Stokes: ‘There is a next step’

Published 1:07 pm Saturday, June 9, 2012

A federal Indian Affairs statement has not put an end to a dispute between the Poarch Band of Creek Indians and the Escambia County Commission over potential taxation of tribe properties — in fact, the fight might be just beginning.

“Short and vague” were the words the commission’s attorney Bryan Taylor used to describe the letter from the U.S. Department of the Interior concerning the ongoing debate between the commission and the Poarch Band of Creek Indians.

The Poarch Band of Creek Indians said this week that the Interior Department’s statement — which affirms the tribe operates on land held in federal trust — proves the tribe is no jeopardy of taxation from the county or state government. But members of the Escambia County Commission disagree — and are considering further action.

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“There is a next step,” Escambia County Commission Chairman David Stokes said. “We will weigh our options on how we can obtain some answers. This has been an attempt to divert attention from what the real issue is.”

According to the letter, sent by Acting Assistant Secretary for Indian Affairs Donald E. Laverdure, “the Band’s Reservation, including the portion of the Reservation that is situated within the geographical boundary of Escambia County, Alabama, is held in trust by the United States for the benefit of the Band. As such, the Band enjoys all rights and privileges associated with having its Reservation held in trust by the United States under federal law.”

PCI officials said in a release the letter is “decisively dismissing (the Escambia County Commission’s) contention that the Poarch Band of Creek Indians’ lands are not protected by federal laws. This letter shows that (commission Chairman David) Stokes’ attempt to tax the Tribe’s trust lands is without merit.”

Stokes, on the other hand, said this week the Interior’s letter actually only tells the commission what they already knew, confirming the Tribe was granted federal recognition in 1984 and has enjoyed the resulting privileges since. Stokes said the letter does not address the commission’s initial question of whether or not a 2009 U.S. Supreme Court ruling applies to PCI.

The letter the commission sent to the Secretary of the Interior, Stokes said, asks if the ruling in Carcieri v. Salazar, denying a Rhode Island tribe 31 additional acres of trust land, sets a precedent that would dissolve land PCI currently holds in trust in Alabama, making that acreage taxable by local and state government.

Stokes said the question about whether the lands were protected was never at issue — taxation was the reason behind the request for clarification on the rule.

“The reply we received is disheartening,” Stokes said. “It was just a very vague answer from the Interior to side-step a very simple question. That question is if the tax exception of the Indian Reorganization Act is still one of the Poarch Band of Creek Indian rights and privileges after the U.S. Supreme Court decision.”

Commission attorney Taylor — who was hired specifically to look into the issue — said he is not surprised that the Interior did not address the county’s question.

“In the Carcieri case, the U.S. Supreme Court ruled that the Secretary of the Interior does not have legal authority to administratively exempt an Indian tribe from state and local taxation if the tribe was not a ‘recognized tribe under federal jurisdiction’ by 1934, when Congress enacted the tax exemption for Indian tribes of the day,” Taylor said in a statement. “The Poarch Creek Indians were not recognized until 1984, but have not paid property, sales, and other taxes that all other county residents and businesses have to pay. In its two-paragraph reply letter, the Interior Department completely ignored the Carcieri ruling — the letter doesn’t even mention the case — and provided no statutory or Constitutional references whatsoever.”

Taylor himself said the reply is “typical.”

“It’s a textbook example of federal arrogance,” he said. “It doesn’t point to a single law, a single regulation, or a single case to support the PCI’s claim to tax-exempt status after the Supreme Court’s ruling in the Carcieri case.”

Taylor stressed the commission’s involvement began with a simple question about the two cases because they have an obligation to enforce tax codes on all citizens and organizations that are required to pay those taxes.

“Clarification is important,” Taylor said, “because the county is legally and constitutionally obligated to apply the tax laws fairly and equally to everyone determined to be subject to them. Unfortunately, the Interior Department letter does nothing to bring clarity to this situation, and the county commission is still faced with the prospect of being sued by a taxpayer under Carcieri for failing to tax the PCI equally as all other taxpayers.”

Submitting the request for a legal opinion, Taylor said, was “simply a procedural requirement for keeping all of the county’s options open.”

“What’s important procedurally is that we gave them that opportunity,” he said. “It is telling that the Interior Department will not — or perhaps, cannot — offer up a simple explanation of the legal basis for the PCI’s tax-free status after the Carcieri ruling. If there is one, we’d just like to know what it is.”

Taylor explained that the county commission — and, no doubt, the PCI — “would have preferred to receive from the Interior Secretary a solid legal opinion backing up the PCI’s claim to tax-exempt status with a reference to some — any — legal authority. At least that would have provided clarity and perhaps even resolved all of this in the Tribe’s favor, but regrettably, the lack of clarity after the Carcieri ruling still remains: Is exemption from state and local taxes still one of ‘the rights and privileges’ enjoyed by the PCI, and if so, what’s the legal basis for it? It’s a simple question, and, not surprisingly, the Interior Department punted.”

PCI officials said the letter confirms the concrete protection their Tribal lands enjoy.

“Indian tribes are recognized several times in the United States Constitution. Most notably, the commerce clause acknowledges that tribes are considered separate, distinct governments, as are states and foreign nations. Therefore, none of these entities, nor their lands is, subject to taxation by another form of government.”

Head of Tribal Affairs Robbie McGhee said he is glad to see an end to the ordeal surrounding the commission’s attempt to tax PCI land.

“It is unfortunate that Chairman Stokes did not attempt to sit down with the tribe before taking this action,” McGhee said. “His move by the commission has clearly strained our relationship. We have given the commission hundreds of thousands of dollars to be spent on improving the county. We have paid millions in taxes and created thousands of jobs that employ county residents and add to the tax base. This was a short-sighted attempt on the part of the commission that we hope will not have a long-term effect on the relationship between our government and the county.”

Tribal Chairman Buford L. Rolin said PCI will continue to contribute to the City of Atmore, Escambia County and the State of Alabama.

“We are committed to being good neighbors to Escambia County and throughout the State,” Rolin said. “We are pleased to be able to continue to create jobs, contribute millions of dollars to the schools, provide fire protection, public safety and infrastructure improvements in Escambia County and serve as an economic driving force in Alabama.”

Taylor said the commission just wants to know what the Supreme Court ruling means with respect to the PCI’s tax status.

“To that end,” he said, “the commission is exploring a number of options to obtain that clarity, including whether the Interior Department’s letter may provide a basis for judicial review.”