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and 1994 were made in the same form and under the same
contractual agreements as the per capita distributions made in
1992 (the year at issue in Campbell I). In addition, petitioner
conceded at trial that the facts in this case, save the years in
dispute and amounts in controversy, are identical to the facts in
Campbell I.12 Because the context in which the issues of this
case arise has not changed since Campbell I, normal rules of
preclusion apply. See Montana v. United States, 440 U.S. at 161.
12The only fact that arguably changed since Campbell I is
the fact that the Department of the Interior approved the tribe’s
“Gaming Revenue Allocation Ordinance” (ordinance) on or about
Nov. 20, 1994. Petitioner argues that before the approval of the
ordinance in 1994, the tribe “had the right to expect that its
per capita distributions could be received as tax-free per capita
distributions under its Constitution and Corporate Charter.” We
reject petitioner’s argument. Contrary to petitioner’s argument,
the clear language of 25 U.S.C. sec. 2710(b)(3), which was
enacted in 1988 (before Campbell I), provides that per capita
distributions may be made “only if--(A) the Indian tribe has
prepared a plan to allocate revenues to uses authorized by
paragraph (2)(B); (B) the plan is approved by the Secretary as
adequate, particularly with respect to uses described in clause
(i) or (iii) of paragraph (2)(B); * * *; and (D) the per capita
payments are subject to Federal taxation and tribes notify
members of such tax liability when payments are made.” In other
words, the tribe must have had an approved plan in effect in
order to make the per capita distributions in the first instance.
The statute does not allow tribes without such a plan to make
tax-free per capita distributions. Petitioner is not entitled to
rely on the tribe’s compliance, or noncompliance, with this
statute in order to escape taxation. Further, the decision in
Campbell I concerned tax year 1992, was tried in 1996, and was
decided in 1997; therefore, petitioner was aware of the fact that
the ordinance had been approved at the time of trial and could
have made an identical argument at trial in Campbell I. Based on
the above, the fact that the plan was not approved until 1994
does not alter the factual circumstances under which the per
capita distributions were made and is of no consequence to our
decision.
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