Letter From Service Member

Letter From A Solider

Hello everyone,

As you know I am not a very political person. I just wanted to pass along that Senator Obama came to Bagram Afghanistan for about an hour on his visit to “The War Zone”. I wanted to share with you what happened.

He got off the plan and got into a bullet proof vehicle, got to the area to meet with the Major General (2 Star) who is the commander here at Bagram. As the Soldiers where lined up to shake his hand he blew them off and didn’t say a word as he went into the conference room to meet the General.

As he finished, the vehicles took him to the ClamShell (pretty much a big top tent that military personnel can play basketball or work out in with weights) so he could take his publicity pictures playing basketball. He again shunned the opportunity to talk to Soldiers to thank them for their service. So really he was just here to make a showing for the American’s back home that he is their candidate for President.

I think that if you are going to make an effort to come all the way over here you would thank those that are providing the freedom that they are providing for you. I swear we got more thanks from the NBA Basketball Players or the Dallas Cowboy Cheerleaders than from one of the Senators, who wants to be the President of the United States. I just don’t understand how anyone would want him to be our Commander-and-Chief. It was almost that he was scared to be around those that provide the freedom for him and our great country.

If this is blunt and to the point I am sorry but I wanted you all to know what
kind of caliber of person he really is. What you see in the news is all fake.

In service,
CPT J. P*****
Battle Captain

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1 Comment

  1. Richard said,

    February 4, 2009 at 6:44 pm

    To make a long story short the (SSCRA) Soldiers and Sailors Civil Relief Act of 1940 was a federal law enacted to protect all veterans from being cheated and discriminated against while they were away from their homes and property while serving in the armed forces(this included landlords increasing rent and paying taxes in their home state and the state they were stationed in)
    Native American Veterans living on tribal lands including trust and reservations were exempt from state taxes However our military pay was garnished by our states illegally untill the year 2001 !
    The state of New Mexico has recognized this injustice and is attempting to repay those veterans.This paper can help get the word out to all other tribes and states. Our Native veterans past and present deserve this much

    Hello My name is Richard Adame. I am an enrolled PBP member and retired from the army. I contacted senator Brownbacks office about a matter concerning Native American servicemembers. Section 514 of the Soldiers and Sailors Civil Relief Act of 1940 states that Native American military members who joined from Indian lands will not under any circumstances have their military pay taxed by their individual state for income tax purposes. Of course the states did not honor this act and continued to tax Native Americans who were legally exempt from state taxes.This went on until the year 2001 when this illegal practice was ended..Myself and hundreds of other Native Americans were illegally taxed by our states while we served this country in uniform.. We were not told that we were cheated. We were not given an opportunity to claim our money back.Some of us are no longer around. I am asking you on behalf of us all to look into this matter and seek justice for our veterans.
    Senator Brownbacks office encouraged me to go thru my tribal attorneys office first before they became involved. I await you answer. ( our tribal attorney did absolutely nothing )
    READ THE CONCLUSION STATEMENT AT BOTTOM OF PAGE FIRST

    Section 514 and the Military Income of Native American Service Members
    In order to determine whether section 514 of the SSCRA permits States to tax the military income of Native American service members whose residence is on a tribal reservation, it is useful first to distinguish among the States that might attempt to impose such taxation. They fall into three general categories: States where the service member works but only because of his military service; States where the service member lives but only because of his military service; and States containing the tribal reservation on which the service member lived until commencing his military service. We address these categories in turn.
    Section 514 explicitly addresses both the first and second categories. As to the first, the second sentence of section 514 provides, in pertinent part:

    For the purposes of taxation in respect of the personal property, income, or gross income of any such person by any State, Territory, possession, or political subdivision of any of the foregoing, or the District of Columbia, of which such person is not a resident or in which he is not domiciled, compensation for military or naval service shall not be deemed income for services performed within, or from sources within, such State, Territory, possession, political subdivision, or District.

    50 U.S.C. app. § 574(1). This provision prevents a State from taxing military compensation earned in its jurisdiction by service members who are not otherwise residents of the State. See Dameron, 345 U.S. at 326 (section 514 “saved the sole right of taxation to the state of original residence whether or not that state exercised the right”). As to the second category, the first sentence of section 514 provides that no person shall be deemed “to have acquired a residence or domicile in, or to have become resident in or a resident of, any other State, Territory, possession, or political subdivision of any of the foregoing, or the District of Columbia, while and solely by reason of being . . . absent” from his pre-military service residence. 50 U.S.C. app. § 574(1). This provision clearly prohibits a State from taxing the military income of a service member who lives in that State solely in order to comply with his service obligations. See Buzard, 382 U.S. at 393 (“The very purpose of § 514 in broadly freeing the nonresident serviceman from the obligation to pay property and income taxes was to relieve him of the burden of supporting the governments of the States where he was present solely in compliance with military orders.”). For Native Americans, like other military service members, neither the State where a service member works due only to military orders nor a state in which a service member lives due only to such orders may tax the service members’ military income.
    The third category presents a somewhat more complex case. In order to determine whether the SSCRA permits the State containing a service member’s reservation residence to tax his military income, we look initially to the first sentence of section 514. That sentence provides that a military service member “shall not be deemed to have lost a residence or domicile in any State, Territory, possession, or political subdivision of any of the foregoing, or in the District of Columbia, solely by reason of being absent therefrom in compliance with military or naval orders.” 50 U.S.C. app. § 574(1). A threshold question is whether this provision preserves the tribal residence of Native Americans. For three reasons, we conclude that it does.
    First, an Indian reservation is arguably a “residence . . . in [a] State.” That is, since an Indian reservation is located within the geographical boundaries of a State or States, a Native American who resides on a reservation has a residence in a State just as, for example, one who resides in a particular city has a residence in the State containing that city. See Cohen, supra note 4, at 649 (“[T]ribal lands within the boundaries of state or organized territories have always been considered to be geographically part of the respective state or territory.”). Thus, the first sentence of section 514 arguably provides that a Native American service member shall not be deemed to have lost her residence on a reservation located within a State “solely by reason of being absent therefrom in compliance with military or naval orders.” 50 U.S.C. app. § 574(1).
    Second, and alternatively, while neither the text of the SSCRA nor its legislative history defines the terms “State, Territory, possession, or political subdivision,” an Indian reservation might itself be regarded as a “Territory” for purposes of section 514. Although territories are not generally understood to be subsumed within State boundaries, “when Congress uses the term ‘territory’, this may be meant to be synonymous with ‘place’ or ‘area’, and not necessarily to indicate that Congress has in mind the niceties of language of a political scientist.” Moreno Rios v. United States, 256 F.2d 68, 71 (1st Cir. 1958). Accordingly, the precise scope of the term “Territory” depends on the purpose and nature of the particular statute in which it is used. See District of Columbia v. Carter, 409 U.S. 418, 420 (1973) (“Whether the District of Columbia constitutes a ‘State or Territory’ within the meaning of any particular statutory or constitutional provision depends upon the character and aim of the specific provision involved.”). (9) There is no indication in either the text of section 514 or its legislative history that Congress intended to define “Territory” narrowly so as to exclude Native American service members from the statute’s protections. Thus, it is arguable that the term as employed in section 514 should be read to include Indian reservations.
    Third, even assuming an Indian reservation is not a “Territory” or a “residence . . . in [a] State” within the meaning of section 514, we think it is clear that the statute’s recitation of jurisdictions is not intended and should not operate as a limitation on the protection the SSCRA affords to all service members. By its terms, the first sentence of section 514 covers military compensation earned by “any person.” 50 U.S.C. app. § 574(1). As the Supreme Court has explained, in the absence of a clear expression to the contrary, “a general statute in terms applying to all persons includes Indians and their property interests.” Federal Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 116 (1960). Here, there is no indication that Congress intended to exclude Native American residents of tribal reservations from section 514’s coverage. Any residual ambiguity on this point is settled by Congress’s specific guidance to resolve “[a]ny doubts that may arise as to the scope and application of the [SSCRA] . . . in favor of the person in military service involved,” H.R. Rep. No. 77-2198 (1942), at 2, by the Supreme Court’s holding that the SSCRA is “always to be liberally construed,” Boone, 319 U.S. at 575, and by the Court’s similar directive that “statutes are to be construed liberally in favor of the Indians, with ambiguous provisions to be interpreted to their benefit.” Blackfeet Tribe, 471 U.S. at 766. In light of these directives, we conclude that section 514 should be read to preserve the reservation residence of Native American service members. (10)
    Next, we consider what consequences flow from section 514’s preservation of Native Americans’ reservation residence. It might be argued that, even though section 514 preserves a service member’s pre-service residence, the State containing a Native American service member’s reservation may still tax his military compensation to the same extent as it may tax the military compensation of other service members whose pre-service residence is in that State. That argument is premised on the theory that Native Americans who live on their reservation are residents of both their reservation and the State in which it is located, and that section 514 preserves both those residences for income tax purposes. Absent federal law to the contrary, a State may tax off-reservation, in-state income earned by reservation Indians whose reservation is in that State. See Mescalero, 411 U.S. at 148-49 (“Absent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State.”). Arguably, Mescalero implicitly recognizes that Native Americans who live on a reservation are residents of both their reservation and the State containing it, and that once they leave the reservation to work they are subject to the generally applicable tax laws to which all other residents of the State are subject, including tax liability for both in-state and out-of-state income. The validity of this view is unclear. (11) We need not attempt to resolve the issue here, however, because we conclude the SSCRA, especially when read in light of general principles of federal Indian law, preempts any authority a State containing a Native American’s tribal residence may otherwise have to tax that Native American’s military income.
    As noted above, preemption analysis asks whether “under the circumstances of th[e] particular case, [the State’s] law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Geier, 529 U.S. at 873 (quoting Hines, 312 U.S. at 67); see Freightliner, 514 U.S. at 287. Determining what constitutes a “sufficient obstacle” in this sense is “informed by examining the federal statute as a whole and identifying its purpose and intended effects.” Crosby v. National Foreign Trade Council, 530 U.S. 363, 373 (2000).

    [W]hen the question is whether a Federal act overrides a state law, the entire scheme of the statute must of course be considered and that which needs must be implied is of no less force than that which is expressed. If the purpose of the act cannot otherwise be accomplished — if its operation within its chosen field else must be frustrated and its provisions be refused their natural effect — the state law must yield to the regulation of Congress within the sphere of its delegated power.

    Id. (quoting Savage v. Jones, 225 U.S. 501, 533 (1912)).
    The Supreme Court has explained that “[t]he very purpose of § 514 in broadly freeing the nonresident serviceman from the obligation to pay property and income taxes was to relieve him of the burden of supporting the governments of the States where he was present solely in compliance with military orders.” Buzard, 382 U.S. at 393; see also Dameron, 345 U.S. at 326. As this passage suggests, section 514 is intended to provide that if an individual works in a certain jurisdiction because his military service requires him to be there, he should not be subject to any different burdens by virtue of that compulsory presence. (12) More specifically, compulsory presence in a particular place may not subject the service member to taxing authorities to which he was not already subject prior to his military service.
    Before beginning military service, a Native American resident of a tribal reservation who does not work outside the reservation is not subject to taxation by the State in which the reservation is located. See McClanahan, 411 U.S. at 164. If that State were to tax that individual’s military income on the theory that it is income earned off-reservation, it would subject him to an income tax to which he was not previously subject, and it would do so by virtue of his compulsory presence in a particular jurisdiction. Section 514’s broad, generous purpose is to prevent precisely that eventuality.
    We recognize, of course, that some Native American service members could have been subjected to state income tax prior to joining one of the armed services. Under Mescalero, a State containing a Native American’s tribal residence may, absent federal law to the contrary, subject that tribal member to income tax for income earned outside the reservation. See 411 U.S. at 148-49. (13) Prior to enlisting in the military, however, such an individual was not subject to state income tax in a general sense; rather, she was subject to such tax only to the extent that her income was earned outside a reservation. When a reservation Indian enters military service and is directed to perform that service outside her reservation, any income she earns for that service is earned off the reservation because of military orders. Thus, were a State to impose a tax on that military compensation, the tax would be incident to the service member’s compulsory presence and work outside her tribal reservation. That is, the tax would result from the individual’s compliance with military orders. Such a tax would run afoul of what the Dameron Court identified as section 514’s core purpose: to protect military service members from being subjected to taxing authorities that rely solely on the members’ compulsory presence in a particular jurisdiction as the basis for taxing them. See 345 U.S. at 326. (14)
    We presume that section 514 was not designed to afford less protection to Native Americans than to other members of the military. See Federal Power Comm’n, 362 U.S. at 120 (“[G]eneral Acts of Congress apply to Indians as well as to all others in the absence of a clear expression to the contrary.”). Indeed, we are obliged under both federal Indian law and the SSCRA to construe any textual ambiguity on this point in favor of more, rather than less, protection. See Blackfeet Tribe, 471 U.S. at 766 (statutes affecting Indians “are to be construed liberally in favor of Indians, with ambiguous provisions to be interpreted to their benefit”); H.R. Rep. No. 77-2198, at 2 (“Any doubts that may arise as to the scope and application of the act should be resolved in favor of the person in military service involved.”); Boone, 319 U.S. at 575 (SSCRA “is always to be liberally construed”); Le Maistre, 333 U.S. at 6 (SSCRA is to be read “with an eye friendly to those who dropped their affairs to answer their country’s call.”). Accordingly, we conclude that where a Native American service member who claims a tribal reservation as her residence earns military compensation outside that reservation by virtue of her compliance with military orders, section 514 prohibits the State containing the service member’s reservation residence from taxing that military compensation. (15)
    Finally, you have asked whether our opinion constitutes an adequate legal basis for the Department of Defense to terminate state income tax withholding for Native American service members who certify that they have met the specified criteria. Pursuant to statute, the Attorney General is responsible for providing legal advice to the heads of departments within the Executive Branch. See 28 U.S.C. § 512 (1994) (“The head of an executive department may require the opinion of the Attorney General on questions of law arising in the administration of his department.”). The Attorney General has delegated that responsibility to the Office of Legal Counsel. See 28 C.F.R. § 0.25(a) (2000) (assigning to the Assistant Attorney General, Office of Legal Counsel, the responsibility for “[p]reparing the formal opinions of the Attorney General” and for “rendering informal opinions and legal advice to the various agencies of the Government”). In that regard, the legal advice of the Office of Legal Counsel constitutes the legal position of the Executive Branch, unless overruled by the President or the Attorney General. See H. Jefferson Powell, The Constitution and the Attorneys General xv (1999) (“The published opinions of the Attorneys General and, since 1977, of the Office of Legal Counsel, . . . constitute the formal legal views of that branch of the federal government charged with the faithful execution of the laws.”). Accordingly, to the extent that a Native American service member can demonstrate residence on a federally recognized tribal reservation in a manner that satisfies the Defense Department’s current standards for establishing entitlement to an exemption from state income tax withholding under section 514 of the SSCRA, the Defense Department may rely on the advice provided in this opinion and not withhold state income tax from such a service member’s military compensation. Cf. Smith v. Jackson, 246 U.S. 388, 390-91 (1918) (concluding that the Auditor of the Panama Canal Zone should have followed the ruling of the Attorney General on a question of federal statutory law). (16)

    CONCLUSION

    For the foregoing reasons, we conclude that section 514 of the SSCRA prohibits States from taxing the military compensation of Native American service members who are residents of tribal reservations.

    RANDOLPH D. MOSS
    Assistant Attorney General
    Office of Legal Counsel


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