Border Double-Crossing 

Blackfeet and feds go head-to-head over a U.S. Customs station

A rift between the federal government and the Blackfeet Tribe over a new U.S. Customs station north of Browning could result in the non-Indian contractor who’s leading the project getting slapped with sanctions. At the heart of the matter is whether the builder should pay assessment taxes to the tribe.

But officials at Swank Enterprises, the Valier-based contractor that’s building the complex at the Port of Piegan, say they were willing to pay the taxes until they were dissuaded by the General Services Administration, the federal agency that’s overseeing the $6.1 million project.

Tribal leaders contend they’re owed about $125,000 under the reservation’s 3 percent contractor excise tax and under another 2 percent tax levied by the Tribal Employment Rights Office, which oversees tribal hiring rules on the reservation.

But federal officials say they don’t believe the land where the new station is being built lies within the Blackfeet Indian Reservation because the tract’s northern border is part of a 60-foot-wide swath that is owned jointly by the United States and Canada. And even if it’s determined that the property is inside the reservation’s exterior boundaries, the agency still doesn’t plan to authorize the payments, says Leigh Ann Holt, a Denver-based GSA attorney.

“The position is that the tribe doesn’t have any authority to impose the [taxes] and doesn’t have the authority over a non-Indian contract on fee land,” Holt says.

“We’re kind of stuck in the middle,” laments Scott Wright, a Swank official who says the company wants to continue working on reservation construction projects. “It’s an unfortunate deal. You hate to see the relationship [with the tribe] go downhill. Maybe we should have been more firm with the federal government from the start.”

Wright says Swank Enterprises has over the years completed several other building projects on the reservation. In all instances, he says, the company paid the tribal taxes as soon as the contracts were awarded. In fact, he says, the assessments were routinely built into the bids.

But in this case, Wright says, GSA ruled that the assessments were invalid, so the money wasn’t set aside when the agency awarded the contract to the company. He says Swank leaders told GSA from the start that the tribal taxes needed to be dealt with, but to no avail.

“If it’s in the contract, we obviously put the money in there,” Wright says. “All we’re doing is following what our contract with GSA says. We told them it was going to be a problem, and now it is.”

Mike LaMere of the tribal revenue department and tribal attorney Jeannie Bearcrane say Swank is out of compliance, and the company could be banned from doing future work on the reservation if the matter isn’t cleared up.

“We’re not taxing the government,” LaMere says. “We’re taxing the contractor.”

In total, the federal government owns about 63 acres at the building site. According to Bearcrane, the land at the station site was first allotted, then sold to the federal government. But, she adds, “those [transactions] do not change the boundaries of a reservation.”

The new inspection station will replace a cramped and weathered log structure that was built in 1933. Construction is scheduled to be completed in fall 2000, with a grand opening tentatively set for June 2001. Officials say a total of about 20 acres of the government-owned tract will be used for the project.

But completion plans could be derailed if a stop-work order is approved in coming weeks by the Blackfeet Tribal Business Council. Tribal officials say they believe the federal government is on shaky ground in the matter, especially considering that the tribal taxes weren’t contested when a new post office and a new federal building were built in recent years in Browning. Federal officials overseeing the construction of a new post office in East Glacier Park and an expansion of the Indian Health Service hospital in Browning are also “cooperating” with the tribal taxes, Bearcrane notes.

“(GSA) is contradicting the other policies of the federal government,” Bearcrane says. “All the other federal agencies have been in compliance.”

“I really feel it’s a direct attack on our sovereignty,” LaMere adds. “Their map is the same as ours, but they’re interpreting it different. [The land] is definitely within the exterior boundaries of the reservation. I don’t know what they’re thinking.”

LaMere says the tribal employment-rights tax, also known as the TARO tax, is tied to a requirement that contractors working on the reservation give hiring preference to American Indians. The goal, he says, is to have at least 95 percent tribal workers employed at worksites “if the qualified workers can be found.”

The TARO assessment, he says, was enacted by the tribe in the late 1970s and was one of the first of its kind in the nation. The tax has already survived a challenge in the U.S. Supreme Court.

For his part, Wright says Swank Enterprises always tries to hire as many tribal members as possible when doing work on the reservation and already has a $500,000 subcontract out to an Indian-owned firm for electrical work at the new customs station. He adds that the company wants to see the dispute resolved as quickly as possible, so no more harm is done.

LaMere and Bearcrane say the matter has been forwarded to the solicitor’s office at the regional Bureau of Indian Affairs office in Billings, where officials promise to issue an opinion on the issue later this fall.

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