Gabe Galanda Featured Law360 Commentator Re Bay Mills Decision

After the Supreme Court's shocking decision in favor of the Bay Mills Indian Country, leading law blog, Law360, quoted Gabe Galanda at length about the decision, in "Bay Mills Ruling To Fuel New Fights Over Tribal Immunity."

“Bay Mills is the most significant Supreme Court win for Native America in the last 25 years, maybe ever," Gabriel S. Galanda 
of Galanda Broadman PLLC told Law360. "It categorically affirms not only tribal sovereign immunity from state action, but also tribal sovereignty and Indian gaming in general. ... Still, tribal governments are nowhere near out of the woods.” 

For one thing, both Justice Elena Kagan, in a footnote to the majority opinion, and Justice Clarence Thomas in his dissent, alluded to an open question that remains: Does tribal sovereign immunity extend to an off-reservation tort, like an automobile accident caused by a drunk driver or casino patron? . . .

Lower courts could take the Supreme Court opinion as a cue to abandon sovereign immunity precedent if there's “special justification,” such as if a claimant were unable to secure some form of remedy otherwise, experts say.

“That passage [in the majority opinion] can be read by lower court judges as a signal to develop a remedy for a tort claimant, especially off-reservation, and allow the federal appellate process to go from there,” Galanda said.

Gabe and his partner Anthony Broadman were previously very critical of those federal powers that be, in particular, who did not moot the case before it reached the typically anti-Indian High Court (see here, and here.)

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.

Gabe Galanda to Explain Tribal Sovereignty Issues Re State-Legalized Marijuana

On Monday, Gabe Galanda will address the Affiliated Tribes of Northwest Indians General Assembly, during ATNI's Mid-Year Convention this week at the Chehalis Tribe's Great Wolf Lodge, regarding the tribal and federal legalities associated with state-legalized marijuana, as well as related tribal economic opportunities.

The topic couldn't be hotter. Consider the following recent headlines about legalized marijuana in Indian Country:

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.

Tribal Online Lenders Need a Legal Attitude Adjustment

A review of recent federal judicial decisions against tribal online lenders shows that they are losing the war--resoundingly. Arguments under Tuscarora that federal consumer protection laws of general applicability, have fallen flat. Arguments that these tribal enterprises are immune from federal enforcement action (see U.S. v. James), have not surprisingly fared even worse. Tribal sovereignty is being eroded in the process of each federal court controversy.

The tribal online lending industry needs a legal attitude adjustment. Or is it only a matter of time before the industry meets its demise. Instead of throwing traditional federal Indian legal arguments against the walls of federal courthouses, in hope that they stick--they haven't yet--the industry needs to heed lessons learned by other tribes when over-zealous federal agencies like the IRS, FBI or ATF come barreling onto an Indian reservation or into a tribal economy.

Among other non-conventional tribal defense strategies, one that has been deployed effectively against such federal agencies of late is preemptive consultation:

[C]onsultation can be used as a sword—a preemptive strike that forces U.S. agencies to consult before taking action in Indian country—as well as a shield to guard from federal and private attacks on Indian sovereignty. As it stands, several federal agencies freely enforce their prerogative over tribes, under the guise of so-called federal laws of general applicability and increasingly with federal court approval. Still, at each stage of federal encroachment or enforcement, federal law requires consultation with tribal officials.

See e.g. "ATF Withdraws PACT Act FAQs; Downgrades Tobacco Investigations?"

As counter-intuitive as it might be for tribes to bring their enemies close (as Sun Tzu and Michael Corleone both advise), that is exactly what those tribes that are involved in online and are under federal siege, should do in hopes of regaining some battle ground. That is because if the FTC or CFPB violates normative protocols for pre-enforcement consultation between sovereigns, the agency can be sued under the APA and enjoined or stymied from proceeding. This strategy is fully discussed in "The Federal Indian Consultation Right: A Frontline Defense Against Tribal Sovereignty Incursion."

After all, what else, or how much longer, can the tribal online lending industry stand to lose?

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.

Federal Agency Violates NEPA During Elwha River Restoration

On March 26, 2014, the U.S. District Court for the Western District of Washington found that federal agencies violated the National Environmental Policy Act (“NEPA”) when they failed to adequately consider the impact of the release of hatchery fish on naturally spawning fish populations.  

Previously, the Elwha River was one of the most productive fish streams in the Northwest, producing nearly 400,000 spawning fish annually.  However, after the Elwha and Glines Canyon Dams were constructed, without fish passage structures, there was a decline to fewer than 3,000 naturally spawning fish.  As part of the Elwha River Restoration the federal government agreed to remove both dams.  (For more information on the Elwha River Restoration, click here.)

The dam removals required the preparation of certain environmental documents, including an Environmental Impact Statement (“EIS”), to determine the environmental effects of the project.  The EIS determined that the project would negatively impact fish populations and suggested that hatchery support would be needed to ensure the protection of fish stocks.

Based on the EIS, the federal government released an Environmental Assessment (“EA”).  The EA proposed releasing large quantities hatchery raised steelhead trout and coho salmon to supplement the fish population.  However, the large release would ensure that the majority of fish that would return to spawn would be hatchery fish.

Four fish conservancy groups filed suit against five federal agencies, seeking declaratory and injunctive relief.  The plaintiffs include the Federation of Fly Fishers Steelhead Committee, the Wild Fish Conservancy, the Wild Salmon Rivers, and the Wild Steelhead Coalition.  The defendants include the NOAA Fisheries Service, the National Park Service, the United States Department of Commerce, the United States Department of the Interior, and the United States Fish and Wildlife Service.

The court found that the agencies’ proposed quantities of hatchery fish were “arbitrary” and that the court found it “suspect” that the agencies did not consider smaller releases of hatchery fish.  The court found that the EA was inadequate and granted summary judgment to the plaintiffs on the issue.  Because of the deficiency of the EA, the court ordered the parties to meet and confer regarding the plaintiffs’ proposed release of a smaller number of hatchery fish.

The Lower Elwha Klallam Tribe was initially named as a defendant, but the court dismissed the Tribe from the case, based on a lack of subject matter jurisdiction.  The plaintiffs’ have stated that they support the Tribe’s right to harvest the coho salmon and steelhead trout. Additionally, the court found that decreasing the proposed releases of hatchery fish would not impact Treaty fishing rights, because there is a current moratorium on fishing, lasting through 2018 and after 2018, the Tribe agreed to base its catch on the number of returning fish.   The initial Hatchery and Genetic Management Plan was developed collaboratively with the Tribe. However, to ensure tribal interests are represented, the parties are obliged to consult with the Tribe as they meet and confer regarding the amount of fish to be released and as they draft new portions of the EA.

The cross-motions for summary judgment and the court order can be found here.

Amber Penn-Roco's practice focuses on complex land and environmental issues and multi-party litigation involving tribal sovereignty, torts and hazardous materials.  Amber is an enrolled member of the Chehalis Tribe.  She can be reached at (206) 713-0400 or amber@galandabroadman.com.

ATF Withdraws PACT Act FAQs; Downgrades Tobacco Investigations?

As reported this week in the Times Argus, the ATF has withdrawn a controversial set of Frequently Asked Questions (FAQ), which states were using to regulate and tax--and essentially vitiate--inter-tribal tobacco commerce. While some speculate that ATF has in very recent times diverted federal attention away from tobacco-diversion investigations, Indian Country should remain vigilant in defense of state PACT Act, CCTA and other tobacco tax enforcement efforts.

According to the Times Argus:

ATF took down a frequently-asked-questions Web site posting attached to its explanation of the PACT Act. The FAQ stated that the law clearly applied to wholesalers and distributors on Indian reservations.

“We are concerned that the removal of the FAQs may evidence a determination by ATF to narrow its current interpretation of the PACT Act to exclude various tribal cigarette sales and shipments,” [Idaho AG Lawrence] Wasden wrote in the Feb. 21 letter to Holder. . . .

ATF took the FAQs down after meeting with tribal representatives because the answers were three years old and “it was time to review (them) based upon the passage of time and the experience gained in enforcing the PACT Act,” [ATF spokeswoman Ginger] Colbrun said in an email statement. “We’ve committed to reviewing the FAQs, but not to making any specific changes unless we conclude they are warranted by the law.” . . .

In recent years, ATF has backed off enforcement of laws governing “tobacco diversion” — underground smuggling of cigarettes from Indian reservations to urban markets or from low-tax states in the South to high-tax states like New York and Connecticut.

Last year, the Albany Times Union obtained an ATF memo that directed agents to downgrade tobacco-diversion investigations unless there is a “nexus” to violent crime.

Indian Country had openly questioned the ATF's written position regarding state enforcement of the PACT Act per the withdrawn or "taken down" FAQs, specifically:

1. The scope of “lawfully operating” as that term is used in 15 U.S.C. § 375(4)((B);
2. The scope of “Delivery sales” in regard to wholesale shipments made to reservation retailers intended for resale in a “face to face” transaction;
3. The PACT Act “list;” and
4. The PACT Act definition of “interstate commerce” and its relationship with commerce occurring between different Indian reservations.

Of particular concern was Issue No. 1, as ATF took the position in the FAQs that to be “lawfully operating,” a business must possess all state licenses regardless of whether that business is operating in Indian Country. The ATF's position, which represented a wholesale incorporation of state law into Indian Country, is specifically prohibited by the plain language of Section 5 of the PACT Act.

Still, Indian Country should not let its guard down against the states for an upstate New York minute.

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.

Freedom’s Just Another Word: The BIA’s FOIA Debacle

The Bureau of Indian Affairs needs an attitude adjustment when it comes to freedom of information. That is because the BIA, or at least its Pacific Northwest Region, stifles the spirit of the Freedom of Information Act (FOIA), including when it comes to the agency’s trust responsibility to Indian people. Any tribal official or citizen who has sought information from the federal Indian trustee, knows that the Bureau does everything in its power to choke the flow of information to tribal government and citizens. Having had clients in search of needed information, outright disrespected by the BIA, the Bureau’s illegal practices must be brought to light – and halted by the Assistant Secretary of Indian Affairs for the Department of Interior.

During his first term in the Oval Office, President Obama issued an Executive Order, mandating that when “responding to requests under the FOIA, executive branch agencies should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.” 74 Fed. Reg. 4693 (Jan. 21, 2009). Yet despite this order that the BIA cooperate in service to the public, consider two recent examples of how uncooperatively the Bureau’s Pacific Northwest Regional Office treated tribal parties seeking information critical to them.

Last year a tribal enterprise requested information about Bureau commercial regulatory practices regarding Tribal trust resources. That information should have been produced without a FOIA request, because the United States’ fiduciary responsibility affords tribal trust beneficiaries “government documents prepared in aid of trust administration,” and “the requirements of FOIA serve different policies and interests” than does the execution of that duty. Osage Nation v. U.S., 66 Fed.Cl. 244 (Fed. Cl. 2005).

Even so, the Bureau required a FOIA request, as it typically does. Then, after the tribal entity wrote the BIA pursuant to FOIA, the Regional Director (or his Solicitor) glibly replied, and I quote:

The law is clear that the FOIA is not meant to have federal agencies become the research arms of other entities.

What gall, especially because the law could not be more clear: FOIA is in fact designed to cause federal agencies to be research arms – of the taxpaying American public, including Indians.

More recently members of a tribal council requested from the BIA all documents regarding a Secretarial election. In order to receive 1,000 pages of information, the BIA assessed them fees of over $10,000 – an astonishing $10 a page. What Indian or Tribe has $10,000 lying around, especially for purchase of their own federal documents?

After the Councilpersons requested a fee waiver, explaining that they needed the election records to for fundamental governmental purposes, the Regional Director (or his Solicitor) deemed the request one of “commercial interest” and reasoned:

'This request concerns individuals that would derive benefits from being enrolled in a specific tribal government and disclosure provides specific information on how individual tribal members voted. As such, your commercial interest in these disclosures is your primary interest and clearly outweighs any public interest’ in disclosure.

Again, what gall, to insult tribal citizens by declaring their governmental concerns a matter of monetary interest. Imagine the BIA offering the same explanation to a U.S. Senator asking for governmental documents.

It is time for Assistant Secretary Kevin Washburn to change the attitude of the BIA’s career employees regarding disclosure of information to the tribal public. This spring, Secretary Washburn remarked that the recent Cobell settlement allows the United States and Indian Country to “hit the reset button” on the federal Indian trust relationship. The reset button must also be hit as to Interior’s role as trustee of Indian records and information.

Indeed, “[t]he common law recognizes an obligation on the part of the trustee to provide full and accurate information to the beneficiary on his management of the trust.” Martin v. Valley Nat'l Bank of Arizona, 140 F.R.D. 291, 322 (S.D.N.Y. 1991); see also Cobell v. Norton, 225 F.R.D. 41, 45 (D.D.C. 2004). The two anecdotes I share suggest that Interior has not sufficiently learned its lesson from Cobell about tribal access to trust-related information.

In all, when responding to requests under the FOIA, the BIA should start acting promptly and in a spirit of cooperation, recognizing that the agency is a servant of the American Indian public. Perhaps then freedom of federal Indian information will reign.

Gabriel S. Galanda is a Round Valley Indian Tribal member and a partner with the Seattle office of Galanda Broadman, PLLC. Gabe has sued the Department of the Interior and BIA for freedom of federal Indian information. He can be reached at gabe@galandabroadman.com.

IRS Targeting Is Nothing New—For Indian Country

Lost in the IRS-Tea-Party scandal is the fact that federal tax collectors have been targeting certain groups—Indian tribal governments—for years.

As Rep. Darrell Issa, R-Calif., Chairman of the House Oversight Committee, wastes Congress’s time on what really looks like a manufactured scandal, Indian Country should focus its attention on the IRS’s special wing—the ITG—focused on “provid[ing] Indian tribal government customers top quality service by helping them understand and comply with applicable tax laws, and to protect the public interest by applying the tax law with integrity and fairness to all.”  Which is code for auditing them.

The irony hasn’t been lost on those paying attention.

If the IRS had a division focused on providing anti-tax group “customers top quality service by helping them understand and comply with applicable tax laws,” Representative Issa might have a real scandal on his hands.

For what it’s worth, it would be more rational for the IRS to have a division focused on anti-tax groups as opposed to tribes.  Anti-tax groups are—surprise—less likely to pay taxes.  But ironically it is tribes and tribal members—supposed “Indians not taxed” according to the Constitution—who have been targeted and forcibly taxed by Uncle Sam since long before Representative Issa’s crusade.

Anthony Broadman is a partner with Galanda Broadman PLLC.  Anthony’s practice focuses on company-critical litigation and representing tribal governments in public affairs, taxation, and economic development matters.  He provides businesses and tribal governments advice regarding taxation, risk management, and legislative strategy.  Anthony was named a Rising Star by Washington Law & Politics magazine for 2013 and is immediate past Chair of the WSBA Administrative Law Section and Editor of the Indian Law Newsletter, published by the WSBA Indian Law Section.

Gabe Galanda Quoted Regarding Federal Protection for Indian Prisoners' Religious Freedoms

Gabe Galanda was recently quoted in the Indian Country Today article, "Inmate's Religious Rights Allegedly Violated Within Texas Prison System."

Gabriel Galanda, a Seattle, Washington-based attorney and member of the Round Valley Indian Tribes, is the chair of the non-profit HUY, a Salish word for “We Never Say Goodbye.” The organization supports religious and rehabilitative opportunities of prisoners in the United States. Galanda said prisoners’ constitutional rights do not end upon incarceration.

“Contrary to common misunderstanding, prison inmates do not forfeit constitutional protection just because they have been convicted of a crime and are now confined to prison,” Galanda said. “They still enjoy the rights to free exercise of religion—including tribal religion—as protected by the First Amendment of the United States Constitution.”

Galanda said these include tobacco use, pipe and drum ceremonies. Galanda also said state prisons cannot interfere with practice of tribal religion unless the state prison “can demonstrate the compelling governmental interest and use the least restrictive means of furthering that interest.”

A comment such as that allegedly made by a guard in the Texas prison system would place the state of Texas in serious risk of civil rights violations, Galanda added. He said federal law does not allow for a state employee “to disparage anybody based on race or religion. The suggestion by this state officer ‘being an Indian doesn’t make you special’ could expose the state and the officer to federal civil rights violations” . . .

Put more precisely, Native prisoners enjoy free exercise rights protected by the First Amendment. Pell v. Procunier, 417 U.S. 817, 822 (1974). Despite a 1987 decision by the Rehnquist Court that supplanted the longstanding strict scrutiny basis for review with a “legitimate penological interest”-test, Turner v. Safley, 482 U.S. 78 (1987), restrictions on Native prisoner religious practices such as sweatlodge ceremonies have been held to unlawfully infringe upon such a prisoner’s right to “free exercise” of religion. See e.g. Thomas v. Gunter, 32 F.3d 1258 (8th Cir. 1994).

The Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq., was passed in 2000 to restore the strict scrutiny test for prisoner religious freedom claims. Under RLUIPA, a prison cannot substantially burden an inmate’s religious exercise unless the imposition of the burden on that person “is in furtherance of a compelling governmental interest” and is the “least restrictive means” of furthering that interest. Ahmad v. Furlong, 435 F.3d 1196, 1197 (10th Cir. 2006). Accordingly, federal courts have affirmed the rights of Native prisoners to use tobacco for religious ceremonies, Native American Council of Tribes v. Weber, 2011 WL 4382271 (D.S.D. Sept. 20, 2011), and to participate in talking circles and pipe and drum ceremonies, Meyer v. Teslik, 411 F.Supp.2d 983 (W.D. Wis. 2006).

As an overlay, the American Indian Religious Freedom Act (AIRFA) of 1978 announced the United States policy to “protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions.” 42 U.S.C. § 1996. Although AIRFA does not create a cause of action,” Lyng v. Northwest Indian Cemetery Protection Assoc., 485 U.S. 439, 455 (1988), the law has been cited as persuasive authority in a number of cases concerning the religious rights of America’s first peoples – including those who live behind bars.

Prisoners who are Native American -- or of any other race, color religion or creed -- should not stand for any violation of their free exercise rights, especially by state prisons or corrections officers.

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  Gabe assists tribal members whose civil rights have been violated.  Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.

Kevin Washburn, Tracie Stevens, Ernie Stevens to Address Gaming Law Summit in Seattle

This Thursday and Friday, December 13 and 14, United States and Native Nations leaders will meet to discuss various emerging legal, regulatory, political and economic issues impacting the Indian gaming industry, at the 10^th Annual Gaming Law Summit in Seattle.

“Now in our tenth year, we are thrilled to attract some of the most influential Indian gaming authorities from Washington, DC and from Indian Country to the Summit,” said conference co-chair Gabe Galanda, an Indian lawyer and partner at Galanda Broadman in Seattle.  “We are proud that the Summit has become the most authoritative gaming law educational seminar in the country.”

This year’s lineup of speakers include:

• U.S. Department of the Interior Assistant Secretary of Indian Affairs Kevin Washburn
• National Indian Gaming Commission Chairwoman Tracie Stevens
• National Indian Gaming Association Chairman Ernie Stevens
• U.S. Department of the Interior Deputy Assistant Secretary of Indian Affairs Lawrence Roberts
• Washington Indian Gaming Association Chairman Ron Allen
• Cowlitz Tribal Council Vice Chairman Phil Harju
• Tulalip Tribal Board of Directors Secretary Glen Gobin
• San Manuel Tribal Gaming Commissioner Norm DesRosiers

  Those hot topics that will be discussed include:

• iGaming in Indian Country
• Fee-to-Trust Transactions for Gaming Development
• The U.S. Supreme Court’s recent Patchak decision
• Indian gaming commercial financing trends amidst the Great Recession

Ryan Dreveskracht Warns Indian Country About the STOP Act

Today, Ryan Dreveskracht spoke about the disastrous implications for Indian Country associated with the STOP Act, at the "Knowledge is Power! 2012 Tribal Tobacco Tax Training and Seminar" sponsored by HCI Distribution at WinnaVegas Casino Resort located in Sloan, Iowa. His PowerPoint slides can be downloaded here.

Ryan Dreveskracht is an Associate at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm. His practice focuses on representing businesses and tribal governments in public affairs, energy, gaming, taxation, and general economic development. He can be reached at 206.909.3842 or ryan@galandabroadman.com.