I
106TH CONGRESS
2D SESSION
H. R. 5244
To provide for the payment of State taxes on the sale of cigarettes and
motor fuel by tribal retail enterprises to persons that are not members
of the tribe, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
SEPTEMBER 21, 2000
Mr. PETERSON of Pennsylvania (for himself, Mr. TANCREDO, Mr. SIMPSON,
and Mr. DUNCAN) introduced the following bill; which was referred to the
Committee on Resources
A BILL
To provide for the payment of State taxes on the sale of
cigarettes and motor fuel by tribal retail enterprises to
persons that are not members of the tribe, and for other
purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Tribal-State Tax Fair-
ness Act of 2000’’.
SEC. 2. DEFINITIONS.
For purposes of this Act:
(1) COVERED STATE TAX.—The term ‘‘covered
State tax’’ means a lawfully imposed and non-
discriminatory State excise, sales, or transaction tax
levied or imposed on purchases, by nonmembers of
a tribe, of tobacco products or motor fuels from a
tribal retail enterprise, including a non-Indian re-
tailer affiliated with an Indian tribe.
(2) INDIAN COUNTRY.—The term ‘‘Indian coun-
try’’ means—
(A) all lands within the limits of any In-
dian reservation; and
(B) all lands title to which is either held in
trust by the United States for the benefit of
any Federally recognized Indian tribe or indi-
vidual Indian or held by any Indian tribe or in-
dividual Indian subject to restriction by the
United States against alienation and over which
an Indian tribe exercises governmental power.
(3) INDIAN TRIBE.—The term ‘‘Indian tribe’’
has the meaning given that term in section 4(e) of
the Indian Self-Determination and Education Assist-
ance Act (25 U.S.C. 450b(e)).
(4) PERSON.—The term ‘‘person’’ means indi-
viduals, corporations, partnerships, associations of
persons, State or local governments, or Indian tribal
governments.
(5) SECRETARY.—The term ‘‘Secretary’’ means
the Secretary of the Interior or his or her designee.
(6) SERVICE.—The term ‘‘Service’’ means the
Federal Mediation and Conciliation Service estab-
lished under section 202 of the National Labor Rela-
tions Act (29 U.S.C. 172).
(7) TRIBAL
RETAIL
ENTERPRISE.—The term
‘‘tribal retail enterprise’’ means a retail store car-
rying on business in Indian country that sells to-
bacco products or motor fuels and is owned or oper-
ated by a person or an Indian tribe or a member of
an Indian tribe, or is owned or operated by a person
who is not a member of an Indian tribe under a
management contract with an Indian tribe or a
member of an Indian tribe.
(8) TRIBAL-STATE
AGREEMENT.—The term
‘‘tribal-State agreement’’ means an agreement or
compact between a State and an Indian tribe con-
cerning State taxes on tobacco products or motor
fuels that is in effect on the date of enactment of
this Act, or was in effect at any time between Janu-
ary 1, 1990, and the date of enactment of this Act.
SEC. 3. APPLICABILITY.
(a) IN GENERAL.—Except to the extent that a tribal-
State agreement provides otherwise, this Act shall not
apply to any covered State tax for which—
(1) a State law specifically exempts, either in
whole or in part, the collection or remittance of such
taxes;
(2) the legal incidence of the otherwise applica-
ble State tax falls on a tribe or its members, thereby
subjecting the purchase by a tribal member from a
tribal retail enterprise to a State excise, sales, or
transaction tax; or
(3) the State tax is preempted by the operation
of Federal law.
(b) PROSPECTIVE APPLICABILITY.—This Act shall
apply only to covered State taxes due, or amounts due
under tribal-State agreements, with respect to purchases
completed on or after the date of the enactment of this
Act.
SEC. 4. COLLECTION OF COVERED STATE TAXES PURSU-
ANT TO STATE PETITIONS.
(a) COLLECTION AND REMITTANCE OF TAXES.—Not
later than 60 days after receiving a petition from the Gov-
ernor of a State within the borders of which a tribal retail
enterprise is located alleging the non-collection of a cov-
ered State tax by the tribal retail enterprise, the Secretary
shall determine whether or not the tribal retail enterprise
is collecting and remitting the appropriate amount of cov-
ered State tax according to the laws of such State) (if
no tribal-State agreement exists) or the terms of a tribal-
State agreement (if a tribal-State agreement exists). Upon
a determination of non-collection and non-remittance, the
Secretary shall notify and direct the tribal retail enterprise
to collect the covered State tax and remit it to the Sec-
retary pursuant to subsection (b).
(b) REMITTANCE TO SECRETARY.—
(1) IN
GENERAL.—A tribal retail enterprise
shall remit to the Secretary covered State taxes col-
lected pursuant to subsection (a) on a monthly basis,
by the 15th day following the month in which the
taxes were collected.
(2) DETERMINATION OF AMOUNT TO BE REMIT-
TED TO SECRETARY.—
(A) EXISTENCE OF TRIBAL-STATE AGREE-
MENT.—In the event a tribal-State agreement
exists or existed with respect to the tribal retail
enterprise or Indian tribe named in a sub-
section (a) petition, then the amount of covered
State taxes remitted to the Secretary pursuant
to such a petition shall in no event be more
than the amount provided for by the terms of
such tribal-State agreement, even if such tribal-
State agreement is no longer in effect at the
time of the subsection (a) petition because the
agreement has expired or one of the parties to
the agreement has terminated the agreement.
(B) ABSENCE
OF
TRIBAL-STATE
AGREE-
MENT.—In the event a tribal-State agreement
with respect to the tribal retail enterprise or In-
dian tribe named in a subsection (a) petition
did not or does not exist, then the Secretary
shall consult with a State making the petition
under subsection (a) to determine the appro-
priate amount of covered State taxes that
should be remitted to the Secretary under this
subsection based upon the volume of motor
fuels and tobacco products sold to nontribal
members at the tribal retail enterprise.
(C) MEDIATION.—If necessary to deter-
mine the amount to be remitted under this sub-
section, the Secretary shall consult with the
Service and establish a mediation between the
Indian tribe and the State for the purposes of
determining such amount. The Service shall
complete such mediation within 180 days of the
initial consultation by the Secretary and render
its determination on the appropriate amount to
be remitted to the Secretary immediately. Once
the Secretary has received the Service’s deter-
mination, that determination shall be used by
the Secretary in establishing the appropriate
amount to be remitted under subsection (a).
(3) EXCLUSION.—Unless otherwise provided by
a tribal-State agreement described in subsection
(b)(2)(A), a tribal retail enterprise shall not remit to
the Secretary any covered State taxes collected from
tribal members from purchases of tobacco products
and motor fuels.
(c) RETURN OF FUNDS TO APPROPRIATE STATE.—
Not later than 30 days after receiving a covered State tax
payment from a tribal retail enterprise or Indian tribe
under subsection (b), the Secretary shall remit the balance
of taxes collected under subsection (b) (after subtracting
administrative expenses subject to subsection (d)) to the
State fund specified by the Governor in the petition sub-
mitted under subsection (a).
(d) ADMINISTRATIVE EXPENSES.—Prior to the re-
turn of funds to the appropriate State under subsection
(c), the Secretary shall deduct from the amount remitted
from the tribal retail enterprise pursuant to subsection (b)
an administrative fee that is equal to the direct cost of
administering this Act. The administrative fee deducted
under this subsection shall not exceed one percent of the
amounts remitted pursuant to subsection (b).
(e) SATISFACTION
OF
DUTIES
UNDER
TRIBAL-
STATE AGREEMENT.—Amounts remitted to the Secretary
under subsection (b) shall be applied by the State to
amounts due under the terms of the tribal-State agree-
ment described in subsection (b)(2)(A).
(f) REGULATIONS.—Not later than 180 days after
the date of the enactment of this Act, the Secretary shall
promulgate regulations providing for the implementation
and enforcement of this Act.
(g) SPECIFIC PRICES.—No provision of this Act shall
require any tribal retail enterprise to sell motor fuels or
tobacco products at any specific price.
SEC. 5. MEDIATION OF DISPUTES BETWEEN TRIBES AND
STATES UNDER TRIBAL-STATE AGREEMENTS.
(a) IN GENERAL.—A State or an Indian tribe may
petition the Secretary to mediate disputes between a State
and an Indian tribe regarding compliance with the terms
of a tribal-State agreement in effect on the date of such
petition.
(b) MEDIATION.—Within 60 days of receiving a peti-
tion under subsection (a), the Secretary shall either con-
vene a mediation of the State and the Indian tribe to re-