Chippewa Trading Co., an Indian corporation chartered v. Michael Cox, an individual in his official capacity as Attorney General of the State…

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

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No. 03-1445 Chippewa Trading Co. v. Cox, et al. 3
International Native Company (INC), an Indian company
located on a reservation in New York. The truck’s driver was
Andrew Arch, the president of another Indian shipping
company. The state police seized the tobacco products on
Arch’s truck because they carried no tobacco tax stamps,
which is a violation of TPTA.
When such a seizure occurs, the TPTA statutory scheme
requires police to give notice to “the person from whom the
seizure was made.” Mich. Comp. Laws § 205.429(3). The
statute allows “any person claiming an interest in the
property” to challenge the seizure in an administrative
hearing, but such a challenge must be made within “10
business days after the date of service of the [notice].” Ibid.
After this deadline, “the property seized [is] considered
forfeited to the state by operation of law.” Ibid. The result of
an administrative hearing challenging a TPTA seizure may be
appealed to a Michigan circuit court. See § 205.429(4).
After seizing Arch’s shipment, the state police sent written
notice of the seizure to INC, the shipper, whom they believed
to be the owner of the shipment. In fact, Chippewa, the
buyer, had prepaid for the goods. No written notice was sent
to Chippewa. However, Chippewa received actual notice of
the seizure (from Arch) within four days after it occurred.
Chippewa Trading Co. v. Granholm, No. 2:02-CV-68, 2003
U.S. Dist. LEXIS 10790, at *3 (W.D. Mich. Mar. 28, 2003).
The only party to contest this seizure at the administrative
level was INC, which was represented by the same attorney
who represents Chippewa in this federal proceeding. In
October 2001, the administrative referee concluded that the
products seized from Arch’s truck were contraband that
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
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its property has been seized, only the person from whom the
seizure is made. The state court dismissed this action on
February 8, 2002, on the ground that Chippewa lacked
standing.
In January 2002, while that appeal was still pending in the
12th Circuit Court, the State Police seized another shipment
of tobacco products without stamps en route to Chippewa.
Chippewa challenged this second TPTA seizure at the
administrative level, lost, and appealed that decision to
Michigan’s 41st Circuit Court. On September 4, 2002, the
41st Circuit Court held a scheduling hearing on the appeal
and ordered that Chippewa’s due process claim would be
heard on October 11, 2002. However, shortly thereafter,
Chippewa voluntarily dismissed the action in the 41st Circuit
Court.
Meanwhile, in April 2002, Chippewa filed the present
action in federal district court, challenging the seizure from
Arch in August 2001. Chippewa’s original complaint sought
declaratory and injunctive relief under 42 U.S.C. § 1983, plus
attorney’s fees. Its only claim was that the TPTA forfeiture
scheme should be enjoined as a violation of due process,
because of the notice defects that Chippewa had alleged in the
12th Circuit Court proceeding. In October 2002, Chippewa
filed a supplemental brief in support of summary judgment
that raised further constitutional claims: namely, that the
application of TPTA to an Indian entity such as Chippewa
violated the Supremacy Clause, U.S. Const., art. VI, cl. 2, the
Indian Commerce Clause, U.S. Const., art. I, § 8, cl. 3, and
the terms of the federal government’s 1842 Treaty with the
Chippewa, 7 Stat. 591.

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No. 03-1445 Chippewa Trading Co. v. Cox, et al. 5
1W e will refer to the defendants, state officials sued in their official
capacities, as the State. Defendant Cox has been automatically substituted
for his predecessor, Jennifer M. Granholm, pursuant to Fed. R. App. P.
43(c)(2). Plaintiff’s complaint also named June Sum mers H aas as a
defendant in her official capacity, at the time, as Commissioner of
Revenue in Michigan’s Department of the Treasury. However, Michigan
has recently abolished the position of Commissioner of Revenue . The
Commissioner’s duties with respect to tax collection have reverted to 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
§ 205.35. We have acco rdingly substituted Jay B. Rising, the current
Treasurer, for M s. Haas.
In our view, Fed. R. App. P. 43(c)(2) confers on the courts of appeals
the power and obliga tion to look beyond an alteration in title or transfer
of authority during the pendency of an appeal, and to substitute the new
official who succeeds to the relevant responsibilities of a former official
who was a p arty. Such autho rity has long been recognized under Fed. R.
Civ. P. 25 (d), the virtually identical rule that governs the automatic
substitution of pub lic officials in proceedings in the federal district courts.
Air Line P ilots Ass’n, Intern. v. Civil Aeronautics Bd., 750 F.2d 81, 87
(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,
407 U .S. 451 (1972 ); Porter v. Am. Distilling Co., 71 F. Supp. 483, 489
(S.D.N.Y. 1947) (“The title of the individual office is of no importance,
if, in fact, the powers and duties of the predecessor have been conferred
upon the successor.”) (quotation marks omitted).
The State1 moved to dismiss Chippewa’s federal action on
the grounds that the district court lacked jurisdiction under the
Tax Injunction Act, the Eleventh Amendment, and principles
of comity. The district court granted the State’s motion on
the basis of comity, without addressing the other proposed
bases for dismissal. It held that because “the relief requested,
invalidation of and/or injunction against all or part of the
TPTA, would unduly interfere with the fiscal operations and
independence of the State of Michigan and its system of
taxation,” dismissal was proper. Chippewa, 2003 U.S. Dist.
LEXIS 10790 at *10. The court further held that Chippewa’s
case did not implicate the exception to the comity doctrine
that applies when there is no “plain, adequate and complete”
remedy available at state law. Id. at *11 (citing Fair
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2“The district co urts shall no t enjoin, suspend or restrain the
assessm ent, levy or collection of any tax under State law where a plain,
speedy and efficient remedy may be had in the courts of such State.”
Ibid.
Assessment, 454 U.S. at 116). The court noted that the state
offered two avenues for relief: First, TPTA itself provides an
administrative procedure to challenge forfeitures. Second,
Michigan’s courts are authorized to hear and decide
constitutional challenges to state tax laws, though they cannot
prospectively enjoin the assessment or collection of a tax. See
id. at **12-13.
Chippewa timely appealed the district court’s order to this
court. Our review of a district court’s decision on abstention
is de novo. Baskin v. Bath Twp. Bd. of Zoning Appeals, 15
F.3d 569, 571 (6th Cir. 1994).
II
A
As the district court recognized, Chippewa’s action
implicates a broad federal common-law principle of comity
that governs constitutional challenges to state tax
administration. This principle, which stems chiefly from Fair
Assessment and Great Lakes Dredge & Dock Co. v. Huffman,
319 U.S. 293 (1943), prohibits “taxpayers . . . from asserting
§ 1983 actions against the validity of state tax systems in [the
lower] federal courts.” Fair Assessment, 454 U.S. at 116. In
such cases, a federal court should normally abstain from
hearing the action as long as there is a “plain, adequate, and
complete” remedy available to the plaintiff in state court.
Ibid. While this comity principle reflects some of the same
concerns that led Congress to enact the Tax Injunction Act, 28
U.S.C. § 1341,2 it stands on its own bottom, and extends to
cases seeking monetary damages as well as injunctive or other
equitable relief. Fair Assessment, 454 U.S. at 110; In re
Gillis, 836 F.2d 1001, 1006 (6th Cir. 1988) (comity principle

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No. 03-1445 Chippewa Trading Co. v. Cox, et al. 7
3W e are cognizant that in Winn v. Killian, 307 F.3d 10 11 (9th Cir.
2002), the Ninth Circuit Court of Appeals held that neither the Tax
Injunction Act no r the broad er comity principle o f Fair Assessment
is “substantially broader” than bar imposed by Tax Injunction
Act). At the same time, relief in federal court remains
potentially available in such cases through direct review by
the United States Supreme Court of any final state court
judgment on a constitutional challenge to a tax. Fair
Assessment, 454 U.S. at 116.
Previous holdings make clear that Chippewa’s suit
threatens a level of interference with Michigan’s tax scheme
that is enough to implicate the comity principle. See id. at
114-15 (holding that comity barred § 1983 suit against county
tax assessors challenging alleged overassessment of the value
of improved real estate; suit would have chilling effect on
county tax officials); Gillis, 836 F.2d at 1008 (comity barred
federal declaratory action claiming that Kentucky tax
authorities violated equal protection by systematically
underassessing property in the form of coal, oil, and gas
interests). Here, Chippewa’s Due Process Clause claim
challenges the forfeiture provisions of TPTA on their face.
This claim seeks to disable the basic enforcement mechanism
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
to the applicability of state tax laws to a class of potential
taxpayers also implicate comity. See Great Lakes, 319 U.S.
at 294, 297 (holding that comity barred federal declaratory
action on behalf of Louisiana barge owners claiming that
federal maritime law pre-empted Louisiana’s business excise
tax as applied to them); see also ACLU Found. of La. v.
Bridges, 334 F.3d 416 (5th Cir. 2003) (holding that Tax
Injunction Act barred federal suit challenging state’s grant of
tax exemptions to religious institutions).3
8 Chippewa Trading Co. v. Cox, et al. No. 03-1445
applied to bar a taxpayer’s federal suit challenging Arizona’s grant of tax
credits to parochial schools. Id. at 1018-20. Despite the Supreme Court’s
broad articulation of the comity principle in Fair Assessment, see, e.g.,
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
systems in federal courts.”), the Winn court concluded that comity did not
app ly to a § 1 983 suit challenging the validity of a state tax credit in
federal court, since, if successful, the suit would result in a state collecting
more tax revenue than it otherwise would. 307 F.3d at 1018-20.
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)
(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 support for C hippewa’s position here. Chippewa’s suit
does not challenge a tax credit, but seeks to enjoin the State from
collecting tobacco taxes on Chippewa’s shipments.
The Supreme Court has granted certiorari to review the Ninth
Circuit’s decision in the Winn case. Hibbs v. Winn, 124 S. Ct. 45 (2003 ).
B
Chippewa argues that abstention is nevertheless improper
because Chippewa lacks a “plain, adequate, and complete”
state remedy by which to pursue its federal challenge to
Michigan’s tobacco tax scheme. Fair Assessment, 454 U.S.
at 116; Gillis, 836 F.2d at 1009. The Supreme Court has held
that there is “no significant difference” between the Tax
Injunction Act’s requirement of a “plain, speedy, and efficient
remedy” and the judge-made requirement that there be a
“plain, adequate, and complete” state remedy in order for the
principle of comity to apply. Fair Assessment, 454 U.S. at
116 n.8. In both cases the standard “require[s] a state court
remedy that meets certain minimal procedural criteria.”
Rosewell v. LaSalle Nat’l Bank, 450 U.S. 503, 512 (1981)
(emphasis in original); Gillis, 836 F.2d at 1010. State
“remedies are plain, adequate, and complete if they provide
the taxpayer with a full hearing and judicial determination at
which the taxpayer may raise any federal constitutional
objections to the tax.” Ibid.

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No. 03-1445 Chippewa Trading Co. v. Cox, et al. 9
Chippewa contends that the due process problems that it
identifies in TPTA’s notice provisions obstruct meaningful
review of improper seizures, and thus deprive it of a plain,
adequate, and complete remedy.
We disagree. Chippewa has not meaningfully contested the
district court’s conclusion that it has an independent state
remedy, quite apart from the TPTA administrative procedure,
in the form of a direct constitutional challenge to the tax
scheme in state court. Such a constitutional challenge may be
brought in the Michigan circuit courts in the first instance.
Kostyu v. Dep’t of Treasury, 427 N.W.2d 566, 568 (Mich. Ct.
App. 1988); Joy Mgmt. Co. v. City of Detroit, 440 N.W.2d
654, 657 (Mich. Ct. App. 1989), overruled in part on other
grounds, City of Detroit v. Walker, 520 N.W.2d 135, 142
(1994); see Smith v. Cliffs on the Bay Condominium Ass’n,
617 N.W.2d 536 (Mich. 2000) (hearing challenge to notice
provisions of tax statute on federal and state due process
grounds). A plaintiff may also bring a § 1983 injunctive
action in the Michigan courts against state officials pursuant
to the Ex Parte Young doctrine. See Jones v. Powell, 612
N.W.2d 423, 425 (Mich. 2000); Bay Mills Indian Community
v. State, 626 N.W.2d 169, 175 (Mich. Ct. App. 2001). The
availability of a § 1983 action in state court significantly
supports federal court abstention under the comity doctrine.
Fair Assessment, 454 U.S. at 116-17; Long Island Lighting
Co. v. Town of Brookhaven, 889 F.2d 428, 432-33 (2d Cir.
1989).
To the extent that Chippewa argues that the alleged notice
defects in the TPTA seizure process will obstruct it from
bringing suit in Michigan courts by one of these avenues, and
that the interaction between the relevant administrative and
legal frameworks thereby renders the state court remedies
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
whom a seizure is made need be sent a written notice – with
a short deadline: seizures must be contested within 10
10 Chippewa Trading Co. v. Cox, et al. No. 03-1445
4In 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
provide it with notice of any seizure.
business days of service of the notice. But the fact remains
that the person from whom the contraband was seized (here,
Arch, the truck driver) is extremely likely to notify his
superiors of the seizure in a timely fashion.
Even in a situation like the present case, where the party
who would arguably bear the financial risk of the seizure does
not employ the person from whom the seizure was made, it is
still highly probable that the party at risk will find out
promptly. In all likelihood, the seizure will be discovered in
time to contest it under TPTA, and it will unquestionably be
discovered within the three-year Michigan statute of
limitations period, Mich. Comp. Laws § 600.5805(10), that is
borrowed for § 1983 claims, see Carroll v. Wilkerson, 782
F.2d 44 (6th Cir. 1986) (per curiam). When a shipment fails
to arrive, or a delivery truck pulls up with no cigarettes in the
trailer, a reasonable party in Chippewa’s shoes will make
rather prompt inquiries to find out what happened.4 Indeed,
that seems to have occurred here. Chippewa admitted to the
district court that it received actual notice that its August 2001
shipment had been seized under TPTA within four days of the
seizure.
We note in this connection that Michigan does not require
exhaustion of administrative remedies before filing suit in
circuit court when – as would be true of the claims Chippewa
asserts here – the plaintiff’s action raises only constitutional
issues, which fall outside of the competence of administrative
tribunals. See Papas v. Mich. Gaming Control Bd., 669
N.W.2d 326, 334 (Mich. Ct. App. 2003) (“There is no sense
in forcing a plaintiff to plod through the lengthy
administrative process when only the courts have the
authority to resolve the controlling constitutional issue.”)
(quotation marks omitted) (citing authorities). In Gillis, we

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No. 03-1445 Chippewa Trading Co. v. Cox, et al. 11
5In Rosewe ll, the Supreme Court upheld as “plain, speedy, and
efficient” a Cook County, Illinois, remedy for challenging tax assessments
that required protesto rs to pre-pay their taxes. If successful, the taxpayers
would receive their refund witho ut interest after a typical delay of two
years. See 450 U.S. at 510 , 528 .
held that a plain, adequate, and complete state remedy existed
for plaintiff’s equal protection challenge in the courts of
Kentucky, in part because Kentucky law would not require
the plaintiff to exhaust administrative procedures in order to
raise his constitutional challenge. 836 F.2d at 1011. Similar
reasoning applies here. We are also confident that Michigan
would apply the same rule to a claim involving the
application of a federal treaty, such as Chippewa’s claim here
under the 1842 Treaty with the Chippewa.
Federal courts are to take a narrow view of the “no plain,
speedy, and efficient remedy” exception to the Tax Injunction
Act. California v. Grace Brethren Church, 457 U.S. 393, 413
(1982); Amos v. Glynn County Bd. of Tax Assessors, 347 F.3d
1249, 1256 (11th Cir. 2003). That exception, in turn, has
been described by the Supreme Court as essentially
equivalent to the “no plain, adequate, and complete remedy”
exception that we must apply here. Fair Assessment, 454
U.S. at 116 n.8.5 Here, the opportunity to raise its
constitutional claims in state court plainly gives Chippewa “a
full hearing and judicial determination” at which it may “raise
any federal constitutional objections to the tax.” Gillis, 836
F.2d at 1010. Thus, we hold that Chippewa’s state remedies
are plain, adequate, and complete under Fair Assessment and
related case law.
12 Chippewa Trading Co. v. Cox, et al. No. 03-1445
III
Finally, Chippewa asserts that our comity analysis must
reach a different result because Chippewa is an Indian
corporation. Sifting the various arguments in Chippewa’s
briefs, we can say that the company wants us to reverse the
district court’s comity ruling on the authority of 28 U.S.C. §
1362; Moe v. Confed. Salish & Kootenai Tribes, 425 U.S. 463
(1976); and Winnebago Tribe of Neb. v. Stovall, 341 F.3d
1202 (10th Cir. 2003).
Moe involved facts similar in a number of respects to those
here. An Indian tribe brought suit in federal district court
challenging, inter alia, the application of Montana tobacco
sales taxes and tobacco vendor licensing requirements to
Indians on reservations. 425 U.S. at 466-69. The state argued
that the Tax Injunction Act required federal court abstention.
A three-judge district court disagreed, heard the case, and
invalidated some of the tax provisions at issue. Id. at 469.
The Supreme Court affirmed. It noted that a key statutory
provision, 28 U.S.C. § 1362, provides that “the district courts
shall have jurisdiction of all civil actions, brought by any
Indian tribe or band . . . duly recognized by the Secretary of
the Interior, wherein the matter in controversy arises under
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
criminal proceedings against the plaintiffs, who included
members of the tribe and tribal officials. Id. at 1204. The
Winnebago Tribe itself, along with the other plaintiffs, sued
Kansas for declaratory and injunctive relief. Ibid. As

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No. 03-1445 Chippewa Trading Co. v. Cox, et al. 13
relevant here, the Tenth Circuit held that the district court was
not required to abstain from hearing the suit under the
doctrine of Younger v. Harris, 401 U.S. 37 (1971). See
Winnebago Tribe of Neb. v. Stovall, 216 F. Supp. 2d 1226 (D.
Kan. 2002). The Tenth Circuit agreed with the district court
that “the second Younger requirement – implication of an
important state interest – had not been met.” Winnebago, 341
F.3d at 1204.
In Winnebago, the Tenth Circuit discussed neither the Tax
Injunction Act nor the comity principle of Fair Assessment.
It is likely that Kansas simply did not attempt to raise these
authorities as a bar to hearing the Tribe’s suit, for on the facts
of the Winnebago case, they were clearly inapplicable in light
of Moe and 28 U.S.C. § 1362.
However, both Moe and Winnebago must be distinguished
from Chippewa’s suit, because in both of those cases the
plaintiff was an “Indian tribe or band.” 28 U.S.C. § 1362.
That is not the case here. The parties agree, and the district
court found, that Chippewa is “an Indian corporation
chartered under the laws of the Keweenaw Bay Indian
Community, a federally recognized Indian tribe.” Chippewa,
2003 U.S. Dist. LEXIS at *2.
Courts have held that, since the § 1362 exception to the Tax
Injunction Act is limited by its terms to “civil actions brought
by [a recognized] Indian tribe or band,” it does not apply to
suits by individual Indians or suits by private Indian
corporations. See Amarok Corp. v. State of Nev., 935 F.2d
1068 (9th Cir. 1991) (holding Moe not applicable to private,
on-reservation, Indian-owned entity’s suit challenging state
taxation of work it performed on Indian trust land; Tax
Injunction Act barred jurisdiction); Dillon v. State of Mont.,
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).
14 Chippewa Trading Co. v. Cox, et al. No. 03-1445
To be sure, it is reasonable to assume that § 1362 exempts
suits from the Fair Assessment comity doctrine to the same
extent that it exempts them from the Tax Injunction Act. As
the Supreme Court observed in Moe, the statutory exception
for Indian tribes in § 1362 was intended “to open the federal
courts to the kind of claims that could have been brought by
the United States as trustee, but for whatever reason were not
so brought.” 425 U.S. at 472. While there is little authority
bearing on the specific applicability of Fair Assessment to the
United States as trustee, it is generally true that “the presence
of the United States as a plaintiff . . . militate[s] strongly
against the applicability of abstention.” United States v. Pub.
Serv. Comm’n of Md., 422 F. Supp. 676, 679 (D. Md. 1976)
(three-judge court) (declining to abstain under R. Comm’n of
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
ambit of § 1362. But even if this is so, it cannot aid
Chippewa, because Chippewa is not an “Indian tribe or band,”
as the statutory exception requires. It is merely a private
corporation organized under a tribal jurisdiction. Certainly
Chippewa offers no reason to think the statutory exception
should be construed more broadly with respect to comity than
with respect to the Tax Injunction Act. Nor can we discern
any such rationale. Therefore, Chippewa cannot invoke §
1362 as an exception to the limits imposed by the Fair
Assessment comity principle. Accordingly, the comity
analysis set out in Part II, supra, remains applicable to
Chippewa’s action, and the district court properly declined to
hear the action.
IV
For the foregoing reasons, the district court’s order is
AFFIRMED.

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