Confederated Tribes & Bands of the Yakama Indian Nation v. Alcohol & Tobacco Tax & Trade Bureau

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CONFEDERATED TRIBES AND No. 14-35165
BANDS OF THE YAKAMA INDIAN
NATION, D.C. No.
Plaintiff-Appellant, 2:11-cv-03038-RMP
v.
OPINION
ALCOHOL AND TOBACCO TAX
AND TRADE BUREAU; JOHN J.
MANFREDA, in his official
capacity as Administrator of the
Alcohol and Tobacco Tax and
Trade Bureau; UNITED STATES
DEPARTMENT OF THE
TREASURY; TIMOTHY
GEITHNER, in his official
capacity as Secretary of the
United States Department of the
Treasury; UNITED STATES OF
AMERICA,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding
Argued and Submitted August 30, 2016
Seattle, Washington
2 YAKAMA NATION V. TTB
Filed December 13, 2016
Before: Alfred T. Goodwin, Mary M. Schroeder,
and M. Margaret McKeown, Circuit Judges.
Opinion by Judge Goodwin
SUMMARY*
Tax
The panel vacated and remanded the district court’s
summary judgment in favor of federal agencies in an action
seeking to bar defendant federal agencies and officials from
imposing the federal excise tax on tobacco products
manufactured by King Mountain Tobacco Company – a
corporation organized, existing, and operating under the laws
of the Yakama Nation – for lack of jurisdiction under the
Anti-Injunction Act.
The panel held that the declaratory and injunctive relief
sought in this case “falls squarely within the literal scope” of
the Anti-Injunction Act (“Act”), 26 U.S.C. § 7421(a), which
bars any suit that would restrain the assessment and collection
of any tax. The panel was unpersuaded by the Yakama
Nation’s contention that it is not a “person” within the
meaning of the Act. The panel was also unpersuaded by the
contention that the Yakama Nation’s claims fell within the
narrow exception to the Act set out in South Carolina v.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
YAKAMA NATION V. TTB 3
Regan, 465 U.S. 367 (1984) (upholding an injunction against
the collection of federal taxes on interest from state-issued
bearer bonds because enforcing the jurisdictional bar would
deprive the state of any opportunity to obtain review of its
claims).
COUNSEL
Randolph Henry Barnhouse (argued) and Justin J. Solimon,
Johnson Barnhouse & Keegan LLP, Albuquerque, New
Mexico, for Plaintiff-Appellant.
Patrick J. Urda (argued), Teresa E. McLaughlin, and Gilbert
S. Rothenberg, Attorneys; Tamara W. Ashford, Acting
Assistant Attorney General; Tax Division, Department of
Justice, Washington, D.C.; for Defendants-Appellants.
OPINION
GOODWIN, Circuit Judge:
Confederated Tribes and Bands of the Yakama Indian
Nation (“the Yakama Nation” or “the tribe”) appeals the
district court’s summary judgment in the Yakama Nation’s
action seeking to bar defendant federal agencies and officials
from imposing the federal excise tax on tobacco products
manufactured by King Mountain Tobacco Co. (“King
Mountain”). The Yakama Nation alleges that King Mountain
is entitled to exemptions from the excise tax under the
General Allotment Act, 25 U.S.C. § 331 et seq., and the
Treaty with the Yakama, 12 Stat. 951 (1855). Defendants, in
turn, contend that the Anti-Injunction Act and the tax
4 YAKAMA NATION V. TTB
exception to the Declaratory Judgment Act bar the Yakama
Nation’s claims seeking injunctive and declaratory relief.
We hold that the Anti-Injunction Act deprived the district
court of jurisdiction to hear the Yakama Nation’s claims. We
therefore vacate the judgment and remand with instructions
to dismiss.
FACTUAL AND PROCEDURAL BACKGROUND
The Yakama Nation, King Mountain, and Delbert
Wheeler, Sr., brought suit for injunctive and declaratory relief
barring the imposition of the federal tobacco excise tax on
King Mountain. The tobacco excise tax applies to “cigarettes,
manufactured or imported into the United States,” 26 U.S.C.
§ 5701(b), and “roll-your-own tobacco, manufactured in or
imported into the United States,” id. § 5701(g). “[A]ny person
who manufactures” cigarettes or roll-your-own tobacco, id.
§ 5702(d), is liable for the tax, see id. § 5703(a).
The Yakama Nation is a federally recognized Indian
Tribe. King Mountain, a corporation organized, existing, and
operating under the laws of the Yakama Nation, manufactures
cigarettes and “roll-your-own” tobacco. Wheeler, an enrolled
member of the Yakama Nation, owns King Mountain. The
tribe alleged that some of the tobacco used by King Mountain
is grown on Yakama Nation trust land consistent with
Yakama Nation historical practices, and the trust land-grown
tobacco is then blended with other tobacco to produce King
Mountain products.
The federal agencies moved to dismiss, contending that
the claims were barred by the Anti-Injunction Act and the tax
exception to the Declaratory Judgment Act. The district court
YAKAMA NATION V. TTB 5
granted the motion to dismiss as to King Mountain and
Wheeler but denied it as to the Yakama Nation, concluding
that the Yakama Nation’s claims fell within the exception to
the Anti-Injunction Act set out in South Carolina v. Regan,
465 U.S. 367, 373–81 (1984). The district court subsequently
granted summary judgment in favor of the federal agencies,
concluding that King Mountain was not exempt from the
excise tax under the General Allotment Act or the Treaty with
the Yakama. The Yakama Nation timely appealed.
DISCUSSION
On de novo review, Munoz v. Mabus, 630 F.3d 856, 860
(9th Cir. 2010), we hold that the Anti-Injunction Act deprived
the district court of jurisdiction over the Yakama Nation’s
claims.1
The Anti-Injunction Act (“the Act”) provides that “no suit
for the purpose of restraining the assessment or collection of
any tax shall be maintained in any court by any person,
whether or not such person is the person against whom such
tax was assessed.” 26 U.S.C. § 7421(a). The Act’s principal
purpose is to protect “the Government’s need to assess and
collect taxes as expeditiously as possible with a minimum of
preenforcement judicial interference, ‘and to require that the
1
Because we hold that the Anti-Injunction Act barred the Yakama
Nation’s claims, we need not determine if the tax exception to the
Declaratory Judgment Act, 28 U.S.C. § 2201(a), similarly would bar the
claims seeking declaratory relief. See Bob Jones Univ. v. Simon, 416 U.S.
725, 732 n.7 (1974) (noting that “the federal tax exception to the
Declaratory Judgment Act is at least as broad as the Anti-Injunction Act,”
but declining to determine whether the Declaratory Judgment Act is more
preclusive after deciding that the suit was barred by the Anti-Injunction
Act).
6 YAKAMA NATION V. TTB
legal right to the disputed sums be determined in a suit for
refund.’” Bob Jones Univ., 416 U.S. at 736 (citation omitted).
Unless a suit otherwise barred by the Act “falls within one of
the statutory or judicially created exceptions to the Act, the
district court lacks subject matter jurisdiction and must
dismiss the complaint.” Jensen v. Internal Revenue Serv.,
835 F.2d 196, 198 (9th Cir. 1987).
The relief sought in this case—declaratory and injunctive
relief prohibiting the imposition of the tobacco excise tax on
King Mountain—would restrain the assessment and
collection of that tax and thus “falls squarely within the literal
scope of the Act.” Bob Jones Univ., 416 U.S. at 732. The
Yakama Nation nonetheless asserts that the claims are not
barred, contending, first, that the Yakama Nation is not a
“person” for purposes of the Act and second, that the claims
qualify for the narrow exception set out in Regan, 465 U.S.
367. We reject both contentions.
First, the Yakama Nation is a “person” subject to the
Act’s jurisdictional prohibition. This question is a matter of
statutory construction, turning primarily on congressional
intent as demonstrated by “[t]he words chosen by Congress
. . . [and] their plain meaning.” Griffin v. Oceanic
Contractors, Inc., 458 U.S. 564, 570 (1982). “In ascertaining
the plain meaning of [a] statute, [we] must look to the
particular statutory language at issue, as well as the language
and design of the statute as a whole.” K Mart Corp. v.
Cartier, Inc., 486 U.S. 281, 291 (1988).
The Act itself does not define “person,” but it is part of
the Internal Revenue Code, whose general definitional
provision states as follows: “The term ‘person’ shall be
construed to mean and include an individual, a trust, estate,
YAKAMA NATION V. TTB 7
partnership, association, company or corporation.” 26 U.S.C.
§ 7701(a)(1). Where a definition is introduced with the verb
“includes,” “[t]his word choice is significant because it makes
clear that the examples enumerated in the text are intended to
be illustrative, not exhaustive.” Christopher v. SmithKline
Beecham Corp., 132 S. Ct. 2156, 2170 (2012). The Internal
Revenue Code itself tells us that “[t]he terms ‘includes’ and
‘including’ when used in a definition contained in this title
shall not be deemed to exclude other things otherwise within
the meaning of the term defined.” 26 U.S.C. § 7701(c).
Because the list of entities contained in § 7701(a)(1) thus is
merely illustrative, it is not determinative of whether an
Indian tribe constitutes a “person” under the Act.
“When a word is not defined by statute, we normally
construe it in accord with its ordinary or natural meaning.”
Smith v. United States, 508 U.S. 223, 228 (1993). Webster’s
defines “person” to include, inter alia, “a human being, a
body of persons, or a corporation, partnership, or other legal
entity that is recognized by law as the subject of rights and
duties.” Webster’s Third New International Dictionary 1686
(1971). Black’s similarly defines “person” to include, inter
alia, “[a]n entity (such as a corporation) that is recognized by
law as having the rights and duties of human beings.” Black’s
Law Dictionary 1178 (9th ed. 2004). These broad definitions
are consistent with the non-exhaustive list set out in
§ 7701(a)(1), which includes as illustrative various entities
recognized by law as having rights and duties. Accordingly,
relying on the ordinary meaning of the word, the term
“person” in § 7701(a)(1) covers entities that are recognized
by law as the subject of rights and duties, including Indian
tribes. Accord Chickasaw Nation v. United States, 208 F.3d
871, 878–80 (10th Cir. 2000) (relying on the ordinary
meaning of the word to hold that an Indian tribe was a
8 YAKAMA NATION V. TTB
“person” for purposes of § 7701(a)(1) and therefore was
subject to federal wagering and occupational excise taxes).
Interpreting “person” to cover Indian tribes has another
virtue: it is consistent with courts’ treatment of other
sovereign entities as “persons” for various provisions of the
Internal Revenue Code. For example, the Tenth Circuit has
construed “person” in § 7701(a)(1) to cover the United States
and individual states. See Estate of Wycoff v. Comm’r,
506 F.2d 1144, 1151 (10th Cir. 1974). More broadly, the
Supreme Court has held that states and other sovereign
entities are “persons” for other Code provisions with similar
definitions of “person.” See Sims v. United States, 359 U.S.
108, 112 (1959) (holding that the term “person” included a
state or other sovereign where the special definition of
“person” in 26 U.S.C. § 6632 spoke only of corporations and
partnerships, and the employees or officers thereof); Ohio v.
Helvering, 292 U.S. 360, 370 (1934) (holding that a state was
“embraced within the meaning of the word ‘person’” where
the word “person” was defined as “meaning and including a
partnership, association, company, or corporation, as well as
a natural person”), overruled on other grounds by Garcia v.
San Antonio Met. Transit Auth., 469 U.S. 528 (1985). And in
Regan, the Court did not question that South Carolina, acting
as sovereign, was a “person” under the statute at issue here,
the Anti-Injunction Act.
The same reasoning that extends the Act’s reach to states
applies with equal force to Indian tribes. The strength of the
analogy is further supported by the fact that, were Indian
tribes not “persons,” “we would essentially exempt tribes and
tribal organizations from many forms of federal tax liability
and render entire sections of the [Internal Revenue Code]
superfluous.” Chickasaw Nation, 208 F.3d at 879. This result
YAKAMA NATION V. TTB 9
would be at odds with both the plain terms of the Internal
Revenue Code and with the principle that “Indians and their
tribes are equally subject to statutes of general applicability,
just as any other United States citizen,” subject to exception
if there is some proof that “‘Congress intended the law not to
apply to Indians.’” Solis v. Matheson, 563 F.3d 425, 430 (9th
Cir. 2009) (quoting Donovan v. Coeur d’Alene Tribal Farm,
751 F.2d 1113, 1116 (9th Cir. 1985)).
Nothing in the other constraints on the use of the word
“person” in the Anti-Injunction Act—that impliedly the
“person” be able to maintain a suit and that the Act applies
“whether or not such person is the person against whom such
tax was assessed”—detracts from construing “person” to
include Indian tribes. In fact, the way in which the “person”
language was added to the Anti-Injunction Act lends credence
to the broad reading. The original Anti-Injunction Act
contained no reference to “person,” barring any suit “for the
purpose of restraining the assessment or collection of [any]
tax,” Rev. Stat. § 3224, and so it would have covered a suit
like the one here. But, as the Supreme Court has indicated,
the addition of the phrase “by any person, whether or not such
person is the person against whom such tax was assessed”
was not meant to be limiting. Bob Jones Univ., 416 U.S. at731 n.6. Instead, the new verbiage “reaffirm[ed] the plain
meaning” of the Anti-Injunction Act as applying to taxpayers
and nontaxpayers alike, clarifying that the new remedy in
26 U.S.C. § 7426—added as part of the same
amendment—was the only means for nontaxpayer lien
holders to bring an action. Bob Jones Univ., 416 U.S. at 731
n.6. This history cuts against an interpretation of the statute
that excludes suits based merely on the identity of the
plaintiff, at least where that party readily fits the ordinary
definition of “person.”
10 YAKAMA NATION V. TTB
All of these various textual and contextual clues in the
Internal Revenue Code and the Anti-Injunction Act
specifically overcome any presumption that “person” does
not include the sovereign. See Inyo Cty.,Cal. v. Paiute-
Shoshone Indians of the Bishop Cmty. of the Bishop Colony,
538 U.S. 701, 709–11 (2003); Vt. Agency of Nat. Res. v.
United States ex rel. Stevens, 529 U.S. 765, 780 (2000). We
conclude that Congress intended “person” in the Anti-
Injunction Act to include Indian tribes like the Yakama
Nation here.
Next, the district court erred in concluding that the
Yakama Nation’s claims fell within the exception to the Act
set out in Regan, 465 U.S. 367. In Regan, South Carolina
sought to enjoin the collection of federal taxes on the interest
from state-issued bearer bonds, claiming that the tax violated
the Tenth Amendment by, in practical effect, requiring it to
issue bonds in registered form. Id. at 370–72. In finding an
exception to the Act’s jurisdictional bar, the Regan Court
noted that South Carolina otherwise would have to depend on
third parties to purchase bearer bonds, file refund suits, and
raise the state’s constitutional claims. Id. at 379–81. Because
it was “by no means certain that the State would be able to
convince a taxpayer to raise its claims,” enforcing the Act’s
jurisdictional bar “would create the risk that the [Act] would
entirely deprive the State of any opportunity to obtain review
of its claims.” Id. at 380–81.2
2
Although Regan contains some broad language that might suggest
that “the Act was intended to apply only when Congress has provided an
alternative avenue for an aggrieved party to litigate its claims on its own
behalf,” id. at 381 (emphasis added), the true focus appears to be on
whether the claims can be judicially reviewed at all. Indeed, that statement
is preceded by the language quoted above emphasizing that the Court’s
real concern was “entirely depriv[ing]” South Carolina of “any
YAKAMA NATION V. TTB 11
The Regan exception, however, is a narrow one. See Am.
Bicycle Ass’n v. United States (In re Am. Bicycle Ass’n),
895 F.2d 1277, 1281 (9th Cir. 1990) (declining to apply the
Regan exception and noting that “[p]romoting the purpose
behind the Act requires a strict construction of any possible
exceptions”); see also RYO Machine, LLC v. U.S. Dep’t of
Treasury, 696 F.3d 467, 472 (6th Cir. 2012) (describing the
Regan exception as “very narrow”); Judicial Watch, Inc. v.
Rossotti, 317 F.3d 401, 408 n.3 (4th Cir. 2003) (“Because of
the strong policy animating the Anti-Injunction Act, and the
sympathetic, almost unique, facts in Regan, courts have
construed the Regan exception very narrowly[.]”).
This narrow exception is inapplicable here. Most
critically, in Regan, the state’s interest in issuing bonds in the
form it chose existed separately from the bondholders’
interest in avoiding taxation. See Regan, 465 U.S. at 380–81.
A bondholder could avoid taxation simply by purchasing
registered bonds, and thus would have little incentive to pay
the tax, file a refund suit, and raise the state’s constitutional
claims. See id. at 381. Therefore, the state “would be required
to depend on the mere possibility of persuading a third party
[bondholder] to assert [its] claims.” Id. (emphasis added).
Here, in contrast, the Yakama Nation’s asserted injury flows
from the taxation of its members, and thus is wholly
derivative of any injury suffered by King Mountain, a tribal
corporation, and Wheeler, an enrolled member of the tribe.
opportunity to obtain review of its claims,” id. at 380–81, and immediately
followed by a footnote explaining that taxpayers cannot evade refund suits
by setting up organizations to litigate their tax claims because allowing
them to do so would “elevate form over substance,” id. at 381 n.19. If the
true inquiry is whether the aggrieved party itself can obtain review, it
would have been unnecessary for the Court to discuss third-party
bondholder refund suits at all.
12 YAKAMA NATION V. TTB
King Mountain and Wheeler share the Yakama Nation’s
interest in preventing taxation. Indeed, the Yakama Nation’s
interest is one that, in another context, likely would be found
adequately protected by King Mountain and Wheeler’s
participation in a suit. See Fed. R. Civ. P. 19(a)(1)(B)(i),
24(a)(2); Shermoen v. United States, 982 F.2d 1312, 1318
(9th Cir. 1992). And third-party challengers are more than a
mere possibility: King Mountain and Wheeler were originally
parties to this action and appear to have every incentive to
raise these claims in a refund suit.
Our conclusion is consistent with that of the Sixth Circuit
in RYO Machine, where that court declined to apply the
Regan exception to manufacturers of high-speed cigarette-
rolling machines that challenged an agency ruling subjecting
retailers to the same taxation as the manufacturers. 696 F.3d
at 468. Because the manufacturers’ interests were
“inextricably intertwined with those of the retailers,” the
retailers could raise all relevant claims in a refund suit. Id. at
472. Moreover, there was “no need to find an elusive third-
party challenger,” as a retailer “was originally part of this
lawsuit and appears to have every incentive to [raise these
claims] through a refund suit.” Id. Similarly, the Yakama
Nation’s interest in avoiding the taxation of its members is
inextricably intertwined with King Mountain and Wheeler’s
interest in avoiding their own taxation. Nor, given King
Mountain and Wheeler’s incentives to pursue a refund suit, is
there any need to find an elusive third-party challenger. We
agree that the narrow Regan exception cannot extend so far.
Because the Anti-Injunction Act bars the Yakama
Nation’s claims, we VACATE the judgment of the district
court and REMAND with instructions to dismiss for lack of
jurisdiction. Each party shall bear its own costs on appeal.