AGO 80-067.

• Case Date: November 21, 1980
• Court: North Dakota

North Dakota Attorney General Opinions 1980. AGO 80-067. Overruled in part by N.D.A.G. 91-13 LETTER OPINION November 21, 1980 (OPINION) OPINION 80-67Honorable Byron L. DorganState Tax Commissioner State Capitol Bismarck, North Dakota 58505 Dear Commissioner Dorgan: This is in reply to your letter of August 7, 1980, requesting an opinion in answer to the question of whether the motor vehicle excise tax, chapter 57-40.3, N.D.C.C., applies to an Indian tribe or its resident-enrolled members upon the purchase of, or application for title to, motor vehicles used both within and outside the Indian reservation boundaries. You state that the question arises because of an inquiry you received from an attorney who asserts that the decision of the United States Supreme Court on June 10, 1980, in Washington et al. v. Confederated Tribes of the Colville Indian Reservation et al. ___ U.S. ___, 100 S. Ct. 2069, requires a ruling that the tax cannot be applied with respect to motor vehicles purchased by Indian tribes or their resident-enrolled members. In that case the State of Washington imposed separate annual excise taxes for the privilege of using motor vehicles and mobile homes, campers and travel trailer taxes in the state. Each tax was assessed annually at a certain percentage of the fair market value of the vehicle. In that Confederated Tribes case the Supreme Court (100 S. Ct. at 2075 and 2086) compared those Washington taxes to the Montana annual personal property tax that it had earlier held in Moe v. Salish and Kootenai Tribes, 425 U.S. 463, 96 S. Ct. 1634, 48 L. Ed.2d (1976), could not be applied to motor vehicles owned by trial members who resided on their reservation. The Montana tax was a personal property tax that was assessed annually at a percentage of market value of the motor vehicle. The Supreme Court noted that the only difference between the Montana and Washington taxes was that the Washington tax was called an excise tax that was imposed for the privilege of using the vehicle in that state whereas the Montana tax was labeled a personal property tax. It held that this difference was one of mere nomenclature that under the circumstances was insufficient for distinguishing between the Washington and Montana taxes. The Court therefore held that the Washington excise tax could not be applied to vehicles owned by the...