Posts tagged: Coeur d'Alene Tribe
Idaho Supreme Court justices delved into the details of tribal jurisdiction this morning, during arguments on an appeal from Native Wholesale Supply Co., which has sold more than 100 million cigarettes to an Indian-owned business, Warpath, on the Coeur d'Alene Reservation, without complying with Idaho state laws regarding a national tobacco settlement that require payments into a fund. The company is owned by an enrolled member of the Seneca tribe in New York, where it operates on a reservation; it imports the cigarettes from a native-owned manufacturer in Canada.
NWS contends the state has no jurisdiction to regulate its sales, as they're between tribal members on reservations, and there's no evidence the cigarettes ever entered any part of Idaho outside the Coeur d'Alene Reservation - since the reservation touches the state of Washington.
“Native Wholesale Supply has never sold to any Idaho consumer,” attorney Samuel Diddle told the justices. The wholesale sales to Warpath “may not be regulated by the state because of tribal sovereignty,” he said.
Deputy Idaho Attorney General Brett DeLange told the justices, “Our Legislature has spent a lot of time adopting a very comprehensive set of statutes and rules to regulate cigarette sales in Idaho. One of them is before those cigarettes can be sold, they need to be approved for sale. The Attorney General needs to know who that manufacturer is. … Native Wholesale Supply just wants to ignore all that. They don't want to comply with the state's efforts of comprehensively regulating cigarette sales in our state.”
Retired Justice Linda Copple-Trout, who is sitting in the case, said, “I know the cigarettes say that they are to be resold on the reservation, but that certainly is not a limitation against who may ultimately end up with the product.” She noted that the state's interest in its laws regarding the tobacco settlement was to recover funds from those selling “a dangerous product” to cover the state's costs for health care services related to its use.
DeLange said, “Native Wholesale Supply has introduced into Idaho over 100 million cigarettes that are not legal to be introduced and sold and imported into our state, and did all of it at wholesale.” He compared the case to an earlier one in which a Native American seller from New York sold cigarettes via the Internet to buyers in Caldwell, Boise and elsewhere in Idaho. But Diddle said this case is different, because the sales didn't occur off the reservation.
Justice Joel Horton noted that the lower court decision, which NWS is appealing, enjoined the firm not only from selling cigarettes that don't comply with Idaho laws relating to the tobacco settlement agreement, but also from selling cigarettes without an Idaho wholesaler's permit. However, he read from Idaho's law regarding the tax stamps required under Idaho's wholesaler's permits; it doesn't apply to reservation sales. “If they haven't made any sales of cigarettes subject to tax, they can't hold a permit,” Horton said.
NWS has tangled with multiple states over regulatory and tax issues. The firm also was a target of a criminal case in Seattle regarding the sale of contraband cigarettes by members of a Washington tribe without paying that state's sales tax. The Idaho case arose from a 2008 lawsuit the state filed against NWS, seeking to stop its sales in Idaho and seize profits from sales already made.
At the close of today's arguments, Chief Justice Roger Burdick said, “The matter is now under advisement and we will render a decision.” You can read my full story here at spokesman.com.
When the Coeur d’Alene Tribe first signed a gaming compact with the state of Idaho in 1992, tribal leaders insisted on donating 5 percent of net casino gaming proceeds to education on or near their reservation – a gesture that has added up to $16.8 million in donations since 1994, including $1.5 million this year and $1.8 million last year. “The tribe originated the idea,” said David High, the now-retired deputy Idaho attorney general who for years oversaw negotiations with the state’s Indian tribes over gaming. “They didn’t have to do it.” In fact, High said, the National Indian Gaming Regulatory Act forbids states from taxing or assessing any kind of fees on the proceeds of tribal gaming. “Congress intended the tribes to get the financial benefit of Indian gaming and did not want the states trying to take a piece of that,” he said. But in the case of the Coeur d’Alenes, “The tribe has agreed to it is the thing,” High said.
Later, the tribe wrote the 5 percent contribution into a tribal gaming initiative that Idaho voters strongly approved in 2002, prompting two other Idaho tribes, the Kootenai and Nez Perce, to add it to their compacts as well. The result has been millions donated to schools and educational programs; you can read my full story here from Sunday's Spokesman-Review. The Coeur d'Alenes agreed to open their books on their educational donations for this article; the largest recipient over the years has been the Plummer/Worley School District.
Idaho's fourth gaming tribe, the Shoshone-Bannock Tribes in eastern Idaho, doesn't have a 5 percent donation clause in its compact. The Sho-Bans signed their compact with the state in 2000, and included a clause calling for a federal court case looking into which gambling machines were legal and which weren't. But their compact also included a clause saying if any other tribe got permission to operate specific machines, they could have them too.
The court case hadn't proceeded far when the initiative passed in 2002. The state tried to get the Sho-Bans to amend their compact to comply with the 2002 initiative, which not only included the 5 percent education donations, but also imposed limits on growth in the allowed number of gaming machines. The Sho-Bans went to federal court, and the 9th Circuit U.S. Court of Appeals sided with them in 2006, saying they didn't have to amend their compact. That left the Sho-Bans without either the 5 percent contribution requirement or the initiative's growth limits.
The success of the Coeur d'Alene Casino Resort Hotel, which has made the North Idaho tribe the second-largest employer in North Idaho, behind only Kootenai Medical Center, has prompted some grumbling in recent years over who got how much of the education money. That prompted the tribe to stop holding formal ceremonies announcing the donations for the past two years, which then led to speculation that the tribe no longer was making them, despite a statement from the director of the state Lottery Commission, which oversees tribal gaming, that the 5 percent pledge had been been met.
The hubbub prompted a series of public records requests to the Lottery Commission; most sought a breakdown of who got how much money from the Coeur d'Alenes' 5 percent donations, but the lottery doesn't have that information. Both the tribe's compact with the state and the 2002 initiative say the donations are handed out “at the sole discretion of the tribe.”
The only information the tribes hand over to the Lottery Commission is their audited financial statement, which shows the 5 percent figure, along with other proprietary information about their gaming operations, such as, in some cases, background checks on employees and information about security procedures. The Coeur d'Alene Tribe's compact with the state notes that the information the tribe hands over to the state is exempt from public disclosure under the trade secrets clause of the Idaho Public Records Law; it also states that if a court finds otherwise, the tribe no longer has to supply the documents to the state. Compacts between the state and the other tribes contain similar trade-secrets confidentiality provisions.
The U.S. Justice Department has awarded $1.9 million in grants to the Coeur d'Alene Tribe and Nez Perce Tribe in Idaho to “enhance law enforcement practices and sustain crime prevention and intervention efforts.” The grants are for eight specific aims: Public safety and community policing; methamphetamine enforcement; justice systems relating to alcohol and substance abuse; corrections and correctional alternatives; programs targeting violence against women; programs targeting elder abuse; juvenile justice; and tribal youth programs. U.S. Attorney Wendy Olson, who announced the grants today, said, “I am pleased to see such significant federal grant support to these two Idaho tribes. The U.S. Attorney's office is committed to working closely with and supporting public safety in Indian country.” You can read the full announcement here.
Federal authorities say jurisdictional gaps are hampering law enforcement in Indian country, so they're working with three Idaho tribes, including the Coeur d'Alene Tribe, to federalize tribal police officers and let them issue federal citations to non-Indians on the reservation for certain minor offenses. Once the lengthy process is completed - likely in time for next summer's boating season - non-tribal members who are boating on the southern third of Lake Coeur d'Alene and violate boating laws could get tickets issued by tribal officers and backed by the federal court. The southern third of the lake belongs to the tribe; the U.S. Supreme Court decided that in 2001.
The other two tribes working with the U.S. Attorney's office and the federal courts to federalize their officers are the Nez Perce and the Shoshoshone-Bannocks; you can read my full story here.
Here's a link to my full story at spokesman.com on the tribal policing issue that's back before lawmakers, after a deal that averted legislation last spring fell apart. “That agreement was not signed, which necessitates coming back before the Legislature and asking for a resolution of this issue,” the tribe's lobbyist, Bill Roden, told the House State Affairs Committee. Benewah County Sheriff Bob Kirts disputed that. “If you agree in principle, it's not a final contract,” he said. “They said, 'No, you can't make any changes to what you agreed to in Boise.' That's not how it works.”
The tribe said the county proposed about 50 changes to the agreement after the Legislature adjourned last spring. Rep. Rich Wills, R-Glenns Ferry, the new House Judiciary Committee chairman and a retired state trooper, traveled to Benewah County in December to try to get the two sides back to the table to reach an agreement. Things looked promising, he said. “When I left there, I thought we had a good understanding, but it didn't materialize - the county wouldn't even come back to the table.”
The Coeur d'Alene Tribe is back before Idaho lawmakers this year, after Benewah County reneged on a deal last spring that prompted the tribe to drop legislation on policing that lawmakers were on the verge of passing. “Obviously we were extremely disappointed,” said Helo Hancock, legislative director for the tribe. “We felt like we'd been deceived in a lot of ways, that it was just an act to get out of getting a law passed.”
This time, the tribe has dropped proposals calling for a six-month window to reach a collaborative cross-deputization agreement with a county, and just written a bill modeled after other states' laws clarifying that tribal police with all required training and legal indemnification can enforce state laws. The House State Affairs Committee voted unanimously to introduce the bill.
Rep. Frank Henderson, R-Post Falls, said, “I think I understand the value of the cross-deputization, because I was a county commissioner when we did that in the early '80s in Kootenai County, and it was to the advantage of law enforcement at that time. I continue to believe it is a benefit, properly done, and I'm hopeful that the bill that comes forward today will find acceptance.”
A new federal law - sponsored in part by Idaho Rep. Mike Simpson - allows tribal police officers to enforce federal law on reservations, and if necessary, to cite violators of state law into federal court. “That is not the desire of the Coeur d'Alene Tribe, to use that,” Bill Roden, lobbyist for the tribe, told the committee. “But frankly it is such a severe problem that unless this is addressed at the state level, we're merely inviting further federal action, and the current law that is on the books would permit that.”
Last March, lawmakers heard chilling testimony about criminals going free; tribal officers tied up for hours waiting for deputies to respond and take over an arrest when they're needed to address other crimes; and more, due to the lack of a cross-deputization agreement. The Coeur d'Alene Tribe long has had such an agreement with Kootenai County, and it had one with Benewah County until the sheriff there revoked it in 2007.
Under questioning from lawmakers on the committee, Roden said Rep. Rich Wills, R-Glenns Ferry, traveled to North Idaho in December and attempted to negotiate an agreement between the tribe and the Benewah County Sheriff, who wanted a change to last year's deal to ensure non-tribal members cited on highways would be cited into state court, not tribal court. The tribe agreed, Roden said. “The sheriff represented that if Benewah County reneged on that concept he was going to resign. I haven't seen the resignation yet, but we did get a letter saying that now he doesn't agree with that either. But we tried,” Roden said. “That's all I can say.”
The Coeur d’Alene Tribe says Benewah County has reneged on the cross-deputization deal the two sides and the Idaho Sheriffs Association reached during this year’s legislative session, a deal that prompted the tribe to ask a House committee to hold its proposed legislation that would have forced the county’s hand it if wouldn’t collaborate. Instead of signing the agreement, Benewah County has sent the tribe a new version containing more than 50 changes, including changes in items the two sides negotiated. “I am extremely disappointed with this new document in front of me,” said Tribal Chairman Chief Allan. “It is not what we agreed to.”
House Judiciary Committee Chairman Jim Clark, R-Hayden Lake, said, “Benewah County made representations to the committee and to the tribe that a deal was in place. We were happy to hear it then and we believed all that was needed was for the necessary parties to sign the agreement. What I am hearing now is that Benewah County did not live up to its promises.” Click below to read the full news release from the Coeur d’Alene Tribe; you can read our full story here at spokesman.com.