From left, Principal Deputy Assistant Secretary for Indian Affairs John Tahusda, Navajo Nation Vice President Jonathan Nez, Lummi Nation council member Henry Cagey and Cris Stainbrook of the Indian Land Tenure Foundation at a House Subcommittee on Indian, Insular and Alaska Native Affairs hearing in Washington, D.C., on October 25, 2017. Photo: VP Nez

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Tribes press Congress for greater authority -- including taxation -- over their lands

Wednesday, October 25, 2017

Tribal leaders and their advocates are embracing a once-controversial Indian land bill, seeing it as a means for exercising greater control of their economic futures.

The Navajo Nation is tired of waiting for the Bureau of Indian Affairs to help improve conditions on the largest reservation in the United States, Vice President Jonathan Nez told lawmakers at a hearing on Wednesday afternoon. It can take years to hear back on matters that are treated as routine in other governments, he said.

"When we want to do road improvements," Nez offered as one example, "we have to wait for the BIA."

"That takes years and it takes a lot of resources," he said.

Henry Cagey, a council member for the Lummi Nation, shared similar sentiments with the House Subcommittee on Indian, Insular and Alaska Native Affairs. To resolve the roadblocks, the federal government needs to recognize the authority of tribes to govern their own lands as they see fit, he testified.

"We want our freedom back," Cagey told the subcommittee.

Nez, Cagey and other witnesses endorsed H.R.215, the American Indian Empowerment Act, as a way to return some of that freedom to the first Americans. The bill creates a process by which tribes -- of their own choosing -- can have their lands taken out of trust and placed in "restricted fee" status.

Rep. Don Young (R-Alaska), the sponsor of the bill, believes the change will help tribes exercise more control because they won't have to seek the BIA's approval for certain activities that occur on restricted lands. At the same time, those lands would still be protected from state and local encroachments, such as taxation.

"This is an important assurance, given the federal government's history of harmful policies that have eroded tribal land bases," Young said. The allotment era, for example, resulted in the loss of 90 million acres in less than 50 years.

Indianz.Com on SoundCloud: House Subcommittee on Indian, Insular and Alaska Native Affairs October 25, 2017

But some want Congress to go even further. Nez said the American Indian Empowerment Act must also recognize tribes as the "exclusive" taxing authority on their lands, which would prevent states and tribes from taking revenues out of Indian Country.

"Dual taxation has been an issue for Indian tribes for a long time and it would be helpful to tackle the issue in this bill," Nez said.

Some states and local governments, notably those in North Dakota and Washington, have taken millions of dollars, and even billions, out of Indians Country by imposing taxes on businesses and development on reservations. Tribes are hoping to resolve the situation with an update to the so-called Indian Traders rule.

Fixing dual taxation is "going to be helpful for us in regard to our self reliance," Ron Allen, the longtime chairman of the Jamestown S'Klallam Tribe, said at a BIA listening session on the Indian Traders rule last week.

During the hearing on Wednesday, Young did not outright respond to suggestions to add a dual taxation provision to his bill, which he first introduced back in 2011. But John Tahsuda, a citizen of the Kiowa Tribe who serves as the "acting" Assistant Secretary for Indian Affairs for the Trump administration, encouraged Congress to look closer.

"We recognize the complexities that accompany the checkerboard of tribal, private and states' lands," Tahsuda said. "Recognizing that this uncertainty is a significant issue, we welcome the opportunity to work with this subcommittee, and the sponsor, on how to best address these broader questions, whether in this legislative vehicle or a separate package."

The effort to update Indian Traders (25 CFR 140) began late in the Obama administration. The Trump team has continued holding listening sessions and consultations but has not committed to addressing dual taxation or even finalizing the rule.

"I'm not convinced that we are moving forward with those," Deputy Secretary David Bernhardt of the Department of the Interior said in his first address to the National Congress of American Indians last week.

"I'm not convinced that we won't," Bernhardt added. During his speech, which came on Thursday during NCAI's 74th annual convention, he described himself as Secretary Ryan Zinke's "right hand when it comes to running the department."

House Committee on Natural Resources on YouTube: Legislative Hearing on Indian Lands Bill

The BIA has already taken a stab at dual taxation with leasing regulations that were finalized in 2012 and with the way it has implemented the Helping Expedite and Advance Responsible Tribal Homeownership Act, a self-determination that has proven population in Indian Country because it removes federal barriers to development.

The leasing regulations, for example, assert that states and local governments cannot impose taxes on leased Indian lands. A similar statement is included whenever the BIA approves a tribe's HEARTH Act regulations and when such approval is published in the Federal Register, the government's official journal.

The federal courts, so far, have accepted the BIA's approach. The leasing regulations, for example, merely codify existing law, they have determined.

But not everyone thinks the BIA will be on solid ground if it puts dual taxation in the Indian Traders rule. Kitcki Carroll, a citizen of the Cheyenne and Arapaho Tribes who serves as the executive director of the United South and Eastern Tribes, expressed worries last week.

“This is ripe for legal challenges," Carroll said at the BIA's October 16 listening session in Milwaukee, Wisconsin. Going through Congress would give tribes a much stronger case, he argued.

"While a regulatory fix is good, a statutory fix is better," Carroll said.

The next step for H.R.215, the American Indian Empowerment Act, would be a markup session before the House Committee on Natural Resources. But all of the witnesses, including Tahsuda from the BIA, asked Young to make changes in order to bring more clarity to certain situations, such as when a tribe wants "restricted fee" lands put back into trust.

"It seems like a fast track would be reasonable" in those cases, said Rep. Doug LaMalfa (R-California), the chairman of the House Subcommittee on Indian, Insular and Alaska Native Affairs.

House Subcommittee on Indian, Insular and Alaska Native Affairs Notice:
Legislative Hearing on Indian Lands Bill (October 25, 2017)