Trump team moves quickly to finalize big tribal economic development proposal

Monday, August 7, 2017  

The Trump administration is moving quickly to finalize a new rule that could bring big economic benefits to Indian Country.

Tribes have been pushing for an update to the so-called Indian Trader Regulations in hopes of resolving a long-standing issue that has hindered their economic growth. They are losing out on millions -- and in some situations, billions -- of dollars because state and local governments have asserted taxing authority on their lands.

"The Three Affiliated Tribes lost one billion dollars to date, one billion in tax revenue, to the state of North Dakota, which I believe is criminal," Brian Cladoosby, the president of the National Congress of American Indians, said at a tribal consultation earlier this year, referring to the Mandan, Hidatsa and Arikara Nation, whose energy resources are taxed by the state.

As part of the effort, the Department of the Interior is engaging in consultations with tribes this month to find out how the rule could help their economies. Gavin Clarkson, a citizen of the Choctaw Nation who joined the Trump team in June, acknowledged the hasty nature of the announcement but indicated the goal is to come up with a final product sooner rather than later.

"I apologize that we were unable to provide the customary 30-day advance notice of these sessions," Clarkson wrote in a July 28 letter to tribal leaders, "but this shortened timeframe will better position the department to move forward with rulemaking in an expeditious manner."

Finalizing the rule would represent a win not just for Indian Country. Secretary Ryan Zinke, Interior's new leader, has been eager to show how the new administration can help tribes become more independent by -- in his own view -- getting out of their way.

But even though the effort could be seen as compatible with President Donald Trump and his pro-business and pro-development agenda, it is already seeing resistance from his own party. At a hearing on Capitol Hill in July, a powerful lawmaker warned Clarkson's boss not to use the Indian Trader Regulations, codified at 25 C.F.R. Part 140, to address dual taxation.

According to Rep. Rob Bishop (R-Utah), the chairman of House Committee on Natural Resources, which has jurisdiction over many of Interior's activities, the rule "should not be used as a vehicle to pre-empt the authority of state and local governments to tax non-Indians on tribal land."

Three communities in Connecticut that have fought tribes on taxation issues are also pressing Interior not to take action. Mayor Fred B. Allyn III of the town of Ledyard told Bishop's committee that the regulations should be eliminated altogether because "no one follows" them.

"In our view, there is no 'dual taxation,' there is only the legitimate exercise of state and local authority to tax non-Indians, and the tribe’s authority to apply its power to tax where it has the authority to do so," Allyn said in written testimony for the July 13 hearing.

Officially, the department has not said what will end up in the forthcoming rule. In his letter, Clarkson avoided the use of the phrase "dual taxation" and didn't use the word "tax" either.

However, he is asking tribes to provide information about jobs and revenues in order to find out whether "multijurisdictional issues" are hindering economic activity in Indian Country. The phrase leaves little doubt about the potential benefits of new Indian Trader Regulations.

"This economic data is needed to determine whether the revised 25 C.F.R. Part 140 would contribute to economic stimulus, jobs, and prosperity in Indian Country and the rest of the nation," wrote Clarkson, whose official title at the BIA is Deputy Assistant Secretary for Policy and Economic Development. "Tribal participation is critical to this important effort."

The tribal consultations start next week, August 17, in New Mexico, and conclude on August 29 in Wisconsin. In addition to the fast schedule, written comments are due pretty soon -- by August 30, Clarkson wrote in the letter.

Besides consultations, the BIA is also planning to hold listening sessions. Those dates haven't been finalized but the schedule so far follows:

Thursday, August 17, 2017
9:00 a.m. - 12:00 p.m.
Bureau of Indian Affairs
Conference Room #133
1001 Indian School Road, NW
Albuquerque, NM 87104

Tuesday, August 22, 2017 
9:00 a.m. - 12:00 p.m.
DoubleTree by Hilton
Oregon Room
1000 NE Multnomah Street
Portland, OR 97232

Wednesday, August 23, 2017
9:00 a.m. - 12:00 p.m.
Bureau of Indian Affairs
Frontier Building
Bering Sea Conference Room
3601 C Street
Anchorage, AK 14779

Monday, August 28, 2017 
Seneca Allegany Resort & Casino
Summer/Fall Room
777 Seneca Allegany Boulevard
Salamanca, NY 14779

Tuesday, August 29, 2017 
Radisson Hotel & Conference Center
Iroquois South
2040 Airport Drive
Green Bay, WI 54313

Federal Register Notices:
Traders With Indians (February 8, 2017)
Traders With Indians (December 9, 2016)

Trump hire at Bureau of Indian Affairs makes big promise on tribal taxation (July 26, 2017)
President Trump promises 'freedom' for tribes seeking to exploit their resources (June 29, 2017)
Appeals court hears slew of Indian cases amid focus on Supreme Court nominee (March 23, 2017)
Bureau of Indian Affairs opens consultation on big economic proposal (February 7, 2017)
North Dakota tribe threatens to walk away from energy tax deal (January 12, 2017)
Bureau of Indian Affairs opens door to big shift in tribal economies (December 8, 2016)