       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2      Chippewa Trading Co. v. Cox, et al.     No. 03-1445
    ELECTRONIC CITATION: 2004 FED App. 0110P (6th Cir.)
                File Name: 04a0110p.06                        Before: BOGGS, Chief Judge; and BATCHELDER and
                                                                          SUTTON, Circuit Judges.
UNITED STATES COURT OF APPEALS                                                _________________
              FOR THE SIXTH CIRCUIT                                               COUNSEL
                _________________
                                                          ARGUED: Scott M. Moore, MOORE INTERNATIONAL
CHIPPEWA TRADING CO ., an        X                        LAW OFFICES, San Francisco, California, for Appellant.
                                  -                       Daniel M. Levy, OFFICE OF THE ATTORNEY GENERAL
Indian corporation chartered                              OF MICHIGAN, Detroit, Michigan, for Appellees.
and organized under the laws      -
                                  -   No. 03-1445         ON BRIEF: Scott M. Moore, MOORE INTERNATIONAL
of the Keweenaw Bay Indian        -                       LAW OFFICES, San Francisco, California, for Appellant.
Community,                         >                      Daniel M. Levy, OFFICE OF THE ATTORNEY GENERAL
                                  ,                       OF MICHIGAN, Detroit, Michigan, for Appellees.
           Plaintiff-Appellant,   -
                                  -                                           _________________
             v.                   -
                                  -                                               OPINION
MICHAEL COX , an individual       -                                           _________________
                                  -
in his official capacity as
                                  -                         BOGGS, Chief Judge. Chippewa Trading Co. appeals from
Attorney General of the State     -                       the dismissal of its action under 42 U.S.C. § 1983,
of Michigan; JAY B. RISING,       -                       challenging the constitutionality of several aspects of
an individual in his official     -                       Michigan’s Tobacco Products Tax Act (TPTA), Mich. Comp.
capacity as Treasurer of the      -                       Laws § 205.421 et seq. The district court concluded that
State of Michigan,                -                       principles of comity counseled it to abstain from hearing
                                  -                       Chippewa’s challenge to a state tax scheme, as Chippewa had
         Defendants-Appellees. -                          a “plain, adequate, and complete” remedy available in the
                                 N                        courts of Michigan. Fair Assessment in Real Estate Ass’n v.
       Appeal from the United States District Court       McNary, 454 U.S. 100, 116 (1981). We affirm.
    for the Western District of Michigan at Marquette.                                 I
  No. 02-00068—David W. McKeague, District Judge.
                                                             Chippewa is a corporation chartered under the laws of the
               Argued: December 9, 2003                   Keweenaw Bay Indian Community (a federally recognized
                                                          tribe) and located on an Indian reservation in Michigan. The
          Decided and Filed: April 19, 2004               events that gave rise to this case began on August 31, 2001,
                                                          when the Michigan State Police stopped a truck containing
                                                          tobacco products that were being shipped to Chippewa by

                            1
No. 03-1445        Chippewa Trading Co. v. Cox, et al.        3    4    Chippewa Trading Co. v. Cox, et al.         No. 03-1445

International Native Company (INC), an Indian company              its property has been seized, only the person from whom the
located on a reservation in New York. The truck’s driver was       seizure is made. The state court dismissed this action on
Andrew Arch, the president of another Indian shipping              February 8, 2002, on the ground that Chippewa lacked
company. The state police seized the tobacco products on           standing.
Arch’s truck because they carried no tobacco tax stamps,
which is a violation of TPTA.                                        In January 2002, while that appeal was still pending in the
                                                                   12th Circuit Court, the State Police seized another shipment
   When such a seizure occurs, the TPTA statutory scheme           of tobacco products without stamps en route to Chippewa.
requires police to give notice to “the person from whom the        Chippewa challenged this second TPTA seizure at the
seizure was made.” Mich. Comp. Laws § 205.429(3). The              administrative level, lost, and appealed that decision to
statute allows “any person claiming an interest in the             Michigan’s 41st Circuit Court. On September 4, 2002, the
property” to challenge the seizure in an administrative            41st Circuit Court held a scheduling hearing on the appeal
hearing, but such a challenge must be made within “10              and ordered that Chippewa’s due process claim would be
business days after the date of service of the [notice].” Ibid.    heard on October 11, 2002. However, shortly thereafter,
After this deadline, “the property seized [is] considered          Chippewa voluntarily dismissed the action in the 41st Circuit
forfeited to the state by operation of law.” Ibid. The result of   Court.
an administrative hearing challenging a TPTA seizure may be
appealed to a Michigan circuit court. See § 205.429(4).               Meanwhile, in April 2002, Chippewa filed the present
                                                                   action in federal district court, challenging the seizure from
  After seizing Arch’s shipment, the state police sent written     Arch in August 2001. Chippewa’s original complaint sought
notice of the seizure to INC, the shipper, whom they believed      declaratory and injunctive relief under 42 U.S.C. § 1983, plus
to be the owner of the shipment. In fact, Chippewa, the            attorney’s fees. Its only claim was that the TPTA forfeiture
buyer, had prepaid for the goods. No written notice was sent       scheme should be enjoined as a violation of due process,
to Chippewa. However, Chippewa received actual notice of           because of the notice defects that Chippewa had alleged in the
the seizure (from Arch) within four days after it occurred.        12th Circuit Court proceeding. In October 2002, Chippewa
Chippewa Trading Co. v. Granholm, No. 2:02-CV-68, 2003             filed a supplemental brief in support of summary judgment
U.S. Dist. LEXIS 10790, at *3 (W.D. Mich. Mar. 28, 2003).          that raised further constitutional claims: namely, that the
The only party to contest this seizure at the administrative       application of TPTA to an Indian entity such as Chippewa
level was INC, which was represented by the same attorney          violated the Supremacy Clause, U.S. Const., art. VI, cl. 2, the
who represents Chippewa in this federal proceeding. In             Indian Commerce Clause, U.S. Const., art. I, § 8, cl. 3, and
October 2001, the administrative referee concluded that the        the terms of the federal government’s 1842 Treaty with the
products seized from Arch’s truck were contraband that             Chippewa, 7 Stat. 591.
should be forfeited to the state.
  Chippewa then stepped in and appealed the referee’s
decision in Michigan’s 12th Circuit Court. It argued that the
notice provisions of TPTA violate the Fourteenth
Amendment’s Due Process Clause because they do not
require police to notify the owner of alleged contraband that
No. 03-1445             Chippewa Trading Co. v. Cox, et al.                   5    6       Chippewa Trading Co. v. Cox, et al.              No. 03-1445

  The State1 moved to dismiss Chippewa’s federal action on                         Assessment, 454 U.S. at 116). The court noted that the state
the grounds that the district court lacked jurisdiction under the                  offered two avenues for relief: First, TPTA itself provides an
Tax Injunction Act, the Eleventh Amendment, and principles                         administrative procedure to challenge forfeitures. Second,
of comity. The district court granted the State’s motion on                        Michigan’s courts are authorized to hear and decide
the basis of comity, without addressing the other proposed                         constitutional challenges to state tax laws, though they cannot
bases for dismissal. It held that because “the relief requested,                   prospectively enjoin the assessment or collection of a tax. See
invalidation of and/or injunction against all or part of the                       id. at **12-13.
TPTA, would unduly interfere with the fiscal operations and
independence of the State of Michigan and its system of                               Chippewa timely appealed the district court’s order to this
taxation,” dismissal was proper. Chippewa, 2003 U.S. Dist.                         court. Our review of a district court’s decision on abstention
LEXIS 10790 at *10. The court further held that Chippewa’s                         is de novo. Baskin v. Bath Twp. Bd. of Zoning Appeals, 15
case did not implicate the exception to the comity doctrine                        F.3d 569, 571 (6th Cir. 1994).
that applies when there is no “plain, adequate and complete”
remedy available at state law. Id. at *11 (citing Fair                                                                II
                                                                                                                      A
    1
       W e will refer to the defendants, state officials sued in their official      As the district court recognized, Chippewa’s action
capacities, as the State. Defendant Cox has been automatically substituted         implicates a broad federal common-law principle of comity
for his predecessor, Jennifer M. Granholm, pursuant to Fed. R. App. P.
43(c)(2). Plaintiff’s compla int also named June Sum mers H aas as a
                                                                                   that governs constitutional challenges to state tax
defendant in her official capacity, at the time, as Commissioner of                administration. This principle, which stems chiefly from Fair
Revenue in Michigan’s Department of the Treasury. However, Michigan                Assessment and Great Lakes Dredge & Dock Co. v. Huffman,
has recently abolished the position of Commissioner of Revenue . The               319 U.S. 293 (1943), prohibits “taxpayers . . . from asserting
Commissioner’s duties with respe ct to tax collection have reverted to the         § 1983 actions against the validity of state tax systems in [the
state’s Treasurer, in whom they originally resided, and who possesses the
power to delegate such autho rity by statute. See Mich. Comp. Laws
                                                                                   lower] federal courts.” Fair Assessment, 454 U.S. at 116. In
§ 205.35. We have acco rdingly substituted Jay B. Rising, the current              such cases, a federal court should normally abstain from
Treasurer, for M s. Haas.                                                          hearing the action as long as there is a “plain, adequate, and
      In our view, Fed. R. App. P. 43(c)(2) confers on the courts of appeals       complete” remedy available to the plaintiff in state court.
the pow er and obliga tion to lo ok beyond an alteration in title or transfer      Ibid. While this comity principle reflects some of the same
of authority during the pendency of an appeal, and to substitute the new
official who succeeds to the relevant responsibilities of a former official
                                                                                   concerns that led Congress to enact the Tax Injunction Act, 28
who was a p arty. Such autho rity has long been recognized under Fed. R.           U.S.C. § 1341,2 it stands on its own bottom, and extends to
Civ. P. 25 (d), the virtually identical rule that governs the automatic            cases seeking monetary damages as well as injunctive or other
substitution of pub lic officials in proceedings in the federal district courts.   equitable relief. Fair Assessment, 454 U.S. at 110; In re
 Air Line P ilots Ass’n, Intern. v. Civil Aeronautics Bd., 750 F.2d 81, 87         Gillis, 836 F.2d 1001, 1006 (6th Cir. 1988) (comity principle
(D.C. Cir. 1984); Wright v. Coun ty Sch. Bd. of Greensville County, Va.,
309 F. Supp. 671, 677 (E.D . Va. 1 970 ), rev’d on other grounds sub nom.
Wright v. Council of City of Em poria, 442 F.2d 570 (4th Cir. 19 71), rev’d,           2
407 U .S. 451 (1972 ); Porter v. Am. Distilling Co., 71 F. Supp. 483, 489                “The district co urts shall no t enjoin, suspend or restrain the
(S.D.N.Y. 1947) (“The title of the individual office is of no importance,          assessm ent, levy or collection of any tax under State law where a plain,
if, in fact, the powers and duties of the predecessor have been conferred          speedy and efficient remedy may be had in the courts of such State.”
upon the successor.”) (quotation marks omitted).                                   Ibid.
No. 03-1445          Chippewa Trading Co. v. Cox, et al.              7    8      Chippewa Trading Co. v. Cox, et al.                     No. 03-1445

is “substantially broader” than bar imposed by Tax Injunction                                                    B
Act). At the same time, relief in federal court remains
potentially available in such cases through direct review by                  Chippewa argues that abstention is nevertheless improper
the United States Supreme Court of any final state court                   because Chippewa lacks a “plain, adequate, and complete”
judgment on a constitutional challenge to a tax. Fair                      state remedy by which to pursue its federal challenge to
Assessment, 454 U.S. at 116.                                               Michigan’s tobacco tax scheme. Fair Assessment, 454 U.S.
                                                                           at 116; Gillis, 836 F.2d at 1009. The Supreme Court has held
   Previous holdings make clear that Chippewa’s suit                       that there is “no significant difference” between the Tax
threatens a level of interference with Michigan’s tax scheme               Injunction Act’s requirement of a “plain, speedy, and efficient
that is enough to implicate the comity principle. See id. at               remedy” and the judge-made requirement that there be a
114-15 (holding that comity barred § 1983 suit against county              “plain, adequate, and complete” state remedy in order for the
tax assessors challenging alleged overassessment of the value              principle of comity to apply. Fair Assessment, 454 U.S. at
of improved real estate; suit would have chilling effect on                116 n.8. In both cases the standard “require[s] a state court
county tax officials); Gillis, 836 F.2d at 1008 (comity barred             remedy that meets certain minimal procedural criteria.”
federal declaratory action claiming that Kentucky tax                      Rosewell v. LaSalle Nat’l Bank, 450 U.S. 503, 512 (1981)
authorities violated equal protection by systematically                    (emphasis in original); Gillis, 836 F.2d at 1010. State
underassessing property in the form of coal, oil, and gas                  “remedies are plain, adequate, and complete if they provide
interests). Here, Chippewa’s Due Process Clause claim                      the taxpayer with a full hearing and judicial determination at
challenges the forfeiture provisions of TPTA on their face.                which the taxpayer may raise any federal constitutional
This claim seeks to disable the basic enforcement mechanism                objections to the tax.” Ibid.
of the statute. If that were not enough, Chippewa’s later-
added claims under the Indian Commerce Clause and the
Treaty with the Chippewa call into question the State’s ability
to exact tobacco product taxes from Chippewa, and, by
extension, from similar Indian businesses. Such challenges                 applied to bar a taxpayer’s federal suit challenging Arizona’s grant of tax
to the applicability of state tax laws to a class of potential             credits to paroc hial schools. Id. at 1018-2 0. Despite the Supreme Court’s
taxpayers also implicate comity. See Great Lakes, 319 U.S.                 broad articulatio n of the comity principle in Fair Assessment, see, e.g.,
at 294, 297 (holding that comity barred federal declaratory                454 U.S. at 116 (“[W ]e hold that taxpayers are barred by the principle of
                                                                           comity from asserting § 1983 actions against the validity of state tax
action on behalf of Louisiana barge owners claiming that                   systems in federal courts.”), the Winn court concluded that comity did not
federal maritime law pre-empted Louisiana’s business excise                app ly to a § 1 983 suit challen ging the validity of a state tax credit in
tax as applied to them); see also ACLU Found. of La. v.                    federal court, since, if successful, the suit would result in a state collecting
Bridges, 334 F.3d 416 (5th Cir. 2003) (holding that Tax                    more tax revenue than it otherwise would. 307 F.3d at 1018-20.
Injunction Act barred federal suit challenging state’s grant of            However, even if Winn were not contrary to our own circuit’s precedent
                                                                           in Gillis, see Winn v. Killian, 321 F.3d 911, 914-15 (9th Cir. 2003)
tax exemptions to religious institutions).3                                (Kleinfeld, J., dissenting from denial of rehearing en banc) (noting the
                                                                           conflict), as well as questionable in light of Fair Assessme nt itself, it still
                                                                           would not provide supp ort for C hippewa’s positio n here. Chippewa’s suit
    3
                                                                           does not challenge a tax credit, but seeks to enjoin the State from
     W e are cognizant that in Winn v. Killian, 307 F.3d 10 11 (9th Cir.   collecting tobacco taxes on Chippewa’s ship ments.
2002), the Ninth Circuit Court of Appeals held that neither the Tax             The Supreme Court has granted certiorari to review the Ninth
Injunction Act no r the broad er comity principle o f Fair Assessment      Circuit’s decision in the Winn case. Hibbs v. Winn, 124 S. Ct. 45 (2003 ).
No. 03-1445       Chippewa Trading Co. v. Cox, et al.       9    10       Chippewa Trading Co. v. Cox, et al.             No. 03-1445

  Chippewa contends that the due process problems that it        business days of service of the notice. But the fact remains
identifies in TPTA’s notice provisions obstruct meaningful       that the person from whom the contraband was seized (here,
review of improper seizures, and thus deprive it of a plain,     Arch, the truck driver) is extremely likely to notify his
adequate, and complete remedy.                                   superiors of the seizure in a timely fashion.
   We disagree. Chippewa has not meaningfully contested the         Even in a situation like the present case, where the party
district court’s conclusion that it has an independent state     who would arguably bear the financial risk of the seizure does
remedy, quite apart from the TPTA administrative procedure,      not employ the person from whom the seizure was made, it is
in the form of a direct constitutional challenge to the tax      still highly probable that the party at risk will find out
scheme in state court. Such a constitutional challenge may be    promptly. In all likelihood, the seizure will be discovered in
brought in the Michigan circuit courts in the first instance.    time to contest it under TPTA, and it will unquestionably be
Kostyu v. Dep’t of Treasury, 427 N.W.2d 566, 568 (Mich. Ct.      discovered within the three-year Michigan statute of
App. 1988); Joy Mgmt. Co. v. City of Detroit, 440 N.W.2d         limitations period, Mich. Comp. Laws § 600.5805(10), that is
654, 657 (Mich. Ct. App. 1989), overruled in part on other       borrowed for § 1983 claims, see Carroll v. Wilkerson, 782
grounds, City of Detroit v. Walker, 520 N.W.2d 135, 142          F.2d 44 (6th Cir. 1986) (per curiam). When a shipment fails
(1994); see Smith v. Cliffs on the Bay Condominium Ass’n,        to arrive, or a delivery truck pulls up with no cigarettes in the
617 N.W.2d 536 (Mich. 2000) (hearing challenge to notice         trailer, a reasonable party in Chippewa’s shoes will make
provisions of tax statute on federal and state due process       rather prompt inquiries to find out what happened.4 Indeed,
grounds). A plaintiff may also bring a § 1983 injunctive         that seems to have occurred here. Chippewa admitted to the
action in the Michigan courts against state officials pursuant   district court that it received actual notice that its August 2001
to the Ex Parte Young doctrine. See Jones v. Powell, 612         shipment had been seized under TPTA within four days of the
N.W.2d 423, 425 (Mich. 2000); Bay Mills Indian Community         seizure.
v. State, 626 N.W.2d 169, 175 (Mich. Ct. App. 2001). The
availability of a § 1983 action in state court significantly        We note in this connection that Michigan does not require
supports federal court abstention under the comity doctrine.     exhaustion of administrative remedies before filing suit in
Fair Assessment, 454 U.S. at 116-17; Long Island Lighting        circuit court when – as would be true of the claims Chippewa
Co. v. Town of Brookhaven, 889 F.2d 428, 432-33 (2d Cir.         asserts here – the plaintiff’s action raises only constitutional
1989).                                                           issues, which fall outside of the competence of administrative
                                                                 tribunals. See Papas v. Mich. Gaming Control Bd., 669
  To the extent that Chippewa argues that the alleged notice     N.W.2d 326, 334 (Mich. Ct. App. 2003) (“There is no sense
defects in the TPTA seizure process will obstruct it from        in forcing a plaintiff to plod through the lengthy
bringing suit in Michigan courts by one of these avenues, and    administrative process when only the courts have the
that the interaction between the relevant administrative and     authority to resolve the controlling constitutional issue.”)
legal frameworks thereby renders the state court remedies        (quotation marks omitted) (citing authorities). In Gillis, we
inadequate, we are not persuaded by this argument either. It
is true that the TPTA administrative scheme combines
somewhat limited notice provisions – only the person from             4
whom a seizure is made need be sent a written notice – with            In case o f doubt, a pa rty like Chippewa can pro tect itself with
                                                                 contract, by requiring its shippers and o ther business co unterp arts to
a short deadline: seizures must be contested within 10           provide it with notice of any seizure.
No. 03-1445            Chippewa Trading Co. v. Cox, et al.                 11     12   Chippewa Trading Co. v. Cox, et al.         No. 03-1445

held that a plain, adequate, and complete state remedy existed                                                  III
for plaintiff’s equal protection challenge in the courts of
Kentucky, in part because Kentucky law would not require                            Finally, Chippewa asserts that our comity analysis must
the plaintiff to exhaust administrative procedures in order to                    reach a different result because Chippewa is an Indian
raise his constitutional challenge. 836 F.2d at 1011. Similar                     corporation. Sifting the various arguments in Chippewa’s
reasoning applies here. We are also confident that Michigan                       briefs, we can say that the company wants us to reverse the
would apply the same rule to a claim involving the                                district court’s comity ruling on the authority of 28 U.S.C. §
application of a federal treaty, such as Chippewa’s claim here                    1362; Moe v. Confed. Salish & Kootenai Tribes, 425 U.S. 463
under the 1842 Treaty with the Chippewa.                                          (1976); and Winnebago Tribe of Neb. v. Stovall, 341 F.3d
                                                                                  1202 (10th Cir. 2003).
  Federal courts are to take a narrow view of the “no plain,
speedy, and efficient remedy” exception to the Tax Injunction                        Moe involved facts similar in a number of respects to those
Act. California v. Grace Brethren Church, 457 U.S. 393, 413                       here. An Indian tribe brought suit in federal district court
(1982); Amos v. Glynn County Bd. of Tax Assessors, 347 F.3d                       challenging, inter alia, the application of Montana tobacco
1249, 1256 (11th Cir. 2003). That exception, in turn, has                         sales taxes and tobacco vendor licensing requirements to
been described by the Supreme Court as essentially                                Indians on reservations. 425 U.S. at 466-69. The state argued
equivalent to the “no plain, adequate, and complete remedy”                       that the Tax Injunction Act required federal court abstention.
exception that we must apply here. Fair Assessment, 454                           A three-judge district court disagreed, heard the case, and
U.S. at 116 n.8.5 Here, the opportunity to raise its                              invalidated some of the tax provisions at issue. Id. at 469.
constitutional claims in state court plainly gives Chippewa “a                    The Supreme Court affirmed. It noted that a key statutory
full hearing and judicial determination” at which it may “raise                   provision, 28 U.S.C. § 1362, provides that “the district courts
any federal constitutional objections to the tax.” Gillis, 836                    shall have jurisdiction of all civil actions, brought by any
F.2d at 1010. Thus, we hold that Chippewa’s state remedies                        Indian tribe or band . . . duly recognized by the Secretary of
are plain, adequate, and complete under Fair Assessment and                       the Interior, wherein the matter in controversy arises under
related case law.                                                                 the Constitution, laws or treaties of the United States.” Ibid.
                                                                                  (emphasis added). Because § 1362 was enacted after the Tax
                                                                                  Injunction Act, the Court held that the Act did not apply to
                                                                                  oust federal jurisdiction over the tribe’s suit. Moe, 425 U.S.
                                                                                  at 474-75.
                                                                                    In Winnebago, the Tenth Circuit upheld the district court’s
                                                                                  grant of a preliminary injunction against the State of Kansas,
                                                                                  which sought to assess state fuel taxes on a fuel distributor
                                                                                  corporation wholly owned by the Winnebago Tribe. Kansas
                                                                                  had seized tribal property without notice and initiated
    5                                                                             criminal proceedings against the plaintiffs, who included
       In Rosewe ll, the Supreme Court upheld as “plain, speedy, and
efficient” a Cook County, Illinois, remedy for challenging tax assessments        members of the tribe and tribal officials. Id. at 1204. The
that required p rotesto rs to pre-pay their taxes. If successful, the taxpayers   Winnebago Tribe itself, along with the other plaintiffs, sued
would receive their refund witho ut interest after a typical delay of two         Kansas for declaratory and injunctive relief. Ibid. As
years. See 450 U.S. at 510 , 528 .
No. 03-1445        Chippewa Trading Co. v. Cox, et al.         13    14    Chippewa Trading Co. v. Cox, et al.          No. 03-1445

relevant here, the Tenth Circuit held that the district court was       To be sure, it is reasonable to assume that § 1362 exempts
not required to abstain from hearing the suit under the              suits from the Fair Assessment comity doctrine to the same
doctrine of Younger v. Harris, 401 U.S. 37 (1971). See               extent that it exempts them from the Tax Injunction Act. As
Winnebago Tribe of Neb. v. Stovall, 216 F. Supp. 2d 1226 (D.         the Supreme Court observed in Moe, the statutory exception
Kan. 2002). The Tenth Circuit agreed with the district court         for Indian tribes in § 1362 was intended “to open the federal
that “the second Younger requirement – implication of an             courts to the kind of claims that could have been brought by
important state interest – had not been met.” Winnebago, 341         the United States as trustee, but for whatever reason were not
F.3d at 1204.                                                        so brought.” 425 U.S. at 472. While there is little authority
                                                                     bearing on the specific applicability of Fair Assessment to the
   In Winnebago, the Tenth Circuit discussed neither the Tax         United States as trustee, it is generally true that “the presence
Injunction Act nor the comity principle of Fair Assessment.          of the United States as a plaintiff . . . militate[s] strongly
It is likely that Kansas simply did not attempt to raise these       against the applicability of abstention.” United States v. Pub.
authorities as a bar to hearing the Tribe’s suit, for on the facts   Serv. Comm’n of Md., 422 F. Supp. 676, 679 (D. Md. 1976)
of the Winnebago case, they were clearly inapplicable in light       (three-judge court) (declining to abstain under R. Comm’n of
of Moe and 28 U.S.C. § 1362.                                         Tex. v. Pullman, 312 U.S. 496 (1941)). We suspect the same
                                                                     would be true of a suit brought by a tribe that is within the
  However, both Moe and Winnebago must be distinguished              ambit of § 1362. But even if this is so, it cannot aid
from Chippewa’s suit, because in both of those cases the             Chippewa, because Chippewa is not an “Indian tribe or band,”
plaintiff was an “Indian tribe or band.” 28 U.S.C. § 1362.           as the statutory exception requires. It is merely a private
That is not the case here. The parties agree, and the district       corporation organized under a tribal jurisdiction. Certainly
court found, that Chippewa is “an Indian corporation                 Chippewa offers no reason to think the statutory exception
chartered under the laws of the Keweenaw Bay Indian                  should be construed more broadly with respect to comity than
Community, a federally recognized Indian tribe.” Chippewa,           with respect to the Tax Injunction Act. Nor can we discern
2003 U.S. Dist. LEXIS at *2.                                         any such rationale. Therefore, Chippewa cannot invoke §
                                                                     1362 as an exception to the limits imposed by the Fair
  Courts have held that, since the § 1362 exception to the Tax       Assessment comity principle. Accordingly, the comity
Injunction Act is limited by its terms to “civil actions brought     analysis set out in Part II, supra, remains applicable to
by [a recognized] Indian tribe or band,” it does not apply to        Chippewa’s action, and the district court properly declined to
suits by individual Indians or suits by private Indian               hear the action.
corporations. See Amarok Corp. v. State of Nev., 935 F.2d
1068 (9th Cir. 1991) (holding Moe not applicable to private,                                        IV
on-reservation, Indian-owned entity’s suit challenging state
taxation of work it performed on Indian trust land; Tax               For the foregoing reasons, the district court’s order is
Injunction Act barred jurisdiction); Dillon v. State of Mont.,       AFFIRMED.
634 F.2d 463 (9th Cir. 1980) (holding Moe not applicable to
Indians’ § 1983 action asserting that they were immune from
state personal income tax; Tax Injunction Act barred
jurisdiction).
