting Indian affairs statutes, the judiciary too often treats these canons as voluntary.”).
[66]. See Rey-Bear & Fletcher, supra note 59, at 408–09, 441 (arguing that the trust responsibility has been mischaracterized as a guardianship because Indian Tribes do not lack legal capacity and the United States was not appointed as a fiduciary, and because “the Supreme Court has not yet seemed to fully apprehend the original understanding of a robust federal trust responsibility”).
[67]. Cherokee Nation v. Georgia, 30 U.S. 1, 13 (1831).
[68]. Choctaw Nation v. United States, 119 U.S. 1, 28 (1886).
[69]. Rey-Bear & Fletcher, supra note 59, at 409.
[70]. See id. at 408–09.
[71]. See, e.g., Haaland v. Brackeen, 599 U.S. 255, 309 (2023) (Gorsuch, J., concurring) (“[T]he ‘settled state of things’ reflected the British view that Tribes were ‘nations capable of maintaining the relations of peace and war; [and] of governing themselves.’” (quoting Worcester v. Georgia, 31 U.S. 515, 548–49 (1832))); Seth Davis, Eric Biber & Elena Kempf, Persisting Sovereignties, 170 U. Pa. L. Rev. 549, 553 (2022) (describing the “model of treaties” relied upon by the U.S. to inform its relationship with tribes); Ablavsky, supra note 11, at 1033–35, 1044 (discussing original public meanings of “Tribe,” “Indian,” and “nation” under U.S. and international law).
[72]. Reese, supra note 41, at 211 (“The pivot away from paternalism to self-determination policies in the 1970s has been nothing short of transformative for tribal nations.”).
[73]. Cohen’s Handbook, supra note 3, § 2.08 (identifying the Assimilation Era as 1887–1928).
[74]. Earl M. Maltz, The Fourteenth Amendment and Native American Citizenship, 17 Const. Comment. 555, 556 (2000) (citing Emer de Vattel, The Law of Nations; or, Principles of the Law of Nature bk. III, § 201 (George D. Gregory, trans., Oceana Publ’ns 1964) (1758)).
[75]. Id. at 556–67.
[76]. Elk v. Wilkins, 112 U.S. 94, 102 (1884) (concluding that because Indians owed primary allegiance to their respective Tribes, they had to be naturalized to become U.S. citizens); see also Act of Aug. 9, 1888, ch. 818, § 2, 25 Stat. 392 (codified at 25 U.S.C. § 182) (providing that if an Indian woman married a non-Indian, she became an American citizen).
[77]. Gross, supra note 46, at 112. See generally Claudio Saunt, Unworthy Republic: The Dispossession of Native Americans and the Road to Indian Territory (2020) (describing the enactment and implementation of the Indian Removal Act).
[78]. Gross, supra note 46, at 112.
[79]. Willard Hughes Rollings, Citizenship and Suffrage: The Native American Struggle for Civil Rights in the American West, 1830–1965, 5 Nev. L.J. 126, 130 (2004).
[80]. Relations of Indians to Citizenship, 7 Op. Att’y Gen. 746, 749–50 (1856).
[81]. Notably, the transformation was only ever a one-way street—non-Indians could never become Indian. See United States v. Rogers, 45 U.S. 567, 573 (1846) (holding that William S. Rogers, a White man adopted into the Cherokee Nation by marriage, was not Indian for purposes of criminal jurisdiction).
[82]. See generally Bethany R. Berger, Reconciling Equal Protection and Federal Indian Law, 98 Calif. L. Rev. 1165 (2010); Bethany R. Berger, Red: Racism and the American Indian, 56 UCLA L. Rev. 591 (2009); Robert N. Clinton, Essay, The Rights of Indigenous Peoples as Collective Group Rights, 32 Ariz. L. Rev. 739 (1990); Allison M. Dussias, Geographically-Based and Membership-Based Views of Indian Tribal Sovereignty: The Supreme Court’s Changing Vision, 55 U. Pitt. L. Rev. 1 (1993); Matthew L.M. Fletcher, The Original Understanding of the Political Status of Indian Tribes, 82 St. John’s L. Rev. 153 (2008); Matthew L.M. Fletcher, Race and American Indian Tribal Nationhood, 11 Wyo. L. Rev. 295 (2011); Philip P. Frickey, Domesticating Federal Indian Law, 81 Minn. L. Rev. 31, 44 (1996); Carole Goldberg, American Indians and “Preferential” Treatment, 49 UCLA L. Rev. 943 (2002); Carole Goldberg, Descent into Race, 49 UCLA L. Rev. 1373 (2002); Sarah Krakoff, Inextricably Political: Race, Membership, and Tribal Sovereignty, 87 Wash. L. Rev. 1041 (2012); Angela R. Riley & Kristen A. Carpenter, Owning Red: A Theory of Indian (Cultural) Appropriation, 94 Tex. L. Rev. 859 (2016); Alex Tallchief Skibine, Indians, Race, and Criminal Jurisdiction in Indian Country, 10 Alb. Gov’t L. Rev. 49 (2017); Paul Spruhan, Indian as Race/Indian as Political Status: Implementation of the Half-Blood Requirement Under the Indian Reorganization Act, 1934–1945, 8 Rutgers Race & L. Rev. 27 (2006); Paul Spruhan, A Legal History of Blood Quantum in Federal Indian Law to 1935, 51 S.D. L. Rev. 1 (2006).
[83]. Ablavsky, supra note 11, at 1076.
[84]. Addie C. Rolnick, The Promise of Mancari: Indian Political Rights as Racial Remedy, 86 N.Y.U. L. Rev. 958, 967–68 (2011).
[85]. See, e.g., Wilson v. Bridges, No. 21-CV-0445-JFH-SH, 2024 WL 589106, at *4–5 (N.D. Okla. Feb. 13, 2024) (holding that Wilson, despite being an enrolled member of the Cherokee Nation, is not Indian for purposes of federal law because he has no degree of Indian blood).
[86]. van Schilfgaarde, supra note 34, at 430.
[87]. Id.
[88]. Henry L. Dawes, Solving the Indian Problem, in Americanizing the American Indians, supra note 1, at 29–30 (“The last and best agency of civilization is to teach a grown up Indian to keep . . . step by step, the individual is separated from the mass, set up upon the soil, made a citizen, and instead of a charge he is a positive good, a contribution to the wealth and strength and power of the nation.”).
[89]. Id.; see also Spruhan, supra note 82, at 9–19; Adoptive Couple v. Baby Girl, 570 U.S. 637, 638, 641 (2013) (holding that “continued custody of the child” in the Indian Child Welfare Act does not apply to an Indian parent that never had custody of the Indian child but framing the case as “about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee”).
[90]. See, e.g., Black Tomahawk v. Waldron, 13 Pub. Lands Dec. 683, 683–84 (1891) (holding that the defendant, a Sioux mixed blood, was not Indian for purposes of eligibility for receiving a land allotment).
[91]. General Allotment Act of 1887, ch. 119, 24 Stat. 388; Cohen’s Handbook, supra note 3, § 2.08.
[92]. Cohen’s Handbook, supra note 3, § 2.08[1][d] (noting that the General Allotment Act divided Tribal lands, which were owned collectively by the Tribe, into individual parcels of land).
[93]. Richard A. Epstein, Why Restrain Alienation?, 85 Colum. L. Rev. 970, 971 (1985) (“As a first approximation it appears that any restraint upon the power of an owner to alienate his own property should be regarded as impermissible.”).
[94]. Bd. of Comm’rs of Creek Cnty. v. Seber, 318 U.S. 705, 716 (1943); Tiger v. W. Inv. Co., 221 U.S. 286, 315 (1911) (holding that while the Original Creek Agreement conferred citizenship on individual Creek allottees, the alienation and taxation restrictions were nevertheless constitutional. “It is for [Congress], and not the courts, to determine when the true interests of the Indian require his release from such condition of tutelage. . . . Incompetent persons, though citizens, may not have the full right to control their persons and property.”).
[95]. Seber, 318 U.S. at 716; see also United States v. Rickert, 188 U.S. 432, 437 (1903) (quoting United States v. Kagama, 118 U.S. 375, 384 (1886)).
[P]art of the national policy by which the Indians are to be maintained as well as prepared for assuming the habits of civilized life, and ultimately the privileges of citizenship. To tax these lands is to tax an instrumentality employed by the United States for the benefit and control of this dependent race, and to accomplish beneficent objects with reference to a race of which this Court has said “from their very weakness and helplessness, so largely due to the course of dealing of the Federal government . . . there arises the duty of protection, and with it the power.”
Rickert, 188 U.S. at 437 (quoting Kagama, 118 U.S. at 384).
[96]. 24 Stat. at 390 (authorizing citizenship for those “who ha[ve] voluntarily taken up, within said limits, [their] residence separate and apart from any tribe of Indians therein, and ha[ve] adopted the habits of civilized life”); Legal Aspects of the Indian Report, in The Problem of Indian Administration 753 (Lewis Meriam et al. eds., Johns Hopkins Press 1928) [hereinafter Meriam Report], https://narf.org/nill/documents/merriam/v_meriam_chapter13_part1_legal_aspects.pdf [https://perma.cc/3G9R-THNZ].
[97]. Burke Act of 1906, Pub. L. No. 59-149, 34 Stat. 182 (1906); Meriam Report, supra note 96, at 460–62.
[98]. McDonnell, supra note 21, at 89–90.
[99]. Id.; see also U.S. Off. of Indian Affs., Dep’t of the Interior, Rules and Regulations Relating to the Issuance of Patents in Fee and Certificates of Competency and the Sale of Allotted and Inherited Lands Except Those Belonging to the Five Civilized Tribes 5–7 (1910).
[100]. Matthew Costello, “From Indian Village to Vice Presidency”: The Life and Legacy of Charles Curtis, White House Hist. Ass’n (Nov. 2, 2021), https://www.whitehousehistory.org/from-indian-village-to-vice-presidency-the-life-and-legacy-of-charles-curtis [https://perma.cc/693K-LRYQ] (describing an incident in which, during a 1932 reelection campaign event, Vice President Curtis stated to a reporter: “‘I am a member of the Kaw tribe. . . . I had promised Cherif Wash-Shungah [Washungah] that I would not at any time sell my lands. Therefore, I have never filed application to sell and I never filed as an incompetent.’”).
[101]. See generally David Wallace Adams, Education for Extinction: American Indians and the Boarding School Experience, 1875–1928 (1995) (examining the structure and policy goals to “civilize” Native children through education, including explicit statements of these objectives in the administration of boarding schools). Indian Affs., Dep’t of the Interior, Annual Reports of the Department of the Interior for the Fiscal Year Ended June 30, 1898, at 5 (1898), https://digitalcommons.csumb.edu/cgi/viewcontent.cgi?article=1029&context=hornbeck_usa_2_e [https://perma.cc/KXV7-NQSR].
[T]he value of an educational system . . . can in a generation develop from savages 76 per cent of good average men and women, capable of dealing with the ordinary problems of life and taking their places in the great body politic of our country. All these thousands of educated Indian boys and girls, speaking the English language, weaned from tribal customs and the iron bands of tradition, can not fail to exert a powerful and far-reaching influence upon the quarter of a million Indians scattered throughout the United States.
Id.
[102]. Herbert Welsh, The Needs of the Time, in Americanizing the American Indians, supra note 1, at 96–97 (“There are three hundred thousand Indians, roughly speaking, in the United States, who must be brought quickly under the same conditions of life as those which control the vast Anglo-Saxon population about them.”).
[103]. Ezra A. Hayt, Proposal for a General Allotment Law, in Americanizing the American Indians, supra note 1, at 80 [hereinafter Hayt] (“The system of title in common has also been pernicious to them, in that it has prevented individual advancement and repressed that spirit of rivalry and the desire to accumulate property for personal use or comfort which is the source of success and advancement in all [W]hite communities.”).
[104]. Herbert Welsh, The Needs of the Time, in Americanizing the American Indians, supra note 1, at 97–98.
All Indians born within the territorial limits of the United States to whom allotments shall have been made under the act, and all who have voluntarily resided apart from any Indian tribe, and have adopted civilized life, are declared citizens of the United States, and are entitled to the rights and privileges of such without losing their right to tribal or other property.
Id.; see also, e.g., Squire v. Capoeman, 351 U.S. 1, 9 (1956) (“The purpose of the allotment system was to protect the Indians’ interest and ‘to prepare the Indians to take their place as independent, qualified members of the modern body politic.’” (quoting Bd. of Cnty. Comm’rs v. Seber, 318 U.S. 705, 715 (1943))).
[105]. See, e.g., Shaw v. Gibson-Zahniser Oil Corp., 276 U.S. 575, 580 (1928) (“In this, as in other Indian legislation, opportunity is afforded for their emancipation by imposing upon them duties as well as giving them the privileges of citizens and property owners, including the duty to pay taxes.”).
[106]. Hiram Price, Allotment of Land in Severalty and a Permanent Land Title, in Americanizing the American Indians, supra note 1, at 89 (“The allotment system tends to break up tribal relations. It has the effect of creating individuality, responsibility, and a desire to accumulate property.”).
[107]. Frazee v. Spokane Cnty., 29 Wash. 278, 291–92 (1902) (noting that allotted lands were subject to a “25-year restriction against alienation” and holding that the citizenship that was granted in the Act of 1887 does not mean that the citizens ceased to be Indians, such that despite the appellees’ citizenship status, they still could not be subject to taxes on allotted lands because the federal government retained an interest in the trust land); Carl Schurz, Recommendation of Land in Severalty, in Americanizing the American Indians, supra note 1, at 84–85 [hereinafter Schurz].
[W]e receive expressions of a desire on the part of the Indians to have . . . the issuance . . . with a fee-simple title to their farms inalienable for a certain number of years until they may be presumed to have overcome the improvident habits in which a large part of the present generation have grown up.
Id.; see also Hayt, supra note 103, at 81.
Where the fee has been granted by patent, as also in the cases of issuance of the restricted patents, the Indians have, with very few exceptions, owing to their ignorance of the English language and of business forms, particularly with reference to conveyances, fallen victims to the cupidity of the [W]hites, and have practically been defrauded of their lands.
Id.
[108]. See Comm’n on the Rts., Liberties, & Resps. of the Am. Indian, The Indian: American’s Unfinished Business 20 (William A. Brophy & Sophie D. Aberle eds. 1966).
[109]. See Dep’t of the Interior, Ten Years of Restoring Land and Building Trust: 2012-2022 7 (2023) [hereinafter Ten Years of Restoring Land], https://www.doi.gov/sites/default/files/documents/2024-08/doilbbfullreportforwebfinal.pdf [https://perma.cc/L8HK-8NM4] (noting that approximately 64 percent of the 100,978 fractionated tracts generated no trust funds for deposit into Individual Indian Money accounts, and others often only yield a few cents).
[110]. See Indian Reorganization (Wheeler-Howard) Act of 1934, ch. 576, § 18, 48 Stat. 984.
[111]. 25 U.S.C. § 5101 (“On and after June 18, 1934, no land of any Indian reservation, created or set apart by treaty or agreement with the Indians, Act of Congress, Executive order, purchase, or otherwise, shall be allotted in severalty to any Indian.”); 25 U.S.C. § 5102 (“The existing periods of trust placed upon any Indian lands and any restriction on alienation thereof are extended and continued until otherwise directed by Congress.”).
[112]. See Ten Years of Restoring Land, supra note 109, at 8; Cobell v. Salazar, 573 F.3d 808, 815 (D.C. Cir. 2009).
[113]. Indian Land Consolidation Act, Pub. L. No. 97-459, 96 Stat. 2515, 2515 (1983); Indian Land Consolidation Act Amendments of 2000, Pub. L. No. 106-462, 114 Stat. 1991, 1991 (2000); Indian Land Consolidation Act Amendments of 2004 (American Indian Probate Reform Act), Pub. L. No. 108-374, 118 Stat. 1773, 1773 (2004) (codified at 25 U.S.C. § 2201); Claims Resolution Act of 2010, Pub. L. No. 111-291, 124 Stat. 3064, 3066 (2010); U.S. Sec’y of the Interior, Order No. 3325: Land Buy-Back Program for Tribal Nations (Dec. 17, 2012); Ten Years of Restoring Land, supra note 109, at 24 (reporting that as of 2023, more than 2.9 million equivalent acres had been consolidated).
[114]. Herbert Welsh, The Needs of the Time, in Americanizing the American Indians, supra note 1, at 97 (“It [referencing a prior version of the General Allotment Act] further provides that upon the completion of all allotments civil and criminal laws of the State and Territory shall extend over the reservation.”).
[115]. General Allotment Act of 1887, ch. 119, § 5, 24 Stat. 388, 389 (codified as amended at 25 U.S.C. § 349 (2006)).
[116]. United States v. Rickert, 188 U.S. 432, 437–38 (1903) (barring state taxation of restricted Indian land); Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 479 (1976) (holding that state cigarette sales taxes, personal property taxes, and vendor licensing fees do not apply to Indians on fee lands within reservation boundaries).
[117]. Goudy v. Meath, 203 U.S. 146, 149 (1906) (upholding a county property tax assessed against an allottee after the allottee’s land became unrestricted and noting that “[a]mong the laws to which the plaintiff as a citizen became subject were those in respect to taxation”); Cnty. of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251, 263–64 (1992) (“[W]hen § 5 [of the General Allotment Act] rendered the allotted lands alienable and encumberable, it also rendered them subject to assessment and forced sale for taxes.”).
[118]. This did not happen in the sense that progression of allotment halted with the Indian Reorganization Act of 1934. States, however, do enjoy limited taxation authority on non-Indian fee lands (allotments) within Indian reservations, as well as broader taxation authority over non-Indian activity. See, e.g., Montana v. United States, 450 U.S. 544, 565 (1981) (holding that the Crow Tribe lacks civil regulatory authority over non-Indians on reservation land owned in fee by non-Indians); Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 193 (1989) (holding that the State of New Mexico may validly impose severance taxes on on-reservation production of oil and gas by non-Indian lessees). But see Matter of Stroble, 2025 OK 48, ¶ 12, 588 P.3d 179, 183 (holding that the State of Oklahoma can tax the income of a Tribal member who resides and derives their income on the Muscogee (Creek) Reservation).
[119]. See infra Part II.A.
[120]. Method of Determining “Indians Not Taxed,” M-31039, at 997, Sol. of the Dep’t of the Interior (Nov. 7, 1940) [hereinafter Opinion of the Solicitor], https://thorpe.law.ou.edu/sol_opinions/p976-1000.html#m-31039-supp [https://perma.cc/KJA5-KAL3].
[121]. Robert B. Porter, The Demise of the Ongewhoweh and the Rise of the Native Americans: Redressing the Genocidal Act of Forcing American Citizenship Upon Indigenous Peoples, 15 Harv. Blackletter L.J. 107, 111 (1999).
[122]. Opinion of the Solicitor, supra note 120, at 995–96.
[123]. See, e.g., Treaty with the Cherokee, art. 8, July 8, 1817, 7 Stat. 156; Treaty with the Cherokee, art. 2, Feb. 27, 1819, 7 Stat. 195; Treaty with the Choctaw, art. 14, Sep. 27, 1830, 7 Stat. 333; Treaty with the Ottawa, art. 4, June 24, 1862, 12 Stat. 1237; Treaty with the Seneca, Mixed Seneca and Shawnee, Quapaw, etc., arts. 13, 17, 28, Feb. 23, 1867, 15 Stat. 513; Act of Mar. 3, 1839, ch. 83, § 7, 5 Stat. 349, 351; Act of Mar. 3, 1843, ch. 101, § 7, 5 Stat. 645, 647; see also Alexandra Witkin, To Silence a Drum: The Imposition of United States Citizenship on Native Peoples, 21 Hist. Reflections/Réflexions Historiques 353, 366 (1995); Berger, Birthright Citizenship on Trial, supra note 9, at 1201.
[124]. Opinion of the Solicitor, supra note 120, at 995–96.
[125]. The Civil Rights Act of 1866 was cited most recently by the Department of Justice in its petition to the U.S. Supreme Court to stay the nationwide preliminary injunction on President Trump’s Executive Order regarding birthright citizenship. Application for a Partial Stay of the Injunction Issued by the United States District Court for the District of Maryland at 8, Trump v. CASA, Inc., 145 S. Ct. 2540 (2025) (No. 24A).
[126]. Sen. Doolittle, Cong. Globe, 39th Cong., 1st Sess., pt. 4, at 2892 (1866); see also The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 619–21 (1870) (holding a revenue law of general applicability regarding the sale of liquor and tobacco to apply to Cherokee Nation as a “territory of the United States,” but distinguishing Indians “from our own citizens”); Elizabeth Reese, supra note 18, at 798 (discussing “[W]hiteness as demographic prerequisite for admission to statehood in Native areas”).
[127]. 70 U.S. (3 Wall.) 407 (1865).
[128]. Id. at 418.
[129]. Id.
[130]. Id. at 412.
[131]. Id. at 418.
[132]. 78 U.S. (11 Wall.) 616, 616 (1870).
[133]. Id. at 618.
[134]. Id. at 620 (“If the exption [sic] had been intended it would doubtless have been expressed. . . . There being no ambiguity, there is no room for construction.”).
[135]. Id. at 621.
[136]. Id. at 620; see also United States v. Forty-Three Gallons of Whisky, 108 U.S. 491, 496 (1883) (holding that special state taxes for selling liquor did not override a federal law prohibiting the sale of liquor in Indian territory).
[137]. Cherokee Tobacco, 78 U.S. at 622 (Bradley, J., dissenting).
[138]. 112 U.S. 94, 94 (1884).
[139]. Id. at 95.
[140]. Id. at 101–02; see also Berger, supra note 9, at 1188–89 (“The drafters and supporters of the Fourteenth Amendment both recognized this status, and recognized that protecting it—and preventing automatic citizenship for tribal Indians—was compelled by the egalitarian ideals of the Fourteenth Amendment.”).
[141]. Elk, 112 U.S. at 102.
[142]. Id. at 100. See generally Alexandra Fay, Citizenship and Empire in Elk v. Wilkins, 102 Wash. U. L. Rev. 1839 (2025) (contextualizing the role of Native American citizenship within the broader American goals of empire); Gregory Ablavsky & Bethany Berger, “Subject to the Jurisdiction Thereof”: The Indian Law Context, 100 N.Y.U. L. Rev. 201 (2025) (exploring the historical understanding of the unique status of Native nations in relation to the Fourteenth Amendment’s phrase “subject to the jurisdiction thereof”).
[143]. Comm’r of Indian Affs., Dep’t of the Interior, Report of the Commissioner of Indian Affairs for 1885 7–8 (1885).
[144]. General Allotment Act of 1887, ch. 119, § 6, 24 Stat. 388, 390.
[145]. 17 Cong. Rec. 1627, 1631 (1886) (striking the provision regarding consent). See generally Lone Wolf v. Hitchcock, 187 U.S. 553 (1903) (holding that Congress could unilaterally allot lands of the Kiowa, Comanche, and Apache Tribes under the General Allotment Act, despite treaty provisions guaranteeing that no further cessions of land would be made without the consent of three-fourths of adult male Tribal members).
[146]. Carl Schurz, Present Aspects of the Indian Problem, in Americanizing the American Indians, supra note 1, at 17.
[147]. Henry L. Dawes, Solving the Indian Problem, in Americanizing the American Indians, supra note 1, at 28–30.
We thought we would exterminate him if we could not civilize him; and we spent millions of dollars in the vain attempt to exterminate the Indian in this country. It cost us well-nigh a million dollars for every Indian we have exterminated, and many [W]hite lives in the process, and yet he has increased in number. Then we thought we would drive him on a reservation, on land we did not want, and hem him round and keep him there. His game has been driven out of the reservation, and he is there with nothing to live on, and ignorant of any method or process by which to gain anything to live on; and we thought we would gather them all into that long Indian Territory, and for a while we were busy driving them out of the north, and, at the point of the bayonet, herding them together and pushing them into an unknown country. . . . Latterly, it has occurred to us that if he is to be like the poor in the gospel, “always with us,” it were worth while to consider whether we could not make something out of him.
Id. at 28–29.
[148]. See, e.g., United States v. Saunders, 96 F. 268, 270–71 (D. Wash. 1899).
From the fact that Quin-ne-mo-se made the proofs required to obtain a patent from the land under the homestead law, it may be fairly inferred that he was born in the United States, that he had voluntarily taken up his residence separate and apart from any tribe of Indians, and adopted the habits of civilized life. By reason of these facts . . . he was, at the time of giving the deed in question, a citizen of the United States, entitled to all the rights, privilege, and immunities of such citizens, including the right to buy, sell, and convey the title to property.
Id.
[149]. Berger, supra note 9, at 1239.
[150]. Id. (citing U.S. Dep’t of the Interior, Ritual on Admission of Indians to Full American Citizenship (1918) (on file with N.D. Hist. Soc’y, Major James McLaughlin Papers)).
[151]. See Choate v. Trapp, 224 U.S. 665, 678 (1912) (“[T]here was nothing in citizenship incompatible with guardianship, or with restricting sales by Indians deemed by Congress incapable of managing their estates.”).
[152]. Beck v. Flournoy Live-Stock & Real-Est. Co., 65 F. 30, 30 (8th Cir. 1894).
[153]. Id. at 35.
[154]. 29 Wash. 278, 291–92 (1902).
[155]. Id. at 285–86; see also Nat’l Bank of Com. v. Anderson, 147 F. 87, 90 (9th Cir. 1906) (holding that the proceeds of a sale of allotted Native lands were still under government supervision).
[156]. 221 U.S. 286 (1911).
[157]. Id. at 313, aff’d, Brader v. James, 246 U.S. 88, 96 (1918).
[158]. 243 U.S. 452 (1917) (overturning an effort to annul a timber deed on the ground that it was procured by fraud).
[159]. Id. at 459.
[160]. 241 U.S. 591 (1916).
[161]. Act of Jan. 30, 1897, ch. 109, 29 Stat. 506.
[162]. Nice, 241 U.S. at 601.
[163]. Id. at 596.
[164]. See id. at 598, 601 (“[W]hen the Indians are prepared to exercise the privileges and bear the burdens of one sui juris, the tribal relation may be dissolved and the national guardianship brought to an end; but it rests with Congress to determine when and how this shall be done.”).
[165]. Indian Reorganization (Wheeler-Howard) Act of 1934, ch. 576, § 18, 48 Stat. 984.
[166]. 25 U.S.C. § 5101 (“On and after June 8, 1934, no land of any reservation, created or set apart by treaty or agreement with the Indians, Act of Congress, Executive order, purchase, or otherwise, shall be allotted in severalty to any Indian.”); 25 U.S.C. § 5102 (“The existing periods of trust placed upon any Indian lands and any restriction on alienation thereof are extended and continued until otherwise directed by Congress.”).
[167]. Angela R. Riley, Indians and Guns, 100 Geo. L.J. 1675, 1703 (2012) (noting that even without citizenship, thousands of Natives served in World War I, which ultimately provided a basis for “earned” citizenship).
[168]. Indian Veteran Citizenship Act, Act of Nov. 6, 1919, ch. 95, 41 Stat. 350.
That every American Indian who served in the military or Naval Establishments of the United States during the war against the Imperial German Government, and who has received or shall hereafter receive an honorable discharge, if not now a citizen and if he so desires, shall, on proof of such discharge and after proper identification before a court of competent jurisdiction, and without other examination except as prescribed by said court, be granted full citizenship with all the privileges pertaining thereto, without in any manner impairing or otherwise affecting the property rights, individual or tribal, of any such Indian or his interest in tribal or other Indian property.
Id.
[169]. Reese, supra note 18, at 789; Porter, supra note 121, at 109.
[170]. Porter, supra note 121, at 126 (“Since the late nineteenth century, there had always been Indians who thought that it was extremely important to become American citizens. Most of these proponents were either mixed-bloods or those who had been raised in the boarding schools and thus conditioned to accept relinquishment of their tribal status.”).
[171]. H.R. 6355, 68th Cong. (1924).
[172]. H.R. Rep. No. 68-222 (1924).
[173]. S. Rep. No. 68-441, at 1 (1924).
[174]. See, e.g., United States v. Nice, 241 U.S. 591, 601 (1916) (holding that an Indian could be a U.S. citizen while still subject to federal supervision and while Tribal relations and land restrictions remained intact).
[175]. Act of June 2, 1924 (Indian Citizenship Act), Pub. L. 68-175, 43 Stat. 253.
[176]. Hearing on H.R. 6355 Before the Comm. on Indian Affs., 68th Cong. 13 (1924) (statement of Edgar B. Meritt, Assistant Comm’r of Indian Affs.).
[177]. Id.
[178]. Id.
[179]. Reese, supra note 18, at 790 (“After the Indian Citizenship Act, many tribal citizens were still denied state citizenship or the right to vote in state elections.”); see 65 Cong. Rec. 9303 (1924) (documenting an exchange during debate on the Indian Citizenship Act where Representative Finis James Garrett of Tennessee asks whether the Act will provide Native Americans’ suffrage and Representative Homer Peter Snyder of New York responds no, “it is not the intention of this law to have any effect upon the suffrage qualifications in any State”).
[180]. Hearing on H.R. 6355 Before the Comm. on Indian Affs., 68th Cong. 14 (1924).
[181]. Id.
[182]. Id.
[183]. H.R. Rep. No. 68-222, at 2 (1924).
[184]. Id.
[185]. To Revise and Codify the Nationality Laws of the United States into a Comprehensive Nationality Code: Hearings on H.R. 6127 Before the Comm. on Immigr. & Naturalization, 76th Cong. 420 (1940).
[186]. Exec. Order No. 6115 (1933).
[187]. Nationality Laws of the United States: Message from the President of the United States Transmitting a Report Proposing a Revision and Codification of the Nationality Laws of the United States, at v (1938).
[188]. Nationality Act of 1940, Pub. L. No. 76-853, § 201(b), 54 Stat. 1137, 1138 (1940).
[189]. See Ex parte Green, 123 F.2d 862, 863–64 (2d Cir. 1941) (upholding military conscription for a member of the Onondaga Nation because he was a U.S. citizen pursuant to the Indian Citizenship Act of 1924 and the Nationality Act of 1940); United States v. Neptune, 337 F. Supp. 1028, 1032 (D. Conn. 1972) (upholding military conscription for a member of the Penobscot Indian Tribe because he was a citizen pursuant to the Nationality Act of 1940).
[190]. Porter, supra note 121, at 128.
[191]. Id.
[192]. Income Tax-Restricted Lands of Kaw Indians, 35 Op. Att’y Gen. 1, 4 (1925).
[193]. See, e.g., McGirt v. Oklahoma, 591 U.S. 894, 904 (2020) (holding that Congress may alter the borders of Indian country or even disestablish a reservation, but this “does require that Congress clearly express its intent to do so, ‘commonly with an “explicit reference to cession or other language evidencing the present and total surrender of all tribal interests.”’” (citing Nebraska v. Parker, 577 U.S. 481 (2016)).
[194]. See United States v. Dion, 476 U.S. 734, 740 (1986) (holding that the Eagle Protection Act did abrogate treaty rights to hunt eagles on Indian reservations, but only because there was “clear evidence” of congressional intent to diminish the rights); see also Bryan H. Wildenthal, Federal Labor Law, Indian Sovereignty, and the Canons of Construction, 86 Or. L. Rev. 413, 489–502 (2007) (demonstrating how the Supreme Court has long applied the Indian law canons to statutes of general applicability).
[195]. El Paso Nat. Gas Co. v. United States, 632 F.3d 1272, 1278 (D.C. Cir. 2011).
[196]. Choate v. Trapp, 224 U.S. 665, 674–75 (1912) (“But in the government’s dealings with the Indians the rule is exactly the contrary. The construction, instead of being strict, is liberal; doubtful expressions, instead of being resolved in favor of the United States, are to be resolved in favor of . . . [Indian Nations].”).
[197]. 38 F.2d 976 (10th Cir. 1930). Note, the case is a consolidation of three petitioners, Henry Chouteau, Mary Blackbird, and Amarillis D. Pettit. Only Mary Blackbird was found to have taxation immunity.
[198]. Id. at 977.
[199]. White, supra note 33, at 56 n.211; Opinion of the Solicitor, supra note 120, at 993 (“[I]n no instance were any of these numerous taxes applied to Indians living in their separate tribal communities, even though, as in the case of the income tax, it was by its provisions intended to apply to ‘every person residing in the United States.’”); Taxation of Indian Cotton, 12 Op. Att’y Gen. 208, 210 (1870) (“Our internal revenue system has not in any instance or for any purpose been extended over the Indian country.”).
[200]. Chouteau, 38 F.2d at 978.
[201]. Id. (quoting Choate v. Trapp, 224 U.S. 665, 675 (1912)).
[202]. Id.
[203]. Income Tax-Restricted Lands of Quapaw Indian, 34 Op. Att’y Gen. 439, 444 (1925).
[204]. 283 U.S. 691 (1931).
[205]. Id. at 692, 694, 697.
[206]. Revenue Act of 1918, ch. 18, §§ 210–211, Pub. L. No. 65-254, 40 Stat. 1057, 1062 (1919).
[207]. Choteau, 283 U.S. at 693–94 (“The intent of Congress was to levy the tax with respect to all residents of the United State and upon all sorts of income. The act does not expressly exempt the sort of income here involved, nor a person having petitioner’s status.”).
[208]. Id. at 694 (“[Choteau’s] assertion requires a reference to the policy of the government with respect to the Indians.”); see also Leahy v. State Treasurer of Okla., 49 P.2d 570, 572 (Okla. 1935), aff’d, 297 U.S. 420 (1936) (holding that Oklahoma’s income tax on an enrolled Osage tribal member’s pro rata share of tribal mineral royalties was valid because, once a certificate of competency had been issued, the income was free from all federal restrictions).
[209]. Choteau, 283 U.S. at 693; Revenue Act of 1918 §§ 210–211, 40 Stat. at 1062, 1065.
[210]. Choteau, 283 U.S. at 694.
[211]. Id.
[212]. Id.
[213]. United States v. Dion, 476 U.S. 734, 739–40 (1986) (upholding the abrogation of treaty rights to hunt eagles on an Indian reservation under the Eagle Protection Act due to “clear evidence” of congressional consideration of treaty rights); Fed. Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 114 (1960) (upholding the taking of fee simple property held by a Tribe for a dam pursuant to the Federal Power Act, in part because the legislative history of the Act provided protection only for reservation land, indicating a considered rejection of protection for fee land).
[214]. Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113, 1116 (9th Cir. 1985).
[215]. Id.
[216]. Choteau, 283 U.S. at 695.
[217]. Act of June 28, 1906, ch. 3572, § 2, 34 Stat. 539, 542. In 2004, Congress amended the Osage Allotment Act to clarify that the Osage Tribe could determine its own membership, so long as the rights of any Osage mineral estate shareholder were not diminished. An Act To Reaffirm the Inherent Sovereign Rights of the Osage Tribe to Determine Its Membership and Form of Government, Pub. L. No. 108-431, § 1(b), 118 Stat. 2609, 2609–10 (2004).
[218]. Choteau, 283 U.S. at 694 (“The course of legislation discloses that the plan of the government has been gradually to emancipate the Indian from his former status as a ward . . . imposing upon him both the responsibilities and the privileges of the owner of property, including the duty to pay taxes.”).
[219]. Act of June 28, 1906, ch. 3572, § 2, 34 Stat. at 542.
[220]. Choteau, 283 U.S. at 695.
[221]. Id.
[222]. Id. at 694.
[223]. See also United States v. Richards, 27 F.2d 284, 285–86 (8th Cir. 1928) (foreshadowing the reasoning in Choteau by upholding an erroneous tax assessment because the statute of limitations had run, while emphasizing that Richard’s guardianship had ended).
[224]. Choteau, 283 U.S. at 696.
[225]. Id. at 697.
[226]. Id. at 695.
[227]. Cook v. United States, 32 Fed. Cl. 170, 173 (1994) (“‘Tax exemptions, even those affecting Indians, are not granted by implication. Rather, if Congress intends to exempt certain income, it must do so by a definite expression.’” (quoting Critzer v. United States, 220 Ct. Cl. 43, 55 (1979))); John Lentz, When the Canons Go to War in Indian Country, Guess Who Wins? Barrett v. United States: Tax Canons and Canons of Construction in the Federal Taxation of American Indians, 35 Am. Indian L. Rev. 211, 213 (2010).
[228]. Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 Vand. L. Rev. 395, 401–06 (1950).
[229]. Superintendent of Five Civilized Tribes v. Comm’r, 295 U.S. 418 (1935).
[230]. Id. at 420.
[231]. Id. at 421.
[232]. Id.
[233]. Opinion of the Solicitor, supra note 120, at 994.
[234]. 351 U.S. 1, 6 (1956).
[235]. See, e.g., Clay v. Comm’r, 990 F.3d 1296, 1300 (11th Cir. 2021) (citing Capoeman, 351 U.S. at 6 for the proposition that “[t]he Internal Revenue Code casts a wide net. For starters, it applies to everyone, including American Indians.”); Rev. Rul. 67-284, 1967-2 C.B. 55.
[I]n considering the general tax status of Indians, the Supreme Court of the United States in its decision in Squire v. Capoeman, cited and discussed below, stated: “We agree with the Government that Indians are citizens and that in ordinary affairs of life, not governed by treaties or remedial legislation, they are subject to the payment of income taxes as are other citizens.”
Id.
[236]. Id.
[237]. Capoeman, 351 U.S. at 6.
[238]. Id.
[239]. Id.
[240]. Id.
[241]. Id. at 9 (quoting Bd. of Cnty. Comm’rs v. Seber, 318 U.S. 705, 715 (1943)).
[242]. Capoeman, 351 U.S. at 9.
[243]. Id. at 7–8.
[244]. See, e.g., Francis Paul Prucha, The Great Father: The United States Government and the American Indians 263 (1984) (describing how individualization and Americanization were the goals of federal Indian policy and allotment was the means).
[245]. See McDonnell, supra note 21, at 88.
[246]. Superintendent of Five Civilized Tribes v. Comm’r, 295 U.S. 418, 421 (1935) (“Non-taxability and restriction upon alienation are distinct things. The taxpayer here is a citizen of the United States, and wardship with limited power over his property does not, without more, render him immune from the common burden.” (citation omitted)).
[247]. Capoeman, 351 U.S. at 9 (“The purpose of the allotment system was to protect the Indians’ interest, and ‘to prepare the Indians to take their place as independent, qualified members of the modern body politic.’” (quoting Bd. of Cnty. Comm’rs v. Seber, 318 U.S. 705, 715 (1943))).
[248]. Philip C. Garrett, Indian Citizenship, in Americanizing the American Indians, supra note 1, at 60–61.
[249]. See, e.g., United States v. Hallam, 304 F.2d 620, 622–23 (10th Cir. 1962) (applying Capoeman to find Quapaw allotments were exempt from taxation for Hallam, a full-blood Quapaw Indian, until “a Quapaw allotee was determined to be competent and capable of managing his or her affairs”); Big Eagle v. United States, 300 F.2d 765, 766, 770–72 (Ct. Cl. 1962) (holding that the Osage headright of “adult, fullblood, Osage Indians who have never received certificates of competency” was exempt from federal income tax); United States v. Daney, 370 F.2d 791, 795 (10th Cir. 1966) (holding that income from an oil production lease on the allotment of a noncompetent, restricted, full-blood Choctaw Indian was exempt from federal income taxation); Stevens v. Comm’r, 452 F.2d 741, 744–46 (9th Cir. 1971) (applying Capoeman to construe the Ft. Belknap Allotment Act as exempting Stevens, a noncompetent Gros Ventre Indian, from federal income taxation); Clark v. United States, 587 F.2d 465, 468 (10th Cir. 1978) (holding that Clark, a noncompetent Chickasaw Indian, was exempt from federal income taxation for an oil and gas cash bonus and delay rental payments, notably reasoning that “we are not convinced that Congress clearly intended to remove this tax exemption, in view of the strong public policy to favor the Indians in matters of construction of these Acts”).
[250]. Rev. Rul. 56-342, 1956-2 C.B. 20 (defining income held in trust and derived directly from allotted and restricted Indian lands as exempt from federal income tax); Rev. Rul. 69-164, 1969-1 C.B. 220 (holding that the gross estate of a deceased Indian does not include allotments or other trust properties for purposes of federal estate tax); Rev. Rul. 74-13, 1974-1 C.B. 14 (defining “income derived directly from restricted land purchased by the Secretary of the Interior on behalf of individual Indians and held in trust by the U.S. solely for their benefit under statutes construed to provide tax exemption for Indian property” as exempt from federal income taxation); Rev. Rul. 70-116, 1970-1 C.B. 11 (clarifying that mineral headrights can be taxable if the Indian allottee is competent), clarified by Rev. Rul. 77-78, 1977-1 C.B. 12.
[251]. 304 F.2d at 620.
[252]. Id. at 622.
[253]. Id. at 622–23.
[254]. 227 F. Supp. 552 (W.D. Okla. 1963).
[255]. Id. at 554.
[256]. Id. at 556.
[257]. See, e.g., Perkins v. Comm’r, 970 F.3d 148, 154 (2d Cir. 2020) (“[A]bsent a specific exemption, American Indians are not, by virtue of their status, exempt from paying federal income taxes.”).
[258]. See, e.g., Coal. of Large Tribes, Comment Letter on Proposed Rulemaking on Tribally-Chartered Entities (Jan. 7, 2025), https://largetribes.org/wp-content/uploads/2025/01/COLT-written-comments-Tribal-Entities-Taxation-2025.pdf [https://perma.cc/D9S8-JGE6] (advocating for reform to the entrenched legal theory that Tribes and Indians are presumptively taxable).
[259]. 71 T.C. 980, 986–87 (1979), aff’d per curiam, 617 F.2d 507 (8th Cir. 1980), cert. denied, 449 U.S. 839 (1980).
[260]. Id. at 987.
[261]. Compare Doyon, Ltd. v. United States, 214 F.3d 1309, 1316 (Fed. Cir. 2000) (holding that despite normal rules of strict construction against tax exemptions, construction in Indian context is liberal), Lazore v. Comm’r, 11 F.3d 1180, 1185 (3d Cir. 1993) (explicit exemption not required if ambiguous treaty language can be reasonably construed to confer one), and Holt v. Comm’r, 364 F.2d 38, 40 (8th Cir. 1966) (exemption should be found if one can be reasonably construed from language), with Confederated Tribes of the Warm Springs Rsrv. v. Kurtz, 691 F.2d 878, 882 (9th Cir. 1982) (express exemption required). See also Red Lake Band of Chippewa Indians v. United States, 861 F. Supp. 841, 845 (D. Minn. 1994) (“The Court’s decision [in Capoeman] was . . . based on the express exemption set forth in the General Allotment Act . . . not an implied exemption.”).
[262]. See Hoptowit v. Comm’r, 709 F.2d 564, 566 (9th Cir. 1983) (holding that although there is no general exemption from income tax based on treaty language, language referring specifically to property might warrant exemption for income derived directly from land); Lazore, 11 F.3d at 1186–87 (no general exemption based on treaty language); Red Lake Band of Chippewa Indians, 861 F. Supp. at 844–45 (no exemption based on treaty language where income was derived from trust land, though not trust land in which Indian taxpayers had any individualized interest); Barrett v. United States, 561 F.3d 1140, 1145 (10th Cir. 2009) (no exemption for tribal chairman’s compensation paid from funds Congress expressly exempted from federal and state taxation for acquisition, development, and maintenance of tribal lands); Perkins, 970 F.3d at 148 (no exemption for individual income derived from the sale of gravel located on fee land within the Seneca Nation).
[263]. See Campbell v. Comm’r, 164 F.3d 1140, 1142 (8th Cir. 1999) (Tribal member’s per capita payment taxable even though it was received in lieu of income from farming Tribal land); Tonasket v. Comm’r, 50 T.C.M. (CCH) 489 (1985) (no tax exemption for per capita payments derived from Tribal logging). The Indian Gaming Regulatory Act explicitly provides for taxation of per capita distributions from Tribal gaming revenues. 25 U.S.C. § 2710(b)(3)(D). Note, however, per capita payments made from funds held in trust by the United States are exempt. 25 U.S.C. §§ 117a–117c.
[264]. See Barrett, 561 F.3d at 1146 (compensation for services rendered by Tribal Chairman not exempt under plan supported by tax-exempt congressional funds for facilitating acquisition, development, and maintenance of Tribal lands); Hoptowit, 709 F.2d at 566 (per diem payments to Yakima Tribal Council member not exempt under treaty restrictions on use of Tribal land); Jourdain, 617 F.2d at 509 (Tribal Chairman’s income for serving in Tribal government not exempt because such income not derived from restricted reservation land).
[265]. See Dillon v. United States, 792 F.2d 849, 856 (9th Cir. 1986) (income from smoke shop not exempt because “not generated principally” from land); Critzer v. United States, 597 F.2d 708, 714 (Cl. Ct. 1979) (business and building rental income do not derive directly from land, but “primarily from taxpayer’s substantial investment in her improvements and her business activities related to those assets”).
[266]. 625 F.2d 910, 913 (9th Cir. 1980).
[267]. Id. at 914.
[268]. Id. (quoting Fry v. United States, 557 F.2d 646, 648–49 (9th Cir. 1977)).
[269]. 370 F.2d 791 (10th Cir. 1966).
[270]. Id. at 795.
[271]. Lazore v. Comm’r, 11 F.3d 1180, 1186–87 (3d Cir. 1993); see also Jourdain v. Comm’r, 617 F.2d 507, 508–09 (8th Cir. 1980) (rejecting the taxpayer’s claim that federal taxation of his income violated the prohibition on “molestation from the United States” in the Treaty of Greenville of 1795); Hoptowit v. Comm’r, 709 F.2d 564, 566 (9th Cir. 1983) (holding that the Treaty with the Yakimas of 1855, which provided that a certain tract of land was set apart “for the exclusive use and benefit of said confederated tribes and bands of Indians,” did not create a blanket exemption from the income tax).
[272]. Lentz, supra note 227, at 220.
[273]. Barrett v. United States, 561 F.3d 1140, 1146 (10th Cir. 2009); see also Comm’r v. Walker, 326 F.2d 261, 262, 264 (9th Cir. 1964) (holding that the salary of Freeman P. Walker, a full-blooded noncompetent member of the Gila River Pima-Maricopa Indian Community and elected Treasurer of the Tribe, was not exempt from federal income taxation).
[274]. Lentz, supra note 227, at 235 (“If Barrett’s salary does not fit this definition of development, it is unclear what actually would.”).
[275]. 970 F.3d 148 (2d Cir. 2020).
[276]. Id. at 161. Notably, the Treaty of 1842 specifically provides that the lands of the Seneca will be protected “as may from time to time remain in their possession from all taxes.” Treaty of Buffalo Creek, May 20, 1842, 7 Stat. 586, 590.
[277]. Perkins, 970 F.3d at 161.
[278]. 108 F.4th 1038 (8th Cir. 2024), cert. denied, 145 S. Ct. 1312 (2025).
[279]. Id. at 1039.
[280]. Id. at 1040.
[281]. Id. at 1041; Appellant’s Brief at *12, Bibeau v. Comm’r, No. 23-2923, 2024 WL 290413 (8th Cir. 2024).
[282]. Appellant’s Brief at *7, Bibeau v. Comm’r, No. 23-2923, 2024 WL 290413 (8th Cir. 2024).
[283]. Bibeau, 108 F.4th at 1040.
[284]. 649 F.3d 849 (8th Cir. 2011).
[285]. Id. at 850.
[286]. See, e.g., Clay v. Comm’r, 990 F.3d 1296, 1303 (11th Cir. 2021) (holding that revenue from gaming is subject to federal income taxation, in part because “Miccosukee lands have never been allotted, under the General Allotment Act or otherwise. And again, we have already held that casino revenues do ‘not derive directly from the land’ anyway.”).
[287]. 295 U.S. 418, 421 (1935).
[288]. Opinion of the Solicitor, supra note 120, at 994.
[289]. Bibeau v. Comm’r, 108 F.4th 1038, 1040 (8th Cir. 2024), cert. denied, 145 S. Ct. 1312 (2025).
[290]. 348 U.S. 272, 289–90 (1955).
Every American schoolboy knows that the savage tribes of this continent were deprived of their ancestral ranges by force and that, even when the Indians ceded millions of acres by treaty in return for blankets, food, and trinkets, it was not a sale, but the conquerors’ will that deprived them of their land.
Id.
[291]. See supra Part II.B.
[292]. See generally Ajay K. Mehrotra, Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877–1929 (2013) (describing the emergence of a new fiscal polity concerned with economic justice, civic identity, bureaucratic capacity, and public power); Kirk J. Stark, Fiscal Federalism and Tax Progressivity: Should the Federal Income Tax Encourage State and Local Redistribution?, 51 UCLA L. Rev. 1389, 1390–91 (2004) (noting a shift in the political consensus that wealth should be redistributed).
[293]. See, e.g., U.S. Comm’n on Civ. Rts., Broken Promises: Continuing Federal Funding Shortfall for Native Americans 1 (2018).
Since our nation’s founding, the United States and Native Americans have committed to and sustained a special trust relationship, which obligates the federal government to promote tribal self-government, support the general wellbeing of Native American tribes and villages, and to protect their lands and resources. In exchange for the surrender and reduction of tribal lands and removal and resettlement of approximately one-fifth of Native American tribes from their original lands, the United States signed 375 treaties, passed laws, and instituted policies that shape and define the special government-to-government relationship between federal and tribal governments.
Id.
[294]. Coal. of Large Tribes, Comment Letter on Proposed Rulemaking on Tribally-Chartered Entities (Jan. 7, 2025), https://largetribes.org/wp-content/uploads/2025/01/COLT-written-comments-Tribal-Entities-Taxation-2025.pdf [https://perma.cc/D9S8-JGE6] (“It is critical to reset the foundation for federal tax authority in Indian country.”).
[295]. See, e.g., Presidential Memorandum on Uniform Standards for Tribal Consultation, 87 Fed. Reg. 74479 (Nov. 30, 2022) (“The United States has a unique, legally affirmed Nation-to-Nation relationship with American Indian and Alaska Native Tribal Nations. . . . The United States also has a unique trust relationship with and responsibility to protect and support Tribal Nations.”).
[296]. Buster v. Wright, 135 F. 947, 950 (8th Cir. 1905) (upholding the Creek Nation’s annual permit tax against noncitizens for the privilege of conducting business within the Creek Nation); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 144 (1982).
We choose not to embrace a new restriction on the extent of the tribal authority to tax . . . Instead, based on the views of each of the federal branches, general principles of taxation, and the conception of Indian tribes as domestic, dependent nations, we conclude that the Tribe has the authority to impose a severance tax on the mining activities of petitioners as part of its power to govern and to pay for the costs of self-government.
Id. But see EagleWoman, supra note 16, at 44 (noting that historically, “Tribal Nations did not have a tax on citizenry because the citizenry voluntarily contributed to support each other and the functions of the government”).
[297]. See, e.g., Atkinson Trading Co., Inc. v. Shirley, 532 U.S. 645, 659 (2001) (striking down a Tribal hotel occupancy tax on non-Tribal member guests staying in a hotel owned by a non-Tribal member on non-Indian fee lands).
[298]. See White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 151 (1980) (holding that federal law preempted Arizona motor carrier and fuel taxes assessed against a non-Indian contractor that was working exclusively for the White Mountain Apache Tribe on Tribal land; nonetheless, the Court established the Bracker “balancing” test for assessing the scope of state regulatory authority over nonmember activity on Tribal lands, which courts have increasingly interpreted to weigh against concerns for Tribal self-governance); Cotton Petroleum v. New Mexico, 490 U.S. 163, 192–93 (1989) (upholding a state severance tax on a non-Indian oil producer that was operating on the Jicarilla Apache Reservation and already paying a Tribal severance tax).
[299]. U.S. Comm’n on Civ. Rts., Broken Promises: Continuing Federal Funding Shortfall for Native Americans 1 (2018); Shrider & Creamer, supra note 38, at 5–6.
[300]. Broken Promises, supra note 38, at 1.
[301]. Hearing on Select Revenue Measures Before the Subcomm. on Select Revenue Measures of the H. Comm. on Ways & Means, 116th Cong. 3 (2020) (statement of Rodney Butler, Chairman, Mashantucket Pequot Tribal Nation) (arguing that the federal government lacks authority to tax stolen land and that Congress should put Tribes on equal footing with states regarding taxation authority); Hill, supra note 41; see also Fletcher, supra note 41, at 767.
[302]. Tribal General Welfare Exclusion Act of 2014, Pub. L. No. 113-168, 128 Stat. 1883 (codified at 26 U.S.C. § 139E).
[303]. 26 U.S.C. § 139E(a).
[304]. Id. § 139E(b)(2)(C).
[305]. Tribal General Welfare Benefits, 89 Fed. Reg. 75990–6001 (proposed Sep. 17, 2024) (to be codified at 26 C.F.R. pt. 1).
[306]. Tribal General Welfare Exclusion Act § 2(c), 128 Stat. at 1884.
[307]. Exec. Order No. 14112, 88 Fed. Reg. 86021 (Dec. 6, 2023) (“Federal support for Tribal self-determination has been the most effective policy for the economic growth of Tribal Nations and the economic well-being of Tribal citizens.”). President Trump notably rescinded this Executive Order along with a large batch of other executive actions. Exec. Order No. 14236, 90 Fed. Reg. 13037 (Mar. 14, 2025).
[308]. Tribal General Welfare Benefits, 89 Fed. Reg. at 75990–91.
[309]. Nat’l Cong. of Am. Indians, Support for Tribal Tax Reform and Setting Tax Policy Priorities, Res. SD-15-036 (2015), https://home.treasury.gov/system/files/226/For%20the%20Record%209182019%20NCAI%20Tax%20Priorities%20Resolution%20SD-15-036.pdf [https://perma.cc/2UY3-9P9K].
[310]. Id. at 1.
[311]. Id. at 2–3.
[312]. Id. at 3.
[313]. Alex Zhang, The Other Taxation: Tribes, Territories, and Fiscal Autonomy, 126 Colum. L. Rev. 397, 467 (2026) [hereinafter Zhang, The Other Taxation].
[314]. Revenue Act of 1918, ch. 18, §§ 222(a)(1), 238(a), 240(c), 40 Stat. 1057, 1073, 1080–82 (1919).
[315]. Internal Revenue Serv., Publ’n 514, Foreign Tax Credit for Individuals (2025), https://www.irs.gov/pub/irs-pdf/p514.pdf [https://perma.cc/5WTV-7TN9].
[316]. Id.
[317]. 26 U.S.C. § 7871.
[318]. See generally Veronica E. Velarde Tiller, Tiller’s Guide to Indian Country: Economic Profiles of American Indian Reservations (3d ed. 2015) (providing a comprehensive collection of economic profiles of Indian reservations, which showcases the broad geographic, economic, and bureaucratic diversity of Tribes).
[319]. See, e.g., Adam Crepelle, Taxes, Theft, and Indian Tribes: Seeking an Equitable Solution to State Taxation of Indian Country Commerce, 122 W. Va. L. Rev. 999, 1010 (2020) (describing the efforts of the Tulalip Tribes to recoup taxation revenue from their economic development project Quil Ceda Village from the State of Washington).
[320]. Pub. L. No. 93-638, 88 Stat. 2203 (codified at 25 U.S.C. § 5301 et seq.).
[321]. Mehrotra, supra note 292, at 9–16.
[322]. The Unique Challenges of Tribal Veterans, Mission Roll Call (Oct. 17, 2022), https://missionrollcall.org/veteran-voices/articles/the-unique-challenges-of-tribal-veterans/ [https://perma.cc/W7ZC-5WHD].
[323]. Brief for Nat’l Cong. of Am. Indians, United S. & E. Tribes Sovereignty Prot. Fund, Native Am. Fin. Officers Ass’n & Nat’l Intertribal Tax All. as Amici Curiae Supporting Petitioner, Stroble v. Okla. Tax Comm’n, No. 25-382 (U.S. 2025).
[324]. Zhang, The Other Taxation, supra note 313, at 467.
[325]. Id.
[326]. Id. at 402. Note, Mirror-Code jurisdictions may not replicate all aspects of the federal tax regime. See, e.g., 48 U.S.C. § 1421i(d)(1) (providing that Guam’s income-tax laws “manifestly inapplicable or incompatible with the intent” of the mirroring provision will not apply in the territory).
[327]. See Mark J. Cowan, Double Taxation in Indian Country: Unpacking the Problem and Analyzing the Role of the Federal Government in Protecting Tribal Governmental Revenues, 2 Pitt. Tax Rev. 93, 96 (2005).
[328]. 26 U.S.C. § 901. Non bona fide residents of the territories already receive a foreign tax credit to the extent that they pay territorial taxes (e.g., on territorial-sourced income like employment).
[329]. Why Doesn’t Puerto Rico Pay Federal Income Tax?, PR51st (Nov. 28, 2022), https://www.pr51st.com/why-doesnt-puerto-rico-pay-federal-income-tax/ [https://perma.cc/HAX8-4JNU].
[330]. John v. Baker, 982 P.2d 738, 765 (Alaska 1999) (recognizing Alaska Native Tribes’ inherent extraterritorial sovereignty to adjudicate internal domestic-relation matters—specifically child-custody disputes—between Tribal members, even when the dispute arises outside “Indian country”).
[331]. See generally Alex Zhang, The Origins of U.S. Territorial Taxation and the Insular Cases, 134 Yale L.J. F. 556 (2025) (examining Congress’s design of territorial revenue systems during 1898–1900 and arguing that tariffs segregated the territories from the federal fiscal apparatus, prompted the Insular Cases, and created the territories’ distinctive tax status as foreign countries).
[332]. Zhang, The Other Taxation, supra note 313, at 402.
[333]. See Entities Wholly Owned by Indian Tribal Governments, 90 Fed. Reg. 58151, 58154 (Dec. 16, 2025) (noting that in finalizing regulations for the taxation of entities wholly owned by Tribes, Tribes were consulted and commentators were largely supportive of “the proposed regulations’ recognition of a Tribe’s inherent authority to create businesses under Tribal law”).
[334]. Shrider & Creamer, supra note 38, at 5–6 (showing that American Indian and Alaska Natives have the highest ratio of poverty population compared to their total population).
[335]. Vanessa Ann Racehorse, Tribal Health Self-Determination: The Role of Tribal Health Systems in Actualizing the Highest Attainable Standard of Health for American Indians and Alaska Natives, 56 Colum. Hum. Rts. L. Rev. 183, 189 (2025).
[336]. See Kelly S. Croman & Jonathan B. Taylor, Why Beggar Thy Indian Neighbor?: The Case for Tribal Primacy in Taxation in Indian Country (Discussion Draft) 3 (Native Nations Inst. & Harv. Project on Am. Indian Econ. Dev., Joint Occasional Papers on Native Affs. No. 2016-1, 2016).
[337]. Squire v. Capoeman, 351 U.S. 1, 6 (1956).
[338]. Brief for Federal Indian Law Scholars Gregory Ablavsky & Bethany Berger as Amici Curiae Supporting Respondents at 3, Trump v. Barbara, 146 S.Ct. 2438 (2026) (No. 25-365) (critiquing the U.S. Department of Justice’s reliance on Indian status to justify the exclusion of children of immigrants from citizenship under the Fourteenth Amendment); see also Fay, supra note 142; Ablavsky & Berger, supra note 142.
[339]. See van Schilfgaarde, supra note 34.
