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The struggle continues

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Win or lose, you've got to fight the fight. That is the message from the
federal courts in recent days. The Prairie Band Potawatomi Nation lost a
big one in the U.S. Supreme Court, at least on the surface. The Aroostook
Band of Micmac Indians won across the board in a Maine federal court. The
Narragansett Indian Tribe of Rhode Island is sweating out a return bout in
the 1st Circuit Court of Appeals. But the common lesson in all of these
cases is that nothing will be gained without persistence; and sometimes
force of will alone can produce surprising success.

The Supreme Court indisputably dealt Indian country a blow in upholding the
Kansas fuel tax at the expense of the Prairie Band Potawatomi. The opinion
written by Justice Clarence Thomas in Wagnon v. Prairie Band Potawatomi
Nation must have seemed cut and dried to his six co-signers. But it
continues a line of argument in the court that has tried to ignore economic
reality. At some point this trend will collide with a real-world situation
the court can't blink, but it will be up to the tribes to continue their
advocacy.

The Supreme Court upheld a tax the appellate court had voided as an undue
infringement on Potawatomi sovereignty. Thomas argued instead that the tax
fell on an off-reservation transaction between non-Indians, namely the fuel
distributors. He accepted the Kansas Legislature's declaration that the
"tax incidence," or burden, fell off-reservation, not on the tribe.
"Downstream economic consequences" didn't matter.

But taxes can have powerful economic impacts downstream, no matter where
the legislature decrees they fall. In this case, the Potawatomis say they
will have to abandon their own tribal gasoline tax or watch business
shrivel at their Nation Station next to their casino. This tax provided a
major source of funding for road and bridge repair on the reservation, so
Thomas' decision will matter.

Moreover, Thomas is practically inviting state Legislatures to come up with
ingenious ways to tax tribal economies, all excused by a declaration that
the burden legally falls on non-Indians, off the reservation. Not too long
ago, a state senator in Connecticut actually proposed to collect a toll on
state roads from people heading to the tribal casinos. The court eventually
will have to draw a line against such hostile state measures, and one hopes
it would fall well short of the Connecticut tollbooths.

The court can't simply ignore economic reality indefinitely. Sooner or
later, a state will impose such an outrageous burden on a tribe that even a
justice couldn't ignore. Then again, the Potawatomi case should have served
as that example. Thomas said he was looking for a "bright line" to settle
tax disputes, but his ruling outlines a struggle that will go on for years.

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These struggles aren't always hopeless, either. The Aroostook Band of
Micmacs faced an uphill struggle, to say the least, in asserting its
sovereign immunity from the state of Maine in Aroostook Band of Micmacs v.
Executive Director, Maine Human Rights Commission. The three other Maine
tribes had accepted a settlement act in 1980 that purported to treat them
as municipalities, subject to state jurisdiction. But the Micmac Band was
recognized later in that decade; and when the state presented it with a
similar act, the tribal council simply didn't sign it. Whether it was an
oversight or not, the Micmac later argued that the state limits never
became law and they retained full tribal sovereignty.

On Dec. 2, a U.S. magistrate accepted their argument. Acting under a remand
from the U.S. Court of Appeals, she ruled that the band had sovereign
immunity against an employment discrimination investigation by the Maine
Human Rights Commission.

The ruling was especially striking in Maine, which has probably fought
harder than any other state in the 21st century to deny the freedoms of its
tribal governments within. It should offer hope to the Penobscot and
Passamaquoddy nations, which found their earlier lawsuits shunted off to
state courts. The only way really to lose sovereignty is to give up the
fight for it -- essentially, to forget who you are.

The federal courts in New England, amazingly enough, offer proof that if
you make the sovereignty argument long enough and well enough, you can
sustain it. The Narragansett Indian Tribe has been fighting to preserve its
sovereignty since the ink dried on its own land settlement with Rhode
Island back in 1978. The fight turned violent in the July 2003 state police
raid on its just-opened smoke shop. This May, the Narragansetts won a major
acknowledgement of its rights from a three-judge panel of the 1st Circuit
Court of Appeals, which declared the raid illegal. On Dec. 6, Chief Sachem
Matthew Thomas and his lawyers were back in the Moakley Federal Court
Building in Boston for a rehearing before the full 1st Circuit bench in
Narragansett Indian Tribe of Rhode Island v. the State of Rhode Island.

It remains to be seen how much or whether the full appeals court will
change the May ruling by Judge Juan Torruella, but the judges seemed much
better versed on tribal sovereignty and more sympathetic than on an earlier
occasion when they gave the Penobscots short shrift. The judges actually
seemed offended when they asked a lawyer for Rhode Island how much of
sovereignty remained to the Narragansetts, and she answered, "Nothing."

This palpable shift in attitude in at least one federal circuit has to be
attributed to the will New England tribes have shown in pressing their case
over and over, in one suit after another. It's an example for tribes across
the country, now that the Supreme Court is making hash of Indian tax law.

The fight for tax sovereignty against state encroachment is going to take
at least as much persistence. To all Indian nations we say: Never relent;
stand on your principles, not on percentages; and draw from the clear
birthright and resolve of your ancestors.