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Reply Brief for Petitioners-Appellants Case 19-2481, Document 52, 03/10/2020, 2798239, Page1 of 34 ag 19-2481- United States Court of Appeals for the Second Circuit ALICE PERKINS, FREDRICK PERKINS, Petitioners-Appellants, – v. – COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. –––––––––––––––––––––––––––––– ON APPEAL FROM THE TAX COURT, INTERNAL REVENUE SERVICE REPLY BRIEF FOR PETITIONERS-APPELLANTS MARGARET A. MURPHY MARGARET A. MURPHY, P.C. 5354 Briercliff Drive Hamburg, New York 14075 (716) 867-1536 – and – GARY D. BOREK GARY D. BOREK, ATTORNEY AT LAW 99 Victoria Boulevard Cheektowaga, New York 14225 (716) 839-4321 Attorney for Petitioners-Appellants Case 19-2481, Document 52, 03/10/2020, 2798239, Page2 of 34 TABLE OF CONTENTS TABLE OF AUTHORITIES . iii PRELIMINARY STATEMENT. 1 ARGUMENT IN REPLY . 4 I NO DECISION OF THE UNITED STATES SUPREME COURT OR THE UNITED STATES COURT OF APPEALS HAS EVER RULED ON THE TAXABILITY OF INCOME DERIVED FROM THE TREATY-PROTECTED LANDS OF THE SENECA NATION. 4 A. Because the General Allotment Act Specifically Excludes the Lands of the Seneca Nation, Income Found Taxable under the Act Would Not Preclude an Exemption Claim Based on Federal Treaties with the Seneca Nation. 4 B. The Commissioner Has Not Cited and Cannot Cite Any Decision from the Tax Court or from a Federal Court Imposing a Federal Income Tax on an Enrolled Seneca Engaged in Farming, Mining, Harvesting or Otherwise Working the Treaty-Protected Lands of the Seneca Nation. 7 II THE COURT MUST EXAMINE THE LANGUAGE AND THE HISTORICAL CONTEXT OF THE TREATIES TO DETERMINE WHETHER CONGRESS INTENDED TO TAX INCOME DERIVED FROM WORKING THESE TREATY-PROTECTED LANDS. 11 A. Based on Relevant Historic Facts, No Evidence Exist to Show Congress Intended to Impose a Tax on Land or Income Derived from Land of the Seneca Nation . 13 i Case 19-2481, Document 52, 03/10/2020, 2798239, Page3 of 34 B. The Canandaigua Treaty and the 1842 Treaty Must Be Read In Pari Materia, Applying Liberal Canons of Construction Applicable to Indian Treaties. 19 1. Congress did not intend to impose a tax burden on land or income derived from the land of the Seneca Nation . 19 2. The Canandaigua Treaty and 1842 Treaty confers rights to enrolled members of the Seneca Nation . 22 CONCLUSION . 25 ii Case 19-2481, Document 52, 03/10/2020, 2798239, Page4 of 34 TABLE OF AUTHORITIES Case Authority Blight’s Lessee v. Rochester, 20 U.S. (1 Wheaton) 535 (1822) . 21 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) . .22-23 Choate v. Trapp, 224 U.S. 665 (1912) . 11, 19 Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970) . 11,19 Choctaw Nation v. United States, 318 U.S. 423 (1943) . 13, 19 Cook v. United States, 86 F.3d 1095 (Fed. Cir. 1996) . 8, 10 United States v. Dion, 476 U.S. 734 (1986) . 17 Elk v. Wilkins, 112 U.S. 94 (1884) . 16 Fellows v. Blacksmith, 60 U.S. (19 How.) 366 (1856) . 14 Frost v. Wenie, 158 U.S. 46 (1895) . 21 Herrera v. Wyoming, 139 S.Ct. 1686 (2019) . 2, 12, 17 Holt v. Commissioner, 364 F.2d 38 (8th Cir. 1966), cert. denied 386 U.S. 931 (1967) . 6 Hoptowit v. C.I.R., 709 F.2d 564 9th Cir. (1983) . 8, 9, 10 Jones v. Meehan, 175 U.S. 1 (1899) . 19 Lazore v. C.I.R., 11 F.3d 1180 (3d. Cir. 1993) . 7, 8, 9, 18, 20 Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999) . 12, 13, 17, 19, 21 Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874 (2d Cir. 1996) . 22. iii Case 19-2481, Document 52, 03/10/2020, 2798239, Page5 of 34 The New York Indians, 72 U.S. (5 Wall.) 761 (1866) . 14, 24 Perkins v. U.S., 16-CV-495(LJV), 2017 WL 3326818 (W.D.N.Y. Aug. 4, 2017) . 2, 7, 8 Pollock v. Farmers’ Loan & Trust Co., 158 U.S. 601 (1895) . 15 Red Lake Band of Chippewa Indians v. United States, 861 F. Supp. 841, 845-46 (D. Minn. 1994) . 6 Shanks v. Dupont, 28 U.S. 242 (1930) . 21 Squire v. Capoeman, 351 U.S. 1 (1956) . 2, 4, 5, 10, 20 United States v. Anderson, 625 F.2d 910 (9th Cir. 1980) . 5 Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658 (1979) . 12, 19 Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 557 (1832) . 23 Tax Court Rulings George v. C.I.R., 57 T.C.M. (CCH) 1168 (Tax 1989) . 9 Maracle v. C. I. R., 61 T.C.M. (CCH) 2083 (Tax 1991) . 9 Nephew v. C.I.R., 56 T.C.M. (CCH) 1122 (Tax 1989) . 9 Sylvester v. C.I.R., 77 T.C.M. (CCH) 1346 (Tax 1999) . 8, 9, 10 Wynecoop v. Commissioner, 76 T.C. 101 (1981) . 6 Constitutional and Statutory Authority 25 U.S.C.A, § 339 (West 2020) . 6 iv Case 19-2481, Document 52, 03/10/2020, 2798239, Page6 of 34 I.R.C. § 894 (West 2020) . 16, 18 I.R.C. § 894(a)(1) (West 2020) . 18, 19 I.R.C. § 7852(d) (West 2020) . 17 I.R.C. § 7852(d)(2) (West 2020) . 15 U.S. Const. art. I, § 2, cl. 3 . 15 U.S. Const. art. VI, cl. 2 (West 2020) . 13 U.S. Const. XVI amend (West 2020) . 16 Other Authorities Canandaigua Treaty of 1794, Nov. 11, 1794, 7 Stat. 44 (“Canandaigua Treaty”) . passim Felix S. Cohen, Handbook of Federal Indian Law 78 (1942 ed.) . 12 Encyclopedia of the Haudenosaunee (Iroquois Confederacy) (Bruce Elliot Johansen & Barbara Alice Mann, eds., Greenwood Press 2000) . 23 General Allotment Act of 1887, ch. 119, 24 Stat. 389 . passim Income Tax-Restricted Lands of Quapaw Indians., 34 U.S. Op. Atty. Gen. 439 (1925) . 12, 21 Income Tax-Tom Pavatea, Hopi Indian, 35 U.S. Op. Atty. Gen. 107 (1926) . 8, 10. 21 In Defense of Property, 118 Yale L. J. 1022, 1066 (April 2009) . 24 Indian Citizenship Act of 1924, Pub. L. No. 68-175, 43 Stat. 253 . 15 Rev. Rul. 67-284, 1967-2 C.B., 1967 WL 14945 . 5, 11 v Case 19-2481, Document 52, 03/10/2020, 2798239, Page7 of 34 Rev. Rul. 70-116, 1970-1 C.B. 11, 1970 WL 20654 . 11 David Sachs, Is the 19th Century Doctrine of Treaty Override Good Law for Modern Day Tax Treaties?, 47 Tax Law. 867, 870 (1994) . 16 Treaty with the Six Nations, 1784, Oct. 22, 1784, 7 Stat. 15 (“1784 Treaty of Fort Stanwix”) . 13 Treaty with the Senecas, May 20, 1842, 7 Stat. 586 (“1842 Treaty”) . passim vi Case 19-2481, Document 52, 03/10/2020, 2798239, Page8 of 34 PRELIMINARY STATEMENT On February 18, 2020, the Commissioner of Internal Revenue (the “Commissioner”) filed a 61-page brief (cited as “ CIR Br.”) without acknowledging this appeal presents an issue of first impression. Only two courts, the United States District Court for the Western District of New York (the “District Court”) and the United States Tax Court (the “Tax Court”) from which this appeal is taken, have addressed the issue of the taxability of income derived from treaty-protected lands of the Seneca Nation of Indians (“Seneca Nation”). Perkins v. United States, 16- CV-495(LJV), WL 3326818, at *1 (W.D.N.Y. Aug. 4, 2017); Perkins v. Commissioner of Internal Revenue, 150 T.C. 119 (U.S. Tax Ct. 2018)(JA 142-171). In two federal treaties, the United States promised not to disturb the “free use and enjoyment” of lands by the Seneca Nation and “their Indian friends residing thereon and united with them” and protecting these lands “from all taxes” for any purpose. Canandaigua Treaty of 1794, Nov. 11, 1794, 7 Stat. 44, 45, art. III (“Canandaigua Treaty”); Treaty with the Senecas, May 20, 1842, 7 Stat. 586, 590, art. 9 (“1842 Treaty”). Contrary to federal case law, the Commissioner argues the “relevant inquiry in examining these treaties” is not “whether the parties to the treaties ‘contemplated the imposition of federal income tax’ or ‘intended to impose’ taxes under these treaties,” but “whether either treaty creates an exemption” from federal taxation, particularly when “taxation is not referenced anywhere” in one of 1 Case 19-2481, Document 52, 03/10/2020, 2798239, Page9 of 34 the treaties. (CIR Br. at 20, 24). But see Herrera v. Wyoming, 139 S.Ct. 1686, 1699 (2019)(“A treaty is ‘essentially a contract between two sovereign nations.’ [Citation omitted]. Indian treaties ‘must be interpreted in light of the parties' intentions, with any ambiguities resolved in favor of the Indians, [Citation Omitted] . .”); Squire v. Capoeman, 351 U.S. 1, 6–7 (1956)(construing the General Allotment Act of 1887 to create an exemption for a not-yet-created federal income tax). Instead of reading these treaties in pari materia, the Commissioner separated and isolated language in each treaty, construing each treaty narrowly rather than liberally. (CIR Br. At 14, 25, 37, 48-49). The Commissioner, like the Tax Court (JA 10, 21), claims these treaties do not confer rights on individual members of the Seneca Nation. (CIR Br. at 16, 34, 37, 49). The District Court reached a different conclusion. Perkins v. United States, 2017 WL 3326818, at *4 (denying the Government’s motion to dismiss and finding the taxpayers have plausible treaty claims). Although conceding the 1842 Treaty “creates a tax exemption of some kind” (CIR Br. at 36), the Commissioner narrowly construed the exemption for state, not federal, taxation of land, and not income derived from land.
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