Published on Mar 05, 2018


WASHINGTON, D.C. | The National Congress of American Indians (NCAI) and South Dakota Tribal Nations today filed an amicus brief before the U.S. Supreme Court in South Dakota v. Wayfair, Inc., a case that could greatly affect tax policy in Indian Country in South Dakota and nationwide. 

While the brief supports neither party to the case, it was filed to ensure that the Justices take tribal governments’ concerns into account when writing their opinion in this tax case.

“The Commerce Clause recognizes tribes as sovereign governments with the authority to collect taxes and to be immune from certain taxes,” said NCAI President Jefferson Keel. “We are urging the Supreme Court to protect these fundamental principles as it considers whether to expand state authority to collect online sales taxes. Tribal governments operate and fund courts of law, police, road systems and schools, and have a great need for tax revenue to fund governmental services.”    

At issue is the State of South Dakota’s request that the high court change the current law on internet and mail-order taxation so that the state can receive revenue from these “remote” purchases. Under Court decisions from 1967 and 1992, South Dakota is prohibited from charging sales taxes on items that South Dakotans order from internet or mail-order retailers that are located outside South Dakota with no stores or other facilities in the state. 

NCAI’s brief makes three arguments for the Court’s consideration:

• First, tribes, like states, have the inherent sovereign power to impose taxes on certain transactions. If South Dakota is permitted to tax items that a distant internet or mail-order retailer delivers to, say, Sioux Falls or Rapid City, then a tribe can tax the same items when the same retailer delivers them to tribal members, or others living on Indian land, on the tribe’s reservation. 

• Second, if South Dakota is permitted to tax remote sales, it cannot tax items delivered to the tribal government or tribal members on the tribe’s reservation, where Indians are immune from state sales taxes. Otherwise, families living on reservations could suffer from “double taxation,” as they suddenly would become subject to both tribal and state sales taxes.

• Third, straightforward mechanisms, like tribe-state intergovernmental agreements and blanket exemption certificates, can protect these fundamental principles of Indian law – tribes’ power to tax and Indians’ immunity from state sales taxes – regardless of how the Court decides this case.

“We’re simply asking the Court to safeguard tribes’ taxing power and Indians’ immunity from state sales taxes,” said Jenner & Block Partner Sam Hirsch, who co-leads the firm’s Indian law work and is representing NCAI in the matter with Partner Ian Heath Gershengorn, chair of the firm’s Appellate and Supreme Court Practice, and Associate Leonard R. Powell, a member and former elected official of the Hopland Band of Pomo Indians. “Tribal governments impose sales taxes just like state and local governments do, and commonly enter tax agreements with neighboring jurisdictions. At the heart of this case is the Commerce Clause, which expressly protects not only states, but also Indian tribes. The Supreme Court should do the same.”

Oral argument in the case is set for April 17th. View the amicus brief here.  


About the National Congress of American Indians:
Founded in 1944, the National Congress of American Indians is the oldest, largest and most representative American Indian and Alaska Native organization in the country. NCAI advocates on behalf of tribal governments and communities, promoting strong tribal-federal government-to-government policies, and promoting a better understanding among the general public regarding American Indian and Alaska Native governments, people and rights. For more information, visit


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