UNCASVILLE, Conn. -- The American Indians and the European colonists first clashed in the woods of southeastern Connecticut more than three centuries ago.
Last week, about 60 tribes from across the country came here to prepare a new battle plan.
These modern-day tribes are fighting for much the same things as their ancestors: trading and territory. But whereas the Indians of the 17th century fought with weapons, today's tribes fight with PowerPoint presentations, court briefs and high-priced lawyers.
Welcome to the Fifth Annual Intertribal Tax Conference, held Thursday and Friday at Mohegan Sun, one of world's largest casinos and a signpost in the Native Americans' fight for prosperity.
More than 250 people -- Indian tax commissioners, tax lawyers from Chicago and Washington, D.C., and court watchers -- gathered at the Indian casino to discuss legal strategies in the struggle to preserve what they argue are the tax-free rights of Native American tribes.
Tribes from New York to Oregon say they are fighting increasingly aggressive efforts by state governments to tax Indian commerce.
"The non-Indians will never give up," said Rick Jemison, the chief of staff to the president of the Seneca Nation in upstate New York, which is battling with that state for the right to sell tax-free cigarettes. "They always want what they don't have. They have proven that time and time again."
Native Americans argue that their status as federally recognized tribes exempts them from state taxes. Many state governments disagree.
The Narragansetts of Rhode Island are the latest tribe to enter the fray. Last month, the state police raided the tribe's tax-free smoke shop in Charlestown, after Governor Carcieri declared that the cigarettes were subject to state taxes.
"Don't let them take away your sovereignty," Narragansett Chief Sachem Matthew Thomas told the conference, during his keynote speech. "Fight until the end."
THIS KIND of battle cry might seem out of place in a room full of tax lawyers and tax commissioners.
But the Indians see taxation at the heart of their right to exist as sovereign nations -- a right which they say is established explicitly in the U.S. Constitution.
As evidence, the Indians cite a passage in the Constitution authorizing Congress to "regulate commerce with foreign nations, among several states and with Indian tribes."
For years, the impoverished tribes didn't have much to tax. But as their casinos began to flourish -- as a result of the federal Indian Gaming Regulatory Act of 1988 -- the states wanted a slice of the revenue.
In recent years, states have tried to tax Indian cigarettes, fuel and casinos.
"Now, our people have money," said Robert Odawi Porter, a law professor at Syracuse University and member of the Seneca tribe, which in addition to its booming tax-free cigarette business has opened a new casino in Niagara Falls. "Earlier, our people didn't have money."
The New York legislature, strapped for cash, wants to start collecting a tax on cigarettes sold by Indians, after years of allowing their tax-free sale in Seneca territory. Federally, the Senate is considering a bill that would prohibit cigarette sales over the Internet -- another boon for the Senecas.
MOST TAX disputes, like the Narragansetts' smoke-shop fight, have gone to federal court. But, as many legal experts testified at the tax conference, the federal courts -- particularly the U.S. Supreme Court -- are no friend to Native Americans.
Robert N. Clinton, a professor at Arizona State University law school and an expert on Indian law, said the Supreme Court has gradually eroded the ability of Indians to live free from state taxes on their own territory.
In many cases, tribes are now being required to levy state taxes on non-tribal members who buy Indian goods. At the same time, they have lost some ability to levy their own tribal taxes, Clinton said.
"What the Supreme Court is doing is creating a climate which gave the Rhode Island officials the belief they could do what they did, which is not a healthy development," he said.
Clinton and others said the Indians should avoid taking their tax disputes to state or federal courts. "This is the not the climate to be litigating." Clinton said.
SO WHAT is the Indians' next plan of battle?
Clinton, for one, urged tribes and states to negotiate their tax disputes instead of going to court.
In the Narragansetts' case, the tribe and the state are so far apart on the issue of whether state tax law applies to the Indian smoke shop that the conflict seems intractable. In Kansas and Iowa, cases involving the ability of Indians to sell tax-free fuel are tied up in litigation that could take 10 years to resolve, lawyers said.
The model for negotiated settlements is the agreement between Connecticut officials and the Mashantucket Pequot and Mohegan Tribes -- which gave rise to Foxwoods in 1992 and Mohegan Sun in 1996 -- two of the nation's most profitable casinos. Mohegan Sun alone generated $1 billion in revenue last year.
"Look at Rhode Island and Connecticut," said Clinton. "Both states have two great Indian leaders, both have tried to negotiate settlements. In one case, it has been highly successful. In another case, it has been a failure of leadership" on the State of Rhode Island's part.
In lieu of taxes, Connecticut reaps 25 percent of the slot-machine revenue -- about $369 million in 2002, according to the state Department of Special Revenue.
Conference-goers marveled at the opulent Mohegan Sun, a casino and conference center filled with stores and restaurants, a star-speckled ceiling, a Starbucks and a steady stream of people, playing the slot machines as early as 7:30 a.m.
And it all sprang from a tribe, whose lands had been reduced to a small lot and white church on the Thames River until it was granted, with the help of a developer and lobbyists, federal recognition in 1994.
The Narragansetts, meanwhile, said they were forced to open the tax-free smoke shop in a trailer in Charlestown because Carcieri and the General Assembly did not authorize a statewide referendum asking voters to approve an Indian casino.
IN 1996, U.S. Sen. John Chafee introduced a "rider" into federal law that essentially subjects the Narragansetts to the same state law that applies to non-Indian gambling enterprise.
Under the rider, the tribe -- like any other gambling enterprise -- must seek public voter approval for a casino.
Many tribes represented at the tax conference already have casinos and share revenue with the state.
The Narragansetts do not have the kind of bargaining power that comes with a casino. But Porter said there are other ways of asserting soverignty. More tribes should engage in civil disobedience to assert their rights, he said.
Porter cited the 1969 occupation of Alcatraz island, site of a former prison in San Francisco Bay, by a group of Indians, that galvanized tribes around the country.
Porter mentioned the Senecas' showdowns with the New York State Police over the right to sell tax-free tobacco in which the tribe shut down portions of the interstate running through the reservation in the 1990s. The state has never collected the tax.
"If we didn't have those . . . crazy Indians doing what they were doing at times during our history," Porter said, "we wouldn't be talking about sovereignty. We wouldn't be free."
Porter questioned the very premise of sharing tribal revenue with the states: "When we start writing checks to a government that does not have any authority under the law to tax your income, that is sad."
Porter suggested that if tribes feel their sovereignty is being threatened, they should shut down their casinos, forcing the states to deal with a loss of jobs for non-Indians and a loss of revenue.
"We have so many non-Indians dependent on us, we have to use what we have to get what we need," Porter said.
The Narragansetts don't have that kind of leverage in Rhode Island. But by refusing to obey state law, the tribe might just have strengthened its hand, Porter said.
"The Narragansetts had nothing to lose," he said.
DIGITAL EXTRA: Recap coverage of the smoke-shop dispute, find related court and police documents, links and more at:
http://projo.com/extra/2003/smokeshop/
