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.

Disenrollment: A Tale of Two Tribes

  Two neighboring California tribes are going about disenrollment in two completely different ways:

This week the Dry Creek Rancheria Band of Pomo Indians is becoming the latest tribe to terminate its own people.  For 70 Pomo Indians, it is not a question of whether they'll be disenrolled, but how quickly.

Meanwhile, just down the road, the Graton Rancheria has "buck[ed] the trend" of mass disenrollment by imposing constitutional limitations on the tribal government's ability to jettison its citizens.  (Graton Chairman Greg Sarris recently went on record before a group of California Indian leaders, denouncing tribal disenrollment, and becoming the first tribal leader to do so nationally.)

Tragically, Dry Creek's disenrollment efforts are related to Graton's very recent economic success:

Coming at a time when the tribe's River Rock Casino is suffering the bruising effects of competition from the newly opened Graton Resort and Casino in Rohnert Park, some suspect it's another way to trim expenses by reducing the number of Dry Creek tribal members who get a monthly “per capita” distribution of casino profits.

Indeed, the tragic trend of mass tribal disenrollment is very much about "money, and an 'individualistic, materialistic attitude' that is not indigenous to tribal communities."

I predict that for these two California tribes, history will tell:  "It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of light, it was the season of darkness, it was the spring of hope, it was the winter of despair."

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.

Galanda Broadman Named Washington State Gaming Law Firm of the Year

Corporate INTL has named Galanda Broadman the Gaming Law Firm of the Year in Washington, for the second consecutive year. The awards commemorate those lawyers who have been successful over the past 12 months and who have shown excellence not only in expertise but in service.

For all of Corporate INTL's awards, they undertake detailed research via Corporate INTL's independent research and editorial teams. Corporate INTL then creates a shortlist of up to 5 potential winners in each category. The shortlisted firms are then reviewed by an independent awards panel in each country with the eventual winners chosen by that independent panel.

Galanda Broadman is an American Indian owned firm dedicated to advancing tribal legal rights and Indian business interests. The firm handles various Indian gaming transactional, regulatory and litigation matters.

Law360 Quotes Gabe Galanda Re: Big Lagoon "Curveball"

Leading law blog, Law360, quoted Gabe Galanda at length regarding the Ninth Circuit's unprecedented decision in Big Lagoon, in "Tribal Casinos Face New Threats After 9th Circ. Curveball" (subscription required).

"The decision will allow states and anti-tribal groups to somehow collaterally attack other tribal projects that they find undesirable, many years — if not decades — after the fact," said Gabriel S. Galanda of
 Galanda Broadman PLLC....

"This decision will certainly further chill tribal lending for any new tribal economic development effort as well," Galanda said....

"This decision makes it even harder for tribal governments to greenfield Indian casinos, and that was already a near-impossible proposition due to the Supreme Court's recent anti-tribal decisions in Carcieri and Patchak," Galanda said.

Gabriel “Gabe” Galanda is the Managing Partner of 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 can be reached at 206.300.7801 or gabe@galandabroadman.com.

Gabe Galanda To Again Co-Chair Northwest Gaming Law Summit

On Thursday-Friday, December 12 and 13, United States, Washington State and Native Nations leaders will meet to discuss various emerging legal, regulatory, political and economic issues impacting the Indian gaming industry, at the 11th Annual Northwest Gaming Law Summit in Seattle. “Just as Indian gaming has grown exponentially over the last decade, so has the Summit,” said conference co-chair Gabe Galanda, an Indian lawyer and partner at Galanda Broadman in Seattle. “We are proud that we have become the most authoritative gaming law educational seminar in the country.” This year’s lineup of speakers include:

• New National Indian Gaming Commission Chairman Jonodev Chaudhuri • National Indian Gaming Commissioner Daniel Little • New Washington State Gambling Commission Executive Director David Trujillo • New Washington State Gambling Commission Commissioner Christopher Stearns • Washington Indian Gaming Association Chairman Ron Allen • Cowlitz Tribal Council Vice Chairman Phil Harju • Tulalip Tribal Board of Directors Secretary Glen Gobin

Those hot topics that will be discussed include:

• iGaming in Indian Country • Social Gaming • Fee-to-Trust Transactions for Gaming Development • The U.S. Supreme Court’s pending Bay Mills case • Indian gaming commercial financing trends amidst the Great Recession

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 can be reached at 206.300.7801 or gabe@galandabroadman.com.

Law360 Quotes Gabe Galanda Re Bay Mills Imbroglio

Gabe Galanda is featured along with several leading Indian lawyers and scholars in a Law360 article about Bay Mills, just days prior to oral argument before the Supreme Court. In "Bay Mills Hinges On High Court's Loyalty To Precedent," Gabe is quoted as follows:

Several Indian law experts, however, do not believe the Bay Mills tribe — which was urged to drop its case to avoid the Supreme Court — stands a good chance, and they are concerned that the current court will use the case as an opportunity to veer sharply from the Kiowa ruling.

That's because in the Kiowa decision, the justices affirmed the tribal sovereign immunity doctrine, but they also had some less-than-encouraging words about the doctrine and asked Congress to look into making changes at the lawmaking level. Congress held several hearings after the ruling, but ultimately decided to take no action, experts note.

"In the Kiowa case, a prior Supreme Court made it very clear that they were uncomfortable about tribal sovereign immunity. ... I believe the court will now take occasion to do what it wanted to do in the late 1990s and abrogate tribal sovereign immunity," said Gabriel S. Galanda 
of Galanda Broadman PLLC.

*** [O]thers, however, are hoping that the high court ultimately rules that the state can find remedies under the Indian Gaming Regulatory Act. The National Indian Gaming Commission, however, has so far declined to step in with a closure order that would officially shut down the Bay Mills casino for operating illegally on nontribal land. And the U.S. Department of Justice has likewise declined to step in and provide a remedy for Michigan.

"The absence of a federal remedy from the NIGC or DOJ to date will cause the justices to create the remedy for the state of Michigan, and it will be a remedy Indian country will not like," Galanda said, adding the case threatens to upset the delicate balance between state and tribal sovereign immunity. ***

As the case moves to arguments, attorneys rooting for both sides will be watching to see how broadly the sovereign immunity arguments are introduced, according to Rand. And while many believe, as Galanda points out, that the facts are not sympathetic for Indian country and that the tribe will be hard-pressed to win its case, other hold out hope.

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 can be reached at 206.300.7801 or gabe@galandabroadman.com.

Bay Mills Musings

My criticisms of the entire Bay Mills situation is mentioned in today in an article titled, "Supreme Problem: One Tribe Pressured to Waive Sovereignty for Good of the Whole." Here are a few musings about this unfortunate predicament: Bay Mills now poses a choice of the lesser of two evils for all of Indian Country. The first evil is federal enforcement authority, specifically the power of the NIGC to regulate Indian gaming beyond Indian lands. The second evil is states' rights, particularly the state right to remedy unlawful Indian gaming.

With Indian Country's political elite in the Beltway not being earnest or forthright about the matter at hand, that fateful choice will now be made for us by the notoriously anti-tribal and pro-state Supreme Court. There is no question that the Justices will assault tribal sovereignty and immunity, in favor of enforceable states' rights in Indian Country.

The court will somehow violently upset the delicate balance of state and tribal sovereignty that was set in 1990s when state and tribal sovereign immunity were affirmed in the Seminole and Citizen Band of Potawatomi decisions. The balance of power under IGRA that results from those decisions, will be tilted sharply towards states.

The court will almost certainly craft a ruling that usher states into Indian casinos and all of Indian gaming, if not all of Indian Country a la Nevada v. Hicks. Justice Scalia in particular, who openly disdains gaming and adores states rights, could use the atrocious facts of Bay Mills to finally sound the death knell for tribal sovereign immunity.

Indian Country should be afraid--very, very afraid.

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 can be reached at 206.300.7801 or gabe@galandabroadman.com.

Galanda Broadman Named Washington Gaming Law Firm Of The Year

Galanda Broadman has been named "Boutique - Gaming Law Firm of the Year in Washington" by Global Law Experts. The award follows several recent honors for Galanda Broadman and its lawyers. Galanda Broadman recently received a prestigious Tier 1 ranking in the 2013 Edition of U.S. News – Best Lawyers “Best Law Firms,” in the arena of Native American Law.

Gabe Galanda was also just named to The Best Lawyers in America in the practice areas of both Gaming Law and Native American Law, for the eighth straight year. He was named a “Difference Maker” by the American Bar Association in November as well. Also, Gabe and Anthony Broadman, as well as firm associate, Ryan Dreveskracht were each honored by Super Lawyers magazine for 2013; Gabe as a Washington "Super Lawyer" and Anthony and Ryan as "Rising Stars."

In December 2012, Lawyers of Color listed the firm in its Big Book of the Best Boutiques, an exclusive, national listing of the top minority law firms in each state. In January 2013, Seattle Business Magazine honored Gabe as one of “the Puget Sound Region’s Best Lawyers for 2013,” in both the arenas of Native American Law and Gaming Law. Last year Corporate INTL magazine named Galanda Broadman as the Boutique winner of the 2013 Corporate Intl Magazine Legal Award for "Gaming Law Firm of the Year in Washington."

Galanda Broadman, “An Indian Country Law Firm,” is dedicated to advancing tribal legal rights and Indian business interests.  The firm, with offices in Seattle, Washington and Bend, Oregon, represents tribal governments, businesses and members in critical litigation, business and regulatory matters, especially in matters of Indian Treaty rights, tribal sovereignty and taxation.

Gabe is an enrolled member of the Round Valley Indian Tribes of California. He currently sits on the National Native American Bar Association (NNABA) Board of Directors, chairing the group’s “Include Indian Law on State Bar Exams” Initiative, and co-chairing its “Increase Natives and Tribal Court Judges in the Judiciary” Initiative. Gabe is a past President of the Northwest Indian Bar Association and past Chair of the Washington State Bar Association (WSBA) Indian Law Section.

Anthony is the immediate past Chair of the WSBA Administrative Law Section, and author of “Administrative Law in Washington Indian Country.”  In September 2012, Anthony was specially honored for his outstanding service as Chair of the Administrative Law Section.  He is a former Trustee of the WSBA Indian Law Section, and also serves as Editor-in-Chief of the Section’s Indian Law Newsletter.

Prior to joining Galanda Broadman, Ryan was a law clerk to the Honorable Kathleen Kay, in the U.S. District Court for the Western District of Louisiana. Ryan has published ten journal and law review articles in 2011-12 alone, on issues like tribal renewable energy, and has served as the Managing Editor for the National Lawyer’s Guild Review since 2010.

2nd Circuit Gets Stupid With IGRA

In a horrid opinion in Mashantucket Pequot v. Town of Ledyard, the Second Circuit scrutinized IGRA's tax preemption provision, 25 U.S.C. 2710(d)(4), which provides:

nothing in this section shall be interpreted as conferring upon a State or any of its political subdivisions authority to impose any tax, fee, charge, or other assessment upon an Indian tribe or upon any other person or entity authorized by an Indian tribe to engage in a class III activity.

Astonishingly, the Second Circuit held that this provision somehow does not operate to outlaw state taxes on Class III slot machine vendors, meaning on "entit[ies] authorized by an Indian tribe to engage in a class III activity." The panel reasoned that “IGRA does not directly preempt, by its text of by plain implication. . . . IGRA addresses state taxation, without prohibiting taxes." Wow.

Indeed, in the way of judicial realism, the Second Circuit overlooked contrary interpretations of 2710(d)(4) by its sister circuits. Consider, for example, what panels in Cabazon II (9th Cir. 1994) and Rincon (9th Cir. 2010), have said about that statute over the last two decades:

Cabazon II: “IGRA preempts the State of California from taxing offtrack betting activities on tribal lands.” Rincon: “[N]othing in IGRA can reasonably be construed as conferring on states the power to impose anything [fees or taxes]; all the states are empowered to do is negotiate.” Id.: “Under 2710(d)(4), it is not only ‘taxes’ that are precluded, it is any ‘tax, fee, charge, or other assessment.’”

We've now arguably got a circuit split. Until that--heaven forbid--might ever be resolved on high, gaming tribes in the West should be protected from the state tax man under cover of Cabazon II and Rincon. Those mega-gaming tribes in the Northeast, maybe not so much.

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 governments and businesses in all matters of tribal economic development and diversification, including entity formation and related tax strategy. He also helps tribes and tribal businesses and joint ventures withstand attack from federal, state and local government. Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.

Oregon Tribal Lawyer Anthony Broadman Talks About Cities' Role in the Future of Indian Gaming

This month's edition of Indian Gaming magazine leads with an article by Bend, Oregon tribal lawyer Anthony Broadman about the increasingly pervasive role of cities in budding Indian gaming developments.

Where do businesses target high density customer bases? Where can tribal governmental gaming expand in the post-exclusivity age? The answer to both questions is the same: Cities. As tribes seek new markets, and novel revenue sources, we are seeing an uptick in conflicts in connection with attempts to capture urban gaming markets. These are both the Hail-Mary lawsuits of anti-gambling community organizations and high-level intergovernmental disputes among cities, states, the BIA, and competing tribal governments.

Anthony Broadman is a partner at Galanda Broadman PLLC. He can be reached at 206.321.2672, anthony@galandabroadman.com, or via www.galandabroadman.com.