South Point Energy Center LLC v. Arizona Department of Revenue, et al.

The Indian Reorganization Act of 1934 provides that Indian trust “lands … shall be exempt from State and local taxation.” 25 U.S.C. § 5108. It is settled that § 5108 preempts state and local taxation on “permanent improvements” upon tribal land. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 158 (1973). But courts have split over whether that principle covers non-Indian-owned permanent improvements. In this case, petitioner South Point Energy Center, LLC owns a permanent improvement, a natural-gas-fired power plant, on the Fort Mojave Indian Reservation. The plant falls completely on trust land and is regulated entirely by the Tribe and the federal government. Yet Mohave County, Arizona, imposes property taxes on the plant. The Arizona Supreme Court upheld that tax solely because South Point, the owner of the permanent improvement, “is a non-Indian.” Pet.App.42a. The questions presented are:

1. Whether 25 U.S.C. § 5108 expressly preempts state and local taxation of permanent improvements on trust land when the improvement’s owner is a non-Indian.

2. Whether federal law impliedly preempts state and local taxation of petitioner’s permanent improvement. (I)