House Bill 1713 seeks to categorically exempt city and county development or redevelopment efforts from compliance with the State Environmental Policy Act (SEPA). Among other environmental protections, this bill could allow cities and counties to sidestep protocols intended to protect Indian burial grounds, graves, skeletal remains and relayed cultural patrimony pursuant to the State Indian Graves and Records Act, RCW 27.44. Washington Indian tribes should categorically oppose House Bill 1713. Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. He can be reached at 206.691.3631 or gabe@galandabroadman.com, or via galandabroadman.com.
More on the Preservation of Indian Law on the Washington Bar Exam
According to draft minutes from the Washington State Bar Association Board of Governors meeting in Olympia, on January 27, Indian law was specifically preserved as an examination topic notwithstanding the adoption of the Uniform Bar Exam (UBE).
Governor Etengoff moved that the WSBA adopt as the Washington State Bar Exam the UBE, consisting of the Multistate Bar Exam-multiple choice exam (MBE), the Multistate Performance Test (MPT), and the Multistate Essay Exam (MEE), along with a Washington Educational Component Test (WECT), which will include Indian Law and other subjects particular to Washington State, and which consists of an online/course materials and online multiple choice exam, and also adopt the Multistate Professional Responsibility Exam (MPRE) as Washington’s’ Professional responsibility exam.
Loren moved to amend his motion to be effective as of the summer exam 2013. Motion to amend passed unanimously with a vote of 13-0-0. He later stated that he is agreeable to implementation happening sooner if that is a possibility.
Governor Leishman moved to amend Governor Etengoff’s motion to provisionally include the Missouri-style exam as WSBA’s test of Washington state competency in the summer exam 2013, but direct staff to evaluate alternatives for testing on Washington state competency. Motion to amend passed 11-2-0. Governors Moore and Palace opposed.
Governor Etengoff’s original motion, as amended, passed 11-0-2. Governors Buri and Flood abstained. Governor Lee was not present for the votes on the Washington State Bar Exam.
In addition to strengthening state-tribal relations in Washington State, the Board's decision further recognizes the vitality of Indian law in Washington's legal system and civil society.
Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. He can be reached at 206.691.3631 or gabe@galandabroadman.com, or via galandabroadman.com.
WSBA AFFIRMS Washington State-Tribal Relations!
Yesterday, the Washington State Bar Association (WSBA) Board of Governors affirmed a 2004 Board decision to add federal Indian jurisdiction to Washington's bar exam, by adopting a customized version of the Uniform Bar Exam, effective 2013, which will still include Indian law. Washington Tribal leaders had passionately urged the Board to maintain Indian law as a state bar exam topic, as it has been since 2007.
According to a letter from Affiliated Tribes of Northwest Indians President and Swinomish Indian Tribal Community Chairman Brian Cladoosby to the Board and the Deans of the three Washington State law schools, in October 2010:
I and my tribal leader colleagues are very pleased that since the State Bar Governors resolved to test federal Indian law on our state’s exam, we have begun to see a noticeable change in understanding and attitude among the public and private legal practitioners we interact with on a routine basis. We tribal leaders and our lawyers now spend less time in discussions with other governmental leaders and lawyers having to lay the foundation of tribal sovereignty and jurisdiction. The role of tribes in the governmental structure of our nation seems to be both better understood and accepted. This often allows us to get on with discussing the substance of our differences, so we can work towards agreement and consensus with the state and local governments as well as private entities. That benefits the all of our Tribes’ and our State’s citizens
Indian law is too important a topic to be eliminated or relegated to something other than the State bar exam. Federal Indian law is right where it belongs: on the Washington State bar exam and at the forefront of the minds of our State’s lawyers and the hearts of Washington’s tribal citizens.
In July 2010, Washington Indian Gaming Association President and Jamestown S'Klallam Tribal Chairman Ron Allen also wrote to the Board and local law school Deans:
The inclusion of Indian law on our State’s bar exam is a big deal to Indian Country. . .
Over the course of my nearly forty-year career in state, regional and national Indian politics, I have witnessed Washington State evolve towards the forefront of tribal/state relations. The Board of Governors’ decision in 2004 was another example of our State’s leadership in that regard. . . .
As a longtime elected Tribal leader, I feel an increasingly strong sense of a reciprocity and comity between our Tribal Governments and Washington State with regard to the inclusion of Indian law on the state bar exam – a feeling that must be honored, cherished and protected by us all of us in leadership positions for sake of our citizens and constituents.
I hope you will maintain federal Indian law as a topic on the Washington State bar exam.
Washington State Attorney General Rob McKenna joined Chairman Cladoosby and Allen in late 2010, urging the Board to keep testing Indian law on Washington's bar exam.
The central premise of the Board's decision to add the topic in 2004 was that "the integrity and competence of the legal profession in this state would be enhanced if attorneys licensed by the WSBA generally understood significant federal Indian jurisdictional principles." By affirming that decision, not only has the Board strengthened state-tribal relations in Washington State but the Board has bolstered the State Bar Association's core mission: to ensure the protection of the public -- Native and non-Native citizens alike.
(Yesterday, based on a social media posting from the Governor's meeting, that the "WSBA Board of Governors voted today to replace essay-only WA bar exam with uniform exams beginning by 2013," I erroneously reported that Indian law was left on the cutting room floor. My apologies to the Board and to anybody confused by my NPR-style reporting.)
Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. He can be reached at 206.691.3631 or gabe@galandabroadman.com, or via galandabroadman.com.
Gabe Galanda to Address ATNI on Federal Indian Consultation Right Developments
Gabe Galanda has been invited to address the Affiliated Tribes of Northwest Indians General Assembly next Wednesday, February 2, at ATNI's Winter Conference at the Coquille Tribe's Mill Casino Resort in Coos Bay, Oregon. His address is titled, "The Federal Indian Consultation Right: Exercising It" (download the slides). Gabe will provide an update on the Department of Interior's Draft Consultation Policy; the United States' endorsement of the United Nations Declaration on the Rights of Indigenous People and the international indigenous consultation norms codified therein; the import of the Quechan Tribe's successful litigation effort to halt a solar power project development on tribal sacred lands as a result of the United States' failure to consult.
Gabe recently published The Federal Indian Consultation Right: A Frontline Defense Against Tribal Sovereignty Incursion, in The Federal Indian Lawyer.
Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. He can be reached at 206.691.3631 or gabe@galandabroadman.com, or via galandabroadman.com.
It's High Time to Talk Tribal Marijuana Legalization, and Taxation
The Washington State Legislature is considering a bill that would legalize, regulate and tax marijuana:
House Bill 1550, filed Tuesday, would regulate marijuana much like alcohol. It proposes that pot be sold through state liquor stores to adults age 21 and older, that the sales be taxed and that the state Liquor Control Board issue licenses to commercial growers. Most of the revenue would go to health care, and substance-abuse treatment and prevention.
Washington State's House Bill 1550 follows California's Proposition 19, a failed ballot initiative that had enough voter momentum last fall to cause U.S. Attorney General Eric Holder to state that, if passed, the law would violate the federal ban on marijuana manufacture or possession. Even so, state (and in turn federal) legalization of marijuana is a matter of when, not if.
With that reality in mind, tribal governments should begin considering whether to also legalize and regulate marijuana. Any state regulation of marijuana would not extend to Indian Country, even in so-called P.L. 280 states. Instead, tribal laws could govern the production, distribution or sale of marijuana on tribal lands, by tribal entrepreneurs.
Better yet, if states legalize marijuana and attempt to tax it, state taxes would not apply to tribal marijuana business activity. States are limited, if not outright barred, from taxing even non-Indian purchases when value generated on the reservations by activities in which Indians have a significant interest are involved. Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 156-57 (1980).
Pursuant to the Colville case (an otherwise unmitigated catastrophe for tribal commerce), many tribes and tribal members are manufacturing tobacco products, and doing so free of ever-increasing state sales or business gross revenue taxes. The same legal rationale would apply to the tribal production, distribution and sale of marijuana from the reservation, so long as it is tribal members who are actively engaged in those commercial activities.
Independent of state tax exemption, tribal governments can impose their own excise taxes on tribal members' tobacco business activities. Many tribes do so, although at lower tax rates than imposed by state government. Likewise, tribes could tax tribal member marijuana commercial activities, perhaps at lower rates than states.
Tax abatement is of course how governments balance their goals of attracting and growing industry and jobs within their territory, with raising revenues for governmental programs and services. Tribal marijuana tax revenues could fund traditionally underfunded tribal governmental services and programs, including Indian health care, just as the proponents of House Bill 1550 intend any state marijuana excise taxes to fund state social services.
Indian Country has the sovereignty, tax status, land base, agricultural savvy and business intangibles to really make legalized marijuana happen. For some rural tribes, those attributes are all they have to leverage economically.
Best of all, any state-tax-exempt tribal purveyor of legalized marijuana would have a potentially significant competitive tax advantage over any non-Indian purveyor who would be subject to state marijuana excise taxation. In turn, the tribal private sector would grow.
This is not to say that legalizing tribal marijuana on the reservation will immunize tribal communities from the negative socio-economic effects of drug activity. Native Americans are afflicted with some of the highest rates of drug and alcohol abuse, most recently at the hands of methamphetamine. So great care must be taken to not exacerbate that epidemic. Even so, the business case for tribal marijuana legalization, as for tribal tobacco or Indian gaming commerce, is premised upon tax-exempt sales, from tribal lands, to non-Indians -- non-Indians who would take their purchased marijuana with them back to wherever it was they came from.
This is also not to say that there would not be collateral sovereign and self-governance challenges associated with tribal marijuana legalization. In states where medicinal marijuana has been legalized, tribal employers are already facing awkward requests from employees who claim the need to use marijuana to treat disabilities and thus, seek some form of "reasonable accommodation" to exempt them from anti-drug personnel policies. Such requests beg questions about the applicability of federal employment laws of general applicability, to tribal employers, and represent the perfect storm for the next legal challenge to sovereignty. Even more profound is the potential attraction of drug-related criminal or other undesirable activity on law enforcement-thin reservations.
[Update: An August 23, 2011 Seattle Times feature highlights the law enforcement dilemma yet implicitly underscores how the current federal prohibition on marijuana creates a black market, which a legalization, regulation and taxation regime would help eradicate both in and beyond Indian Country.]
This is also not to say that a tribal law that legalizes, regulates and taxes reservation-based marijuana commerce, even parallel with such state law, would be legally bullet-proof. Most notably, while the U.S., according to Attorney General Holder, currently turns a blind eye to medicinal marijuana activities that do not rise to the level of cartel-style drug trafficking, the Feds would most certainly give heightened legal scrutiny to tribally-legalized marijuana commercial activities. This is especially critical given the federal character of much of Indian Country, and the likelihood that the U.S. would invoke its federal trust responsibility in this regard (after centuries of conveniently ignoring that duty).
But Indian Country has faced such concerns and potential impediments before, with cigarettes, alcohol, fireworks, gaming, you name it. Yet Indian people have forged ahead. And notwithstanding the double standards that have emerged from tribal citizens pushing the legal and political envelope -- e.g., "value generated from the reservation" and "essential governmental function" -- the Tribes have prevailed, and Native American economies have resurged.
It is high time for Indian Country to begin seriously talking about legalizing marijuana as a means to diversify and sustain the tribal private sector and perhaps create a tribal excise tax base.
Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. He can be reached at 206.691.3631 or gabe@galandabroadman.com, or via galandabroadman.com. This information is not intended to create an attorney/client relationship and shall not be construed as legal advice.
Oh, That Old Line
According to Frank Fisher, Seneca County attorney:
“We just want … everyone to pay their fair share of taxes. Who could argue with that?’’
That is in reference to Seneca County's "push to foreclose on the five [Cayuga Nation] properties before the federal appeals court rules in the Oneida Indian Nation case."
You see, Seneca County conveniently (or perhaps ignorantly) ignores the fact that it is likely already getting its "fair share" of taxes, for use in providing local services. In fact, the County is probably overcompensated for any services that they provide to local tribal members.
Under the economics of “tax exporting,” it is frequently tribal governments – not state or local governments – that bear a disproportionate financial burden associated with taxation vis-à-vis local services rendered. One study, for example, found that
On most reservations, there are few retail stores and tribal members must go off reservation and pay state taxes on everything they buy. Nationwide, this amounts to $246 million annually in tax revenues to state governments, while states expend only $226 million annually on behalf of reservation residents.
That reality begs the question: why isn't Seneca County interested in negotiating some form of compact with the Cayuga Indian Nation, to resolve its property tax dispute? Intergovernmental tax compacting -- as suggested by the U.S. Supreme Court in Oklahoma Tax Commission v. Citizen Band of Potawatomi Tribe of Oklahoma, 498 U.S. 505, 515 (1991) -- allows for taxation to be commensurate with services rendered, taking into account the unique situations that exist between tribes and their neighbor governments.
Mr, Fisher, perhaps it is Seneca County who is not "paying its fair share of taxes" -- for services rendered to Cayuga Indian Nation citizens.
Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. He can be reached at 206.691.3631 or gabe@galandabroadman.com, or via galandabroadman.com.
A Tale of Two California Cities
Well, one is a county. In Northern California, Lake County requests consultation with the Robinson Rancheria regarding the potential impact of a tribal gas station project, on a nearby wetlands restoration area. According to a local news report, County and Tribal leaders have met to elicit
responses to the county's concerns, which included stormwater drainage, grading during the rainy season and the impact on the wetlands.
[T]he tribe has agreed to sit down with county officials – at a date and time yet to be determined – to discuss the Middle Creek Restoration Project, in which the tribe has been a partner in the past.
Lake County invokes a 1999 gaming compact between the Tribe and the State of California, but it is doubtful that dispute resolution provisions in that tribal-state agreement extend to any third-party.
In any event, the Tribe and County are consulting with each other -- government to government, neighbor to neighbor -- as they should. The citizens of Robinson Rancherie, the City of Nice and Lake County should be pleased with their elected leaders, at least for the time being.
Meanwhile, in Southern California, the City of Temecula has sued its neighbor, the Pechanga Band Luiseno Indians in U.S. District Court.
Temecula sued the tribe over a dispute that centers on a March agreement with the tribe.
The city contends the pact called on the tribe to pay the city at least $2 million annually to cover the city's casino-related expenses, such as police service.
The city expected the $2 million in June. But the tribe said the pact was not final until talks with Riverside County concluded.
The City of Temecula now faces an order from the District Court judge requiring it to show cause regarding why the court has jurisdiction over the city's money damages claim against the Tribe. Temecula also invokes dispute resolution language in a tribal-state compact, despite the city not being a party to that agreement.
Under prior California federal district court decisions, holding that tribal-state compact dispute resolution language does not extent to third parties, Temecula should prepare to be dismissed out of court.
It is unfortunate that Temecula refuses to act like an adult government, by litigating, rather than consulting in good faith, with its tribal neighbor. The Riverside County taxpayers deserve better.
Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. He can be reached at 206.691.3631 or gabe@galandabroadman.com, or via galandabroadman.com.
Arizona, REALLY?!
Just when you thought things could not possibly get any crazier in the "state" of Arizona, a bill has been introduced before the Arizona State Senate that would, if passed by the legislature and in turn Arizona voters, "constitutionally prohibit[] courts from considering international law or legal precepts of other nations or cultures when making judicial decisions."
Provisions
1. Requires courts, when making judicial decisions, to uphold and adhere to the laws of the U.S. Constitution, Arizona Constitution, U.S. Code, Federal regulations, established common law, Arizona laws and rules and if necessary, the laws of another state within the U.S. provided the laws in the other state do not include international law.
2. Prohibits Arizona courts from considering international law or legal precepts of other nations or cultures when making judicial decisions.
Among many other implications of this completely insane piece of legislation, were it to become Arizona law and withstand constitutional scrutiny, Arizona state courts could not make judicial decisions upon any consideration of (1) the laws of federally-recognized tribal governments, per choice-of-law agreements or notions of comity or full faith and credit, (2) the United Nations Declaration on the Rights of Indigenous People recently endorsed by the United States, or (3) the laws of any other state that dare incorporate international law into its systems of law.
Arizona, PLEASE, stop the insanity.
Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. He can be reached at 206.691.3631 or gabe@galandabroadman.com, or via galandabroadman.com.
Nice Try, DOI
On January 14, the Department of Interior (DOI) issued a draft agency policy on consultation with Indian tribal governments, as required by President Obama’s Nov. 5, 2009 White House Memorandum on Tribal Consultation. The draft includes the following "DISCLAIMER":
Except to the extent already established by statute, this Policy is intended only to improve the internal management of the Department, and is not intended to create any right, benefit, or trust responsibility, substantive or procedural, enforceable at law by a party against the Department or any person. The Department also does not waive any applicable privilege that it may hold by virtue of this Policy.
This disclaimer language is designed to insulate the Department from legal liability for any of its agencies' failure to meaningfully consult with tribes. Yet if the disclaimer withstands tribal comment and ends up in the adopted policy -- it should not -- it will fall short in circumscribing a DOI agency's liability for failing to consult.
That is because as already established by federal common law, the United States' trust responsibility includes an obligation to consult with tribal governments. Indian Treaties likewise require consultation, as does the United Nations Declaration on the Rights of Indigenous People, which the U.S. recently endorsed.
So while the disclaimer might operate to militate against a tribal consultation claim against a DOI agency under the APA, aggrieved tribes can still sue that agency for equitable relief to enjoin federal action pursuant to, inter alia, Indian Treaty and trust doctrine.
For additional information, see The Federal Indian Consultation Right: A Frontline Defense Against Tribal Sovereignty Incursion.
Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. He can be reached at 206.691.3631 or gabe@galandabroadman.com, or via galandabroadman.com.
Gabe Galanda On Tribal TV Episode: Indian Inmate Religious Rights
Gabe Galanda is shown in the January 11, 2011 episode of the tribal television show Tulalip Matters in reference to the movement to restore the religious freedoms of Native inmates incarcerated by the Washington State Department of Corrections. Gabe explained that movement in a September Indian Country Today column that was reprinted by indianz.com. The tribal television episode also features Galanda Broadman's pro bono client, Whaa ka dup.
In April, shortly after I started a new law firm, a local reservation attorney asked me if I would take on the pro bono cause of an Indian chaplain whose contract was terminated by the Washington Department of Corrections for bringing tobacco into Monroe on Easter Sunday, for the Native inmates’ spring ceremony. Now free to take on whatever cases we see fit, my small firm quickly agreed. I soon met the chaplain, Whaa ka dup, a Tulalip Indian whose Anglo name is Robert Monger. He had done time, but is now clean, sober, deeply spiritual, traditionally religious, and committed to helping his relations in “the Iron House” find the Good Red Road. Whaa ka dup – whose persona is tough, blunt and no non-sense – immediately inspired me.
Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. He can be reached at 206.691.3631 or gabe@galandabroadman.com, or via galandabroadman.com.
