Scott!

It does sound bad: "Taxation without representation." It resonates with our deepest political myths, and triggers all manner of concerns about representative democracy. But how different is it, really, from taxation on foreign corporations, by any state? Can the corporation vote? No. Does the corporation have "legal residency"? Yes. Do people ultimately pay the price of the tax? Yes. Are we concerned? Not generally.

The Commerce Clause ensures that foreign and domestic persons must be taxed evenly. Sometimes, a State or locality will run afoul of the clause if it overtaxes a type of business that is predominately foreign owned. (By foreign, I mean a person or legal entity that does not enjoy local voting rights; like a Delaware citizen or corporation in New Jersey.) Michigan cannot impose a milk tax that falls exclusively or predominately on milk producers from Wisconsin. Indeed, Michigan cannot impose a milk tax on milk producers who must ship milk more than 50 miles from the processing plant, because it will impact foreign milk producers more than domestic ones.

A wrinkle is introduced by federal authority. When the Congress explicitly allows a State to impose restrictions on interstate commerce, the Court is less likely to invalidate it, even if it means that foreign residents are at a commercial disadvantage as a result. There are limits to the Court's deference, but if Congress gives its nod, then the Constitution has little to say about such "taxation without representation" (perhaps because Congress remains a repository of indirect representation of all parties).

The question raised in Cayetano, is whether the use of race alone can invalidate a voting scheme. The answer, it seems, is yes, regardless of the scope of "interested" parties. Your tavern owners therefore seem to have a relatively strong case for asserting a violation of the 15th Amendment, in this case by the Federal Government itself. Of course, the Court insists that it is not willing to overturn its Indian Law precedents, and it may be willing to engage in some pretty strong double-speak to make the old shoe fit their new horse. But it's not obvious that the tax matters in determining whether tribal voting is permissible.

Tribal voting is permissible or not under the 15th Amendment depending on some esoteric determination of whether voter qualification "really" depends upon race. If voter qualification is "really" a function of "lost sovereignty," then the white tavern owners on Yakima land have little to complain about. If, however, voter qualification is "really" a function of ethnic identity, then the white tavern owners on Yakima land can have the entire electoral process struck down as racially discriminatory. This will not repeal the tax in its own right, but it might make a legislative repeal possible if they thereafter garner enough votes in the council to do so.

As I read it, your white tavern owners have a choice: Play by the rules set down by Yakima tribal authorities, appeal to the Federal Government, or get off tribal land. The Commerce Clause does not apply to tribes (because the Congress is actively involved in overseeing local policy, and there is no suggestion that the tax violates Congress' power under the Indian Commerce Clause). The 15th Amendment will only come into play if the tavern owners are willing to fight for the legal overthrow of the tribal autonomy, contrary to the continued suggestion of the Supreme Court.

Interesting case though.

David