Historically classified as “domestic dependent nations,” Indian tribes are semi-sovereign entities with distinct political identities within the borders of the states in which they reside.1 Subject to limitations set by Congress, tribal governments retain the attributes of sovereignty within their territory, including the power to regulate tribal membership, establish courts, regulate tribal and individual property, and provide governmental services.2
According to the 2010 U.S. Census, approximately 5.2 million people identified as American Indian or Alaskan Native, either alone or in combination with one or more other races, and approximately 1.1 million of those lived on tribal reservations.3 The poverty rate on tribal reservations in 2010 was 28.4%, compared to a national poverty rate of 14.3%. It reached as high as 68% in some tribal areas. Unemployment rates are persistently high on reservations, and many communities suffer from low education levels, substandard housing, and poor health services.
Given the challenges of poverty and the complex legal structure, Native Americans and their tribes have a unique set of needs within the tax system. At Oklahoma Indian Legal Services (OILS), Daniel Knudsen is working hard to make a difference. Dan is a 2015-2017 Christine A. Brunswick Public Service Fellow, engaged in tax representation and outreach for taxpayers throughout Oklahoma, with a focus on the experiences of Native Americans.
ABA Tax Times (ATT) recently reached out to Dan to learn more about his work as a Public Service Fellow.
ATT: Can you tell us a little about your background, both in and out of tax?
DK: I am originally from Montana. I am a Kootenai Indian. I have two families, an old Montana farming and ranching family from the eastern side of the state that originally homesteaded in Montana and an even older Native American family on the western side of the state. My tribe is the Confederated Salish & Kootenai Tribes of the Flathead Reservation. Our reservation is the most beautiful place in the world, located just below Glacier National Park on Flathead Lake.
I always wanted to be a lawyer, but felt it was something that was beyond my reach. There were not a lot of Native American lawyers as role models when I grew up, so I always feel like I lacked role models to lead the way. I just did not really know how to get where I wanted to go. I originally began college and studied Public Relations. I still wanted to be a lawyer and had developed a love and knowledge of tax law, but nonetheless went on to graduate school for a master’s in public communication. I worked in the Public and Governmental Relations Department of the U.S. Forest Service Region One. I did public relations projects and am fortunate that they gave me a lot of freedom in that position. I was able to “roam around” exploring and discovering new and amazing things to learn about. I went to the University of Montana School of Law and spoke with a professor named Martin J. Burke. I had no idea that he was a god of tax law and had taught at NYU, the University of Washington, and had written one of the most-used Federal Income Tax case law books. I explained what I wanted to do (tax law), and he told me to take my LSAT and come back.
Around this time, I was selected by the Morris K. and Stuart L. Udall Foundation, a federal agency dedicated to the promotion of Indians and the environment, to be a 2011 Native American Congressional Intern. The agency moved me to Washington, D.C., where I spent a summer working for Senator Mark E. Udall of Colorado. There, I realized that regardless of what you want to do, the foundation necessary is the law. So I took the LSAT and applied to law school. I attended the University of Montana because of its federal Indian law program. During the summer after my first year of law school, I participated in the ABA Judicial Internship Opportunity Program, where I had the opportunity to intern for Judge Irma Carrillo Ramirez at the U.S. District Court for the Northern District of Texas. Legal writing had been a challenge for me that first year, but Judge Ramirez really taught me to write that summer. She really is exceptional at a host of things, and notably her written opinions. I knew I wanted to learn more about tax and business law, but because Montana is such a small school, there were not a lot of tax opportunities. In my second year, I took Federal Taxation from Professor Burke, and also applied to the ABA Business Law Section Diversity Clerkship program. I was accepted and, that summer, had the opportunity to work for Judge Gail A. Andler at the California Superior County of Orange Complex Civil Court. Judge Andler hears complex Orange County business cases and California Franchise Board tax cases. I learned more that summer than at any other period of time in my life. It instilled a deeper desire to learn tax—and especially tax controversy. During my last year of law school, I did a tax controversy clinic at Montana Legal Services.
ATT: What made you apply for the Fellowship?
DK: I applied for the fellowship because I wanted to be able to make an impact on the tax experiences of my fellow Native Americans. Often, the general public misunderstands the lives we Native Americans lead. There are unending laws and provisions which govern our daily lives which do not impact the lives of non-Indians. For example, we have a separate probate system at the U.S. Department of the Interior, and our adoptions are made pursuant to federal law. At every step of the way, our lives are regulated very differently from those of non-Indian people. Tax is no different. One look at the General Welfare Exemption, at commentary regarding Section 139E of the Internal Revenue Code, or the Indian Financing Act of 1974 can give you an idea of the complexity in determining which types of income can be exempt for Indian people. Administering the Affordable Care Act is another major issue. Historically, our healthcare has been provided by the Indian Health Service. Through treaties with the different tribes—in my tribe’s case, the Hell Gate Treaty of 1855, the federal government promised to provide for the health needs of tribal members in perpetuity in exchange for our relinquishing our rights to vast portions of the United States. The ACA impacted this treaty-based system. Indians and individuals who receive health care from the Indian Health Services are exempt from the individual mandate of the ACA because we already have an entitlement to federal health care. Anyone who has applied for ACA health care has seen the questions about whether one is an Indian. The IRS does not know who is an Indian, so we are required to apply and send in our tribal documents and receive an exemption number in the mail. That number exempts us from the individual mandate of the ACA for life.
The exemptions, however, are processed by the government Health Insurance Marketplace and impact taxes administered by the U.S. Treasury Department. The rules can be confusing. For example, a non-Indian woman bearing the child of an Indian receives an exemption while carrying an Indian’s baby because she can access Indian Health Service care. Once the baby is born, the baby receives a life exemption upon application and the mother’s exemption disappears. Moreover, it is terribly tough to get Native people to fill out the ACA exemption paperwork. Our ancestors traded great lands integral to this country in exchange for health care, and many feel that the federal government is breaking this promise to our people by charging us the tax penalty unless they apply for exemption. Because of this, individual Indians often do no seek the exemption. And since the exemption is a required part of the tax return, their returns may be rejected as incomplete. Overall, the tax perspective of the individual Indian is threatened under this new regime. I applied to be a Fellow in order to aid the individual tax experiences of the members of the 39 tribes of Indians of Oklahoma in the hopes that I might take away some of the mystery and confusion that surrounds the exemption here.
ATT: How did you come to choose OILS as your sponsoring organization?
DK: As I mentioned above, I wanted to work in a position that would allow me to focus on the tax issues that Native Americans face. I first approached Montana Legal Services, where I had done my third-year clinic in Native taxation. When that approach did not materialize, I moved on to the LITC in a state with even more Indian tribes and Native peoples, Oklahoma. Oklahoma Indian Legal Services was incredibly interested and had loads of tax work ready for me, so it has been a win-win situation, despite the ongoing threat of tornadoes.
ATT: Please tell us about the work you do. What sort of projects are you working on?
DK: I do all aspects of tax controversy. I have had big cases and small cases. Most involve non-filing or compliance issues. I have been successful and have developed a great working relationship with the local IRS folks here, who have been helpful along the way. They often tutor me on how best to proceed when I am learning or unsure. They have been great. I have been doing education and outreach on many issues which touch Native people, such as Earned Income Tax Credit issues and how the IRS rules apply to family structures in tribal communities. We sometimes do not have the same family structures as non-Indian communities. For example, the Crow people of Montana give their oldest child to their grandparents to care for them in their old age. Such arrangements can impact dependency deduction claims, but the tax code is difficult to understand on this issue. So I educate and inform. The Chickasaw Nation of Oklahoma has generously provided me with an outlet on their public radio system so that I can broadcast a call-in tax question-and-answer show. It gets rebroadcast around the state of Oklahoma at certain times (3:00 a.m. likely). I’ve never heard it, but people have and tell me they learn from it. I also write a repeating piece for the tribal newspapers here. I cover topics like the ACA exemption and Form 8857 for Innocent Spouse Relief. The tribes have requested more articles; I just have not been able to write as many as I would like. I believe the circulation is 54,000 households, or at least that is what I was told. I also hold tax outreach and education events in conjunction with will clinics. There is a big push in Indian Country to get every Indian to make a will, because there are some complex laws, including the American Indian Probate Reform Act,4 which affect how our property is inherited at our death. Other than that, I do controversies of all sorts, big or small. I think I opened 5 new cases last week and have closed 4 already this week. I’m busy and I work fast (or so they tell me). I don’t know, I just love tax.
ATT: What has been your biggest challenge so far?
DK: My biggest challenge to date has been grasping the procedural aspect of the IRS and its operations. I’m lucky that my local IRS office is so helpful and I can go down and bug them or bug the local Taxpayer Advocate for help. The local Oklahoma City field office has been an outstanding resource. Ms. Denny, Mr. Allison, Mr. Howe, Mr. Higginbotham, Ms. Hensley, and Mr. Suarez all work hard to assist me in seeking tax solutions for my clients. If I had to wait 6 hours on the phone to get anything done only to receive a “courtesy disconnect” I don’t know what I would do.
ATT: What has been the most rewarding part of your Fellowship?
DK: The most rewarding aspect of my fellowship has been the people I have been able to successfully help. They are so grateful. To them, tax seems like such a mystifying world. To me, tax is a blast. It is that Rubik’s cube of fun that makes the rest of the world possible. Line up all the colors: schools, fire stations, entitlement programs, and roads all pop up. Another rewarding part of my fellowship is the people you meet along the way and the happiness they experience when their tax controversies get resolved. Earlier this month I helped a disabled retired woman go from owing $145,000 to the IRS all the way to receiving a $100 refund. She was so grateful and thankful, it blew me away. Just today, again, another disabled retiree who owed $60,000 settled her case with the IRS Offer In Compromise office for $7,500. She can now go on and enjoy being retired like she should. We even helped one client find $111,000 in a bank account she hadn’t known about; it was set up by her deceased spouse without her knowledge.
ATT: Do you have any immediate plans for after the Fellowship? How has the Fellowship impacted your career goals? Do you expect to stay with your sponsor organization after the Fellowship has ended?
DK: I don’t have any immediate plans. Montana Legal Services has tax people in place, so going home to Montana isn’t on my immediate radar. Oklahoma Indian Legal Services has Mark Widell, who is a good mentor, so they are covered. By then I hope to have finished the LLM program at Georgetown University and have both my SALT Certificate and my International Tax Certificate, so maybe I will be doing something with those. I will say that I have become fascinated by SALT taxation and the never-ending varieties of issues that crop up. It really has opened up a whole new world of controversy that seems fascinating. Maybe I will be doing something there as tribes and states often find themselves fighting over tax. Who knows? One day at time. ■
1 See, e.g., Cherokee Nation v. The State of Georgia, 30 U.S. 1 (1831); IRM 126.96.36.199, Tribal Sovereignty Overview (Feb. 18, 2015).
2 IRM 188.8.131.52, Tribal Sovereignty Overview (Feb. 18, 2015).
Since 2009, the Section has funded two Christine A. Brunswick Public Service Fellows each year, including these amazing young lawyers. Details about the Fellowship are available at http://www.americanbar.org/groups/taxation/awards/psfellowship.html.