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such employee for such employer are
performed within an Indian
reservation, and
(C) the principal place of abode
of such employee while performing such
services is on or near the reservation
in which the services are performed.
[Emphasis added.]
The parties dispute the meaning of the phrase “within an Indian
reservation” contained in section 45A(c)(1)(B).8
I. “Within” an Indian Reservation
Petitioner argues that section 45A does not require a
qualified employee to work “on” an Indian reservation but
“within” an Indian reservation. Petitioner contends that the
Galena airport is within the exterior boundaries of a reservation
and is therefore “within” an Indian reservation as defined by
section 45A because the Galena airport is totally surrounded by
land that qualifies as an Indian reservation.
Respondent argues that Congress intended the phrase “within
an Indian reservation” in section 45A to refer to the interior of
the Indian reservation itself, not to non-Indian land adjacent to
an Indian reservation. Respondent contends that Congress
provided the IEC to encourage private businesses to locate on
Indian reservations in order to employ Native Americans who live
8 Sec. 7491 is effective for court proceedings arising in
connection with examinations commencing after July 22, 1998.
Petitioner does not contend that sec. 7491 is applicable to its
case. Further, we do not find that the resolution of this case
depends on which party has the burden of proof.
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