Another State Tax Man Smackdown; Tribal Property Tax Win

Today, the Second Circuit Court of Appeals smacked down a New York county assessor's attempt to foreclose upon Cayuga-owned fee lands in a desperate attempt to recover state ad valorem property taxes from the Tribe. Cayuga was a benefactor of both the Oneida Nation's genius mooting of Oneida Indian Nation of N.Y. v. Madison County, before the U.S. Supreme Court, as well as the Bay Mills Tribe's lucky win before the Supreme Court in Michigan v. Bay Mills Indian Community.  Bay Mills should have been mooted too.

The Cayuga decision represents another win in a surprising run for tribes in state property tax or fee assessment disputes before federal circuit courts of appeals.

Last year, the Ninth Circuit struck down property taxes on permanent improvement to Chehalis tribal trust lands in Confederated Tribes of Chehalis Reservation v. Thurston County Bd. of Equalization; and the Seventh Circuit struck down a local assessment of stormwater "fees" against Oneida trust lands in Oneida Tribe of Wisc. Indians v. City of Hobart.

Amidst serial federal court losses in other state-tribal tax contexts (i.e. sales and excise taxation), it seems that Indian property tax or tax-related cases are still winnable.  See also Crow Tribe of Indians v. Montana (9th Cir. 1987).  Granted, Cayuga was a sovereign immunity, not Bracker, case but the county's suggested in rem exception to tribal immunity would have catalyzed state taxation of Indian property nationwide.

In any event, Richard Guest of NARF's advice remains sound:

Stay out of the courts! The federal courts are not your friends anymore.  The majority of judges sitting on the lower federal courts were appointed by Bush II – very conservative, have no understanding of Indian country at all. No interest in your issues. And that can be said of the Roberts court as well. It’s a very difficult place for tribes to secure victories.

Difficult, but thankfully not impossible, at least in the Indian property tax context.

Gabriel “Gabe” Galanda is the Managing Partner at Galanda Broadman, which handled various Indian tax controversies. He is a citizen of the Round Valley Indian Tribes. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.

Feds Flout Bald Eagle Protection & Tribal Consultation

By Amber Penn-Roco

The American Bird Conservancy (ABC) recently filed a Complaint in the U.S. District Court for the Northern District of California against the U.S. Fish and Wildlife Service (USF&W) and the U.S. Department of the Interior, challenging a final rule that loosened protections for bald and golden eagles for the sake of wind energy developers.

The Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act prohibit the killing of bald and golden eagles without a federal permit.  In the Complaint, ABC challenged a rule that extended the total maximum duration of the federal permits, from 5 years to 30 years.  ABC alleged that the final rule violates the National Environmental Policy Act, the Bald and Golden Eagle Protection Act and the Administrative Procedure Act.  ABC alleged that the rule was “promulgated specifically to respond to the wind power industry’s desire to facilitate the expansion of wind energy projects in areas occupied by eagles.”  ABC argued that by extending the length of the permit, the rule eliminated the need for wind companies to renew permits.  The renewal applications would have required agency decision-making processes, necessitating public comment.  Therefore, ABC argued that the rule interferes with the ability of the public to participate and meaningfully advocate for eagles.

The rule has rightfully drawn opposition from Indian Country. The USF&W initially attempted to consult with Indian Country; the agency met with the National Congress of American Indians.  The meeting did not appear to be effective, as one month later the NCAI passed a resolution accusing the USF&W of failing to meaningfully consult with tribes.  The Nez Perce, San Carlos Apache, Sault Ste Marie Chippewa Indians and Hopi Tribes each submitted public comments opposing the rule, in part due to  of the lack of effective tribal consultation.

Outreach to NCAI is by no means the consultation required by federal law.  Indeed, as one federal court explains: “grouping tribes together (referring to consultation with ‘tribes’) is unhelpful: Indian tribes aren’t interchangeable, and consultation with one tribe doesn’t relieve the [Fed] of its obligation to consult with any other tribe that may be a consulting party.”  See Quechan Tribe of Fort Yuma Indian Reservation v. U.S. Dept. of Interior (S.D. Cal. 2010).  Not to mention, NCAI isn’t even a tribe.

ABC’s lawsuit will hopefully force the United States to reconsider the impacts of the rule on tribally sacred bald and golden eagle populations.  However, none of the plaintiffs in the lawsuit are tribes, and, therefore, the lawsuit may not reflect Indian interests.  Tribes may be formulating their own challenges to the final rule.  Alternatively, as the record reflects a lack of government-to-government consultation, tribes should consider using this as a basis to intervene in ABC’s action.  Unfortunately, as the final rule has been promulgated, tribes must now look to litigation to ensure that tribal interests are considered.

Amber Penn-Roco is an Associate with the Seattle office of Galanda Broadman, PLLC.  Amber’s practice focuses on complex land and environmental issues and multi-party litigation involving tribal sovereignty, torts and hazardous materials.  She is an enrolled Chehalis Tribal Member.

Tribal Police: “We Don’t Need No Stinkin’ State Badges!”

By Joe Sexton

Recently, in State of New Mexico v. Sanchez, the New Mexico State Court of Appeals upheld the DUI conviction of a non-tribal defendant arrested by a tribal police officer on Indian lands in New Mexico. The defendant, on appeal, had challenged the authority of the tribal police officer to arrest him.  At first blush, this seems to be a win for Indian Country and tribal sovereignty in general.  Of course the end result is better than a ruling further eroding the minimal authority Tribal police presently retain in Indian Country after a disastrous line of federal court decisions, including the Supreme Court’s disastrous holding in Oliphant v. Suquamish Indian Tribe roughly 36 years ago.

But if you dig into the New Mexico court’s decision enough to understand the reasoning underpinning its holding, the illusory nature of tribes’ sovereign power to police their own lands is revealed.  The only reason preventing the New Mexico court from finding that the tribal police officer lacked the authority to arrest an impaired driver on Indian lands is the fact that the tribal officer had been deputized by the non-tribal county government.  In other words, only through the permission of non-tribal entities—many of which are often openly hostile to tribal authority and jurisdiction—is a tribal police officer allowed to arrest a non-tribal person committing a crime in Indian Country.  One line from the court of appeals’ opinion in particular reveals the hollow nature of the tribal police officer’s authority with respect to non-tribal criminal actors on Indian lands:

“The scope of Officer Vigil’s [the tribal police officer] authority depends on the authority given to him by the Santa Fe County Sheriff.”

When you combine the deep-seated racism and anti-tribal sentiment that has festered for generations in and around Indian Country and has infected non-tribal law enforcement, with the often rural nature of Indian reservations, and the court decisions crippling tribal law enforcement’s ability to protect communities situated in Indian Country, this recipe for calamity generally creates lawless havens for criminals and leads to problems of epidemic proportions.

The movement to stem violence against tribal women makes this painfully clear.  According to Lynn Rosenthal, the White House Advisor on Violence Against Women, “Native American women suffer from violent crime at some of the highest rates in the United States.”    Ms. Rosenthal notes that non-Indians constitute “more than 76 percent of the overall population living on reservations and other Indian lands” and, consequently, many of the “abusers of Native American women are non-Indian men.   Thus, “non-Indian men who batter their Indian wives and girlfriends go unpunished” because of the jurisdictional limitations of tribal courts and law enforcement.

Even though Congress recently debated an “Oliphant fix” with respect to violence against women in particular, legislation regarding this problem should not be necessary, and violence against Native American women is not the only malignancy caused by Oliphant and its progeny.  If sovereignty means anything, it means the inherent authority to protect the communities situated within a sovereign’s territory.  But this authority has been stripped away, leaving Tribal law enforcement at the mercy of local jurisdictions if they want any authority to protect their communities from non-tribal criminals.  As Justice Thurgood Marshall noted in his dissent to the Oliphant majority opinion:

"I agree with the court below that the ‘power to preserve order on the reservation . . . is a sine qua non of the sovereignty that the Suquamish originally possessed.’ . . . In the absence of affirmative withdrawal by treaty or statute, I am of the view that Indian tribes enjoy, as a necessary aspect of their retained sovereignty, the right to try and punish all persons who commit offenses against tribal law within the reservation.”

Put another way, the authority of sovereign Indian tribes to arrest and prosecute non-Indians who decide to commit crimes on Indian lands is inherent, and absent legislation or a Treaty to the contrary, no court has the legitimate authority under our system of law to simply erase that inherent authority.  So in the end, it’s a good thing that the New Mexico Court of Appeals did not expand upon Oliphant and further hamstring tribal law enforcement operating within New Mexico.  But Officer Vigil’s authority on tribal lands does not, and should not, depend on whether Santa Fe County decides to cross-deputize him or not.

Joe Sexton is Of Counsel with Galanda Broadman, PLLC, and practices out of Yakima, Washington.  Joe’s practice focuses on tribal sovereignty issues, including land and environmental issues, economic development matters, and complex Indian Country litigation.

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.

Ninth Circuit Fails To Protect Tribal Sacred Sites

The Ninth Circuit Court of Appeals recently sustained the long-standing federal policy of subordinating Tribal sacred sites and culture to economic pursuits. The Te-Moak Tribe of Western Shoshone Indians of Nevada v. U.S. Department of the Interior decision highlights the general lack of enforceable protections codified in federal and state laws for Tribal cultural resources, and the inadequacy of President Clinton’s Executive Order 13007 in actually accomplishing what President Clinton ordered–that is, to “protect and preserve Indian religious practices.”

In the case, the Te-Moak Tribe among other Tribes and interested parties appealed the BLM’s approval of a plan to expand gold mining in and around traditional Native sacred sites where religious ceremonies are still held to this day.

The thrust of the Ninth Circuit’s recent holding is that E.O. 13007 “requires only that sacred sites be accommodated ‘to the extent practicable.’  [BLM] determined that further accommodation was not practicable given the lack of specificity as to location and as to the number of Tribal members who use any particular site on the pediment for religious activities.”

Finding no “arbitrary or capricious agency action,” the Ninth Circuit upheld the district court’s summary judgment against the Tribes and other appellants, paving the way for more mining and the destruction of Native American sacred sites.

The sole dissenter hit the nail on the head regarding the majority’s flawed and anti-Tribal reasoning that:

the analysis failed to recognize that comments regarding the proposal did point to the area where the mine is being built as an area in which worship occurs; it demanded quantification of that use as a condition of Executive Order coverage, when no such quantification is necessary; and it required greater specificity of location than comports with Shoshone religious practices. As to the last point, to require greater specificity would interfere with Shoshone religious practices, as those practices appear to regard certain recognized natural areas, rather than specific set locations, as places for worship.

In essence, without teeth (i.e. actual enforcement mechanisms and concrete directives to federal and state governmental agencies), all federal laws and executive orders purporting to “protect and preserve Indian religious practices” and cultural resources have no real authority to effect positive change and truly protect Tribes and their threatened cultures.   As such, Tribes must take a by-any-means-necessary approach to fending off government or private attacks upon Indian religious practices and ways of life.

The entire Ninth Circuit decision in Te-Moak may be found here.  E.O. 13007 may be found here.

Joe Sexton is Of Counsel with Galanda Broadman, PLLC.  Joe’s practice focuses on tribal sovereignty issues, including complex land and environmental issues, and economic development matters.  He can be reached at (509) 910-8842 and joe@galandbroadman.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.

Gabe Galanda Stumps Against Interior's Land Buy Back; Serves as Professor in Residence

This week, Gabe Galanda visited the University of Arizona College of Law in Tucson for a speech at the 2nd Annual Tribal Lands Conference, and a Professorship in Residence at the Indigenous Peoples Law & Policy Program. Gabe's speech at the Conference, which was themed "The Cobell Settlement Land Buy-Back Program for Tribal Nations," was titled: "The Perils of Indian Law Buy Back." He explained that "while Interior’s plan disclaims any facilitation of forced sales under 25 U.S.C. 2204(a), the $1.55 Billion in 'buy back' monies will catalyze controversial intra-tribal forced sales."

Gabe further explained how any such forced sale could violate various federal laws, including the Fifth Amendment of the U.S. Constitution and the United States' trust fiduciary duty at common law, as well as international human rights law, including Articles 1 and 10 of the United Nations Declaration on the Rights of Indigenous Peoples and Article 11 of the Rights of Man and of the Citizen. His slides are available here, and his prior published commentaries are here.

During his Professorship in Residence, Gabe engaged indigenous law students during a program moderated by Dean Marc Miller, in the development series called "A Conversation With...," which features prominent law school alumni. He also delivered a lecture to Professor Ray Austin's class titled, "Tribal Economic Development: Looking Through the Prism of Indian Taxation & Sovereign Immunity."

In his lecture, Gabe explained very recent developments in federal Indian law regarding the powers of tribal taxation, sovereign immunity and territorial authority. His slides are available here.

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.

Tribal Disenrollment Defense Lawyers

We are proud to represent the Nooksack 306 and the Grand Ronde descendants of Chief Tumulth, as well as other American Indian citizens facing disenrollment. We do not prosecute disenrollment actions; we defend against them. Our sworn duty is to ensure that fundamental human rights and guaranteed civil rights are honored during any disenrollment actions. Too frequently, they are not.

Our work on behalf of the Nooksack 306 is featured here on Turtle Talk, and our work for the Chief Tumulth descendants can be found here.

Galanda Broadman is an American Indian owned firm dedicated to advancing tribal legal rights and Indian business interests. The firm represents tribal governments, businesses and members in critical litigation, business and regulatory matters, especially in the areas of Indian Treaty rights, tribal sovereignty, taxation, commerce, personal injury, and human/civil rights.

There is no more critical a legal situation to an American Indian than a disenrollment action. Legal counsel is almost certainly required. If you facing disenrollment, call the firm's Managing Partner Gabe Galanda to see if we can help.

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.

Round Valley Lawyer Gabe Galanda Named Indian Country "Visionary"

Richard Walker of the Indian Country Today Media Network published an article titled, "5 Visionaries Who See a Brighter Future for Indian Country," naming Gabe Galanda as one of "five people are rocking the world with their forward thinking, innovation and commitment to social justice."

3. Gabe Galanda, Round Valley Indian Tribes: Paving the Red Road to Recovery for Inmates

The efforts of this Seattle-based lawyer are helping Native Americans in prison to walk the red road to recovery. Galanda formed the nonprofit organization Huy (pronounced “Hoyt”) essentially meaning “I’ll see you later.” (Coast Salish people do not have a word for “goodbye.”) In Washington state, Huy won changes in policies that blocked Native American inmates’ access to traditional religious practices and sacred items.

Huy is lobbying for similar changes nationwide. The organization asked the U.N. Human Rights Committee for an inquiry into restrictions upon Native inmates’ religious freedoms, and appeared as a friend of the court in support of those freedoms. Galanda argues that restricting such freedoms violates federal, state and international law. For some Native inmates, walking the red road while behind bars is the only road to rehabilitation and survival.

“Today’s powwow, everything that we do is to give back, to show our kids and our families that we’re going to work on getting back to those ways, getting back to spirituality and things that matter,” inmate Seymour Ruben told the Cheney Free Press during an August 1 powwow at Airway Heights Corrections Center.

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.