So What Is a "Permanent Improvement" to Indian Land?

Much is being made of the new U.S. Department of the Interior leasing regulation, 25 C.F.R. § 162.017, which makes clear that "permanent improvements" to leased Indian land are “not subject to any fee, tax, assessment, levy, or other charge imposed by any State or political subdivision of a State." Related FAQs from those in tribal economic development, include: What is a permanent improvement? What makes an improvement permanent? And most commonly, does [insert type of real or personal property] constitute a tax-exempt permanent improvement? This blog attempts to help folks answer such pivotal questions from a legal point of view.

25 U.S.C. § 465 of course explicitly exempts Indian trust land from state and local taxation. In Mescalero Apache Tribe v. Jones, it was held that Section 465 exempts not only tribal land from state and local taxation, but any tax that the Court deems to be an equivalent to a tax on land, including any “permanent improvements” thereon. 411 U.S. 145, 158 (1973).

Such is true regardless of how the state characterizes those improvements. See Drye v. United States, 528 U.S. 49, 52-53 (1999) (federal law, not state law, defines “property and rights to property” for purposes of a federal tax statute); Confederated Tribes of Chehalis Reservation v. Thurston County Bd. of Equalization, 724 F.3d 1153, 1158 (9th Cir. 2013) (“[I]t is irrelevant whether permanent improvements constitute personal property under [state] law.”).

Under federal law, there is no one definition of a “permanent improvement” for taxation purposes. PPL Corp. v. C.I.R., 135 T.C. 176, 193 (U.S. Tax Ct. 2010).

Instead, courts look to six factors, the “primary focus” of which “is the question of the permanence of depreciable property and the damage caused to it or to realty upon removal of the depreciable property.” Id. (quoting Trentadue v. C.I.R., 128 T.C. 91, 99 (U.S. Tax Ct. 2007)). These factors are as follows:

(1) “Is the property capable of being moved, and has it in fact been moved?” Whiteco Industries Inc. v. Commissioner of Internal Revenue, 65 T.C. 664, 672 (U.S. Tax Ct. 1975).

(2) “Is the property designed or constructed to remain permanently in place?” Id.

(3) “Are there circumstances which tend to show the expected or intended length of affixation, i.e., are there circumstances which show that the property may or will have to be moved?” Id.

(4) “How substantial a job is removal of the property and how time-consuming is it? Is it ‘readily removable’?” Id. at 673.

(5) “How much damage will the property sustain upon its removal?” Id.

(6) “What is the manner of affixation of the property to the land?” Id.

There you have it. So is your improvement permanent?

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.

Dreveskracht, Galanda Publish ABA Tribal Court Litigation Guide

The American Bar Association Business Law Section just published the 2014 edition of Annual Review of Developments in Business and Corporate Litigation, which includes a 41-page Tribal Court Litigation chapter co-authored by Indian litigators Ryan Dreveskracht and Gabe Galanda of Galanda Broadman. An excerpt from the chapter's introduction:

“Indian law,” a body of tribal, state, and federal law, is the foundation for every transaction arising in or from Indian Country.  Almost every arena of commercial practice now intersects with Indian law, including tax, finance, merger and acquisition, antitrust, debt collection, real estate, environmental, energy, land use, employment, and litigation.  Therefore, virtually every business lawyer or litigator needs to have some working knowledge of Indian law.  This chapter seeks to provide that basic understanding.

Gabe served as the Editor-in-Chief of Annual Review for the 2007 through 2010 editions, and has co-authored the Tribal Court Litigation chapter each year since 2006. This is Ryan’s third year co-authoring the chapter, and his first year as its lead author.

Disenrollment: A Tale of Two Tribes

  Two neighboring California tribes are going about disenrollment in two completely different ways:

This week the Dry Creek Rancheria Band of Pomo Indians is becoming the latest tribe to terminate its own people.  For 70 Pomo Indians, it is not a question of whether they'll be disenrolled, but how quickly.

Meanwhile, just down the road, the Graton Rancheria has "buck[ed] the trend" of mass disenrollment by imposing constitutional limitations on the tribal government's ability to jettison its citizens.  (Graton Chairman Greg Sarris recently went on record before a group of California Indian leaders, denouncing tribal disenrollment, and becoming the first tribal leader to do so nationally.)

Tragically, Dry Creek's disenrollment efforts are related to Graton's very recent economic success:

Coming at a time when the tribe's River Rock Casino is suffering the bruising effects of competition from the newly opened Graton Resort and Casino in Rohnert Park, some suspect it's another way to trim expenses by reducing the number of Dry Creek tribal members who get a monthly “per capita” distribution of casino profits.

Indeed, the tragic trend of mass tribal disenrollment is very much about "money, and an 'individualistic, materialistic attitude' that is not indigenous to tribal communities."

I predict that for these two California tribes, history will tell:  "It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of light, it was the season of darkness, it was the spring of hope, it was the winter of despair."

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.

Skateboarding & Saving the Lives of Indian Youth

This weekend saw the grand opening of the Port Gamble S'Klallam Skatepark (featuring the amazing artwork of Nooksack tribal member Louie Gong).  The skatepark, made possible with donations from the Sheckler Foundation and Grindline, is one of many that we have seen popping up all over Indian country.  Much more than concrete and metal, these parks save lives.

Despite what is portrayed on the X-Games and in Mountain Dew commercials, skateboarding is not a sport.  It is not a hobby.  In the words of Ian MacKaye, "Skateboarding is a way of learning how to redefine the world around you. It’s a way of getting out of house, connecting with other people, and looking at the world through different sets of eyes."

In this way, skateboarding does what basketball, football, and other organized sports do not. Indeed, skateboarding is extremely personal.  It allows a person to develop a style that is all his or her own, and it encourages creativity and thinking outside of the box.  Which is why it attracts misfits -- kids that do not fit in anywhere else are embraced by skateboarding.  Unfitting pants; oversized t-shirts; ripped up shoes.  These were all popularized by skateboarding, trendset by parents who could afford to buy their kids only one set of clothes a year to "grow into."  While this fashion faux pas would get you beat up at school, skateboarding embraced it.

To say that skateboarding isn't a sport is not to say that it isn't physically demanding.  To the contrary, skateboarding takes a tremendous amount of physical strength and endurance.  And, despite the myth skateboarders are stoners and drug addicts, just the opposite is true.  Junkies do not frontside flip 10-stairs. Indeed, studies have found that kids who skateboard are less likely to engage smoking, drinking, and drug use. One study on the Long Beach City Skatepark, located in a very high crime area of the city, found that from when the skatepark was installed in 2003 to 2008, drug related incidents dropped 60.9 percent.

Skateboarding provides native youth with freedom -- the freedom to take control of their lives, their bodies, the world around them, and their futures.

Native Americans and Alaska Natives are twice as likely to be diagnosed Type 2 diabetes.  Native kids that skateboard are much less likely to suffer complications from diabetes, and are 48-percent more likely to stay healthy as an adult (compared to 20-percent for kids who play organized sports).

Native American families are 50 percent more likely to endure domestic violence.  Skateparks provide a safe haven for Native kids, creating opportunity for social interaction with other youth which helps develop trusting and cohesive relationships that many of these kids just cannot receive at home.

Native Americans have one of the highest dropout rates in the Nation.   Skateboarding gives an outlet for hyperactive children who have trouble learning, and has been shown to improve performance in the classroom.

Young Native Americans are more than three times more likely to commit suicide -- up to ten times on some reservations.  Skateboarding creates a supportive environment for these at-risk youth.   You don’t have to be a cool kid.  You can’t get cut from a team.  You can show up with clothes that don't fit you, and nobody cares.  You can be a weirdo -- in fact, being an individual is encouraged.  Kids that skateboard generally have less anxiety, less depression, less feelings of hopelessness, and more satisfaction with life.

For Native youth trapped within the confines of the Rez, skateboarding gives an identity, a purpose, and a meaning to their lives.  When you fall down, you get back up and try again.  And skateboarders fall a lot.  Mad props to the Port Gamble S'Klallam Tribe and all of those who are helping its Native youth rise up.

Ryan Dreveskracht is an Associate at Galanda Broadman, PLLC.  His practice focuses on representing businesses and tribal governments in public affairs, energy, gaming, taxation, and tribal economic development.  Prior to practicing law, Ryan could be found shredding at any number of the skateparks between Southern California and Northern Washington, often sleeping in a van and living off of dried top-ramen.  He still skates.  He can be reached at 206.909.3842 or ryan@galandabroadman.com.

Indian Land Buy Back Woes

Amidst news of $100 million in offers at Pine Ridge and other gold rush headlines, here's what a few folks are saying about Interior's Indian land buy back program as it hits the ground in select Indian Country locations:

BIA and BLM folks are saying "that there is absolutely no money available for BIA to do surveys unless they are cadastral surveys that support the BIA GIS program for the Buy Back Program. [The BIA] Central Office has taken away all Regional Office discretion in determining how funds for land surveys are made. What little money there has ever been at BIA for surveying to protect tribal boundaries is being swept up for the Buy Back Program. It is supposed to be the Cobell funds that support the Buy Back, not normal BIA operating funds.

Of course this is nothing new. Amidst Cobell, all BIA operating funds were swallowed up with trust reform.

[N]o appraisals came with the past offers or present offers. I will soon get an offer without an appraisal and will have no way to judge whether this offer was "fair" or not.

Appraisals are fundamental to the purchase and sale of any Indian land. Without them, the transactions are illegal.

The Buy-Back Program was created as part of the Cobell Settlement to purchase fractionated trust or restricted land from willing sellers at fair market value....If you voluntarily choose to sell, you will receive fair market value, plus a base payment of $75 per offer.

Interior continues to play hide the ball, feigning that the buy back program concerns only "willing sellers," when the agency knows full well that tribe-vs-member forced sales are looming.

As Indian Country fawns over $2 billion in new monies, the unfolding truth about the buy back might surprise folks.

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.

Tribal Online Lenders Need a Legal Attitude Adjustment

A review of recent federal judicial decisions against tribal online lenders shows that they are losing the war--resoundingly. Arguments under Tuscarora that federal consumer protection laws of general applicability, have fallen flat. Arguments that these tribal enterprises are immune from federal enforcement action (see U.S. v. James), have not surprisingly fared even worse. Tribal sovereignty is being eroded in the process of each federal court controversy.

The tribal online lending industry needs a legal attitude adjustment. Or is it only a matter of time before the industry meets its demise. Instead of throwing traditional federal Indian legal arguments against the walls of federal courthouses, in hope that they stick--they haven't yet--the industry needs to heed lessons learned by other tribes when over-zealous federal agencies like the IRS, FBI or ATF come barreling onto an Indian reservation or into a tribal economy.

Among other non-conventional tribal defense strategies, one that has been deployed effectively against such federal agencies of late is preemptive consultation:

[C]onsultation can be used as a sword—a preemptive strike that forces U.S. agencies to consult before taking action in Indian country—as well as a shield to guard from federal and private attacks on Indian sovereignty. As it stands, several federal agencies freely enforce their prerogative over tribes, under the guise of so-called federal laws of general applicability and increasingly with federal court approval. Still, at each stage of federal encroachment or enforcement, federal law requires consultation with tribal officials.

See e.g. "ATF Withdraws PACT Act FAQs; Downgrades Tobacco Investigations?"

As counter-intuitive as it might be for tribes to bring their enemies close (as Sun Tzu and Michael Corleone both advise), that is exactly what those tribes that are involved in online and are under federal siege, should do in hopes of regaining some battle ground. That is because if the FTC or CFPB violates normative protocols for pre-enforcement consultation between sovereigns, the agency can be sued under the APA and enjoined or stymied from proceeding. This strategy is fully discussed in "The Federal Indian Consultation Right: A Frontline Defense Against Tribal Sovereignty Incursion."

After all, what else, or how much longer, can the tribal online lending industry stand to lose?

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.

Truth & Reconciliation Re: The Fish Wars

Yesterday Governor Jay Inslee signed Washington HB 2080, which vacated pre-1975 state court convictions of tribal members who were engaged in Treaty fishing activities.  Reconciliation.

Today a piece by Gabe Galanda, "Washington Tribal/State Relations Evolving, But Further Work Is Needed," was published in the Spring 2014 edition of Indian Law Newsletter.  Truth.

A passage:

Over the next decade Washington’s “fish wars” ensued, with state and local law enforcement utilizing criminal arrest to deprive Indians of Treaty-reserved fishing rights, making matters even worse.  An epic clash of sovereigns ensued in the U.S. v. Washington litigation, resulting in a controversial decision by U.S. District Court Judge George Boldt that guaranteed the Tribes half of the fish harvest and by 1979, a momentous Indian victory before the U.S. Supreme Court.

The state was so resistant of Judge Boldt’s decision that the Ninth Circuit Court of Appeals compared it to states in the Deep South that refused to abide by federally mandated desegregation.  “Except for some segregation cases . . . the district court has faced the most concerted official and private efforts to frustrate a decree of a federal court witnessed in this century,” appellate court justices said of the Boldt Decision.  In the end, the judicial affirmation of the Tribes’ reserved Treaty right to fish, expressed as “their source of food and commerce,” solidified a foundation for the economic development we are witnessing today throughout Washington Indian Country.

Above all, though, “the Boldt Decision” entrenched Washington Tribes as a legal and political force to be reckoned with.

And a Tribute:

He dedicates this article to those Washington Indians who fought the fish wars and to the tribal lawyers who won the Boldt Decision.

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.

Ninth Circuit Fails To Protect Tribal Sacred Sites

The Ninth Circuit Court of Appeals recently sustained the long-standing federal policy of subordinating Tribal sacred sites and culture to economic pursuits. The Te-Moak Tribe of Western Shoshone Indians of Nevada v. U.S. Department of the Interior decision highlights the general lack of enforceable protections codified in federal and state laws for Tribal cultural resources, and the inadequacy of President Clinton’s Executive Order 13007 in actually accomplishing what President Clinton ordered–that is, to “protect and preserve Indian religious practices.”

In the case, the Te-Moak Tribe among other Tribes and interested parties appealed the BLM’s approval of a plan to expand gold mining in and around traditional Native sacred sites where religious ceremonies are still held to this day.

The thrust of the Ninth Circuit’s recent holding is that E.O. 13007 “requires only that sacred sites be accommodated ‘to the extent practicable.’  [BLM] determined that further accommodation was not practicable given the lack of specificity as to location and as to the number of Tribal members who use any particular site on the pediment for religious activities.”

Finding no “arbitrary or capricious agency action,” the Ninth Circuit upheld the district court’s summary judgment against the Tribes and other appellants, paving the way for more mining and the destruction of Native American sacred sites.

The sole dissenter hit the nail on the head regarding the majority’s flawed and anti-Tribal reasoning that:

the analysis failed to recognize that comments regarding the proposal did point to the area where the mine is being built as an area in which worship occurs; it demanded quantification of that use as a condition of Executive Order coverage, when no such quantification is necessary; and it required greater specificity of location than comports with Shoshone religious practices. As to the last point, to require greater specificity would interfere with Shoshone religious practices, as those practices appear to regard certain recognized natural areas, rather than specific set locations, as places for worship.

In essence, without teeth (i.e. actual enforcement mechanisms and concrete directives to federal and state governmental agencies), all federal laws and executive orders purporting to “protect and preserve Indian religious practices” and cultural resources have no real authority to effect positive change and truly protect Tribes and their threatened cultures.   As such, Tribes must take a by-any-means-necessary approach to fending off government or private attacks upon Indian religious practices and ways of life.

The entire Ninth Circuit decision in Te-Moak may be found here.  E.O. 13007 may be found here.

Joe Sexton is Of Counsel with Galanda Broadman, PLLC.  Joe’s practice focuses on tribal sovereignty issues, including complex land and environmental issues, and economic development matters.  He can be reached at (509) 910-8842 and joe@galandbroadman.com.  

Federal Agency Violates NEPA During Elwha River Restoration

On March 26, 2014, the U.S. District Court for the Western District of Washington found that federal agencies violated the National Environmental Policy Act (“NEPA”) when they failed to adequately consider the impact of the release of hatchery fish on naturally spawning fish populations.  

Previously, the Elwha River was one of the most productive fish streams in the Northwest, producing nearly 400,000 spawning fish annually.  However, after the Elwha and Glines Canyon Dams were constructed, without fish passage structures, there was a decline to fewer than 3,000 naturally spawning fish.  As part of the Elwha River Restoration the federal government agreed to remove both dams.  (For more information on the Elwha River Restoration, click here.)

The dam removals required the preparation of certain environmental documents, including an Environmental Impact Statement (“EIS”), to determine the environmental effects of the project.  The EIS determined that the project would negatively impact fish populations and suggested that hatchery support would be needed to ensure the protection of fish stocks.

Based on the EIS, the federal government released an Environmental Assessment (“EA”).  The EA proposed releasing large quantities hatchery raised steelhead trout and coho salmon to supplement the fish population.  However, the large release would ensure that the majority of fish that would return to spawn would be hatchery fish.

Four fish conservancy groups filed suit against five federal agencies, seeking declaratory and injunctive relief.  The plaintiffs include the Federation of Fly Fishers Steelhead Committee, the Wild Fish Conservancy, the Wild Salmon Rivers, and the Wild Steelhead Coalition.  The defendants include the NOAA Fisheries Service, the National Park Service, the United States Department of Commerce, the United States Department of the Interior, and the United States Fish and Wildlife Service.

The court found that the agencies’ proposed quantities of hatchery fish were “arbitrary” and that the court found it “suspect” that the agencies did not consider smaller releases of hatchery fish.  The court found that the EA was inadequate and granted summary judgment to the plaintiffs on the issue.  Because of the deficiency of the EA, the court ordered the parties to meet and confer regarding the plaintiffs’ proposed release of a smaller number of hatchery fish.

The Lower Elwha Klallam Tribe was initially named as a defendant, but the court dismissed the Tribe from the case, based on a lack of subject matter jurisdiction.  The plaintiffs’ have stated that they support the Tribe’s right to harvest the coho salmon and steelhead trout. Additionally, the court found that decreasing the proposed releases of hatchery fish would not impact Treaty fishing rights, because there is a current moratorium on fishing, lasting through 2018 and after 2018, the Tribe agreed to base its catch on the number of returning fish.   The initial Hatchery and Genetic Management Plan was developed collaboratively with the Tribe. However, to ensure tribal interests are represented, the parties are obliged to consult with the Tribe as they meet and confer regarding the amount of fish to be released and as they draft new portions of the EA.

The cross-motions for summary judgment and the court order can be found here.

Amber Penn-Roco's practice focuses on complex land and environmental issues and multi-party litigation involving tribal sovereignty, torts and hazardous materials.  Amber is an enrolled member of the Chehalis Tribe.  She can be reached at (206) 713-0400 or amber@galandabroadman.com.

Washington Department of Revenue Affirms Tax Preemption for Tribal Land Improvements

Prompted by the Ninth Circuit Court of Appeals’ decision in Confederated Tribes of the Chehalis Reservation v. Thurston County Board of Equalization, 724 F.3d 1153 (9th Cir. 2013),  the Washington State Department of Revenue (“DOR”) issued Excise Tax Advisory Interpretive Statement No. 1.1.2014 yesterday.  The Interpretive Statement clarifies that permanent improvements on Indian trust lands are exempt from state and local property taxation. In 2007, Thurston County began assessing “personal property” taxes on the Great Wolf Lodge, a  $172 million hotel and resort.  The County recognized that the land underneath the Lodge was not taxable, but concluded that the Lodge itself was not tax-exempt because it was owned by a corporation chartered in Delaware, in which the Tribe held a majority 51% share and a non-Indian development company held the minority 49% share.  From 2007 to 2009, the County assessed roughly $2.5 million in taxes against the Lodge.

The Tribe filed suit and immediately moved for a preliminary injunction, arguing that the state tax was per se invalid because it was federally preempted by 25 U.S.C. § 465.  That statute states, in relevant part, that the Secretary of the Interior may acquire “any interest in lands, water rights, or surface rights to lands, within or without existing reservations,” and to hold title to such lands and rights “in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired.”  The statute also provides that “such lands or rights shall be exempt from State and local taxation.”  The District Court, however, denied the motion, holding that “[a]ssessing a tax against a partially private and partially Indian-owned limited liability company is not an injury” for which a preliminary injunction was warranted.  Confederated Tribes of Chehalis Reservation v. Thurston County Bd. of Equalization, No. 08-5562 (W.D. Wash. Oct. 21, 2008), ECF No. 24, at 8.  (Ironically, a for-profit business with at least 51% Indian ownership can be treated as an Indian entity under both federal and state law.  See 25 U.S.C. § 1452(e); 48 C.F.R. § 26.101; Wash. Admin. Code § 458-20-192(5)(d)).

After completing some discovery, the Tribe moved for summary judgment.  Relying upon United States v. Rickert, 188 U.S. 432 (1903), the Tribe again argued that “permanent improvements on Indian trust lands are exempt from taxation” due to federal preemption by 25 U.S.C. § 465.  The District Court denied the motion, holding that the “rule of Rickert” did not “bar the taxation in question because this case involves a significantly different factual scenario.”    Confederated Tribes of Chehalis Reservation, No. 08-5562 (W.D. Wash. Jul. 2, 2009), ECF No. 61, at 13.  The District Court distinguished Rickert by essentially holding that federal law only preempts improvements on Indian trust land when Indians take part in stereotypical “Indian” activity on those lands — and commercial activities do not meet this test.  According to the Court,

it cannot be said that the improvements are ‘occupied’ by the Tribe as [the tribal majority-owned corporation] currently uses the improvements to operate a hotel, conference center, and indoor water park.  Therefore, the Rickert rule that was implemented to protect a homestead and associated livestock is, in this Court’s opinion, inapplicable to privately owned commercial business ventures even though the improvements are on land held in trust by the United States. 

Id. at 13-14.  The parties then cross-moved for summary judgment.  Having been denied relief under Section 465 preemption, the Tribe was left to argue that the tax was barred under White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980), which balances inherent tribal sovereignty with state and federal interests to determine whether, in the specific context, the exercise of state authority would “unlawfully infringe ‘on the right of reservation Indians to make their own laws and be ruled by them.’”  Id. at 142 (quoting Williams v. Lee, 358 U.S. 217, 220 (1959)).  The Tribe argued that the relevant federal and tribal interests clearly outweighed any interest of the County.  The County, of course, argued to the contrary.  The District Court held for the County, again finding that the Tribe’s operation of the Lodge simply was not “Indian” enough to outweigh the County’s interests in funding “local law enforcement, emergency medical and fire services, and road maintenance services.”  Confederated Tribes of Chehalis Reservation, No. 08-5562, 2010 WL 1406524, at *9 (W.D. Wash. Apr. 2, 2010).

The Tribe appealed, and the Ninth Circuit Court of Appeals overruled the District Court.  The Ninth Circuit held that the Tribe was correct all along, explaining that it was “clear that where the United States owns land covered by § 465, and holds it in trust for the use of a tribe (regardless of ‘the particular form in which the [t]ribe chooses to conduct its business’), § 465 exempts permanent improvements on that land from state and local taxation.”  Confederated Tribes of Chehalis Reservation, 724 F.3d at 1157 (citing  Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973)).  Bracker, the Court held, simply had no application to “property taxes on permanent improvements” on Indian trust land.  Id. at 1159.

The Interpretive Statement issued by the DOR memorializes the Ninth Circuit’s holding in Confederated Tribes of Chehalis Reservation and serves as the State of Washington’s go-to document for determining whether the state has intruded on tribal sovereignty through state or local taxation.  Along with the Interpretive Statement, the DOR has issued a “FAQs for County Assessors” that discusses, for example, the state’s inability to tax any type of permanent improvement on tribal trust lands, including buildings, orchard trees, and mobile homes that are permanently attached to land.

What is more, the document informs property owners that should not have been taxed in prior years under the Chehalis decision, of their ability to receive a refund from the State.  Under Wash. Rev. Code § 84.69.030, property owners have three years from the date the property tax was due to file a claim for refund.  In order to claim a refund of taxes that were due April 30, 2011, for example, a claim must be filed with the county treasurer by April 30, 2014.

Hats off to the Chehalis Tribe and their resolve in obtaining this huge, and rare, Indian tax win for all of Washington Indian Country.

Ryan Dreveskracht is an Associate at Galanda Broadman, PLLC.  His practice focuses on representing businesses and tribal governments in public affairs, energy, gaming, taxation, and tribal economic development.  He can be reached at 206.909.3842 or ryan @galandabroadman.com.