US Proposes New Governmental Relationship For Native Hawaiians

The US Department of Interior has proposed a new federal rule that would allow Native Hawaiians to decide whether they want to to reorganize their government and establish a formal relationship with the U.S.  The DOI called the proposed rule the next step in the reconciliation process with Native Hawaiians that was set in motion in 1993, when the government formally apologized for its role in the 1893 coup of the Hawaiian monarchy.

"Many indigenous groups in the U.S. have the right of self-determination, and today’s announcement acknowledges that that right also belongs to the Native Hawaiian people, one of the largest native communities in the country,” said Rep. Tulsi Gabbard, D-HI. “These rules incorporate over 5,000 public comments submitted to the Department of Interior, and should they be adopted, the Native Hawaiian community will have the option to re-establish a unified government and self-determine their future relationship with the federal government."

“Native Hawaiians have the right to reorganize a government that they determine is best for them,” said Sen. Brian Schatz, D-HI. “With today’s publication of proposed rules from the Department of the Interior, I urge Native Hawaiians and other interested individuals to stay engaged and to contribute their comments and concerns as the process moves forward.

The DOI began the rulemaking process in July 2014, after which 25 public meetings were held across Hawaii and Native American communities. The Department will accept comments on the rule proposal for 90 days.


IRS Requests Comments On Applying "Cadillac" Health Care Tax To Tribes

The IRS is requesting comments on the upcoming 40-percent excise tax on high-cost employer-sponsored health plans, which as currently conceived would apply to Tribal governments and Tribal-owned businesses that provide expansive health care insurance for their workers. Under the Affordable Care Act, the so-called “Cadillac tax” goes into effect in the beginning of 2018 for both fully insured and self-funded employer health plans. The tax will be assessed on the dollar amount of any premium that exceeds the annual limits of $10,200 for individual coverage and $27,500 for family coverage. The tax also includes several other costs such as contributions to flexible spending accounts or health savings plans. Tribal governments in high cost of living regions, such as Alaska, the Northeast, and the West Coast will likely be hit the hardest. In addition to the taxes, there will be a significant administrative burden on tribal government finance and HR staff to complete the mandated reporting. The costs and burdens represented by the regulations will diminish already limited resources available to support tribal government operations.

Comments on Notice 2015-52 can be sent electronically to


IRS Confirms Tribal Trust Payments Not Taxable


Payments Native Americans receive from tribal trust accounts will generally not be considered gross income subject to federal taxes, according to a final notice issued by the Internal Revenue Service. The notice provides clarification and guidance on concerns that arose after some tribes reported receiving letters in April 2012 from the IRS saying that per capita payments from trust accounts are taxable contrary to the Per Capita Act of 1983.

The IRS previously issued a notice saying that per capita trust account payments from a $1 billion settlement the Obama administration made with 41 tribes in April 2012 would not be taxed by the federal government. However, the 2012 notice did not provide guidance on whether other per capita payments made by either the U.S. Department of the Interior or Indian tribes from the trust accounts are subject to tax. Mark Mazur, the U.S. Department of the Treasury’s assistant secretary for tax policy, said the new notice was informed by “extensive consultation with tribal governments, illustrating the value of these discussions to help us better understand the needs of tribal governments.”


US Will Pay Tribes $940M To Settle Contract Management Dispute

The Obama administration has agreed to pay a group of Native American tribes $940 million to settle multi-decade litigation regarding underfunding of law enforcement, education and other federal services on reservations. Interior Secretary Sally Jewell and Justice Department officials plan to announce the proposed class-action settlement Thursday along with leaders from the Oglala Sioux Tribe, Zuni Pueblo and Ramah Chapter of the Navajo Nation. The settlement will then be submitted for approval in federal court.

The $940 million proposed payout to the tribes and tribal agencies is part of a trend toward major settlements between tribes and the U.S. in the last five years. "We had been litigating with Indian Country aggressively before the Obama administration came in," Kevin Washburn, head of the Bureau of Indian Affairs, told The Associated Press. "Rather than the federal government and tribes fighting all the time and litigating against one another, we need to be partners looking toward the future."

The contract litigation settlement is the result of a 2012 U.S. Supreme Court decision ruling in favor of the tribes in the long-running dispute over payment allocations for program costs. Tribes argued the U.S. government did not appropriate enough money to cover costs under the agreements, and the underfunded contracts meant tribes faced shortfalls as they tried to meet essential needs in their communities ranging from health services to housing.


Suquamish Tribe Signs First State Cannabis Compact

The Suquamish Tribe and the Washington State Liquor-Cannabis Board have agreed to terms on the nation's first state-tribal marijuana compact, in what Board Chair Jane Rushford says will be a model for future state-tribal compacts. The 10-year agreement will govern the production, processing and sale of cannabis on the Tribe's land located in Kitsap County, Washington.  Under the terms of the compact, a tribal tax equivalent to the state excise tax will be applied to sales of cannabis to non-tribal customers on Suquamish tribal lands.  The compact will head next to Governor Jay Inslee for approval. A bill passed by the 2015 Legislature allows the governor to enter into marijuana agreements with federally-recognized tribes in Washington state. 


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.