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HQ 563136





January 28, 2005

MAR-2 RR:CR:SM 563136 KSG

CATEGORY: MARKING

Robert J. Leo, Esq.
Meeks & Sheppard
330 Madison Avenue
39th Floor
New York, NY 10017

RE: Applicability of duties and fees on shipments onto tribal land

Dear Mr. Leo:

In your letter dated October 20, 2004, you requested a binding ruling on behalf of Nabatatuck Forest Products, Inc. (“NFP”), on whether goods sold and delivered to the tribal land within the geographical borders of the U.S. is subject to the duties and fees enforced by U.S. Customs and Border Protection (“CBP”).

FACTS:

NFP is a Canadian company in which the Wassapanee Band Council, a native tribal entity in Canada, owns a 45% share. The Akwesasne Tribal Nation seeks to ship goods acquired from Nabatuck to the tribal land of the St. Regis Band of Mohawk Indians of New York. This land is within the geographical boundaries of the State of New York.

ISSUE:

Whether goods shipped from Canada into the tribal land of the St. Regis Band that is geographically within the State of New York are subject to duties and fees enforced by CBP.

LAW AND ANALYSIS:

In support of its argument, counsel has cited language that the U.S. government grants to the St. Regis Band “the immunities and privileges available to other federally acknowledged Indian tribes by virtue of their
government-to-government relationship with the United States as well as the responsibilities, powers, limitations and obligations of such tribes.” Congress also has power to regulate commerce with foreign nations and with “Indian Tribes”. Constitution Article 1, Section 8, Clause 3.

The Jay Treaty stated that Indians could pass freely into the U.S. and Canada, and that “Indians passing or repassing with their own proper goods and effects of whatever nature, pay for same any impost or duty whatever. But goods in bales or other large packages unusual among Indians, shall not be considered as goods belonging bona fide to Indians.” Article III, Treaty of Amity, Commerce and Navigation (Jay Treaty), November 19, 1794, U.S.- Gr. Brit., 8 Stat. 116.

The Customs Court held in U.S. v. Garrow, 24 CCPA 410 (1937), that 24 Indian baskets were not expressly exempted from the duty tax under the Jay Treaty. The court held that the War of 1812 ended the right of Indians to bring goods across the border without the imposition of duties. The court stated that after 1812, Indians had a right to bring goods across the border without duties by statute (section 105 of the Tariff Act of 1799, 1 Stat. 701), and that in 1897, this statutory right was not enacted. In a more recent case, the Customs Court noted in Akins v. United States, 64 CCPA 68 (1977), that “language substantially identical to that of Article III of the Jay Treaty was continuously reenacted by Congress in tariff acts until 1897. Since 1897, no such exemption has been provided by statutes and duties have been enforced by customs officials.” The court held that duties were properly imposed on boots purchased in Canada by an Indian native and brought to the United States.

Under treaty construction, latter statutes supersede earlier treaty provisions. In Headquarters Ruling Letter (“HRL”) 958766, dated December 22, 1995, Customs concluded that there is no applicable exemption from duty for goods imported from Canada into the Chippewa Tribe of Lake Superior based on either the Jay Treaty or any other authority. Since Congress removed tax exemptions for Indians by statute, we find that absent the applicability of another preferential duty provision, goods shipped from Canada into the tribal land of the St. Regis Band that is geographically within the State of New York are subject to customs duties and fees.

HOLDING:

Absent the applicability of another preferential duty provision, goods shipped from Canada into the tribal land of the St. Regis Band that is geographically within the State of New York are subject to customs duties and fees. A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

Myles B. Harmon. Director
Commercial Rulings Division

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