[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5244 Introduced in House (IH)]







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 Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Tribal-State Tax Fairness 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 nondiscriminatory 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 retailer 
        affiliated with an Indian tribe.
            (2) Indian country.--The term ``Indian country'' means--
                    (A) all lands within the limits of any Indian 
                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 individual Indian 
                or held by any Indian tribe or individual 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 Assistance Act (25 U.S.C. 450b(e)).
            (4) Person.--The term ``person'' means individuals, 
        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 established under section 
        202 of the National Labor Relations Act (29 U.S.C. 172).
            (7) Tribal retail enterprise.--The term ``tribal retail 
        enterprise'' means a retail store carrying on business in 
        Indian country that sells tobacco products or motor fuels and 
        is owned or operated 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 concerning 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 January 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 applicable 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 PURSUANT TO STATE PETITIONS.

    (a) Collection and Remittance of Taxes.--Not later than 60 days 
after receiving a petition from the Governor of a State within the 
borders of which a tribal retail enterprise is located alleging the 
non-collection of a covered 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 
covered 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 
Secretary pursuant to subsection (b).
    (b) Remittance to Secretary.--
            (1) In general.--A tribal retail enterprise shall remit to 
        the Secretary covered State taxes collected 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 remitted to secretary.--
                    (A) Existence of tribal-state agreement.--In the 
                event a tribal-State agreement exists or existed with 
                respect to the tribal retail enterprise or Indian tribe 
                named in a subsection (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 agreement.--In the 
                event a tribal-State agreement with respect to the 
                tribal retail enterprise or Indian 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 
                appropriate 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 determine the 
                amount to be remitted under this subsection, 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 determination, 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 submitted under 
subsection (a).
    (d) Administrative Expenses.--Prior to the return 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 agreement 
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 petition under 
subsection (a), the Secretary shall either convene a mediation of the 
State and the Indian tribe to resolve the dispute or 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 
report its conclusions regarding the dispute contained in a subsection 
(a) within 180 days of the initial consultation by the Secretary. Once 
the Secretary or the Service has made a determination regarding the 
issue in dispute, the Secretary shall notify the parties to the 
subsection (a) petition of the determination and urge the adoption of 
the determination by such parties.

SEC. 6. ENFORCEMENT.

    (a) Notice of Violation.--If a tribal retail enterprise fails to 
comply within 60 days with section 4(a) once the Secretary has made a 
determination under section 4(b), the Secretary shall notify the tribal 
retail enterprise of this violation and demand immediate compliance 
with the determination.
    (b) Referral of Violation to Department of Justice.--If a tribal 
retail enterprise is not in compliance with section 4 within 30 days of 
the notification under subsection (a), the Secretary shall refer the 
matter within 15 days to the Department of Justice.
    (c) Commencement of Civil Enforcement Action.--
            (1) In general.--Not later than 60 days after a referral 
        under subsection (b), the Department of Justice shall initiate 
        a civil enforcement action in Federal district court against 
        the tribal retail enterprise.
            (2) Tribal-owned retail enterprise.--If the tribal retail 
        enterprise named in such a civil enforcement action is owned or 
        operated by an Indian tribe, then the civil action shall 
        include requests for injunctive relief against the tribal 
        retail enterprise and the appropriate Indian tribal government 
        and for the payment to the Secretary of all covered State 
        taxes, as determined under section 4(b), owed by the tribal 
        retail enterprise from the date of the enactment of this Act.
            (3) Tribal member-owned retail enterprise.--If the tribal 
        retail enterprise named in such a civil enforcement action is 
        owned or operated by a member of an Indian tribe, then the 
        civil action shall include requests for injunctive relief and 
        civil penalties in the amount of 3 times the covered State 
        taxes, as determined under section 4(b), owed by the tribal 
        retail enterprise from the date of enactment of this Act.
    (d) Challenge to Compliance.--
            (1) Information.--
                    (A) In general.--Any person, including but not 
                limited to a State, that has information indicating 
                that a tribe is not remitting the appropriate covered 
                State tax to the Secretary under section 4(b), may 
                submit such information to the Secretary. Not later 
                than 30 days after receipt of such information, the 
                Secretary shall commence an administrative action to 
                determine the validity of this information. Such 
                administrative action shall be concluded within 60 
                days. If, after this administrative action, the 
                Secretary concludes that the tribal retail enterprise 
                is in violation of this Act, then the Secretary shall 
                issue a notice of violation under subsection (a).
                    (B) Limitation.--The Secretary shall commence an 
                administrative action under subparagraph (A) only if 
                the information submitted by a person under 
                subparagraph (A) directly relates to covered State tax 
                amounts due as a result of the Secretary's action on a 
                petition submitted under section 4(a).
            (2) Judicial review.--A person may challenge the 
        Secretary's conclusions under this subsection by commencing an 
        action in Federal district court; provided, that if the 
        challenge is not sustained by the court, the challenging person 
        shall be liable to the Secretary for attorney's fees and court 
        costs.
                                 <all>