Loren “Big Bat” Pourier
PIERRE, SOUTH DAKOTA –– A Pine Ridge Reservation business owner who stood to regain just over $28,000 in court-related costs and attorneys’ fees stemming from a decade-long legal battle with the state of South Dakota recently had the award reversed. Loren “Big Bat” Pourier, the sole shareholder and president of Muddy Creek Oil and Gas Inc., which owns and operates the Big Bat’s travel plazas in Pine Ridge Village, Hot Springs and Chadron, Neb., initially took legal action against the South Dakota Department of Revenue and Regulation in 2002 to protest a state-imposed motor fuel tax on the corporation, according to court documents. Following a lengthy series of motions and countermotions between Pourier and the Department of Revenue and Regulation within both the 6th Judicial Circuit Court, Hughes County, and the South Dakota Supreme Court, the lower court eventually awarded Pourier $28,006.67 in court costs and attorneys’ fees sometime after April 2010. However, in a Feb. 8 ruling on the matter, the state Supreme Court overturned the lower court’s decision. Pourier, who is Oglala Lakota, filed his latest motion with the 6th Judicial Court seeking compensation from the state entity in March of 2010. Beginning in 1995, Muddy Creek Oil and Gas paid a state tax on the gasoline it imported onto the reservation for sale at its Big Bat’s convenience store in Pine Ridge Village. Pourier originally brought the action against the taxation and regulatory department in the 6th Judicial Court. He sought a full refund of the motor fuel taxes paid to the department by Muddy Creek Oil and Gas. The case was eventually appealed to the South Dakota Supreme Court by Pourier. In 2003, the state Supreme Court declared that the fuel tax was illegal based on the Hayden-Cartwright Act of 1936. The act precludes states from enforcing state-enacted legislation in areas where federal jurisdiction presides, such as on Native American reservations. At the time, the court stated, in part, that the act “does not contain express congressional authorization for states to tax Indians located on Indian reservations” and Muddy Creek’s consumers “bore the legal incidence of the tax,” not Muddy Creek itself. As such, the corporation was “entitled to recover only the taxes paid on fuel purchased for the company’s own use.” Pourier subsequently filed a motion to amend his claim as a class action lawsuit, comprised of Oglala Sioux Tribe members who were also customers of his on-reservation store. His motion to amend was denied, with final affirmation of that decision by the state Supreme Court in 2010, on the grounds that South Dakota had not waived its sovereign immunity for a “class-action-refund lawsuit,” according to the most recent court documents. In handing down the latest decision in Pourier’s case, Chief Justice David Gilbertson and associate justices John Konenkamp and Lori Wilbur concurred that the 6th Judicial Circuit Court erred in finding that the Department of Revenue and Regulation’s position was not based in truth and had no reasonable legal basis. “States are not supposed to be able to apply their taxes on reservations,” said Tim Fallis, a member of the Crow Creek Sioux Tribe. “It is time that we – as the first peoples of this land that is now referred to as ‘America’ – tell states that we are tired of them pushing us around, and we’re not going to stand for it anymore,” he said. Pourier could not be reached for comment. South Dakota Supreme Court Decision:
Pourier v. Department of Revenue and Regulation (February 8, 2012) (Contact Jesse Abernathy at staffwriter@nsweekly.com)
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