Streaming Podcast: Gabe Galanda Offers Indian Gaming Forecast Via 113th Congress

Today, Gabe Galanda spoke on the CEM Audio Edge's Gaming Law News live show, regarding gaming issues from a tribal perspective and what the 113th Congress might or might not do to address and resolve these issues. The show gathers attorneys, policymakers and commentators to discuss crucial legislation affecting state and federal jurisdictions around the world. A few excerpts:

As a tribal advocate, I do not believe that tribal i-gaming should be regulated by states. First and foremost, to the extent tribal i-gaming is confined to Indian Country, as a matter of tribal sovereignty, states should have no role in its regulation. That said, I do generally agree that for sake of integrity of game play, dual regulation makes sense; meaning tribal and federal regulation, as we have with Class II Indian gaming.

States should also not play a regulatory role in i-gaming because unlike the situation in 1988, where generally speaking tribes did not have the regulatory experience that states like Nevada and New Jersey had then and as such, tribes needed help in gaming regulation, today tribes are very sophisticated in gaming regulation. In fact, tribal regulators have proven themselves more sophisticated than state regulators in many instances.

Moreover, states will use any Congressionally delegated regulatory role to extort taxes or revenue-sharing from i-gaming tribes, which is patently acceptable.

Based on Congress’s pace to date, it’s a safe bet that we’re heading toward state-by-state regulation of Internet gaming – tribes will have to fit into the cracks that such regulations create. . . . It will be a tribe by tribe process, in which tribes attempt to comply with both the requirements of IGRA and their compacts.

A vote on the [Akaka Carcieri fix] bill did not happen in 2012. U.S. Senators from Rhode Island and Northern California have done everything in their power to stymie a Carcieri fix, and successfully so as of yet. As long as they continue to do so, a Carcieri fix may not even get a vote in 2013.

The result of this [Patchak] decision is that a party claiming harm to property nearby proposed trust land has standing under the APA to bring a lawsuit. This creates considerable risk for casino developers because the statute of limitations under the APA is considerably longer than that of the QTA – creating much more time that a party has to challenge the DOI's trust transaction.

Two days after the fiscal cliff debacle, I would note that the Congress delivered some unexpected good news to Indian Country, in the form of tax relief. Although not gaming specific – of course Indian gaming is per se tax exempt – Congress passed a number of tax fixes that are advantageous to tribal governments engaged in economic development or diversification efforts.

Looking further into 2013, it is impossible to predict how the anemically bipartisan Congress will behave relative to i-gaming in general, or any matter of Indian gaming, be it TOGA or a Carcieri-fix. Generally speaking, I do not predict good things to come Indian Country via the 113th Congress. Any legalized inter-state i-gaming will somehow erode tribal sovereignty. . . . As such, the status quo, at least on i-gaming, might not be such a bad thing.

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.

A Look Back: Internet Gaming and "Indian Lands"

Anthony Broadman's materials from the 10th Annual Northwest Gaming Law Summit held last week in Seattle are available.  With the scrapping this week of the Reid-Kyl Internet poker bill, the outlook for online gaming in general, and tribal online gaming specifically, is as cloudy as ever.  These materials examine the approach taken by the NIGC and courts in the early 2000's when Tribes first began exploring regulated online gaming.  The regulatory scheme now in place as a result of these cases will have to be addressed in any federal legislation regarding Internet gaming.

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

The Shifting Sands Of Tribal Internet Gaming

As we barrel toward the election, the outcome of the presidential election promises to affect federal online poker legislation, and therefore tribal online gaming. The 2012 GOP platform calls for the ban of internet poker. And the DOJ opened the door under President Obama’s watch – albeit with as little publicity as possible. Presumably a second Obama term is better for federal poker legislation than a Romney term. That said, a lame duck congressional term could be just the ticket to “sneak” federal online gaming legislation through. With Senator Reid supporting tribal online poker, but opposing “off-reservation gaming,” it could get interesting. Tribes are, and should remain, on high alert. Yesterday the oft-referenced tribal/cardroom consortium California Online Poker Association disbanded due to insufficient progress on state online poker legislation. One could interpret this lack of progress as a reflection that tribes must be featured more prominently in any legislation. Federal or state bills that don’t protect tribal interests will be scrutinized and – hopefully – scuttled. 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.

Anthony Broadman Speaks the "Truths" on Tribal Onling Gaming

Anthony Broadman publishes his latest article on tribal online gaming -- The Arrival: Tribal Gaming, Nevada and the Future of Online Play in this month's edition of Casino Enterprise Magazine.

The long-awaited arrival of regulated Nevada and Delaware Internet gaming is bringing some uncertainty to the gaming industry. How will it affect traditional casinos? Will new customers be driven to existing brands? Will current market share be driven into the ether? We will know soon enough, as Nevada, and then Delaware, now have “legalized” forms of Internet gaming. You can bet other states will follow suit. Even with these uncertainties, tribal gaming enterprises can rely on a few truths about the direction of online play.

Anthony Broadman is a partner with Galanda Broadman in Seattle. His practice focuses on matters critical to Indian Country. He is a leading author on online tribal gaming, and can be reached at anthony@galandabroadman.com.

TOGA Senate Hearing Reveals Little; NIGC Reveals Even Less

We don’t know any more about the Tribal Online Gaming Act (TOGA) than we did before the Senate Committee on Indian Affairs held its oversight hearing on the discussion draft of the legislation last week. What we do know is that the NIGC is going to have be pushed into the fray if it is to have any regulatory role in online gaming. Despite wise reflection from Elizabeth Homer that the NIGC is the proper federal regulatory authority for online Indian gaming, the NIGC continues to bury its head in the sand – perhaps by political design.

For months, the NIGC has refused to openly involve itself in any manner in online Indian gaming, because: “None of the Internet gaming bills currently pending before Congress provide NIGC with a regulatory role. NIGC is not in a position to speculate on the particulars of any legislative proposal for which there is no clear role contemplated for NIGC,” as NIGC General Counsel Larry Roberts put it last November.

Last week’s input by the NIGC was even more empty. Despite a discussion draft of TOGA that included Department of Commerce oversight, the NIGC did not comment substantively on the arrival of online Indian gaming. Chairwoman Stevens did not mention Internet gaming once in her prepared comments, and deflected questions as Mr. Roberts had previously.

Instead, the NIGC’s input was limited to discussing the status of tribal gaming and an update on the Commission’s progress in achieving its four priorities: consultation and relationship building; training and technical assistance; regulatory review; and agency operations. In other words, the NIGC was totally off-topic – which is a shame because Internet gaming is coming to Indian Country, whether we like it or not, and because internet gaming falls squarely within the NIGC’s mission: regulating Indian gaming, shielding tribes from corrupt influences, ensuring fair play, and, most importantly, ensuring that Indian tribes are the primary beneficiaries of gaming revenue.

Recall that the NIGC routinely involves itself in situations where it has no legal authority to do so. Why? Because it is necessary to support tribal governmental gaming, per the agency’s mission. Take for instance the NIGC’s post-CRIT advancement of Class III MICS. In Colorado River Indian Tribes v. NIGC (CRIT), 383 F. Supp. 2d 123 (D.D.C. 2005), NIGC’s authority to enforce Class III MICS was struck down because “while surely well- intentioned, the NIGC ha[d] overstepped its bounds” in promulgating and enforcing the MICS. Yet last week – again in an Internet gaming hearing – the NIGC reported that it is still using the MICS to provide technical assistance and training. Again, Class III MICS, while potentially prudent as an advisory mechanism, are gratuitous and are much further afield from the NIGC’s core authority than involvement in Internet Indian Gaming. The NIGC must “protect [Indian] gaming as a means of generating tribal revenue.” 25 U.S.C. § 2702(3).

Why then does it refuse to champion tribal governmental gaming in the Internet context, when it clearly could? Only time will tell.

Anthony Broadman is a partner at Galanda Broadman PLLC and focuses his practice on issues critical to Indian Country. He can be reached at 206.321.2672 and anthony@galandabroadman.com.

TOGA, TOGA! SCIA Kicks Off The Tribal Online Gaming Party

Earlier this summer it looked like a federal online gaming solution was unlikely in the face of recent piecemeal moves by states to legalize Internet play. But today’s Senate Committee on Indian Affairs Oversight hearing on Regulation of Tribal Gaming: From Brick & Mortar to the Internet suggests that reports of the demise of the federal regulatory solution were grossly exaggerated. In fact, the Committee has published a discussion draft of the “Tribal Online Gaming Act of 2012” or “TOGA.”

Expect this draft to be discussed in depth today at 2:15 p.m. eastern by a panel of experts and insiders. Testimony will be available via webcast.

If TOGA has legs, expect it to be debated heavily. Some of TOGA’s critical points:

• Any federalization of online gaming must provide positive economic benefits for Indian tribes since such a program would create thousands of jobs within the United States. • “Tribal online gaming” means only online poker. • The Secretary of Commerce shall oversee and regulate tribal online gaming – not the NIGC. • Tribes, consortiums of tribes, and “a consortium of tribe(s) and non-tribal entities” could be operators. • No Indian lands requirement appears to exist. • TOGA is not intended to affect compacts or cause them to be renegotiated. • A most-favored-games clause would allow tribes to offer games as they become legal – ostensibly beyond poker. • No state taxation of tribal online gaming revenue.

So, the TOGA party has started. Will it get busted (by the Congress)? If not, which tribal governmental operators will be let into the TOGA party? And which will be left out? The tribal online gaming fun has now officially begun.

Anthony Broadman is a partner at Galanda Broadman PLLC and focuses his practice on issues critical to Indian Country. He can be reached at 206.321.2672 and anthony@galandabroadman.com.

Gabe Galanda Quoted By Boston Public Radio on Mashpee Situation

Gabe Galanda was quoted this morning in a Boston public radio story, Big Hurdles Remain For Mashpee Wampanoag Taunton Casino, regarding the Mashpee Wampanoag's efforts to have land taken into trust for purposes of gaming.

[Y]ou’ll remember that the Masphee became federally recognized as at tribe, officially, a few years ago. So thanks to [Carcieri], right now, the Mashpee can’t turn that land in Taunton into tribal land, which means they can’t build a casino on it.

I spoke with Gabe Galanda, he’s an expert in tribal law:

I think the situation they’re in is tragic. The state and local support of the tribe certainly does not hurt them. But the Secretary of the Interior remains without legal authority to take that land into trust.

That sounds pretty definitive.

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, including gaming. Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.

Galanda and Dreveskracht Both Published in Gaming Law Review on Cutting Edge Indian Gaming Issues

Gabe Galanda and Ryan Dreveskracht were each published in the June 2012 edition of Gaming Law Review and Economics, the leading peer-reviewed journal addressing important regulatory and economic issues facing today’s gaming industry. Gabe was featured in a published set of roundtable comments on issues of "Native American Off-Reservation Gaming." Among Gabe's quotes:

“[O]ff-reservation gaming” is simply a politically loaded term, by the design of non-tribal political interests...[W]hat we are more likely than not talking about it is reacquired Indian lands -- lands to be held in trust for tribal governments by their trustee, the United States, for purposes of Indian governmental gaming enterprise."

"Everyone is awaiting the Interior Secretary’s determination on the Spokane Tribe's application for a two-part determination...[for a] proposed a gaming site just a few miles down the road from the Kalispel Casino and Resort, also in Airway Heights. As the crow flies, it’s about thirty miles from the Spokane Reservation. So the very recent acquisitions in California...perhaps bode well for the Spokane Tribe..."

"[A] Carcieri fix, as it has been called, is needed by Congress, both for purposes of trust acquisition relative to gaming and, more importantly, so that tribes can restore their land base and conduct themselves as governments, while diversifying their economies away from gaming....Any Carcieri fix and the issue of so-called off-reservation trust acquisition for gaming purposes are apples and oranges. But Congress has been persuaded to think that those two issues are inextricably intertwined with one another. And it is safe to say, I believe, that, so long as Congress believes that a Carcieri fix will allow so-called "off-reservation gaming," it is very likely that there will never be a Carcieri fix."

"[W]e are seeing a rise of cases like Patchak, where non-Indian citizens or officials are suing the United States or appealing administrative decisions and the tribe is not a party to the administrative litigation or to the federal court lawsuit -- until, perhaps, it is forced to intervene. And, generally speaking, tribes are immune from such administrative or federal court litigation between a non-Indian party and the federal government. But then they are faced with the Hobson's choice of essentially standing behind the shield of that immunity and not involving themselves in the litigation and, therefore, allowing the United States to represent its interests; or to actually consent to the litigation and effectively waive their immunity, because the tribe believes that it is the only party that can adequately represent its interests and because it believes -- perhaps more crucially –- that the federal government cannot adequately represent its interests."

"The tribes, whether by Congress or the Obama Administration, must be given a seat at the internet gaming table and they must be specifically mentioned in any federal law or regulation which allows internet gaming. If the United States flouts its obligations to Indian Country in regards to the legalization of internet gaming, then it may be time for tribal governments to start internet gaming irrespective of the fed. And that, of course, is precisely how modern Indian gaming began in the 1970s; that is what resulted in the Cabazon decision and, ultimately, the Indian Gaming Regulatory Act and, ultimately, it is that civil disobedience, if you will, that resulted in us having this discussion about a $26 billion Indian gaming industry."

Ryan published his article, "Keeping It Clean for the Future of Indian Gaming." A passage:

At minimum, the cautionary tale to lawyers exemplified by Lake of Torches must be told: Saybrook and Wells Fargo filed a $50 million suit against their former attorneys, alleging that Saybrook would not have purchased the bonds and Wells Fargo would not have secured them had it not been for their attorneys’ negligent advice regarding NIGC approval. It is highly unlikely that the attorneys’ malpractice insurance will cover any $50 million judgment. Further, although Lake of Torches was a legal victory for the Lac du Flambeau Tribe, it was Pyrrhic for both the Tribe and Indian Country. While Lac du Flambeau will find it difficult, if not impossible to ever assume another commercial loan, the Lake of Torches imbroglio helped freeze the capital markets for all of Indian Country for much of the last couple of years.

Indian gaming enterprises have an obligation to appreciate and help nullify the danger that non-Indian businesses and their attorneys inadvertently pose to tribal sovereignty. Indeed, the days of tribal lawyers playing ‘‘hide the ball’’ in contract negotiations may need to be a thing of the past. Instead, taking preemptive steps to caution non-Indian businesses to at least hire competent counsel is not only good business, it is very likely necessary to deter the ero- sion of those fundamental principles of law that have allowed Indian gaming to flourish into the present day.

Gabriel "Gabe" Galanda is a partner, and Ryan Dreveskracht an associate, at Galanda Broadman PLLC, of Seattle, an American Indian owned law firm.  Gabe is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  He represents tribal governments and businesses and Indians citizens in all matters of controversy and transaction. He can be reached at 206.691.3631 or gabe@galandabroadman.com. Ryan's 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.

Connecticut District Court Resucsitates Bracker Balancing and Tax-Free Native-to-Native Commerce

On March 27, 2012, the U.S. District Court for the District of Connecticut ruled that a local government could not assess personal property taxes against Class III slot machines. The decision in Mashantucket Pequot Tribe v. Town of Leydard is here and related news coverage quoting Gabe Galanda is here. Beyond the court's specific holding, which represents a scarce tax win for Indian Country of late, the decision stands to rebuff an increasingly common arguments by states in justification of state taxation of Native-to-Native or Reservation-to-Reservation commerce. Due to Congress' preemption of the Indian gaming field and clear prohibition on state taxation of Indian gaming, per IGRA, the decision affirmed what was widely believed to be the law: that is, that states and local governments cannot assess personal property taxes against Class II or III gaming devices. Of broader significance, the Connecticut District Court's decision in Leydard stands to defeat arguments increasingly advanced by state tax assessors that to the extent Indians traverse state-funded highways in trading goods or engaging in commerce from Reservation to Reservation, states can tax those activities.

Last year, the Tenth Circuit Court of Appeals ruled that state roads traversed by non-Indian extraction companies while taking oil and gas to market represented a “substantial” state interest. That interest ultimately tipped the Bracker balancing away from tax preemption, in favor of the state, and gave more state tax collectors even more reason to argue that state roads represent a so-called state burden that justifies state taxation of Reservation-to-Reservation commerce.

But in Leydard, the District Court rejected such an argument on the part of the township:

The maintenance of the roads to the Reservation has some connection to the taxed activity because the leased gaming equipment was brought onto the Reservation by way of the roads and the individuals who use the gaming equipment also use the roads to the Reservation. However, even if the Tribe did not lease the gaming equipment, the Town would need to maintain roads to provide access to the Reservation for individuals living on and off the Reservation. Thus, the State and Town’s interest in taxing the leased equipment fails to justify the economic burden on the Tribe that compromises substantial federal and Tribal interests in tribal self-determination and self-government pursuant to comprehensive federal regulation. The tax is preempted pursuant to Bracker balancing.

In all, the Leydard decision helps tip the Bracker scale back in favor of Indian Country, especially as to tax-free Native-to-Native or Reservation-to-Reservation commerce.

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 helps tribes and Indian small businesses with economic diversification efforts, with an emphasis on minimizing state interference or taxation. Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.