Self-Government, Taxation, and Tribal Development: The Critical Role of American Indian Nation Business Enterprises

Under federal policies of self-determination through self-government, the 574 federally recognized American Indian nations in the United States are now expected to perform essentially all of the functions performed by state and local governments everywhere. Unlike state and local governments, however, Native nations have severely limited powers and opportunities to generate the tax revenues they need to support the services they provide. Thus, tribal governments rely heavily on the businesses they own to provide their core budgets. State and local governments, too, operate myriad commercial enterprises—ranging from their ubiquitous lotteries to liquor stores, port and airport authorities, electricity and water companies, toll roads, transit companies, zoos, and many others. Such state-owned businesses, however, typically account for minuscule portions of their overall budgets. Moreover, as a general matter, when the purpose of a state’s businesses is to fund its governmental services, those businesses are not subject to taxation by the federal government or other governments. The United States Treasury’s newly Proposed Rule on the federal tax status of tribal government entities would clarify that enterprises wholly owned by tribal governments cannot be subject to income tax. By putting tribal governments on equal footing with other governments when it comes to wholly-owned government enterprises, the Proposed Rule would eliminate uncertainty regarding tribes’ federal tax status and solidify a key element of the demonstrably successful federal policy of tribal self-determination through self-government. This promises to have a major—and positive—impact on tribes and their neighbors. Adoption of the Proposed Rule will immediately foster improved access to credit and directly enhance resources needed for economic development, service provision, and infrastructure investment across America’s Native nations. The tribal and non-tribal citizens of the United States will benefit.