Enforcement of Tribal Court Tax Judgments Outside of Indian Country: The Ways and Means

Abstract

Although full faith and credit for tribal court judgments in state courts and the reverse situation, state court judgments enforced through tribal courts, have received substantial scholarly attention, no commentators have looked at the full faith and credit question from the point of view of enforcing tax liabilities. A substantial number of tribes have tax systems and collection of unpaid tribal taxes may force tribal tax officials to seek taxpayer assets located off the reservation. Likewise, states have a history of aggressively asserting their taxes against tribes and their members. Given these realities, state courts will have to consider the enforceability of tribal tax liabilities, and tribal courts will certainly have to decide whether they will assist state tax authorities in their efforts to collect unpaid state taxes owed by tribal members having substantial on-reservation assets. Federal courts may also be involved because tribes are likely to have better luck on jurisdictional questions in the federal forum.

The history of comity and full faith and credit provide a helpful backdrop to the application of these doctrines in Indian Country. The case law in area seems to show that the federal full faith and credit statute itself does not apply to tribes. Congress has enacted several narrow full faith and credit provisions for states and tribes. None of these statutes, however, applies to state or federal tax liabilities. Some states have their own full faith and credit statutes and these rules might enable tribal tax authorities to receive off-reservation enforcement of their tax liabilities.

The Uniform Foreign Money Recognition of Judgments Act provides a possible state law basis for enforcing tribal court tax judgments. This turns out to be an unlikely possibility. Another possibility is comity - a common law rule that permits, but does not require, a state court to recognize a foreign court judgment. The bad news continues, unfortunately. A common law doctrine known as the revenue rule provides that comity does not extend to tax liabilities. Does this mean that tribal tax officials should just give up? Maybe yes, maybe no.

Federal courts have begun to develop what they call a federal common law of comity. This developing area of law is promising and could provide a basis for actually getting off-reservation enforcement of tribal court tax judgments. Even without federal comity, tribes and states, because they may have a common interest in promoting cross-border enforcement of tax liabilities, are free to enter into inter-governmental agreements that could provide a basis for off-reservation enforcement of tribal court tax judgments.

Keywords: Indian law, Native American law, tribal courts, tribal tax, tax law, full faith and credit