Frank Warren Bibeau, T. C. Memo. 2023-66, filed 5/24/23, identifies himself as an “Indian” and as a member of the “Chippewa tribe,” T. C. Memo. 2023-66, at p. 2, footnote 4. While these terms are “fraught,” says Judge Mark V. (“Vittorio Emanuele”) Holmes, id. Since historically the law refers to “Indians,” Judge Holmes opts for consistency over correctness.

Bibeau, a lawyer (natch), claims his income is tax-exempt per treaty, because the right to hunt, fish, and gather the wild rice, which said treaty secures, really means “food, clothing and shelter and travel, whereby the new canoe is the automobile.” T. C. Memo. 2023-66, aft p. 1.

My kind of guy, a true wag.

While tax exemptions are strictly construed, “Indian treaties ‘are to be construed, so far as possible, in the sense in which the Indians understood them,’ Choctaw Nation of Indians v. United States, 318 U.S. 423, 432 (1943). This means that ‘[t]he construction, instead of being strict, is liberal; doubtful expressions, instead of being resolved in favor of the United States, are to be resolved in favor of [the Indians].’ Choate v. Trapp, 224 U.S. 665,  675 (1912).” T. C. Memo. 2023-66, at pp. 2-3.

Still, tax exemptions have to be clearly expressed.

Bibeau claims the 1837 Treaty allows him to make a “modest living,” which his law practice does. My practice is even more modest, maybe because I have no treaty. Judge Holmes says OK, make a modest living, but that doesn’t mean a tax-free modest living. The 1837 Treaty says the Chippewa have the right to fish and gather wild rice, and no Federal law can keep them from doing so. But if they sell the fish or the wild rice, that doesn’t mean they don’t owe tax on the proceeds.

8 Cir has held that the Treaty must be construed as the Indians understand it, but they throw in original intent: “The Eighth Circuit was even careful to reserve the question of whether the Treaty entitled the Chippewa to use modern technology in the exercise of their Treaty rights—’This case presents no issue of whether the treaty protection includes the use of new technologies since the Chippewa used nets to catch fish at the time the treaty was made.’ This suggests that the right to fish, and in turn sell fish, may be limited to the understanding of what it meant to fish at the time the 1837 Treaty was executed.” T. C. Memo. 2023-66, at p. 4, footnote 7. (Citation omitted).

And fishing does not include practicing law.

Bibeau claims the Chippawa never granted the right to the USA to tax the tribe members. But absence of tax terms from the Treaty doesn’t mean exemption: it means there is no exemption.

The 1924 Indian Citizenship Act doesn’t help, because 8 Cir said that while the Act didn’t disturb pre-existing Chippewa rights, it didn’t grant a tax exemption.

So though NOLs cover Bibeau’s income tax liabilities for years at issue, he still owes SE.

But all is not lost, because Bibeau gets a Taishoff “Good Try, First Class.”