Native American Legal Update : Native American Law : Foster Pepper Law Firm : Northwest, Seattle, Spokane, Portland Lawyer & Attorney

A new legal challenge has flared up from a controversial revenue-sharing agreement between Washington State and Tribes located therein – the state claims the Yakama Nation owes more than $11 million in taxes from gasoline sales revenue.

Pursuant to a consent decree in federal court, the state and the Nation split gas tax revenue, with 75 percent of sales from reservation gas stations going to the Nation. The Yakama Nation is credited up front when fuel is purchased wholesale, based on calculations of its member population and gallons of fuel delivered to reservation stations. The Nation’s members are exempt from the state's gas tax for fuel sold on Tribal lands, but the Nation is required to keep records and audit fuel sales from eight stations and submit the information to the state. The Department of Licensing asserts the Nation failed to submit audit reports in 2007, 2008, and 2009 that are required to differentiate sales to its members from sales to non-members.

After requesting the audit reports, the Department notified the Nation in March that it would request the up-front gas tax money be repaid. "DOL is unable to verify, due to lack of audit reports...that the Yakama Nation has used any gallons of fuel sold or distributed to the Tribe in the manner described in (the agreement)," the letter said. "The Yakama Nation is then subject to the state's taxes on all fuel delivered to the reservation under the Consent Decree."

A meeting with the Nation has been scheduled for June 13.
 

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A house burns as winds spread fire throughout White Swan on Saturday, Feb. 12, 2011. (Sara Gettys/Yakima Herald-Republic)
 

A terrible fire that broke out this past week has destroyed dozens of homes in the White Swan community located within the Yakama Nation. Many Native American families lost both their residences and important family legal documents such as wills, powers of attorney, and membership papers. In addition to the need for basic relief, a call is being made for legal assistance to help families with their damage claims and the reconstruction of their legal paperwork.

The relief effort will be coordinated by the Yakama Nation, and contact information for the Nation's logistics officer will be distributed as soon as available.  In the interim, if you are able to assist with direct legal work or other support, please contact:

Patrice Kent
PO Box 17798
Seattle, WA 98127
Tel: (206) 915-1529
Fax: (206) 339-0605
mpatricekent@clearwire.net

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Seigning Salmon In The Columbia River, Circa 1914

The federal government has issued its final program for restoring endangered salmon on the Columbia River -- a plan that will have substantial impact on the rights and livelihood of the Tribes that comprise the Columbia River Inter-Tribal Fish Commission.

The administration’s revised plan has been updated to reflect new scientific studies and incorporate a flexible "adaptive management" strategy for quick implementation of stronger protective measures if needed. Officials hope that will be sufficient to prevent another rejection of its plans by the federal court overseeing the matter. "While much attention has focused on the courtroom, the region should be proud of what the federal government, states, Tribes and communities together have accomplished for fish," the agencies said in a statement releasing the opinion. "Last year alone, 9,609 miles of wetland habitat were protected and 244 miles of streams were reopened to fish. We've made much progress, and completion of this legal process now prepares us to make much more."

Conservationists had hoped the plan would be much bolder, with less emphasis on hatchery fish and stronger attention to the possibility of breaching dams on the Snake River in eastern Washington that cut off salmon from miles of pristine potential habitat.  The primary argument against the removal of dams is the negative impact on electricity generation, since the Northwest receives a significant portion of its power from hydroelectric sources.

The Columbia River Inter-Tribal Fish Commission is comprised of the fish and wildlife committees of the Yakama, Umatilla, Warm Springs, and Nez Perce tribes. The Tribes have treaty-guaranteed fishing rights and management authority in their traditional fishing areas.
 

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The Confederated Tribes and Bands of the Yakama Nation have passed a resolution requiring any sex offender who lives or works on the Yakama Indian Reservation to register with the Nation’s law enforcement agencies. The Yakama Nation is the first government in the Yakima Valley of Washington State to require sex offenders to not only register if they live on the reservation, but also if they live elsewhere but are employed on the reservation.

The registration requirement applies to all persons whether Native or non-Native, and carries penalties of up to one year in jail and a $5,000 fine for non-compliance.
 

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In an effort to combat the ravages of alcoholism, the Tulalip Grassroots Committee, an organization of members of the Tulalip Tribes, will soon present an initiative to the Tribe’s General Council calling for a ban on the sale of beer, wine, and other alcohol anywhere outside the Quil Ceda Village shopping area on the Tulalip Indian Reservation. The new legal policy would also prohibit restaurants and businesses within the reservation from advertising alcohol on signs. If the initiative is approved, the state-run liquor store near the Tulalip Casino would be forced to remove alcohol advertising signs from its window, and two stores near the reservation's western edge would no longer be allowed to sell beer and other alcohol.

According to the Centers for Disease Control and Prevention, nearly 12 percent of all Native American deaths are linked to alcohol, roughly twice the rate of alcohol-related deaths for the rest of the U.S. population. "Indians have a lifelong battle with alcohol," said Les Parks, who leads the Tulalip Grassroots Committee.

Tribes across the country have previously attempted to utilize legal measures to reduce alcohol consumption by Tribal members, with mixed results. In 2000 the Yakama Nation banned alcohol sales on Tribal lands and unilaterally imposed a tax on alcohol sales on private land within the reservation, drawing fury from non-Native business owners and the State of Washington, which holds a monopoly on the sale of bottled liquor. The history of Prohibition within the United States reflects the difficulty of using the law alone to battle socio-medical problems on a broad scale. While legal measures may heighten awareness of issues and raise obstacles to obtaining alcohol, the complexity of alcoholism in Native communities will undoubtedly require the concerted effort of legal scholars, social scientists, and traditional healers to resolve.
 

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The Tribal Council of the Yakama Nation has approved the development of a guest-worker program that would require licenses or permits for foreign workers and non-Tribal citizens working on reservation lands.

The Yakama Nation’s territory contains much fertile agricultural land that is famred by a significant force of migrant workers during the growing seasons. The size of this non-Tribal workforce presents significant tracking problems for the Nation, and the presence of undocumented workers on Nation’s 1.2 million-acre reservation presents challenges in determining whether they legally present on both US and the Nation’s territory. The guest worker program is intended to increase accountability and ensure the legality of workers laboring on the Nation’s land.

The Yakama’s guest worker proposals may be the first of its kind in Indian country, but its long-term viability is as yet uncertain. According to the federal government’s Immigration and Customs Enforcement department, Native American Tribes are typically not viewed as sovereign nations on issues of immigration law. The authority of the Yakama Nation to enforce U.S. immigration laws or implement its own is presently under review.
 

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