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United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued April 4, 2011 Decided October 7, 2011

No. 10-3039 UNITED 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 RESERVATION OF 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 does not include Indians taxes also does not include Indians

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 of all 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 to rescind 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 of not taxed Indians, we can calculate the percentage of Indians 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 of not taxed Indians, we can calculate the percentage of Indians included in each census: ...

Section 2 excludes "Indians not taxed"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: Indians not taxed are 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 "Indians not taxed" and an expanded description of Indians to be enumerated: By the phrase "Indians not taxed" is meant Indians living on reservations under the care of Government agents, or roaming individually, or in bands, over unsettled tracts of country. Indians not 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 "Indians not taxed shall be 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 Indians not taxed, within the jurisdiction of the United States, with such information as to their condition as may be obtainable.4

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 of not taxed Indians, we can calculate the percentage of Indians included in each census: Cens us 1860 1870 1880 Taxed Indians (enumerated) 44,021 25,731 66,407 Not taxed Indians 295,400 287,981 240,136 Total Indians 339,421 313,712 306,543 Percent enumerated 13 8 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 Indians taxed, and Indians not taxed.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

(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 make separate 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 or rates comparable to those applied to all other employers covered

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 to an Indian tribe within the meaning of section 4(e) of the Indian SelfDetermination 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

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 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 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). 11 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 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. The indictment 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

Robin Hood International Human Rights Legal Defense Fund Tainan, allied American Formosa trust territory, West Pacific, USA drpaulmaas@gmail.com

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.

jnields@cov.com, martin.billy@dorsey.com, verdi.kerry@dorsey.com, Katherine.kelly@usdoj.gov, Ronald.machen@usdoj.gov, Elizabeth.trosman@usdoj.gov, Suzanne.curt@usdoj.gov, roy.mcleese@usdoj.gov, clunder@crs.loc.gov, mmlee@crs.loc.gov

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