Eighteen years after he won a U.S. Supreme Court decision requiring Indian tribes to pay state taxes on reservation cigarette sales, Sen. Slade Gorton says it’s time to start collecting.
But in order to do that, the Washington Republican, who is maybe the most disliked federal lawmaker in Indian country, will have to overturn the touchstone of centuries-old treaties between the United States and its first residents - the doctrine of tribal sovereign immunity.
Tribal leaders and Gorton will face each other today at a hearing before the Senate Indian Affairs Committee over his bill that would, in most cases, waive sovereign immunity and allow the tribes to be sued in federal and state court.
If Congress approves the legislation, Gorton said Washington state could then take the tribes to court and try to collect the $64 million in annual tax revenue it currently loses on reservation tobacco sales.
“For 18 years the tribes have evaded paying that tax because the Department of Revenue had no place where it could sue to collect it,” Gorton said.
For their part, the tribes insist there is plenty of room to negotiate, as tribes have done in other states. They say Gorton is still smarting over his 1974 loss before the Supreme Court in a landmark Indian fishing rights case.
“There is a deep dislike for him and what he is trying to do,” W. Ron Allen, president of the National Congress of American Indians and chairman of the Jamestown S’Kllalam Tribe in Washington state, said of the tribes’ feelings toward Gorton. “He has a very negative image in Indian country.”
Allen said Gorton apparently has two reasons for trying to do away with tribal sovereign immunity: He has a fundamental philosophical disagreement with the status of tribal governments in the United States, and he is playing to the “constituency he leans on for his election who are anti-tribal and still angry over the law of the land.”
“If he had his way, he would abrogate the treaties and terminate the tribes,” Allen said.
Gorton seems weary of the personal attacks.
“When you can’t argue the merits because you don’t have any merits to argue, you argue personality,” he said. “They have no answer to an 18-year-old Supreme Court ruling so they focus on character.”
Beginning with a 1778 agreement with the Delaware and ending with an 1871 pact with the Nez Perce, Congress has ratified more than 370 treaties with Indian tribes. In exchange for giving up lands, the tribes were given reservations and self-governing rights.
Through a series of Supreme Court decisions, they were granted the status of “nations within a nation,” and with the establishment of tribal courts came sovereign immunity, or immunity from civil lawsuits.
Just as federal, state and local governments have immunity from civil lawsuits, so have the tribes. But many jurisdictions have waived such immunity. The Legislature waived sovereign immunity for the state of Washington in 1961 and for local governments in 1963.
Gorton said the only government entities that still have blanket immunity are the tribes and it’s an “anachronism” that should be abolished.
The tribes believe that stripping them of their immunity would be discriminatory and could lead to a flood of lawsuits that could force them into bankruptcy.
“Indian country and its tribal courts are not an anachronism in modern society,” Allen said. “We know we have to strengthen the integrity of tribal courts so people get due process. We are moving toward that. But as a lawyer, Senator Gorton has an arrogant contempt for this system.”
While serving as Washington state attorney general in 1980, Gorton won a case against the Confederated Tribes of the Colville Indian Reservation in which the Supreme Court ruled that on-reservation cigarette sales to non-tribal members are subject to state taxation.
Under federal law, Indian smoke shops don’t have to collect the state’s tax on cigarettes sold to tribal members for personal consumption.
The lawsuit was brought by the tribes after the state had seized a shipment of cigarettes.
With an estimated one in every four cigarettes smoked in Washington state sold in Indian smoke shops, the state has continued to seize cigarettes bound for reservations because it’s the only way to stop the illegal sales, Gorton said. Gorton also said he was concerned about more than cigarettes.
“I’m not primarily concerned with the state, but with business people in areas near the reservations subjected to abuses,” Gorton said. “They can’t begin to match the prices offered on the reservation.”
Gorton said he was also concerned the tribes would start selling gasoline without charging state gasoline taxes, a move that Gorton said could devastate the state’s revenue stream for streets and highways.
States from Arizona to New York face similar problems trying to collect cigarette and gasoline taxes from Indian tribes. Last year, as chairman of the Senate Interior Appropriations Committee, Gorton sought to end the tribes’ sovereign immunity by slipping a provision in an appropriations bill. He also sought to end federal funding for tribes making money off casino gambling.
With a tough floor fight looming, Gorton agreed to drop the provision in exchange for a promised vote in the Senate Indian Affairs Committee this year on his sovereign immunity bill. Gorton doesn’t expect to win that vote, but he makes clear the issue, one way or another, will be raised on the Senate floor.
Allen said he doesn’t think Gorton’s legislation will ultimately go anywhere, but the tribes are taking nothing for granted.
“There is no need for the federal government to intervene,” he said. “There are countless agreements between the tribes and the states on all kinds of taxes. Gorton is just trying to coerce the tribes. He has no sensitivity toward the tribes.”