Native American Reservations & Businesses

"An Indian reservation is an area of land held and governed by a federally recognized Native American   tribal nation whose government is accountable to the U.S. Bureau of Indian Affairs and not to the state government in which it is located" ( Wikipedia). 

"Indian reservations hold a special place within the context of American government and inter-governmental relations...The term reservation refers to land set aside by a government for a particular purpose. Examples of federally reserved lands include military bases, public parks, and Indian reservations. In this lesson, we'll be looking at Indian reservations...Indian reservations consist of land set aside by the federal government for the use of Native American tribes. The legal title (ownership) to the land is actually held by the U.S. government, which the holds the land in trust for each tribe. A tribe may have acquired a reservation though a treaty, an executive order, or by federal statute...Indian reservations hold a unique place within the governmental structure of the United States. Federally recognized Native American tribes are sovereign entities, which means they generally have the right to govern without undue interference from outsiders..." ( Indian Reservations).

Definition of Indian Country

"All lands within the exterior boundaries of an Indian reservation, including private property and rights-of-way, are reservation land and, thus, Indian country.

The term Indian country is defined in 18 U.S.C. § 1151 and 40 C.F.R. § 171.3 as:

  1. all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation;
  2. all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state; and
  3. all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

Consistent with the statutory definition of Indian country, as well as federal case law interpreting this statutory language, lands held by the federal government in trust for Indian tribes that exist outside of formal reservations are informal reservations and, thus, are Indian country ( US EPA).

Q. An Indian tribe has purchased non-Indian country land located outside of its reservation. Is this land now Indian country?

A. Not necessarily. Land bought by an Indian tribe does not generally acquire Indian country status by virtue of tribal ownership alone. Tribes may own non-Indian country land in much the same way as other entities may own such land. Tribes may be able to convert such land into Indian country. 

For instance, a tribe can request that the U.S. Government take the land into trust for the benefit of the tribe. Such trust status would qualify the land as an informal Indian reservation and, thus, Indian country. 

There may also be other mechanisms through which tribes are authorized to purchase land and have it acquire Indian country status. Generally speaking, however, tribal ownership of land that does not otherwise qualify as Indian country would not, by itself, convert the land into Indian country" ( US EPA).

How does this information apply to IRS Notice 2021-20?

" Question 3 (p. 19 of the notice):  Are tribal governments and tribal entities eligible for the employee retention credit?

Answer 3: Yes. 

Any tribal government or tribal entity that operates a trade or business may be an eligible employer for purposes of the employee retention credit if it otherwise satisfies the eligibility requirements to claim the credit. As a general rule, whether activities constitute a trade or business for purposes of the employee retention credit is determined under section 162 of the Code. However, because tribal governments are not subject to income tax under the Code and, therefore, are generally not otherwise required to determine whether an activity of the tribe constitutes the carrying on of a trade or business under section 162, the Treasury Department and IRS have concluded that the section 162 standards are not the appropriate bases for determining whether a tribal government is carrying on a trade or business for purposes of the employee retention credit. Instead, solely for purposes of the employee retention credit, a tribal government is treated as carrying on trade or business activities, and all activities conducted by the tribal government will be considered part of such trade or business activities, without the need for further analysis of whether those activities meet a particular standard for identifying trade or business operations. In addition, solely for purposes of the employee retention credit, any entity that a tribal government reasonably believes shares the same tax status as the tribal government (tribal entity employer) may also consider all of its activities as trade or business activities. Any entity other than a tribal government or a tribal entity employer must determine whether its activities constitute carrying on a trade or business under section 162 for purposes of determining eligibility for the employee retention credit" ( Form 2021-20). 

"Question 9: How do the aggregation rules apply to tribes and tribal entities?

Answer 9: In determining eligibility for the employee retention credit, all employers must apply the aggregation rules under section 52(a) and (b) and section 414(m) and (o) of the Code. For purposes of the employee retention credit, tribal governments and tribal entity employers (as defined in Q/A–3) should use a reasonable, good faith interpretation in determining how the aggregation rules apply" (Form 2021-20). 

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