Any way one looks at it, this is a crass prosecution. It makes clear the need for tribes to conduct constant and intense education campaigns about the legal bases of American Indian trade and commerce.
In Kansas, the state has decided to criminalize trade and commerce between tribes by demonizing individual tribal leaders and filing criminal charges against them in a tax dispute. It threatens to have them arrested and to have them extradited from their home state of Nebraska to face prosecution in Kansas. Matters of tribal and state jurisdictions more properly negotiated in a civil context are now purposely being dictated though intense prosecution of a tribal chief, a tribal enterprise manager and their families. We believe it to be bull-headed prosecutorial fever of the highest order. It is wrong and it is unacceptable.
It happens that the Winnebago Tribe of Nebraska, through its Ho-Chunk Inc. business enterprise, sells gas and oil products to Kansas tribes, such as the Sac and Fox, the Kickapoo and the Iowa, who own convenience stores. Kansas tax officials ordered the confiscation of its fuel delivery trucks and those of another distributor, Davies Oil, which sells to the Prairie Band Potawatomi. The tribes contend that such inter-tribal commerce within and among tribal trust lands is within their sovereign powers and authorities. To the best of our knowledge, these freedoms have never been relinquished by the Indian nations. Therefore they are as real and viable as they were prior to the establishment of the United States, and most certainly, of the state of Kansas.
Nebraska, on the other hand, participated in a successful negotiation with the tribes, including the Winnebago. As a result, it receives some 25 percent of the tax that Ho-Chunk Inc./HCI Distributors collects from tribal convenience stores. Not Kansas, however. Within Kansas, for five years the state and the tribes have fought over taxation. A federal court case was resolved in the tribes' favor, but as always with litigation, it drained finances all around.
Nevertheless, the state of Kansas continued to play hard-ball and stepped outside its authority by filing criminal charges against Winnebago tribal chairman John Blackhawk and Lance Morgan, executive director of Ho-Chunk Inc., the tribe's business arm. On April 9, it confiscated two of HCI's gas-hauling trucks and arrested the drivers, who were later released on $1,000 bond. (It also confiscated 10 of Davies Oil's trucks.)
The six-count criminal charge against the two tribal leaders, brought in Shawnee County District Court in Topeka, Kan., refers to non-payment of taxes for October 2001 through March 2002. The warrant calls for all personal property of the two men's families to be sold to recoup the $1.2 million that the Kansas Department of Revenue claims Ho-Chunk, Inc. owes it ? in unpaid gasoline taxes.
At its news conference announcing the charges, the state omitted the fact of the company's status as a tribally owned enterprise. By purposely ignoring the tribal context, and the necessary legal realities it involves, the state presented the confiscations, arrests of drivers and charges against a tribal manager and a chief as one more criminal investigation for basic tax evasion. The state has stated in court that it seeks to dispel, "the romantic notions inherent in tribal sovereignty," which, it claims, "vanished when the Untied States conquered and subdued the tribes in the 18th and 19th centuries."
It is a harsh and ugly attack by Kansas against the inherent tribal sovereignty of Indian nations moving to reestablish their own economies under treaty-protected Indian trade and commerce. If there is a social contract left between the American Indian tribal nations and the U.S. body politic, it is the importance of the treaty and case law that can support the rebuilding of American Indian nations and their communities.
By completely ignoring, in fact seeking to stamp out that reality, Kansas has fired a missile directly at one major basis of Indian sovereignty. Many states, such as Nebraska and Iowa, negotiate taxation compacts with Indian nations. We urge all tribal leaders to take a moment this week and request that your tribal and state congressional delegations help educate the Kansas congressional offices, the Kansas Department of Revenue and the Kansas Attorney General's office, on better and more proper courses for resolving inter-governmental disputes, including taxation issues, with American Indian nations.
Namely, this approach must involve civil and mutually beneficial negotiations between sovereigns.