Washington Tribes Win Gasoline Tax Compact Litigation

The Washington State Supreme Court has unanimously upheld a lower court ruling in a long-running lawsuit by non-tribal gas station owners challenging gas tax compacts negotiated in the past decade between the state and Indian tribes. The Supreme Court ruled that non-Indian gas station owners failed to prove that the payments to the tribes, which total about $30 million a year, were not refunds for taxes paid on motor vehicle fuels. “We also find no unconstitutional delegation of legislative power,” the court said in its 26-page opinion.

Under the current system, tribes agreed to buy taxed fuel to sell in their gas stations and the state agreed to refund a portion of the fuel tax receipted to the tribes. The agreements over the past decade have provided tribes refunds equal to 75 percent of the tax on fuel bought by tribal gas stations.

The Supreme Court was asked to decide if the tribal agreements violated Washington’s constitution, which limits the use of state fuel tax receipts to highway purposes, and whether the Legislature improperly delegated legislative authority to the governor to negotiate those agreements. The state constitution restricts gas-tax revenues for use on roads, but made an exception for refunds to taxpayers.

Gas station owners argued that tribes are not eligible for refunds of gas tax because they neither paid the taxes directly, as suppliers do, nor bear the ultimate burden of the tax, as drivers do.
Attorneys for the state argued that the case threatened to invalidate numerous other tax refunds the Legislature has created. For instance, refunds are available to people who buy fuel for non-highway uses such as construction and farming, among others.

In exchange for the refunds, tribes agreed not to get into the business of blending or wholesaling automotive fuel. Such a move would have made them directly responsible for tax collection and could trigger their immunity from taxes, which is the problem the Legislature sought to avoid by imposing taxes before the gas reached the pump.

Although non-Indian gas station owners contend that the state payments are used to undercut competition from their stations, and pointed to tribal gas stations that sell fuel cheaper than non-tribal stations, the tribes pointed out that some retailers, such as Costco and Safeway, sold gas at prices below tribal gas stations.


Tribes To Gain Access To Federal Law Enforcement Database Information

Federal officials have launched a new program that will allow tribes access to national criminal databases, to help fix a system that has frequent breakdowns in information sharing between tribes and outside law enforcement authorities. The Tribal Access Program for National Crime Information, or TAP, will allow federally recognized tribes to enter criminal records into and pull information out of national databases overseen by the Criminal Justice Information Services Division of the Federal Bureau of Investigation. In addition to letting tribes submit data, it will also allow them to conduct background checks when a tribe needs to place a child with a foster parent in an emergency situation — another area tribes have long sought to have fixed.

“Empowering tribal law enforcement with information strengthens public safety and is a key element in our ongoing strategy to build safe and healthy communities in Indian country,” Deputy Attorney General Sally Quillian Yates said. “The Tribal Access Program is a step forward to providing tribes the access they need to protect their communities, keep guns from falling into the wrong hands, assist victims, and prevent domestic and sexual violence.”

Michelle Demmert, a Tulalip Tribes attorney, said they’ve spent years working with federal officials to identify gaps in the criminal database system and this announcement seems to say “the Department of Justice and the Office of Tribal Justice has heard the tribe’s voice - the TAP program will reinforce the Tulalip Tribes’ commitment to using available tools to protect its community.”

Swinomish Chairman Brian Cladoosby, President of the National Conference of American Indians, said the plan “responds to a long-standing public safety concern in Indian Country.
Today’s announcement is an encouraging step, and we hope that the new DOJ Tribal Access Program will lead to real change and meaningful solutions - The safety of our communities depends on it.”

The Bureau of Indian Affairs also announced that it and the Office of Justice Services have created another new program that will give tribal social service agencies 24-hour access to criminal history records to ensure the safe placement of children in foster care. Demmert praised that move, saying the Tulalip Tribes “is encouraged that our ability to protect our most vulnerable population — children — in times of crisis will be assisted with this work around issue to access name-based criminal history records when children need to be placed out of the home.” Francesca Hillary, spokeswoman for the Tulalip Tribes, has said tribes have been asking for a system to access the national databases for years. Justice officials said they’ve been working with tribes to resolve the roadblocks that kept a system from working effectively.

The FBI oversees a justice information services system in all 50 states. The system includes the National Crime Information Center, used by law enforcement to get data on stolen property, wanted people and sex offenders, and the National Instant Criminal Background Check System, used by Federal Firearms Licensees during gun purchases. To date, the systems have been available to federal, state and local law enforcement but not to all tribes. The TAP program will support and train tribes as they connect with the system. Once established, they’ll be able to use the databases in the same way as outside law enforcement.


Oil Companies To Finance Tribal Salmon Habitat Cleanup

ExxonMobil Oil Corp., BP Products North America Inc., Shell, and over 50 other businesses will work together to clean up a Superfund site as part of a settlement agreement with the U.S. Department of Justice and the Puyallup Tribe of Indians and the Muckleshoot Indian Tribe. The agreement addresses historical hazardous waste dumping in a Tacoma-area bay that is connected to the Tribes’ fishing areas.

The companies will provide funding to restore 121 miles of salmon habitat along the Lower White River which feeds into Commencement Bay, a registered Superfund site. In addition to restoring the habitat, the cleanup will help prevent flooding in nearby residential areas, and the parties have agreed to contribute a collective $1 million for future monitoring at the site.

“This settlement is an important step toward repairing damaged natural resources from pollution in Commencement Bay,” Assistant Attorney General John C. Cruden said. The agreement ends a federal lawsuit that asserted blame for the pollution against dozens of companies that presently own or used to own facilities alongside the bay, which has tested for high levels of PCBs, PAHs, cadmium, lead and zinc.


Northwest Tribes Win Major Fishing Rights Ruling


A federal judge has issued a favorable ruling for the Quileute and Quinault tribes in a dispute over the extent of their ancestral fishing grounds, ruling that the Quileute and Quinault's fishing grounds extend to where they historically harvested marine mammals. At issue in the case was the harvesting of Pacific Whiting in a particular fishery, which the Quileute and Quinault contend they are entitled to harvest.

In an 83-page order, U.S. District Judge Ricardo S. Martinez concluded that the term "fish" in the Treaty of Olympia was meant to also include sea mammals like whales and seals. The judge relied on a dictionary definition of fish from the relevant period, which defined the word as “[a]n animal that lives in the water," as well as linguistic evidence that the tribal signatories to the treaty drew no distinctions between groups of aquatic species and would have understood the term “fish” to encompass aquatic animals on which they relied for their subsistence purposes.

"The negotiators could have used species-specific words, such as salmon, that were available in the common Chinook jargon negotiating medium and in all the parties’ native languages," Judge Martinez said. "As this court has previously explained, that the parties to the treaties chose instead to use the sweeping word 'fish' in lieu of more tailored language indicates an intended breadth of the subsistence provision that should not be circumscribed on the basis of post hoc understandings and linguistic drift."

"We are gratified that the court affirmed the maritime traditions of the Quileute tribe based upon the evidence from elders, historical documents and archeology," said Lauren King and John Tondini, trial counsel for Quileute. "This is a significant decision in affirming the respect that should be shown for the treaty rights of all native people."

"We make every effort to avoid intertribal conflicts such as this, and that was certainly the case here," Quinault President Fawn Sharp said in a statement. "We are very fortunate to have federal court to resort to in those rare instances when we need it ... Winning this case will not only help secure our long-held ocean fishing heritage for our fishermen, it will also help us continue to manage ocean fish stocks properly."


Federal Court Upholds Cancellation of Redskins Trademark

A Virginia federal judge has upheld the U.S. Patent and Trademark Office's decision to cancel the Washington Redskins' trademark registrations, rejecting the team's argument that the federal ban on offensive trademarks is unconstitutional.  The ruling from U.S. District Judge Gerald Bruce Lee affirms a decision last June by the USPTO's Trademark Trial and Appeal Board that “Redskins” violated Section 2a of the Lanham Act that bars “disparaging” registrations.

The court's decision stated the challengers to the trademark had met the technical legal requirements to prove “disparagement,” and also rejected the team's argument that Section 2a itself violates of the First Amendment.  “Nothing about Section 2a impedes the ability of members of society to discuss a trademark that was not registered by the PTO,” the opinion states. “Simply put, the court holds that cancelling the registrations of the Redskins marks ... does not implicate the First Amendment as the cancellations do not burden, restrict or prohibit [the team's] ability to use the marks.”  The ruling won't go into effect until the team exhausts its appellate options, and does not prohibit the team from using the name or selling products incorporating the name.


US Supreme Court To Decide Tribal Jurisdiction Over Fortune 500 Company


For the first time in seven years, the U.S. Supreme Court will hear a tribal jurisdiction case that impacts law enforcement and civil actions on tribal land.  The Court has granted certiorari to the case of Dollar General Corporation v. Mississippi Band of Choctaw Indians. Dollar General operates a store on trust land on the reservation. The tribe issued a license to the business, whose manager is accused of sexually assaulting a minor who was working there as part of a youth training program.  The minor's parents sued Dollar General and the manager in tribal court, seeking at least $2.5 million in damages. The company, as a non-Indian entity, refused to submit to the court's jurisdiction.  The outcome will determine whether Dollar General, a publicly-traded company with $17.5 billion in revenues can avoid the jurisdiction of the Mississippi Band of Choctaw Indians.

The case is being closely watched across Indian Country. Although tribes and their advocates haven't submitted any briefs so far, they are worried that the Supreme Court might issue another disastrous ruling.  "It puts this issue in front of a scary court in kind of a difficult way," said John Dossett, General Counsel for the National Congress of American Indians.

The last time tribal jurisdiction came before the high court was in Plains Commerce Bank v. Long, a case from 2008. By 5-4 vote, the justices held that a non-Indian bank did not have to answer to a lawsuit filed by two members of the Cheyenne River Sioux Tribe despite having entered into a consensual agreement with the couple.

Since that ruling, tribes and their advocates have been working hard to keep cases away from the court. The efforts of the Tribal Supreme Court Project, a joint project of NCAI and the Native American Rights Fund, appear to have been working, at least until now.  "We were winning at the Supreme Court more than we were losing at the Supreme Court," Richard Guest of NARF said of the first few years of the project.  Since John G. Roberts took on the position of chief justice of the court in 2005, tribal interests have won just two cases and have lost nine, Guest said at NCAI in February. 


Chickasaw Nation's Sovereignty Trumps Federal Labor Laws

The National Labor Relations Board (NRLB) has issued a decision indicating that the Chickasaw Nation can operate outside the confines of the National Labor Relations Act (NLRA) because it is a sovereign Indian nation with legal protections based on its treaties with the United States.

“Applying the test established by the Board in San Manuel Indian Bingo & Casino … we find that application of the Act would abrogate treaty rights, specific to the Nation, contained in the 1830 Treaty of Dancing Rabbit Creek,” according to the Board’s decision and order, issued June 4. “As a result, we decline to assert jurisdiction over the Nation, the Respondent here.”

The case centered on whether the Chickasaw Nation, as the operator of the Tribe’s WinStar World Casino, was subject to the NLRB’s jurisdiction and, if it was subject to jurisdiction, whether it violated Section 8(a)(1) of the NLRA when tribal leaders told casino employees that because of the Tribe’s sovereignty, the employees did not have the protection of the federal labor law regime.

The Nation’s 1830 treaty with the United States contained strong pro-tribal sovereignty language, which the NLRB indicated was crucial to the decision. “[N]o Territory or State shall ever have a right to pass laws for the government of the [Chickasaw Nation], the treaty reads in part. “[T]he U.S. shall forever secure said [Chickasaw Nation] from, and against, all laws except such as from time to time may be enacted in their own National Councils, not inconsistent with the Constitution, Treaties, and Laws of the United States; and except such as may, and which have been enacted by Congress, to the extent that Congress under the Constitution are required to exercise a legislation over Indian Affairs.”

The NLRB further noted in the decision, “Article 18 of the 1830 Treaty provides that ‘wherever well founded doubt shall arise’ concerning the construction of the treaty, ‘it shall be construed most favorably towards’ the Nation.”


Canadian Boarding Schools Inflicted "Cultural Genocide" Against Indigenous Children

Canada's Truth and Reconciliation Commission has completed a multi-year investigation regarding the treatment of children of First Nations ancestry in state-supported boarding schools.  In its final report entitilted "Honouring the Truth, Reconciling for the Future", the Commission states:

For over a century, the central goals of Canada’s Aboriginal policy were to eliminate Aboriginal governments; ignore Aboriginal rights; terminate the Treaties; and, through a process of assimilation, cause Aboriginal peoples to cease to exist as distinct legal, social, cultural, religious, and racial entities in Canada. The establishment and operation of residential schools were a central element of this policy, which can best be described as “cultural genocide.”

Physical genocide is the mass killing of the members of a targeted group, and biological genocide is the destruction of the group’s reproductive capacity. Cultural genocide is the destruction of those structures and practices that allow the group to continue as a group. States that engage in cultural genocide set out to destroy the political and social institutions of the targeted group. Land is seized, and populations are forcibly transferred and their movement is restricted. Languages are banned. Spiritual leaders are persecuted, spiritual practices are forbidden, and objects of spiritual value are confiscated and destroyed. And, most significantly to the issue at hand, families are disrupted to prevent the transmission of cultural values and identity from one generation to the next.

In its dealing with Aboriginal people, Canada did all these things.

The Final Report is available HERE.



Building Business in Indian Country - July 8-10 Seminar at Seattle University

With a focus on the practical, using specific situations and examples the 2015 Indian Law Certificate Program will address tribal business entities; alternative energy development; construction contracts and land acquisition; and effective negotiation skills, tactics and strategies. Faculty includes Kelly Croman, Tribal Attorney for the Chehalis Tribe; Steven J.W. Heeley, Advisor, Akin Gump Strauss Hauer & Feld LLP, Washington, D.C.; V. Heather Sibbison, Suzanne R. Schaeffer, and George T. Skibine, Dentons, Washington, D.C.; and Doug MacCourt, Ater Wynne LLP, Portland, OR.

Session 1: Governance of Business Entities - Best Options and Their Consequences
Wednesday, July 8th  9:00 a.m. - 12:00 p.m.

Session 2: Building in Indian Country: Understanding and Successfully Navigating Construction Contracts
Wednesday, July 8th   1:30 p.m. - 4:30 p.m.

Session 3: The Art of the Deal in Indian Country: Effective Negotiation, Mediation and Arbitration Options, Skills, Tactics and Strategies    Thursday, July 9th  9:00 a.m. - 12:00 p.m.

Session 4: Land Acquisition for Gaming On and Off-Reservation in the
Era of Carcieri and Patchak
Thursday, July 9th
1:30 p.m. - 4:30 p.m.

Session 5: Powering Your Business: Developing, Constructing and Financing
Alternative Energy Projects in Indian Country
Friday, July 10th
9:00 a.m. - 12:00 p.m.


The 5-Session General Registration - $750.00
Seattle University School of Law Alumni/Tribal Attorneys - $700.00
General Registration - $175.00
Seattle University School of Law Alumni/Tribal Attorneys - $150.00


Tribal Sovereignty and Development Colloquium - May 28/29 in Seattle

The United States and Native American nations have a treaty-based, government-to-government relationship with a unique political and legal dynamic of mutual sovereignty. This colloquium will feature recognized experts presenting in-depth information and current perspectives on U.S./Tribal relations, their evolving sovereignty balance, and innovative strategies and programs for enhancing Native American human security.

Please join us in person or via webinar for this extraordinary program focused on strengthening self-determination and quality of life in Tribal communities.

Featured Speakers Include:

The United States Special Trustee for American Indians
The President of the National Congress of American Indians
Leaders of Tribal Governments, Economic Enterprises, and Community Organizations
Tribal Court Judges, Law Professors, and Legal Advocates
National Experts in Indigenous Education, Health, and Cultural Heritage


For the Colloquium agenda, click here. There is no cost to attend the Colloquium or webinar.



To RSVP, please email events@foster.com by Friday, May 15, 2015.



Thank you to our sponsors for contributing to this extraordinary program:

University of Washington Department of American Indian Studies
The Andrew W. Mellon Foundation
Foster Pepper PLLC
University of Washington Jackson School of International Studies
University of Washington Native American Law Center
Northwest Indian Bar Association
Washington State Bar Association Indian Law Section
Center for Indigenous Research and Justice
Tribal Law and Policy Institute
American Bar Association Section on Individual Rights and Responsibilities
Native American Resource Partners