Indian Country in Cyber Space: Bella Hess and Commerce Clause Constraints on Interstate, Mail-Order Transactions

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I. INTRODUCTION

When political processes fail, the rule of law prevails or people rise to power. When the political process fails between tribes and the United States, defined as it is by federal statutes and case law, there is no rule of law and, therefore, leaders emerge. So it is that the panoply of tribal leaders is vast and ranges from ordinary men and women in seemingly mundane circumstances to warriors and negotiators who are household names.

These leaders, varied in their roles and capacities, represent an area of law equally varied, a law that is at once hostile and reconciliatory. From the Marshall trilogy and the birth of the "domestic dependant nation[]" (1) to removal and assimilation, federal Indian law embodies the maxim that the road to hell is paved with good intentions. As Alexis De Tocqueville cynically wrote:

   The Spaniards pursued the Indians with bloodhounds, like wild
   beasts; they sacked the New World like a city taken by storm, with
   no discernment or compassion....

      The Spaniards were unable to exterminate the Indian race by those
   unparalleled atrocities which brand them with indelible shame, nor
   did they succeed even in wholly depriving it of its rights; but the
   Americans of the United States have accomplished this twofold
   purpose with singular felicity, tranquilly, legally,
   philanthropically, without shedding blood, and without violating a
   single great principle of morality in the eyes of the world. It is
   impossible to destroy men with more respect for the laws of
   humanity. (2)

The ability of the government to justify the annihilation of whole cultures was, and is today, driven by a perceived lack of resources (a euphemism for greed). And no resource is as scarce today, it seems, as money; few areas of federal Indian law are as contentious as states' ability to tax and regulate tribal activity. (3) While tribal immunity from state taxation is well-settled, what of state ability to tax Internet transactions originating on reservations? Part II of this Article is an overview of preemption in federal Indian law. Part III looks specifically to taxation and regulation of mail-order transactions. Part IV concludes that tribes may structure online transactions fulfilled on-reservation to preclude state taxation.

II. TAXATION AND REGULATION

A. Tribal and State Authority to Tax and Regulate in Indian Country

Merrion v. Jicarilla Apache Tribe (4) opens with a textualist argument drawing on sources from each branch of the federal government and on "general principles of taxation." (5) Explicitly drawing on Worcester v. Georgia, (6) Justice Thurgood Marshall speaks of taxation in terms of an "essential instrument of self-government and territorial management." (7) Relying on the executive branch, the Court refers to a 1934 opinion of the Solicitor for the Department of the Interior which stated that tribes can tax nonmembers of the tribe as an incident to their sovereign power "so far as such nonmembers may accept privileges of trade, residence, etc., to which taxes may be attached as conditions." (8) Furthermore, Congress affirmed the right to levy taxes as an important and essential component of tribal sovereignty in an 1879 statement by the Senate Judiciary Committee. (9) In drawing on the judiciary, Justice Marshall cited Washington v. Confederated Tribes of Colville Indian Reservation (10) to bolster his argument for expansive tribal powers. (11)

After opening with this textual analysis, the Court turned to equitable principles of sovereignty as old as the common law. (12) To hold that an implicit power of the sovereign to tax is waived if not explicitly retained in a contract is to confuse the tribes' role as a sovereign with its role as a business partner and "denigrates Indian sovereignty." (13) Continuing to frame the discussion in terms of inherent power (not one conferred by the federal government), (14) the question, answered in the negative, becomes whether Congress divested the Colville Tribe of its inherent power to tax. …