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IRS blindsides itself on consultation draft

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WASHINGTON - A prime complaint the St. Regis Mohawk tribe is bringing
against the IRS over the new fuel excise tax regulations is the federal
agency's failure to consult the tribe before issuing them. In an
embarrassing irony, the IRS, or at least the part of it that deals with
Indian nations, is nearing the end of a 16-month effort to draft a policy
on tribal consultation.

From April to December 2003, the IRS Office of Indian Tribal Governments
held a series of meetings on how to consult with tribes. It handed a
summary of these 12 "listening meetings" to a "joint IRS/Tribal drafting
group" to develop a consultation policy draft. The group began work on July
14, just two weeks before another part of the IRS issued a radical change
in fuel excise tax collections that directly targeted the Mohawk

Christie Jacobs, director of the Tribal Governments office, featured the
consultation policy prominently in her last two quarterly newsletters and
urged tribes to comment on the draft.

"We continue to seek opportunities to dialogue with tribes and tribal
associations," she wrote. "We have found these opportunities to be
invaluable, not only for the ability it provides us to share current tax
information, but also for the opportunity to listen to questions and
concerns on the part of tribes. We welcome all invitations to meet with
individual tribes, regional tribal groups, tribal tax associations, and
tribal leadership councils."

The Tribal Government Office Web site:, leads off with a
lengthy summary of the "listening meetings," as well as complete contact
information for the 14 members of the drafting group. Members of the group
are: Preston Corsa, controller, Ute Mountain Ute Tribe; Robert E.
Kovacevich, attorney, Colville Tribes; Harold Cuthair, acting chairman, Ute
Mountain Ute Tribe; Peter Ortego, general counsel, Ute Mountain Ute Tribe;
John Duncan, tribal comptroller, Confederated Tribes of the Colville
Reservation; John F. Stensgar, Colville Business Council; Eric Facer, tax
counsel, Oneida Nation of New York, Facer & Stamoulas PC, Washington, D.C.;
Francisco R. Valencia, treasurer, PascuaYaqui Tribe; Keller George,
president, United South and Eastern Tribes; Kenneth G. Voght, program
manager, IRS Office of Indian Tribal Governments; Marcelino R. Gomez,
assistant attorney general, Navajo Nation; Selwyn Whiteskunk, Ute Mountain
Ute Tribal Council; Peter S. Yucupicio, vice chairman, Pascua Yaqui Tribe
and Christie Jacobs.

The IRS quotes some of the major points from its consultation policy

"All portions/activities of IRS must be covered by the policy and must be
bound by it.

"Consultation should be employed for any proposed
rule/regulation/recommendation that impacts tribes or members (where the
impact is due to being tribes or tribal members).

"Issues affecting individual Indians must be included in the policy, as the
tribe represents their interests and they come to the tribe for help.

"Do not mirror policies that are fake and simply deliver the rules, and do
not seek input."

The outline now being used by the drafting group reads in part:


Acknowledge tribal sovereignty.

Acknowledge government-government relationship.

Acknowledge self-determination.

Acknowledge unique status of each Indian tribe as an independent sovereign.

Acknowledge treaties, constitution, non-tax statutes. Scope:

Binding on all IRS components.

Allows consultation with Tribal governments on individual Tribal member

Allows one-on-one consultation as well as on issues with broad scope.

Can be initiated by either tribes or IRS.

The St. Regis Mohawk tribe is citing the lack of consultation in its
challenge to the fuel excise regulations, but the problem might not simply
lie between the IRS and the tribe. Jacobs has indicated in her frequent
presentations to tribal groups that other parts of the IRS have sometimes
made decisions without regard to the concerns of her office.