Indian Law Newsletter - WSBA

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Oct 1, 2014 - letter and our Section email distribution list. ... spoke eloquently about his service as a role model. Ju
Indian Law Newsletter Published by the Indian Law Section of the Washington State Bar Association



Volume 22

Fall 2014

Number 2

Report from the Section Annual Meeting

Message from the Past Chair

By Aubrey Seffernick

By Hunter Abell

Congratulations to the newly elected officers and trustees of the Indian Law Section elected at the annual meeting on September 11th, during the University of Washington’s Indian Law Symposium. Joining our governing board of trustees, we welcome Mike Rossotto, Claire Newman, and Ryan Dreveskracht. The slate of officers for 2015 includes Lauren King serving as Chair Elect, Brie Coyle joining as a new officer in the position of Secretary/Treasurer and after two years on the officer team, I am honored to take on the Chair position this year. We are already at work planning the annual holiday party to start the new year with a chance to meet other members of the Indian Law Section. Our annual CLE will also be here before we know it, and we will begin work outlining topics and speakers over the winter. We welcome ideas from our membership for areas of interest and hot topics you’d like to know more about. Stay tuned for more news and updates on Section activities through this newsletter and our Section email distribution list.

Each year, we have the privilege of gathering together on at least a couple of occasions. In May, practitioners from all over the state attended the annual CLE. As of this writing, attorneys will gather in just a couple of days to attend the annual Section meeting as part of the University of Washington Indian Law Symposium. It’s a chance to brush up on the latest developments in our area of practice and renew old friendships. In between the latest case updates and statutory revisions come handshakes, hugs, laughter, and a feeling that we are all part of a small, but vibrant, area of practice. For many of us, it’s these interactions and the underlying relationships that make our practice so enjoyable. This sense of community is unique. We are fortunate to practice in an area of law that places so much value on relationships. The value of relationships was on full display during the annual CLE where Kevin Paul honored the late Billy Frank, Jr. It was further on display when Judge Gary Bass of the Tulalip Tribal Court recounted the changes he had seen in his storied career and people spoke eloquently about his service as a role model. Justice Jane Smith of the Colville Tribal Court spoke about being a non-attorney judge and how that plays a vital role in the judiciary’s perception by the community. For me, Justice Smith is a particularly personal example of relationships. Years ago, in exchange for a letter of recommendation, she challenged me to make Indian law an ongoing component of my legal career. Years later, I am blessed to know her and call her friend. Although much of it is behind the scenes, relationships are also vital in executing the business of the Section. This year, we were blessed to have an outstanding Executive Board. Aubrey Seffernick, Millie Kennedy, Connie Sue

Martin, and Michael Rossotto, in particular, were active and energized throughout the entire year. In addition to providing crucial support for our Section activities, they are simply good people to be around. They are the people I look forward to seeing at Section events in the years to come. Finally, as the Section’s year comes to a close, let me thank all of the members. I have received emails and phone calls from many of you regarding Section activities. Some of you have become new friends and acquaintances. I encourage you to continue your involvement in the Section. After all, it’s all about the relationships. And the relationships make it fun.

In This Issue Message from the Past Chair................................................................. 1

Northwest Tribal Court Appellate Opinions Now Available Online and in a Library-Quality Reprint................................................. 3

Report from the Section Annual Meeting............................................ 1

Recent Decision Applying BIA Leasing Regulations Signals a Shift in Indian Tax Law............................................................................... 5

Washington State Denies Tribes Access to Prescription Monitoring Program........................................................... 2

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Fall 2014  ●  Indian Law

Indian Law News You Can Use Washington State Denies Tribes Access to Prescription Monitoring Program

Indian Law Section Officers - 2014-2015 Chair Aubrey Seffernick
 [email protected] Chair-elect Lauren King [email protected]

By Jared Miller The Washington State Department of Health is denying Indian tribes access to a powerful tool to fight prescription drug abuse, even while the Department acknowledges drug-induced deaths here are highest among Native Americans and Alaska Natives. Initiated in 2007, the Washington State Prescription Monitoring Program, or PMP, tracks prescription opiates and other drugs so doctors and authorities can identify addiction and crack down on illegal use and sales. But while non-Indian police and prosecutors have direct access to the data via secure electronic accounts, the DOH says their counterparts in Indian country don’t get the same treatment. Washington is not alone. Several states with large Native American populations have laws limiting or denying tribal access. Meanwhile, the impact of prescription opiate abuse on Indian families and children is manifest.

Secretary/Treasurer Brie Coyle [email protected] Immediate Past Chair Hunter Abell
 [email protected]

Section Trustees Hon. Darwin Long Fox (2015)
 [email protected] Julie Repp (2015)
 [email protected] Mary Rodriguez (2015)
 [email protected] Daryl Rodrigues (2015)
 [email protected] Connie Sue M. Martin (2016)
 [email protected]

Lauren E. Sancken (2016)
 [email protected] Ryan Dreveskracht (2017) [email protected] Mike Rossotto (2017) [email protected] Claire Newman (2017) [email protected]

Newsletter Editor Anthony Broadman
 [email protected]

BOG Liaison Barbara Rhoads-Weaver [email protected]

YLC Liaison Greg Touchton [email protected]

How PDMPs work Also known as Prescription Drug Monitoring ProSection logo designed by Scott Sufficool grams, or PDMPs, these statewide electronic systems require physicians and pharmacists to report certain drug transactions. Other providers can then access the data to Tribes not allowed identify doctors who are over prescribing or to spot addicts The Washington State Legislature in 2007 tapped the who are “doctor shopping” for medication at multiple Department of Health (DOH) to create and maintain the providers. Every state except Missouri has a PDMP or is PMP. The DOH obtained federal funding in 2010, probuilding one. mulgated rules in 2011, and launched the PMP in 2012. Once forced to rely on local subpoenas to track prescripBy February 2012, law enforcement and prosecutors had tion drug crimes, non-Indian direct electronic access to the police and prosecutors now data—but tribal police and use the databases to identify “Any state expense would probably be recouped prosecutors are excluded. illegal drug patterns across through savings for police, chemical dependency DOH officials say that’s entire states. According to a treatment, and other costs that accompany opioid because state statute pro2014 report by the Congresvides access only to “local, abusers who venture off reservation lands.” sional Research Service, PDstate, and federal” authoriMPs reduce the time it takes ties. They believe the Legpolice to investigate related crimes, among other benefits.1 islature excluded tribes by failing to mention them in the A quirk of reservation life makes tribal PDMP access law. One official said that while the failure to mention tribes especially important. Pill addicts and dealers often move may have been an oversight, the DOH is bound by the law. to other reservations when police pressure heats up, said “[W]e do not believe attorneys working as (tribal) Vicky Doyle, Director of Indian Child Welfare for the prosecutors … qualify under section 70.225.040(2)(d) which Suquamish Tribe, and an enrolled Suquamish tribal elder. grants PMP access to ‘Appropriate local, state, and federal Access to the electronic database would permit tribal aulaw enforcement or prosecutorial officials who are engaged thorities to track these people across the state and stop the in a bona fide specific investigation involving a designated spread of drugs to other tribal communities.

(continued on page 6)

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Indian Law News You Can Use Muckleshoot, Port Gamble S’Klallam, Sauk-Suiattle, Shoalwater Bay, and Tulalip Tribes. The new NICS Tribal Court Appellate Opinions website features a “Boolean” search engine, search saving, hyperlinked subject matter and tribal indexes, a mobile application, and U.S.-based technical support, all for no The Northwest Intertribal Court System (NICS) announced charge. Publishing these appellate court opinions online in June that it has launched a powerful online database prowith such a powerful search engine and making it available viding attorneys and the public free access to hundreds of for free puts NICS and the many tribes participating in this tribal court appellate opinions from 30 Indian tribes in the project on the cutting edge of using technology to promote Pacific Northwest, Alaska, and Northern California. NICS access to justice. While federal, state, and many tribal will also be reprinting the entire series of its Tribal Court courts publish their decisions online, some are searchable Appellate Opinions (also commonly referred to as NICS’ for free, and some offer features NICS will not offer, NICS appellate reporters) in a library-quality binding suitable is not aware of any other court system – federal, state or for display and use in courthouses, council chambers, law tribal – that offers online access to its decisions with all of libraries, and other places where tribal members and tribal the features NICS is offering free of charge.The hard copy officials may seek access to the opinions of their tribe’s reprint NICS is offering will include the entire series of court of appeals. NICS’ Tribal Court Appellate Opinions in a library-quality, NICS is a consortium of Indian tribes based in Western expandable binder. This special print edition will include, Washington that have joined for the first time ever, a comtheir resources to ensure that prehensive, professionallyeach tribe is able to have “For the first time, tribal members who represent prepared, cumulative subject its own court by sharing matter index spanning the themselves in the tribal courts administered judges, prosecutors, and entire series, which now inrelated court services. NICS by NICS can tap into the collective wisdom of cludes 12 volumes. Although was formed in the late 1970s hundreds of tribal court jurists with a free and NICS will be charging a in direct response to the easy-to-use online database.” modest one-time fee for the requirement of the “Boldt reprint to cover the costs of decision” that a tribe needed to have a comprehensive production and mailing, purchasers of the reprint will then scheme for enforcing its fishing regulations before the receive all future opinions as they are issued via email for federal court would give final authorization for a tribe to no additional charge, as well as semi-annual updates of regulate its own fisheries free from interference by the State the indexes, also for no additional charge. of Washington. U.S. v. Washington, 384 F. Supp. 312, 340-41 Judges, attorneys, pro se litigants, and legal scholars (W.D. Wash. 1974). As the federal government returned to will all benefit from these new publications. Tribal judges a policy of promoting tribal self-governance during this and tribal court practitioners will have a powerful new period and tribal governments began to reassert their sovtool to evaluate claims, identify precedent, and develop ereignty and pass tribal ordinances in many areas besides arguments. For the first time, tribal members who reprefishing, NICS-administered tribal courts quickly grew sent themselves in the tribal courts administered by NICS from hearing fishing disputes to being courts with broad can tap into the collective wisdom of hundreds of tribal jurisdiction under the laws of their tribes. NICS’ mission court jurists with a free and easy-to-use online database. is to assist its member tribes, at their direction, in a manAnd those who lack online access or computer skills will ner that recognizes the sovereignty, individual character, still be able to do advanced research using the comprehenand traditions of those tribes in the development of tribal sive new subject matter index that will accompany both courts that provide fair, equitable, and uniform justice for the online and print versions. These features should also all who come within their jurisdiction. In 2003, NICS was reduce the costs of representation and reduce the overall recognized by Harvard University as one of the top 100 cost of administering tribal justice systems by making legal programs in its annual Innovations in American Governresearch quicker, easier, and more effective. Legal scholars ment Awards competition. Many of the original NICS will also benefit from being able to access and research member tribes now administer their own courts, and NICS this rich resource, which now spans over 27 years of court now provides services to numerous non-member tribes decisions and will be continually updated as new opinions throughout the western United States on a fee-for-service are issued by NICS-administered courts. basis. NICS’ current member tribes include the Chehalis, (continued on page 8)

Northwest Tribal Court Appellate Opinions Now Available Online and in a Library-Quality Reprint

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Fall 2014  ●  Indian Law

Indian Law News You Can Use

Northwest Intertribal Court System PRE-ORDER NOW Tribal Court Appellate Opinions – Volumes I-XII Reprint of Tribal Court Appellate Opinions issued through the Northwest Intertribal Court System for tribes that were NICS members or contracted with NICS for appellate court services during the relevant time (1988 – present). All the opinions are included in a library-quality binder with space for updates. Over 300 opinions from 30 tribes with continuous updates of future opinions provided at no additional charge. Special Features Include:

Only $200!! Prices include all taxes, shipping and handling charges. Return pre-order form by mail with check for total amount payable to NICS at the address listed below.

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Comprehensive Subject Matter Index Table of Cases by Tribe High Quality Expandable Law Binder Complimentary Email Updates

Contact Information/Ship to: Name: ________________________________________________________ Tribe, Firm or Agency: ___________________________________________ Mailing Address: ________________________________________________ City: ________________________

State:____________

Zip:

Phone: ______________________ Email: (Please list preferred email address to receive the complimentary updates)

Northwest Intertribal Court System

20818 – 44th Ave W, Ste 120/Lynnwood, WA 98036 Phone 425.774.5808/Fax 425-744-7704 [email protected]

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***The opinions are also available on-line in a Boolean searchable format at no charge. Please visit the NICS website at www.nics.ws to access the opinions and/or view a list of Tribes with opinions published on-line and in the reprint.



Fall 2014  ●  Indian Law

Indian Law News You Can Use 162.017 What taxes apply to leases approved under this part?

Recent Decision Applying BIA Leasing Regulations Signals a Shift in Indian Tax Law

(a) Subject only to applicable Federal law, permanent improvements on the leased land, without regard to ownership of those improvements, are not subject to any fee, tax, assessment, levy, or other charge imposed by any State or political subdivision of a State. Improvements may be subject to taxation by the Indian tribe with jurisdiction.

By Del Laverdure and Bryan Newland This note originally ran on Turtle Talk, the blog for the Indigenous Law and Policy Center at Michigan State University College of Law. It is reprinted with the permission of the authors and Turtle Talk.

(b) Subject only to applicable Federal law, activiLast week’s decision out of the U.S. District Court in Southties under a lease conducted on the leased premises ern Florida in Seminole Tribe of Florida v. Florida could signal are not subject to any fee, tax, assessment, levy, or a potential shift in Indian tax law. other charge (e.g., business use, privilege, public For many tribal leaders and Indian law practitioners, utility, excise, gross revenue taxes) imposed by any tax law in Indian country is an intimidating jurisdictional State or political subdivision of a State. Activities maze – often times allowing state and local taxes to apply may be subject to taxation by the Indian tribe with in Indian country in spite of jurisdiction. tribal territorial sovereignty. The outcome of an Indian tax “The new leasing regulations finally offer a clear (c) Subject only to applicable case depends upon a combiFederal law, the leasehold nation of the type of tax or expression of the federal government’s interest or possessory interest is government fee imposed, in preempting dual taxation in Indian country in not subject to any fee, tax, the government doing the assessment, levy, or other order to promote economic development.” taxing, the individual or encharge imposed by any State tity being taxed, and the location of the activity, individual, or political subdivision of a State. Leasehold or posor property being taxed. sessory interests may be subject to taxation by the Many states have levied taxes on non-Indians and Indian tribe with jurisdiction. non-Indian businesses working in Indian country; and, in recent years, these efforts have been upheld under the The Court noted the importance of this new provision, Supreme Court’s decision in White Mountain Apache Tribe and its impact on the preemption analysis under Bracker: v. Bracker. Under that case, a reviewing court must balance “Unlike in Cotton Petroleum or Bracker, this Court now has the interest of the tribe, the state, and the federal governthe benefit of the comprehensive analysis performed by ment when deciding whether state taxes in Indian country the Secretary of the Interior showing how tribal interests are preempted by federal law. In many losing cases, tribal are affected by state taxes on leases of restricted Indian litigants have tried to invalidate state taxation without a land.” (p. 4). clear statement of the federal government’s interest. The Court cited numerous passages from the Preamble In the Seminole case, the State of Florida was attemptto the new leasing regulations (pp. 5-6), and noted, “[t]he ing to impose two different taxes on tribal lands: a “rental Court finds the Secretary’s preemption analysis thorough tax” on businesses leasing property from the Tribe; and, and persuasive.” a “utility tax” on electricity delivered to the Tribe’s lands. With respect to Florida’s rental tax, the Court held: The Court held that Florida’s rental tax was preempted by federal laws governing leasing on Indian lands (it also For the reasons detailed by the Secretary of the Interior, invalidated the utility tax because the legal incidence of this Court finds that the federal regulatory scheme the tax fell on the Tribe). regarding leases of restricted Indian land is so pervaThe Court held that both the Indian Long-Term Leasing sive that it precludes the additional burdens imposed Act and the BIA’s new leasing regulations preempt state by Florida’s Rental Tax. Florida’s assessment of its taxes on the use of tribal property. Rental Tax to the leases in this case would obstruct The Department of the Interior published those new federal policies. regulations in November 2012, which include this provision: (continued on page 8)

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Washington State Denies Tribes Access to Prescription Monitoring Program from page 2 person,’” PMP Operations Manager Gary Garrety said in an email. “Tribal prosecutors are not included in that list.” Garrety said he can turn over some information if tribal authorities present a court order. But timely access to database information is what makes PDMPs effective, according to a 2014 Congressional Research Service report. Petitioning for and getting a court order, waiting for a DOH lawyer to review it, and then waiting for PMP staff to respond consumes precious investigative resources. It also conflicts with DOH’s stated purpose for the PMP, which is to “improve patient care and stop prescription drug misuse.” And it doesn’t address the exclusion of tribal authorities from direct access to an important taxpayer-funded tool to halt prescription drug abuse by Washington citizens.

why tribal access was permitted under state law. However PMP staff turned down the application after consulting with the state Attorney General’s Office, Rybka said. “My interpretation of what transpired is that the Attorney General’s Office told the PMP to tell me the equivalent of ‘kiss off,’” said Rybka, who used subpoena power to get information from the PMP at the cost of precious investigative time. “It’s a hoop that we have to jump through until we get an Attorney General in this state who fully acknowledges that federally recognized Indian Tribes are sovereign governments that maintain ‘appropriate prosecutorial officials’ who work within the physical boundaries of the State of Washington, and therein understands that a prosecutor is a prosecutor.”

Regulations tell another story Deadly drugs, from your doctor Interestingly, DOH did not apply its own exacting stanThe story of opiate addiction in America is a short one. dards when drafting regulations for the program. While Once heralded as a godsend for pain management, opiates statute grants direct PMP access to “local, state, and federal became American’s hard drug of choice in just 16 years.2 law enforcement or prosecutorial officials,” the regulations The genesis was a 1986 report by doctors who used opiseem to create a category for ates to treat 38 patients for prosecutorial officials that is pain. They concluded the not grammatically linked to “Indian tribes nationwide need access to PDMP addiction risk was slight. the “local, state, or federal” Physicians embraced the systems, and they should have it. Tribes may want limitation. supposedly safe and efIn particular, WAC 246- to consider pushing state officials and lawmakers fective pain-management 470-060(3) states that, “[l]ocal, to grant them the access enjoyed by their non- tool. state, or federal law enforce- I ndian peers . T he solution in W ashington is By the time a 2000 ment officers, prosecutorial simple.” report alerted the mediofficials, coroners and medical world that emergency cal examiners” can access the room visits caused by opiPMP. A discriminating grammarian might say this means ates had jumped 75 percent between 1996 and 2002, “the that while only local, state, or federal law enforcement epidemic of abuse of opioid analgesics had begun.”3 The officials get access, any prosecutorial official can get an result was untold fatal overdoses, suicides, car crashes, account since that clause is separated by a comma. It at dollars spent on treatment and prevention, and other conleast suggests the DOH could read the PMP statute more sequences unimaginable to the authors of the 1986 report. inclusively. Today, doctors for the Centers for Disease Control call prescription drug abuse a “national epidemic.”4 It is “the When is a prosecutor not a prosecutor? Nation’s fastest-growing drug problem,” according to Tribal Prosecutor Tim Rybka of the Northwest Interthe President’s 2011 Prescription Drug Abuse Prevention tribal Court System says Attorney General Bob Ferguson Plan. Another report acknowledged that “[p]rescription is ultimately responsible for denying access to tribal audrugs are the second most-abused category of drugs afthorities. ter marijuana.”5 Problems compound when pill poppers A former longtime federal drug agent, and prosecutor turn to cheaper street opiates like heroin, said Doyle, the for a handful of tribes in Washington, Prosecutor Rybka Suquamish tribal elder. Scholarly reports confirm Doyle’s applied for a PMP account in April 2013 while working observation.6 two cases involving prescription drugs. Rybka’s application was apparently the first by a tribe, because a program Pill popping a problem in Washington official invited Rybka to submit a letter explaining his Per capita, Washington state has more drug-induced request and credentials. deaths than the nation as a whole. According to the DOH Rybka and his supervisor penned a response detailing Web site, “Washington is also among the states with the why access was essential for tribal authorities, and also highest rates of non-medical or recreational use of pain

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Washington State Denies Tribes Access to Prescription Monitoring Program from previous page relievers.” Meanwhile, “[D]rug overdose mostly caused by prescription drugs is now the leading cause of accidental death in our state, responsible for more fatalities than motor vehicle accidents,” according to the website. Native Americans are especially hard hit. A comprehensive 2010 federal report called the National Survey on Drug Use and Health revealed that nationally more than 6 percent of Native Americans and Alaska Natives reported current use of prescription drugs for non-medical purposes, more than any other ethnic group. A March 2014 report by the Washington DOH found that from 2009 to 2011, “the rates of drug-induced deaths were highest among American Indian and Alaska Native residents.”7

Tatewin Means, attorney general for the Oglala Sioux Tribe in South Dakota, said database access would help track drugs sold at reservation border towns and brought onto tribal lands. It might also confirm anecdotal reports that prescription drug abuse is on the rise. “We can see (increasing prescription drug abuse) in our communities but so far we can’t quantify it,” Means said. A simple fix Indian tribes nationwide need access to PDMP systems, and they should have it. Tribes may want to consider pushing state officials and lawmakers to grant them the access enjoyed by their non-Indian peers. The solution in Washington is simple. The Attorney General could adopt a broader interpretation of existing law, or better yet the Legislature could tweak the statute. An amendment of RCW 70.225 adding the word tribal to the existing laws and regulations would probably do the trick. And it wouldn’t cost much. Tribal access would probably mean a handful of new accounts. The U.S. Justice Department offers grants to encourage tribal participation in state prescription drug databases. Any state expense would probably be recouped through savings for police, chemical dependency treatment, and other costs that accompany opioid abusers who venture off reservation lands. One tribe has already expressed an interest in a legislative fix.

Families and children suffer One Indian child welfare (ICW) worker said she is “flabbergasted” by rampant prescription drug abuse on her reservation, although she declined to be named for this article because of policies limiting public comment. She said that more babies are born addicted today. They are more likely to be born pre-term, suffer from feeding and sleeping problems, and often must endure uncomfortable withdrawal symptoms. They may also require expensive long-term services, struggle through lifelong problems like delayed learning and behavioral problems, and many eventually get hooked themselves. The family cycle of addiction often repeats itself in this way, the ICW worker said.

Jared Miller is an associate with Baldwin, Crocker & Rudd in Seattle. His practice focuses on tribal law and federal Indian law. He can be reached at (206) 919-5044 or [email protected].

Tribes are doing what they can Tribes in Washington appear to be doing their part to attack prescription drug abuse with the tools they have. Tribal physicians and pharmacists can access the PMP, and they use it. Tribal authorities aggressively pursue abusers and dealers without the PMP. The Tulalip Tribal Code classifies prescription drugs crimes as “offenses involving dangerous drugs.” The sentence is a year in jail and a $5,000 fine, the maximum allowed for most tribes under federal law. In February, the Suquamish Tribal Council voted to continue its initiative against illegal prescription drugs, according to the Tribe’s newspaper, Suquamish News, and tribal officials. Tribal police launched their own initiative, according to the paper. In April, 100 people gathered for a community meeting on the topic. Unfortunately, those efforts only go so far without access to the statewide drug database.

1 Prescription Drug Monitoring Programs, Congressional Research Service, Finklea et al., March 24, 2014. 2 A National Epidemic of Unintentional Prescription Opioid Overdose Deaths: How Physicians Can Help Control It. Paulozzi et al. 3 Id. 4 Id. 5 University of Michigan, 2009 Monitoring the Future: A Synopsis of the 2009 Results of Trends in Teen Use of Illicit Drugs and Alcohol. 6 Reports in several scholarly journals have noted the same tendency, according to a Web post by The Heller School for Social Policy and Management at Brandeis University. 7 Drug Abuse and Overdose, Washington State Department of Health, March 4, 2014.

Other states bar tribal access Washington is not alone in blocking PDMP access to tribes. Other states with large Native American populations also impose limits. Montana has strict controls. South Dakota and Arizona laws and regulations are nearly identical to Washington’s. 7

Fall 2014  ●  Indian Law

Northwest Tribal Court Appellate Opinions Now Available Online and in a Library-Quality Reprint from page 4

Recent Decision Applying BIA Leasing Regulations Signals a Shift in Indian Tax Law from page 5

The conversion of NICS’ appellate reporters to an online database was funded in part by grants from the charitable funds of the Tulalip, Muckleshoot, and Shoalwater Bay Indian Tribes. Pro bono legal assistance for the project was provided by Lauren King of Foster Pepper PLLC by arrangement of Wayfind (formerly Washington Attorneys Assisting Community Organizations). The online conversion was done by Code Publishing Company, Inc. of Seattle, Washington. The subject matter index was created by Neil Savage, J.D., of Lake Forest Park, Washington. Additional information about NICS, access to the online version of NICS’ appellate reporters, and the order form for the print edition can all be found on the NICS website: www.nics.ws. NICS is eager to share information with other courts that are using technology in this manner, and NICS is available to assist other courts interested in publishing their opinions using these technologies. Questions and comments about these publications should be directed to:

This decision follows on the heels of the 9th Circuit’s decision in Confederated Tribes of the Chehalis Reservation v. Thurston County, in which the Court held that local taxes on permanent improvements on tribal lands were preempted by federal law (the Court noted that the new leasing regulations clarify existing federal statutes on this point). Last year, the 2nd Circuit issued a contrary decision, upholding a local government’s effort to tax slot machines leased to the Mashantucket Pequot Tribe for use at the Foxwoods casino. But, the Court didn’t apply the new regulations in that case. The tax language in the BIA’s new leasing regulations is at issue in a pending lawsuit between the Agua Caliente Band and Riverside County, in which the Tribe is asserting that the County’s possessory interest tax on non-Indian lessees on its reservation is preempted by federal law. The U.S. District Court in Central California dismissed the County’s prior challenge to the tax provisions in the leasing regulations on ripeness grounds. Last week’s decision in Seminole should support the notion that federal law preempts state and local taxation of activities, individuals, and property in Indian country. The new leasing regulations finally offer a clear expression of the federal government’s interest in preempting dual taxation in Indian country in order to promote economic development. As the Court explained in Seminole: “The Secretary of the Interior’s new regulations have changed the landscape of this area of the law, specifically regarding the issue of preemption.” (p. 8).

Michael Rossotto, Appellate Department Director, Northwest Intertribal Court System 425-774-5808, ext. 112 [email protected] Michael Rossotto has served as NICS’ Appellate Department Director since August 2004. Prior to NICS, Michael served in leadership positions with several environmental organizations where he worked closely with the Northwest Indian Fisheries Commission, Columbia River Intertribal Fish Commission, Point No Point Treaty Council, Skagit System Cooperative, and various tribes on numerous successful campaigns to stop new dams, remove old dams, protect Northwest rivers, and restore the region’s fish and wildlife. Michael is a 1984 graduate of Oberlin College and a 1992 graduate of Stanford Law School. Michael was elected to the executive committee of the Indian Law Section in 2011 and is a former Chair of the WSBA Environmental and Land Use Law Section.

Donald “Del” Laverdure is the former Acting Assistant Secretary – Indian Affairs, and the founder of the Indigenous Law & Policy Center at the Michigan State University College of Law. Bryan Newland is the former Senior Policy Advisor to the Assistant Secretary – Indian Affairs, and is an alumnus of the Indigenous Law & Policy Center at the Michigan State University College of Law NICS Library-Quality Reprint Order Form on page 4

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Fall 2014  ●  Indian Law

Fall 2014  ●  Indian Law This is a publication of a section of the Washington State Bar Association. All opinions and comments in this publication represent the views of the authors and do not necessarily have the endorsement of the Association or its officers or agents.

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