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TESTIMONY BEFORE THE TREASURY TRIBAL TAX ADVISORY COMMITTEELUMMI NATION CONCERNS ABOUT

PREVENTION OF FEDERAL TAXATION OF CEREMONIAL ACTIVITY”

Jewell James, Lummi STP Office 

(jewellj@lummi-nsn.gov or 360-312-2287)

July 2019

PURPOSE: The purpose here is to address why tribal leaders need to define the scope of “What 

are Ceremonial Activities?” In the Tribal General Welfare Exclusions Act of 2014 this activity is 

excluded from federal taxation. Neither the tribes or IRS have adequately defined the scope of 

traditional tribal ceremonial practices. This opens individual Tribal Indians up for IRS tax 

collection actions (due to filed 1099 forms). Over time, Tribal leaders have sought and secured 

changes in the application of federal and state taxes to Indian Country- through acts of congress 

or court actions. Collectively, we have battled against external taxation inside our boundaries as 

invasive to our sovereignty. Our tribal people and their ceremonial practices must be protected. 

We have to defend our traditional practices from external influences- to tax a right is to destroy 

that right. I believe federal Indian law (as adjudicated) predominantly is schizophrenic and 

unconstitutional. We must work hard to take the madness out of tax law as applied to Indian 

Ceremonialists. As a traditional artist, I just prevailed in my appeals to stop taxation of 

ceremonial activity (Pacific NW Totem Art). I understand the Seattle IRS Office has been directed 

to stop auditing artists/ceremonialists based on the 2014 Act. The question then is “Are we 

going to protect all our ceremonial tribal people across the United States?”

We are fortunate to have prominent tribal leaders appointed to the Treasury Tribal (Tax) 

Advisory Committee originally called for by the 2014 Act. These Appointees are William Ron 

Allen of Jamestown S’klallum, Lacey Horn of the Cherokee Nation, and Marilynn Malerba of 

Mohegan, Sharon Edenfield of Confederated Tribes of Siletz, Patricia King of Oneida Nation, 

Eugene Magnuson of Pokagon Band of Potawatomi, and Rebecca Benally of Navajo Nation. 

These leaders advise the Secretary of the Department of Treasury on tax issues impacting 

Indian Country, as well as work to assist in establishing education and training programs for the 

IRS and its field agents that work with tribal governments. In recognition of their prominence, 

this memorandum is drafted specifically with them in mind, as my report to them for the 

Lummi Nation. Below we shall address the trail of injustice in the application of federal tax law 

to Indian Country. For those others that receive this report, your comments and concerns can 

be sent to info@ttacresources.org. 

As tribal nations and tribal people, we have survived historic attacks upon our traditional 

knowledge and ceremonial practices. It has been over five hundred-plus years since discovery 

and we have not completely converted to Christianity or completely assimilated into the United 

States. We have fought off attempts to disband our tribal people. We have been able to save

and salvage our collective, traditional ceremonial knowledge and practices. As tribes working 
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together, we have defended our rights to exist as Indigenous Nations and Peoples. Our 

resistance shall continue for another five hundred years. You, as tribal leaders, are surrounded 

by traditional ceremonial people when you are in your homeland. You encounter this same 

extensive cultural awareness in all your interactions with other Native Nations. You are at the 

front line, as a tribal leader, defending tribal people and their indigenous rights, spiritual gifts 

and practices. Native American ceremonialism & traditional knowledge is the backbone to our 

existence as tribal people.

Let me remind you, at one time we were completely sovereign, independent Indian nations. We 

owned our aboriginal territory. Our people owed allegiance to their tribe first and foremost. 

They were not “citizens” of any foreign power. We conducted intertribal commerce and war, 

before the white race came here. We had our own spirituality that endowed everyone with the 

right to their ritualistic/ceremonial practices and cosmological beliefs. We were rich with 

traditional knowledge that blended our lives with the natural world around us. We were nearly 

completely disease free, except for matters of depression- such as grief from the lost of loved 

ones or spiritual impoverishment at the individual level. We were surrounded by plants and 

wildlife that flourished and sustained us. Now, we live in a world where extinction of species is 

a daily reality. Sustained yield has become a thing of the past.

Today, we live in a time in which the U.S. Department of Treasury, Internal Revenue Service, is 

constantly at our tribal doors seeking ways to apply the whole U.S. Internal Revenue Code to 

Indian Country. IRS Agents are encouraged to find new ways to apply the tax laws and to 

identify test cases that will result in multiple millions or even hundreds of millions of new “tax 

dollars” for the United States from Indian Country- like in the Miccosukee case (1.4 billion dollar 

lost to the US/IRS). IRS agents enter Indian Country based 1099 forms that report “gross 

income” not claimed on the 1040 form, and armed “tax court decisions.” In place of guns they 

have tax court opinions based on legal fictions.

These “tax cases” are important to them because congressional enactments or treaties-made

with the Indian tribes (about 700) do not authorize their presence in Indian Country. The only 

real authority for IRS activity inside Indian Country is court precedence based on legal fictions

tied to the idea of “Indian Citizenship.” In 1986, in a congressional hearing, Dr. Rudy Ryser 

estimated that the U.S. Indian budget was about one billion dollars but the U.S. took four billion 

or more annually from Indian Country via federal taxes upon Indian land, estates, income, and 

commerce. Multiple billions of dollars are leaving Indian Country, annually, in the form of 

federal taxes. This, then, has stimulated individual states to move in and secure more taxes.

The subject matter of this memorandum is about “Ceremonial Activity” that is excluded from 

taxation under the Tribal General Welfare Exclusions Act of 2014. When we organized to 

defend our rights to help our poverty-stricken people (per general welfare), we included 

demands to protect ceremonial activity; both were addressed in the 2014 Act. We recognize 

the Miccosukee Case (2018) has created tension and confusion on what is “extravagant or 

lavish” assistance per the General Welfare activity; but, in this paper, we seek to address the 

emerging conflict over the definition of “ceremonial activity.” First, we need to understand the 
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evolution of legal fictions that lead up to the taxation of “Tribal Indians” and keep in mind that

it is a “tribal Indian” that conducts ceremonial activity. For this purpose, I shall review some of 

the historic (tax) injustices that have developed due to tax court decisions, and our failure to 

devise constitutional challenges to IRS taxation collection activity.

In the beginning, we were separate from the rest of the world until the “Discovery” era began. 

“Discovery” of our lands opened up huge profit potentials for the “Discovering Nations.”

Eventually, the European Nations began to compete with each other. Each nation was racing to 

discover and claim parts of the Western Hemisphere- that were not discovered by a prior

Christian Nation. All these nations, through their kings and queens, considered themselves to 

be a part of the “Catholic World” and subjected to the influence of the Pope (through Papal 

Bulls). During the Discovery era, the Reformation began- causing division within the Christian 

World. Emerging nation-states began to separate from Catholicism but remained (reformed) 

“Christian Nations.” These European Nations were confronted with conflicts in claims of 

discovery. They could go to war with each other over whose discovery was superior to the 

other, based on church doctrines and Papal Bulls. Instead, the “Discovery Doctrine” emerged to 

govern & resolve conflicting discovery claims between nations. 

This doctrine would insert a “first in time” rule, hopefully to circumvent conflicts that may have 

led to open war. The first Christian Nation to discover an unoccupied land (or land occupied by

non-Christian people) had superior rights to all subsequent discoveries by other Christian 

Nations. This helped the nations avoid unnecessary wars. This doctrine gave right to the First 

Discovering Nation to enter relationships with the native people that occupied the lands. It did 

not give them dominion over the natives themselves; although the church required them to 

subjugate the non-Christians if they could, and allegedly then gave them “god granted 

dominion.” Centuries passed as the conflicts continued to manifest. European nations sought 

massive territories initially to exploit the abundant natural resources (at first gold and silver)

and eventually to settle colonies within.

In North America there were conflicting discovery claims by the English, French, Spanish, and 

the emerging united colonies that eventually sought independence and self-government. The 

Declaration of Independence led to the 1776 Revolution. Britain lost. Colonies became 

individual states, states became organized into the “Confederated” United States. The 

Confederacy was going to lead to interstate warfare. A solution was needed. The Constitutional 

Congress gathered. The results was a “sovereignty” based on the “People” and not “state 

sovereignty. This 1787-89 “Popular Sovereignty” constitution is composed of limited 

delegations of authority from the people to the government.

Prior to the 1787 constitution ratification, a conflict in rights to purchase lands from the Indians 

had brewed amongst colonialists, colonies, and the rights of the king. The king claimed all rights 

to govern the territory and relationships with the native nations. It began before the 

Proclamation of King George (1763). It culminated in the Supreme Court decision in Johnson v. 

M’Intosh, 1823. It took about seventy years for the case to ripen for judicial review. Individual

colonials, and investors, had sought to purchase land directly from the tribes- without 
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authorization of the King. The king ordered the colonialists to stop (1763) on the grounds that 

only the king can purchase these lands from the Indians. 

About twenty-six years later, the popular sovereignty constitution was ratified (1787-89). It 

provided for the formation of the U.S. Supreme Court (Article III). Sixty years later, Chief Justice 

Marshall would decide the case. He could have decided in favor of tribal independence and

sovereignty- which would meant the tribes could dispose of their lands as they saw fit. But, he 

ruled that only the U.S. can authorize such sales, with the belief that the Indians only had a 

right to occupy the territory and could not freely alienate their lands.

At the time, Chief Justice Marshall, and his father, had pending land grant applications in the 

U.S. government system. Between them they sought to secure title to 258,000 acres inside of 

Indian Country. Marshall’s M’Intosh ruling would preserve the very system that would 

guarantee their private ownership of the lands they applied for. This decision would have 

impacts beyond the United States, rationalizing “colonial nations” to rationalize dominance and 

theft of indigenous lands/territories (e.g., in USA, Canada, Australia, New Zealand). 

Afterwards, the court’s M’Intosh ruling would be considered the cornerstone of federal Indian 

law. It artificially limited Indian Tribes’ inherent sovereign status. Tribes were inherently

separate and now by “white discovery” we only occupied our lands by their permission. Keep in 

mind, the Discovery Doctrine was intended to limit conflicts between Christian Nations. In this

case, Marshall basically said, in M’Intosh, that “We know it is all based on a lie, but if we admit 

it is a lie, then we have to give it all back. And, we can’t do that, so we have to act as if the lie is 

true.”

Marshall would go on to rule in Worcester v. Georgia (1832) that the federal government had 

sole power over Indian Affairs, and the relationship between the tribes and the United States 

was Nation-to-Nation. And, that no state authority existed inside of Indian Country- it was 

extraterritorial to the state. Now, based on the “Indian Commerce Clause” and the “treatiesmade clause” and the “Supremacy Clause” this was appropriate. In that light, the U.S. power 

over “Indian Affairs” was plenary (superior to the individual state, and exclusive). Treaties 

established government to government relationships. The Indian Commerce Clause authorized 

the U.S. to regulate their peoples’ commercial/trade relationships with the tribes. In the early 

years, all non-Indians had to have an “Indian Traders License” to legally enter Indian Country, or 

face federal trespass charges. States had no authority to regulate this commerce (dormancy 

aspect of the commerce clause).

However, in Cherokee Nation v. Georgia (1831), Marshall ruled that the tribes were 

“dependent, domestic sovereignties” and “like the ward to the guardian” were in a state of 

tutelage. The M’Intosh case claimed we only had a right to occupy our lands and the 

“Christian” claim was superior to any tribal rights. While Worcester should have kept the 

state(s) out of Indian Country, the Marshall Court turned us all into incompetent people and 

nations- needing the United States to control our lives and lands. In time states entered our 

reservations and applied their police and taxation powers, primarily based on court-made law. 
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And, the BIA became our “guardian” as we became “wards.” The BIA stole everything (See: 

Cobell Settlement, 2012) but controlled our lands and lives since we were considered legally 

incompetent (see impacts of the General Allotment Act of 1887, as amended in 1910). 

Over the past couple hundred-plus years the Supreme Court rulings and federal Indian law have 

become schizophrenic- one legal personality protects the tribes’ sovereignty while the other 

subjugates them into incompetent nations and people. This attitude toward Indians has 

permeated the whole federal government, and like a disease has spread legally & politically to 

the states. Today we have states taxing inside our boundaries, even when the state constitution 

forbids this type of jurisdiction (e.g., Washington State Constitution, Article 26). Based on the 

“Equal Footing Doctrine” and national plenary power over Indian Affairs, the states disclaimed 

jurisdiction as the price to enter the Union.

Marshall was deeply aware of the intent of the 1787 Constitution Founding Fathers, when it 

came to “tribal Indians” and “Indian Tribes.” The Founding Fathers knew Indian Country was 

separate from the United States. He was a participant in the development of the U.S. popular 

sovereignty constitution. He witnessed the Great Compromise of 1787 between the large and 

small states, as this status impacted the formation of the House and Senate. At the time of the 

Constitutional Convention Debates, there existed the large states that the king had originally 

given colonial charters that granted extensive land claims. These charters gave those states

claims to the western lands- all the way to the South Sea (Pacific Ocean). The king was not 

aware that the “North American Continent” was not narrow like Middle America. These large 

states gave up their western land claims on the condition that “New States” could be formed 

therein and admitted into the Union, on an equal footing like the original 13 states. A part o f 

the deal was the “pending states” did not have control or power over Indian Affairs. It was a 

power plenary to the national government. This was a means to prevent unjust wars emerging 

between the Indian Tribes and the United States or with individual states. Indian Tribes and 

Tribal Indians were not included in the popular sovereignty government established by the 

1787 Constitution. They were outside of “We the People of the United States.”

It is like there is a Constitutional Divide. This is much like the Continental Divide. But, in this 

instance, the original U.S. Constitution language that structured the US relationship with tribal 

Indians and Indian Tribes is still constitutionally intact, although not thoroughly comprehended 

or complied with. This divide was built with purpose, with intent, it fit within the Check and 

Balance System that made the national government functional within limited power. It 

balanced the powers of state versus national governance for the benefit of the People.

Tribal Indians could not be citizens (see: Elk v. Wilkins, 1884) per Article I, Section 2, Clause 3 

(Excluding Indians not taxed). This intent was retained in the 14th Amendment (Section Isubject to the jurisdiction thereof- per US Citizenship, Sec. 2- Excluding Indians not taxed per 

state citizenship). During the Reconstruction Debates the congressmen argued that Indians are 

not subject to the jurisdiction of the United States, that is why they entered treaties with the 

tribes and regulated trade/commerce with them. And, they cannot be a US Citizen, they are 

tribal Indians. But, to make sure the states do not do that which the United States cannot do, 
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the original language of “Excluding Indians not taxed” was inserted, to limit the states. This 

language blocked the general application of the “naturalization” powers (Art. I, Sec. 8, Cl. 4) to 

tribal Indians as a whole, distinct constitutional class.

If the United States wanted to have trade or commerce with the Indian Tribes then it was 

authorized to establish it under the Indian Commerce Clause (Art. I, Sec. 8, Cl. 3). Or, it could 

enter treaties with the tribes (Art. II, Sec. 2, Cl.2). Once the President negotiated, and the 

Senate ratified the respective treaty it became Supreme law of the Land (Art. VI, Cl. 2). Any 

challenges to the treaty went to the federal/Supreme Court (Art. III, Sec. 2, Cl. 1). 

When “New States” (Art. IV and NW Ordinance of 1787) entered the Union (anticipated by the 

Great 1787 Compromise, and per the Equal Footing Doctrine) the tentative state had to admit 

the US had plenary power over Indian Affairs. This “plenary power” meant it was a power of the 

national government superior to the state. The new state had to disclaim jurisdiction over 

Indians and Indian lands. These “Disclaimers” were incorporated in the “organic territorial acts” 

of the pending state or their draft state constitution before becoming a member of the Union.

It was clear that the US had control over Indian Affairs & commerce with the tribes- and the 

state did not. This is called the dormancy aspect of the Indian Commerce Clause. Just as in 

Article I, Section 10, states do not have treaty-making powers but could enter interstate 

compacts with the consent of congress. In modern congressional authorization, the tribe(s) and 

state could enter compact to regulate gaming activity- placing tribes in the position as a state. 

However, congress never authorized tribal/state liquor and tobacco compacts.

In addition, all officials (state and federal) were obligated to honor the treaty commitments 

(Art. VI, Cl. 3), as well as the constitution and acts of congress, as “Supreme law of the land.

This separate status of “tribal Indians” (and Indian tribes) was true at the time “John Elk”

(1884) filed in court to challenge for a right to participate in non-Indian government and 

society. He lost. The Court ruled he was a “tribal Indian” and not a part of “We the People.” This 

case remains true constitutionally today. When the 39th and 40th Reconstruction Congresses 

had the chance to amend the constitution to include tribal Indians for citizenship it decided to 

specifically retain the constitutional relationship with “Tribal Indians” as was confirmed in Elk. 

So, under the 14th Amendment, the Negros, Hindus, Gypsies, Chinese, the Irish, et.al., all could 

became naturalized citizens but “not tribal Indians.” The Court recognized that the individual 

tribal Indian could apply and became naturalized under specific circumstances, but the 

constitution blocked general citizenship of all tribal Indians.

Now we should look at the challenge to the “divide” from the perspective developed by the

IRS in court cases. In 1924, the Congress enacted the Indian Citizenship Act. This was a generic 

application to all “tribal Indians.” The intent of the Indian Citizenship Act was to override the 

Indian Religious Crimes Code. This campaign was lead by Ida May Adams (lawyer and suffrage 

Rights Activists for Women), from San Diego. She wanted to assure American Indians had 

Religious Freedom under the First Amendment. The “act” is not an amendment of the 
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constitution, and it did not override the 14th Amendment, but it did circumvent the intent of 

the Founding Fathers and the Reconstruction Congresses.

The 1924 Indian Citizenship Act was in recognition of both the need for Indian Religious 

Freedom under the First Amendment (more below) and the fact that many Native Americans 

were veterans of the First World War. The text of the act (43 U.S. Stats. At Large, Ch. 233, p.253 

(1924)) is:

Be in enacted by the Senate and the House of Representatives of the United States of 

America in Congress Assembled, That all non citizen Indians born within the territorial limits of 

the United States be, and they are hereby, declared to be citizens of the United States: Provided 

That the granting of such citizenship shall not in any manner impair or otherwise affect the 

right of any Indian to tribal or other property. [Approved June 2, 1924 (H.R. 6355] Otherwise codified as Title 8, 

Sec. 1401(b). 

Here we see that the “citizenship” was not to impact our ownership of property (as in the very 

narrow ruling of Squire). The cash value of our activities and property have, however, been 

targeted by the IRS constantly- since their Squire victory. The IRS sought the ability to tax Indian 

(Property) income in the Choctaw (Trust Income) case just over 20 years earlier to Squire.

“Trust income” versus “taxable income” has been the battle zone. But, citizenship was not 

supposed to impact the “Indian” in regards to tribal or “other” property. “In ordinary affairs” 

(tribal) Indians became taxable. I especially took notice that after the Tribal General Welfare 

Exclusions Act (2014) was enacted that the IRS Notice 2015-34 (about the application of the 

General Welfare Exclusions Act) had limited the citation of Squire. The key words began with 

“In Ordinary Affairs, Indians are citizens....” Now, it became “Indians are citizens subject to the 

payment of income taxes as are other citizens.” In my mind, this exposes a movement to bury 

key words that are important to further distinctions about tribal Indians and income taxation. In 

our minds and hearts, we know the property and resource (value added) incomes of Indian 

Country were never intended to be taxed originally based on constitutional intent. At this point, 

we do not know how extensively “In Ordinary Affairs” should limit taxation inside of Indian 

Country per tribalism.

From 1924 to 1978, American Indians (as tribal people and tribal governments) still did not 

have religious freedom protected by the federal government. The “First Amendment” 

experiment failed to deliver the freedom sought. Eventually, the tribes secured the American 

Indian Religious Freedom Act in 1978. In 1988, the Supreme Court gutted any protection of 

sacred sites benefits that were in AIRFA (1978). Based on court decisions, tribal Indians did not 

have rights to protect sacred sites or ancestral cemeteries. In other cases, tribal Indians did not 

have rights to use eagle feathers in ceremonial regalia and artifacts, nor did tribal people have a 

right to use peyote contrary to state laws, and federal Indian prisoners lost rights to rituals. Led 

by the late Rueben Snake, and elder activist Suzan Harjo, the American Indian Religious 

Freedom Project/Coalition helped reinstate these rights by securing amendments to AIRFA in 

the 1990s. 
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Over time, the BIA was the nexus between the Indian Tribes and the U.S. Government. Indian 

Affairs was under their control. From the time of the Constitution (1787-89) ratification, the 

Department of War had control over Indian Affairs. But, this system allowed “officials” to steal 

all the funds appropriated for Indian Affairs... causing wars to breakout. In 1849, Indian Affairs 

was transferred to the Department of Interior for that reason. But the theft continued (up to 

the Cobell Settlement in 2012). When confronted by this truth, in 1868, in desperation 

President Grant transferred Indian Affairs management to the Christian Churches (1872). The

churches immediately instituted the Indian Religious Crimes Code and Natives were 

imprisoned without rights to lawyers, trial, juries, or defense.... Just being a ceremonial Indian 

resulted in their imprisonment. The attacks upon our traditional (non-Christian) ceremonialism 

has been long and constant- from discovery to now.

A couple lessons the Indian tribes have learned is to represent your own tribe before congress

to secure rights. And, tribes learned to hire a lot of attorneys and lobbyists to guide their 

defenses. Tribes also learned to beware of the BIA. However, in our efforts to expand selfdetermination and self-government, we learned to self-lobby and self-represent for changes in 

the laws that protect our people (e.g., AIRFA Amendments, American Indian Graves Protection 

and Repatriation Act, the Indian Child Welfare Act, Indian Tribal Governmental Tax Status Act, 

Indian Fishing Rights Tax Exclusion, Tax Exclusion of Medical Benefits, Tax Exclusions for General 

Welfare Activities and Ceremonial Activities, American Indian Arts & Crafts Act, etc.). New 

protective laws have materialized out of congress due to the influence of consistent & 

dedicated tribal leadership lobbying.

Now, we must get back to our conflicts on tax challenges. Contrary to Elk, this generic 

citizenship was imposed upon all “tribal Indians” across the nation. If you read the minutes of 

the 39th and 40th Reconstruction Congresses you would find how clearly the Congress intended 

that tribal Indians could not be either national or state citizens, and were not taxable. In pursuit 

of clarifying “tribal Indians” as citizens, the U.S. Department of Interior Solicitor issued an 

“Opinion on Excluding Indians not taxed.” The Solicitor did a detailed analysis of the 

constitutional status of the tribal Indians. But, he concluded that because the “Indian 

Citizenship Act” was passed all Indians are citizens. So, he said there are no “tribal Indians” that 

qualify under this constitutional language. With the stroke of a pen “tribal Indians” became a 

part of history and not the present. If George Custer knew you could wipe out all the “tribal 

Indians” with the stroke of a pen then the Battle of Little Big Horn could have been avoided.

In Squire v. Capoeman (1956), the court ruled “In Ordinary Affairs, Indians are citizens....” Then 

it concluded, ... “All citizens pay taxes, therefore Indians pay taxes.” This ruling came out when 

tribes could not hire their own lawyers without BIA approval. And, tribes were not a party to 

the tax case. The BIA ruled over tribes as their “wards.” Tribes were economically poor. In 

addition, tribes were battling against tribal “Termination” and the “Relocation” of their 

membership into major cities for forced assimilation. The US was purposefully trying to destroy 

“tribal Indian” status, as was the intent of the General Allotment Act (1887), which was 

hypothetically overcame by Congress when it enacted the Indian Reorganization Act (1934). 

Our problem was, we did not or could not challenge what the Tax Court (Supreme Court) 
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meant by the words “In Ordinary Affairs....”. This is ambiguous today. But, it is clear enough for 

the IRS to single out the individual Indian and go after him for tax evasion as a “citizen,” time 

and time again.

Let me explain that Article I, Section 8, Clause 4 is the “Naturalization” power of the 

Constitution. The Constitutional Founding Fathers set it up so “foreigners” could come here and 

apply for citizenship, as authorized by the constitution. These foreigners would apply for 

citizenship, swear allegiance to the USA, and disavow any connection or allegiance to their 

former country of origin. They permanently left their country of origin and intended to 

permanently live within the emerging United States. They would get sworn in as citizens before 

a judge. This was the venue process for “John Elk” if he wanted to overcome the constitutional

(divide) blockage as an individual “tribal Indian.” By this action he became a member of “We 

the People of the United States.” But, he would have to leave his people forever. He would have 

to leave Indian Country forever. This general forced citizenship (1924 Act) would come around 

to bite us in the rear- we did not get religious freedom, we got taxation, and representation as a 

very small “minority” group competing for existence in the United States.

In the Squire case, Capoeman won his right to have his “trust income” protected- as a tribal

Indian with trust protected Indian lands. This was the precedent case that was used when the 

tax court in Earl v. Commissioner (1983) authorized taxation of treaty fishing rights income. The 

“timber industry” and the “fishing industry” are similar in economic value added activity for 

tribes and tribal Indians. There are about 16 steps to getting the timber (or the fish) from 

harvest to the final consumer and then making sure there exists “sustainable yield” via timber 

(or fishery) management regimes. But, Capoeman only protected 1/16th of the economic value 

of the “Indian Timber.” In the fishing rights language (now Section 7873, per Phase I- enactment 

of the law, and Phase II – interpretation of the law), we secured protection of all 16/16ths of 

the Indian Fishing Rights Industry. No other Indian-owned natural resources industry has such a 

broad set of tax exclusions....mainly because tribes have not followed the precedent of the 

treaty & constitutional arguments used to secure the fishing exclusions. The treaty resources, 

the treaty fishery, and the fishing incomes, were protected, retained property as a part of the 

tribal rights, for tribal people.

Capoeman, in the minds of the IRS Agents, blew open the doors to all of Indian Country for 

purposes of applying Internal Revenue Code Section 61- Gross Income to Indians in Indian 

Country. They argue that all citizens pay federal taxes on their gross income. To them, the 

“Indian Citizen” is not a tribal Indian but a citizen, that just happens to live on an Indian 

Reservation. But, we know “tribal Indians” are not the same legally, culturally, and politically as 

a citizen Indian. We know Tribal Indians exist and are still covered by “Excluding Indians not 

taxed” contrary to what the Department of Interior Solicitor concluded (1940). 

When conducting ourselves as tribal Indians we are not acting as citizen Indians. As tribal 

Indians our allegiance is to our tribe and people, and we live & work inside of Indian Country. As 

citizen Indians our allegiance expands to the United States. The two parts of our 

political/legal/civic personality are distinguishable. This is why it was so important to keep our 
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Treaty Fishing Rights Industry protected against IRS encroachment... tribal Indian fishers were 

exercising tribal fishing rights secured by treaty, act of congress, or executive order specifically 

for tribal (enrolled) Indians. These same “rights” could not be exercised by “Ordinary” citizens, 

except as permitted by state laws that authorize whites to fish from a share of the natural 

resources reserved for them, per the treaty “in-common” language.

The question then is “What are the duties and responsibilities” of the new naturalized citizen 

(whether he came from Ireland, England, Germany, or even the Omaha Indian Nation- as John 

Elk did)? Well, he lives as a citizen, amongst other citizens. He works with them. He votes in 

general elections like them, and pays taxes to “his” new government. For “Indian Citizens” it is 

the same. They live, work, worship, talk, and are entertained like any citizen- outside of Indian 

Country but do so as a part of “We the People.” As a citizen he has rights, duties, and 

responsibilities imposed by the U.S. Constitution, as a part of his sworn allegiance to the United 

States or the individual state. 

However, on the other hand, the “Citizen Indian” could still be an enrolled tribal Indian. He may 

work for his people, live on the reserve, and participate in all “Ceremonial Activities” that helps 

define his separate status as a “tribal Indian” today. Even in the cities, there are enrolled tribal 

Indians that live as “citizens” and come back to participate in tribal or ceremonial events as 

“Tribal Indians.” But, then, there are unenrolled Indians that live as assimilated individual

citizens and never come back to Indian Country, and never or almost never engage in 

ceremonial activity. They have become the assimilated “White, Christian Farmer” that the 

United States (through the BIA and Churches) wanted us all to become.

Constitutionally, the right to be a “tribal Indian” still exists. In fact, it is an indigenous inherent 

right of our people and not granted to us by any foreign power or the United States. It is still 

relevant to our inherent sovereignty. Our own “popular sovereignty government” is founded 

upon the delegation of authority from our qualified member tribal Indians. There are over five 

hundred federally recognized tribes with about three million enrolled “tribal” Indians today. 

The attempts to break up the Indian Nations, and to disperse their people, to force their 

complete assimilation into white society has failed as a matter of U.S. law and policy. Today, we 

exercise rights of Self-Determination and Self-government. We are protected by our tribal 

governments. We sought and defended rights declared in the United Nations Declaration on 

the Rights of Indigenous Peoples.”

We are close to understanding this conflict generated by the drive of the IRS to extract taxes 

from Tribal Indians and Indian Country. We need to define what does “In Ordinary Affairs, 

Indians are citizens” mean? The definition should cover those times and circumstances in which 

the “activity” of the Indian Citizen cannot be distinguished from any similar activities of any 

other “naturalized” citizen of the United States. We should then list those activities that are 

common to citizenship, but not common to Indian Country by traditional culture and society. 

Keep in mind that “tribal Indians” and “Indian Country” are heavily regulated by the federal 

laws and policies.
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In addition, we need to define what is “Ceremonial Activity.” This is the activity that is not 

common to U.S. Citizens but specifically relevant to tribal Indians and Indian tribes. It is the stuff 

that “traditional knowledge” is founded upon and incorporates to make sense of “tribal 

traditional culture.” Ceremonial activity makes us whole as tribal Indians. These are the things 

that are significantly a part of the tribal Indian’s allegiance to his Tribal Nation. Tribes have

consistently voiced concerns about our people’s right to practice traditional knowledge and 

ceremonial practices. These concerns were specifically incorporated as important in the U.N. 

Declaration on the Rights of Indigenous Peoples, as accepted by President Obama, and the rest 

of the world (per their indigenous populations). 

But, understandably the term is not clear. It is ambiguous right now. How do we distinguish a 

tribal Indian involved in ceremonial activity from a citizen Indian acting in ordinary affairs. If we 

cannot clarify it through the administrative consultations process (guided by the Treasury

Tribal Advisory Committee) then we may need to seek congressional clarification of

“ceremonial activity” that limits or distinguishes “In Ordinary Affairs, Indians are citizens,...”

But, the Indian citizen pays taxes because he is acting as a US or state citizen, outside of Indian 

Country, and not as a tribal Indian, per the limitations placed governmental delegated authority 

in the U.S. or state constitutions. If taxes inside Indian Country are owed, then the tribal Indian 

owes taxes to his tribal nation, since Indian Country is extraterrorial to the United States and 

individual state. Time and again, impoverished tribal nations watch as the federal and state 

governments drain tribal economies via taxation. The federal “Guardian” is taxing the “Ward” 

for his supervision.

Any time an Indian is acting in his “tribal” capacity then he is not acting as an “Ordinary”

citizen. His duty to his “Indian Nation” is separate from his modern & imposed citizenship duty 

to the state or national governments. Defining what are “ceremonial activities” should limit 

what is “In Ordinary Affairs.” We have to keep in mind that the IRS believes all 70,000 pages of 

the Internal Revenue Code applies to “tribal Indians” and not just “citizen Indians.” The IRS 

position has been strengthened by the conclusions in the Opinion of the Solicitor (1940) on 

“Excluding Indians not taxed.” The conclusion ran contrary to constitutional intent and the legal 

facts included in the opinion itself. But, it appears the Solicitor was a good soldier and 

concluded as ordered – but he left a trail for Indian Country to follow back to the founding 

intent of the constitution itself. This is why I have always argued that we need to have a 

rewrite and re-conclusion of this opinion, and limit its impacts to “citizen Indians” acting in 

“ordinary affairs” and not “tribal Indians” conducting “ceremonial activities” or exercising 

duties and responsibilities owed to their tribal government and traditional society, based on 

access to “tribal” or “Indian” properties (and income is property).

In the Tribal General Welfare Exclusions Act, in cases of “ambiguity” the tribe or the individual 

Indian wins. And, the disputed subject matter can go to the TTAC for review, consideration, and 

recommendations to Treasury. If it remains ambiguous then the subject matter can be sent to 

congress for clarification. Now, the IRS just prevailed in a test case against the Miccosukee 

Nation in Florida over the limits to “General Welfare” assistance verses IGRA Taxable “per 

capita distributions.” The ruling is ambiguous as regards what is “extravagant or lavish” general 
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welfare assistance levels. This case is now a matter of concern to all tribes that seek to develop 

their “General Welfare” assistance tribal programs for their poverty stricken membership. The 

same type of confusion surrounds the issue of “Ceremonial Activity.” Tribes and tribal 

programs, as a matter of federal law interpretation, file 1099s on such activities, creating 

problems for the tribal member Indians now confronted with allegations of tax evasion.

Included in the TGWE Act of 2014 is language that says “Ceremonial Activity” is excluded from 

taxation. We recognize that the IRS has attempted to develop an Indian Division inside the IRS 

that specializes in Indian Taxation Questions. While it works to help define the scope of 

“General Welfare Assistance” exemptions and definitions, the “ceremonial activity” exclusion is 

ambiguous and a problem to the IRS and the tribes. What is “ceremonial activity?” And, does 

the IRS have the expertise to define it and the scope of exclusiond from taxation? If tribes and 

the IRS are going to design education and training programs for the IRS and Tribes then this 

subject needs clarification.

Well, the IRS cannot adequately define “ceremonial activity.” There was a nominal attempt to 

consult with the tribes early when the 2014 act came out. But, the tribes are protective against 

outsider entities that try to define “Who is a ceremonial Tribal Indian?” and “What does a 

ceremonial tribal Indian do?” The definition and scope of the law must be the subject matter of

thorough IRS/Tribal Consultations. The Tribes should be assured of prior and informed consent 

via such thorough consultations before they agree to any IRS Guidance on this matter. And, 

there will have to be a comprehensive “Guidance” released to structure the processes to 

control associated 1099s that would otherwise be routinely filed with the IRS.

As Head of the House of Tears Carvers (a traditional totem pole carving entity under tribal 

traditional and modern law), I just prevailed in the IRS Appeal process. The IRS sought to apply 

taxes to my ceremonial activity. I am the Head Carver and represent all my apprentice artists 

through the Lummi House of Tears Carvers. We are incorporated under authority of the Lummi 

Constitution and per the federal authorizations found under the Indian Tribal Governmental Tax 

Status Act (IRC Section 7871), as influenced by the additional language included in the Tribal 

General Welfare Exclusions Act of 2014 (IRC Section 139E) that recognizes such tribal entities 

may be managed in accordance to tribal customary practices. In addition, we recognize that 

the American Indian Arts and Crafts Act (as amended) applies to our activity. Indian Arts and 

Crafts are extensively regulated by the federal government. While the House of Tears Carvers 

are known for donating traditional totem pole art all across the United States and up into 

Canada, there are instances in which stipends or commissions are exchanged for the carving of 

tribal symbols on totem poles- as related to tribal ceremonial and cosmological traditional 

knowledge and for public & education display.

As the Head Carver, I was challenged by the IRS for not paying taxes on 1099 Miscellaneous 

Income associated with totem art which was not recognized and included in my 1040 form 

when I filed for tax returns. This 2013 ( and later, 2011) challenge came forward with the IRS 

alleging taxes past due, with fines, penalties, and interest. I argued, throughout the 

administrative appeals, that this alleged income was covered by the ceremonial activities 
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exclusion language (IRC Section 139E). The IRS argued it was taxable as gross income (IRC 

Section 61). After exhausting the appeal process (as of July 2019), I prevailed. The IRS Appeals 

Office (Florida Office) ruled the 1099 identified “income” was not taxable as it was “ceremonial 

activity” covered by the language and protected under the moratorium in the 2014 Act. Istill 

wait to receive the official decision in written form. This tax exclusion was recognized and

advocated by the Indian Division of the IRS national office in Washington D.C. as their 

understanding of the language.

As Head of the House of Tears Carvers, we teach the youth (as apprentices) that the symbols, 

the colors, the legends/myths/folklore associated with the totemic arts is ceremonial recitation 

of our cosmological and spiritual teachings about our relationship and stewardship toward the 

world around us. And, from the time the tree is harvested to the time the pole is publicly 

displayed the spiritual ceremonial protocols demand our respect and accountability.

However, this (native art, symbology, mythology, etc.) composes just one aspect of what is 

“ceremonial activity.” To get this “activity” defined and to understand its scope means that we 

have to dig deeper into “traditional knowledge and practices” as tribal people and tribal nations 

to advise the IRS during Consultations. These “consultations” must be called for and organized. 

We need to have what is being addressed scoped out for tribal leaders and participating IRS

officials. We do not believe the IRS is capable of doing this on its own. The IRS Agents are not 

experts on tribal traditional culture, knowledge, and ceremonial practices. To IRS dismay, many 

tribal traditional leaders will not disclose ceremonial practices to the IRS (as a federal entity, 

and as evident in initial attempts to consult with the tribes on the subject). This is due to the 

historic trauma tribal societies have experienced in their experiences with the federal 

government and Christian churches – where both cooperated in efforts to destroy traditional 

tribalism and ceremonial culture, beliefs, language, regalia, symbols, knowledge, rituals, and 

practices. As well as many non-Indians that “harvest” Indian traditional knowledge and then 

seek to copy right it for their personal benefit.

In recognition of this, tribal leaders tend not to disclosure ceremonial practices and belief 

systems. Knowing this, I designed the “Traditional Protocols” position on “ceremonial 

activities” that are not taxable. I recognize that IRS agents are not experts on native traditional 

cultural practices. We should not expect them to define the scope of the exclusions. If left 

alone, then the IRS has to resort to the standard practices. This means a ceremonialist fills out a 

W9, an action takes place, a check is issued, the associated 1099 is filed with the IRS and flags 

the exchange as taxable income that should have been declared & recognized in the 1040 filing. 

When the ceremonialist does not report it on the 1040 form the challenge begins. This process 

and evolving case law will only cause more controversy for “tribal Indians.” We must design a 

system we can jointly agree to control the “1099” dilemma and how it exposes ceremonial 

activity to IRS audits.

Think of the bones of a skeleton as representative of traditional knowledge and ceremonial 

practices. Each cultural bone can be named. One cultural bone is “song” another is “dance” 

another is “regalia” and so on. We, as tribal leaders, know we mutually intent to protect the 
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“ceremonial knowledge & practices” aspect of songs, dances, and regalia. This, as an example, 

is done primarily by the traditional knowledge being transmitted to the next generation 

through oral history and active participation. When I said the word “Song” it did not disclose 

who sings it, when they sing it, where they sing it, why they sing it, how they sing it, or whether 

it is gender based, age based, or tied to specific geographical or maritime places or sacred sites, 

or to weather patterns or the elements, or owned by a person, family, or community. Nor did it 

disclose the language used to assure the ceremony is successful. There is a vast amount of 

“traditional knowledge” that is not transmitted by just saying the word “song.” You have not 

even disclosed if the song has a name. This “traditional knowledge” forms the meat around the 

traditional culture bone. These deep traditional teachings are protected by traditionalists and 

not readily disclosed by them. For example, at Lummi, and amongst, our Coast Salish, 

Halkomelem, and Lashootsead relatives it is referred to as “Advice” in English. Because of the 

Indian Religious Crimes Code, Termination, Relocation, and other scorched earth policies and 

laws applied to Indian Country, we have learned to be cautious and keep our mouths shut 

because the “oppressor” may be listening. We guard against the non-Indian opportunist.

However, the “Traditional Protocols” is a “Bare Bones” attempt to design a system that the 

tribes and IRS can use to identify “ceremonial activity” that is excluded from taxation. I argue 

that the “draft” should be re-worked into a new proposed version that can be shared with the 

IRS and all Indian Tribes for consideration. The new version would be entitled, “Booklet on 

Ceremonial Activities.” A national notice will have to go out to call tribes forward or submit 

written testimonials for more elaboration on the subject. During consultations the IRS should

attempt to get more tribal in-put on the proposed system for identifying ceremonial activity. If 

it is resolved, and the proposed “Booklet” could be put into final form then the tribes would 

need to secure a “Guidance from the IRS” to address the 1099 problem that the booklet seeks 

to void. There are those that do not believe “consultations” can be called now. If not then the 

TTAC members are very important to the finalization process- since the booklet can be used to 

guide and educate IRS field agents and tribal officials.

The guidance should be informative for any governmental or non-government entity that 

would normally sent a 1099 Miscellaneous Income tax form to the IRS. In this guidance, it

should be clarified that for any ceremonial activity that has a cash exchange or other property 

involved then it should be registered with and mailed to the respective tribal member’s tribe, 

if the tribal member wants to assure it is not taxed as income. A minimal amount might not 

have to be registered, say anything up to $500 or any activity not otherwise requiring a 1099 

form. But, if a W9, check or cash or property, and a 1099 are involved then the guidance should 

direct the entity to file the 1099 forms with the tribal ceremonial registry office, and not the 

IRS. The registry would make note that it is covered under “ceremonial activity” and may cite 

sections of the booklet that applies. If challenged in specific cases then the IRS would request to 

meet with the Tribal Ceremonial Registry office, and review their registry, if specifically 

requested access is approved by the tribal government. A simplified means to inform and guide 

the parties involved with have to be developed (such as a handout card that guides all parties 

to the IRS & tribal websites that explains the exclusion process).
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The current problem is rather specific. A traditional person is asked to develop, design, carve, 

and paint a totem pole, as an example of ceremonial activity. This may be requested by another 

tribe, since not all tribes have totem pole carvers due to historical trauma. Then, the tribe has 

the “traditional artist” fill out a W9. He performs and delivers the product. A check is issued if it 

is commissioned. And, then, under normal procedures the entity issuing the check sends in the 

1099 to the IRS. This 1099 flags the failure to pay taxes when the 1040 does not reflect it. This 

is standard accounting office practices- for governmental and non-governmental agencies. It 

would cost hundreds of millions of dollars to change the tax forms nationally to reflect the 

change in the new tax law. We can rest assured the IRS will not want to do this. But, unless 

otherwise guided, the 1099 will continue to flag IRS field agents to begin audits and collections. 

So, the process must involve “tribal interception of the 1099s.” That interception & registration 

process must be done in a manner that assures the IRS that no fraud can or will take place.

The general idea is that Indian Tribes are Self-determining, Self-governing, Self-regulating, SelfAccounting, Self-policing, and Self-reporting when questionable activity is raised. While we seek 

to act as sovereigns, it is not our intent to allow fraud or corruption to take place to cover 

purposeful tax evasion by “tribal Indians” or “citizen Indians.” A systematic check and balance

system must be designed and agreed to between the tribes and the IRS.

In this light, on the question of what is ceremonial activity, I have attached the current draft 

Table of Contents of the proposed Booklet on Ceremonial Activity, as shown below. 

FOUNDATIONAL DECLARED PURPOSE

PART I. PROTECTION OF TRADITIONAL SPIRITUALITY & CULTURE

Article 1. Protection of Native Language

Article 2. Protection of Native Knowledge of Aboriginal Land & Territory

Article 3. Protection of Spiritual Societies- All Seasons

Article 4. Protection of Identification of Intertribal Spiritual Practices

Article 5. Protection of Traditional Songs

Article 6. Protection of Traditional Dances

Article 7. Protection of Traditional Ceremonials

Article 8. Protection of Traditional Sacred Knowledge

Article 9. Protection of Traditional Tribal Collective

Article 10. Protection of Traditional Regalia & Clothing

Article 11. Protection of Sacred Philosophy/Cosmology

Article 12. Protection of Traditional Intergenerational Relationships

Article 13. Protection of Sacred Contract with Creation

Article 14. Protection of Traditional Rules of Conduct

Article 15. Protection of Traditional Mythology

Article 16. Protection of Intertribal Marriage Rights

Article 17. Protection of Sacred Sites and Places

Article 18. Protection of Traditional Plants and Medicines 

Article 19. Protection of Native Genetic Code

Article 20. Protection Against Extinction of Ceremonial Foods

Article 21. Protection of Relationships with the Elemental

Article 22. Protection Against Ceremonially Accessing Contaminated Sites

Article 23. Protection of Traditional Subsistence Foods

Article 24. Protection of Traditional Housing Constructs
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PART II. PROTECTION OF TRADITIONAL HUMAN RELATIONSHIPS

Article 25. Protection of Inherent Gifts

Article 26. Protection of Sacred Union of Couples 

Article 27. Protection of the Traditional Family

Article 28. Protection of the Traditional Extended Family

Article 29. Protection of the Traditional Community

Article 30. Protection of Intertribal Relationships 

Article 31. Protection of Traditional Rights to Become Spiritual Practitioner

Article 32. Protection of Respect for Other Tribes’ Leadership

Article 33. Protection of Trans-boundary Rights as Indian Nations

Article 34. Protection of Respect for the Elderly

PART III. PROTECTION OF THE TRADITIONAL CHILD

Article 35. Rights of the Child

PART IV. PROTECTION OF TRIBAL RIGHTS TO DEFINE REALITY

Article 36. Protection of Traditional Measurement of Reality

PART V. PROTECTION OF TRADITIONAL LAWS OF BALANCE

Article 37. Protecting Basic Laws of Balance

PART VI. PROTECTION AND RECOVERY FROM NON-INDIAN INFUENCES UPON TRIBAL COLLECTIVE

Article 38. Historical Trauma, Historical Truth, and Native Science

Article 39. Right to Express Indian View of History 

Article 40. Nation’s Right to Represent the Tribal Collective

Article 41. Right to Develop Coast Salish Institute

Article 42. Protection of Traditional Clusters of Knowledge

We should keep in mind that based on the 2014 Act “Ambiguity” is to be resolved in favor of 

the tribe or tribal Indian. However, we are still challenged on securing an all inclusive definition 

of ceremonial activity. If this is left unresolved then it will result in tax court cases against 

vulnerable tribal Indians that are usually to impoverished to defend themselves. To secure the

definition and scope would limit IRS activity inside of Indian Country, and help prevent tribal

Indians from being audited and taken to tax court. Let us suppose, after extensive and thorough 

consultations, the IRS is not satisfied with the product (Booklet on Ceremonial Activity) and 

does not want to issue a Guidance to address the problem with the 1099 flag on possible 

taxable “gross income.” If the Tax Advisory Committee cannot help resolve the disputes then it 

could recommend the conflict be sent back to congress for clarification. At that stage, if we 

want to prevail then we have to have “tribal leaders” and “experts” ready to testify before 

congress, assuming we get clarification language drafted and submitted that we can rally 

around. The tribal political positions may be and most likely will be in opposition to IRS 

recommendations. 

In the case of congressional oversight hearings, we would want to define what activities are 

included in the definition of “Tribal Indians.” Let us summarize it a little. You have a federally 

recognized Indian Tribe. The tribe has “enrolled” tribal Indians as members. You cannot be 

enrolled if you are not a blood decedent Indian. The tribe services and protects their tribal 
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Indians- on and off reservation. You have rights under the tribal constitution. You have 

inherited tribal lands or property protected by treaty, executive order, or act of congress. 

There are laws that specifically apply to you, because you are an enrolled tribal member. You 

are engaged in tribal society because you are a member of the tribal community. Our examples 

of other reasons you are an “involved tribal Indian” have been listed above (see any cited 

sample laws). These laws, about Indians and Indian Tribes, do not apply to “non-Indians.” These 

laws are special and apply to you because you are tribal. Non-Indian citizens cannot come into 

Indian Country and demand the same rights or protections. Included in all of this is “ceremonial 

activity” that is based on traditional tribal culture and traditional knowledge & practices passed 

through the generations and common to the tribal community. So, a part of our goal is to get it 

more defined as to “What is a tribal Indian.” And, then, to get defined, “What are ceremonial 

Activities” that tribal Indians practice, but not as citizen Indians.

In addition, we should distinguish, in the hearings, what are the separate, non-tribal, non-Indian 

duties that transforms a “tribal Indian” into a “Citizen Indian.” What does the “Indian” do that 

is done “In Ordinary Affairs” as citizens of the state or the United States. We note that those 

are the activities that “John Elk” could not engage in because he was a “tribal Indian” (Elk, 

1884) and not a citizen. To define “What are ordinary affairs of citizenship” could be assessed 

based on what other “citizens” are entitled to or obligated to do based on laws that apply to 

“We the People of the United States” or “We the People of the State of....” In this process, we 

should prop-up and preserve the Elk test on what is a “tribal Indian” in comparison to Indian

citizens acting In Ordinary Affairs outside of Indian Country.

In addition, we still have standing resolutions (See NCAI) that call upon the U.S. Department of 

Justice, the U.S. Department of Interior Solicitor, to re-issue the Opinion of the Solicitor on 

“Excluding Indians not taxed” so that its conclusion is in constitutional compliance. One thing 

the Alliance of American Indian Leaders did was get hearings before the Senate and the House 

on the constitutional relationships between the Indian Tribes and the United States. SCR #76 

and HCR #331 are known as the Iroquois Resolutions- the resolutions were enacted during the 

200 Year Birthday of the United States. The resolutions recognized the constitutional 

government to government relationship and the fact that the Prophesy of the Iroquois 

influenced the Popular Sovereignty based Constitution of the United States. We may need to 

review and recite those testimonials, since it has been over thirty years since the initial

congressional hearings.

Until we do this, then the Squire case will continue to allow the IRS to come after our tribal 

Indians, at will. The IRS has misinterpreted the Squire case. The IRS conducts itself as if the 

Court said, “In All Affairs, Indians are Citizens.” That is not what the Court said. Our collective 

tribal actions, over the past three decades, has been to defend the rights of our “tribal Indians 

as tribal members” involved in “tribal Indian affairs.” The Squire decision allows the IRS to 

single out the individual impoverished tribal Indian (as a citizen Indian) and assert that he owes

taxes to his government (the USA). In these precedent settings case, the tribes had no rights to 

be a party to the cases because those tax cases were between a “citizen Indian” and the 
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“United States.” Think of the IRS as a Wolf Pack that singles out the weakened little lamb from 

the flock. The IRS puts so much pressure on the poor individual tribal Indian they settle and pay.

Yes, I prevailed in my challenge with the IRS. The 1099s that were not reported in my 1040 

filings (for 2011 and 2013) were from “totem pole art.” I argued it was all covered by the 2014 

Act as ceremonial activity. I prevailed. And, the National Indian Division of the IRS notified the 

Seattle Office to quit auditing the traditional artists, that their activity was considered 

ceremonial activity and covered by the 2014 Act and under the moratorium. But, this is not 

“national.” The IRS field agents, all across the United States, are still actively engaged, in other 

parts of the country, in auditing “art income” as gross income and not covered by the 

“ceremonial activity” language. Plus, ceremonial activity is much larger than this example case.

We need to present this information to our Inter-tribal organizations and notify all Indian tribes. 

We need to work with them to update and brief them. We need to get the tribes engaged. We 

need them to join with us. We need a common platform to base our lobbying and testimonials 

upon. When we do engage in national consultations for elaboration of the “scope” and 

“definition” of “ceremonial activity” then we need to be saying the same thing. We need to 

agree upon and advocate a common solution to the 1099 problem. We need to identify and 

implement safe guards so there will no opportunity for abuse or fraud- if the tribes assume 

control over the 1099s involved. It is extremely important that our tribal leaders that 

participate in the TTAC are evolved, informed, and engaged in the debate. Well informed allies 

are key to our success as well.

For example, the Pacific NW Tribes united to battle the Earl v. Commissioner tax court decision 

that applied federal taxes to Indian Treaty Fishing Rights Income. We organized local, regional, 

and national support and coalitions. We secured a congressional override that instituted 

Internal Revenue Code Section 7873 for excluding Indian fishing rights income from taxation. 

But, during this campaign, based on their limited knowledge of Federal Indian Law and Federal 

Tax Law, the tribal attorneys kept trying to convince the tribes and treaty tribal fishers to settle 

the tax cases (72 at Lummi, three at Swinomish, and one at Tulalip) and walk away (arguing for 

about a 3/16ths negotiated win). The Lummi Treaty Protection Force actively argued against 

settlement, based on our knowledge of Indian Tribes and constitutional history. The lawyers

denied our potential to win and advised everyone we will lose the campaign to stop the taxes. 

Keep in mind these were the tribe’s lawyers, and not the opposition. We won a 16/16th victory. 

We guided ourselves by the motto: “Law is only nothing but old politics, if you don’t like the 

law, then change the politics!”

In the aftermath of a lot of studying on the differences between our political opinion and the 

court’s Indian case history, we designed the “Legal/Political Chart” to display the 

“schizophrenia” that exists in Federal Indian Law (copies at request, since it is a large chart). The 

chart advocates recognizing that one legal personality argues “Indians and Indian Tribes” are 

incompetent by law and policy based on legal fictions. The other argues we are sovereign and 

the U.S. Constitution protects and aligns the nation-to-nation relationships up as the “Supreme 

Law of the Land.” In between these two lines of thought we inserted (into the chart) the 
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argument for congressional override of anti-Indian cases that keep us listed as incompetent 

persons and nations.

In another instance, we designed the Indian Country Tax Chart. This chart seeks to differentiate 

taxable activities (gross income) by those “citizen Indians” that are acting in “Ordinary Affairs” 

(Squire v. Capoeman, 1956) as U.S. Citizens. The Counter-part to this status are the “tribal 

Indians” (Elk v. Wilkins, 1884) conducting themselves as members of Indian Tribes, as tribal 

members with rights and responsibilities that non-Indians do not have or do not act upon. 

Foundational to the differentiation is the original U.S. Constitution intent to keep “tribal 

Indians” (classified as “Excluding Indians not taxed”) and Indian Tribes separate from “We the 

People” and out of the federal and state governments & politics. The Chart seeks to show that 

“tribal Indians” are not conducting themselves as citizens in ordinary affairs. Individual citizen 

Indians are outside the tribe and do not participate in tribal government and society. In order to 

defend the tribal Indian we have to be able to visualize what we are defending.

In drafting our position on “ceremonial activity” and “General Welfare Activity,” as the Lummi 

Nation, we have looked at draft codes of other tribes, dealing with the implementation of the 

Tribal General Welfare Exclusions Act of 2014 (IRC Section 139E). The drafts were complete as 

far as they knew per what was accepted or recognized as “general welfare activity.” But those 

codes were void of tribal protection of “ceremonial activity.” We took those drafts and created 

one in which we addressed both issues. We have our draft (available to tribal leaders at 

request). Until we have “consultations” on “ceremonial activity” and conclusions on the 1099

Tribal Process and necessary “Guidance” from the IRS, we cannot complete the code.

As stated before, we will go through our General Welfare Exclusions version of our draft 

Traditional Protocols on Ceremonial Activities (which will be transformed in the Booklet on 

Ceremonial Activities). Once it is cleaned up more then we expect to share our final 

recommendatons with the Indian Division of the IRS, the tribes, and intertribal organizations, 

and especially the tribal leaders on the TTAC.

We shall present our testimonial on the recent administrative tax appeal case per Indian Artists 

in the Pacific NW and its implications to all artists as we call for further consultations or 

dialogues on ceremonial activity. We will have our legal/political chart, and our Indian Country 

Tax Chart, our draft GWE Code, and the next version of the Traditional Protocols on Ceremonial 

Activity (Booklet), for others’ consideration. 

The Lummi Nation has relied on the Affiliated Tribes of NW Indians, the United South and 

Eastern Tribes, the National Congress of American Indians, the Native American Rights Fund, 

and other intertribal entities to continuously be at the front of our political efforts to preserve

our tribal sovereign integrity. We know that there now exists an Intertribal Treasurers group 

that seeks to be engaged in the debates on what is “General Welfare Activity” and “what is 

“lavish or extravagant” assistance from the tribes to their membership. All of these entities are 

important to the dialogues on ceremonial activities. We know that the Lummi Nation has been 

more aggressive on the constitutional factors; but that was because we were a member of the 
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Alliance of American Indian Leaders that sought to protect the separate status of tribal 

sovereignty and tribal people based on the original intent of the U.S. Constitution. Because of 

that, we have become advocates and defenders of the U.S. Constitution and its check and 

balances on the exercise of government powers. We believe in the nation-to-nation 

relationships treaties-made established between the tribes and the USA. We believe the Indian 

Commerce Clause has been misinterpreted and does not allow the US to control Indian 

Commerce but only those engaged in commerce/trade with the Indian Tribes. And, we do not 

believe there exists legal or constitutional authority for the IRS to be collecting taxes inside of 

Indian Country against tribes or tribal Indians.

We appreciate this opportunity to share with you our position on “Ceremonial Activity.”