16th Amendment Apportionment Language Recognizes the Indians Not Taxed Exclusion

8/3/2019 16th Amendment Apportionment Language Recognizes the Indians Not Taxed Exclusion

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 4, 2011 Decided October 7, 2011

No. 10-3039UNITED STATES OF AMERICA,

APPELLEE

v.

ABDUL KARIM KHANU,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:09-cr-00087)

Before: SENTELLE, Chief Judge, GINSBURG and BROWN,

Circuit Judges. Reported at

http://www.cadc.uscourts.gov/internet/opinions.nsf/089E3087C4432

B6C85257922004DB427/$file/10-3039-1334110.pdf

.

On motion to intervene jus tertii for the United States (Cobell v

Salazar breach of Indian Trusteeship) on motion for rehearing en

banc,

or reconsideration by the panel, jus tertii

So in many respects is the District of Columbia. Congress, however,

expressly exempted the District of Columbia from federal excise

taxes. 691 F.2d 878

82-2 USTC P 16,387

The CONFEDERATED TRIBES OF the WARM SPRINGS RESERVATIONOF

OREGON, v Commissioner IRS

16th amendment apportionment language recognizes the Indians not

taxed exclusion, especially given that in 1913 the Indians remained

not taxed, not being citizens of the United States thus Congress

have no power to lay nor collect taxes relating to Indians not

taxed whatever source does not include Indians incomes doesnot include Indians taxes also does not include Indians
http://www.cadc.uscourts.gov/internet/opinions.nsf/089E3087C4432B6C85257922004DB427/$file/10-3039-1334110.pdfhttp://www.cadc.uscourts.gov/internet/opinions.nsf/089E3087C4432B6C85257922004DB427/$file/10-3039-1334110.pdfhttp://www.cadc.uscourts.gov/internet/opinions.nsf/089E3087C4432B6C85257922004DB427/$file/10-3039-1334110.pdfhttp://www.cadc.uscourts.gov/internet/opinions.nsf/089E3087C4432B6C85257922004DB427/$file/10-3039-1334110.pdf


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Amendment XVI

The Congress shall have power to lay and collect taxes on incomes,

from whatever source derived, without apportionment among the

several states, and without regard to any census or enumeration.

Article 1 Section 2

Representatives and direct taxes shall be apportioned among the

several states which may be included within this union, according to

their respective numbers, which shall be determined by adding to

the whole number of free persons, including those bound to service

for a term of years, and excluding Indians not taxed, three fifths ofall other Persons.

Is the CNMI now within the several states, Sabangan v Powell ?

Indians are not free persons, ie war captures like Chamorros,

Formosans, Puerto Ricans

Without regard to any census or enumeration, does not intend torescind the Article I Indians not taxed exclusion, only to clarify that

imposition of taxes on white citizens (free persons) shall not depend

on a census or enumeration of the Indians not taxed

1. Native Americans in the Census, 1860 - 1890

www.nanations.com/native-americans-census... - -

Because federal government officials made actual counts or estimates ofnot

taxed Indians, we can calculate the percentage ofIndians included in each

census: ...

2. Native Americans in the Census, 1860-1890

www.archives.gov ... Summer- -

Because federal government officials made actual counts or estimates ofnot

taxed Indians, we can calculate the percentage ofIndians included in each

census: ...
http://www.law.cornell.edu/constitution/amendmentxivhttp://www.law.cornell.edu/constitution/amendmentxivhttp://www.law.cornell.edu/constitution/amendmentxivhttp://www.law.cornell.edu/constitution/amendmentxivhttp://www.law.cornell.edu/constitution/amendmentxivhttp://www.law.cornell.edu/constitution/amendmentxivhttp://www.nanations.com/native-americans-census.htmhttp://www.nanations.com/native-americans-census.htmhttp://www.nanations.com/native-americans-census.htmhttp://www.nanations.com/native-americans-census.htmhttp://www.nanations.com/native-americans-census.htmhttp://webcache.googleusercontent.com/search?q=cache:7DSRCxNLPJAJ:www.nanations.com/native-americans-census.htm+census+counts+indians+not+taxed&cd=1&hl=zh-TW&ct=clnkhttp://webcache.googleusercontent.com/search?q=cache:7DSRCxNLPJAJ:www.nanations.com/native-americans-census.htm+census+counts+indians+not+taxed&cd=1&hl=zh-TW&ct=clnkhttp://translate.google.com/translate?hl=zh-TW&sl=en&u=http://www.nanations.com/native-americans-census.htm&ei=6ziUTuz-POPMmAX_3rGIBw&sa=X&oi=translate&ct=result&resnum=1&ved=0CB0Q7gEwAA&prev=/search%3Fq%3Dcensus%2Bcounts%2Bindians%2Bnot%2Btaxed%26hl%3Dzh-TW%26biw%3D1192%26bih%3D533%26prmd%3Dimvnshttp://www.archives.gov/publications/prologue/2006/summer/indian-census.htmlhttp://www.archives.gov/publications/prologue/2006/summer/indian-census.htmlhttp://www.archives.gov/publications/prologue/2006/summer/indian-census.htmlhttp://www.archives.gov/publications/prologue/2006/summer/indian-census.htmlhttp://www.archives.gov/publications/prologue/2006/summer/indian-census.htmlhttp://www.google.com/url?url=http://www.archives.gov/publications/prologue/2006/summer/&rct=j&sa=X&ei=6ziUTuz-POPMmAX_3rGIBw&ved=0CCgQ6QUoADAB&q=census+counts+indians+not+taxed&usg=AFQjCNE4XhwWLf_WNFuEqO-yNSaP9i0FcQhttp://webcache.googleusercontent.com/search?q=cache:-k3aKqILaHoJ:www.archives.gov/publications/prologue/2006/summer/indian-census.html+census+counts+indians+not+taxed&cd=2&hl=zh-TW&ct=clnkhttp://webcache.googleusercontent.com/search?q=cache:-k3aKqILaHoJ:www.archives.gov/publications/prologue/2006/summer/indian-census.html+census+counts+indians+not+taxed&cd=2&hl=zh-TW&ct=clnkhttp://translate.google.com/translate?hl=zh-TW&sl=en&u=http://www.archives.gov/publications/prologue/2006/summer/indian-census.html&ei=6ziUTuz-POPMmAX_3rGIBw&sa=X&oi=translate&ct=result&resnum=2&ved=0CCYQ7gEwAQ&prev=/search%3Fq%3Dcensus%2Bcounts%2Bindians%2Bnot%2Btaxed%26hl%3Dzh-TW%26biw%3D1192%26bih%3D533%26prmd%3Dimvnshttp://www.siteadvisor.com/sites/archives.gov?pip=false&premium=false&client_uid=1661614164&client_ver=3.4.0.143&client_type=IEPlugin&suite=true&aff_id=662-22&locale=zh_TW&ui=1&os_ver=6.1.0.0&ref=safesearchhttp://www.siteadvisor.com/sites/nanations.com?pip=false&premium=false&client_uid=1661614164&client_ver=3.4.0.143&client_type=IEPlugin&suite=true&aff_id=662-22&locale=zh_TW&ui=1&os_ver=6.1.0.0&ref=safesearchhttp://www.law.cornell.edu/constitution/amendmentxivhttp://www.law.cornell.edu/constitution/amendmentxivhttp://www.law.cornell.edu/constitution/amendmentxivhttp://www.nanations.com/native-americans-census.htmhttp://webcache.googleusercontent.com/search?q=cache:7DSRCxNLPJAJ:www.nanations.com/native-americans-census.htm+census+counts+indians+not+taxed&cd=1&hl=zh-TW&ct=clnkhttp://translate.google.com/translate?hl=zh-TW&sl=en&u=http://www.nanations.com/native-americans-census.htm&ei=6ziUTuz-POPMmAX_3rGIBw&sa=X&oi=translate&ct=result&resnum=1&ved=0CB0Q7gEwAA&prev=/search%3Fq%3Dcensus%2Bcounts%2Bindians%2Bnot%2Btaxed%26hl%3Dzh-TW%26biw%3D1192%26bih%3D533%26prmd%3Dimvnshttp://www.archives.gov/publications/prologue/2006/summer/indian-census.htmlhttp://www.google.com/url?url=http://www.archives.gov/publications/prologue/2006/summer/&rct=j&sa=X&ei=6ziUTuz-POPMmAX_3rGIBw&ved=0CCgQ6QUoADAB&q=census+counts+indians+not+taxed&usg=AFQjCNE4XhwWLf_WNFuEqO-yNSaP9i0FcQhttp://webcache.googleusercontent.com/search?q=cache:-k3aKqILaHoJ:www.archives.gov/publications/prologue/2006/summer/indian-census.html+census+counts+indians+not+taxed&cd=2&hl=zh-TW&ct=clnkhttp://translate.google.com/translate?hl=zh-TW&sl=en&u=http://www.archives.gov/publications/prologue/2006/summer/indian-census.html&ei=6ziUTuz-POPMmAX_3rGIBw&sa=X&oi=translate&ct=result&resnum=2&ved=0CCYQ7gEwAQ&prev=/search%3Fq%3Dcensus%2Bcounts%2Bindians%2Bnot%2Btaxed%26hl%3Dzh-TW%26biw%3D1192%26bih%3D533%26prmd%3Dimvns


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Section 2 excludes "Indiansnottaxed"those Indians living on

reservations or those roaming in unsettled areas of the country.

The first federal decennial census that clearly identifies any Native

Americans is the 1860 census.1 The instructions to the 1860

census enumerators defined who was to be counted and who was

not:

Indiansnottaxedare not to be enumerated. The families of

Indians who have renounced tribal rule, and who under state or

territory laws exercise the rights of citizens, are to be enumerated.2

The instructions for conducting the 1880 census include a definition

for "Indiansnottaxed" and an expanded description ofIndians to

be enumerated:

By the phrase "Indiansnottaxed" is meant Indians living on

reservations under the care of Government agents, or roaming

individually, or in bands, over unsettled tracts of country.

Indiansnot in tribal relations, whether full-bloods or half-breeds,

who are found mingled with the white population, residing in white

families, engaged as servants or laborers, or living in huts or

wigwams on the outskirts of towns or settlements are to be

regarded as a part of the ordinary population of the country for the

constitutional purpose of the apportionment of Representatives

among the States, and are to be embraced in the enumeration.3

The 1880 census act clearly states that "Indiansnottaxed shallbe omitted from the enumeration" but then adds:

the Superintendent of [the] Census may employ special agents or

other means to make an enumeration of all Indiansnottaxed,

within the jurisdiction of the United States, with such information as

to their condition as may be obtainable.4
http://www.archives.gov/publications/prologue/2006/summer/indian-census.html#nt1http://www.archives.gov/publications/prologue/2006/summer/indian-census.html#nt2http://www.archives.gov/publications/prologue/2006/summer/indian-census.html#nt3http://www.archives.gov/publications/prologue/2006/summer/indian-census.html#nt4http://www.archives.gov/publications/prologue/2006/summer/indian-census.html#nt1http://www.archives.gov/publications/prologue/2006/summer/indian-census.html#nt2http://www.archives.gov/publications/prologue/2006/summer/indian-census.html#nt3http://www.archives.gov/publications/prologue/2006/summer/indian-census.html#nt4


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Under this provision and using specially designed forms, agents

enumerated Indians living near military reservations in California,

Dakota Territory, and Washington Territory.5

Because federal government officials made actual counts or

estimates ofnottaxedIndians, we can calculate the percentage

ofIndians included in each census:

Cens

us

TaxedIndians

(enumerated)

Nottaxed

Indians

Total

Indians

Percent

enumerated

1860 44,021 295,400 339,421 13

1870 25,731 287,981 313,712 8

1880 66,407 240,136 306,543 22

The 1890 census is the first to include the enumeration of all

Indians. The 1890 census act states:

The Superintendent of [the] Census may employ special agents or

other means to make an enumeration of all Indians living within the

jurisdiction of the United States, with such information as to their

condition as may be obtainable, classifying them as to Indianstaxed, and Indiansnottaxed.14

FAIR 486 F Supp at 576

Cherokee v Georgia, citizens of Georgia have no right to enter, but

with the assent of the Cherokees themselves, or in conformity with

the treaties, and with acts of congress.

30 US 1

occupy territory to which we assert a title independent of their will

(ie, occupation)...

state of pupilage... ward to his guardian...

26 USC 7873 - Sec. 7873. Income derived by Indians from exercise

of fishing rights

26 U.S.C. 7871 : US Code - Section 7871: Indian tribal

governments treated as States for certain purposes
http://www.archives.gov/publications/prologue/2006/summer/indian-census.html#nt5http://www.archives.gov/publications/prologue/2006/summer/indian-census.html#nt14http://www.archives.gov/publications/prologue/2006/summer/indian-census.html#nt5http://www.archives.gov/publications/prologue/2006/summer/indian-census.html#nt14


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(i) Qualified Indian lands

The term "qualified Indian lands" means land which is held

in trust by the United States for the benefit of an Indian

tribe.(ii) Indian tribe

The term "Indian tribe" means any Indian tribe, band,

nation, or other organized group or community which is

recognized as eligible for the special programs and services

provided by the United States to Indians because of their

status as Indians.

26 USC 45 - Sec. 45A. Indian employment credit

The term ''Indian tribe'' means any Indian tribe, band, nation,

pueblo, or other organized group or community, including any

Alaska Native village, or regional or village corporation, as defined

in, or established pursuant to, the Alaska Native Claims Settlement

Act (43 U.S.C. 1601 et seq.) which is recognized as eligible for the

special programs and services provided by the United States to

Indians because of their status as Indians. (7) Indian reservation

defined The term ''Indian reservation'' has the meaning given such

term by section 168(j)(6).

Sec. 3309. State law coverage of services performed for nonprofit

organizations or governmental entities

(d)

Election by Indian tribe

The State law shall provide that an Indian tribe may make

contributions for employment as if the employment is within the

meaning of section 3306 or make payments in lieu of contributions

under this section, and shall provide that an Indian tribe may makeseparate elections for itself and each subdivision, subsidiary, or

business enterprise wholly owned by such Indian tribe. State law

may require a tribe to post a payment bond or take other

reasonable measures to assure the making of payments in lieu of

contributions under this section. Notwithstanding the requirements

of section 3306 (a)(6), if, within 90 days of having received a notice

of delinquency, a tribe fails to make contributions, payments in lieu

of contributions, or payment of penalties or interest (at amounts orrates comparable to those applied to all other employers covered


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under the State law) assessed with respect to such failure, or if the

tribe fails to post a required payment bond, then service for the

tribe shall not be excepted from employment under section 3306 (c)

(7) until any such failure is corrected. This subsection shall apply toan Indian tribe within the meaning of section 4(e) of the Indian Self-

Determination and Education Assistance Act (25 U.S.C. 450b (e)).

691 F.2d 878ftp.resource.org/.../691.F2d.878.81-3503.ht... -

The taxpayer is a confederation of Indian tribes which occupies the

Warm Springs ... (1) a tax on the use of certain highway motor

vehicles, 26 U.S.C. 4481(a); ...

197 F.3d 949: Flandreau Santee Sioux Tribe, Appellant, v. United

...law.justia.com ... F.3d Volume 197

In this case, the District Court held that 26 U.S.C. 6675 does not

apply to Native American tribes because a tribe is not a "person"

within the meaning of that ...

P.L. 101-42www.ssa.gov/OP_Home/.../F101-042.html -

[25 U.S.C. 715a] RESTORATION OF FEDERAL RECOGNITION,

RIGHTS, ... for the purpose of the Indian Tribal Government Tax

Status Act (26 U.S.C. 7871). ...

Tribal Finance: Research and

Resourceswww.tribalfinance.org/resources.html -

The goal of the Indian Tribal Government Tax Status Act of 1983

(Public Law ... how tribes are to be treated for the purposes of

taxation are found at 26 USC Sec. ...

So in many respects is the District of Columbia. Congress, however,expressly exempted the District of Columbia from federal excise

taxes.

It is true that ambiguous statutes and treaties are to be construed in

favor of Indians, and this canon of statutory construction applies to

tax exemptions. Choate v. Trapp, 224 U.S. 665, 675, 32 S.Ct. 565,

569, 56 L.Ed. 941 (1912); United States v. Anderson, 625 F.2d 910,

913 (9th Cir. 1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1367, 67

L.Ed.2d 347 (1981).Absent a "definitely expressed exemption," Indian tribes and their


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members are subject to federal taxation. Mescalero Apache Tribe v.

Jones, 411 U.S. at 155, 93 S.Ct. at 1274. Silence alone does not

create in favor of the Tribe an implied immunity from federal excise

taxes.The Tribe must address its prayer for relief to Congress, not the

courts.

691 F.2d 878

82-2 USTC P 16,387

The CONFEDERATED TRIBES OF the WARM SPRINGS RESERVATION

OF

OREGON, Plaintiff-Appellant,

v.

Jerome KURTZ, Commissioner of the Internal Revenue Service,

and the United States of America, Defendants-Appellees.

No. 81-3503.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 2, 1982.

Decided Oct. 29, 1982.

11


apply to Native American tribes because a tribe is not a "person"

within the meaning of that statute. The District Court found that the

statute contains no definition of "person" and turned to the Internal

Revenue Code's fallback provision, 26 U.S.C. 7701, which provides

definitions of terms to be used "where not otherwise distinctly

expressed or manifestly incompatible with the intent" of the

particular statute in question. Id. 7701(a); see also Autrey v.

United States, 889 F.2d 973, 979 n.7 (11th Cir. 1989). "Person" isdefined therein as follows: "The term 'person' shall be construed to

mean and include an individual, a trust, estate, partnership,

association, company or corporation." 26 U.S.C. 7701(a)(1). The

District Court determined that this definition does not clearly include

or exclude Native American tribes, and therefore interpreted the

statute in favor of the Tribe. See Hagen v. Utah, 510 U.S. 399, 411

(1994) (stating that ambiguities in statutes should be resolved in

favor of Native Americans); Gould v. Gould, 245 U.S. 151, 153(1917) (stating that tax statutes are construed liberally against the


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government).

11


apply to Native American tribes because a tribe is not a "person"within the meaning of that statute. The District Court found that the

statute contains no definition of "person" and turned to the Internal

Revenue Code's fallback provision, 26 U.S.C. 7701, which provides

definitions of terms to be used "where not otherwise distinctly

expressed or manifestly incompatible with the intent" of the

particular statute in question. Id. 7701(a); see also Autrey v.

United States, 889 F.2d 973, 979 n.7 (11th Cir. 1989). "Person" is

defined therein as follows: "The term 'person' shall be construed to

mean and include an individual, a trust, estate, partnership,

association, company or corporation." 26 U.S.C. 7701(a)(1). The

District Court determined that this definition does not clearly include

or exclude Native American tribes, and therefore interpreted the

statute in favor of the Tribe. See Hagen v. Utah, 510 U.S. 399, 411

(1994) (stating that ambiguities in statutes should be resolved in

favor of Native Americans); Gould v. Gould, 245 U.S. 151, 153

(1917) (stating that tax statutes are construed liberally against the

government).

197 F.3d 949: Flandreau Santee Sioux Tribe, Appellant, v. United

States of America, Appellee

Prayer for Relief

Congress has no sixteenth amendment authority to tax in the

District of Columbia or among the Afrindians not taxed. Theindictment and conviction merit vacatur. 25 USC 2906 includes all

the Afrindians and Pacific Island Indians as among, 8 USC 1401(b),

those recognized as eligible for the special programs and services

provided by the United States to Indians because of their status as

Indian.

Respectfully submitted,

Dr. Paul Maas Risenhoover


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Robin Hood International Human Rights Legal Defense Fund

Tainan, allied American Formosa trust territory, West Pacific, USA

[email protected]

Certificate of service email by to:

John W. Nields Jr., argued the cause for appellant. With

him on the briefs were William R. Martin and Kerry Brainard

Verdi.

Katherine M. Kelly, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Ronald C.

Machen Jr., U.S. Attorney, and Elizabeth Trosman and

Suzanne G. Curt, Assistant U.S. Attorneys. Roy W. McLeese

III, Assistant U.S. Attorney, entered an appearance.

[email protected], [email protected], [email protected],

[email protected], [email protected],



[email protected]
mailto:[email protected]:[email protected]:[email protected]:[email protected]

16th Amendment Apportionment Language Recognizes the Indians Not Taxed Exclusion

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