March 01, 2014

The Power to Tax Economic Activity in Indian Country

F. Michael Willis

As Chief Justice John Marshall wrote nearly two centuries ago, “the power to tax involves the power to destroy.” McCulloch v. Maryland, 17 U.S. 316, 431 (1819). In McCulloch, the Court held that a state tax on an instrumentality created by Congress was unconstitutional. Not long after McCulloch, the Supreme Court invalidated the application of a Georgia law that prohibited “white persons” from living in Cherokee territory without a state-issued license. Worcester v. Georgia, 31 U.S. 515 (1832), see Cohen’s Handbook of Federal Indian Law § 1.03[4][a] (2012 ed.). Two missionaries residing in the Cherokee Nation had appealed their convictions and imprisonment by the state. Explaining that the Constitution conferred exclusive power to Congress for the regulation of commerce with the sovereign tribes and provided the executive branch with authority for treaty-making with the tribes, the Chief Justice wrote, “The whole intercourse between the United States and this nation is, by our Constitution and laws, vested in the Government of the United States.” 31 U.S. at 561. In light of the supremacy of federal law, the Court held that the Cherokee Nation is “a distinct community, occupying its own territory . . . in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter but with the assent of the Cherokees themselves, or in conformity with treaties and with the acts of Congress.” Id.

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