Tribal SovereigntyTribal SovereigntyWhy It Matters to YouWhy It Matters to You

October 25, 2007October 25, 2007Marty Loesch, Government AffairsMarty Loesch, Government Affairs

Swinomish Indian Tribal CommunitySwinomish Indian Tribal Communitymloesch@swinomish.nsn.usmloesch@swinomish.nsn.us

22October 25, 2007

My Goal TodayMy Goal Today

Define Tribal sovereignty and self Define Tribal sovereignty and self governance;governance;

Outline why Tribal sovereignty is an issue Outline why Tribal sovereignty is an issue for State regulatory agencies & Public for State regulatory agencies & Public Health Community; andHealth Community; and

Share the experiences of the state of Share the experiences of the state of Washington in “stepping up” to Washington in “stepping up” to sovereignty.sovereignty.

33October 25, 2007

Indian TribesIndian Tribes

An Indian Tribe is a distinct An Indian Tribe is a distinct political community.political community.

Indian Tribes are not Indian Tribes are not considered considered instrumentalities of the instrumentalities of the federal government.federal government.

Indian Tribes are not states Indian Tribes are not states nor are they local nor are they local governments.governments.

44October 25, 2007

Sovereignty is TrickySovereignty is Tricky

55October 25, 2007

What is Tribal What is Tribal Sovereignty?Sovereignty?

Sovereignty - the right or power that comes from Sovereignty - the right or power that comes from itself, and no other source, that a government itself, and no other source, that a government draws upon to govern. draws upon to govern.

Federally recognized Indian Tribes enjoy all inherent Federally recognized Indian Tribes enjoy all inherent powers of a sovereign nation, except those powers powers of a sovereign nation, except those powers Congress has specifically removed.Congress has specifically removed.

66October 25, 2007

Tribal Sovereignty…Its Tribal Sovereignty…Its Real.Real.

Tribal sovereignty is:Tribal sovereignty is: Inherent (predates US Inherent (predates US

government).government). Not granted by any Not granted by any

government.government. Recognized in treaties, Recognized in treaties,

court decisions, and the US court decisions, and the US Constitution.Constitution.

Separate and independent Separate and independent from the federal and state from the federal and state governments.governments.

Subject to some limitations.Subject to some limitations.

77October 25, 2007

29 Indian Tribes are Located 29 Indian Tribes are Located Within the State of Washington Within the State of Washington

88October 25, 2007

Minnesota TribesMinnesota Tribes

99October 25, 2007

Sovereign Powers of a Tribe Sovereign Powers of a Tribe Includes:Includes:

The power to determine the form of The power to determine the form of government, government,

Define the conditions of membership, Define the conditions of membership, Regulate domestic relations among its Regulate domestic relations among its

members,members, Prescribe rules of inheritance,Prescribe rules of inheritance, Levy taxes on members and nonmembersLevy taxes on members and nonmembers Control entry onto Tribal lands,Control entry onto Tribal lands, Regulate the use and distribution of Tribal Regulate the use and distribution of Tribal

property, andproperty, and Administer justice among members of the Administer justice among members of the

Tribe.Tribe.

1010October 25, 2007

U.S. Constitution: U.S. Constitution: Commerce ClauseCommerce Clause

““The Congress shall have power…to The Congress shall have power…to regulate commerce with foreign nations, regulate commerce with foreign nations, and among the several states, and with and among the several states, and with the Indian Tribes.”the Indian Tribes.”

This clause is the basis for Congressional This clause is the basis for Congressional Authority to pass laws dealing with Tribes Authority to pass laws dealing with Tribes and for the Government to Government and for the Government to Government relationship.relationship.

1111October 25, 2007

U.S. Constitution: U.S. Constitution: Supremacy Clause - TreatiesSupremacy Clause - Treaties

““This Constitution, and the laws of the United This Constitution, and the laws of the United States which shall be made in pursuance States which shall be made in pursuance thereof; and all treaties made, or which shall thereof; and all treaties made, or which shall be made, under the authority of the United be made, under the authority of the United States, shall be the supreme law of the States, shall be the supreme law of the land…”land…”

Treaties between Indian Tribes and the federal Treaties between Indian Tribes and the federal government enjoy legal superiority over any government enjoy legal superiority over any conflicting provisions of a state constitution or conflicting provisions of a state constitution or law. They are the “supreme law of the land.”law. They are the “supreme law of the land.”

1212October 25, 2007

U.S. Constitution: U.S. Constitution: Treaty ClauseTreaty Clause

““No state shall enter into any treaty…”No state shall enter into any treaty…” ““He [The President] shall have power, by He [The President] shall have power, by

and with the advice and consent of the and with the advice and consent of the Senate, to make treaties, provided two-Senate, to make treaties, provided two-thirds of the Senators concur…”thirds of the Senators concur…”

Statutory rule of construction: Treaties Statutory rule of construction: Treaties are construed to the benefit of Tribes.are construed to the benefit of Tribes.

In 1871 Congress ended the practice of In 1871 Congress ended the practice of entering into treaties with the Indian entering into treaties with the Indian Tribes.Tribes. The federal government entered The federal government entered into more than 400 treaties with various into more than 400 treaties with various Indian Tribes from 1778 to 1871.Indian Tribes from 1778 to 1871.

1313October 25, 2007

Washington State Washington State ConstitutionConstitution

The following ordinance shall be irrevocable The following ordinance shall be irrevocable without the consent of the United States and the without the consent of the United States and the people of this state: people of this state:

First. That perfect toleration of religious sentiment First. That perfect toleration of religious sentiment shall be secured….shall be secured….

Second. That the people inhabiting this state do Second. That the people inhabiting this state do

agree and declare that they forever disclaim all agree and declare that they forever disclaim all right and title to … all lands lying within said limits right and title to … all lands lying within said limits owned or held by any Indian or Indian tribes; and owned or held by any Indian or Indian tribes; and … said Indian lands shall remain under the … said Indian lands shall remain under the absolute jurisdiction and control of the congress absolute jurisdiction and control of the congress of the United States ….; and that no taxes shall be of the United States ….; and that no taxes shall be imposed by the state on lands or property imposed by the state on lands or property therein… therein…

1414October 25, 2007

What is a Treaty?What is a Treaty?

The U.S. Supreme Court said:The U.S. Supreme Court said:

““A treaty, including one between the United A treaty, including one between the United States and an Indian tribe, is essentially a States and an Indian tribe, is essentially a contract between two sovereign nations.” contract between two sovereign nations.”

1515October 25, 2007

Treaty FactsTreaty Facts

A treaty is not a grant of rights to a Indian A treaty is not a grant of rights to a Indian Tribe. It is a grant of rights from the Tribe. It is a grant of rights from the Indian Tribe to the U.S. government, and a Indian Tribe to the U.S. government, and a “reservation of rights” not granted. “reservation of rights” not granted.

Rights not granted are called “reserved Rights not granted are called “reserved rights.” rights.”

Treaty rights do not diminish with the Treaty rights do not diminish with the passage of time, periods of nonuse, or passage of time, periods of nonuse, or changes in technology. Some treaty rights changes in technology. Some treaty rights extend outside of reservation boundaries.extend outside of reservation boundaries.

1616October 25, 2007

Geography Is a Strong Geography Is a Strong Component of Sovereign Component of Sovereign

AuthorityAuthority

Indian CountryIndian Country Indian ReservationIndian Reservation Trust LandTrust Land Fee LandFee Land

1717October 25, 2007

Why Learn About Tribal Why Learn About Tribal Authority?Authority?

Both state and Tribal governments have Both state and Tribal governments have inherent authority to impose taxes.inherent authority to impose taxes.

State and Tribal governments’ authority to State and Tribal governments’ authority to tax is not the same but does overlap in tax is not the same but does overlap in some instances.some instances.

We are taxing the same people, regulating We are taxing the same people, regulating in the same geographic area, and have in the same geographic area, and have similar jurisdiction.similar jurisdiction.

And, some state taxes are preempted by And, some state taxes are preempted by Federal Law.Federal Law.

1818October 25, 2007

Tribal Authority to Tax Tribal Authority to Tax NonIndiansNonIndians

On Trust land:On Trust land: Tribal authority to tax nonmembers on Tribal authority to tax nonmembers on

trust land is generally accepted. trust land is generally accepted.

On Fee land within the Reservation:On Fee land within the Reservation: Tribal authority to tax nonmembers on Tribal authority to tax nonmembers on

fee land within the Reservation is fee land within the Reservation is evaluated under the U.S. Supreme evaluated under the U.S. Supreme Court’s Court’s MontanaMontana test. test.

1919October 25, 2007

Tribal Authority to Tax Tribal Authority to Tax NonIndians on Fee Land - NonIndians on Fee Land -

Montana TestMontana Test

A Tribe can regulate non-members on fee A Tribe can regulate non-members on fee land in Indian Country if:land in Indian Country if:

The nonmember enters into consensual The nonmember enters into consensual relationships with the tribe or its members; relationships with the tribe or its members; oror

The nonmember’s conduct threatens or has The nonmember’s conduct threatens or has some direct effect on the political integrity, some direct effect on the political integrity, economic security, or health or welfare of economic security, or health or welfare of Tribe.Tribe.

2020October 25, 2007

Tribal Authority to Tax Non-Tribal Authority to Tax Non-Indians on Trust Land - Indians on Trust Land -

ColvilleColville

“…“…a fundamental attribute of Tribal a fundamental attribute of Tribal sovereignty.”sovereignty.”““At the outset, the State argues that the Colville, At the outset, the State argues that the Colville, Makah, and Lummi Tribes have no power to Makah, and Lummi Tribes have no power to impose their cigarette taxes on nontribal impose their cigarette taxes on nontribal purchasers. We disagree. The power to tax purchasers. We disagree. The power to tax transactions occurring on trust lands and transactions occurring on trust lands and significantly involving a tribe or its members is a significantly involving a tribe or its members is a fundamental attribute of sovereignty which the fundamental attribute of sovereignty which the tribes retain unless divested of it by federal law or tribes retain unless divested of it by federal law or necessary implication of their dependent status.” necessary implication of their dependent status.” Washington v. Confederated Tribes of the Colville Washington v. Confederated Tribes of the Colville ReservationReservation, 447 U.S. 134, 152 (1980) , 447 U.S. 134, 152 (1980)

2121October 25, 2007

State Authority to TaxState Authority to Tax

The state has authority over non-Tribal The state has authority over non-Tribal members, including within Indian Country.members, including within Indian Country.

Authority to tax nonIndians may be Authority to tax nonIndians may be preempted under the balancing test.preempted under the balancing test.

State and local governments have no State and local governments have no authority to tax Tribes or their members in authority to tax Tribes or their members in Indian Country, unless authorized by Indian Country, unless authorized by Congress.Congress. This is true throughout Indian Country This is true throughout Indian Country

and outside Indian Country for treaty and outside Indian Country for treaty issues.issues.

2222October 25, 2007

Federal PreemptionFederal Preemption

Federal Preemption of state and local authority:Federal Preemption of state and local authority:

Preemption is determined using a balancing test Preemption is determined using a balancing test –Tribal and federal interests are combined and –Tribal and federal interests are combined and are weighed against state interests. This are weighed against state interests. This analysis is very fact specific.analysis is very fact specific.

2323October 25, 2007

State and Tribal Interests Overlap State and Tribal Interests Overlap – – For Instance:For Instance:

Tribal economic Tribal economic development involves development involves doing business with doing business with nonIndians.nonIndians.

The state has leverage The state has leverage over and access to over and access to nonIndians.nonIndians.

Tribal successes in Tribal successes in enterprise activities enterprise activities require certainty in require certainty in business arrangements.business arrangements.

2424October 25, 2007

Factors That Contribute To Factors That Contribute To Litigation Also Contribute To Litigation Also Contribute To

CollaborationCollaboration U.S. Supreme Court rulings lack clarity (so there U.S. Supreme Court rulings lack clarity (so there

is a need for bright lines and a current law is a need for bright lines and a current law baseline.)baseline.)

Jurisdictional imperatives (and concurrent Jurisdictional imperatives (and concurrent jurisdiction begs for communication.)jurisdiction begs for communication.)

Fundamental disagreements (should not stop Fundamental disagreements (should not stop practical discussion of interests.) practical discussion of interests.)

Evolving areas of law and Tribal governments Evolving areas of law and Tribal governments and Tribal enterprises (highlight mutual and Tribal enterprises (highlight mutual interests.)interests.)

History of state opting for litigation (was proven History of state opting for litigation (was proven unsuccessful in cigarette regulation.)unsuccessful in cigarette regulation.)

2525October 25, 2007

Why It Matters OverallWhy It Matters Overall

Sovereignty is the Law.Sovereignty is the Law. Conflict is costly.Conflict is costly. Legal authority isn’t Legal authority isn’t

clear cut and risk exists clear cut and risk exists for both parties.for both parties.

Establishing trust & Establishing trust & working relationship working relationship benefits everyone.benefits everyone.

Cooperative Cooperative agreements agreements accommodate interests.accommodate interests.

2626October 25, 2007

Three Converging Tracks Three Converging Tracks Lead to Change in Overall Lead to Change in Overall

ApproachApproach

Colville Case – 1980 (end result – 19 Colville Case – 1980 (end result – 19 cigarette compacts).cigarette compacts).

Centennial Accord – 1989 (end result – Centennial Accord – 1989 (end result – open and accessible).open and accessible).

Tax Policies through Administrative Tax Policies through Administrative Practices – 1995 (end result – current law Practices – 1995 (end result – current law practices versus litigation positions).practices versus litigation positions).

2727October 25, 2007

1980 Colville Case –1980 Colville Case –Huge Win on its FaceHuge Win on its Face

Tribal members exempt from state Tribal members exempt from state taxes on sales within reservation.taxes on sales within reservation.

State may require Indian retailer to State may require Indian retailer to affix state stamp to cigarettes.affix state stamp to cigarettes.

The state can seize cigarettes in The state can seize cigarettes in transit to smokeshop.transit to smokeshop.

The Tribe can tax nonIndians buying The Tribe can tax nonIndians buying cigarettes from Tribal smokeshops.cigarettes from Tribal smokeshops.

Silent on methods to enforce collection Silent on methods to enforce collection of state taxes.of state taxes.

2828October 25, 2007

Hollow VictoryHollow Victory

Absolutely no value in ending the conflict.Absolutely no value in ending the conflict.

Collections do not increase.Collections do not increase.

Tensions do increase.Tensions do increase.

Relationships in general worsen.Relationships in general worsen.

2929October 25, 2007

Cigarette Compact Cigarette Compact Breakthrough – Breakthrough – State’s State’s

Interests ChangeInterests Change

In May 2001 there were zero compacts.In May 2001 there were zero compacts. By May 2005 the Governor had signed compacts with 19 By May 2005 the Governor had signed compacts with 19

of the 29 Tribes in the State and more are on the way.of the 29 Tribes in the State and more are on the way.

In 2001 the Washington State Legislature authorized the Governor to enter into cigarette compacts with certain Indian Tribes. The Department of Revenue was delegated the responsibility to negotiate and recommend to the Governor (RCW 43.06.450-460).

3030October 25, 2007

Centennial AccordCentennial Accord

1989 Historic Document – 1989 Historic Document – Signed between federally recognized tribes in WA Signed between federally recognized tribes in WA

and the Governor.and the Governor. Framework – Framework –

Government to Government relationship.Government to Government relationship. Guidelines – Guidelines –

Establishment of mutual goals through improved Establishment of mutual goals through improved relationships between sovereign governments.relationships between sovereign governments.

3131October 25, 2007

Administrative Practices to Administrative Practices to Provide Business CertaintyProvide Business Certainty

Preemption and balancing test.Preemption and balancing test.Indian Trader.Indian Trader.Value generated on the reservation.Value generated on the reservation.Treaty rights (Treaty Fishery Project).Treaty rights (Treaty Fishery Project).

Took dusty and neglected case law off the shelves and invigorated them.

3232October 25, 2007

Best Practices for State Best Practices for State AgenciesAgencies

Internally –Internally – Develop a strategy to change agency Develop a strategy to change agency

culture.culture. Institutionalize accessibility and openness.Institutionalize accessibility and openness. Evaluate policy positions versus litigation Evaluate policy positions versus litigation

positions.positions.

Externally –Externally – Communicate proactively and share Communicate proactively and share

information.information. Be open minded about solutions.Be open minded about solutions. Foster a genuine interest in well being.Foster a genuine interest in well being. Take reasonable risks.Take reasonable risks. Find someone to talk to; build a relationship.Find someone to talk to; build a relationship.

3333October 25, 2007

Best Practices for AdvocatesBest Practices for Advocates If you care about what’s happening If you care about what’s happening

on Reservations, include Tribal on Reservations, include Tribal Governments in planning just like Governments in planning just like State & Federal GovernmentsState & Federal Governments

Two tracks: Prevention/Cessation & Two tracks: Prevention/Cessation & Policy ChangePolicy Change

Build relationshipsBuild relationships

3434October 25, 2007

What Is on the Horizon for What Is on the Horizon for Washington State & Tribes?Washington State & Tribes?

Tribal Sovereignty Workshops – seven locations Tribal Sovereignty Workshops – seven locations throughout the state, partnership between Tribes, throughout the state, partnership between Tribes, Governor’s Office, DOR, and the Business Community.Governor’s Office, DOR, and the Business Community.

Tribal Tax Workgroup - Framing up concurrent Tribal Tax Workgroup - Framing up concurrent jurisdiction and the Tribal tax base.jurisdiction and the Tribal tax base.

Cigarette Issues – Emphasis on issues of price control Cigarette Issues – Emphasis on issues of price control and tobacco cessation.and tobacco cessation.