The Ojibwe News / Native American Press (Bemidji, Minnesota), 1998-05-22

              Bill to limit tribal sovereign immunity
divided into five separate bills
Committee vote expected early summer
By JulieShortridge
On May 20. the U.S. Senate Indian
Affairs Committee was planning to
Vote on Sen. Slade Gorton's (R-WA)
bill S. 1691 to limit tribal sovereign
immunity, where everyone openly
expected that it would be voted down,
including Gorton. Talk was that Gorton
would then include provisions of S.
1691 in the Department of Interior
funding bill, which iscontrolled by the
subcommittee he chairs.
But instead, Gorton took a different
tact at the hearing, requesting that the
Committee postpone a vote on his
current bill and instead vote at a future
date on five separate bills. He will
di\ ide the five provisions of his S.
1691 into five separate bills, which
would limit tribal sovereign immunity
in the areas of civil rights protections
on reservations, enforcing contracts
with tribes, enforcing environmental
laws, collectingsales taxes from tribal
sales to non-Indians, and torts claims
(lawsuits against tribes for personal
injuries). Gorton also plans to make
changes in the bills to incorporate
some ofthe constructive criticism his
bill received this spring.
Currently tribes claim sovereign
immunity in amultitude of situations in
order to avoid responsibility for their
actions. Tribal governments should
have to limit theirsovereign immunity
and be held to the same standards of
accountability. liability and
compliance with the law as anyone
else, says Gorton. He asserts that a
contract with a tribe should be as
enforceable as contracts signed with
other entities: those with civil rights
complaints against tribal governments
should be able to appeal their cases to
federal courts: tribes should have to
comply with environmental laws to the
same extent as state or private entities:
tribes should collect and pay any sales
taxes the courts say they are required
to pay: and tribes should carry liability
insurance like other government and
business entities to cover damages
resulting from theirneelieence. These
Red Lake primary election results, pg.  5
Gorton bill divided into 5 separate bills, pg. 1
WE casino mgr. operating without approved contract, pg. 1
Tribal consent required, pg.6
Ojibwe News celebrates 10th anniversary, pg. 4
\ oice ofthe People
1
8-mail. pressoiKffibji.net
Fifty Cents
Bill/to pg. 5
White Earth casino manager operating
without approved management contract
By Gary Blair
The Shooting Star Casino's contract
with its general manager has not been
approved by the National Indian Gaming Commission—an omission which
could prove costly for the contractor
and possibly the reservation.
The NIGC's approved management
contract list, as of Feb. 17, 1998, does
not include White Earth's agreement
with Shooting Star casino manager
Raymond J. Brenny. White Earth chairman Eugene (Bugger) McArthur entered into the first contract with Brenny
on Oct. 22,1996 and renewed it for another three years on Oct. 1,1997. Neither ofthe contracts with Brenny appear on the gaming commission's list.
Under the contracts, Brenny has been
paid $2,500 per week, or$ 130,000 ayear.
1 he latest contract also provides significant financial incentives for in
creasing revenues and/or reducing operating expenses.
White Earth secretary treasurer Erma
Vizenor said of Brenny Wednesday, "I
think he is doing a good job and he is
an Indian. How do you know that
Brenny's contract has not been approved?"
When told that your writer is in possession of gaming commission documents available through the NIGC's fax
on demand service, Vizenor said,
"Well, we're trying to do the best job
that we can. Our legal counsel is supposed to be taking care of these
things."
If the NIGC found Brenny's contract
invalid, they could take legal action to
have any funds received by the casino manager returned to the reservation. Vizenor had no comment on this
possibility.
In a letter to the National Indian Gaming Commission dated May 20.1998,
White Earth enrollee Roberta Brown
wrote as follows:
"Ladies and Gentlemen: A copy of
the contract referred to above is enclosed foryourexamination. I also have
a copy ofthe National Indian Gaining
Commission Bulletin No. 94.5 dated
October 14,1994.
"It seems to me that the consulting
contract is not what it seems and is
actually a casino management contract.
"The language of Bulletin No. 94.5
indicates that a casino management
contract must receive Commission approval. I also enclose a copy of the
White Earth Gaming Commission Minutes of October 22,1996, which adopts
and approves the contract.
"Was this contract ever approved by
the National Indian Gaming Commission? If the Commission has never approved the contract, then it is void un-
Manager/to pg. 6
mam
American
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Ojibwe
News
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Founded in 1988
Volume 10 Issue 32
May 22,1998
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Copyright Native American Press, 1998
Tribe, telephone co-ops involved in lawsuit
over tax
NEW TOWN, N.D. (AP) -- A six-
year-uiJ lawsuit pitting the Three
i.'iatod   Tribes   against  three
telephone cooperatives is continuing
despite a tribal offer to settle.
Tribal Chairman Russell Mason Sr.
said he and other tribal leaders were
disappointed that the rural co-ops
rejected the tribe's settlement offer
"with neither an explanation, nor a
counteroffer." Michael Geiermann, a
Bismarck attorney for Reservation
Telephone Cooperative, said the case
is in litigation, and issues are still
unresolved. The case involves the
question of whether the tribe has the
right to assess what it calls a
"possessory interest" tax on
Reservation Telephone Cooperative
and two other cooperatives.
The co-ops would be taxed for putting
such things as poles and cables on
tribal land. Reservation Telephone
Cooperative in Parshall is the lead
cooperative in the lawsuit, serving
most ofthe Fort Berthold reservation.
Consol idated Telephone Cooperative
of Dickinson and West River
Telecommunications Cooperative of
Hazen serve the Twin Buttes area in
the southwestern part of the
reservation.
Michael Roy, a Washington, D.C,
attorney for the tribe, said the tribe
proposes to settle for "something less
than the full payment" of what
Reservation Telephone owes for the
last six years. He did not give the
specific amount but said it was subject
to negotiation. Roy said penalties and
interest have built up over the past six
years, but Reservation Telephone has
paid money into an escrow account set
up in an agreement it made with the
tribe. The account probably has about
$200,000 in it, Roy said. In a statement
last week, Mason said the cooperatives
want to continue with a costly court
case. Geiermann said RTC has been
ordered to exhaust its tribal remedies
and will continue to do that. "RTC has
vigorousfy defended this," Geiermann
said, referring to the question of
whether the co-ops can be taxed by the
tribe, "but to respond to Mr. M
letter would not be proper at this
particular time." Tribal officials say a
meeting has been scheduled June 1 at
West River Telecommunications in
Hazen for more discussion with the coops. The tax, wh ich took effect in 1991.
would bring in about $25,000from RTC
per year for the tribe, according to
tribal officials. The two other
cooperatives would be taxed
considerably less.
The three telephone co-ops sued the
tribe in federal court in 1992,
challenging the application ofthe tax
to their rights-of-way on the
reservation. The court ruled that the
cooperatives must exhaust tribal
remedies, and dismissed the suit. A
federal appeals court affirmed the
decision in January 1996, and the case
is in litigation before the Fort Berthold
District Court in New Town.
I'KI ss ON Phoiobj !    \
Thomas "Jambi" Westbrook casts his vote in the 1998 Red Lake Primary Election at the Redby Community
Center on the Red Lake Nation. Election judge Bobby Head is pictured working in the background.
Brun faces Whitefeather, Beaulieu
vs. Roy, King vs. Seki at Red Lake
Power plant planned on Fort Mojave tribal
land
BULLHEAD CITY, Ariz. (AP) - An
independent California power
company is teaming up with an Indian
tribe to build a natural gas-fired
generating plant near the Arizona-
California border.
Calpine Corp. announced a 50-year
lease agreement with the Fort Mojave
Indian Tribe on Monday forbuilding a
500-megaw att plant on the reservation
south of Bullhead City, enough for
about 500,000 households.
The South Point Power Plant.
described as the first of its kind for an
Indian reservation, is to begin
delivering power to Arizona, Nevada
and California energy markets in 2000.
Officials said it will produce 250
construction jobs and will provide 20
long-term jobs when in operation.
"This is a major stepping stone for
the tribe and its membership, as well as
the Indian country as a whole," tribal
Chairwoman Nora Helton said. "Calpine
has proven to be a real player in the
independent pow er arena." The 42,000-
acre reservation straddles not only the
Colorado River but a point at which
California, Arizona and Nevada meet.
Though the 1.000-member tribe has
two casinos, it says competition with
nearby Las Vegas and Laughl in. Nev.,
holds down earnings, making the
electric plant even more attractive.
Meanwhile, it appeared an earlier
project was at least in jeopardy if not
dead. Early this year, the Mohave
County Economic Development
Authority announced plans for the
Power/to pg. 3
By Larry Adams
On Wednesday. Red Lake voters
were excited at the prospect of making
a change in their tribal government by
casting their votes in the Red Lake
Nation Primary Election.
Around Red Lake, the most-talked-
about topic was the Red Lake Tribal
Chairmanship position which has
Gerald "Butch" Brun vying against
current chair Bobby Whitefeather. An
off-reservation voter, who wished to
remain anonymous, said "This is
exciting! You can feel it in the air. All
over Red Lake people are excited."
At stake in the Red Lake Primary
Election are the seats for the Chairman,
Secretary. Treasurer and four district
representative slots for Red Lake,
Redby, Little Rock and Ponemah.
Since the violence a year ago
surrounding the Wesley Strong
stabbing death, beatings and deaths
of other Red Lake members,
community meetings were held where
concerned members voiced their
concern by asking the Red Lake Tribal
Council to crack down on drug dealers
and alcohol bootleggers on the
reservation in an effort to reduce
violence, drug and alcohol abuse.
Now, the people of Red Lake seem
more determined than ever to make a
change with a higher-than-average
voter turnout this week at the polling
booths in the community centers in
and around Red Lake.
Also, the Red Lake absentee ballot
election was held in Minneapolis
Monday. May 18,1998. According to
PRESS/ON sources. The Circle, a
Minneapolis monthly fluff, reported to
Minneapolis's Red Lake readers that
they could vote this Thursday. As a
direct result, only 121 Red Lakers
voted out of Minneapolis. How this
error could have occurred remains
unknown and how this will affect the
Red Lake Primary Election remains to
be seen.
Unless a candidate receives more
than 50 percent ofthe popular vote, a
majority of the election races in the
Red Lake Primary Election will have
run-off elections in the future to
determine the winners.
As of press time, the certified results
ofthe Red Lake Primary Election were
still unavailable. The results will be
published in this 32nd issue of the
Native American Press/Ojibwe News.
Justices to decide if states can tax road
repairs on reservations
WASHINGTON (AP) -1 he Supreme
Court agreed Monday to decide
whether states mav impose taxes on
contracting companies that build or
repair roads on American Indian
rtservationsaspartoffederal!) funded
projects.
I he justices -aid they will stud>
Arizona's attempt to collect taxes on
road construction on reservations
throughout the state. State courts
barred such taxation, ruling that it w as
pre-empted by federal law.
In the appeal acted on Monday,
lawyers for Arizona argued that federal
law protects tribes and tribal members
- not contractors doing business w ith
the federal government - from stale
taxation. Blaze Construction Co. is a
wholly Indian-owned business,
incorporated under the laws of the
Blackfeet Tribe in Oregon. It works
exclusively on reservation projects. In
the early 1990s, Blaze signed 19
contracts w ith the federal government
for a series of road projects on six
reservations in Arizona.
Each ofthe projects was funded w ith
Federal Highway Administration
funds. Arizona played no role in the
planning or development of the
projects, issued no permits and
provided no quality or safety
inspections. But the Arizona
Department of Revenue assessed
delinquent transaction priv ilege taxes
against Blaze, computed on  the
company's gross proceeds from
building on-reservation roads for the
federal Bureau of Indian Affairs.
Arizona lawyers pointed out. in the
appeal acted on Monday, that many of
the federally owned roads feed into the
state highway system, and that the
New Mexico Supreme Court has
allowed such state taxation. "This court
should ... clarify that federal law does
not prohibit state taxes on commercial
transactions between non-tribal
members." the state's appeal said.
Lawyers for Blaze had urged the
justices to reject Arizona's appeal,
contending that the conflicting state
rulings was not enough justification
for review. The case is Arizona vs.
Blaze Construction Co.
U.S. Supreme
Crow coal tax
HELENA. Mont.(AP) -- The 20-year-
old legal battle over Montana's
taxation of coal mined on the Crow
Reservation may not be over, despite
a U.S. Supreme Court decision Monday
that the state does not have to pay the
tribeS58 million forillegally collected
taxes. While rev ersing a federal appeals
court ruling that would have required
that payment — and hundreds of
millions more in interest — the high
court held out the possibility the tribe
might recover some money.
Justice Ruth BaderGinsburg. writing
for the court, said U.S. District Judge
Jack Shanstrom of Billings is free to
decide the tribe is entitled to some
lesser amount. "We do not foreclose
the District Court from any course the
federal rules and thatcourt's thorough
graspon this litigation lead it to take."
she said.
Still, the decision was a big victory for
the state and an enormous loss for a
Court gives state victory in
dispute
tribe with half of its 6.000 members
unemployed and living in poverty. "It
removes a real dark cloud from our
fiscal outlook." said Dave Lewis, state
budget director. Had the tribe won. the
state would have had to pay an
estimated $300 million in taxes and
interest. "I'm disappointed and the
tribe's disappointed." said Bob
Pelcyger. attorney forthe Crow tribe.
"But it appears that the door has not
been closed and there are courses of
action that the tribe could pursue."
One option will be to ask the trial
judge to award the tribe a smaller
amount of taxes and interest, he said.
Pelcygeremphasized the tribe had not
determined all its choices. Attorney
General Joe Mazurek said the Supreme
Court also appeared to leave room for
the tribe to seek money in the form of
damages, although he believes the
state already has shown any economic
impact on the tribe was minimal.
"We'll just have to wait and see what
the tribe asserts to the District Court if
and when they come back," he said.
"What we can say now is the risk to the
state of a large money judgment is
largely reduced." Ginsburg said the
restitution sought by the court -- and
previously ordered by the 9th U.S.
Circuit Court of Appeals - "is not
warranted." She cited previous rulings
that someone may not sue fora refund
of taxes paid by another. Ginsburg also
noted the tribe never argued for less
than fu II payment ofthe taxes or made
a case for damages.
The case began when the tribe sued
the state in 1978. two years after
Montana enacted its 30 percent coal
severance tax. In January 1988. the
U.S. Supreme Court said taxing Crow
coal was illegal and $23 million in taxes
held in a special account since 1983
was given to the tribe. The Crows
returned to court to get the money
CrOW/to pg. 3