The Legislature is trying to force the sovereign Three Affiliated Tribes into adhering to the legislative oil tax rates after they cut the tax in 2015. To accomplish this, they are amending the oil and gas tax agreement structure. The move adopted by the Senate on March 27th would place the Legislature between the Governor and the sovereign tribal governing bodies when it comes to oil and gas tax rates. It is a move that Governor Burgum should strongly consider rejecting if the Legislature successfully sends it to his desk.
Currently, The Three Affiliated Tribes Oil and Gas Agreement states the Governor, in consultation with the Tax Commissioner, may negotiate government-to-government agreements with the sovereign tribal governments. The Legislature must consent to the agreement for it to become law. That is exactly what took place in 2013.
At the beginning of the current session, Rep. Al Carlson introduced HB 1166 to eliminate the newly added trigger from 2015 at $90 per barrel of oil. It also changed the language in the Three Affiliated Tribes Oil and Gas Agreement to say the tribe cannot tax above the 5% extraction tax rate the Legislature unilaterally cut from 6.5%. That cut has cost the state $15 million dollars per month according to the nonpartisan Legislative Council. During the hearing in the House, the Chairman of the Three Affiliated Tribes suggested if the Legislature again alters their agreement, the second time in four years, the sovereign tribe would consider leaving the agreement. It passed the House after removing the language that impacts the Three Affiliated Tribes Oil and Gas Agreement.
Carlson likely thought his vengeful ways to get back at the tribes through state law had stalled. Not only did his casino measure get overwhelmingly defeated, but forcing a sovereign tribal government into a unilaterally decided oil tax rate was also removed. “Hold my beer and watch this.” I imagine Senator Jessica Unruh muttered as she offered what she falsely claims is just “clarification language” to Carlson’s bill in the Senate Finance and Tax Committee. Her amendment again forces oil tax rates decided only by the Legislature onto the sovereign Three Affiliated Tribes. The “trade off” with this amendment is it maintains the trigger created at $90 per barrel that Carlson wanted to be removed.
To suggest Section 2 found on page three of the Unruh amendment is “clean up language” is disingenuous. Yet, it is not as disingenuous as a candidate running for the Senate in District 4, which houses the Three Affiliated Tribes, to campaign on strengthening tribal sovereignty. Candidate Jordan Kannianen told the tribe, “oil wells on trust land should not be taxed by the state.” That is a really bold statement. Senator Jordan Kannianen told the tribe they’ll do as the state legislature says when he voted in favor of this amendment and then the bill’s passage. Sovereignty be damned.
Though the exact same language in this amendment was not present in the original bill offered by Carlson, the intent sure was. That fact alone leads me to believe the House is likely eager to accept the Senate changes. “Senator Unruh I will not only hold your beer, but I will also order the next one and put it on the Petroleum Council’s open tab!” Carlson probably would reply.
The debate that took place on the Senate floor had some interesting back and forth. Senator Dwight Cook seems to think the Legislature needs a larger role in the negotiating process of these agreements. Senator Richard Marcellias, who is a former Tribal Chair of the Turtle Mountain Band of Chippewa, disagreed with Cook stating he believes the Governor should have the authority to negotiate with the sovereign tribes because “he is the leader of our state.”
What value is our word and our signature on an agreement? This plays into our worst stereotype of our treatment of Native Americans – Senator Jim Dotzenrod
At the end of the day, can the Legislature force this onto the tribes? They are sovereign governments. I don’t believe anybody wants dual taxation on the oil industry. It would cause confusion for the industry if they had one rate on tribal land and another outside of it. But the state, through the legislature, hasn’t exactly been good partners in their consent of the 2013 agreement. Their unilateral move to cut the tax in 2015 hurt state revenue and impacted the budget of the Three Affiliated Tribes. Shouldn’t the tribe have a say?
Governor Burgum used his veto pen for the first time on March 27th. He made a power play that may be overturned by the Legislature. But Burgum’s argument for his veto was to preserve the authority and power of the Governor’s office. Ironically on the same day he issued his first veto, the Senate would amend and pass an oil and gas bill that truly impacts and puts into question his role and authority. It also further strains the state’s relationship with the tribe, something Governor Burgum has actively tried to heal since taking office. He should be commended for his desire to build those bridges. Burgum would be wise to keep his veto pen near so if the Legislature succeeds in getting this change to his desk he is not kicked to the curb in negotiating with our tribal neighbors. As Senator Marcellais said, Burgum is the leader of our state. This may be an opportunity to prove it if needed.
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