US SUPREME COURT DECISIONS

Since 1959, California has imposed an excise tax on the distribution of cigarettes, and respondent Chemehuevi Indian Tribe originally remitted the tax to petitioner State Board of Equalization (Board) insofar as the tax was imposed on the distribution of cigarettes to non-Indians who purchased the cigarettes from the Tribe on its reservation in California. However, in 1977, the Tribe enacted its own cigarette tax and ceased collecting and remitting the state tax. When California sought to obtain the unremitted tax, the Tribe filed suit in Federal District Court for injunctive relief and a declaratory judgment that the Board could not lawfully apply the state tax to cigarettes sold by the Tribe to non-Indian purchasers. The court held that the Board's counterclaim for damages in the amount of back taxes allegedly owed by the Tribe was barred by sovereign immunity, but that California could lawfully require the Tribe to collect state taxes imposed on cigarettes that it sold to non-Indians. The Court of Appeals affirmed the first determination, but reversed the second.

Held: The Court of Appeals erred insofar as it held that the Tribe could not be required to collect the tax imposed by California on non-Indian purchasers at tribal smoke shops. It is not necessary that a state cigarette tax statute contain an express statement that the tax is to be passed on to the ultimate purchaser in order for the State to require a tribe to collect the tax from non-Indian purchasers and remit the amounts of such tax to the State. If the legal incidence of the tax falls on non-Indian purchasers, the State may impose on the tribe the burden of collecting the tax. The proper test for determining the legal incidence of the tax is nothing more than a fair interpretation of the taxing statute as written and applied. The fairest reading of California's cigarette scheme as a whole is that the legal incidence of the tax falls on consuming purchasers if the vendors are untaxable, and thus the Board has the right to require the Tribe to collect the tax on the Board's behalf with regard to purchases of cigarettes by non-Indian consumers.

Certiorari granted; 757 F.2d 1047, reversed in part. chanrobles.com-red

Page 474 U. S. 10